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Late this summer, TOTM hosted a blog symposium on potential guidelines for the Federal Trade Commission’s exercise of its “unfair methods of competition” authority under Section 5 of the FTC Act.  Commissioner Josh Wright inspired the symposium by proposing a set of enforcement guidelines for the Commission.  Shortly thereafter, Commissioner Maureen Ohlhausen proposed her own guidelines, which were largely consistent with Commissioner Wright’s.  Participants in the blog symposium discussed both sets of guidelines and agreed – without exception, I believe – that it’s time for the FTC to give business some guidance on how it will enforce its “stand alone” Section 5 authority (i.e., its authority to pursue conduct that would not violate the Sherman Act).

The proposals by Commissioners Wright and Olhausen have now attracted attention on Capitol Hill.  In a letter sent last week to FTC Chair Edith Ramirez, eight members of Congress (Senators Charles Grassley and Mike Lee, along with Representatives Bob Goodlatte, Spencer Bachus, Lamar Smith, Trent Franks, Raul Labrador, and Blake Farenthold) acknowledged the chilling effect vacuous liability standards create and urged the FTC to provide some sort of definition of an actionable “unfair method of competition”:

As you know, antitrust enforcement actions pursued under the Clayton and Sherman Acts are subject to rigorous economic tests to ensure that the subject activity results in actual economic harm.  In contrast, stand-alone Section 5 claims do not receive similar scrutiny.  The absence of clear parameters for the FTC’s Section 5 authority based on empirical and economic justifications engenders uncertainty in the business community.  This uncertainty acts as a deterrent to innovation and creativity, which are critical drivers of the American economy and vitally important in today’s challenging economic environment.  Accordingly, articulating a standard by which the FTC intends to utilize its Section 5 unfair method of competition authority should be a high priority.

The members of Congress also disputed Chairwoman Ramirez’s assurances that the FTC’s prior Section 5 enforcement decisions provide the guidance businesses need.  In recent testimony before the Senate Judiciary Committee’s Subcommitte on Antitrust, Competition Policy, and Consumer Rights, Ramirez stated:

I do believe that there is guidance that’s provided.  If you look back at the recent cases in which the agency has taken action, using Section 5 on a standalone basis, it would include cases such as the invitation to collude cases in the context of the exchange of information, that can then be used to facilitate collusion or other unlawful practices and also in the standard-setting arena.

But what about the Intel matter, in which the FTC used Section 5 to go after above-cost loyalty rebates that probably would have passed muster under Sherman Act precedents?  That action resulted in a settlement in which Intel agreed to limit its future discounting.  To the extent that “precedent” provides guidance to businesses, the guidance seems a bit perverse!

Hopefully Chairwoman Ramirez will take the advice of her two FTC colleagues, now echoed by eight members of Congress, and provide the business community with a little clarity.  As she and the other commissioners mull over the matter, I would direct them to the terrific discussion in the links at the bottom of this post.

Joshua Wright is a Commissioner at the Federal Trade Commission

I’d like to thank Geoff and Thom for organizing this symposium and creating a forum for an open and frank exchange of ideas about the FTC’s unfair methods of competition authority under Section 5.  In offering my own views in a concrete proposed Policy Statement and speech earlier this summer, I hoped to encourage just such a discussion about how the Commission can define its authority to prosecute unfair methods of competition in a way that both strengthens the agency’s ability to target anticompetitive conduct and provides much needed guidance to the business community.  During the course of this symposium, I have enjoyed reading the many thoughtful posts providing feedback on my specific proposal, as well as offering other views on how guidance and limits can be imposed on the Commission’s unfair methods of competition authority.  Through this marketplace of ideas, I believe the Commission can develop a consensus position and finally accomplish the long overdue task of articulating its views on the application of the agency’s signature competition statute.  As this symposium comes to a close, I’d like to make a couple quick observations and respond to a few specific comments about my proposal.

There Exists a Vast Area of Agreement on Section 5

Although conventional wisdom may suggest it will be impossible to reach any meaningful consensus with respect to Section 5, this symposium demonstrates that there actually already exists a vast area of agreement on the subject.  In fact, it appears safe to draw at least two broad conclusions from the contributions that have been offered as part of this symposium.

First, an overwhelming majority of commentators believe that we need guidance on the scope of the FTC’s unfair methods of competition authority.  This is not surprising.  The absence of meaningful limiting principles distinguishing lawful conduct from unlawful conduct under Section 5 and the breadth of the Commission’s authority to prosecute unfair methods of competition creates significant uncertainty among the business community.  Moreover, without a coherent framework for applying Section 5, the Commission cannot possibly hope to fulfill Congress’s vision that Section 5 would play a key role in helping the FTC leverage its unique research and reporting functions to develop evidence-based competition policy.

Second, there is near unanimity that the FTC should challenge only conduct as an unfair method of competition if it results in “harm to competition” as the phrase is understood under the traditional federal antitrust laws.  Harm to competition is a concept that is readily understandable and has been deeply embedded into antitrust jurisprudence.  Incorporating this concept would require that any conduct challenged under Section 5 must both harm the competitive process and harm consumers.  Under this approach, the FTC should not consider non-economic factors, such as whether the practice harms small business or whether it violates public morals, in deciding whether to prosecute conduct as an unfair method of competition.  This is a simple commitment, but one that is not currently enshrined in the law.  By tethering the definition of unfair methods of competition to modern economics and to the understanding of competitive harm articulated in contemporary antitrust jurisprudence, we would ensure Section 5 enforcement focuses upon conduct that actually is anticompetitive.

While it is not surprising that commentators offering a diverse set of perspectives on the appropriate scope of the FTC’s unfair methods of competition authority would agree on these two points, I think it is important to note that this consensus covers much of the Section 5 debate while leaving some room for debate on the margins as to how the FTC can best use its unfair methods of competition authority to complement its mission of protecting competition.

Some Clarifications Regarding My Proposed Policy Statement

In the spirit of furthering the debate along those margins, I also briefly would like to correct the record, or at least provide some clarification, on a few aspects of my proposed Policy Statement.

First, contrary to David Balto’s suggestion, my proposed Policy Statement acknowledges the fact that Congress envisioned Section 5 to be an incipiency statute.  Indeed, the first element of my proposed definition of unfair methods of competition requires the FTC to show that the act or practice in question “harms or is likely to harm competition significantly.”  In fact, it is by prosecuting practices that have not yet resulted in harm to competition, but are likely to result in anticompetitive effects if allowed to continue, that my definition reaches “invitations to collude.”  Paul Denis raises an interesting question about how the FTC should assess the likelihood of harm to competition, and suggests doing so using an expected value test.  My proposed policy statement does just that by requiring the FTC to assess both the magnitude and probability of the competitive harm when determining whether a practice that has not yet harmed competition, but potentially is likely to, is an unfair method of competition under Section 5.  Where the probability of competitive harm is smaller, the Commission should not find an unfair method of competition without reason to believe the conduct poses a substantial harm.  Moreover, by requiring the FTC to show that the conduct in question results in “harm to competition” as that phrase is understood under the traditional federal antitrust laws, my proposal also incorporates all the temporal elements of harm discussed in the antitrust case law and therefore puts the Commission on the same footing as the courts.

