FTC To Review Merger Enforcement Regime

Analysis-driven process could result in tougher enforcement, says chairman
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The Federal Trade Commission will conduct a series of hearings on antitrust enforcement with an eye toward changing its approach, including toughening up merger enforcement if necessary.

That is according to newly installed FTC chair Joseph Simons, who said in a press conference Wednesday (June 20) announcing the effort that one of the things the agency will be looking at is whether enforcement has been too lax. He said that he had an open mind on that proposition, but that his goal is "vigorous and efficient" enforcement.

Related: Court Decision Raises Issues with FTC Data Security Enforcement

Simons also said the FTC will likely get more involved in broadband mergers now that the FTC has authority over broadband under the FCC's reclassification of ISPs under the Restoring Internet Freedom Order.

One goal of the hearings is to take a retrospective look at transactions and their impact. He pointed to studies of mergers the government didn't challenge that wound up resulting in higher prices to consumers.

One of the topics of conversation will be powerful tech platforms. Simons said he has strong concerns about tech platforms and privacy, and had them even before the Facebook/Cambridge Analytica third-party data sharing issue.

For example, he conceded there were problems with establishing the requisite injury from data breaches, an area where Congress might need to step in, he suggested.

Simons said one thing the FTC might look at in its retrospectives are parties' promises of merger efficiencies and whether those actually happened. He said he is a big fan of economic analysis of deals.

The FTC has released a preliminary list of potential topics for the hearings, including big tech and data security, that the public will get to comment on through Aug. 20. Simons said he wants to hear from the agency's critics.

One of the things the FTC will be looking at is tech platforms, said Simons in a press conference with reporters. The FTC is not out to attack companies because they are big and successful, Simons said, adding that the most likely place to find anti-competitive conduct is where there is market power.

Asked if he thought the antitrust laws had been outstripped by the business models of big edge players, he said he thinks the laws are sufficiently malleable to handle new disruptors, and that is what the hearings are for.

But he said another conclusion from the hearings might be that the existing antitrust laws have a gap that would require legislation to fill. 

Among the possible results of the review could be updates in both the vertical and horizontal merger guidelines, he said. 

Simons said the FTC is pretty aligned with the Department of Justice when it comes to preferring structural remedies for mergers over behavioral remedies.

Related: FTC Chair Says It Has Authority to Oversee ISP Net Neutrality

Among other takeaways from the press conference with the new FTC chair:

  • Simons made clear that under the commission's antitrust authority over broadband, regardless of whether ISPs disclose it, if blocking, throttling or paid prioritization hurts competitors, the agency is authorized and prepared to act.
  • Simons said that with jurisdiction over cable and telco transactions returning to the FTC, it will likely become more involved in those mergers, which have been handled primarily by Justice -- they divide up antitrust reviews.

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