FTC's Ongoing Commitment to Regulating Big Tech

The Federal Trade Commission (FTC) is navigating significant challenges in its regulatory efforts against major technology companies. A recent liability opinion by Judge James Boasberg has raised concerns regarding the inclusion of "short-form video" products from platforms like YouTube and TikTok as mitigating factors in Meta's antitrust liability. This ruling suggests that large monopolies could evade accountability by demonstrating competition in unrelated markets, prompting calls for an appeal from the FTC.

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The FTC has demonstrated a proactive stance in addressing consumer protection and competitive practices within the tech industry. Notably, the agency secured a $2.5 billion settlement from Amazon for enrolling consumers in its Prime service without consent and complicating cancellation processes. Additionally, the FTC has initiated investigations into the effects of AI chatbot companions on children and scrutinized censorship practices by major tech firms.

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The resignation of Commissioner Christine Holyoak has sparked debate about the FTC's functionality with only two commissioners, Andrew Ferguson and Mark Meador. However, legal interpretations suggest that a quorum can be achieved with a majority of participating members, potentially allowing the agency to continue its work effectively. Historical precedents, such as a 2-0 vote during the Obama administration against deceptive marketing practices, support this view.

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Julia Solomon Ensor, a former FTC staffer, expressed confidence that the leadership change would not hinder the agency's momentum. She noted that the operational dynamics of the FTC have historically allowed it to function effectively even with a reduced number of commissioners. This sentiment is echoed by former Commissioner Maureen Ohlhausen, who highlighted her own experience of successfully managing the agency with two commissioners who shared aligned views.

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The FTC remains committed to its mandate, as evidenced by recent actions including a consent decree against NextMed for deceptive advertising and a complaint against Illuminate Education regarding data security failures. The agency's ability to pursue these cases underscores its dedication to consumer protection and competitive integrity in the marketplace.

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The FTC has reiterated its commitment to enforcing consumer protection laws and addressing competitive harms. The agency's actions, including the potential appeal of the Meta decision, reflect its ongoing efforts to safeguard American consumers and maintain fair competition in the tech sector.

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Despite the FTC's proactive measures, some critics question the practicality of operating with only two commissioners. Concerns have been raised about the potential limitations this may impose on the agency's effectiveness in addressing complex regulatory challenges.

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• “[t]he change in leadership is unlikely to slow the agency down.” — Julia Solomon Ensor, Former FTC Staffer

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• “To be sure, there is nothing in the statute or FTC precedent that lends to any of these actions being unlawful or impacting the agency’s fervor in enforcing the law.” — Joel Thayer, President of Digital Progress Institute

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• “We need a strong FTC to continue fighting for the American consumer.” — Joel Thayer, President of Digital Progress Institute

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The FTC's ongoing investigations and regulatory actions highlight its critical role in overseeing the rapidly evolving landscape of Big Tech, ensuring that consumer interests are prioritized amidst complex legal challenges.

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