Second, both Dan Crane and Marina Lao have suggested that the efficiencies screen I have proposed results in a null (or very small) set of cases because there is virtually no conduct for which some efficiencies cannot be claimed.  This suggestion stems from an apparent misunderstanding of the efficiencies screen.  What these comments fail to recognize is that the efficiencies screen I offer intentionally leverages the Commission’s considerable expertise in identifying the presence of cognizable efficiencies in the merger context and explicitly ties the analysis to the well-developed framework offered in the Horizontal Merger Guidelines.  As any antitrust practitioner can attest, the Commission does not credit “cognizable efficiencies” lightly and requires a rigorous showing that the claimed efficiencies are merger-specific, verifiable, and not derived from an anticompetitive reduction in output or service.  Fears that the efficiencies screen in the Section 5 context would immunize patently anticompetitive conduct because a firm nakedly asserts cost savings arising from the conduct without evidence supporting its claim are unwarranted.  Under this strict standard, the FTC would almost certainly have no trouble demonstrating no cognizable efficiencies exist in Dan’s “blowing up of the competitor’s factory” example because the very act of sabotage amounts to an anticompetitive reduction in output.

Third, Marina Lao further argues that permitting the FTC to challenge conduct as an unfair method of competition only when there are no cognizable efficiencies is too strict a standard and that it would be better to allow the agency to balance the harms against the efficiencies.  The current formulation of the Commission’s unfair methods of competition enforcement has proven unworkable in large part because it lacks clear boundaries and is both malleable and ambiguous.  In my view, in order to make Section 5 a meaningful statute, and one that can contribute productively to the Commission’s competition enforcement mission as envisioned by Congress, the Commission must first confine its unfair methods of competition authority to those areas where it can leverage its unique institutional capabilities to target the conduct most harmful to consumers.  This in no way requires the Commission to let anticompetitive conduct run rampant.  Where the FTC identifies and wants to challenge conduct with both harms and benefits, it is fully capable of doing so successfully in federal court under the traditional antitrust laws.

I cannot think of a contribution the Commission can make to the FTC’s competition mission that is more important than issuing a Policy Statement articulating the appropriate application of Section 5.  I look forward to continuing to exchange ideas with those both inside and outside the agency regarding how the Commission can provide guidance about its unfair methods of competition authority.  Thank you once again to Truth on the Market for organizing and hosting this symposium and to the many participants for their thoughtful contributions.

*The views expressed here are my own and do not reflect those of the Commission or any other Commissioner.

Tad Lipsky is a partner in the law firm of Latham & Watkins LLP.

The FTC’s struggle to provide guidance for its enforcement of Section 5’s Unfair Methods of Competition (UMC) clause (or not – some oppose the provision of forward guidance by the agency, much as one occasionally heard opposition to the concept of merger guidelines in 1968 and again in 1982) could evoke a much broader long-run issue: is a federal law regulating single-firm conduct worth the trouble?  Antitrust law has its hard spots and its soft spots: I imagine that most antitrust lawyers think they can define “naked” price-fixing and other hard-core cartel conduct, and they would defend having a law that prohibits it.  Similarly with a law that prohibits anticompetitive mergers.  Monopolization perhaps not so much: 123 years of Section 2 enforcement and the best our Supreme Court can do is the Grinnell standard, defining monopolization as the “willful acquisition or maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.”  Is this Grinnell definition that much better than “unfair methods of competition”?

The Court has created a few specific conduct categories within the Grinnell rubric: sham petitioning (objectively and subjectively baseless appeals for government action), predatory pricing (pricing below cost with a reasonable prospect of recoupment through the exercise of power obtained by achieving monopoly or disciplining competitors), and unlawful tying (using market power over one product to force the purchase of a distinct product – you probably know the rest).  These categories are neither perfectly clear (what measure of cost indicates a predatory price?) nor guaranteed to last (the presumption that a patent bestows market power within the meaning of the tying rule was abandoned in 2005).  At least the more specific categories give some guidance to lower courts, prosecutors, litigants and – most important of all – compliance-inclined businesses.  They provide more useful guidance than Grinnell.

The scope for differences of opinion regarding the definition of monopolization is at an historical zenith.  Some of the least civilized disagreements between the FTC and the Antitrust Division – the Justice Department’s visible contempt for the FTC’s ReaLemon decision in the early 1980’s, or the three-Commissioner vilification of the Justice Department’s 2008 report on unilateral conduct – concern these differences.  The 2009 Justice Department theatrically withdrew the 2008 Justice Department’s report, claiming (against clear objective evidence to the contrary) that the issue was settled in its favor by Lorain Journal, Aspen Skiing, and the D.C. Circuit decision in the main case involving Microsoft.

Although less noted in the copious scholarly output concerning UMC, disputes about the meaning of Section 5 are encouraged by the lack of definitive guidance on monopolization.  For every clarification provided by the Supreme Court, the FTC’s room for maneuver under UMC is reduced.  The FTC could not define sham litigation inconsistently with Professional Real Estate Investors v. Columbia Pictures Industries; it could not read recoupment out of the Brooke Group v. Brown & Williamson Tobacco Co. definition of predatory pricing.

The fact remains that there has been less-than-satisfactory clarification of single-firm conduct standards under either statute.  Grinnell remains the only “guideline” for the vast territory of Section 2 enforcement (aside from the specific mentioned categories), especially since the Supreme Court has shown no enthusiasm for either of the two main appellate-court approaches to a general test for unlawful unilateral conduct under Section 2, the “intent test” and the “essential facilities doctrine.”  (It has not rejected them, either.)  The current differences of opinion – even within the Commission itself, leave aside the appellate courts – are emblematic of a similar failure with regard to UMC.  Failure to clarify rules of such universal applicability has obvious costs and adverse impacts: creative and competitively benign business conduct is deterred (with corresponding losses in innovation, productivity and welfare), and the costs, delays, disruption and other burdens of litigation are amplified.  Are these costs worth bearing?

Years ago I heard it said that a certain old-line law firm had tightened its standards of partner performance: whereas formerly the firm would expel a partner who remained drunk for ten years, the new rule was that a partner could remain drunk only for five years.  The antitrust standards for unilateral conduct have vacillated for over a century.  For a time (as exemplified by United States v. United Shoe Machinery Corp.) any act of self-preservation by a monopolist – even if “honestly industrial” – was presumptively unlawful if not compelled by outside circumstances.  Even Grinnell looks good compared to that, but Grinnell still fails to provide much help in most Section 2 cases; and the debate over UMC says the same about Section 5.  I do not advocate the repeal of either statute, but shouldn’t we expect that someone might want to tighten our standards?  Maybe we can allow a statute a hundred years to be clarified through common-law application.  Section 2 passed that milepost twenty-three years ago, and Section 5 reaches that point next year.  We shouldn’t be surprised if someone wants to pull the plug beyond that point.

