The FTC Shift Abandoning Consumers Is A Destructive Strategy
Amid today’s House Judiciary Committee hearing examining FTC Chair Lina Khan, experts and numerous media outlets have noted that the agency’s shift away from a pro-consumer antitrust policy grounded in the consumer welfare standard is a destructive strategy. As Judiciary Committee Chair Jim Jordan (R-Ohio) and Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-Wash.) wrote yesterday in a letter to FTC Chair Khan, the public has raised serious concerns about “a failure to enforce antitrust and consumer protection laws.”
Here are some highlights from the recent commentary on the FTC’s approach:
Recent headlines:
— The New York Times: F.T.C.’s Court Loss Raises Fresh Questions About Its Chair’s Strategy
— Bloomberg: FTC Chief Lina Khan’s Bad Week Dims Hopes for New Era of Tech Antitrust
— The Information: FTC’s Khan Should Pick Her Targets More Carefully
Legal Experts:
— Columbia Law School’s Anu Bradford states the FTC and Khan are “facing real roadblocks” and that “the US courts are not buying into the antitrust revolution.”
— Former FTC Chair Bill Kovacic, now a professor at George Washington University Law School, notes “[a]ll these courts are saying you need to have powerful facts to back it up.” He continues, “[t]he effort to build something on vertical policy is not successful yet.”
— Anthony Sabino, a professor of business and law at St. John’s University, states that he “completely disagree[s] with this approach” and notes that “trying to change a century’s worth of antitrust law overnight” is “not necessarily wise.”
— John B. Kirkwood, an antitrust professor at the Seattle University School of Law, notes that the FTC’s leadership is “bringing cases that aren’t strong enough.”
Policy experts:
— Former Democratic Congressman Albert Wynn notes that given the shift in the FTC’s priorities, “Congress must conduct regular oversight of the FTC to ensure the commission prioritizes consumers’ needs in every policy discussion.”
— Wynn continues: “As I looked further into the agency’s direction, what I found most worrisome is what seems to be a loss of focus on the FTC’s bread-and-butter consumer protection role — like detecting and preventing fraud. Unfortunately, this key objective seems to have fallen through the cracks at the agency as it pursues novel applications of the law and files long-shot antitrust cases.”
— Adam Kovacevich, founder and CEO of the Chamber of Progress, summarizes this novel approach, tweeting, “[t]he neo-Brandeisians’ Martyr theory is that court losses against ‘obviously’ hated defendants like Big Tech cos will cause Congress to rise up and change the antitrust laws. They wrongly assume congressional consensus & agreement with their worldview.”
— Ashley Baker, a director of public policy for Committee for Justice, notes the FTC’s recent actions “crossed the line to being reckless with the cases they are bringing.”
— Jessica Melugin, director of the Center for Technology and Innovation at the Competitive Enterprise Institute, notes the FTC’s misguided focus in the Amazon Prime case, “[t]he FTC’s consumer protection bureau would be wise to leave the details of a home-delivery e-commerce service alone and turn their attention to these more legitimate and urgent matters.”
— Melugin continues:”Millions of customers benefit from Prime, but no good will come from meritless regulatory actions. Consumers need less government meddling and more quality-of-life-enhancing innovations from the private sector.”
— Morten Skroejer, senior director for technology competition policy at the Software & Information Industry Association, points out that the shift in FTC policy has resulted in several lost courts cases, saying, “[t]he more cases you lose, the harder it is to maintain credibility with the courts and the public.”