Federal Trade Commission Expands Antitrust Enforcement By Rescinding Obama-Era Policy
In a party-line vote, the agency rescinded a 2015 statement that limited the scope of antitrust enforcement.
July 2, 2021 — The Federal Trade Commission passed multiple measures expanding the agency’s ability to enforce antitrust laws on Thursday in the agency’s first open meeting under newly-confirmed Chairwoman Lina Khan.
In a 3-2 party-line vote, the agency rescinded a 2015 statement that limited the scope of antitrust regulation to the framework established by the Sherman Act of 1890. Without that policy, the agency will be able to more aggressively crack down on anticompetitive business practices under Section 5 of the FTC act.
“Lawmakers created the FTC to police unlawful business practices with greater expertise and democratic accountability than courts provided,” said Khan, a longstanding critic of big technology companies, including Amazon.
“The 2015 statement is at odds with this institutional design because it declares that the Commission’s authority under Section 5 is largely coterminous with the Sherman Act,” she continued. “In effect, the statement surrenders the FTC’s unique advantages as an expert body with the power to adjudicate cases, issue rules and guidance.”
The FTC’s two Republican commissioners both objected to the decision. Commissioner Christine Wilson questioned the wisdom of rescinding the 2015 statement, claiming that it was made with broad consensus from legal experts and bipartisan support.
Commissioner Noah Phillips said that rescinding the statement convolutes how the FTC will enforce antitrust and competition policy, leaving the agency without clear direction. He also criticized the FTC for not allowing for public comment on the matter until after the vote had been taken.
President of the Computer & Communications Industry Association Matt Schruers raised a similar concern, saying in a press release, “While the CCIA appreciates the FTC’s efforts to enhance transparency by holding an open meeting, the agency should have engaged in more constructive discussions before rescinding the Section 5 bipartisan Policy Statement that brought legal certainty to antitrust enforcement. The FTC’s mandate to protect consumers will not be served by rescinding the Section 5 Policy Statement.”
The FTC’s decision could have a significant impact on issues such as its ongoing antitrust lawsuit against Facebook. While a judge recently threw out the initial case, the agency’s expanded scope could allow it to handle the case internally.
The open meeting resulted in two additional party-line decisions —simplifying the rulemaking process and streamlining investigations — that will similarly bolster antitrust enforcement.
