In November, the Federalist Society’s Regulatory Transparency Project presented a panel discussion on the history of FTC rulemaking authority. The announcement of a new rulemaking group within the FTC Office of the General Counsel last year raised questions about the statutory source of such powers. This carries high importance given expectations of regulations on privacy and unfair methods of competition—both of which stand as unexplored territory for FTC.
The discussion was moderated by Svetlana Gans—Vice President and Associate General Counsel of NCTA and former FTC Chief of Staff. In order to contextualize the agency’s current and future endeavors, Gans presented questions to the panelists regarding the development of FTC regulatory power, pertinent judicial interpretations, and the practical complications of rulemaking powers.
William Blumenthal, partner at Sidley Austin LLP and former FTC General Counsel, described the agency’s traditional rulemaking practices as being confined to one of two classifications: rules that are pursuant to specific acts of Congress, and restrictions on unfair and deceptive practices. Although the agency has always been prescribed the power to assemble cases for the enforcement of antitrust law, it has historically considered itself unauthorized to create regulations on unfair methods of competition.
The panel expressed collective skepticism about both the original interpretations in favor of FTC rulemaking authorities and the extension of such powers to competition regulation. Andrew Stivers, Associate Director of NERA Economic Consulting, also described the hurdles that the agency would have to endure if undertaking such broad rulemaking responsibilities. This was said to be especially true of privacy regulations, which Stivers cited as carrying inherent value judgments in need of careful variation across markets.
A consensus of uncertainty was found regarding the FTC’s next steps in these efforts. Corbin Barthold, Director of Appellate Litigation and Internet Policy Counsel for TechFreedom, suggested the possibility of explicit judicial approval for pertinent rulemaking powers being sought before proceeding with broader regulations. The agency’s actual intentions, especially with regards to its privacy interests, remain to be seen.
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