As FTC chairman, Simons likely to follow solid Republican course

24 October 2017 4:48pm
FTC Building Colour

19 October 2017. By Leah Nylen and Kirk Victor.

In a few months' time, Joseph Simons will likely be sworn in as chairman of the Federal Trade Commission, the US's primary consumer protection agency and one of two focused on antitrust and merger reviews.

Simons will take the baton from Maureen Ohlhausen, who has helmed the FTC on an acting basis since January, the longest serving acting chairman in the agency's history. But don't expect much change; Simons and Ohlhausen share a similar worldview and policy slant, both solid Republicans and proteges of Tim Muris, former FTC chairman during the George W. Bush administration.

Ohlhausen, who has served as a commissioner since 2012, will return to being a commissioner until her term expires next year. Before becoming a commissioner, Ohlhausen spent 11 years as a staffer at the agency, rising to become director of the Office of Policy Planning, an FTC office that conducts research and weighs in with state legislatures and federal agencies on how proposed legislation and regulation might affect competition. Muris appointed Ohlhausen as director in 2004.

While Ohlhausen was over in the policy shop, Simons was heading up the FTC's Bureau of Competition, which investigates and litigates antitrust and merger cases. Muris, who served from 2001 to 2004, appointed Simons as bureau director in 2001. As bureau director, Simon's prevailed in all 64 merger enforcement actions by the commission, initiated more than 100 investigations in two years and took more non-merger enforcement actions in one year than in any year in the prior two decades.

Simons, with Barry Harris, a former deputy assistant attorney general for economics at the antitrust division, developed "critical loss analysis," a technique for defining markets that has been used by the government and the US appeals courts and was incorporated into the Department of Justice-Federal Trade Commission Merger Guidelines.

Lawyers who worked with Simons described him as a "solid Republican" and decisive, with an aggressive approach to litigation. Attorneys also said he was "not a zealot" and was always open to hearing opinions from staff before sharing his own views.

Unlike Ohlhausen, whose work in the Office of Policy Planning and in private practice involved antitrust, privacy and data security work, Simons has little to no experience with the FTC's consumer protection portfolio. It isn't unusual, however, for chairmen and commissioners to specialize more in one area of the FTC's mandate than another.

The bulk of the FTC's consumer protection work deals with fraud and scams, cases that are almost never contentious. One of the few areas where Simons and his fellow Republicans may diverge from their Democratic commissioners is in the area of data security cases. In a few recent cases, the agencies' Democrats and Republican have split over when to find companies' liable for data breaches.

In January, the FTC sued D-Link for failing to provide reasonable security measures for its Internet-connected cameras and routers. Ohlhausen dissented from her two Democratic colleagues' vote to bring the case. Last month, a federal judge sided with Ohlhausen, saying the risk of future harm because of the security flaws in D-Link devices wasn't sufficient to give the FTC standing to sue. The agency hasn't yet said whether it will appeal that ruling.

Once President Donald Trump has officially submitted Simons' nomination, the Senate Commerce Committee will hold a confirmation hearing followed by a panel confirmation vote. The nomination then goes to the floor for full Senate vote.

The timeline for confirmation could take several months, depending on whether any senators choose to oppose Simons. It took seven months for Makan Delrahim, Trump's pick to head the US Department of Justice's antitrust division, and 10 months for Ajit Pai, Trump's pick for Federal Communications Commission chairman, to make it through the confirmation process. On non-controversial nominees, the process has been smoother. Jessica Rosenworcel and Brendan Carr, two nominees for FCC commissioner spots, were confirmed in less than two months.

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