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Bedoya, focused and passionate, talks about putting consumers first
05 December 2022 00:00 by Claude Marx, Kathleen Murphy
Federal Trade Commission member Alvaro Bedoya just reached his six-month work anniversary. The former Senate staffer and Georgetown University professor arrived at a time of incredible activity at the FTC. It issued an advanced notice of proposed rulemaking on commercial surveillance and data security and decided several major cases on consumer protection and competition.
He’s also made good on his promise to get the agency to focus more on its impact on average citizens, especially those who have been economically challenged. FTCWatch conducted a wide-ranging virtual interview with Bedoya touching on policy questions, his impressions of the agency, his efforts to improve employee morale and his relations with his fellow commissioners, especially those with whom he has sharp disagreements.
The interview has been edited for length and clarity.
FTCWatch: You’re planning a trip in December to South Dakota to visit with the proprietor of a small grocery chain with 21 locations in and around American Indian reservations. Can you tell us why you’re visiting?
Bedoya: We are trying to use our time to not just go and speak, right, about what we think about things, but to go to places FTC commissioners don’t normally go and listen to small business owners, to members of the public, to grocers, pharmacists, cattlemen, corn growers to hear about what they are dealing with.
FTCWatch: I want to get your thoughts on the consumer welfare standard, and what’s good about it, and what’s bad about it, and what other factors would you like to see the FTC take into consideration when doing antitrust reviews?
Bedoya: I think we should enforce the law. I am charged by statute with stopping unfair methods of competition. It’s not, you know, inefficient methods of competition. … When Congress passed the statute … they very clearly looked at the Sherman Act, very clearly looked at the Clayton Act and said we want to create an expert commission that is flexible, that can apply the law to changing industries and circumstances. And that can draw upon caselaw, draw upon industry, draw upon economics, draw upon what’s happening to small business owners and enforce antitrust laws to protect competition. …There is caselaw supporting … enforcing antitrust laws through a consumer welfare lens. This is also binding law. There is statute, there is precedent. And I think that my job is more complicated than a single standard. But do I think I’m charged by precedent? Do I think that the precedents that support consumer welfare are binding on me? I think the statute goes broader than that. And it’s my job first and foremost to do what Congress has told me to do.
FTCWatch: You performed outreach for the Justice Project, a migrant farmworker nonprofit, and wrote your senior thesis on the exploitation of foreign sheepherders and the American wool industry. And then you worked as a research consultant for the United Nations International Labor Organization, co-authoring three studies that exposed widespread existence of forced labor in Peru, Bolivia and Paraguay. Did those experiences shape your statements that the FTC should return to a particular focus on agriculture and rural small business?
Bedoya: Oh, no, I don’t think they did. And that was over 20 years ago now … I think that the reason I’m so focused on ag and on rural America has a lot more to do with a historical concern I’ve had with people who are getting left behind in the economy and by our legal system, and also a skepticism around concentrated corporate power.
FTCWatch: Massachusetts Senator Edward Markey said you would be prepared to use the full scope of FTC authority to protect consumers, especially communities of color and other marginalized communities who disproportionately experience harm online and offline. Have you done anything about that?
Bedoya: I think Kochava might be the first case I think about where — but I need to be a little careful because it’s an active litigation, although it’s not before us, it’s in federal court — where the commission showed a particular interest in making sure that vulnerable people weren’t hurt because they’re trying to go about living their lives. And no, Kochava’s broader than what the headline was, which was around reproductive clinics. … I would check out the first paragraphs of the complaint. … The complaint talks about addiction treatment centers. It talks about religious centers. … Let me be really clear, I didn’t vote for the case because of the community in question. I voted for the case because it was a violation of the law as we allege in our complaint. … Second, I’d point to the commercial surveillance ANPR, where we are keenly focused in soliciting comments about how unfair trade practices can disproportionately impact the elderly, people in rural communities, people of color, immigrants, people who don’t speak English as a first language.
