Facebook has asked new FTC chair Lina Khan to recuse herself from any decision on how to prosectue the commission's antitrust case against the social media giant because she has prejudged the issue before joining the commission.
According to a copy of the petition, filed this week, Facebook is arguing that "when a new Commissioner has already drawn factual and legal conclusions and deemed the target a lawbreaker, due process requires that individual to recuse herself from related matters when acting in the capacity of an FTC Commissioner.
"Under controlling D.C. Circuit precedent, that appearance of prejudgment requires her immediate recusal from any involvement in the antitrust litigation against Facebook," the company told the commission.
Khan has argued that Big Tech bought itself up to monopoly by aquiring potential competitors--she used Facebook's purchases of WhatsApp and Instagram--before they were big enough to raise antitrust red flags, suggesting antitrust reviews need to take that into account. It is a theory that has gained currency with the Biden Administration and many in Congress.
Khan is a veteran critic of concentration and anticompetitive market power and was the lead counsel on a House Antitrust investigation into Google, Facebook, Amazon and Apple that concluded that those companies had captured control of key distribution channels and function as internet gatekeepers, including by buying up potential competitors.
Facebook made that point, as well as that she was also legal director for the Open Markets Institute, which lobbies on the dangers of monopoly.
In its petition, Facebook says precedent and ethics rules "compel" Khan to to recuse herself given that she has "consistently made public statements not only accusing Facebook of conduct that merits disapproval but specifically expressing her belief that the conduct meets the elements of an antitrust offense under Section 2 of the Sherman Act."
Facebook has said her assertions about the company are "unsupported and contrary to law."
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.