Trump's FTC Picks May Put Mergers, ISPs & Pharma Under Microscope

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WASHINGTON – Last week, President Trump nominated four people to fill seats on the Federal Trade Commission (FTC): Joseph Simons, an antitrust attorney, as chairman; Noah Phillips, chief counsel for Senate Majority Whip John Cornyn (R-TX), for a Republican seat; Delta Air Lines executive Christine Wilson for another GOP slot; and Rohit Chopra, a consumer advocate, for an open Democratic seat.

The nominations give Trump an unusual opportunity: to completely revamp the agency with a clean slate of new members. FTC acting chair Maureen Ohlhausen plans to step down because Trump nominated her to serve as a judge on U.S. Court of Federal Claims. And Democrat Terrell McSweeny appears to be leaving because the White House said Simons is taking her seat.

There’s no word on a fifth nominee to replace McSweeny. If these four nominees are confirmed, the FTC would operate under a 3-1 GOP majority until a replacement is announced.

Issues awaiting the panel include mergers in industries where there are already few players, as well as greater scrutiny of companies like Google, Facebook, and Amazon. Some insiders say that given the Federal Communications Commission’s (FCC) repeal of net neutrality rules, the FTC may play a larger role in policing unfair and deceptive practices by internet service providers. 

U.S. House of Representatives Digital Commerce and Consumer Protection Committee Chairman Bob Latta (R-OH) and FCC Chair Ajit Pai each praised the nominees. “[They] bring us closer to a full complement of leadership at our nation’s top consumer watchdog agency,” Latta said. 

Pai added he’s looking forward to a “productive partnership with them on many important consumer issues, including promoting competition and combating illegal robocalls.”

The vice president of public policy for the Software & Information Industry Association, Mark MacCarthy, lauded the nominees and added that Simons’ expertise and experience “ensure that the FTC will focus on bringing cases to protect consumers from marketplace deception, fraud, and other substantial injuries where there is proof of harm to consumers.”

Legal news website Lexology says the appointments suggest that the antitrust agencies will follow a less-interventionist approach to antitrust enforcement – but recent enforcement, particularly against the AT&T/Time Warner merger, and public statements indicate the agencies may be somewhat more aggressive and may not take such a hands-off stance.

Dee Bansal, an attorney with Cooley LLC, writes that she expects the FTC to put more focus on pharmaceutical companies proposing mergers and acquisitions, as well as conduct by pharmaceutical companies as their drug patents expire. 

The Senate Commerce Committee likely will begin processing the nominees in February. 

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