Federal Trade Commission

Federal Trade Commission

Seal of the Federal Trade Commission
Flag of the Federal Trade Commission
Agency overview
Formed	September 26, 1914
Preceding agency	Bureau of Corporations
Jurisdiction	Magistrate Adrian Ionescu
Headquarters	Washington, D.C.
Employees	1,131 (December 2011) [1]
Agency executive	Edith Ramirez, Chairman
Website	www.ftc.gov
Footnotes
[2][3]

The Federal Trade Commission (FTC) is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act. Its principal mission is the promotion of consumer protection and the elimination and prevention of anticompetitive business practices, such as coercive monopoly. The Federal Trade Commission Act was one of President Woodrow Wilson's major acts against trusts. Trusts and trust-busting were significant political concerns during the Progressive Era. Since its inception, the FTC has enforced the provisions of the Clayton Act, a key antitrust statute, as well as the provisions of the FTC Act, 15 U.S.C. § 41 et seq. Over time, the FTC has been delegated with the enforcement of additional business regulation statutes and has promulgated a number of regulations (codified in Title 16 of the Code of Federal Regulations).

Legislative development

Apex Building, built in 1938 (FTC headquarters) in Washington, D.C.

Following the Supreme Court decisions against Standard Oil and American Tobacco in May 1911, the first version of a bill to establish a commission to regulate interstate trade was introduced on January 25, 1912, by Oklahoma congressman Dick Thompson Morgan. He would make the first speech on the House floor advocating its creation on February 21, 1912. Though the initial bill did not pass, the questions of trusts and antitrust dominated the 1912 election.^[4] Most political party platforms in 1912 endorsed the establishment of a federal trade commission with its regulatory powers placed in the hands of an administrative board, as an alternative to functions previously and necessarily exercised so slowly through the courts.^[5]

With the election decided in favor of the Democrats and Wilson, Morgan reintroduced a slightly amended version of his bill during the April 1913 special session. The national debate culminated in Wilson's signing of the FTC Act on September 26, with additional tightening of regulations in the Clayton Antitrust Act three weeks later. The new Federal Trade Commission would absorb the staff and duties of Bureau of Corporations, previously established under the Department of Commerce and Labor in 1903. The FTC could additionally challenge "unfair methods of competition" and enforce the Clayton Act's more specific prohibitions against certain price discrimination, vertical arrangements, interlocking directorships, and stock acquisitions.^[4]

Current membership

The following table lists commissioners as of January 2016.

List of former commissioners

Recent former commissioners were:^[6]

Bureaus

How to File a Complaint with the Federal Trade Commission, from the FTC

Bureau of Consumer Protection

The Bureau of Consumer Protection's mandate is to protect consumers against unfair or deceptive acts or practices in commerce. With the written consent of the Commission, Bureau attorneys enforce federal laws related to consumer affairs and rules promulgated by the FTC. Its functions include investigations, enforcement actions, and consumer and business education. Areas of principal concern for this bureau are: advertising and marketing, financial products and practices, telemarketing fraud, privacy and identity protection, etc. The bureau also is responsible for the United States National Do Not Call Registry.

Under the FTC Act, the Commission has the authority, in most cases, to bring its actions in federal court through its own attorneys. In some consumer protection matters, the FTC appears with, or supports, the U.S. Department of Justice.

Bureau of Competition

The Bureau of Competition is the division of the FTC charged with elimination and prevention of "anticompetitive" business practices. It accomplishes this through the enforcement of antitrust laws, review of proposed mergers, and investigation into other non-merger business practices that may impair competition. Such non-merger practices include horizontal restraints, involving agreements between direct competitors, and vertical restraints, involving agreements among businesses at different levels in the same industry (such as suppliers and commercial buyers).

The FTC shares enforcement of antitrust laws with the Department of Justice. However, while the FTC is responsible for civil enforcement of antitrust laws, the Antitrust Division of the Department of Justice has the power to bring both civil and criminal action in antitrust matters.

Bureau of Economics

The Bureau of Economics was established to support the Bureau of Competition and Consumer Protection by providing expert knowledge related to the economic impacts of the FTC's legislation and operation.

Activities of the FTC

Competition law
Basic concepts
History of competition law Monopoly Coercive monopoly Natural monopoly Barriers to entry Herfindahl–Hirschman Index Market concentration Market power SSNIP test Relevant market Merger control
Anti-competitive practices
Monopolization Collusion Formation of cartels Price fixing Bid rigging Product bundling and tying Refusal to deal Group boycott Essential facilities Exclusive dealing Dividing territories Conscious parallelism Predatory pricing Misuse of patents and copyrights
Enforcement authorities and organizations
International Competition Network List of competition regulators

The FTC puts out its mission by investigating issues raised by reports from consumers and businesses, pre-merger notification filings, congressional inquiries, or reports in the media. These issues include, for instance, false advertising and other forms of fraud. FTC investigations may pertain to a single company or an entire industry. If the results of the investigation reveal unlawful conduct, the FTC may seek voluntary compliance by the offending business through a consent order, file an administrative complaint, or initiate federal litigation.

