Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the Federal Trade Commission Act, 57055-57059 [2015-23498]

Download as PDF Vol. 80 Monday, No. 182 September 21, 2015 Part II Federal Trade Commission rmajette on DSK7SPTVN1PROD with NOTICES Statement of Enforcement Principles Regarding ‘‘Unfair Methods of Competition’’ Under Section 5 of the Federal Trade Commission Act; Commission Policy Statement; Notice VerDate Sep<11>2014 15:16 Sep 18, 2015 Jkt 235001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\21SEN2.SGM 21SEN2 57056 Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices FEDERAL TRADE COMMISSION Statement of Enforcement Principles Regarding ‘‘Unfair Methods of Competition’’ Under Section 5 of the Federal Trade Commission Act Federal Trade Commission. Commission policy statement. AGENCY: ACTION: The Federal Trade Commission has issued a Statement of Enforcement Principles Regarding ‘‘Unfair Methods of Competition’’ Under Section 5 of the FTC Act. The Statement describes the underlying antitrust principles that guide the Commission’s application of its statutory authority to take action against ‘‘unfair methods of competition’’ prohibited by Section 5 of the FTC Act but not necessarily by the Sherman Act or the Clayton Act. DATES: The Commission announced the issuance of the Statement on August 13, 2015. FOR FURTHER INFORMATION CONTACT: Donald S. Clark, Secretary, (202–326– 2514), 600 Pennsylvania Avenue NW., Washington, DC 20580. SUPPLEMENTARY INFORMATION: rmajette on DSK7SPTVN1PROD with NOTICES SUMMARY: Statement of Enforcement Principles Regarding ‘‘Unfair Methods of Competition’’ Under Section 5 of the FTC Act Section 5 of the Federal Trade Commission Act declares ‘‘unfair methods of competition in or affecting commerce’’ to be unlawful. 15 U.S.C. 45(a)(1). Section 5’s ban on unfair methods of competition encompasses not only those acts and practices that violate the Sherman or Clayton Act but also those that contravene the spirit of the antitrust laws and those that, if allowed to mature or complete, could violate the Sherman or Clayton Act. Congress chose not to define the specific acts and practices that constitute unfair methods of competition in violation of Section 5, recognizing that application of the statute would need to evolve with changing markets and business practices. Instead, it left the development of Section 5 to the Federal Trade Commission as an expert administrative body, which would apply the statute on a flexible case-bycase basis, subject to judicial review. This statement is intended to provide a framework for the Commission’s exercise of its ‘‘standalone’’ Section 5 authority to address acts or practices that are anticompetitive but may not fall within the scope of the Sherman or Clayton Act. In deciding whether to challenge an act or practice as an unfair method of VerDate Sep<11>2014 15:16 Sep 18, 2015 Jkt 235001 competition in violation of Section 5 on a standalone basis, the Commission adheres to the following principles: • The Commission will be guided by the public policy underlying the antitrust laws, namely, the promotion of consumer welfare; • the act or practice will be evaluated under a framework similar to the rule of reason, that is, an act or practice challenged by the Commission must cause, or be likely to cause, harm to competition or the competitive process, taking into account any associated cognizable efficiencies and business justifications; and • the Commission is less likely to challenge an act or practice as an unfair method of competition on a standalone basis if enforcement of the Sherman or Clayton Act is sufficient to address the competitive harm arising from the act or practice. By direction of the Commission, with Chairwoman Ramirez and Commissioner Brill, Commissioner Wright, and Commissioner McSweeny voting in the affirmative, and Commissioner Ohlhausen dissenting. Donald S. Clark, Secretary. Statement of the Federal Trade Commission 1 on the Issuance of Enforcement Principles Regarding ‘‘Unfair Methods of Competition ’’ Under Section 5 of the FTC Act The Federal Trade Commission was created in 1914 and vested with enforcement authority over ‘‘unfair methods of competition’’ under Section 5 of the FTC Act.2 The Commission has issued a policy statement describing the enforcement principles that guide the exercise of our ‘‘standalone’’ Section 5 authority to address anticompetitive acts or practices that fall outside the scope of the Sherman and Clayton Acts. In describing the principles and overarching analytical framework that guide the Commission’s application of Section 5, our statement affirms that Section 5 is aligned with the other antitrust laws, which have evolved over time and are guided by the goal of promoting consumer welfare and informed by economic analysis. The result of this evolution is the modern ‘‘rule of reason.’’ 3 Our statement makes 1 This statement reflects the views of Chairwoman Ramirez and Commissioners Brill, Wright, and McSweeny. 2 15 U.S.C. 45(a)(1). All references in this statement to ‘‘Section 5’’ relate to its prohibition of ‘‘unfair methods of competition’’ and not to its prohibition of ‘‘unfair or deceptive acts or practices.’’ 3 The ‘‘rule of reason’’ is the cornerstone of modern antitrust analysis. As the leading treatise on antitrust law explains, PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 clear that the Commission will rely on the accumulated knowledge and experience embedded within the ‘‘rule of reason’’ framework developed under the antitrust laws over the past 125 years—a framework well understood by courts, competition agencies, the business community, and practitioners. These principles also retain for the Commission the flexibility to apply its authority in a manner similar to the case-by-case development of the other antitrust laws. Finally, we confirm that the Commission will continue to rely, when sufficient and appropriate, on the Sherman and Clayton Acts as its primary enforcement tools for protecting competition and promoting consumer welfare. There has been much thoughtful dialogue inside and outside of the agency over the course of the last century about the precise contours of Section 5’s prohibition against unfair methods of competition.4 We have benefited greatly from this ongoing dialogue and from judicial insights through the process of judicial review, and we believe that the principles we have set forth in our Section 5 statement are ones on which there is broad consensus.5 In antitrust jurisprudence, ‘‘reasonableness’’ sums up the judgment that behavior is consistent with the antitrust laws. A monopolist acting reasonably does not violate Sherman Act § 2. Reasonable collaboration among competitors does not violate Sherman Act § 1. Although reasonableness is usually judged case by case, it is sometimes made for a class of conduct, such as price fixing, which is then said to be intrinsically or ‘‘per se’’ unlawful. Thus, per se rules also derive from judgments about reasonableness, albeit for a type of behavior rather than for a particular case. Even under the Clayton Act, where decisions about tying, exclusive dealing, and mergers are seldom phrased in reasonableness terms, the application of those statutes depends on the same elements that define ‘‘reasonableness.’’ VII Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1500 (3d ed. 2010). 4 See Public Workshop Concerning the Prohibition of Unfair Methods of Competition in Section 5 of the Federal Trade Commission Act, 73 FR 50,818 (Aug. 28, 2008), available at http:// www.gpo.gov/fdsys/pkg/FR-2008-08-28/pdf/E820008.pdf and at https://www.ftc.gov/sites/default/ files/documents/public_events/section-5-ftc-actcompetition-statute/p083900section5.pdf; Section 5 of the FTC Act as a Competition Statute, Fed. Trade Comm’n (Oct. 17, 2008), https://www.ftc.gov/newsevents/events-calendar/2008/10/section-5-ftc-actcompetition-statute. 