Paul Denis is a partner at Dechert LLP and Deputy Chair of the Firm’s Global Litigation Practice.  His views do not necessarily reflect those of his firm or its clients.

Deterrence ought to be an important objective of enforcement policy.  Some might argue it should be THE objective.  But it is difficult to know what is being deterred by a law if the agency enforcing the law cannot or will not explain its boundaries.  Commissioner Wright’s call for a policy statement on the scope of Section 5 enforcement is a welcome step toward Section 5 achieving meaningful deterrence of competitively harmful conduct.

The draft policy statement has considerable breadth.  I will limit myself to three concepts that I see as important to its application, the temporal dimension (applicable to both harm and efficiencies), the concept of harm to competition, and the concept of cognizable efficiencies.

Temporal Dimension

Commissioner Wright offers a compelling framework, but it is missing an important element — the temporal dimension.  Over what time period must likely harm to competition be felt in order to be actionable?  Similarly, over what time period must efficiencies be realized in order to be cognizable?  On page 8 of the draft policy statement he notes that the Commission may challenge “practices that have not yet resulted in harm to competition but are likely to result in anticompetitive effects if allowed to continue.”  When must those effects be felt?  How good is the Commission’s crystal ball for predicting harm to competition when the claim is that the challenged conduct precluded some future competition from coming to market?  Doesn’t that crystal ball get a bit murky when you are looking further into the future?  Doesn’t it get particularly murky when the future effect depends on one more other things happening between now and the time of feared anticompetitive effects?

We often hear from the Commission that arguments about future entry are too remote in time (although the bright line test of 2 years for entry to have an effect was pulled from the Horizontal Merger Guidelines).  Shouldn’t similar considerations be applied to claims of harm to competition?  The Commission has engaged in considerable innovation to try to get around the potential competition doctrine developed by the courts and the Commission under Section 7 of the Clayton Act.  The policy statement should consider whether there can be some temporal limit to Section 5 claims.  Perhaps the concept of likely harm to competition could be interpreted in an expected value sense, considering both probability of harm and timing of harm, but it is not obvious to me how that interpretation, whatever its theoretical appeal, could be made operational.  Bright line tests or presumptive time periods may be crude but may also be more easily applied.

Harm to Competition

On the “harm to competition” element, I was left unclear if this was a unified concept or whether there were two subparts to it.  Commissioner Wright paraphrases Chicago Board of Trade and concludes that “Conduct challenged under Section 5 must harm competition and cause an anticompetitive effect.” (emphasis supplied).  He then quotes Microsoft for the proposition that conduct “must harm the competitive process and thereby harm consumers.” (emphasis supplied).  The indicators referenced at the bottom of page 18 of his speech strike me as indicators of harm to consumers rather than indicators of harm to the competitive process.  Is there anything more to “harm to competition” than “harm to consumers?”  If so, what is it?  I think there probably should be something more than harm to consumers.  If I develop a new product that drives from the market all rivals, the effect may be to increase prices and reduce output.  But absent some bad act – some harm to the competitive process – my development of the new product should not expose me to a Section 5 claim or even the obligation to argue cognizable efficiencies.

On the subject of indicators, the draft policy statement notes that perhaps most relevant are price or output effects.  But Commissioner Wright’s speech goes on to note that increased prices, reduced output, diminished quality, or weakened incentives to innovate are also indicators (Speech at 19).  Shouldn’t this list be limited to output (or quality-adjusted output)?  If price goes up but output rises, isn’t that evidence that consumers have been benefitted?  Why should I have to defend myself by arguing that there are obvious efficiencies (as evidenced by the increased output)?  The reference to innovation is particularly confusing. I don’t believe there is a well developed theoretical or empirical basis for assessing innovation. The structural inferences that we make about price (often dubious themselves) don’t apply to innovation.  We don’t really know what leads to more or less innovation.  How is it that the Commission can see this indicator?  What is it that they are observing?

Cognizable Efficiencies

On cognizable efficiencies, there is a benefit in that the draft policy statement ties this element to the analogous concept used in merger enforcement.  But there is a disadvantage in that the FTC staff usually finds that efficiencies advanced by the parties in mergers are not cognizable for one reason or another.  Perhaps most of what the parties in mergers advance is not cognizable.  But it strikes me as implausible that after so many years of applying this concept that the Commission still rarely sees an efficiencies argument that is cognizable.  Are merging parties and their counsel really that dense?  Or is it that the goal posts keeping moving to ensure that no one ever scores?  Based on the history in mergers, I’m not sure this second element will amount to much.  The respondent will assert cognizable efficiencies, the staff will reject them, and we will be back in the litigation morass that the draft policy statement was trying to avoid, limited only by the Commission’s need to show harm to competition.

David Balto is a Public Interest Attorney at the Law Offices of David Balto

I appreciate the opportunity to provide comments on the current Section 5 discussion and add a few modest thoughts about the very thoughtful speeches of Commissioners Wright and Ohlhausen. I must admit, that as a former FTC Policy dude my mouth salivates at the thought of any new Guidelines. After all what could be more fun that coming out with thought pieces, speeches, commentaries, drafts, revised drafts, reply drafts, and more drafts. What could be more enjoyable than spending hundreds of hours parsing through every word to debate and detect every nuance. And then providing a document that is both sufficiently flexible and informative that it can live and adjust to changing circumstances – that sounds like fun. Why this sounds like an effort that would make any Talmudic debate sound like a simple task.

So I wonder at the outset:  what is the need for any policy statement or guidelines. Although both speeches perhaps may raise the specter of unwarranted enforcement I simply do not see it. No matter what recent FTC administration we refer to the actions seem extremely modest. There are less than a handful of cases in the past decades.

Indeed, the lack of enforcement  should raise concern about the ability to issue any type of policy statement. The question, quite legitimate is whether the agency has the experience from Section 5 enforcement to fully articulate the set of issues and criteria necessary to conclude a practice is an unfair method of competition.

Another concern might be that unclear Section 5 powers might stifle firms from engaging in potentially procompetitive or efficient conduct. So I decided to test that proposition (very informally) by reading through a handful of antitrust counseling treatises on issues such as distribution.  I could find nary a single mention of some additional liability firms faced or additional uncertainty because of the FTC’s Section 5 powers. Obviously the areas where the Commission has tread so far – invitations to collude, improper information sharing and deception involving standards are the types of conduct that have so little redeeming merit that there is no concern over stifling procompetitive conduct.

So as the old lady in the Wendy’s commercial of the 1980s says “Where’s the Beef?”

Now as to the speeches I have a few observations.

First, Section 5 is a law enforcement statute. Congress enacted it to enable the Commission to challenge conduct that was broader that the Sherman Act. It is not a regulatory statute. Like all antitrust laws (except that adopted cousin the Robinson Patman Act) it is a generalist statute, broad in nature to give the Commission and the courts the ability to adapt to changing conduct and changing market conditions. We do not issue policy statements for the other antitrust statutes (there is no statement defining an unreasonable restraint of trade).  Why should there be a statement defining an unfair method of competition?

