The FTC in the 1980's: An Analysis of the FTC Improvements ACT of 1980
| DOI | 10.1177/0003603X8102600301 |
| Author | Quentin Riegel |
| Date | 01 September 1981 |
| Published date | 01 September 1981 |
| Subject Matter | Article |
The
Antitrust
Bulletin/Fall 1981 449
The FTC in the 1980's: an analysis
of
the FTC Improvements Act
of
1980
BY QUENTIN RIEGEL*
The last 2 years have turned out to be one
of
the roughest periods
ever for the Federal Trade Commission. A variety
of
business and
industry groups that had been subjected to FTC scrutiny on a
number
of
fronts focused their attention on the FTC's Achilles'
heel: its 3-year authorization bill. In a major backlash movement,
Congress was convinced to cut back the FTC's authority over the
funeral industry, advertising to children, product standards and
certification programs, insurance, and the use
of
trademarks that
have become common or "generic." Congress also revised the
FTC's
rulemaking and document handling requirements and
enacted atwo-house legislative veto option to allow Congress to
reject any FTC rule before it goes into effect. On May 28, 1980,
President Carter reluctantly signed the Federal Trade Commis-
sion Improvements Act
of
1980.1
Although many
of
the proposals that were debated during
consideration
of
the Improvements Act could have severely re-
stricted the FTC, the compromises reached in conference actually
only eliminate one proceeding, and allow others to proceed
•Assistant general counsel for international trade and antitrust law,
National Association
of
Manufacturers, Washington, D.C.
IFederal Trade Commission Improvements Act
of
1980,
Pub.
L.
No. 96-252, 94 Stat. 374 (1980) [hereinafter "Improvements Act"].
©1981 by Federal LegalPublications, Inc.
450 The antitrust bulletin
within certain limits.
The
FTC
has warded
off
the
brunt
of
the
attacks
leveled against it over
the
past
few years, learning
to
take
a
more
cautious
approach
in its
programs
in the future. Large
antitrust
cases
are
continuing,
and
two
rulemakings
that
under-
went
severe congressional scrutiny,
the
children's television adver-
tising
and
standards
and
certification proceedings,
are
still
under
consideration.
The
pressure
for
enactment
of
these changes was increased by
a
combination
of
events
that
climaxed simultaneously. In recent
years,
the
FTC
has
moved
from its relatively inactive role as
the
"little
old lady
of
.Pennsylvania Avenue" to
that
of
an
active
and
aggressive
antagonist
in
many
major
sectors
of
the
American
economy.2
The
signing in 1975
of
the
Magnuson-Moss War-
ranty-Federal
Trade Commission Improvement
Act
3-greatly
increased
the
power
of
the
FTC
by granting it
the
authority
to
prescribe industry-wide rules defining
unfair
or deceptive acts or
practices." Previously, its power
had
been limited
to
general
authority
under
section 6(g)
of
the
FTC
Act
to
making
rules
and
regulations
to
carry
out
its purposes,
and
the
new
Magnuson-
Moss
Act
resulted in
the
institution
of
more
than
23 rulemakings
covering entire industries.SSome
court
decisions have upheld
FTC
jurisdiction
over
"unfair"
commercial practices,"
and
rule-
making
in
the
antitrust
area;'
and
the
FTC
also
began
expanding
2See remarks by Commissioner David Clanton to Metal
Cookware Mfrs. Ass'n, summarized in 932
ANTITRUST
&
TRADE
REG.
REP.
(BNA)
A-16
(1979)
[hereinafter "ATRR"].
3Pub. L. No. 93-637, 88 Stat. 2183
(1975)
[hereinafter "Magnu-
son-Moss Act"].
4Id. §202 (adding a new
15
U.S.C. §18(a)(I)(B».
SSee ABA
ANTITRUST
SECTION,
REPORT
CONCERNING
FEDERAL
TRADE
COMMISSION
STRUCTURES,
POWERS
AND
PROCEDURE
at 3 (1980), reprinted
in 951 ATRR Spec. Supp. at 2
(1980)
[hereinafter
ABA
FTC Structures
Report].
6FTC v. Sperry &Hutchinson Co., 405 U.S. 233 (1972).
7National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (D.C.
Cir.
1973),
cert. denied, 415 U.S.
951
(1974).
The
FTC:
451
its reach into conglomerate and "structural" antitrust cases, such
as the breakfast cereal, auto manufacturing, and oil industry
proceedings." According to FTC reports recently released, the
Commission has brought twice as many complaints against very
large companies in recent years than has the Antitrust Division
of
the Department
of
Justice." These and other factors increased the
momentum on Capitol Hill for concerted action against the
FTC.IO
This momentum was manifested in the draft
of
the new FTC
authorization act, which contained alaundry list
of
controversial
proposals. Congress spent a great deal
of
time trying to resolve
numerous internal conflicts. When the FTC's authorization ex-
pired on June 30, 1977, temporary resolutions were adopted.
Pressure on the House and Senate conferees mounted when 1978
slipped by without passage
of
a new authorization bill. A con-
tinuing resolution to fund the FTC through November 15, 1979,
was enacted in September when little progress had been made.
Differences between House- and Senate-passed versions
of
what
was to become the 1980 act had yet to be discussed when another
continuing resolution expired. The chairman
of
the House Ap-
propriations Committee threatened not to renew the
FTC's
con-
tinuing resolution unless the conferees agreed on a compromise.11
8See
ABA
FTC Structures Report, supra note 5, at 4, reprinted in
951 ATRR Spec. Supp. at 2 (1980).
9971 ATRR A-7 (1980). During the period 1977-1979,53010
of
the
cases involved companies with over $1 billion in sales, while only 22%
of
the Justice Department caseload involved such companies. In addi-
tion, only 3%
of
the FTC cases involved companies having sales under
$10 million, while the Justice Department caseload for companies
of
this size totaled 24%. [d.
10 See B. Mulock, "Legislative Vetoes in Selected Regulatory Agen-
cies," at 4-5, reprinted in Studies on the Legislative
Veto
Prepared by the
Congressional Research Service
for
the Subcommittee on Rules
of
the
House
of
the Committee on Rules, U.S. House
of
Representatives, 96th
Cong., 2d Sess. 566-67 (Comm. Print 1980).
II
957 ATRR A-l3, 14 (1980).
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