The FTC did not put them out for public comment beforehand, but it drew plenty of reaction after the fact to its highly anticipated new guidance on its use of authority to take action against of unfair methods of competition, including from the Republican chair of the House Judiciary Committee, Charles Grassley, who had urged the FTC to issue the guidance.
“Today’s announcement is a welcome development and a step forward for business owners who want to abide by the law," said Grasskey. "It's hard for businesses to comply with Section 5 if it isn't clear what constitutes a violation of the law. Although I wish the commission had allowed for public comment, I appreciate the FTC taking the concerns of Congress into consideration as they wrote this new guidance. We’ll continue to monitor the FTC’s enforcement of Section 5 to ensure that the commission is exercising its authority in an appropriate and consistent manner."
Less sanguine about the guidance was the U.S. Chamber of Commerce. Chamber executive director Sean Heather echoed the concerns of FTC Commissioner Maureeh Ohlhausen, who dissented from the guidance as too vague and open ended.
“While the FTC has recognized that it’s no longer feasible to suggest it has authority under Section 5 beyond the traditional antitrust laws without providing guidance as to how it views that authority’s limits, this guidance is disappointing as it fails to establish an objective standard that closes the door to varying interpretations," said Heather.
McDermott Will & Emery antitrust partner Joel Chefitz, welcomed the guidance. “The FTC’s Statement, by importing the rule of reason test from the Sherman Act and the public policy of promoting consumer welfare, reassures counselors and their clients by adhering to familiar antitrust principles," he said.
“Today’s decision statement is a victory for the rule of law, sound economics, and regulatory humility,” said TechFreedom President Berin Szoka in a statement. But he agreed with Ohlhausen that the FTC should have put sought input on the guidelines. "Commissioner Ohlhausen is certainly right about process: the Commission should have sought public comment on a draft proposal before voting on it,” he said.
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