This fall, TechFreedom is hosting a series of webinars about the Federal Trade Commission — which we’ve long called the Federal Technology Commission. With the help of Bilal Sayyed, former director of the FTC’s Office of Policy Planning and now TechFreedom’s Senior Competition Counsel, we’ll cover the most pressing issues facing the agency today, highlighting our own work as well as that of other experts in the field. The webinar series starts Thursday, October 21, 2021 at 11:00 a.m. with a deep dive on “Does the FTC Have Authority to Issue UMC Rules?” — featuring:

  • Hon. Maureen K. Ohlhausen, FTC Commissioner (2012-18) & Acting Chair (2017-18); Section Chair – Antitrust & Competition Law, Baker Botts LLP. (Bio)
  • Prof. Thomas Merrill, Professor, Columbia Law School. One of the most cited American legal scholars, Merrill teaches and writes about administrative and constitutional law, among other topics. (Bio)
  • Prof. Justin (Gus) Hurwitz, Associate Professor of Law, University of Nebraska. His work builds on his background in law, technology, and economics to consider the interface between law and technology and the role of regulation in high-tech industries. (Bio)
  • Peter Wallison, Senior Fellow Emeritus, American Enterprise Institute (AEI); White House counsel under President Ronald Reagan. (Bio)
  • Berin Szóka, President and founder of TechFreedom, an Internet lawyer who’s been writing about the FTC since 2008. (Bio) 

In 2013, TechFreedom, working with the International Center for Law & Economics, launched a project dedicated to “improve how the [Federal Trade Commission] exercises its discretion … without hamstringing the agency.” Our initial report probed a series of hard questions about the FTC’s operations. A 2016 report applied that approach to nine House bills that would address FTC reforms, and suggested other concrete reforms. This year’s webinar series resumes that project.

The FTC recently sought comment on two petitions for rulemaking to ban non-compete agreements and exclusionary contracts. Each will be the subject of a future webinar — details to be announced soon. This first webinar will explore the underlying question of whether the FTC has the authority to issue binding rules. TechFreedom was the only commenter in the FTC’s docket to address this topic in any depth. Our comments explain why the FTC will lose in court if it tries to issue binding rules, building on a 2002 law review article by Professor Merrill, and responding to a 2015 article by Professor Hurwitz arguing that the FTC can make binding rules. Those comments are summarized below:

“Granting such legislative power would have violated the non-delegation doctrine as universally understood in 1914 — an understanding the Supreme Court has signaled it will return to. It is absurd to think that Congress buried such a constitutional revolution without debate and in 15 words of such an ancillary provision — yet detailed so carefully the case-by-case adjudication by which the agency would enforce the law. Such an interpretation would also violate the convention Congress followed for generations: signaling that an agency should make substantive rules by authorizing sanctions for violations of those rules. The FTC Act does not even authorize sanctions for violations of the statute itself, only cease-and-desist orders. If the FTC proceeds in issuing substantive rules, it will find that the 1973 case it invokes, National Petroleum Refiners, is a pile of sand.” 

###

We can be reached for comment at media@techfreedom.org. Read our comments on the FTC’s lack of authority to make binding rules on the FTC’s lack of authority, non-competes, and exclusivity. Share Berin’s Twitter thread on the limitations of FTC authority. Read our related work, including:

About TechFreedom:

TechFreedom is a non-profit, non-partisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

</>