The state of antitrust and consumer protection law and enforcement, and their development, since the Pitofsky hearings #FTC-2018-0048-D-0049

Submission Number:
FTC-2018-0048-D-0049
Commenter:
Reza Rajabiun
State:
Outside the United States
Initiative Name:
The state of antitrust and consumer protection law and enforcement, and their development, since the Pitofsky hearings
August 20, 2018 Project Number: P181201 Docket ID: FTC-2018-0048 Dear Chairman Simons and Commissioners, I welcome the opportunity to submit these comments regarding Federal Trade Commissions (FTC) deliberations about competition and consumer protection in the 21st century. My comments are informed by my academic research on the development of competition law in the United States and internationally. I am submitting these comments as an individual, not as a representative of any organization. My submission consists of two articles that have been previously published in peer reviewed scholarly journals: the first on the evolution of legal constraints against anticompetitive practices in the U.S. during the 20th century and the second on the role of competition law in the formative days of the emergence of the market economy in Poland in the 1990s. I believe the two articles can help stimulate thoughtful internal and external evaluation of the FTCs near- and long-term law enforcement and policy agenda. In particular, the U.S. antitrust history article might be relevant as the Commission contemplates Topic 1(a) regarding the viability of the consumer welfare standard and aligns its functions with its growing responsibilities in the 21st century. The article on Poland is provided with the objective of reminding the Commission of the positive advisory role and advocacy efforts by U.S. antitrust experts (including FTC, DOJ, and independent practitioners) internationally (Topic 1(e)). Attachment 1: Rajabiun, Reza. "Private Enforcement and Judicial Discretion in the Evolution of Antitrust in the United States." Journal of Competition Law and Economics 8, no. 1 (2012): 187-230. This article analyzes a wide range of data on administrative resources, public and private actions, and judicial outcomes to characterize the long term evolution of the U.S. antitrust system in the 20th century. It includes some data that go beyond the Pitofsky Hearing (up to 2000) and offers an empirically driven approach to understanding the interplay between substantive and procedural elements of the relatively unique competition regime that emerged in the U.S. after World War II, as well as its decline in the 1980s and 1990s. Warnings by eminent scholars and practitioners such as former Chairman Pitofsky about challenges in the application of the consumer welfare standard (i.e. case-by-case/rule-of-reason/economic approach, to balancing competing interests; accompanied by the growing scope of the efficiencies defense) are prominently featured in the article to explain empirical patterns in public and private enforcement data. The article offers a novel perspective on the past that may assist the FTC as it formulates its future path, contemplates the continued viability of the consumer welfare standard in substantive interpretation, and complements efforts by other public and private enforcers of public laws against anticompetitive practices with a high likelihood of harming consumers. Attachment 2: Rajabiun, Reza. "Competition Law as Development Policy: Evidence from Poland." The Law and Development Review 2, no. 1 (2009): 116-150. Topic 1(e) asks about the the advisory and advocacy role of the FTC regarding enforcement efforts by competition and consumer protection agencies outside the United States. In some cases, these efforts have succeeded in assisting lawmakers and agencies institute relatively clear baseline legal constraints on anticompetitive and abusive practices, building trust in market forces, and fostering the development of competitive markets in the longer term. I have published a series of studies that evaluate divergent experiences with competition law design and the development of market economies in Central and Eastern Europe, which build to some extent on contributions from FTC/DOJ antitrust scholars and practitioners involved in advisory and advocacy in the early days of the post-socialist transition. As an example, the attached article on the interplay between the design of competition policy and market formation in Poland may be relevant in contemplating Topic 1(e) on the value of international competition advisory and advocacy efforts by the FTC outside the U.S. Thank you for your call for public comment in this matter. I hope the historical perspectives my work provides will assist the Commission as it contemplates strategies and approaches the FTC can develop to promote competition and protect vulnerable consumers in the 21st century. Respectfully, Reza Rajabiun, LLM, PhD Research Fellow, Ted Rogers School of Information Technology Management, Ryerson University; Algorithmic Media Observatory, Concordia university, and CEO, eFilters Inc. Toronto Canada Selected works: https://works.bepress.com/reza_rajabiun/