FTC Chair Simons Likely to Step Down by Inauguration: Agency Aide, Others
Some FTC staffers are expecting Joe Simons to step down as chairman on Inauguration Day, an agency aide told us. An industry official said Simons is “looking to step down before the end of the year.” He recently told senior staff it could be as early as Thanksgiving, but he wants to vote out the agency’s antitrust case against Facebook before he leaves office, the industry official said.
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“The Chairman does not have any immediate plans to depart and we will let you know when that changes,” an agency spokesperson emailed. Offices for the chairman and commissioners didn’t comment.
Simons doesn’t have to leave his commissioner seat, but “I believe he will resign from the Commission relatively soon,” sometime between now and late spring, emailed ex-FTC Competition Bureau Director Bruce Hoffman, now at Cleary Gottlieb. “I don’t really have a view as to timing, but I could see reasons why sooner might be more likely than later.”
Chairmen are “usually quite good about staying on if needed to assure a smooth transfer,” said U.S. Ambassador Grace Koh, the U.S. representative to the ITU and a former special assistant to the president on tech and telecom policy. “If the transition appoints an acting chair, essentially demoting the current chair to commissioner, then they usually aren’t interested in staying.” But much of the transition is “arranged in the background, so the transition team tells the current chair whether they plan to appoint an acting chair,” she added. “And with the change in parties, they do that pretty quickly.” Koh cited a comparison to the FCC, when Chairman Tom Wheeler announced his resignation in December 2016 and formally stepped down at inauguration, allowing Ajit Pai to take office a few days later.
“The Biden-Harris Transition team has not made any personnel decisions at this time," a spokesperson emailed.
If Simons steps down on Inauguration Day without a replacement, “that would be a little odd,” unless he has secured another, imminent role in the private sector or elsewhere, said ex-FTC General Counsel Stephen Calkins, now a Wayne State University law professor. “I don’t think that he would. Then you would leave the agency without a chair.” Remaining as chair ensures a smooth transition, and Simons is an “institutionalist,” so an early departure would be surprising, said Calkins. Simons stressed the agency’s independence in the face of an executive order from President Donald Trump, who sought agency enforcement against unfair and deceptive practices by companies covered under Section 230 of the Communications Decency Act (see 2008050056 and 2009010065).
“Typically the chair continues to serve until the president designates a new chair,” said ex-FTC Chairman William Kovacic, now a George Washington University law professor. The incumbent will usually carry out a smooth transition and do routine management to avoid disruption, said Kovacic. He noted it took President Barack Obama about two months to designate Jon Leibowitz as FTC chairman in 2009.
Biden has two choices for chair in Democratic Commissioners Rohit Chopra and Rebecca Kelly Slaughter, said Kovacic: “I imagine if they were asked, they would both say yes.” Ex-FTC Commissioner Terrell McSweeny, now at Covington & Burling, is also in the running for the chair position, the industry official added. McSweeny didn’t comment.
Expect a national privacy law and negotiations with EU officials to be priorities for the Biden administration, said BSA|The Software Alliance Vice President-Legislative Strategy Craig Albright. Biden “will want to try to improve relations, and that can create an opening for more progress on something like privacy,” he said: All stakeholders are unsatisfied with the current privacy regime in the U.S. The Computer & Communications Industry Association is optimistic there will be more engagement from Biden officials on Privacy Shield negotiations, said Vice President-Public Policy Arthur Sidney: CCIA is hopeful for deescalation of trade disputes and renewed focus on privacy and tax issues.