Ohlhausen Sees Shift to Focus on 'Real' Harms in GOP-Led FTC

Republican FTC Commissioner Maureen Ohlhausen stopped short Monday of confirming speculation that President Donald Trump will appoint her as the commission's acting or permanent chairwoman, as many expect. She laid out her vision during the State of the Net conference for a majority GOP FTC, which she said should shift its focus to investigating “real” instead of “speculative” harms to consumers. Trump is expected to at the least appoint an acting FTC chair when outgoing Chairwoman Edith Ramirez resigns Feb. 10 (see 1701200002). Ramirez's planned resignation will leave the FTC with three vacancies and a 1-1 Democratic-Republican split. Experts say the agency can continue to function effectively under those circumstances (see 1701130030).

Ohlhausen said she hasn't met with Trump but will continue to talk with transition team members about identifying areas the FTC can improve under a Republican majority. Ohlhausen said her experience as a commissioner gave her a “very clear idea” of how the FTC “should be devoting its resources.” Ohlhausen said if Trump names her acting or permanent chairwoman, she will draw from his book Trump: The Art of the Deal and maximize her use of available tools “at my disposal.” Those tools could include directing FTC staff to start looking at regulatory issues through the lens of real harms.

Starting a "dialogue" on shifting the FTC's focus to real harms will be important before the FTC's three commissioner vacancies are filled, as such an action can start the process without requiring a commission vote, Ohlhausen said. A shift to focusing on real harms should include a fuller discussion “about what we consider a substantial injury” within the tech and internet sectors, she said. Such a change could include revisions in case selection and not giving the IT sector mixed signals about whether companies will be targeted for not getting privacy “quite right” during the innovation process, Ohlhausen said.

Ohlhausen said she wouldn't initially move to rescind split decisions on which she dissented as long as the commission lacks a quorum, citing her opposition to two recent decisions that Ramirez and Democratic Commissioner Terrell McSweeny voted to approve. The commission announced a $20 million settlement Thursday with Uber over allegations the company misled prospective drivers about compensation. The FTC also filed a complaint last week against Qualcomm on claims the company had a monopoly in baseband processors used in cellphones and other products (see 1701170065). Ohlhausen said her opposition to the Qualcomm complaint was partly due to concerns that even filing the case “will have a negative impact” on the strength of U.S. IP rights globally. Anything the FTC or other federal agencies do “that is devaluing [IP] right inappropriately” may “actually hurt the U.S. economy and innovation down the road,” she said.

The FTC should continue to strongly pursue its challenge to the 9th U.S. Circuit Court of Appeals' August dismissal of the commission's AT&T data throttling case, Ohlhausen said. The FTC is seeking an en banc 9th Circuit review of the case, which a three-judge panel ruled was outside the commission's jurisdiction because of the common carrier exemption that says the agency can't regulate telecom companies (see 1608290032 and 1611020031). Ohlhausen said she also will continue to press Congress to kill the common-carrier exemption.

Legislation to remove the exemption would be “part of the solution” to prevent a regulatory gap on broadband if the 9th Circuit denies an en banc review, Ohlhausen said. That gap would be more likely to appear if the FCC moves as expected to rescind the 2015 decision to reclassify broadband under Title II of the Communications Act and the recent ISP privacy rules (see 1611090034), she said. It's important for the FTC and FCC to be ready to work together on reworking the boundaries of net neutrality and a possible shift in the privacy rules from broadband companies, Ohlhausen said.