Second, neither of the speeches recognize that Section 5 is an incipiency statute (like the Clayton Act). Congress intended the FTC to use the statute to attack practices in their incipiency before they become full blown violations.

Third, Commissioner Ohlhausen relies in detail on the Clinton-era executive order on Regulatory Planning and Review EO 12866. I find the idea intriguing but that EO is intended for regulatory agencies and their regulatory regimes – not law enforcement. There are strong reasons why it is necessary to rein in regulatory agencies especially because of the costs they can impose through their regulations. A single law enforcement action does not raise these concerns.

Commissioners Ohlhausen suggests that the agency should hold its fire if there may be other regulatory alternatives (“using the most direct route”). Let’s look at the Phoebe Putney merger or the situations involving regulatory abuse such as the FTC’s 2003 case against Bristol Myers. Would we really feel confident in lobbying the Georgia state legislature or the FDA as an alternative?

Finally, I am concerned about one possible unintended consequence. 29 states have little FTC Acts which condemn unfair methods of competition. Those Acts have led to dozens of important enforcement actions benefitting consumers. Any FTC policy statement on UMC can potentially weaken enforcement under those Acts.

Gus Hurwitz is Assistant Professor of Law at University of Nebraska College of Law

Administrative law really is a strange beast. My last post explained this a bit, in the context of Chevron. In this post, I want to make this point in another context, explaining how utterly useless a policy statement can be. Our discussion today has focused on what should go into a policy statement – there seems to be general consensus that one is a good idea. But I’m not sure that we have a good understanding of how little certainty a policy statement offers.

Administrative Stare Decisis?

I alluded in my previous post to the absence of stare decisis in the administrative context. This is one of the greatest differences between judicial and administrative rulemaking: agencies are not bound by either prior judicial interpretations of their statutes, or even by their own prior interpretations. These conclusions follow from relatively recent opinions – Brand-X in 2005 and Fox I in 2007 – and have broad implications for the relationship between courts and agencies.

In Brand-X, the Court explained that a “court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” This conclusion follows from a direct application of Chevron: courts are responsible for determining whether a statute is ambiguous; agencies are responsible for determining the (reasonable) meaning of a statute that is ambiguous.

Not only are agencies not bound by a court’s prior interpretations of an ambiguous statute – they’re not even bound by their own prior interpretations!

In Fox I, the Court held that an agency’s own interpretation of an ambiguous statute impose no special obligations should the agency subsequently change its interpretation.[1] It may be necessary to acknowledge the prior policy; and factual findings upon which the new policy is based that contradict findings upon which the prior policy was based may need to be explained.[2] But where a statute may be interpreted in multiple ways – that is, in any case where the statute is ambiguous – Congress, and by extension its agencies, is free to choose between those alternative interpretations. The fact that an agency previously adopted one interpretation does not necessarily render other possible interpretations any less reasonable; the mere fact that one was previously adopted therefore, on its own, cannot act as a bar to subsequent adoption of a competing interpretation.

What Does This Mean for Policy Statements?

In a contentious policy environment – that is, one where the prevailing understanding of an ambiguous law changes with the consensus of a three-Commissioner majority – policy statements are worth next to nothing. Generally, the value of a policy statement is explaining to a court the agency’s rationale for its preferred construction of an ambiguous statute. Absent such an explanation, a court is likely to find that the construction was not sufficiently reasoned to merit deference. That is: a policy statement makes it easier for an agency to assert a given construction of a statute in litigation.

But a policy statement isn’t necessary to make that assertion, or for an agency to receive deference. Absent a policy statement, the agency needs to demonstrate to the court that its interpretation of the statute is sufficiently reasoned (and not merely a strategic interpretation adopted for the purposes of the present litigation).

And, more important, a policy statement in no way prevents an agency from changing its interpretation. Fox I makes clear that an agency is free to change its interpretations of a given statute. Prior interpretations – including prior policy statements – are not a bar to such changes. Prior interpretations also, therefore, offer little assurance to parties subject to any given interpretation.

Are Policy Statements entirely Useless?

Policy statements may not be entirely useless. The likely front on which to challenge an unexpected change agency interpretation of its statute is on Due Process or Notice grounds. The existence of a policy statement may make it easier for a party to argue that a changed interpretation runs afoul of Due Process or Notice requirements. See, e.g., Fox II.

So there is some hope that a policy statement would be useful. But, in the context of Section 5 UMC claims, I’m not sure how much comfort this really affords. Regulatory takings jurisprudence gives agencies broad power to seemingly-contravene Due Process and Notice expectations. This is largely because of the nature of relief available to the FTC: injunctive relief, such as barring certain business practices, even if it results in real economic losses, is likely to survive a regulatory takings challenge, and therefore also a Due Process challenge.  Generally, the Due Process and Notice lines of argument are best suited against fines and similar retrospective remedies; they offer little comfort against prospective remedies like injunctions.

Conclusion

I’ll conclude the same way that I did my previous post, with what I believe is the most important takeaway from this post: however we proceed, we must do so with an understanding of both antitrust and administrative law. Administrative law is the unique, beautiful, and scary beast that governs the FTC – those who fail to respect its nuances do so at their own peril.


[1] Fox v. FCC, 556 U.S. 502, 514–516 (2007) (“The statute makes no distinction [] between initial agency action and subsequent agency action undoing or revising that action. … And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.”).

[2] Id. (“To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. … This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.”).

Geoffrey Manne is Lecturer in Law at Lewis & Clark Law School and Executive Director of the International Center for Law & Economics

Josh and Maureen are to be commended for their important contributions to the discussion over the proper scope of the FTC’s Section 5 enforcement authority. I have commented extensively on UMC and Section 5, Josh’s statement, and particularly the problems if UMC enforcement against the use of injunctions to enforce FRAND-encumbered SEPs before (see, for example, here, here and here). I’d like to highlight here a couple of the most important issues from among these comments along with a couple of additional ones.

First, there is really no sensible disagreement over Josh’s harm to competition prong. And to the extent there is disagreement over the proper role for efficiencies, given the existence of compelling arguments that we don’t need Section 5 at all (see, e.g., Joe Sims and James Cooper), what might have seemed like a radical position in Josh’s statement that the FTC enforce UMC only where no efficiencies exist, Josh’s position is actually something of a middle ground. In any case, the first prong of Josh’s statement (the harm to competition requirement) really should attract unanimity, as it essentially has here today, and all of the FTC’s commissioners should come out and say so, even if debate persists over the second prong. This alone would provide an enormous amount of certainty and sense to the FTC’s UMC enforcement decisions.

Second, sensible, predictable guidance is essential. In her recent speech, echoing the fundamental issue laid out so well in Josh’s statement and elaborated on in his accompanying speech, Maureen notes that:

For many decades, the Commission’s exercise of its UMC authority has launched the agency into a sea of uncertainty, much like the agency weathered when using its unfairness authority in the consumer protection area in the 1970s. In issuing our 1980 statement on the concept of “unfair acts or practices” under our consumer protection authority, the Commission acknowledged the uncertainty that had surrounded the concept of unfairness, admitting that “this uncertainty has been honestly troublesome for some businesses and some members of the legal profession.” This characterization just as aptly describes the state of our UMC authority today.