5 Like the Commission’s policy statements on unfairness and deception, no public comment was sought here. The purpose of each of these policy statements is similar, which is to provide the Commission’s view on how it approaches the use of its statutory authority. See FTC Policy Statement on Unfairness, Letter from the Federal Trade Commission to Senator Wendell H. Ford, Chairman, Consumer Subcommittee, Senate Committee on Commerce, Science, and Transportation, and Senator John C. Danforth, Ranking Minority Member, Consumer Subcommittee, Senate Committee on Commerce, Science, and Transportation (Dec. 17, 1980), appended to Int’l E:\FR\FM\21SEN2.SGM 21SEN2 Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices rmajette on DSK7SPTVN1PROD with NOTICES Dissenting Statement of Commissioner Maureen K. Ohlhausen: FTC Act Section 5 Policy Statement I appreciate the effort to issue some form of guidance on the scope of Section 5 of the FTC Act’s prohibition of ‘‘unfair methods of competition’’ (UMC).1 However, I voted against the issuance of this policy statement in this manner. The approach of my colleagues to this important issue of competition policy is too abbreviated in substance and process for me to support. Moreover, what substance the statement does offer ultimately provides more questions than answers, undermining its value as guidance. In addition, the Commission’s failure to seek public input has deprived us of guidance from key stakeholders on this particular interpretation of Section 5. Finally, the Commission’s official embrace of such an unbounded interpretation of UMC is almost certain to encourage more frequent exploration of this authority in conduct and merger investigations and standalone Section 5 enforcement by the Commission. First, the content of today’s policy statement is seriously lacking. Unlike the detailed analysis in our policy statements on Section 5’s prohibition of ‘‘unfair or deceptive acts or practices,’’ 2 Harvester Co., 104 F.T.C. 949, 1070 (1984), and available at https://www.ftc.gov/public-statements/ 1980/12/ftc-policy-statement-unfairness; FTC Policy Statement on Deception, Letter from James C. Miller III, Chairman, Federal Trade Commission, to Representative John D. Dingell, Chairman, House Committee on Energy and Commerce (Oct. 14, 1983), appended to Cliff Assocs., Inc., 103 F.T.C. 110, 174 (1984), and available at https:// www.ftc.gov/public-statements/1983/10/ftc-policystatement-deception. 1 Like many interested parties, I have called for Section 5 guidance on several occasions during my time on the Commission. See, e.g., In re Motorola Mobility LLC & Google Inc., FTC File No. 121–0120, Dissenting Statement of Commissioner Maureen K. Ohlhausen (Jan. 3, 2013), available at https:// www.ftc.gov/sites/default/files/documents/cases/ 2013/01/130103googlemotorolaohlhausenstmt.pdf; In re Robert Bosch GmbH, FTC File No. 121–0081, Statement of Commissioner Maureen K. Ohlhausen (Nov. 26, 2012), available at https://www.ftc.gov/ sites/default/files/documents/cases/2012/11/ 121126boschohlhausenstatement.pdf. 2 See Fed. Trade Comm’n, Commission Statement of Policy on the Scope of the Consumer Unfairness Jurisdiction, 104 F.T.C. 1070, 1071 (1984) (appended to In re Int’l Harvester Co., 104 F.T.C. 949 (1984)) [hereinafter Unfairness Statement], available at http://www.ftc.gov/bcp/policystmt/adunfair.htm; Fed. Trade Comm’n, Policy Statement on Deception (appended to In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 174 (1984)), available at http://www.ftc.gov/bcp/policystmt/ad-decept.htm. See also J. Howard Beales, Brightening the Lines: The Use of Policy Statements at the Federal Trade Commission, 72 Antitrust L.J. 1057, 1058 (2005) (‘‘Each policy statement clarified and refined the legal standards that the Commission would apply, and each narrowed the range of the Commission’s discretion. In their own ways, each statement has had a substantial impact on the development of the law.’’). VerDate Sep<11>2014 15:16 Sep 18, 2015 Jkt 235001 this Section 5 statement does not mention, much less grapple with, the existing case law. While the majority might like to sweep that unfortunate history under the rug, the fact is that the FTC was repeatedly rebuffed by the courts when it last tried to reach well beyond settled principles of antitrust law in asserting its Section 5 authority.3 Instead, the Commission acts as if it is writing on a clean slate for UMC. Further, and again in contrast to the consumer protection policy statements, this statement includes no examples of either lawful or unlawful conduct to provide practical guidance on how the Commission will implement this openended enforcement policy.4 To understand the impact of these deficiencies, it is instructive to consider, for example, the basic facts in the Commission’s 1980 defeat in Official Airline Guides and how such facts could be analyzed under this new rubric. Requiring a monopolist provider of flight information to publish additional information on commuter airlines, as the Commission attempted to do, would undoubtedly benefit consumers in the ancillary market for commuter airline services. That would seem sufficient to satisfy the majority’s ‘‘consumer welfare’’ requirement. It would also enhance competition in the market for air travel, a market in which the monopolist at issue in the case did not actually participate. That would not seem to be a bar to UMC liability, however, because competition would be enhanced somewhere and that ought to suffice under the second prong of the majority’s statement. Finally, traditional antitrust laws do not provide the remedy the Commission sought to impose in OAG; however, pursuing such remedy likely would not be precluded by the statement’s third prong.5 Similarly, incidents of simple oligopolistic interdependence, like the kind seen in Ethyl 6 or Boise Cascade,7 are now arguably fair game under this framework. Because the policy statement fails to address past case law 3 See, e.g., E.I. du Pont de Nemours & Co. v. FTC, 729 F.2d 128, 139 (2d Cir. 1984) (Ethyl); Boise Cascade Corp. v. FTC, 637 F.2d 573, 582 (9th Cir. 1980); Official Airline Guides, Inc. v. FTC, 630 F.2d 920, 927 (2d Cir. 1980) (OAG). 4 See, e.g., William Blumenthal, Clear Agency Guidelines: Lessons from 1982, 68 Antitrust L.J. 5, 25 (2000) (‘‘Good guidance goes beyond commonplace knowledge to offer specifics, to bridge gaps, to resolve ambiguities. It has an edginess; and because it provides details, it limits agency discretion.’’). 5 See OAG, 630 F.2d 920. 6 See Ethyl, 729 F.2d 128 (challenging unilateral pricing practices in oligopolistic industry). 7 See Boise Cascade Corp., 637 F.2d 573 (challenging use of base point pricing system as incipient threat to competition). PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 57057 or give examples of lawful and unlawful conduct, however, the business community and other agency stakeholders are left guessing whether these previous theories of liability are now revived. Turning to the substance of the brief statement, if the Commission is going to issue a policy statement in this controversial area, it should provide meaningful guidance to those subject to our jurisdiction. This statement, however, provides no such guidance. Although no policy statement can anticipate all issues or questions that are likely to arise in the enforcement of a statute, this statement raises many more questions than it answers. For example, to what extent will the Commission be ‘‘guided by the public policy underlying the antitrust laws’’? In what way does ‘‘a framework similar to the rule of reason’’ differ from a traditional rule of reason analysis? Does ‘‘taking into account any associated cognizable efficiencies’’ mean the Commission will actually balance any such efficiencies against the alleged harms, or is there some other formula anticipated by the majority? Further, given the statement’s embrace of incipiency as a guiding principle, at what point are harms or efficiencies measured? At what market share should a firm without monopoly power be concerned about triggering an incipient violation through its otherwise lawful conduct? What factors will the Commission consider in deciding whether to pursue under Section 5 conduct that it considers insufficiently addressed by the antitrust laws? 8 Although short on details and constraints, one of the few guiding principles included in the statement is the pronouncement that Section 5 covers conduct that ‘‘contravenes the spirit of the antitrust laws’’ or which, ‘‘if allowed to mature or complete, could violate’’ the antitrust laws. These two extremely broad characterizations of the scope of Section 5 contribute to the vagueness of this statement. The statement also explicitly permits the Commission to pursue conduct under Section 5 in the absence of substantial harm to competition.9 A 8 The brief majority statement that accompanies the policy statement does not meaningfully add to its contents. For example, how will the Commission determine that the antitrust laws are not ‘‘sufficient’’ or ‘‘appropriate’’? When will the Commission use a traditional rule of reason analysis, and when will it use Section 5 ‘‘in a manner similar to the case-by-case development of the other antitrust laws’’? 