FTCWatch: Some of the conservatives will push back and say if you go too far, it will reduce the choices of options available to consumers in terms of products. How do you strike a balance as an enforcer, in terms of you know, be tough on the bad guys, but also give consumers a lot of good options that were unfathomable to people even 10 or 15 years ago?
Bedoya: So honestly, I would disagree with the question, with one of the premises of the question, which is that consumers have the choice that they need. Look at the food supply chain, look at the pharma supply chain. These are typified by a very small number of vertically integrated entities that in many instances are seeing profits go through the roof ... You have, in both the food and pharma supply chain, companies making more profits than they ever have before. In some instances, it’s a hockey stick. And in other instances, it’s just a beautiful straight line, a beautiful 45-degree line. And so, that is one prime indicator to me that these markets are not sufficiently competitive.
Second, I do not see an instance where every person willing to pay for things are able to get them. … For me, the most compelling thing is … the food and pharmacy deserts across the country where you don’t have anywhere you could take public transportation to get your prescriptions, or walk to get your prescriptions, or get fresh food unless you have a car and drive 50 miles, so yeah, so I would just disagree with the premise of that.
FTCWatch: You’ve been at the FTC now six months. What has surprised you both good and bad about the FTC? You’ve met with a lot of employees, and what have you come away with in terms of employee morale?
Bedoya: So one thing that is really stunning is the level and volume of work, particularly in the competition shops. There’s terrific work being done across the agency. I’ve talked about Kochava, I’ve talked about the ANPR on commercial surveillance. I’m really proud of the staff’s work there. Only on the inside do you see the memos that the competition shops and the economists put together. And these are extraordinary documents that combine direct evidence, combine economic evidence, combine rebuttals, combine arguments, combine legal theory into one coherent narrative that is soberly setting out the positives and negatives of a proposed action.
… We need more staff, and we need more money. The volume of transactions is staggering, and yet we have fewer people than we did in the 1980s. … Our staff is on a different pay scale than the [Securities and Exchange Commission] and the [Department of Justice]. So, we are scrappy, we are aggressive. We, the folks in Competition, in [the Bureau of Consumer Protection] and [Bureau of Economics], are working through the night as a result of the HSR shot clock that Congress has set out for us. But we’re not magicians, and at the end of the day, if Congress wants to see the level of competition enforcement that they want, we need more money.
To your second question, I can tell you what I’ve done. I don’t know if it moves the ball forward for improving morale for me to share what people have confidentially shared with me in this context. But yeah, I mean, it has been a personal priority of mine to understand the morale issues.
FTCWatch: You worked on the Hill and Congress is about to become divided from a partisan point of view. Would you like to use your experience to gaze into a crystal ball and tell us what the prospects for antitrust and privacy legislation are in this new environment?
Bedoya: I would like to decline that invitation. I mean, I’ll tell you this: In the areas that we are focused on — your groceries, your pharmacy, your prescriptions, your paycheck — I think there is a lot of common ground between the left and the right. … Is there tension sometimes between my Republican counterparts and my Democratic counterparts? Yes, there is. We live in DC, that happens. But if you look at the actual work we do and the enforcement actions, I think you’ll see a lot of major actions that are bipartisan and that are meaningful actions. Kochava is an excellent, strong case. The pesticides case is an excellent, strong case. Again, both of them, bipartisan. The [pharmacy benefit manager] study is the 6(b) study I’m most excited about at the commission, and again 5-0. Yeah, I declined the invitation to look into the crystal ball. But I am proud of the bipartisan votes we’ve had during my tenure here.
FTCWatch: Members of Congress have called on the FTC to investigate Wee1 Tactical and its marketing of guns to children. Have you read the petition related to this subject, and what are you doing about the marketing of guns to children?
Bedoya: I read a lot of stuff in my process, but I think this is something that it’s best to decline to comment on, but it is something I have read. Wee1 didn’t ring a bell at first but yes.
