FTC Chairwoman Likely To Announce Section 5 Policy Thursday
FTC Chairwoman Edith Ramirez is likely to reveal details Thursday of a commission policy statement that could further delineate its authority under FTC Act Section 5 to police “unfair” competition among U.S. companies, industry lawyers told us. Ramirez is to speak at George Washington University Law School at noon about competition enforcement. The commission didn’t comment on whether the speech would address the widely anticipated Section 5 policy. Recent FTC uses of Section 5 enforcement in the tech sector include investigations of Google’s business practices on search engine bias, standard-essential patents and prohibiting advertisers from advertising on multiple search engines. Google later settled (see report in the Jan. 4, 2013, issue).
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The policy statement doesn’t delve deeply into details in a bid to reach a near consensus among the five FTC members, an industry official said. The statement is likely to focus on barring harmful anti-competitive business practices, emphasize the commission’s use of Section 5 to protect consumers and Section 5’s interaction with other federal antitrust statutes, the industry lawyer said. It will be “interesting to see what all of the commissioners can agree on” with defining Section 5’s boundaries, but “I don’t know how specific it’s going to be able to be,” said Venable regulatory lawyer Robert Davis, former aide to then-FTC Chairman Jon Leibowitz. “They want to have an agreement but they also want to create something that’s going to be useful going forward.”
Much of a Section 5 competition policy’s efficacy “depends on what the document says," said former FTC Chairman Bill Kovacic, now a GWU law professor. Specific details about the Section 5 policy statement don’t appear to have been disseminated outside the agency.
A policy statement on Section 5 would reflect the commission’s first consensus on enforcing unfair competition -- an area of FTC authority that has frequently been a point of contention among commission Democrats and Republicans. Commissioner Joshua Wright and Capitol Hill Republicans have been vocally urging the FTC to formalize Section 5 enforcement policies, with Wright saying in February that he would push for a vote on a framework (see 1502260032). Any sort of consensus on Section 5 is “noteworthy in itself because it’s never happened,” Kovacic said.
Ramirez has said she was concerned that a policy statement on Section 5 would limit the FTC’s future ability to enforce on competition issues, which is what Wright has been pushing for, Davis said. “I don’t know how they’d be able to be on the same statement right now,” Davis said. “We tried to do this when [Leibowitz] was chairman and it was hard to come up with something that everyone can agree on.”