Senate Commerce Eyes Early February for Bedoya Vote
The Senate Commerce Committee aims to vote on Alvaro Bedoya’s FTC nomination in early February, an aide told us. The committee had expected a vote this week before the Senate shifted its recess, the aide said.
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Bedoya faced Republican opposition over his Twitter activity, before receiving a 14-14 party-line committee vote in December. He was renominated in January after the chamber failed to confirm him in 2021. He will play a critical role if the agency issues a privacy rulemaking (see 2112150040) or takes enforcement action against other tech companies. The agency faces an uphill climb in proving its novel antitrust case against Facebook (see 2201110071), competition experts said in interviews. Consumer advocates disagreed, saying the agency has a strong case, and antitrust enforcers need to rely on novel arguments when dealing with undefined issues for the tech industry.
The agency hasn’t proven every aspect of its case against Facebook, but when U.S. District Court in Washington gets into discovery, internal documents will show how Facebook views its market power, strengthening the FTC’s case, said Public Knowledge Policy Counsel Alex Petros. Despite years of bad press, Facebook has maintained its dominance, avoiding a “laudable” advertising boycott in the process (see 2007070061), he said: “That kind of proves the durable market positioning that the FTC is looking for. The campaign fizzled out, and just about everybody who said they were boycotting Facebook is” advertising there again.
Without novel arguments, the agency limits itself to “narrow” interpretations of current antitrust law, said Public Citizen Competition Policy Advocate Alex Harman. Courts are a difficult place for antitrust action, but it’s a case that can be won, he said. If the commission ends up facing a hostile judiciary and inadequate antitrust laws, it strengthens the case for congressional action, he said. The Senate Judiciary Committee passed a competition bill last week and is eyeing another markup (see 2201200066).
Motions to dismiss are “rarely granted,” so the FTC avoiding dismissal in its case wasn’t a “big win,” said Cornell law and economics professor George Hay. He noted U.S. District Judge James Boasberg gave the agency a “road map” for how to refile and survive Facebook’s motion, and the FTC managed. However, it’s “clear” Boasberg is “skeptical” the agency will prove its case, he said: The agency will need to prove that without its high-profile acquisitions, Facebook’s monopoly power would have “dissipated” due to some form of competition from Snapchat and WhatsApp. “That won’t be easy,” he said.
It was a big win for the agency surviving a motion to dismiss, but it's going to be difficult to prove an unprecedented monopoly case that relies on novel arguments, said former senior FTC economist Julie Carlson, now Information Technology and Innovation Foundation associate director-antitrust and innovation policy. The commission doesn’t have any price measures to prove anticompetitive effects, and its claims about advertising and innovation are highly subjective, she said. She noted Boasberg’s continued reservations about market definition: "I didn't see anything that made me think he was necessarily persuaded to find in favor of the agency.” His reservations about market definition are not something the agency “wants to see,” she said: “You want the judge to be on board with the case.”