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From Antitrust Law Daily, September 19, 2013

Senate Commerce Committee hears from FTC nominee Terrell McSweeny

By Jeffrey May, J.D.

The U.S. Senate Committee on Commerce, Science, and Transportation held a hearing yesterday on the nomination of Terrell McSweeny to serve as a commissioner at the FTC. Although a number of committee members were absent from the hearing, the nominee faced many questions from those in attendance aimed at gauging her views on the FTC’s role in protecting consumers and competition.

McSweeny was nominated by President Obama on June 24 to fill a vacancy on the five-member Commission. If confirmed, McSweeny would be the third Democrat, breaking the current two-to-two party split. Her term would expire in September 2017. McSweeny has worked in the Department of Justice Antitrust Division as well as at the White House and U.S. Senate.

Kicking off the hearing, Committee Chairman John D. Rockefeller IV (West Virginia) noted his support for the FTC. He called the FTC “one of the most important law enforcement agencies in the United States.”

Referring to efforts by House Transportation and Infrastructure Committee Chairman John Mica (Florida) to relocate the FTC and transfer the agency’s building to the National Gallery of Art, Rockefeller said that the agency had nothing to fear. “The National Gallery of Art wants their building, and they’re not going to get it,” he quipped. Rockefeller added that the FTC has “a well-earned reputation for thorough deliberation, collegiality, and bi-partisanship.”

McSweeny said in her testimony that she hoped “to continue the tradition of collegiality and consensus-oriented decision making that has been a hallmark of the FTC.”

A number of the senators questioned McSweeny on the agency’s role in protecting consumer privacy. The nominee contended that the FTC has had a good recent track record of using its authority to protect consumers’ privacy online.

McSweeny added that she strongly supported meaningful privacy protections for all consumers. She suggested that it was important for the agency to educate consumers on information collection practices.

Senator Rockefeller asked the nominee about her views on industry self-regulation, particularly with regards to privacy and online advertising issues.

McSweeny expressed her hope that “multi-stakeholder processes can continue to inform and guide policy-making in this area.”

McSweeny also discussed the need for offering guidance to business. Noting that the FTC was primarily a law enforcement agency dealing with issues on a case-by-case basis, she said that it was incumbent on agency leaders to clearly articulate their reasoning, to apply the law as written, and to follow the caselaw. She committed to doing just that if confirmed.

When asked about the FTC’s use of consent decrees instead of issuing rules or going to court to litigate, McSweeny appeared satisfied with the agency’s current approach to enforcement. “The FTC is operating the way Congress designed it,” she said.

Senator Maria Cantwell (Washington) urged the nominee to investigate gas price spikes and possible market manipulation in the oil and gas industry. Saying that she understood the pressure of gas prices on families, McSweeny said that rising gas prices was a very important issue that she would be willing to work on if confirmed.

Senator John Thune (South Dakota), ranking member of the committee, asked McSweeny about her views on mobile spectrum holdings. McSweeny helped formulate an Antitrust Division comment to the Federal Communications Commission (FCC). In that comment, the Justice Department urged the FCC to adopt rules ensuring that small nationwide wireless networks have greater access to low-frequency spectrum to spur competition among nationwide carriers on the issue.

Thune asserted that the FCC should allow all parties to participate in auctions “rather than micromanaging” participants. Thune questioned whether McSweeny and other DoJ staff reviewed previous spectrum auctions and found “positive correlation between auction participation and greater bidding restrictions in past spectrum auctions.”

The Antitrust Division’s comment was focused mainly on competition issues, according to McSweeny. While noting that she believed that spectrum was “a key input in the wireless space,” she explained that the filing was intended to encourage the FTC to think about competition issues in designing its mobile spectrum holdings rule.

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