It seems uncontroversial that some guidance is required, and a pseudo-common law of un-adjudicated settlements lacking any doctrinal analysis simply doesn’t provide sufficient grounds to separate the fair from the unfair. (What follows is drawn from our amicus brief in the Wyndham case).

The FTC’s current approach to UMC enforcement denies companies “a reasonable opportunity to know what is prohibited” and thus follow the law. The FTC has previously suggested that its settlements and Congressional testimony offers all the guidance a company would need—see, e.g., here and here, where Chairwoman Ramirez noted that

Section 5 of the FTC Act has been developed over time, case-by-case, in the manner of common law. These precedents provide the Commission and the business community with important guidance regarding the appropriate scope and use of the FTC’s Section 5 authority.

But settlements (and testimony summarizing them) do not in any way constrain the FTC’s subsequent enforcement decisions; they cannot alone be the basis by which the FTC provides guidance on its UMC authority because, unlike published guidelines, they do not purport to lay out general enforcement principles and are not recognized as doing so by courts and the business community. It is impossible to imagine a court faulting the FTC for failure to adhere to a previous settlement, particularly because settlements are not readily generalizable and bind only the parties who agree to them. As we put it in our Wyndham amicus brief:

Even setting aside this basic legal principle, the gradual accretion of these unadjudicated settlements does not solve the vagueness problem: Where guidelines provide cumulative analysis of previous enforcement decisions to establish general principles, these settlements are devoid of doctrinal analysis and offer little more than an infinite regress of unadjudicated assertions.

Rulemaking is generally preferable to case-by-case adjudication as a way to develop agency-enforced law because rulemaking both reduces vagueness and constrains the mischief that unconstrained agency actions may cause. As the Court noted in SEC v. Chenery Corp.,

The function of filling in the interstices of [a statute] should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future.

Without Article III court decisions developing binding legal principles ,and with no other meaningful form of guidance from the FTC, the law will remain unconstitutionally vague. And the FTC’s approach to enforcement also allows the FTC to act both arbitrarily and discriminatorily—backed by the costly threat of the CID process and Part III adjudication. This means the company faces two practically certain defeats—before the administrative law judge and then the full Commission, each a public relations disaster. The FTC appears to be perfectly willing to use negative media to encourage settlements: The House Oversight Committee is currently investigating whether a series of leaks by FTC staff to media last year were intended to pressure Google to settle the FTC’s antitrust investigation into the company’s business practices.

Third, if the FTC doesn’t act to constrain itself, the courts or Congress will do so, and may do more damage to the FTC’s authority than any self-imposed constraints would.

The power to determine whether the practices of almost any American business are “unfair” methods of competition (particularly if UMC retains the broad reach Tim Wu outlines in his post) makes the FTC uniquely powerful. This power, if it is to be used sensibly, allows the FTC to protect consumers from truly harmful business practices not covered by the FTC’s general consumer protection authority. But without effective enforcement of clear limiting principles, this power may be stretched beyond what Congress intended.

In 1964, the Commission began using its unfairness power to ban business practices that it determined offended “public policy.” Emboldened by vague Supreme Court dicta from Sperry & Hutchinson comparing the agency to a “court of equity,” the Commission set upon a series of rulemakings and enforcement actions so sweeping that the Washington Post dubbed the agency the “National Nanny.” The FTC’s actions eventually prompted Congress to briefly shut down the agency to reinforce the point that it had not intended the agency to operate with such expansive authority. The FTC survived as an institution only because, in 1980, it (unanimously) issued a Policy Statement on Unfairness laying out basic limiting principles to constrain its power and assuring Congress that these principles would be further developed over time—principles that Congress then codified in Section 5(n) of the FTC Act.

And for a time, the Commission used its unfairness power sparingly and carefully, largely out of fear of reawakening Congressional furor. Back in 1980, the FTC itself declared that

The task of identifying unfair trade practices was therefore assigned to the Commission, subject to judicial review, in the expectation that the underlying criteria would evolve and develop over time.

Yet we know little more today than we did in 1980 about how the FTC analyzes each prong of Section 5.

Moreover, courts may not support enforcement given this ambiguity, and in our Wyndham brief we supported Wyndham’s motion to dismiss for exactly this reason (and that was brought under the Commission’s unfairness authority where it even has some guidelines). As we wrote:

Since the problem is a lack of judicial adjudication, it might seem counter-intuitive that the court should dismiss the FTC’s suit on the pleadings. But this is precisely the form of adjudication required: The FTC needs to be told that its complaints do not meet the minimum standards required to establish a violation of Section 5 because otherwise there is little reason to think that the FTC’s complaints will not continue to be the Commission’s primary means of building law (what amounts to “non-law law”). But even if the FTC re-files its unadjudicated complaint to explain its analysis of the prongs of the Unfairness Doctrine, it will not have solved yet another fundamental problem: its failure to provide Wyndham with sufficient guidance ex ante as to what “reasonable” data security practices would be.

The same could be said of the FTC’s UMC enforcement. Section 5(n) applies to UMC, and states that:

The Commission shall have no authority under this section or section 57a of this title to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination.

Finally, applying this to FRAND-encumbered SEPs, as I have previously discussed, is problematic. As Kobayashi and Wright note in discussing the N-Data case,

[T]he truth is that there was little chance the FTC could have prevailed under the more rigorous Section 2 standard that anchors the liability rule to a demanding standard requiring proof of both exclusionary conduct and competitive harm. One must either accept the proposition that the FTC sought Section 5 liability precisely because there was no evidence of consumer harm or that the FTC believed there was evidence of consumer harm but elected to file the Complaint based only upon the Section 5 theory to encourage an expansive application of that Section, a position several Commissioners joining the Majority Statement have taken in recent years. Neither of these interpretations offers much evidence that N-Data is sound as a matter of prosecutorial discretion or antitrust policy.

None of the FTC’s SEP cases has offered anything approaching proof of consumer harm, and this is where any sensible limiting principles must begin—as just about everyone here today seems to agree. Moreover, even if they did adduce evidence of harm, the often-ignored problem of reverse holdup raises precisely the concern about over-enforcement that Josh’s “no efficiencies” prong is meant to address. Holdup may raise consumer prices (although the FTC has not presented evidence of this), but reverse holdup may do as much or more damage.

The use of injunctions to enforce SEPs increases innovation, the willingness to license generally and the willingness to enter into FRAND commitments in particular–all to the likely benefit of consumer welfare. If the FTC interprets its UMC authority in a way that constrains the ability of patent holders to effectively police their patent rights, then less innovation would be expected–to the detriment of consumers as well as businesses. An unfettered UMC authority will systematically curtail these benefits, quite possibly without countervailing positive effects.

And as I noted in a post yesterday, these costs are real. Innovative technology companies are responding to the current SEP enforcement environment exactly as we would expect them to: by avoiding the otherwise-consumer-welfare enhancing standardization process entirely—as statements made at a recent event demonstrate:

Because of the current atmosphere, Lukander said, Nokia has stepped back from the standardisation process, electing either not to join certain standard-setting organisations (SSOs) or not to contribute certain technologies to these organisations.