9 The statement may very well constrain the Commission from pursuing Section 5 to its broadest possible extent to reach conduct that is in bad faith, E:\FR\FM\21SEN2.SGM Continued 21SEN2 57058 Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices rmajette on DSK7SPTVN1PROD with NOTICES substantial harm requirement, however, is found in our Unfairness Statement,10 and thoughtful commentary from leading antitrust scholars has suggested that such a requirement be included in any UMC statement.11 In any case, the fact that this policy statement requires some harm to competition does little to constrain the Commission, as every Section 5 theory pursued in the last 45 years, no matter how controversial or convoluted, can be and has been couched in terms of protecting competition and/or consumers.12 Thus, the possibilities for expansive use of Section 5 under this policy statement appear vast. The majority’s reading of Section 5 could easily accommodate a host of controversial theories pursued or considered by the Commission over the past four decades, fraudulent, or oppressive without any possible relation to competition. See, e.g., FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 242 (1972). In practice, however, the Commission has not relied solely on such a rationale to support a UMC violation for several decades. Thus, in practice the statement constrains very little, if anything, in this regard. 10 See Unfairness Statement, supra note 2, at 1073 (‘‘First of all, the injury must be substantial. The Commission is not concerned with trivial or merely speculative harms.’’). 11 See, e.g., Section of Antitrust Law, Presidential Transition Report: The State of Antitrust Enforcement 2012 20 (2013) (‘‘Standalone Section 5 enforcement should be used, if at all, only when the conduct involves substantial competitive harm.’’); Transcript of Fed. Trade Comm’n Workshop, Section 5 of the FTC Act as a Competition Statute at 130 (Oct. 17, 2008) [hereinafter Section 5 Workshop], available at https://www.ftc.gov/sites/default/files/documents/ public_events/section-5-ftc-act-competition-statute/ transcript.pdf (‘‘[M]y proposal was for where the practice causes very substantial harm, the remedy does not affect efficiencies or other good business reasons, and a clear line can be developed that allows predictability.’’) (Robert Pitofsky). See also Herbert Hovenkamp, The Federal Trade Commission and the Sherman Act, 62 Fla. L. Rev. 871, 878–79 (2010) (‘‘[T]he practices that [the FTC] condemns must really be ‘anticompetitive’ in a meaningful sense. That is, there must be a basis for thinking that the practice either does or will lead to reduced output and higher consumer prices or lower quality in the affected market.’’). 12 See, e.g., In re Negotiated Data Solutions LLC, FTC File No. 051–0094, Statement of the Federal Trade Commission, at 2 & n.5 (Jan. 23, 2008), available at https://www.ftc.gov/sites/default/files/ documents/cases/2008/01/080122statement.pdf (stating that Section 5 reaches conduct that is ‘‘oppressive and coercive’’ but also stating: ‘‘The process of establishing a standard displaces competition; therefore, bad faith or deceptive behavior that undermines the process may also undermine competition . . . .’’); In re Intel Corp., FTC File No. 061–0247, Statement of Chairman Leibowitz and Commissioner Rosch, at 2 (Dec. 16, 2009), available at https://www.ftc.gov/system/files/ documents/public_statements/568601/ 091216intelchairstatement.pdf (‘‘We take seriously our mandate to find a violation of Section 5 only when it is proven that the conduct at issue has not only been unfair to rivals in the market but, more important, is likely to harm consumers, taking into account any efficiency justifications for the conduct in question.’’). VerDate Sep<11>2014 15:16 Sep 18, 2015 Jkt 235001 including breach of standard-setting commitments, loyalty discounts, facilitating practices, conscious parallelism, business torts, incipient violations of the antitrust laws, and unfair competition through violation of various laws outside the antitrust context.13 To provide certainty regarding future enforcement under Section 5, a Commission policy statement must constrain the agency in some meaningful way. In truth, the openended ‘‘similar to the rule of reason’’ framework—to the extent I understand how it may be applied—does not seem to differ meaningfully from the existing case-by-case approach heretofore favored by a majority of the Commission. Indeed, my experience as a Commissioner leads me to believe that my colleagues, who have diverse views about antitrust law, would apply this policy statement to reflect these significant differences. No interpretation of the policy statement by a single Commissioner, no matter how thoughtful, will bind this or any future Commission to greater limits on Section 5 UMC enforcement than what is in this exceedingly brief, highly general statement. Although some may argue that the courts will be an adequate check on this authority, many commenters have raised concerns about how frequently the FTC settles Section 5 cases and how infrequently courts review our UMC enforcement.14 I see no reason why this policy statement will change the incentives for settlement on either side or affect the infrequency of judicial scrutiny of FTC enforcement under Section 5. The effect of this expansive policy statement also raises issues for our dual antitrust enforcement framework. 13 My colleagues have not ruled out any of these theories in their policy and majority statements. 14 See, e.g., William E. Kovacic & Marc Winerman, Competition Policy and the Application of Section 5 of the Federal Trade Commission Act, 76 Antitrust L.J. 929, 941 (2010) (‘‘As influences on doctrine and firm behavior, though, settlements are weak substitutes for decisions by the appellate courts that affirm FTC rulings based on Section 5. One can have confidence in a theory’s power and durability only when it has been tested in adversarial proceedings and endorsed by reviewing courts . . . .’’); James Campbell Cooper, The Perils of Excessive Discretion: The Elusive Meaning of Unfairness in Section 5 of the FTC Act, 3 J. Antitrust Enforcement 87, 95 (2015) (‘‘Even if the courts are the de jure arbiters of what constitutes an unfair method of competition, as long as the Commission avoids litigation, it becomes the de facto decider. This state of affairs calls into question the legitimacy of the FTC’s modern Section 5 cases. As long as the FTC’s theories remain untested in an adversarial proceeding, and unratified by appellate decisions, uncertainty will remain about the true reach of Section 5.’’). PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 Principles of fairness and predictability require that divergence in liability standards between the two agencies resulting from enforcement of Section 5 be minimal.15 Otherwise, firms may face liability (or not), depending solely on which agency reviews their conduct. One can only imagine how this policy statement will affect the clearance process under which the agencies allocate matters, which is now primarily based on industry expertise. Even worse from a fairness standpoint is the prospect of the Commission leveraging its expansive Section 5 authority to pursue conduct by a firm whose timesensitive merger happens to be under review by the Commission.16 In addition, the lack of internal deliberation and consultation surrounding this policy statement—as opposed to the topic of Section 5 more generally—is unfortunate.17 Many, including former Chairman Pitofsky, have urged the Commission to seek public comment on any proposed Section 5 policy statement before adopting it.18 Doing so here would have 15 See, e.g., Antitrust Modernization Comm’n, Report and Recommendations 139 (2007) (addressing merger context and concluding: ‘‘So long as both agencies retain authority to enforce the antitrust laws, such divergence should be minimized or eliminated.’’). 