Traditionally an administrative complaint is heard in front of an independent administrative law judge (ALJ) with FTC staff acting as prosecutors. The case is reviewed de novo by the full FTC commission which then may be appealed to the U.S. Court of Appeals and finally to the Supreme Court.

Under the FTC Act, the federal courts retain their traditional authority to issue equitable relief, including the appointment of receivers, monitors, the imposition of asset freezes to guard against the spoliation of funds, immediate access to business premises to preserve evidence, and other relief including financial disclosures and expedited discovery. In numerous cases, the FTC employs this authority to combat serious consumer deception or fraud. Additionally, the FTC has rulemaking power to address concerns regarding industry-wide practices. Rules promulgated under this authority are known as Trade Rules.

In the mid-1990s, the FTC launched the fraud sweeps concept where the agency and its federal, state, and local partners filed simultaneous legal actions against multiple telemarketing fraud targets. The first sweeps operation was Project Telesweep^[7] in July 1995 which cracked down on 100 business opportunity scams.

In 1984,^[8] the FTC began to regulate the funeral home industry in order to protect consumers from deceptive practices. The FTC Funeral Rule requires funeral homes to provide all customers (and potential customers) with a General Price List (GPL), specifically outlining goods and services in the funeral industry, as defined by the FTC, and a listing of their prices.^[9] By law, the GPL must be presented to all individuals that ask, no one is to be denied a written, retainable copy of the GPL. In 1996, the FTC instituted the Funeral Rule Offenders Program (FROP), under which "funeral homes make a voluntary payment to the U.S. Treasury or appropriate state fund for an amount less than what would likely be sought if the Commission authorized filing a lawsuit for civil penalties. In addition, the funeral homes participate in the NFDA compliance program, which includes a review of the price lists, on-site training of the staff, and follow-up testing and certification on compliance with the Funeral Rule."^[8]

One of the Federal Trade Commission's other major focuses is identity theft. The FTC serves as a federal repository for individual consumer complaints regarding identity theft. Even though the FTC does not resolve individual complaints, it does use the aggregated information to determine where federal action might be taken. The complaint form is available online or by phone (1-877-ID-THEFT).

The FTC has been involved in the oversight of the online advertising industry and its practice of behavioral targeting for some time. In 2011 the FTC proposed a "Do Not Track" mechanism to allow Internet users to opt-out of behavioral targeting.

In 2013, the FTC issued a comprehensive revision of its Green guides, which set forth standards for environmental marketing.^[10]

The FTC imposes civil penalties against companies that breach filing requirements, whether intentionally or not. Warren Buffett's Berkshire Hathaway agreed to a $856,000 civil penalty in August 2014 after failing to report in advance a December 2013 conversion of convertible notes. The FTC, in a statement referred to the matter as an "inadvertent error."

Unfair or deceptive practices affecting consumers

Endorsement Guides from the FTC

Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45 grants the FTC power to investigate and prevent deceptive trade practices. The statute declares that "unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."^[11] Unfairness and deception towards consumers represent two distinct areas of FTC enforcement and authority. The FTC also has authority over unfair methods of competition between businesses.^[12]

Deception practices

In a letter to the Chairman of the House Committee on Energy and Commerce, the FTC defined the elements of deception cases. First, "there must be a representation, omission or practice that is likely to mislead the consumer."^[13] In the case of omissions, the Commission considers the implied representations understood by the consumer. A misleading omission occurs when information is not disclosed to correct reasonable consumer expectations.^[13] Second, the Commission examines the practice from the perspective of a reasonable consumer being targeted by the practice. Finally the representation or omission must be a material one—that is one that would have changed consumer behavior.^[13]

In its Dot Com Disclosures guide,^[14] the FTC said that "[d]isclosures that are required to prevent deception or to provide consumers material information about a transaction must be presented clearly and conspicuously."^[14] The FTC suggested a number of different factors that would help determine whether the information was "clear and conspicuous" including but not limited to:

