FTC’s Phillips, Colorado’s Weiser Highlight Areas for Bipartisan Potential

ASPEN, Colorado -- Privacy is a policy area with bipartisan potential at the FTC, Commissioner Noah Phillips told us between panels at the Technology Policy Institute conference Monday, though he doubts the agency’s authority to issue rulemakings for the entire economy.

Commissioners Rebecca Kelly Slaughter and Christine Wilson have discussed the potential for an FTC privacy rulemaking, though Wilson recently backed off that stance (see 2107280061). Phillips noted Chair Lina Khan and Commissioner Rohit Chopra recently explored the potential for FTC rulemakings in particular contexts. “I have real doubts about our authority,” Phillips told us. “I just don’t think we have this broad regulatory authority for the economy.” But privacy is “a popular one that people talk about” in terms of bipartisan potential, he said.

Asked whether Democrats plan to hold the majority for as long as possible while Chopra awaits Senate confirmation to head the Consumer Financial Protection Bureau (see 2106170059), Phillips said, “Usually that’s what administrations do. I’m not going to speculate about” Senate proceedings. It’s “terrific” he has been nominated for a more significant role, but “now it’s a Senate question,” Philips said.

Labor mobility is another potential area for bipartisan consensus at the FTC, Phillips said. Finding ways to address noncompetes and move forward policies that let people leave jobs and find new ones is an area where the FTC can hopefully “find common ground,” said Phillips.

Phillips met earlier in the day with Colorado Attorney General Phil Weiser (D), who discussed with us the bipartisan collaboration at the state level that he said is missing at the federal level. Colorado is one of more than 40 states that plan to appeal the dismissal of their antitrust case against Facebook. Asked about the status of the appeal, Weiser said states have sovereign authority that should be “regarded on the same plane” as the federal enforcement.

Weiser said he has been in contact with Khan to congratulate her but not yet for enforcement work together. He said Colorado had a good working relationship with the agency in the past and expects the same moving forward. “I’d give her a chance to get her sea legs under her,” he said. “There’s a lot that any new leader has to learn. My goal now is to help support her transition.” Asked about DOJ Antitrust Division Chief nominee Jonathan Kanter (see 2107230062), Weiser said, “I’m glad someone got chosen to be in that important position.”

Speaking on an antitrust panel, Phillips said it’s “exciting” to get “new blood” at the agency, and he likes the concept of open meetings: It’s good to show the public who the agency is and what it’s doing. But he criticized recent antitrust policy decisions at the agency under Khan, specifically the potential “undoing” of Hart-Scott-Rodino transaction review legislation. Calling the legislation a win-win for antitrust law, he said businesses got answers and enforcers got a chance to look at transactions before they happened and avoided facing hostile judges. Phillips fears some recent decisions will make “the process less effective and less efficient and less fair.” Former Republican Commissioner Maureen Ohlhausen agreed with Phillips, saying the agency needs more antitrust resources.

The progressive reaction to antitrust with stricter enforcement is partly a response to the idea that antitrust law needs to account for measures beyond price, like privacy, said Davis, Polk’s Howard Shelanski. Policymakers need to decide whether concentration of power itself is a problem, though the guiding principle should be to protect competition, said University of California-Berkeley business strategy professor Carl Shapiro. There’s something wrong when two of the largest companies in the world, Google and Apple, are allowed to set contracts that directly affect competition, said Harvard Business School professor Shane Greenstein. Google paid Apple about $8 billion to set Google as the default search engine on the iPhone, he said: “There shouldn’t be a contract between two firms affecting competition.”

Shapiro said the U.S. needs major antitrust legislation, noting he wouldn’t have argued for that 10 years ago. But given the hostility of the courts, particularly the Supreme Court, antitrust legislation is necessary, he said. Policymakers should focus on proposals to enhance the consumer welfare standard, Phillips said, when asked if he supports legislation. He warned against the introduction of more factors for regulators to consider when evaluating acquisitions: “One of my concerns is, if you’re trying to solve everything at once, you’ll solve nothing at all.”