Section 5 is a particularly problematic piece of this, and sensible limits like those Josh proposes would go a long way toward mitigating the problem—without removing enforcement authority in the face of real competitive harm, which remains available under the Sherman Act.

David Balto is a Public Interest Attorney at the Law Offices of David Balto

One must applaud the efforts of Commissioners Ohlhausen and Wright to begin the dialogue about the proper use of Section 5 as a tool of antitrust enforcement. It was 99 years ago that Congress was debating the creation of the Federal Trade Commission and increased guidance on the Commission’s thinking on Section 5 is in order.

One of the most important issues is the type of evidence needed to show a violation. Commissioner Wright has helped fashion the discussion by emphasizing the importance of having strong empirical evidence to support any enforcement action. He emphasizes the risks of relying too heavy on theory when empirical evidence is necessary.

Commissioner Ohlhausen’s speech focuses on the need for an economic basis for enforcement decisions in detail. Using the Clinton-era standards for regulatory action in EO 12866 puts this in even greater perspective. As she notes

E.O. 12866 calls for agencies to base their regulatory decisions on the best reasonably obtainable scientific, technical, economic, and other information concerning the need for, and consequences of, any contemplated regulation. Similarly, any effort to expand UMC beyond the antitrust laws should be grounded in robust economic evidence that the challenged practice is anticompetitive and reduces consumer welfare.

She also notes that

any harm to competition under our UMC authority ought to be substantial.  This substantiality requirement would mirror the one in our Unfairness Statement on the consumer protection side, which states that the consumer injury must be substantial for the agency to pursue an unfair act or practice claim under Section 5 . . . ‘The Commission is not concerned with trivial or merely speculative harm.’

Commissioners Wright and Ohlhausen do not have to wait long to apply their guidance on the need for strong economic evidence.  Their initial challenge will be served up later this month as they consider the appeal of the FTC staff’s challenge to certain distribution practices and alleged collusion by a small industrial firm, McWane.

McWane, a U.S. supplier of ductile iron pipe fittings (DIPF) used in municipal and regional water distribution systems, was alleged to have illegally conspired with its competitors to raise and stabilize DIPF prices and illegally excluded one of its foreign competitors.  After a several month trial the ALJ in a 476 page decision found no illegal conspiracy but found illegal exclusion.  Both decisions are on appeal. The case is on appeal to the full Commission with oral argument on August 22.

  • the staff’s  expert conceded he did not empirically test any of the critical allegations in the case:  i.e.,  the alleged market definition, the alleged exclusion, or the alleged consumer injury.
  • the staff failed to offer any economic test of exclusion or any other type of monopoly conduct.
  • the staff also failed to offer any economic test demonstrating any actual or likely injury to consumers from McWane’s alleged exclusionary conduct (basically providing rebates).
  • the ALJ found exclusion even though the alleged excluded firm, Star Pipe, was able to “clearly” and successfully enter the market, and in any event, was “less efficient” than McWane and thus its prices were always higher.
  • the staff failed to define the market by an economic test.
  • the staff  did not submit any economic evidence supporting the DIFF market.  Its expert performed no SSNIP test, elasticity test or any other economic test using any actual data to find a separate DIFF market.  Instead the staff simply relied on the hypothetical monopolist analysis from the Horizontal Merger Guidelines that the Commission has never previously used in a non-merger case.

Somehow this does not sound like robust economic evidence.

If perhaps the Commissioners fall prey to the weaker natures of enforcers and try to substitute theory for solid economic evidence, I have a cautionary note from one of the most important FTC cases in the 1990s – California Dental Association.  (At the time I was attorney advisor to Chairman Pitofsky).  The staff chose to litigate the case without an economist.  The Commission’s opinion tried to overcome the deficiency by substituting theory and antitrust law for economic evidence.  That effort ultimately failed at the steps of the Supreme Court.

Gus Hurwitz is Assistant Professor of Law at University of Nebraska College of Law

Introduction

This post is based upon an in-progress article that explores the applicability of Chevron deference to FTC interpretations of Section 5’s proscription of unfair methods of competition. ( I am happy to circulate a draft of this article to anyone who would like to offer substantive feedback.) The article is prompted by the near-universal belief in the antitrust bar – held by both academics and practitioners – that the FTC is not entitled to Chevron deference.

In my limited space here, I hope to do three things. First, since many readers may not be familiar with Chevron deference, I explain very briefly what it is. Second, I explain why Chevron deference is relevant to Section 5 and to UMC in particular. And third, I debunk three of the most pervasive myths about why the FTC would not receive Chevron deference.

Regardless one’s priors, understanding the relationship between Section 5 and Chevron is essential to understanding the future of FTC-based competition policy. The past 30 years of competition policy debates have addressed the courts as its main audience. The new front – which neither the antitrust hawks or doves has significant experience with – is administrative. Administrative law is very different from the judicially-defined, stare decisis–restrained, common-law venue in which we are all used to playing.

Chevron

Chevron deference is used where a statute enforced by an administrative agency involves an ambiguous legal standard. In such cases, it is unclear whether such ambiguity should be resolved by the courts or by the agency. In its 1984 Chevron opinion, the Court made clear – for various reasons that are hotly debated to this day – that courts should defer to agency interpretations of such ambiguous statutes, provided that the interpretation is permissible within the language of the statute.

It is requisite that any discussion of Chevron cite to the opinion’s famous language:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984)

This standard is important to the FTC because Section 5 was deliberately designed to be an ambiguous statute (this is made clear in the legislative history, and has been affirmed consistently by the Court). In the context of UMC, each of “unfair,” “method,” and “competition” bears some modicum of ambiguity – “unfair,” in particular drips with it.

Chevron’s relevance to Section 5

This ambiguity has not been an issue for the past 30 years or so, because the FTC has restrained itself to an interpretation of UMC that is concurrent with the judicially-defined antitrust laws (viz., the Sherman and Clayton Acts). But as the fact of this symposium reflects, recent years have seen increasing pressure for the FTC to embrace a more expansive understanding of its UMC authority under Section 5.

What happens when it does this? What happens, for example, when the FTC asserts that “unfair” embraces more than mere aggregate consumer welfare, but extends to distributional effects as well. There is a not-insane argument that some decreases in total welfare is an acceptable cost to secure greater distributional “fairness.” If the courts afford the Commission Chevron deference, the answer is simple: the Commission wins.

Debunking the myth that Chevron does not apply to Section 5

There is a pervasive belief that Chevron does not apply to Section 5. As a result, antitrust scholarship has largely addressed the courts as its audience, framing debates about Section 5 in the same language and theory as has been embraced by the courts in the context of the Sherman Act. That is, discussions have largely been framed in post-Antitrust Paradox consumer welfare understandings of antitrust law.