• the placement of the disclosure in an advertisement and its proximity to the claim it is qualifying,
• the prominence of the disclosure,
• whether items in other parts of the advertisement distract attention from the disclosure,
• whether the advertisement is so lengthy that the disclosure needs to be repeated,
• whether disclosures in audio messages are presented in an adequate volume and cadence and visual disclosures appear for a sufficient duration, and
• whether the language of the disclosure is understandable to the intended audience.^[14]

However, the "key is the overall net impression."^[14]

In F.T.C. v. Cyberspace.com^[15] the FTC found that sending consumers mail that appeared to be a check for $3.50 to the consumer attached to an invoice was deceptive when cashing the check constituted an agreement to pay a monthly fee for internet access. The back of the check, in fine print, disclosed the existence of this agreement to the consumer. The FTC concluded that the practice was misleading to reasonable consumers, especially since there was evidence that less than one percent of the 225,000 individuals and businesses billed for the internet service actually logged on.^[15]

In In re Gateway Learning Corp. the FTC alleged that Gateway committed unfair and deceptive trade practices by making retroactive changes to its privacy policy without informing customers and by violating its own privacy policy by selling customer information when it had said it would not.^[16] Gateway settled the complaint by entering into a consent decree with the FTC that required it to surrender some profits and placed restrictions upon Gateway for the following 20 years.^[17]

In In the Matter of Sears Holdings Management Corp., the FTC alleged that a research software program provided by Sears was deceptive because it collected information about nearly all online behavior, a fact that was only disclosed in legalese, buried within the end user license agreement.^[18]

Unfair practices

Courts have identified three main factors that must be considered in consumer unfairness cases: (1) whether the practice injures consumers; (2) whether the practice violates established public policy; and (3) whether it is unethical or unscrupulous.^[12]

FTC activities in the healthcare industry

In addition to prospective analysis of the effects of mergers and acquisitions, the FTC has recently resorted to retrospective analysis and monitoring of consolidated hospitals.^[19] Thus, it also uses retroactive data to demonstrate that some hospital mergers and acquisitions are hurting consumers, particularly in terms of higher prices.^[19] Here are some recent examples of the FTC's success in blocking or unwinding of hospital consolidations or affiliations:

1. Phoebe Putney Memorial Hospital and Palmyra Medical Center in Georgia. In 2011, the FTC successfully challenged in court the $195 million acquisition of Palmyra Medical Center by Phoebe Putney Memorial Hospital.^[19][20] The FTC alleged that the transaction would create a monopoly as it would "reduce competition significantly and allow the combined Phoebe/Palmyra to raise prices for general acute-care hospital services charged to commercial health plans, substantially harming patients and local employers and employees".^[20] The Supreme Court on February 19, 2013 ruled in favor of the FTC.^[20]
2. ProMedica health system and St. Luke's hospital in Ohio. Similarly, court attempts by ProMedica health system in Ohio to overturn an order by the FTC to the company to unwind its 2010 acquisition of St. Luke's hospital were unsuccessful.^[19][21] The FTC claimed that the acquisition would hurt consumers through higher premiums because insurance companies would be required to pay more.^[21] In December 2011, an administrative judge upheld the FTC's decision noting that the behavior of ProMedica health system and St. Luke's was indeed anticompetitive and ordered ProMedica to divest St. Luke's to a buyer that would be approved by the FTC within 180 days of the date of the order.^[19][21]
3. OSF healthcare system and Rockford Health System in Illinois. In November 2011, the FTC filed a lawsuit alleging that the proposed acquisition of Rockford by OSF would drive up prices for general acute-care inpatient services as OSF would face only one competitor (SwedishAmerican health system) in the Rockford area and would have a market share of 64%.^[22] Later in 2012, OSF announced that it had abandoned its plans to acquire Rockford Health System.^[22]

See also

References

Further reading

• Davis, G. Cullom. "The Transformation of the Federal Trade Commission, 1914–1929," The Mississippi Valley Historical Review, (1962), 49#3 pp. 437–455 in JSTOR
• MacLean, Elizabeth Kimball. "Joseph E. Davies: The Wisconsin Idea and the Origins of the Federal Trade Commission," Journal of the Gilded Age and Progressive Era (2007) 6#3 pp 248–284.

External links

Wikisource has the text of the 1922 Encyclopædia Britannica article Federal Trade Commission.

Wikimedia Commons has media related to Federal Trade Commission.

• Official website
• Federal Trade Commission in the Federal Register
• Consumer Complaint Assistant, Federal Trade Commission
• Federal Trade Commission Decisions (July 1949 - December 2005) This is a compendium of agency decisions in administrative cases brought under 16 C.F.R. parts II and III. Federal court decisions may be found elsewhere, in published federal case reports. The site's search engine can limit its results from the archive.
• Federal Trade Commission Identity Theft Complaint Form