Advocacy Filings

FTC staff submitted a comment, in response to a request by Minnesota state legislators Joe Hoppe and Melissa Hortman, regarding the possible competitive effects of a recently enacted amendments to the Minnesota Government Data Practices Act that would treat the State’s health plan contract terms as presumptively government records that the public can ask to see by making a freedom of information request. According to the staff comment, disclosing the negotiated terms of health plan contracts may offer little benefit to health care consumers but could pose a substantial risk of reducing competition in health care markets. For example, the amendments may lead to the disclosure of competitively sensitive price and cost information that could enable health care providers to see what terms health plans are offering their competitors and to use that information against the plans during negotiations. Such disclosure of price and cost information could also enable competing health care providers to agree in advance on terms that they each will offer to health plans, instead of trying to outbid each other by offering better terms to win the contract. These concerns are heightened in Minnesota’s health care markets, which already see reduced competition because there are fewer competing providers.

FTC staff submitted a comment, in response to a request by Oregon State Senator Chip Shields, expressing concern that a broad antitrust exemption proposed in Oregon Senate Bill 231A for health care collaborations was unnecessary because antitrust law already permits such efforts that benefit consumers. While staff commended the underlying goal of the bill – to study and improve the delivery of primary care services to Oregon health care consumers, and to promote new collaborations among Oregon health care providers, payers, and other industry participants – the letter maintained that the broad purported antitrust exemption was based on misunderstandings about application of the antitrust laws to such endeavors. “FTC staff respectfully suggests that the proposed Bill is likely to lead to increased health care costs and decreased access to health care services for Oregon consumers.”

The FTC and the Department of Justice jointly submitted comments to the United States Patent and Trademark Office (PTO) in response to the PTO’s comprehensive initiative to increase the quality of granted patents. The PTO initiative focuses on excellence in work products, measuring patent quality, and customer service. The comments commend the PTO for its continuing efforts to enhance patent quality, and support efforts to give clearer notice of the boundaries of claimed inventions. “Clearer patent notice can encourage market participants to collaborate, transfer technology, or – in some cases – to design-around patents, thus leading to a more efficient marketplace for intellectual property and the goods and services that practice such rights,” the comments state.

FTC staff submitted a comment, in response to a request from Missouri State Representative Jeanne Kirkton, regarding legislation that would amend Missouri’s Nurse Practice Act to remove some, and impose other, constraints on collaborative practice arrangements between physicians and APRNs. As stated in the comment, FTC staff encourages the legislature to “scrutinize claimed health and safety justifications for its current supervision and collaboration requirements, review carefully whether any claims of potential patient harm are adequately substantiated and well founded, and evaluate whether the collaboration requirements are warranted. . . . If APRNs and other health care professionals are permitted to practice to the extent of their education, training, and abilities, the state could benefit from enhanced competition, including potentially lower costs and greater patient access to care.”

FTC staff submitted a comment to the Federal Communications Commission (FCC) in response to a public notice seeking input on call-blocking. Staff stressed that consumers continue to be barraged by unwanted telemarketing calls, and that a large part of the solution is “call-blocking technology – i.e., a ‘spam filter’ for the phone. The carriers have so far avoided adopting such technology, claiming that the FCC legal framework does not allow phone companies to block calls, even if their customer requests call-blocking. Concluding the comment, the FTC writes that, “An affirmative statement from the FCC that common carriers can offer call-blocking services to their consumers without violating their common carriage obligations would be in the best interest of American consumers.”

FTC staff submitted a comment to CODA, in response to CODA’s request for public comments on the 2014 version of its proposed accreditation standards for dental therapy education programs. The comment urged CODA to finalize and adopt accreditation standards, which likely will benefit consumers. In a previous comment to CODA in December 2013, FTC staff commended CODA’s then-proposed standards as an important first step in encouraging the development of a nationwide dental therapy profession, and recommended revisions to portions of the standards that may have limited competition for dental services. Now that many of those concerns had been addressed, the FTC staff comment urged CODA “to finalize and adopt proposed standards without unnecessary delay, so that the development of this emerging service model can proceed, and consumers can reap the likely benefits of increased competition.”

The FTC staff submitted a reply comment in response to certain comments filed with the New York State Public Service Commission (NY PSC) regarding the proposal to authorize the establishment of entities known as Distributed System Platform (DSP) operators, which would be responsible for balancing electricity supply and demand on local, lower-voltage distribution lines. The FTC staff comment recommended the use of a competitive procurement process to select the entities that will serve as DSP operators. This would allow a variety of bidders to show how they could keep administrative costs low, remove incentives to discriminate against independent distributed energy resources, and provide other benefits to electricity customers. The FTC staff comment also encouraged the NY PSC to use a competitive procurement approach to appoint independent market monitors to evaluate the performance of DSP operators, and suggested ways to improve the performance of the electric distribution system.

FTC staff, in response to a notice requesting public comments, filed a comment urging the TSBDE to reject two proposed rules that would impose new restrictions on the ability of Texas dentists to enter into contracts with non-dentists, such as dental service organizations, for the provision of nonclinical, administrative services. The comment explained that such restrictions may reduce competition, likely resulting in higher prices and reduced access to dental services, especially for underserved populations.

The FTC filed a comment before the Federal Communications Commission (FCC) in response to its inquiry into the status of broadband availability and deployment to all Americans, in which the FCC asked for comment on, among other things, the relevance of privacy and/or data security concerns to consumer adoption of broadband. The comment provided information on the FTC’s enforcement, policy, and education work related to consumer privacy and data security, as applied to residential broadband internet services. The comment highlighted FTC efforts to promote consumer privacy and data security through rigorous enforcement of the FTC Act, the FCRA, the Children’s Online Privacy Protection Act (COPPA), and the obligations of broadband service providers under these laws.