Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Commissioner Ohlhausen calls for agency to focus on mission, tools, outcomes, (Mar 26, 2014)
By Jeffrey May, J.D.
As the FTC turns 100, it is an important opportunity for the agency to evaluate it strengths and weaknesses, FTC Commissioner Maureen K. Ohlhausen told attendees of the American Bar Association Section of Antitrust Law Spring Meeting today. Ohlhausen participated in a panel discussion on the topic—”The FTC Begins a Second Century: Is Past Prologue?”
The FTC must clearly articulate its mission, evaluate its unique portfolio of enforcement and policy tools to determine which are best for accomplishing the agency’s goals, and measure its performance to ensure that it is improving consumer welfare, according to Ohlhausen.
The Commissioner suggested that the FTC should clearly articulate why its actions further the agency’s mission. For instance, the Commission should provide more guidance before pursuing cases under the agency’s stand-alone Section 5 unfair methods of competition authority. Ohlhausen reiterated her opposition to pursuing an expansive standalone Section 5 agenda before clarifying the scope of the agency’s authority.
According to Ohlhausen, the FTC must focus on harm to consumers to avoid unduly burdening business. Focusing on speculative harm could make consumers worse off by reducing innovation, she noted. Ohlhausen also recommended against a regulatory or rulemaking approach in dynamic industries that could reduce innovation.
The FTC has a unique portfolio of enforcement and policy tools in addition to its power to bring enforcement actions, Ohlhausen noted. Among those tools are agency studies pursuant to Section 6(b) of the FTC Act. The Commissioner pointed to two current Section 6(b) studies: (1) on the impact of patent assertion entity, or PAE, activity on competition and innovation; and (2) on privacy practices in data broker industry. She said that the agency hoped to issue the results of the data broker industry study soon. These studies enable the FTC to consider its mission and its approach to improving consumer welfare before taking enforcement actions.
The agency also has to pay attention to outcomes, Ohlhausen advised. It should not just focus on bringing the big cases. It must consider whether the agency’s actions improving consumer welfare.
News: Antitrust ConsumerProtection FederalTradeCommissionNews