June 21, 2022

Antitrust: FTC Poised to Move Rulemaking Agenda Forward

In May, Alvaro Bedoya was sworn in as a new FTC commissioner. That makes him the third Democratic commissioner and gives the Democrats a 3-2 majority on the FTC. This Sidley memo says that Commissioner Bedoya’s appointment likely means that Chair Lina Khan’s regulatory agenda is now full steam ahead:

With three Democratic votes, the Commission will be able to exercise its rulemaking authority. Under 15 U.S.C. § 57a(b)(3) the FTC has authority to enact trade regulation rules to address “unfair or deceptive acts or practices in or affecting commerce.” The FTC has not updated or instituted new rules since October 2019, but the Democratic Commissioners have indicated that they plan to use this power more frequently to promote the Biden administration’s antitrust goals.

New rules may address “commercial surveillance and lax data security practices,” as announced by Chairman Lina Khan in April, as well as other topics listed in the Agency Rule List, fall 2021, including telemarketing sales, business opportunities, commercial surveillance, changes to the Hart-Scott-Rodino (HSR) form, and the privacy of consumer financial information. Republican Commissioners Christine Wilson and Noah Phillips remain critical of these rulemaking plans, calling the Democrats’ extensive rulemaking agenda “breathtaking” and “an ex ante ordering of the market.”

John Jenkins