FTC Looks for Ways to Streamline Competition Probes

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By Alexei Alexis

The Federal Trade Commission is looking at streamlining its competition probes by cutting back on unnecessary information collection and analysis for straightforward violations.

The review is part of an FTC-wide initiative aimed at making sure the agency isn’t burdening companies with excessive procedures.

The effort is in its early stages, but a key goal inside the competition division is to spend less time on alleged conduct that is anticompetitive on its face. Those cases don’t need an an elaborate inquiry into likely market effects, according to Tad Lipsky, the FTC’s acting competition bureau director.

“In such a case it might not be necessary to collect and analyze all the information that would be required for a full rule-of-reason analysis of the conduct,” Lipsky told Bloomberg BNA in an email.

Some actions, such as price-fixing, are considered illegal per se, which means they don’t need a deep dive into economic impacts to be deemed violations. Other behaviors, such as monopolization, must be analyzed under the “rule-of-reason” doctrine, which can require extensive analysis of the impacts on the market.

FTC Moving ‘Aggressively’

The FTC announced in April that it would move “aggressively” to implement directives from President Donald Trump to eliminate unnecessary regulations and processes across the government.

Both the FTC’s competition and consumer protection rules and enforcement procedures are under review. The FTC’s competition division has formed a working group that will consider how to streamline information demands in investigations, according to Lipsky.

He said there is currently no timeline on the group’s recommendations, however, since it’s “just getting started.”

House Republicans last year proposed extensive FTC changes, including placing an eight-year cap on agency consent orders and automatically terminating investigations that are inactive for six months. But that effort gained little traction and was ultimately abandoned after it was approved by the House Energy and Commerce Committee.

This year, Rep. Bob Latta (R-Ohio), chairman of the committee’s Digital Commerce and Consumer Protection subcommittee, praised FTC Acting Chairman Maureen Ohlhausen’s initiative. “We look forward to continuing our work with her into the future and seeing additional reforms transpire that will support consumers and promote business,” Latta said in an emailed statement for Bloomberg BNA.

Ohlhausen Priority

Streamlining is a high priority for Ohlhausen, who has been running the agency in an acting capacity since late January. Trump hasn’t yet announced a long-term appointment to head the agency, but Ohlhausen is widely viewed as a strong candidate. In the meantime, she is actively promoting her vision of moving the FTC toward “regulatory humility.”

Early in his administration, Trump signed two executive orders on regulatory reform—one requiring federal agencies to rescind two old regulations before promulgating one new one and another creating in each agency a regulatory reform officer responsible for identifying outdated, unnecessary, or ineffective regulations. The FTC is an independent agency and thus not directly subject to the orders, but Ohlhausen has said she supports the president’s desire to “eliminate unnecessary and burdensome regulatory requirements that hurt our economy.”

When it comes to competition probes, the agency is taking a hard look at whether it’s imposing excessive costs on the private sector or wasting internal resources, Ohlhausen said in March 3 speech. The agency has a sophisticated and rigorous process for handling large mergers and cutting-edge monopoly cases, but not all matters in the competition docket are so complex.

“As an agency, it is up to us to thoughtfully weigh the burden on the parties and the need to appropriately ground our enforcement decisions,” she said.

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

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