Antitrust in the next decade—a role for the Federal Trade Commission?

Published date01 June 1986
Date01 June 1986
DOIhttp://doi.org/10.1177/0003603X8603100210
Subject MatterArticle
The Antitrust Bulletin/Summer 1986
Antitrust in the next decade-s-a role
for the Federal Trade Commission?
BY CASWELL O. HOBBS·
I. Introduction: the origins of the Federal Trade
Commission
451
In 1914, Congress affirmed its commitment to the vigorous and
far-reaching enforcement
of
the antitrust laws with the creation
of the Federal Trade Commission as an independent administra-
tive agency with enforcement responsibility for the novel and
expansive provisions of the Federal Trade Commission Act.' The
Commission-which today has grown to several hundred law-
yers, economists, and supporting
staff-is
headed by five com-
missioners, each appointed by the president and confirmed by the
Senate. The chairman of the Federal Trade Commission, who
serves as such at the pleasure of the president, is the executive and
administrative head of the
agency.
To achieve some measure of
political balance and independence, the commissioners serve for
staggered seven-year terms, and no more than three commis-
sioners may be of the same political party.
Member of the District of Columbia Bar and Partner in the
Washington, D.C., office of Morgan, Lewis &Bockius. Mr. Hobbs held
numerous positions at the FTC from
1967
to 1973, including Assistant
to the Chairman and Director of the Office of Policy Planning and
Evaluation.
Act of Sept. 26, 1914,38 Stat. 717 (1914) (codified as amended at
15 U.S.C. §§ 41-64).
© 1986by Federal Legal Publications, Inc.
452 The antitrust bulletin
In one
of
its most expansive delegations
of
legal authority,
Congress empowered the Federal Trade Commission to identify,
investigate, and prosecute "unfair methods of competition . . .
and unfair or deceptive practices or acts in or affecting com-
merce.": This statutory mandate created two substantive areas
of
focus for FTC activities:
1.
Antitrust-the
prohibition
of
"unfair methods
of
competition"
which adversely affect competitive relationships; and
2. Consumer
protection-the
protection
of
consumers from "unfair
or deceptive" advertising or marketing practices.
Although the Federal Trade Commission shares jurisdiction with
the Antitrust Division
of
the Department
of
Justice over the civil
enforcement
of
the antitrust laws,' to avoid a duplication
of
effort the agencies have entered into a formal liaison procedure
whereby each notifies and discusses with the other any proposed
investigation and an understanding is thereafter reached as to
which will handle the matter.
The Federal Trade Commission Act was intentionally an open-
ended legislative enactment designed to complement the detailed
proscriptions
of
the Clayton Act. Congress envisioned
that
the
"unfair methods
of
competition" provision of section 5 of the
FTC Act would serve as a broad and adaptable standard which
would permit the Commission to cope with evolving business and
economic conditions. In many holdings, and often in very expan-
sive dicta, the federal courts have confirmed that the FTC
possesses antitrust authority which extends beyond the Sherman
and Clayton Acts, and which supplements and bolsters those
statutes.'
215 U.S.C. §45(a)(1).
3See 15 U.S.C. §21; FTC v. Cement Institute, 333 U.S. 683
(1948). Section 11
of
the Clayton Act gives the Commission concurrent
authority with the Justice Department and private plaintiffs to enforce
§§ 2, 3, 7, and 8
of
that
act. 15 U.S.C. §§ 13, 14, 18, 19. See generally
VAKERICS,
ANTITRUST
BASICS
§§ 2.01-2.03 (1985).
4See, e.g.,
FTC
v. Motion Picture Advertising
Servo
Co.,
344 U.S.
392 (1953)
("It
is also clear that the Federal Trade Commission Act was

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