The Senate has to act soon to fix the FTC’s zombie problem

The Senate has to act soon to fix the FTC’s zombie problem

As chair of the Commerce, Science, and Transportation committee, Sen. Maria Cantwell has a lot of work to do on nominations and not much time to do it. There are several weeks of purely concentrated hell before the Senate, starting when they return next week (they’re taking this week off) and then resuming again after they take the Thanksgiving week off. There’s the budget reconciliation bill for Build Back Better (BBB), which damn well better pass before the end of the year; the debt ceiling hike, which has to pass, preferably as part of BBB; and keeping the government open after Dec. 3 by funding it.

That’s not much floor time for nominations, and Cantwell has a few in front of her committee right now that can’t wait. Literally, they can’t wait because if she puts it off into next year, the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) could revert to Republican control, which would not only be searingly embarrassing for everyone involved from President Joe Biden on down to her and Majority Leader Chuck Schumer, but would be really bad for all of us, the consumers.

The story at the FTC right now is absolutely wild and really not the way any governing should be happening. A month ago, one of the Democratic commissioners on the panel, Rohit Chopra, left for his new job as head of the Consumer Financial Protection Bureau, one week after he was confirmed in the new role and where he is already being amazing. His departure left the FTC with a 2-2 partisan split, but with his “zombie votes” outliving him.

He cast as many as 20 votes on upcoming commission actions before he left on Oct. 8—votes sent by email, because that’s a thing that can happen on the FTC. Under the FTC’s interpretation of its rules, commissioners can cast pre-votes and then move on, and those votes count toward making new policy. That’s how FTC Chair Lina Khan, who is using Chopra’s zombie votes to keep a Democratic majority, interprets the rules and how the FTC is moving forward with actions. So far just one of those votes has been used to approve a policy statement about mergers.

While the creativity involved in keeping this functional majority in place is to be commended—more Democrats need to act as brazenly in the pursuit of good as Republicans do to steal it all—it really isn’t a sustainable way to operate. There’s an expiration date on the zombie votes, for one thing, according to current and former FTC staffers who told Politico the vote can “remain in effect for up to two months.” Here’s how it works: “Any of the five commissioners can introduce a motion for a vote. If no one responds, the motion fails after a month. But if another commissioner seconds it, the motion can live on for another 30 days.”

That works for relatively inconsequential things, like agreeing to and sending out policy statements. But the FTC Democrats are opening themselves and the administration up to some big legal fights if they try to extend the zombie voting to any important regulatory action. Biden has an ambitious agenda for the FTC, included in his anti-trust executive order from July.

That includes working with the Department of Justice to enforce antitrust laws; protecting workers by banning or limiting noncompete agreements; banning unnecessary occupational licensing restrictions; preventing employers from collaborating to suppress wages or benefits; establishing rules for Big Tech on surveillance and the accumulation of data; and enforcing “right to repair” regulations to limit equipment manufacturers from restricting customers’ ability to either do DIY repairs or take their equipment to independent repair shops. Corporate America hates all this, the Republican-packed courts will hate all this. It’s already under threat from those courts—no point making the unforced error of giving them the excuse of opaque and questionable votes.

Biden nominated Alvaro Bedoya, a privacy expert who worked for the Senate Judiciary Committee and is the founding director of the Center on Privacy and Technology at Georgetown Law, to that fifth seat in September. His exposés on the harms of facial recognition technology have helped usher the passage of facial recognition restrictions across the country, which led the National Institute of Standards and Technology to conduct the first comprehensive bias audit of facial recognition algorithms and paved the way for a federal law requiring bias testing in airport facial recognition systems, section 1919 of the FAA Reauthorization Act of 2018. He would be an excellent addition to the commission.

As with the FCC nominations Biden finally made a few weeks ago, getting these nominations processed and appointments completed is essential by the end of the year. Without confirmation, acting Director Jessica Rosenworcel’s term will be over, and between that and a current Democratic vacancy for which Gigi Sohn has been nominated, the FCC would revert to Republicans.

The plans for the FCC are as critical as for the FTC. The broadband components of that sweeping anti-trust executive order called for a restoration of the 2015 net neutrality rules and encouraged the FCC to prevent internet service providers from making exclusive deals or collusive arrangements with landlords to shut out competition from other ISPs, leaving tenants with only one option.

It also asks the FCC to revive another Obama-era effort, a “Broadband Nutrition Label” that “provides basic information about the internet service offered so people can compare options,” increasing transparency and requiring providers to report prices and subscription rates to the FCC. The order also asks the FCC to limit excessive early termination fees that ISPs charge for people switching providers.

This stuff needs to happen and it needs to happen soon. 

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