16 See, e.g., In re Robert Bosch GmbH, FTC File No. 121–0081, Decision and Order (Nov. 26, 2012), available at https://www.ftc.gov/sites/default/files/ documents/cases/2013/04/ 130424robertboschdo.pdf (consent order settling simultaneous merger and standalone Section 5 investigations). Indeed, concerns about the FTC having additional leverage over merging parties as compared to the DOJ have led to proposed legislation to strip the FTC of its ability to challenge an unconsummated merger in administrative litigation. See H.R. 5402, 113th Cong. (2014); Hearing on The ‘‘Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act of 2014, Before the Subcomm. on Regulatory Reform, Commercial and Antitrust Law of the H. Comm. on the Judiciary, 113th Cong. 2 (2014) (statement of Deborah A. Garza, former Chair, Antitrust Modernization Commission) (raising concerns about the FTC’s ‘‘potentially enormous advantage ` vis-a-vis DOJ and leverage over the parties with respect to the mergers it chooses to challenge’’). The effect of today’s policy statement may well be to increase that perceived leverage. 17 The majority cites to a 2008 workshop to claim adequate discussion of our enforcement authority under Section 5. That workshop took place seven years ago, before any sitting member of the Commission was in office. 18 See, e.g., Section 5 Workshop, supra note 11, at 67 (‘‘If the FTC, by the way, is going to publish a rule along this line or any line, it should be put out for public comment so that people can react to it.’’) (Robert Pitofsky); U.S. Chamber of Commerce, Unfair Methods of Competition under Section 5 of the FTC Act: Does the U.S. Need Rules ‘‘Above and Beyond Antitrust’’?, CPI Antitrust Chronicle 8–9 (Sept. 2009) (‘‘Any additional movement toward the use of Section 5 should be preceded by hearings and substantial time for debate among the antitrust community to ensure appropriate notice and guidance is provided to the business community and other interested constituents.’’). E:\FR\FM\21SEN2.SGM 21SEN2 Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 / Notices allowed the Commission to receive input from key stakeholders, including Congress, the Department of Justice (DOJ) Antitrust Division, the business community, and the antitrust bar on this particular policy formulation.19 Such input would have helped ensure that the Commission is offering durable and practical guidance around the fundamental question of whether and when this agency will reach beyond well-settled principles of antitrust law to impose new varieties of UMC liability.20 It would also have allowed rmajette on DSK7SPTVN1PROD with NOTICES 19 I also objected to the Commission’s withdrawal, without any public input, of its policy statement on pursuing disgorgement in competition matters in 2012. See Statement of Commissioner Maureen K. Ohlhausen Dissenting from the Commission’s Decision to Withdraw its Policy Statement on Monetary Equitable Remedies in Competition Cases (July 31, 2012), available at http://www.ftc.gov/os/ 2012/07/120731ohlhausenstatement.pdf. 20 Such consultation is especially warranted given the serious debate about the need to reach beyond the antitrust laws at all. See, e.g., II Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 302h, at 31 (4th ed. 2014) (‘‘Apart from possible historical anachronisms in the application of those statutes, the Sherman and Clayton Acts are broad enough to cover any anticompetitive agreement or monopolistic situation that ought to be attacked whether ‘completely full blown or not.’ Nothing prevents those statutes from working their own condemnation of practices violating their basic policies.’’); In re Negotiated Data Solutions LLC, FTC File No. 051–0094, Dissenting Statement of Chairman Majoras, at 2–3 (Jan. 23, 2008), available at http://www.ftc.gov/os/caselist/0510094/ VerDate Sep<11>2014 15:16 Sep 18, 2015 Jkt 235001 more careful consideration of how this expansive policy may be viewed by other antitrust regimes around the world.21 Finally, I disagree with the view that having an expansive UMC policy statement is better than having no statement at all. Arming the FTC staff with this sweeping new policy statement is likely to embolden them to explore the limits of UMC in conduct and merger investigations. The majority 080122majoras.pdf (‘‘Although Section 5 enables the Commission to reach conduct that is not actionable under the Sherman or Clayton Acts, we have largely limited ourselves to matters in which respondents took actions short of a fully consummated Section 1 violation (but with clear potential to harm competition), such as invitations to collude. This limitation is partly self-imposed, reflecting the Commission’s recognition of the scholarly consensus that finds the Sherman and Clayton Acts, as currently interpreted, to be sufficiently encompassing to address nearly all matters that properly warrant competition policy enforcement.’’) (footnotes omitted). 21 See, e.g., James J. O’Connell, Section 5, 1914, and the FTC at 100, 29 Antitrust 5, 6 (Fall 2014) (‘‘[T]he FTC does not operate in a vacuum but rather as part of an international enforcement community, the newer members of which study very closely the practices and policies of more experienced agencies. . . . [I]n the absence of clear limiting principles the FTC runs the risk of its [standalone Section 5] enforcement being seen by newer agencies as following a kind of ‘We know it when we see it’ approach, one which translates into other languages and cultures all too easily as a kind of implicit endorsement of arbitrary exercises of agency power.’’). PO 00000 Frm 00005 Fmt 4701 Sfmt 9990 57059 is also likely to pursue new UMC enforcement, else why bother to put out a statement with so little internal deliberation and no provision for public input? I fear that this will ultimately lead to more, not less, uncertainty and burdens for the business community. I would prefer that any Section 5 policy statement be put out for public comment before adoption and include, among other things: (1) A substantial harm requirement; (2) a disproportionate harm test; (3) a stricter standard for pursuing conduct already addressed by the antitrust laws; (4) a commitment to minimize FTC–DOJ conflict; (5) reliance on robust economic evidence on the practice at issue and exploration of available nonenforcement tools prior to taking any enforcement action; and (6) a commitment generally to avoid pursuing the same conduct as both an unfair method of competition and an unfair or deceptive act or practice.22 For all of these reasons, I dissent from the issuance of this policy statement. [FR Doc. 2015–23498 Filed 9–18–15; 8:45 am] BILLING CODE 6750–01–P 22 For a detailed discussion of factors that I believe should be included in a Section 5 statement, see Maureen K. Ohlhausen, Section 5 of the FTC Act: Principles of Navigation, 2 J. Antitrust Enforcement 1 (2014). E:\FR\FM\21SEN2.SGM 21SEN2

