Things are getting spicy in the administrative state. This week we have the first formal indication of new rules coming out of the FTC. We have lobbyists lobbying, and influencers influencing, CEOs loitering, and academics … academicing? We have some review and preview of what’s at stake with administrative law. We’ve got interesting upcoming events. And we’ve got more. So let’s get going!
This week’s headline can’t not be the first official news that the FTC is planning to make some rules (h/t Leah Nylen). The Commission is working on a “rulemaking under section 18 of the FTC Act to curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.” Section 18, of course, is Mag-Moss, so we’re not talking straight-up UMC rules – though there will be lots of details in the details (our first Trojan Horse).
Bending the rulemaking narrative, and perhaps easy-riding under the radar, this week, the FTC has issued an order to Harley-Davidson, among other manufacturers, requiring them to change their warranties to allow customers to use independent dealers for repairs. One wonders whether this enforcement-based approach to the right-to-repair is a tap on the breaks for potential right-to-repair rules – one of the potential rules that many have speculated the FTC would be quick to adopt.
Truth be told, things were pretty quiet on the FTC front this week. Not so much a few blocks away, down on the Congressional end of the Mall. The academics came out in force this week, with caution about Sen. Amy Klobuchar’s American Innovation and Choice Online Act (AICOA). We start things off with Doug Melamed, who faults AICOA for not defining “harm to competition” and for prohibiting welfare-enhancing conduct. His key point: “Economists have long understood that innovation is far more important for economic welfare than static efficiency” – least some in Congress, it seems, missed that memo.
Melamed ends his piece drawing attention to concerns that the bill might limit platforms’ ability to moderate content they host—a point that the bill’s Republican supporters take seriously. This concern was most forcefully made this week by Georgetown Law professor Anupam Chander in a letter coauthored with other well-respected law professors and signed by another dozen, all experts in this field. Frustratingly, if predictably, this letter was overshadowed by the lobbying against it, with Yelp’s Luther Lowe accusing Chander of being a shill – and getting egg all over his face in the process.
Lobbying is the name of the game right now. Brian Fung reports that tech CEOs have been loitering around Congress. Social media influencers the latest conscripts to the front lines. And with AICOA built upon a strange-bedfellows coalition, those unusual lines of cooperation are being explored as potential cleavage points.
Time for some quick hits. With the role of labor issues in antitrust a focus for the administration (both with the FTC’s interest in non-competes and attention on labor in the potential merger guideline revisions), a recent interview with Eric Posner, an advisor to AAG Kanter, is of great interest. Posner notes that “There is this very close and complicated relationship between labor law and antitrust law that has to be maintained.” Indeed. And on the litigation front, the judge overseeing some of the FTC litigation against Meta agrees with the company’s contention that it needs information from competing firms to mount its defense, including TikTok, WeChat, and Telegram. And folks continue to explain that price controls (antitrust style or otherwise) don’t work to fight inflation.
But not so fast! We leave you with some deeper thinking about what’s to come today. We mentioned AHA v. Becerra and what it means for the future of the Chevron doctrine last week. The Notice and Comment blog has some nice further discussion about what AHA v. Becerra means for the future of the Chevron doctrine. Another important administrative law case, West Virginia v. EPA, will almost certainly be released next week – this could be a major “major questions doctrine” case – and is important enough that APM Marketplace covered it. And while the courts might be working to make the administrative state smaller, some argue to make it bigger to deal with Big Tech. Whoever and however we regulate things, Maureen Ohlhausen (former acting FTC Chair) has wise words for whomever is in charge.
Some closing words. Bill Shughart offers a reflection on the passing of Internet Explorer (1995-2022. RIP). For those in DC on Monday, the Concurrences conference on Rulemaking Authority of the Federal Trade Commission is a must-attend event – and you can attend online if you can’t make it in person. And on Tuesday, BYU is hosting the first in what promises to be a good series of webinars on antitrust and tech-related regulatory issues, starting with a discussion of AICOA.