FTC Biweekly Roundup – A Change in Title Edition

Gus Hurwitz —  26 August 2022

You’d think things would be calm during these last weeks of August – the Senate in recess, folks wrapping up summer vacations or seeing their kids back off to school, and the big news being that coming out of the White House instead of Congress or the agencies. You’d think. We don’t have a single big headline to lead off with this week, but we’ve got some fights to talk about instead.

This week’s mini-headline is Bloomberg’s report that Meta learned of the FTC’s suit to block its acquisition of Within the same way we all did: on Twitter. How rude! Seriously this is a breach of basic norms of civility and professionalism and speaks poorly of the FTC lawyers involved in making this decision. I would emphasize in saying this that it is my understanding that the Chair’s office took control of the complaint process from agency staff – so any criticism should roll uphill. In the Metaverse gravity need not apply. But, perhaps in the realm of greater civility, Mark Zuckerberg has been removed from the complaint in his personal capacity.

The FTC’s ANPR on Commercial Surveillance and Data Security of course deserves its own mini-headline, even though there’s no new news. The FTC will host its public forum on September 8th; you can register to offer comments through August 31 – though last I heard there is a waitlist. In addition, comments responding to the ANPR are open through October 21st. And, as announced last week, we have an open call for contributions relating to the ANPR to this symposium on FTC UMC Rulemaking.

Offering some ANPR-related commentary, Cameron Kerry discusses the ANPR and its relationship to federal legislation on Lawfare. He argues that privacy legislation is preferable to rulemaking noting, among other things, that the FTC hasn’t completed a Mag-Moss rulemaking since the 80s and that the average timeline for completing Mag-Moss rules has been 5.57 years. Also noteworthy, since the ANPR offers to make rules relating to data security: the FTC doesn’t have a great track record when it comes to data security advice.

Next topic? In a preview of what’s to come for the FTC in the likely event that Republicans retake the House, the House Republicans are coming for the FTC.  In this case, they have questions stemming from the recent FTC OIG report that raised concerns about the recent FTCs’ use of unpaid outside consultants. We discussed that report previously. Watch this space for more!

In AICOA news, the only news is no news. There continue to be dueling perspectives, one calling for Senator Amy Klobuchar’s (D-MN) AICOA to get its day in Congress, the other making the now-obvious point that AICOA won’t pass if it does because Democratic support is contingent on changes to address the content-moderation loopholes on which Republican support depends.

Bloomberg has had its own dueling reports on the state of AICOA, as well. In a piece published last week, Bloomberg reporters looked at donations to Sentate Majority Leader Chuck Schumer (D-NY) from big tech. The article clearly means to argue that Sen. Schumer is holding up AICOA (which the article incorrectly calls the American Choice and Innovation Online Act) because big tech is giving him big money. Never mind all those other tech related things going on in Congress right now. Or that their data shows Amazon has decreased its donations over the past year. Or that a lot of folks in big tech are concerned about a lot of things other than straight-up tech policy issues (Inflation, anyone? Dobbs, anyone?). In any event, Brad Stone offered his own report in Bloomberg this week on the political gridlock holding up AICOA. In a polite rebuke aimed at “[his] colleagues in Washington,” he notes that “while it’s tempting to blame surreptitious corporate influence for stymieing attempts to limit tech power, it’s largely questions around content moderation … that have stalled its progress.”

Next topic? Mergers! The Wall Street Journal ran an article discussing the effects that the Khan FTC is having on deals. Protocol discusses potential FTC scrutiny that could be coming for Amazon. The key bit? The authors note that the deals Amazon is considering don’t raise many competition issues but that that may not matter because of “the reality that the FTC seems to be spoiling for a fight.” 

And Fortune decides to run with the Worst. Take. Ever., asking “Corporate breakups are a routine part of capitalism. So why is it deemed an irreparable interference in markets when regulators break up companies”? I actually love the question and think it worth pursuing further. Corporate mergers are also routine parts of capitalism. So why not have more regulatory support for them? The answer to both is damningly simple: because both mergers and breakups can be either good or bad for consumers, so should be evaluated through some standard that considers their effects on consumer welfare.

Wrapping up: here’s a bit of humor as you head off to the last weekend of August. And here’s an interesting read for your commute home. We’ll see everyone in two weeks for the next Biweekly UMC Roundup.

The FTC UMC Roundup, part of the Truth on the Market FTC UMC Symposium, is a weekly roundup of news relating to the Federal Trade Commission’s antitrust and Unfair Methods of Competition authority. If you would like to receive this and other posts relating to these topics, subscribe to the RSS feed here. If you have news items you would like to suggest for inclusion, please mail them to us at ghurwitz@laweconcenter.org and/or kfierro@laweconcenter.org.