Agencies

FEDERAL TRADE COMMISSION

[Federal Register Volume 80, Number 182 (Monday, September 21, 2015)]
[Notices]
[Pages 57055-57059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-23498]

[[Page 57055]]

Vol. 80

Monday,

No. 182

September 21, 2015

Part II

Federal Trade Commission

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Statement of Enforcement Principles Regarding ``Unfair Methods of
Competition'' Under Section 5 of the Federal Trade Commission Act;
Commission Policy Statement; Notice

Federal Register / Vol. 80, No. 182 / Monday, September 21, 2015 /
Notices

[[Page 57056]]

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FEDERAL TRADE COMMISSION

Statement of Enforcement Principles Regarding ``Unfair Methods of
Competition'' Under Section 5 of the Federal Trade Commission Act

AGENCY: Federal Trade Commission.

ACTION: Commission policy statement.

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SUMMARY: The Federal Trade Commission has issued a Statement of
Enforcement Principles Regarding ``Unfair Methods of Competition''
Under Section 5 of the FTC Act. The Statement describes the underlying
antitrust principles that guide the Commission's application of its
statutory authority to take action against ``unfair methods of
competition'' prohibited by Section 5 of the FTC Act but not
necessarily by the Sherman Act or the Clayton Act.

DATES: The Commission announced the issuance of the Statement on August
13, 2015.

FOR FURTHER INFORMATION CONTACT: Donald S. Clark, Secretary, (202-326-
2514), 600 Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

Statement of Enforcement Principles Regarding ``Unfair Methods of
Competition'' Under Section 5 of the FTC Act

Section 5 of the Federal Trade Commission Act declares ``unfair
methods of competition in or affecting commerce'' to be unlawful. 15
U.S.C. 45(a)(1). Section 5's ban on unfair methods of competition
encompasses not only those acts and practices that violate the Sherman
or Clayton Act but also those that contravene the spirit of the
antitrust laws and those that, if allowed to mature or complete, could
violate the Sherman or Clayton Act.
Congress chose not to define the specific acts and practices that
constitute unfair methods of competition in violation of Section 5,
recognizing that application of the statute would need to evolve with
changing markets and business practices. Instead, it left the
development of Section 5 to the Federal Trade Commission as an expert
administrative body, which would apply the statute on a flexible case-
by-case basis, subject to judicial review. This statement is intended
to provide a framework for the Commission's exercise of its
``standalone'' Section 5 authority to address acts or practices that
are anticompetitive but may not fall within the scope of the Sherman or
Clayton Act.
In deciding whether to challenge an act or practice as an unfair
method of competition in violation of Section 5 on a standalone basis,
the Commission adheres to the following principles:
The Commission will be guided by the public policy
underlying the antitrust laws, namely, the promotion of consumer
welfare;
the act or practice will be evaluated under a framework
similar to the rule of reason, that is, an act or practice challenged
by the Commission must cause, or be likely to cause, harm to
competition or the competitive process, taking into account any
associated cognizable efficiencies and business justifications; and
the Commission is less likely to challenge an act or
practice as an unfair method of competition on a standalone basis if
enforcement of the Sherman or Clayton Act is sufficient to address the
competitive harm arising from the act or practice.

By direction of the Commission, with Chairwoman Ramirez and
Commissioner Brill, Commissioner Wright, and Commissioner McSweeny
voting in the affirmative, and Commissioner Ohlhausen dissenting.
Donald S. Clark,
Secretary.

Statement of the Federal Trade Commission \1\ on the Issuance of
Enforcement Principles Regarding ``Unfair Methods of Competition ''
Under Section 5 of the FTC Act
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\1\ This statement reflects the views of Chairwoman Ramirez and
Commissioners Brill, Wright, and McSweeny.
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The Federal Trade Commission was created in 1914 and vested with
enforcement authority over ``unfair methods of competition'' under
Section 5 of the FTC Act.\2\ The Commission has issued a policy
statement describing the enforcement principles that guide the exercise
of our ``standalone'' Section 5 authority to address anticompetitive
acts or practices that fall outside the scope of the Sherman and
Clayton Acts.
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\2\ 15 U.S.C. 45(a)(1). All references in this statement to
``Section 5'' relate to its prohibition of ``unfair methods of
competition'' and not to its prohibition of ``unfair or deceptive
acts or practices.''
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In describing the principles and overarching analytical framework
that guide the Commission's application of Section 5, our statement
affirms that Section 5 is aligned with the other antitrust laws, which
have evolved over time and are guided by the goal of promoting consumer
welfare and informed by economic analysis. The result of this evolution
is the modern ``rule of reason.'' \3\ Our statement makes clear that
the Commission will rely on the accumulated knowledge and experience
embedded within the ``rule of reason'' framework developed under the
antitrust laws over the past 125 years--a framework well understood by
courts, competition agencies, the business community, and
practitioners. These principles also retain for the Commission the
flexibility to apply its authority in a manner similar to the case-by-
case development of the other antitrust laws. Finally, we confirm that
the Commission will continue to rely, when sufficient and appropriate,
on the Sherman and Clayton Acts as its primary enforcement tools for
protecting competition and promoting consumer welfare.
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\3\ The ``rule of reason'' is the cornerstone of modern
antitrust analysis. As the leading treatise on antitrust law
explains,
In antitrust jurisprudence, ``reasonableness'' sums up the
judgment that behavior is consistent with the antitrust laws. A
monopolist acting reasonably does not violate Sherman Act Sec. 2.
Reasonable collaboration among competitors does not violate Sherman
Act Sec. 1. Although reasonableness is usually judged case by case,
it is sometimes made for a class of conduct, such as price fixing,
which is then said to be intrinsically or ``per se'' unlawful. Thus,
per se rules also derive from judgments about reasonableness, albeit
for a type of behavior rather than for a particular case. Even under
the Clayton Act, where decisions about tying, exclusive dealing, and
mergers are seldom phrased in reasonableness terms, the application
of those statutes depends on the same elements that define
``reasonableness.''
VII Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ] 1500
(3d ed. 2010).
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There has been much thoughtful dialogue inside and outside of the
agency over the course of the last century about the precise contours
of Section 5's prohibition against unfair methods of competition.\4\ We
have benefited greatly from this ongoing dialogue and from judicial
insights through the process of judicial review, and we believe that
the principles we have set forth in our Section 5 statement are ones on
which there is broad consensus.\5\
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\4\ See Public Workshop Concerning the Prohibition of Unfair
Methods of Competition in Section 5 of the Federal Trade Commission
Act, 73 FR 50,818 (Aug. 28, 2008), available at http://www.gpo.gov/fdsys/pkg/FR-2008-08-28/pdf/E8-20008.pdf and at https://www.ftc.gov/sites/default/files/documents/public_events/section-5-ftc-act-competition-statute/p083900section5.pdf; Section 5 of the FTC Act as
a Competition Statute, Fed. Trade Comm'n (Oct. 17, 2008), https://www.ftc.gov/news-events/events-calendar/2008/10/section-5-ftc-act-competition-statute.
\5\ Like the Commission's policy statements on unfairness and
deception, no public comment was sought here. The purpose of each of
these policy statements is similar, which is to provide the
Commission's view on how it approaches the use of its statutory
authority. See FTC Policy Statement on Unfairness, Letter from the
Federal Trade Commission to Senator Wendell H. Ford, Chairman,
Consumer Subcommittee, Senate Committee on Commerce, Science, and
Transportation, and Senator John C. Danforth, Ranking Minority
Member, Consumer Subcommittee, Senate Committee on Commerce,
Science, and Transportation (Dec. 17, 1980), appended to Int'l
Harvester Co., 104 F.T.C. 949, 1070 (1984), and available at https://www.ftc.gov/public-statements/1980/12/ftc-policy-statement-unfairness; FTC Policy Statement on Deception, Letter from James C.
Miller III, Chairman, Federal Trade Commission, to Representative
John D. Dingell, Chairman, House Committee on Energy and Commerce
(Oct. 14, 1983), appended to Cliff Assocs., Inc., 103 F.T.C. 110,
174 (1984), and available at https://www.ftc.gov/public-statements/1983/10/ftc-policy-statement-deception.

