Policy

FTC's Ohlhausen: Agency Should Focus on Real Harms

Commissioner cites Trump's 'Art of the Deal' advice about options, leverage 1/23/2017 11:22 AM Eastern
Maureen Ohlhausen

Republican Federal Trade Commission member Maureen Ohlhausen, who is reportedly President Donald Trump's choice as interim FTC chair, said Monday (Jan. 23) she has not met with him, but that she believes the FTC should focus its energies on real harms rather than speculative harms.

 

She also said she has taken a page out of Trump's Art of the Deal for how to proceed.

 

Ohlhausen, speaking at the State of the Net annual conference in Washington,did not confirm her status as acting chair. When current FTC chair Edith Ramirez leaves Feb. 10, only two commissioners will remain at the agency, Ohlausen and Democrat Terrell McSweeny.

 

Ohlhausen said part of focusing on real harms is through case selection, and partly by not sending the wrong signals to the market about companies that don't get it "quite right" when trying to innovate.

 

If you make a privacy promise, keep it, and take "reasonable steps" to protect privacy, she said.

 

Ohlhausen said that if she is going to be acting chair or chair, she has some tools in her toolkit, citing Trump's book: Maximize your options and use your leverage.

 

One option she said was to start a dialogue about what actually constitutes substantial harm. Asked by moderator Alex Byers of Politico (which reported she would be acting chair) whether she would be able to roll back decisions she disagreed with, she said not initially, pointing to the lack of a quorum with only two commissioners.

 

Trump has met with former Republican Commissioner Joshua Wright, who could named a permanent chair or added back to the commission to give the Republicans the majority they need. Trump will ultimately need to name two more Republicans and one more Democrat to bring the FTC to its full complement of five commissioners.

 

The FTC has challenged a decision by the Ninth Circuit Court of Appeals that the regulatory exemption that prevents the FTC from regulating common carriers is "status"-based and is not confined only to common-carrier "activity" by an entity that has the status of a common carrier.

 

That means the FTC could not pursue a company for allegedly failing to inform its customers adequately that their unlimited plans would be throttled once their data usage reached a certain threshold. But it also means the FTC could not pursue a common carrier that tried to sell dietary supplements -- something the FTC pays a lot of attention to.

 

She said she would continue to press the court challenge started by her Democratic predecessor. She also said Congress should consider getting rid of the common-carrier exemption and giving the FTC authority over common carriers. She said that could be "part of the solution to the Open Internet order and network neutrality."

 

She said it was important for the FTC and FCC to be ready to work together on redrawing the lines on network neutrality and whether a different privacy regime for broadband companies and edge providers "continues to make sense."

 

Ohlhausen is a big defender of intellectual property. She said she is about to publish a paper that expresses her concern that "anything we are doing that is devaluating intellectual property rights inappropriately...will actually hurt the U.S economy and innovation down the road," which she said was the basis of her concern with the FTC's Qualcomm decision, from which she dissented.

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