Consumer Protection & Competition Regulation in a High Tech World: Discussing the Future of the Federal Trade Commission
In 1914, Congress gave the FTC sweeping jurisdiction and broad powers to enforce flexible rules, to ensure that it would have the ability to serve as the regulator of trade and business that Congress intended it be. Much, perhaps even the great majority, of what the FTC does is uncontroversial and is widely supported, even by critics of the regulatory state. However, both Congress and the courts have expressed concern about how the FTC has used its considerable discretion in some areas, particularly in its evolving interpretation of “unfairness.” Now, as the FTC approaches its 100th anniversary, the FTC, courts and Congress face a series of decisions about how to apply or constrain that discretion. These questions will become especially pressing as the FTC uses is its authority in new ways, expands its authority into new areas, or gains new authority from Congress.
The purpose of this report is not to lambaste the agency, but rather to ask whether more should be done to improve how the agency exercises its discretion, and, if so, how to do so without hamstringing the agency. Indeed, improving the well-considered constraints on the FTC’s use of its discretion may make the Commission more, not less, effective by bringing about clearer, more consistent guidance, in turn increasing the FTC’s credibility and achieving greater compliance. Ultimately, the measure of the FTC’s success should not be how “active” it is, how far it extends its jurisdiction or how far it pushes the boundaries of its discretion, but rather how well it achieves its overarching purpose of maximizing consumer welfare.