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[[Page 57057]]

Dissenting Statement of Commissioner Maureen K. Ohlhausen: FTC Act
Section 5 Policy Statement

I appreciate the effort to issue some form of guidance on the scope
of Section 5 of the FTC Act's prohibition of ``unfair methods of
competition'' (UMC).\1\ However, I voted against the issuance of this
policy statement in this manner. The approach of my colleagues to this
important issue of competition policy is too abbreviated in substance
and process for me to support. Moreover, what substance the statement
does offer ultimately provides more questions than answers, undermining
its value as guidance. In addition, the Commission's failure to seek
public input has deprived us of guidance from key stakeholders on this
particular interpretation of Section 5. Finally, the Commission's
official embrace of such an unbounded interpretation of UMC is almost
certain to encourage more frequent exploration of this authority in
conduct and merger investigations and standalone Section 5 enforcement
by the Commission.
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\1\ Like many interested parties, I have called for Section 5
guidance on several occasions during my time on the Commission. See,
e.g., In re Motorola Mobility LLC & Google Inc., FTC File No. 121-
0120, Dissenting Statement of Commissioner Maureen K. Ohlhausen
(Jan. 3, 2013), available at https://www.ftc.gov/sites/default/files/documents/cases/2013/01/130103googlemotorolaohlhausenstmt.pdf;
In re Robert Bosch GmbH, FTC File No. 121-0081, Statement of
Commissioner Maureen K. Ohlhausen (Nov. 26, 2012), available at
https://www.ftc.gov/sites/default/files/documents/cases/2012/11/121126boschohlhausenstatement.pdf.
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First, the content of today's policy statement is seriously
lacking. Unlike the detailed analysis in our policy statements on
Section 5's prohibition of ``unfair or deceptive acts or practices,''
\2\ this Section 5 statement does not mention, much less grapple with,
the existing case law. While the majority might like to sweep that
unfortunate history under the rug, the fact is that the FTC was
repeatedly rebuffed by the courts when it last tried to reach well
beyond settled principles of antitrust law in asserting its Section 5
authority.\3\ Instead, the Commission acts as if it is writing on a
clean slate for UMC. Further, and again in contrast to the consumer
protection policy statements, this statement includes no examples of
either lawful or unlawful conduct to provide practical guidance on how
the Commission will implement this open-ended enforcement policy.\4\
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\2\ See Fed. Trade Comm'n, Commission Statement of Policy on the
Scope of the Consumer Unfairness Jurisdiction, 104 F.T.C. 1070, 1071
(1984) (appended to In re Int'l Harvester Co., 104 F.T.C. 949
(1984)) [hereinafter Unfairness Statement], available at http://www.ftc.gov/bcp/policystmt/ad-unfair.htm; Fed. Trade Comm'n, Policy
Statement on Deception (appended to In re Cliffdale Assocs., Inc.,
103 F.T.C. 110, 174 (1984)), available at http://www.ftc.gov/bcp/policystmt/ad-decept.htm. See also J. Howard Beales, Brightening the
Lines: The Use of Policy Statements at the Federal Trade Commission,
72 Antitrust L.J. 1057, 1058 (2005) (``Each policy statement
clarified and refined the legal standards that the Commission would
apply, and each narrowed the range of the Commission's discretion.
In their own ways, each statement has had a substantial impact on
the development of the law.'').
\3\ See, e.g., E.I. du Pont de Nemours & Co. v. FTC, 729 F.2d
128, 139 (2d Cir. 1984) (Ethyl); Boise Cascade Corp. v. FTC, 637
F.2d 573, 582 (9th Cir. 1980); Official Airline Guides, Inc. v. FTC,
630 F.2d 920, 927 (2d Cir. 1980) (OAG).
\4\ See, e.g., William Blumenthal, Clear Agency Guidelines:
Lessons from 1982, 68 Antitrust L.J. 5, 25 (2000) (``Good guidance
goes beyond commonplace knowledge to offer specifics, to bridge
gaps, to resolve ambiguities. It has an edginess; and because it
provides details, it limits agency discretion.'').
---------------------------------------------------------------------------

To understand the impact of these deficiencies, it is instructive
to consider, for example, the basic facts in the Commission's 1980
defeat in Official Airline Guides and how such facts could be analyzed
under this new rubric. Requiring a monopolist provider of flight
information to publish additional information on commuter airlines, as
the Commission attempted to do, would undoubtedly benefit consumers in
the ancillary market for commuter airline services. That would seem
sufficient to satisfy the majority's ``consumer welfare'' requirement.
It would also enhance competition in the market for air travel, a
market in which the monopolist at issue in the case did not actually
participate. That would not seem to be a bar to UMC liability, however,
because competition would be enhanced somewhere and that ought to
suffice under the second prong of the majority's statement. Finally,
traditional antitrust laws do not provide the remedy the Commission
sought to impose in OAG; however, pursuing such remedy likely would not
be precluded by the statement's third prong.\5\ Similarly, incidents of
simple oligopolistic interdependence, like the kind seen in Ethyl \6\
or Boise Cascade,\7\ are now arguably fair game under this framework.
Because the policy statement fails to address past case law or give
examples of lawful and unlawful conduct, however, the business
community and other agency stakeholders are left guessing whether these
previous theories of liability are now revived.
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\5\ See OAG, 630 F.2d 920.
\6\ See Ethyl, 729 F.2d 128 (challenging unilateral pricing
practices in oligopolistic industry).
\7\ See Boise Cascade Corp., 637 F.2d 573 (challenging use of
base point pricing system as incipient threat to competition).
---------------------------------------------------------------------------

