Statement of Commissioner Mozelle W.
The Federal Trade Commission's April 10, 2002 Testimony
Subcommittee on Commerce, Justice, State, The Judiciary, and
The Commission has voted to approve testimony before the Subcommittee on Commerce, Justice, State, The Judiciary, and Related Agencies, House Committee on Appropriations. Although I concur with most of this testimony, I am compelled to dissent from the discussion of the recently executed clearance Agreement between the Assistant Attorney General for Antitrust Charles James and Chairman Timothy Muris. I have previously expressed my concern about the Agreement which, among other things, seeks to allocate to each agency exclusive jurisdiction over certain merger reviews and other antitrust investigations.(1) And I have previously voiced my reservations about the Commission's Senate testimony, which is nearly identical to the House testimony, because I believed that its description of the facts and circumstances supporting the Agreement may be misleading.(2)
Since the time that testimony was provided to the Senate, others have expressed their concern that the Agreement signed by Chairman Muris and AAG James confers de facto jurisdiction over entire economic sectors (such as the media and entertainment sectors) to one agency, and therefore is contrary to the Congressional intent to confer concurrent jurisdiction upon the nation's two antitrust enforcement agencies. I believe that this issue should be publicly discussed together with consideration of the FTC's unique role in antitrust enforcement.
The FTC's role was recognized by a Special American Bar Association Committee, which specifically cited the benefits of having the multi-member Commission involved in antitrust enforcement:
The best example [of multi-member agency decisions] is provided by merger enforcement.... Our system of government traditionally has entrusted many critical legal decisions to multi-member panels (e.g., three-member courts of appeals panels, the nine-member Supreme Court, and multi-member independent agencies). Multiple voices may improve quality and increase public trust. With the critical merger enforcement decision having moved from the courts to the prosecutors, there is virtue in preserving a multi-member prosecuting agency.(3) (Emphasis added)
Independence in decision-making and the incorporation of multiple viewpoints is all the more important for antitrust decisions involving information-related industries, such as those in the media and entertainment sectors, where vigilant antitrust enforcement is instrumental to the maintenance of this free and open marketplace of ideas. Unfortunately, the Muris/James Agreement would exclude the FTC from exercising its antitrust jurisdiction in these sectors.
Eliminating certain economic sectors from the dual agency jurisdiction mandated by Congress - as the Muris/James Agreement does - is also troubling because it ignores the Congressional intent in favor of concurrent antitrust jurisdiction.(4) Such unilateral consolidation could withhold from the American consumer the benefits of having two agencies involved in antitrust policy. Eliminating multiple agency viewpoints and consolidating in a single agency sole jurisdiction over determining the future of evolving markets, such as those markets in the energy, media, entertainment, new economy, and health care sectors, warrants further discussion.
For the reasons I have expressed in this statement, as well as my prior statements, I must respectfully dissent from the clearance portion of the testimony.
2. Statement of Mozelle W. Thompson, Concurring in Part in, and Dissenting in Part From, The Federal Trade Commission's Testimony Before the Senate Commerce, Justice, State, and the Judiciary Subcommittee of the Appropriations Committee March 19, 2002, available at <www.ftc.gov/opa/press2002.htm>.
3. Report of the American Bar Association Section of Antitrust Law Special Committee to Study the Role of the Federal Trade Commission, Vol. 56 Antitrust & Trade Regulation Report No. 1410 (April 7, 1989), at S-34.
4. It is often noted that antitrust law does not seek to achieve perfect market efficiency, but instead seeks to foster a competitive marketplace in order to maximize benefits to consumers. Similarly, claims that the Agreement may improve merger review efficiency may not outweigh the Congressional determination of public interest in concurrent jurisdiction. When Congress wishes to confer exclusive sectoral jurisdiction upon one agency, it has done so expressly. For example, Congress conferred exclusive jurisdiction over matters involving the banking and common carrier sectors to DOJ. FTC Act Section 5 (a)(2), 15 U.S.C. 45.