This view was clear in the FTC’s 2008 workshop on Section 5 of the FTC Act as a Competition Statute. It has also been captured extensively in Dan Crane’s wonderful work on the FTC as an institution. Anecdotally, as I have wondered about this issue over the past several years, I have encountered many antitrust scholars and practitioners who have assured me that Chevron does not apply to Section 5; and I have encountered none who have believed that it does.

A number of reasons have been offered to explain why Chevron does not apply to Section 5. In the remained of this post, I will debunk the three most pervasive explanations offered for this: that the FTC doesn’t have substantive rulemaking authority, that deference doesn’t apply to statutes that are enforced by multiple agencies (e.g., the FTC and DOJ both enforcing the antitrust laws), and that Indiana Federation of Dentists, 476 U.S. 447 (1986) (the Court’s most recent Section 5 UMC case), provides that Section 5 UMC cases are reviewed de novo by the courts.

Myth #1: FTC doesn’t have rulemaking authority

It is widely believed that the FTC doesn’t have substantive UMC rulemaking authority; and folks seem to think that such authority is required for an agency to get Chevron deference. Both of these are beliefs are wrong.

The confusion over the extent of the FTC’s rulemaking authority is somewhat understandable – it has been the subject of much controversy and judicial and Congressional debate for much of the Commission’s existence. This debate has been especially muddled by Congress’s disparate treatment of UMC and UDAP (unfair or deceptive act or practices – a separate offence proscribed by Section 5).

But there really is no question that the FTC has substantive UMC rulemaking authority under Section 6(g). The Supreme Court held so much in National Petroleum Refiners, 482 F.2d 672 (1973) – one of the seminal cases in the administrative law canon. While the FTC Act has been amended several times since National Petroleum Refiners (most notably in 1975, 1980, and 1994), and the Commissions UDAP rulemaking power has been an explicit focus of several of these amendments, none of them has affected the Commission’s UMC rulemaking authority. To the contrary, the amendments and related legislative history expressly preserve the Commission’s UMC rulemaking authority as it existed in 1973.

(The 1975 amendments notes that “The preceding sentence shall not affect any authority of the commission to prescribe rules (including interpretive rules), and general statements of policy, with respect to unfair methods of competition in or affecting commerce.” The 1980 Conference report notes that the 1975 amendments “specifically addressed the Commission’s rulemaking authority over ‘unfair or deceptive acts or practices,” and that they expressly declaimed any effect on the Commission’s authority with respect to unfair methods of competition. And the 1994 amendments focused exclusively on unfair acts or practices – omitting both deceptive acts or practices and unfair methods of competition.)

What’s more, substantive rulemaking authority is not the necessary condition for Chevron deference to apply. The necessary condition is that the agency be able to make rules or establish legal norms carrying the force of law. Such rules can be made either through rulemaking or adjudication (and possibly even through other Congressionally-intended mechanisms). See Mead, 533 U.S. 218, 234-35 (2001). There is little, if any, serious question that the FTC was created precisely for this purpose and, to this day, has such power.

Myth #2: Concurrent antitrust jurisdiction means no deference

A second common explanation for why the FTC does not receive the benefit of Chevron deference is that such deference does not extend to statutes enforced by multiple agencies, and that the antitrust laws are enforced by both the DOJ and FTC. Again, this is a misunderstanding of both FTC and administrative law.

On the administrative law front, the question of how concurrent jurisdiction affects deference is handled as a threshold question to be answered by Congressional intent. (For the admin-law geeks among us, this is a step-zero question.) It is possible that Congress intended either, neither, or both agencies with concurrent jurisdiction to be given deference. Whatever Congress intended, is what controls – not a mythical rule that concurrent jurisdiction negates deference.

But this explanation suffers a more basic flaw: the only reason that the FTC and DOJ have concurrent jurisdiction over the antitrust laws is because the FTC has interpreted Section 5 to be concurrent with the antitrust laws enforced by the DOJ. Section 5 (and the FTC itself) was created precisely to be broader than the antitrust laws – and nothing in Section 5 even references the “antitrust laws.” Section 5 may be coextensive with the DOJ-enforced antitrust laws – but only because it encompasses and is broader than them. The FTC does not share jurisdiction over that part of Section 5 that is broader than those laws that the DOJ enforces.

Myth #3: Indiana Federation of Dentists holds Section 5 UMC cases are reviewed de novo

The final myth that I will consider is that Indiana Federation of Dentists requires courts to conduct de novo review of FTC legal determinations under Section 5. This explanation really is quite fascinating as a demonstration of how myths can propagate through the bar – and the importance of interfacing with experts from other specialty areas of the law.

The typically-cited passage from Indiana Federation of Dentists explains that:

The legal issues presented — that is, the identification of governing legal standards and their application to the facts found — are, by contrast, for the courts to resolve, although even in considering such issues the courts are to give some deference to the Commission’s informed judgment that a particular commercial practice is to be condemned as “unfair.”

This language has been cited as requiring do novo review of all legal questions, including the legal meaning of Section 5. Dan Crane has called this an “odd standard,” noting that ordinarily “this is technically a question of Chevron deference, although the courts have not articulated it that way in the antitrust space.” Indeed, it seems remarkable that Indiana Federation of Dentists (decided in 1986) does not even mention Chevron (decided in 1984) – a fact that has led antitrust commentators to believe “One cannot explain judicial posture in the antitrust arena in Chevron terms.”

But this is a misreading of Indiana Federation of Dentists, which is in fact entirely in line with Chevron; and it is a misunderstanding of Chevron’s history. First, it is unsurprising that Indiana Federation of Dentists did not cite to Chevron. The Indiana Federation of Dentists petitioned for cert from a 7th Circuit that had been argued before Chevron was decided, and the Commission was arguing for an uncontroversial interpretation of Section 5 as applying Section 1 of the Sherman Act. The Commission had never structured its case to seek deference, and before the Supreme Court it had no need to argue for any deference.

Moreover, it took several years for the importance of Chevron to become understood, and to filter its way into judicial review of agency statutory interpretation. Over the next several years, the Circuit Courts regularly used Indiana Federation of Dentists to explain the standard of review for various agencies’ interpretations of their organic statutes (including, e.g., HHS, INS Labor, and OSHA). Importantly, these cases recognized that there was some confusion as to the changing standard of review; framed their analysis in terms of Skidmore (the precursor Chevron in this line of cases); and largely reached Chevron-like conclusions, despite Indiana Federation of Dentists’s suggestion of a lower level of deference. Today, Chevron, not Indiana Federation of Dentists, is the law of the land – at least, for every regulatory agency other than the FTC.

Indeed, a close reading of Indiana Federation of Dentists finds that it is in accord with Chevron. The continuation of the paragraph quoted above explains that:

The standard of “unfairness” under the FTC Act is, by necessity, an elusive one, encompassing not only practices that violate the Sherman Act and the other antitrust laws, but also practices that the Commission determines are against public policy for other reasons. Once the Commission has chosen a particular legal rationale for holding a practice to be unfair, however, familiar principles of administrative law dictate that its decision must stand or fall on that basis, and a reviewing court may not consider other reasons why the practice might be deemed unfair. In the case now before us, the sole basis of the FTC’s finding of an unfair method of competition was the Commission’s conclusion that the [alleged conduct] was an unreasonable and conspiratorial restraint of trade in violation of § 1 of the Sherman Act. Accordingly, the legal question before us is whether the Commission’s factual findings, if supported by evidence, make out a violation of Sherman Act § 1. (emphasis added)

This language critically alters the paragraph’s initial proposition that the legal issues are for determination by the courts. Rather, the Court recognizes that Section 5 is inherently ambiguous. It is therefore to the Commission to choose the legal standard under which that conduct will be reviewed – “a reviewing court may not consider other reasons why the practice might be deemed unfair.”