Turning to the substance of the brief statement, if the Commission
is going to issue a policy statement in this controversial area, it
should provide meaningful guidance to those subject to our
jurisdiction. This statement, however, provides no such guidance.
Although no policy statement can anticipate all issues or questions
that are likely to arise in the enforcement of a statute, this
statement raises many more questions than it answers.
For example, to what extent will the Commission be ``guided by the
public policy underlying the antitrust laws''? In what way does ``a
framework similar to the rule of reason'' differ from a traditional
rule of reason analysis? Does ``taking into account any associated
cognizable efficiencies'' mean the Commission will actually balance any
such efficiencies against the alleged harms, or is there some other
formula anticipated by the majority? Further, given the statement's
embrace of incipiency as a guiding principle, at what point are harms
or efficiencies measured? At what market share should a firm without
monopoly power be concerned about triggering an incipient violation
through its otherwise lawful conduct? What factors will the Commission
consider in deciding whether to pursue under Section 5 conduct that it
considers insufficiently addressed by the antitrust laws? \8\
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\8\ The brief majority statement that accompanies the policy
statement does not meaningfully add to its contents. For example,
how will the Commission determine that the antitrust laws are not
``sufficient'' or ``appropriate''? When will the Commission use a
traditional rule of reason analysis, and when will it use Section 5
``in a manner similar to the case-by-case development of the other
antitrust laws''?
---------------------------------------------------------------------------

Although short on details and constraints, one of the few guiding
principles included in the statement is the pronouncement that Section
5 covers conduct that ``contravenes the spirit of the antitrust laws''
or which, ``if allowed to mature or complete, could violate'' the
antitrust laws. These two extremely broad characterizations of the
scope of Section 5 contribute to the vagueness of this statement.
The statement also explicitly permits the Commission to pursue
conduct under Section 5 in the absence of substantial harm to
competition.\9\ A

[[Page 57058]]

substantial harm requirement, however, is found in our Unfairness
Statement,\10\ and thoughtful commentary from leading antitrust
scholars has suggested that such a requirement be included in any UMC
statement.\11\ In any case, the fact that this policy statement
requires some harm to competition does little to constrain the
Commission, as every Section 5 theory pursued in the last 45 years, no
matter how controversial or convoluted, can be and has been couched in
terms of protecting competition and/or consumers.\12\
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\9\ The statement may very well constrain the Commission from
pursuing Section 5 to its broadest possible extent to reach conduct
that is in bad faith, fraudulent, or oppressive without any possible
relation to competition. See, e.g., FTC v. Sperry & Hutchinson Co.,
405 U.S. 233, 242 (1972). In practice, however, the Commission has
not relied solely on such a rationale to support a UMC violation for
several decades. Thus, in practice the statement constrains very
little, if anything, in this regard.
\10\ See Unfairness Statement, supra note 2, at 1073 (``First of
all, the injury must be substantial. The Commission is not concerned
with trivial or merely speculative harms.'').
\11\ See, e.g., Section of Antitrust Law, Presidential
Transition Report: The State of Antitrust Enforcement 2012 20 (2013)
(``Standalone Section 5 enforcement should be used, if at all, only
when the conduct involves substantial competitive harm.'');
Transcript of Fed. Trade Comm'n Workshop, Section 5 of the FTC Act
as a Competition Statute at 130 (Oct. 17, 2008) [hereinafter Section
5 Workshop], available at https://www.ftc.gov/sites/default/files/documents/public_events/section-5-ftc-act-competition-statute/transcript.pdf (``[M]y proposal was for where the practice causes
very substantial harm, the remedy does not affect efficiencies or
other good business reasons, and a clear line can be developed that
allows predictability.'') (Robert Pitofsky). See also Herbert
Hovenkamp, The Federal Trade Commission and the Sherman Act, 62 Fla.
L. Rev. 871, 878-79 (2010) (``[T]he practices that [the FTC]
condemns must really be `anticompetitive' in a meaningful sense.
That is, there must be a basis for thinking that the practice either
does or will lead to reduced output and higher consumer prices or
lower quality in the affected market.'').
\12\ See, e.g., In re Negotiated Data Solutions LLC, FTC File
No. 051-0094, Statement of the Federal Trade Commission, at 2 & n.5
(Jan. 23, 2008), available at https://www.ftc.gov/sites/default/files/documents/cases/2008/01/080122statement.pdf (stating that
Section 5 reaches conduct that is ``oppressive and coercive'' but
also stating: ``The process of establishing a standard displaces
competition; therefore, bad faith or deceptive behavior that
undermines the process may also undermine competition . . . .''); In
re Intel Corp., FTC File No. 061-0247, Statement of Chairman
Leibowitz and Commissioner Rosch, at 2 (Dec. 16, 2009), available at
https://www.ftc.gov/system/files/documents/public_statements/568601/091216intelchairstatement.pdf (``We take seriously our mandate to
find a violation of Section 5 only when it is proven that the
conduct at issue has not only been unfair to rivals in the market
but, more important, is likely to harm consumers, taking into
account any efficiency justifications for the conduct in
question.'').
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Thus, the possibilities for expansive use of Section 5 under this
policy statement appear vast. The majority's reading of Section 5 could
easily accommodate a host of controversial theories pursued or
considered by the Commission over the past four decades, including
breach of standard-setting commitments, loyalty discounts, facilitating
practices, conscious parallelism, business torts, incipient violations
of the antitrust laws, and unfair competition through violation of
various laws outside the antitrust context.\13\
---------------------------------------------------------------------------

\13\ My colleagues have not ruled out any of these theories in
their policy and majority statements.
---------------------------------------------------------------------------

To provide certainty regarding future enforcement under Section 5,
a Commission policy statement must constrain the agency in some
meaningful way. In truth, the open-ended ``similar to the rule of
reason'' framework--to the extent I understand how it may be applied--
does not seem to differ meaningfully from the existing case-by-case
approach heretofore favored by a majority of the Commission. Indeed, my
experience as a Commissioner leads me to believe that my colleagues,
who have diverse views about antitrust law, would apply this policy
statement to reflect these significant differences. No interpretation
of the policy statement by a single Commissioner, no matter how
thoughtful, will bind this or any future Commission to greater limits
on Section 5 UMC enforcement than what is in this exceedingly brief,
highly general statement.
Although some may argue that the courts will be an adequate check
on this authority, many commenters have raised concerns about how
frequently the FTC settles Section 5 cases and how infrequently courts
review our UMC enforcement.\14\ I see no reason why this policy
statement will change the incentives for settlement on either side or
affect the infrequency of judicial scrutiny of FTC enforcement under
Section 5.
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\14\ See, e.g., William E. Kovacic & Marc Winerman, Competition
Policy and the Application of Section 5 of the Federal Trade
Commission Act, 76 Antitrust L.J. 929, 941 (2010) (``As influences
on doctrine and firm behavior, though, settlements are weak
substitutes for decisions by the appellate courts that affirm FTC
rulings based on Section 5. One can have confidence in a theory's
power and durability only when it has been tested in adversarial
proceedings and endorsed by reviewing courts . . . .''); James
Campbell Cooper, The Perils of Excessive Discretion: The Elusive
Meaning of Unfairness in Section 5 of the FTC Act, 3 J. Antitrust
Enforcement 87, 95 (2015) (``Even if the courts are the de jure
arbiters of what constitutes an unfair method of competition, as
long as the Commission avoids litigation, it becomes the de facto
decider. This state of affairs calls into question the legitimacy of
the FTC's modern Section 5 cases. As long as the FTC's theories
remain untested in an adversarial proceeding, and unratified by
appellate decisions, uncertainty will remain about the true reach of
Section 5.'').
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The effect of this expansive policy statement also raises issues
for our dual antitrust enforcement framework. Principles of fairness
and predictability require that divergence in liability standards
between the two agencies resulting from enforcement of Section 5 be
minimal.\15\ Otherwise, firms may face liability (or not), depending
solely on which agency reviews their conduct. One can only imagine how
this policy statement will affect the clearance process under which the
agencies allocate matters, which is now primarily based on industry
expertise. Even worse from a fairness standpoint is the prospect of the
Commission leveraging its expansive Section 5 authority to pursue
conduct by a firm whose time-sensitive merger happens to be under
review by the Commission.\16\
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\15\ See, e.g., Antitrust Modernization Comm'n, Report and
Recommendations 139 (2007) (addressing merger context and
concluding: ``So long as both agencies retain authority to enforce
the antitrust laws, such divergence should be minimized or
eliminated.'').
\16\ See, e.g., In re Robert Bosch GmbH, FTC File No. 121-0081,
Decision and Order (Nov. 26, 2012), available at https://www.ftc.gov/sites/default/files/documents/cases/2013/04/130424robertboschdo.pdf (consent order settling simultaneous merger
and standalone Section 5 investigations). Indeed, concerns about the
FTC having additional leverage over merging parties as compared to
the DOJ have led to proposed legislation to strip the FTC of its
ability to challenge an unconsummated merger in administrative
litigation. See H.R. 5402, 113th Cong. (2014); Hearing on The
``Standard Merger and Acquisition Reviews Through Equal Rules
(SMARTER) Act of 2014, Before the Subcomm. on Regulatory Reform,
Commercial and Antitrust Law of the H. Comm. on the Judiciary, 113th
Cong. 2 (2014) (statement of Deborah A. Garza, former Chair,
Antitrust Modernization Commission) (raising concerns about the
FTC's ``potentially enormous advantage vis-[agrave]-vis DOJ and
leverage over the parties with respect to the mergers it chooses to
challenge''). The effect of today's policy statement may well be to
increase that perceived leverage.
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In addition, the lack of internal deliberation and consultation
surrounding this policy statement--as opposed to the topic of Section 5
more generally--is unfortunate.\17\ Many, including former Chairman
Pitofsky, have urged the Commission to seek public comment on any
proposed Section 5 policy statement before adopting it.\18\ Doing so
here would have

