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From Antitrust Law Daily, July 25, 2017

Acting FTC Chairman Ohlhausen highlights FTC accomplishments in first half of 2017

By Jody Coultas, J.D.

FTC Acting Chairman Maureen K. Ohlhausen released a summary of the FTC’s major accomplishments since being appointed to the position in January. "I have pursued my long-held principles by promoting economic liberty, protecting consumers (including the military community and small business) and competition, reforming regulation, and increasing agency transparency," the Acting Chairman said.

Economic liberty. To address the barriers posed by such regulations, Ohlhausen announced in a speech at the George Mason Law Review’s 20th Annual Antitrust Symposium in Washington, D.C. the creation of an Economic Liberty Task Force to collaborate with state leaders and other stakeholders on occupational licensing reform. As a competition agency, the Task Force will bolster efforts to address occupational licensing restrictions and other barriers to economic opportunities. The Task Force submitted comments on a state bill to reduce licensing requirements; launched a new website; and conducted dozens of interviews with a variety of stakeholders. The Task Force will hold a public roundtable on July 27, 2017. The roundtable, "Streamlining Licensing Across State Lines," will examine ways to mitigate the effects of state-based occupational licensing requirements that make it difficult for license holders to obtain licenses in other states.

Regulatory reform. Acting Chairman Ohlhausen also stated that "[e]xcessive regulation and bureaucracy create significant burdens on the public, while diverting resources from the agency’s core mission to protect consumers and promote competition." To streamline information requests to businesses, while preserving the agency’s ability to conduct thorough investigations, the Bureau of Consumer Protection has announced proposals to minimize or eliminate certain regulations that may no longer be in the public interest. While additional streamlining may be in the offing as the FTC continues its regular, systematic review of all of its rules and guides, the FTC’s latest efforts address its Textile rulesPicture Tube ruleEnergy Labeling rule, and Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) rule.

Small business. Under Acting Chairman Ohlhausen, the FTC launched a new small business website with articles, videos, and other information aimed at helping small business owners avoid scams and protect their computers and networks from cyberattacks and other threats. The site, which includes a new Small Business Computer Security Basics guide, also has information on other cyber threats such as ransomware and phishing schemes. Also, the FTC announced a new "Engage, Connect, and Protect" Initiative, launching a nationwide dialogue on cybersecurity with small businesses.

Security. At Acting Chairman Ohlhausen’s direction, the FTC is publishing lessons from closed investigations, as well as FTC enforcement actions, to help businesses protect and secure consumer data and build on the FTC’s Start with Security guide.

Privacy. In June, the FTC and the National Highway Traffic Safety Administration (NHTSA) hosted a workshop to examine the consumer privacy and security issues posed by automated and connected motor vehicles. The agency also announced the 2018 PrivacyCon, which will expand collaboration among leading privacy and security researchers, academics, industry representatives, consumer advocates, and the government. The 2018 event will focus on the economics of privacy including how to quantify the harms that result from companies’ failure to secure consumer information, and how to balance the costs and benefits of privacy-protective technologies and practices.

Consumer protection enforcement. During Acting Chairman Ohlhausen’s tenure, the FTC filed or settled 44 consumer protection matters in district court, reached 14 administrative consent agreements related to consumer protection, and distributed $86,519,000 in redress to over a million consumers. Also, Acting Chairman Ohlhausen has also expanded the agency’s focus on military consumers. This includes a new website and a series of Military Financial Consumer conferences.

Competition enforcement. The 6-month review highlighted the case against Shire ViroPharma Inc. alleging that Shire ViroPharma Inc. violated antitrust laws by abusing the FDA’s citizen petition process to maintain its monopoly on Vancocin Capsules, a drug used to treat a potentially life-threatening gastrointestinal infection. ViroPharma’s actions allegedly forced consumers and other purchasers to pay hundreds of millions of dollars more for their medication (FTC v. Shire ViroPharma Inc., FTC File No. 121 0062, Case No. 1:17-cv-00131-UNA).

Also, the FTC alleged in a complaint that The Louisiana Real Estate Appraisers Board, a state agency controlled by licensed real estate appraisers, unreasonably restrained price competition for real estate appraisal services provided to appraisal management companies (AMCs) in Louisiana. According to the agency, the challenged conduct is not shielded from antitrust attack by the "state action" defense because independent state officials had not supervised the board’s discretionary actions.

Finally, Acting Chairman Ohlhausen noted that Draft Kings and FanDuel abandoned their planned merger after the FTC, concerned that the proposed combination would reduce competition in the U.S. market for paid daily fantasy sports contests, issued an administrative complaint and filed a complaint in the federal district court in Washington, D.C. to block the transaction pending an administrative trial (In the Matter of Draft Kings, Inc., FTC Dkt. 9375, File No. 161 0174).

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