On Wednesday, July 28, FTC Chair Lina Khan and Commissioners Noah Joshua Phillips, Rohit Chopra, Rebecca K. Slaughter, and Christine S. Wilson testified before the House Committee on Energy & Commerce's Subcommittee on Consumer Protection and Commerce.
The hearing, entitled "Transforming the FTC: Legislation to Modernize Consumer Protection," focused on 16 different proposed bills.In her Oral Statement, Commissioner Wilson focused on three topics: process issues that have arisen at the agency, possible amendments to Section 13(b) of the FTC Act in the wake of a recent Supreme Court decision limiting the Commission's authority thereunder, and the need for a federal data privacy law.
First, Commissioner Wilson argued that, with respect to the recent handling of agency business, "traditions and norms have been jettisoned…. [P]ractitioners, academics, and former enforcers across the political spectrum have expressed concern about the agency's abrupt departure from regular order and … I share these concerns."
As a consequence, she professed "fear that some of the [proposed] bills would give authority to the FTC that ultimately would result in stifled competition and innovation to the detriment of American consumers, U.S. industries, and our economy."
In doing so, she made reference to her:
- Dissenting Statement regarding those actions taken along party lines at the July 1 Open Commission Meeting, including the decision to rescind the 2015 Statement of Enforcement Principles Regarding "Unfair Methods of Competition" Under Section 5 of the FTC Act, and
- Oral Remarks objecting to the majority's rescission of the 1995 Policy Statement Concerning Prior Approval and Prior Notice Provisions in Merger Cases at the July 21 Open Commission Meeting, about which I wrote in a post to the Free State Foundation's blog.
Second, she addressed how Congress might respond to the Supreme Court's holding in AMG Capital Management, LLC v. FTC that Section 13(b) does not permit the FTC to obtain equitable monetary relief in federal district court.
Maintaining that "legitimate concerns of stakeholders can be addressed while also restoring the ability of the FTC to use Section 13(b) to pursue wrongdoers," Commissioner Wilson offered several suggestions to constrain Commission authority, including a statute of limitations.
Third, Commissioner Wilson reiterated her call for federal privacy legislation that preempts state laws like those adopted in California, Virginia, and Colorado: "Businesses need clarity and certainty regarding the rules of the road in this important area…. Even more importantly, consumers need clarity regarding how their data is collected, used, shared, and monetized."
In a July 15 post to the FSF Blog, I reported that Commissioner Wilson, as of June, had "reluctantly come to consider whether we should begin a privacy rulemaking proceeding at the Federal Trade Commission." In light of the process issues noted above, however, she is now "less inclined to support a [Magnuson-Moss rulemaking under Section 18 of the FTC Act] on privacy."
Video of the hearing is available here.