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FTC

Healthcare Deregulation Best for Competition, Says Federal Trade Commissioner

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Photo of Commissioner Christine Wilson by the FTC used with permission

May 18, 2020 — Deregulation of healthcare will increase competition and personal choice, said Federal Trade Commissioner Christine S. Wilson in a Monday webinar.

The webinar, hosted by the Federalist Society and moderated by Svetlana Gans, vice president associate general counsel of NCTA, the Internet and Television Association, covered hot topics such as privacy and antitrust.

Wilson said that although she would not go into details of the FTC’s unreleased regulation reform plans, she believed that deregulation is possible and in many cases desirable.

“I would love to see states embrace the mindset of washing away some of these restrictive frameworks that would allow consumers to exercise more choice and to enjoy more competition in the healthcare arena,” she said.

Telehealth has seen a rise during the coronavirus pandemic that many experts are predicting will not end after the virus is controlled. Telemedicine allows for increased access to mental health resources as well as monitoring for patients with non-critical health issues.

Dr. Michael Barnett, assistant professor of health policy and management at the Harvard T.H. Chan School of Public Health, said that unfortunately, there is a “thicket of state laws and regulations that make telemedicine very complex … to implement broadly.”

Wilson said that the FTC would do its best to cut back on such regulations for telehealth.

“We will continue to call out state laws that we believe will inhibit competition without providing concomitant benefits to consumers,” she said.

Gans and Wilson also discussed privacy issues that the FTC is attempting to tackle.

The coronavirus has birthed a new demand for contact tracing, which would monitor an individual’s contact with infected persons through GPS and shared tracking applications. Several large companies, such as Apple and Google, have introduced their own contact tracing apps that could slow the spread of the virus, but at a potentially high cost to individual privacy.

“Consumers did not provide informed consent with respect to the use of their data in a pandemic,” Wilson said. “No one could have imagined that that was going to arise … I would like to see Congress say, ‘businesses need to be accountable in the way that they handle consumers’ data and information.’”

Wilson added that the FTC needed federal privacy legislation and more funding to enforce it, as well as to close common carrier privacy loopholes.

“Just because a company is a common carrier doesn’t mean it should be exempt from the same privacy legislation that their competitors are subjected to,” she said.

Elijah Labby was a Reporter with Broadband Breakfast. He was born in Pittsburgh, Pennsylvania and now resides in Orlando, Florida. He studies political science at Seminole State College, and enjoys reading and writing fiction (but not for Broadband Breakfast).

FTC

Biden Looks to Bedoya to Replace Rohit Chopra on FTC, Report Says

Staunch privacy advocate Alvaro Bedoya appears to be Joe Biden’s pick for the FTC, Axios reports.

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Staunch privacy advocate Alvaro Bedoya appears to be Joe Biden's pick for the FTC

WASHINGTON, September 13, 2021—President Joe Biden is expected to bring on privacy stalwart Alvaro Bedoya for the open seat on the Federal Trade Commission, according to reporting from Axios.

Born in Peru and raised in New York, Bedoya attended Harvard University where he received his B.A. in Social Studies. He also holds a J.D. from Yale.

A longtime supporter of consumer privacy rights, Bedoya is the founding director of the Center on Privacy and Technology at Georgetown Law. Previously, he served as chief counsel of the Senate Judiciary Subcommittee on Privacy, Technology, and the Law. While working in the Senate, much of his work centered on location and biometric privacy with regard to consumer protections.

As it stands now, there are three Democrats and two Republicans on the commission. In January of 2021, Biden tapped Rohit Chopra to serve as the Director of the Consumer Protection Bureau. Though Chopra’s term on the FTC expired in 2019, the commission allows incumbent members to sit until a replacement is appointed—in this case, Bedoya.

The Washington Post quoted Republican FTC commissioner Noah Phillips speaking fondly of Bedoya. “I don’t think of him as a person who just gets up and rants about entities he doesn’t like,” and described him as “without fail as bright and thoughtful a person as you could find.”

Phillips has been broadly critical of the direction he feels the FTC is going and has historically criticized political firebrands on both sides of the aisle.

As Big Tech faces mounting criticism from both Republicans and Democrats with regard to privacy, misinformation, and alleged censorship, Bedoya will be entering a tumultuous era for the FTC.

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Antitrust

FTC Commissioner Phillips Warns About Shifting Direction of Agency

Noah Phillips voiced concern about the scope and practices of the Biden administration’s FTC.

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FTC Commissioner Noah Phillips

WASHINGTON, September 2, 2021 — Federal Trade Commissioner Noah Phillips said at a Hudson Institute webinar on Monday that he’s concerned about the direction the competition watchdog is moving toward considering recent events.