This is precisely the standard established by Chevron: first, the courts determine whether the statute is ambiguous and, if it is not, the court’s reading of the statute is binding; but if it is ambiguous, the court defers to the agency’s construction. Part of why Chevron is a difficult test is that both parts of this analysis do, in fact, present legal questions for the court. The first step is purely legal, with the court determining on its own whether the statute is ambiguous. Then, at step two, the legal question is whether the agency correctly applied the facts to its declared legal standard – as the Court recognizes in Indiana Federation of Dentists, “the legal question before us is whether the Commission’s factual findings make out a violation of Sherman Act § 1.” Thus, the opening, oft-quoted, first sentence of the paragraph is correct, and is in accord with Chevron: the legal issues presented are for the courts to resolve.

Conclusion

The long-standing belief that FTC interpretations of UMC under Section 5 are not entitled to Chevron deference are almost certainly wrong. I’ve addressed three of the most pervasive myths about this above – there are a couple more, but you’ll need to read the full paper to learn about them and why they are wrong.

Two important questions follow, which we will likely take up in this symposium, and I take up a bit in my article: normatively, should the FTC receive such deference, and, if not, what restraints exist on the scope of the Commission’s Section 5’s UMC power? I’ll conclude with what I believe is the most important takeaway from this post: however we proceed, we must do so with an understanding of both antitrust and administrative law. The relevant audiences for our discussions about these issues are the FTC and Congress – not the courts; and the relevant language is that of policy and statute, not judicial precedent and stare decisis. Administrative law is the unique, beautiful, and scary beast that governs the FTC – those who fail to respect its nuances do so at their own peril.

James Cooper is Director, Research and Policy at the Law & Economics Center at George Mason University School of Law

In this posting, I sketch out a sensible limitation to the FTC’s Section 5 authority.   This domain should be narrow, focusing only on harmful conduct that but for the application of Section 5 would remain un-remedied.

As a threshold matter, the FTC explicitly should renounce its reliance on early Section 5 case law like S&H and Brown Shoe and write from a clean slate.  No serious antitrust enforcer today would consider challenging the conduct at issue in these cases, yet, in each of its recent standard-setting cases, the Commission dutifully invokes the language in S&H and Brown Shoe like a sacred talisman that will conjure the authority to act beyond the “letter and spirit of the antitrust laws.”   This dicta, however, comes from seriously outmoded cases. For example, S&H upheld the Commission’s challenge to the practice of preventing unauthorized green-stamp exchanges, and cited approvingly a Section 5 decision from 1934 that condemned the practice of selling penny candy to children in “break and take” packs, because “it tempted children to gamble and compelled those who would successful compete with Keppel to abandon their scruples by similarly tempting children.”[1]  Brown Shoe and S&H were decided in the era of Schwinn and Utah Pie.  Sherman Act case law has moved light years in the direction of economic literacy since then, and the Commission should recognize that had the Supreme Court entertained Section 5 case in the past forty years, precedents like S&H and Brown Shoe likely would have met fates similar to these outmoded cases.

Second, the FTC should not use Section 5 when the conduct at issue is reachable under the Sherman or Clayton Acts.  Section 5 should never be used as a trump card to reduce the Commission’s burden to show a practice is harmful to consumers. If the Commission cannot carry its burden under the Sherman Act, then presumably the conduct is not likely to be a threat to competition.

Third, the Commission must explain how consumers would benefit from expansion of the antitrust laws beyond the current Sherman Act limits.  Again, merely because there is old Supreme Court language blessing an expansive Section 5 does not ipso facto convert Section 5 enforcement beyond the Sherman Act into a welfare-enhancing exercise.  Accordingly, demonstrable consumer harm must be a necessary condition for invoking Section 5 against a particular practice.

Further, to mitigate the possibility of errors, and hence the probability that FTC action is welfare enhancing, the practice in question should be one that is unlikely to generate cognizable efficiencies.  Thus the FTC should limit itself to the type of conduct that would be subject to per se or a “quick look” condemnation – the type of conduct that can be assessed without an elaborate inquiry into market characteristics.  It should avoid using Section 5 to challenge conduct that would require complex balancing.

How would such a standard treat the FTC’s portfolio of Section 5 cases?  First, ITCs involving small firms would remain.  This conduct is not reachable under Sherman Act and is likely to generate substantial consumer harm.  At the same time, the risk of deterring beneficial conduct is minimal, although as one moves from private solicitations to engage in price fixing or market allocation towards public communications and unilateral conduct, the calculus changes.  Relatedly, involving information sharing seems sensible to retain as well.  Like ITCs, this conduct is not reachable under the Sherman Act (assuming sufficiently low market shares), poses a significant threat to competition, and it is hard to justify on efficiency grounds. Of course, the Sherman Section 1 can reach agreements among competitors to exchange competitively sensitive information, so this genre of cases should be limited to instances where an agreement cannot be shown.  Further, as in the ITC case, the FTC needs to tread carefully as the conduct moves further from direct and private exchanges of future competitive actions toward unilateral public announcements of current and past price and output decisions.  Bolstering the case for the use of Section 5 in these cases is that both ITCs and information sharing cases fall under the broad rubric of incipient harms.  Legislative history and subsequent Supreme pronouncements suggest that Congress intended Section 5 to concern itself with incipiency – a concern lacking in the Sherman Act.

The FTC should abandon its use of Section 5 to reach breaches of FRAND commitments.  Although policies that encourage participation in standard setting are likely to be beneficial to consumers, it is not evident that Section 5 is the best – or even a good – vehicle to address these issues.  That hold-up may result in a higher end price for consumers is insufficient to justify use of Section 5.  There are a host of institutions arguably better suited than the FTC to handle these policy issues, including Article III courts, the ITC, the Patent & Trademark Office, Congress, and self-regulatory bodies. As Commissioner Ohlhausen remarked in her dissent in Bosch, the FTC appears to lack “regulatory humility when it usurps the resolution of FRAND disputes from these other fora.

Finally, deceptive conduct in business-to-business relationships – such as that alleged in Intel or Dell– should be left out of the portfolio entirely.  To the extent that deception gives rise to, or helps maintain, monopoly power, it is reachable under Sherman Section 2.  Otherwise, deception should be left to the domain of contract law or business torts.  Further, these practices should not be challenged under UDAP, which should be confined to deception that directly involves consumers.


[1] S&H, 405 U.S. at 242-43 (quoting FTC v. R.F. Keppel & Bro., Inc., 291 U.S. 304 (1934)).