President Biden’s pick to Chair the Federal Trade Commission (FTC), Lina Khan, was confirmed and appointed on June 15, and has already moved to kick-start agency action on a number of fronts, including on both Commission process and substantive issues.
As a process matter, on June 24, Chair Khan announced that the Commission would have an open public meeting on a monthly basis. This type of public Commission meeting is a departure from the Commission’s recent practices. Commission votes do not require formal meetings, and meetings have not typically been public. However, one key feature of the open meeting is that it can set up votes on specific agenda items. While debates over certain proposals may otherwise occur behind the scenes, putting these votes on the agenda can both highlight the debate and move them towards resolution.
At the first such meeting on July 1, all of the measures being considered, as well as certain aspects of the process, drew pointed dissents from Commissioners Noah Phillips and Christine Wilson. Below is an overview of the measures considered and passed (by a 3-2 vote in every case) at the July 1 meeting:
Chair Khan was explicit about the withdrawal of the 2015 statement being the first step to FTC Act enforcement that goes beyond traditional antitrust doctrine. She noted that the rescission of the 2015 statement was “only the start” of efforts “to clarify the meaning of Section 5 and how it applies to today’s markets.” Chair Khan also previewed that the FTC will “consider whether to propose rules that will further clarify the types of practices” that might warrant scrutiny under Section 5 of the FTC Act “in the coming months.” The Commissioners argued whether the proposal to withdraw previous guidance should be put out for public comment, and that debate appears to be a preview of whether any guidance that replaces the public statement will be put out for public comment, which remains to be seen.
Overall, the public meeting points in one direction for the FTC – more (and faster) rulemakings, more active enforcement, and more investigations. We will be closely watching the Commissioners’ statements and future public meetings to see what comes next.