FTC Commissioner Rohit Chopra Weighs in on Competition and Consumer Protection in the 21st Century

Our upcoming hearings provide an important opportunity for the Federal Trade Commission to reflect on ways to increase the effectiveness of our enforcement of the antitrust laws. This is especially important as these hearings come against the backdrop of concerns about increasing concentration and declining competition across sectors of the US economy. As the FTC engages in this period of introspection into how the agency advances its competition policy and enforcement goals, a key aim of this exercise should be to examine our full set of tools and authorities – not only those that we have traditionally relied upon. We should approach this inquiry with three goals in mind:

1. Reduce ambiguity around what the law is, enhancing predictability;
2. Reduce the burdens of litigation and enforcement, enhancing efficiency; and
3. Reduce opacity and certain undemocratic features of the current approach, enhancing transparency and participation.

I urge interested parties to explore whether and how rulemaking might lead to antitrust policy that is more predictable, efficient, and participatory. There are several areas where further commentary would be particularly useful:

1. The FTC Act specifically exempts certain entities from Section 5, and Congress has delegated the authority to prohibit unfair practices to other agencies, including the Department of Agriculture and the Department of Transportation. These authorities were modeled after the FTC Act. Are there examples of competition rules promulgated by other agencies that have led to noteworthy results?
2. Are there other examples at the federal or state level where agencies have sought to develop competition laws or standards through rulemaking? What factors have defined whether these rules were successful at promoting competition?
3. What data exist to capture the amount of time that the antitrust law governing particular conduct has been unclear due to diverging views among courts?
4. How might FTC studies and rulemaking reduce the reliance on high-cost paid experts required for litigation?
5. What are potential topics for rulemaking that might specifically help to reduce the length and burden of antitrust litigation?
6. How would FTC rulemaking impact enforcement actions brought under state “little FTC Acts”?