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.