[[Page 57059]]

allowed the Commission to receive input from key stakeholders,
including Congress, the Department of Justice (DOJ) Antitrust Division,
the business community, and the antitrust bar on this particular policy
formulation.\19\ Such input would have helped ensure that the
Commission is offering durable and practical guidance around the
fundamental question of whether and when this agency will reach beyond
well-settled principles of antitrust law to impose new varieties of UMC
liability.\20\ It would also have allowed more careful consideration of
how this expansive policy may be viewed by other antitrust regimes
around the world.\21\
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\17\ The majority cites to a 2008 workshop to claim adequate
discussion of our enforcement authority under Section 5. That
workshop took place seven years ago, before any sitting member of
the Commission was in office.
\18\ See, e.g., Section 5 Workshop, supra note 11, at 67 (``If
the FTC, by the way, is going to publish a rule along this line or
any line, it should be put out for public comment so that people can
react to it.'') (Robert Pitofsky); U.S. Chamber of Commerce, Unfair
Methods of Competition under Section 5 of the FTC Act: Does the U.S.
Need Rules ``Above and Beyond Antitrust''?, CPI Antitrust Chronicle
8-9 (Sept. 2009) (``Any additional movement toward the use of
Section 5 should be preceded by hearings and substantial time for
debate among the antitrust community to ensure appropriate notice
and guidance is provided to the business community and other
interested constituents.'').
\19\ I also objected to the Commission's withdrawal, without any
public input, of its policy statement on pursuing disgorgement in
competition matters in 2012. See Statement of Commissioner Maureen
K. Ohlhausen Dissenting from the Commission's Decision to Withdraw
its Policy Statement on Monetary Equitable Remedies in Competition
Cases (July 31, 2012), available at http://www.ftc.gov/os/2012/07/120731ohlhausenstatement.pdf.
\20\ Such consultation is especially warranted given the serious
debate about the need to reach beyond the antitrust laws at all.
See, e.g., II Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ]
302h, at 31 (4th ed. 2014) (``Apart from possible historical
anachronisms in the application of those statutes, the Sherman and
Clayton Acts are broad enough to cover any anticompetitive agreement
or monopolistic situation that ought to be attacked whether
`completely full blown or not.' Nothing prevents those statutes from
working their own condemnation of practices violating their basic
policies.''); In re Negotiated Data Solutions LLC, FTC File No. 051-
0094, Dissenting Statement of Chairman Majoras, at 2-3 (Jan. 23,
2008), available at http://www.ftc.gov/os/caselist/0510094/080122majoras.pdf (``Although Section 5 enables the Commission to
reach conduct that is not actionable under the Sherman or Clayton
Acts, we have largely limited ourselves to matters in which
respondents took actions short of a fully consummated Section 1
violation (but with clear potential to harm competition), such as
invitations to collude. This limitation is partly self-imposed,
reflecting the Commission's recognition of the scholarly consensus
that finds the Sherman and Clayton Acts, as currently interpreted,
to be sufficiently encompassing to address nearly all matters that
properly warrant competition policy enforcement.'') (footnotes
omitted).
\21\ See, e.g., James J. O'Connell, Section 5, 1914, and the FTC
at 100, 29 Antitrust 5, 6 (Fall 2014) (``[T]he FTC does not operate
in a vacuum but rather as part of an international enforcement
community, the newer members of which study very closely the
practices and policies of more experienced agencies. . . . [I]n the
absence of clear limiting principles the FTC runs the risk of its
[standalone Section 5] enforcement being seen by newer agencies as
following a kind of `We know it when we see it' approach, one which
translates into other languages and cultures all too easily as a
kind of implicit endorsement of arbitrary exercises of agency
power.'').
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Finally, I disagree with the view that having an expansive UMC
policy statement is better than having no statement at all. Arming the
FTC staff with this sweeping new policy statement is likely to embolden
them to explore the limits of UMC in conduct and merger investigations.
The majority is also likely to pursue new UMC enforcement, else why
bother to put out a statement with so little internal deliberation and
no provision for public input? I fear that this will ultimately lead to
more, not less, uncertainty and burdens for the business community.
I would prefer that any Section 5 policy statement be put out for
public comment before adoption and include, among other things: (1) A
substantial harm requirement; (2) a disproportionate harm test; (3) a
stricter standard for pursuing conduct already addressed by the
antitrust laws; (4) a commitment to minimize FTC-DOJ conflict; (5)
reliance on robust economic evidence on the practice at issue and
exploration of available non-enforcement tools prior to taking any
enforcement action; and (6) a commitment generally to avoid pursuing
the same conduct as both an unfair method of competition and an unfair
or deceptive act or practice.\22\
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\22\ For a detailed discussion of factors that I believe should
be included in a Section 5 statement, see Maureen K. Ohlhausen,
Section 5 of the FTC Act: Principles of Navigation, 2 J. Antitrust
Enforcement 1 (2014).
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For all of these reasons, I dissent from the issuance of this
policy statement.

[FR Doc. 2015-23498 Filed 9-18-15; 8:45 am]
BILLING CODE 6750-01-P