FTCWatch: When you were confirmed, Senate Majority Leader Chuck Schumer said your confirmation is “pivotal to unshackling the FTC and fully examining record energy company profits and inflated prices at the pump.” What have you done about gas prices?
Bedoya: I think there’s an issue here where if there are investigations, I would not be able to tell you about them. And so I think it’s important that I not comment at length here … In general, anything that affects people’s bottom line and their ability to pay the bills is something that our team is keenly interested in. Gasoline prices are not an exception to that. That’s something that obviously affects people’s bottom line. … We read the papers just like you do, and we hear people are suffering because of that, but yeah, we wouldn’t be able to share any investigations if they existed. So probably best for me not to comment.
FTCWatch: Republicans on the Hill, specifically Senator Mike Lee and Senator Chuck Grassley, have proposed consolidating antitrust authority in the DOJ, removing that from the FTC. What’s the advantage of having two different agencies doing antitrust enforcement?
Bedoya: I’m aware of their bills. I have a lot of respect for both senators. … But this isn’t a particular question I’ve spent a lot of time thinking about myself.
FTCWatch: You have said between the Democrats and Republicans on the commission, on certain issues, there has been some unanimity. Talk about the personal dynamics among you.
Bedoya: A lot of people look at my confirmation process, and they say, oh, man, eight months, nine months, that must have been terrible, and did I enjoy every day of that? No comment. But I will say I was very lucky in that I was able to either go into that process with strong relationships with my colleagues or build relationships and friendships with the ones I didn’t know. One thing I told FTC staff in my introductory note to them, the week I came in, was I can tell everyone at the commission that my colleagues had a role in getting me here. Chair [Lina] Khan was insistent that I get a vote, and she went to the Hill and made the case for me … Commissioner [Rebecca Kelly] Slaughter along with Commissioner [Noah] Phillips … are old and dear friends and I got to know them from work in Senate Judiciary. … And lastly, Commissioner [Christine] Wilson, on my first day, the day I was nominated, I sent her a note to say, “Hey, I hear that we care a lot about kids and what’s happening to kids online and their mental health. I would love to work with you on this.” And that started a conversation behind the scenes.
… I am here because of all four of my current or former colleagues. And so that has set up a certain context from our work at the commission. And, now look, I don’t envy the position of Commissioner Wilson, it doesn’t feel good to be in a minority of one. … I’m really glad that with Commissioner Wilson, we have a shared area of work that both of us are excited on. And I think that’s the basis for a positive working relationship.
FTCWatch: What else should we have asked you that we didn’t ask?
Bedoya: My goal is to, both in our enforcement work and in whatever speaking and public appearances I do, to try to focus on what antitrust can do for regular people. And one of the things that you quickly see when you’re coming back into antitrust as I did a year ago, is that it can get very esoteric very quickly… [But] we have these laws because real people were suffering, right? Real cattlemen were getting cheated out at fair prices by the beef trust, and that was the chief complaint we heard on the floor of the United States Senate in 1890. … And so what’s lost when antitrust is technical, almost mathematics … is that we have [the laws] to protect real people and their ability to put food on the table and ability to pay their bills. And that right now, its chief promise is in that.
If I have one goal out of this interview, it is that yes, there’s a lot of excellent attention being paid to our work on technology. I’m proud of that work. I’m proud of the votes I’ve taken. But I’m really excited about what the commission can do to protect regular people paying the bills. And that is what I am focused on, and that is what I hope people will pay attention to. That is what I hope practitioners will pay attention to … I read your stuff regularly now, and I know you’re reaching folks who are intimately familiar with the commission and care a lot about how to best speak to commissioners, how to best make a case to them.
And I want them to know if they’re working on an acquisition in the food supply chain, if they’re working on an acquisition that affects people’s groceries, people’s prescriptions, they’re gonna get questions from me and my staff about what it means for people living paycheck to paycheck, what it means for people in rural America, what it means for people in urban America. That is our focus, and if I can communicate that to your reader successfully, then I’ve enjoyed our conversation, but I’ll term it a success.
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