Competition Advocacy at the
FTC
Marina Lao, Director
Office of Policy Planning, FTC
Third International Conference on Free Economic Competition
Barranquilla, Colombia
October 22, 2015
Disclaimer: The views expressed in this
presentation do not necessarily represent the
views of the Federal Trade Commission or any
individual Commissioner.
Federal Trade Commission
Overview
• About the FTC
• Competition Advocacy:
– What do we do?
– To whom do we advocate?
– What are our advocacy tools?
– How do advocacy opportunities arise?
– Examples (if time permits)
Federal Trade Commission
About the FTC
• Independent agency, established in 1914
• Dual mission
– Competition
– Consumer protection
• Tools to help us fulfill our mission
– Law enforcement
– Advocacy
Federal Trade Commission
About the FTC (continued)
• FTC Jurisdiction
– Section 5 of the FTC Act
• FTC is “empowered and directed to prevent . . . Unfair
methods of competition in or affecting commerce and
unfair or deceptive acts or practices in or affecting
commerce.” 15 U.S.C. 45(a)
– Section 6 of the FTC Act
• Allows the FTC to “gather and compile information”
that concerns persons subject to the FTC Act, and “to
make public from time to time such portions of the
information obtained” that are “in the public interest.”
Federal Trade Commission
About the FTC -- Structure
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Bureau of Competition
Bureau of Consumer Protection
Bureau of Economics
Office of Policy Planning
Office of International Affairs
Office of General Counsel
Office of Congressional Relations
Federal Trade Commission
Competition Advocacy
Federal Trade Commission
What Do We Do?
• Persuasive, rather than compulsory in nature
• Use FTC’s expertise in competition policy and
economics to promote pro-competitive
regulatory outcomes
– Provide competition policy analysis for policy
makers
– Provide a framework for thinking about public
policy issues from a competition perspective
Federal Trade Commission
Advocacy to Whom?
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Federal and state legislators
Federal and state regulators
Courts
Other stakeholders, e.g., professional licensing
boards
Federal Trade Commission
Policy Tools
• Letters or written comments analyzing proposed
legislation or rule
• Workshops
• Policy papers, reports and studies
• Commission or Staff Testimony
• Amicus Briefs
Federal Trade Commission
Occasions for Advocacy
• Invitations for FTC input
– Request by Congress
– Request by State policymaker
• Balance of Interests & Resources
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Significant competition issue
Research on-hand
Enforcement experience
Potential competitive impact
Federal Trade Commission
Examples of Advocacy Comments
• FTC Staff Comment, and Concurring Comment of
Commissioner Wright, Regarding North Carolina House Bill
200, Which Would Exempt Diagnostic Centers, Ambulatory
Surgical Facilities and Psychiatric Hospitals From Certificate
of Need Regulation
(July 2015) (V150009)
• FTC Staff Comment to the Honorable Brendan Reilly
Concerning Chicago Proposed Ordinance O2014-1367
Regarding Transportation Network Providers
(April 2014) (V140007)
• Link to advocacy filings by date on FTC website:
http://www.ftc.gov/opp/advocacy_date.shtm
Federal Trade Commission
Examples of Other Types of
Advocacy
• FTC Workshop on The “Sharing” Economy: Issues Facing
Platforms, Participants, and Regulators
(June 2015)
• FTC Staff Report, Policy Perspectives: Competition and the
Regulation of Advanced Practice Nurses
(March 2014)
• FTC Amicus Brief Supporting Plaintiff-Appellant in Mylan
Pharmaceuticals, Inc. v. Warner Chilcott plc, et al.
(Sept. 2015) (15-2236)
Federal Trade Commission
Advocacy: Transportation Network
Providers (TNP) Regulation
• Traditionally, taxi industry in U.S. is heavily regulated at the
state and local level
• Industry recently transformed by a new phenomenon -smartphone-based applications and platforms, e.g. Uber
– Benefits of Uber and/or Lyft platforms
– Competition with taxis
• Various proposals to regulate Uber/Lyft in different
jurisdictions in US, either through
– New regulatory mechanism; or
– Application of current taxi regulation
Federal Trade Commission
Advocacy: TNP Regulation (continued)
• Competition considerations:
– Basic premise of competition law: competition generally
benefits consumers--lower prices, better quality, increased
innovation
– Generally, regulation restricts competition
– But, some restrictions may be necessary to achieve
legitimate policy goals, such as protection of health and
safety.
– However, if restrictions are inflexible, unnecessary, or
overly broad, they can unnecessarily impede competition.
Federal Trade Commission
Advocacy: TNP Regulation (continued)
• Our advocacy letters to jurisdictions
considering various TNP regulations urged
policymakers to carefully consider the
competitive impact of proposed regulation:
– What is the stated purpose of the regulation?
– Is it a legitimate purpose? E.g., safety
– Does the regulation achieve that purpose?
– Is the regulation narrowly tailored to achieve the
legitimate purpose?
Federal Trade Commission
Advocacy: TNP Regulation (continued)
• Examples of proper focus of TNP regulation:
– Ensuring safety of customers
– Sufficient liability insurance
– Transparency of fare information
– Data security, and prevention of identify theft
• Urge regulators to recognize that:
– Unwarranted restrictions may prevent consumers from
enjoying the benefits of new competition from Uber and
Lyft.
Federal Trade Commission
Advanced Practice Registered
Nurses (APRN) Policy Paper
• Tensions in health care regulation:
– Competition is good for patients
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Control costs/prices
Improves quality
Expands supply/improves access
Promotes innovation
– But health and safety is also important.
Federal Trade Commission
APRN Policy Paper (continued)
• Some regulatory limits on scope-of-practice of APRNs
(nurses) may be justified for patient protection.
• But overly broad limitations may harm patient care
– Reduce patient access to medical care
– Costs/prices
• Our report analyzes scope-of-practice limitations
under a competition framework.
Federal Trade Commission
APRN Policy Paper (continued)
• Analytical framework:
– Premise: competition is beneficial, and regulation
restricts competition
– Ask: Does the regulation provide an important
consumer benefit or address a legitimate concern
(e.g. patient health and safety)?
– If the regulation does address well-founded
concerns, is it narrowly tailored to address that
concern?
Federal Trade Commission
Contact Information
Marina Lao
Director, Office of Policy Planning
Federal Trade Commission
600 Pennsylvania Avenue, NW
Washington, DC 20580
(202) 326 -2384; mlao @ ftc.gov
• The views expressed herein are my own and do not necessarily reflect the
views of the Federal Trade Commission or any of its individual
Commissioners.
Federal Trade Commission