Phillips said the left-leaning voices in Washington and the appointment of Lina Khan to chair the agency has left him wondering about the legacy of the last 40 years of competition regulation in America – which have been hallmarked by the Hart-Scott-Rodino Antitrust Improvements Act of 1976. That legislation effectively gave the FTC the ability to review mergers and acquisitions before they were finalized, rather than afterward, which governed pre-legislation.

Under Biden-appointee Lina Khan, Phillips described how the FTC has done away with the process of early termination. In the past, this process made it unnecessary for every single company to provide advanced notice and advanced approval for mergers. “Historically, parties have been able to come to the agencies and say, ‘You’re not interested in this, can we just go ahead and finish our deal,’ and the agencies have said ‘yes.’”

He said this is no longer the case, and that every single merger must provide advanced notice and approval. “What we’re introducing is an inefficiency in the market for transactions that we have no interest in pursuing, just for the sake of it. I think that’s a problem,” he continued. “My concern is that it is making merger enforcement less effective, less efficient, and less fair.”

Phillips pointed to left-of-center and leftist voices in Congress, such as Rep. David Cicilline, D-New York, Sen. Elizabeth Warren, D-Massachusetts, and Rep. Alexandria Ocasio-Cortez, D-New York, who, at the outset of the pandemic, wanted to ban all acquisitions and mergers—regardless of their merit. He described this view as falling outside of mainstream perspectives, but noteworthy nonetheless.

“I don’t think that is what most people believe,” Phillips remarked. “I don’t think that is what Hart-Scott-Rodino envisions.”

This webinar took place only a couple of weeks after Phillips spoke at the Technology Policy Institute’s 2021 Aspen Forum, where he voiced similar concerns, stating that he feared that this new direction would make it more difficult for the FTC to hear cases that it should, and defended the commission’s record against critics who said it was lax under the Trump Administration.

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Antitrust

Experts Say Congress’s New Antitrust Package is Philosophically Flawed and Politically Motivated

Antitrust and technology experts say that Congress’s new antitrust package is legally flawed and politically motivated.

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Pool photo of Lina Khan from April 2021 by Graeme Jennings

June 18, 2021—The package of five new antitrust bills introduced last Friday would “radically change how firms compete,” said a critic close to the technology industry.

The comments, by Aurelien Portuese, director of antitrust and innovation policy at the Information Technology and Innovation Foundation in an interview with Broadband Breakfast, represent a sharp critiques of the bills by legal experts and tech industry executives.

The bills would not achieve their stated goals, Portuese said. He says that they would stifle competition and lead to less, not more innovation.

Portuese said that, because the bills target companies above a certain market cap and would only apply to those companies, they would lead to “a two-level playing field” in which the laws would apply to certain companies and not to others.

“These bills allow practices for some companies while prohibiting the very same practices to their rivals, and conversely, would prohibit some practices to some companies while allowing them for rivals.”

Because the measures were drafted to target a specific companies such as Apple, Amazon, Facebook and Google, they were a form of “overt discrimination.”

Apple will be regulated by the new laws, but their competitor in the music streaming industry, Spotify, will not. This would give Spotify a competitive advantage over Apple.

Antitrust law should be used to foster innovation

Antitrust policy should be employed to foster as much innovation as possible, and not simply break up large firms into smaller ones, said David Teece, executive chairman of the Berkeley Research Group, to an online panel hosted by ITIF.

For his part, Portuese said that antitrust law is a “question of leadership, not of law.” Currently, there are three active legal cases employing antitrust philosophy involving Google, Facebook, and Apple, all of which, he said, are being prosecuted under the current antitrust law.

These current antitrust tools are sufficient, he said, and the lack of antitrust actions taken by past administrations is a problem of enforcement, and not the legal framework itself.

Lina Khan, a longstanding critic of Big Tech, was appointed chairwomen of the FTC on Tuesday. As chairwoman, she will have considerable leeway in directing how and what the FTC regulates. That could mean a major shift in the commission’s enforcement on antitrust.

Portuese also made the point that tech innovation requires large capital expenditures. By specifically targeting the U.S.’s top firms and breaking them up, the overall amount of innovation that occurs in the technology industry will diminished, he said.

Enforcement for political gain

Samuel Palmisano, the former CEO of technology company IBM, said that he sees the new antitrust legislative proposals as less about competition policy and more about politics.

“We see both the right and the left wanting to break up media and social platforms because they don’t like what’s being published, or not published,” Palmisano said at the ITIF event. “There can be a legitimate debate about media fairness or Section 230, but antitrust isn’t the tool for that debate.”

Editor’s Note: A previous version of this story incorrectly spelled the last name of Federal Trade Commission Chair Lina Khan, as “Kahn.” The story has been corrected, and Broadband Breakfast apologizes for the error.

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