There is widespread interest in the potential tools that the Biden administration’s Federal Trade Commission (FTC) may use to address a range of competition-related and competition-adjacent concerns. A focal point for this interest is the potential that the FTC may use its broad authority to regulate unfair methods of competition (UMC) under Section 5 of the FTC Act to make rules that address a wide range of conduct. This “potential” became a “likelihood” with the confirmation of Alvaro Bedoya, a third Democratic commissioner.
Beginning April 25, 2022, Truth on the Market hosted a symposium that brought together academics, practitioners, and other commentators to discuss issues relating to potential UMC-related rulemaking. Contributions to the symposium covered a range of topics, including:
- Constitutional and administrative-law limits on UMC rulemaking: does such rulemaking potentially present “major question” or delegation issues, or other issues under the Administrative Procedure Act (APA)? If so, what is the scope of permissible rulemaking?
- Substantive issues in UMC rulemaking: costs and benefits to be considered in developing rules, prudential concerns, and similar concerns.
- Using UMC to address competition-adjacent issues: consideration of how or whether the FTC can use its UMC authority to address firm conduct that is governed by other statutory or regulatory regimes. For instance, firms using copyright law and the Digital Millennium Copyright Act (DMCA) to limit competitors’ ability to alter or repair products, or labor or entry issues that might be governed by licensure or similar laws.
The initial round of the symposium ran through May 13, with subsequent contributions leading up to and responding to the FTC’s Nov. 10 issuance of a new Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act.
Participants
As in the past (see examples of previous TOTM blog symposia here), we’ve lined up an outstanding and diverse group of scholars to discuss these issues, including:
- Alden Abbott, Mercatus Center
- Brian Albrecht, International Center for Law & Economics
- Dirk Auer, International Center for Law & Economics
- Jonathan M. Barnett, University of Southern California Gould School of Law
- Corbin K. Barthold, TechFreedom
- Steven Cernak, Bona Law
- Kacyn H. Fujii, 2022 J.D. Candidate, University of Michigan Law School
- Svetlana Gans, Gibson Dunn
- Natalie Hausknecht, Gibson Dunn
- Justin (Gus) Hurwitz, University of Nebraska-Lincoln College of Law
- William C. MacLeod, Kelley Drye & Warren LLP
- Andrew K. Magloughlin, Free State Foundation
- Randolph J. May, Free State Foundation
- Aaron Nielson, Brigham Young University Law
- Maureen K. Ohlhausen, Baker Botts
- Richard J. Pierce Jr., George Washington University School of Law
- Commissioner Noah J. Phillips, Federal Trade Commission
- James F. Rill, Baker Botts
- Ben Rossen, Baker Botts
- Leah Samuel, 2022 J.D. Candidate, Yale Law School
- Joshua D. Sarnoff, DePaul College of Law
- Lawrence J. Spiwak, Phoenix Center for Advanced Legal & Economic Public Policy Studies
- Ramsi Woodcock, University of Kentucky Rosenberg College of Law
- Joshua Wright, Global Antitrust Institute
Series Posts (in order of posting)
- Introductory Post (Hurwitz)
- A Change in Direction for the Federal Trade Commission? (Spiwak)
- UMC Rulemaking After Magnuson-Moss: A Textualist Approach (Samuel)
- National Petroleum Refiners v. FTC: A Tale of Two Opinions (Barthold)
- Can the FTC Use Rulemaking to Change Antitrust Law? (Pierce)
- The Major Questions Doctrine Slams the Door Shut on UMC Rulemaking (May and Magloughlin)
- Chevron and Administrative Antitrust, Redux (Hurwitz)
- The FTC Abandons the Free Market (Barnett)
- FTC Rulemaking and Unintended Consequences (Nielson)
- NEW VOICES: FTC Rulemaking for Noncompetes (Fujii)
- Making Rules vs. Ruling (Woodcock)
- FTC Rulemaking Under UMC Could Mean Return of the National Nanny (Cernak)
- Rules Without Reason (Phillips)
- Regulating Competition at the FTC (MacLeod)
- How the FTC Could, but Won’t, Use Its Rulemaking Authority to Allow Aftermarket Parts (Sarnoff)
- Wrapping up Round One of the FTC UMC Symposium (Hurwitz)
Further Symposium Contributions
- Why FTC Competition Rulemaking Likely Will Fail (Abbott)
- Pushing the Limits? A Primer on FTC Competition Rulemaking (Ohlhausen and Rill)
- Dead End Road: National Petroleum Refiners Association and FTC ‘Unfair Methods of Competition’ Rulemaking (Ohlhausen and Rossen)
- Three Big Pitfalls in the Way of Lina Khan’s Agenda (Hurwitz)
- Potential Rulemaking on Commercial Surveillance and Data Security: The FTC Must Use Cost-Benefit Analysis (Abbott)
- Taking Cost-Benefit Analysis Seriously in Consumer-Data Regulation (Barnett)
- FTC Launches Commercial Surveillance Rulemaking (Gans and Hausknecht)
- FTC Rejects Economics for ‘Fairness’ (Albrecht)
- A Policy Statement Is Still Only Worth the Electrons Upon Which It Is Written (Hurwitz)
- The End of Reason at the FTC (Barnett)
- Lina Khan’s Christmas Wish Is To Have Margrethe Vestager’s Powers (Auer)
- FTC Section 5 Statement: Less Guidance Than Meets the Eye (Cernak)
- The FTC Knows It When It Sees It (Woodcock)
- The New FTC Section 5 Policy Statement: Full of Sound and Fury, Signifying Nothing? (Abbott)
- The FTC’s UMC Statement Creates a Target for Federal Courts (Wright)
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