The Federal Trade Commission told the U.S. Senate Committee on Commerce, Science and Transportation on Thursday, February 4, 2010, that additional law enforcement powers would allow the agency to protect consumers more effectively.
While much of the testimony detailed the FTC’s efforts to protect consumers from financial fraud that has occurred in connection with the downturn in the economy, the additional powers sought by the FTC would enhance its ability to protect consumers for any violation of one of the laws that it enforces. The agency encouraged Congress for authority:
- to use more efficient rulemaking procedures to address consumer protection issues and enhance the agency’s ability to stop financial fraud;
- to seek civil penalties for violations of the FTC Act rather than just rules or orders that have already been promulgated;
- to act against those who assist others they know, or consciously avoid knowing, are engaged in unfair or deceptive practices under the FTC Act; and
- to prosecute civil penalty cases in federal court in its own name so that it can bring cases more quickly and more effectively.
Interestingly, Commissioner Kovacic dissented from the Commission’s endorsement of authority to use, for promulgating all rules respecting unfair or deceptive acts or practices under the FTC Act, the notice and comment procedures of the Administrative Procedures Act (“APA”). While other agencies have the authority to issue significant rules following notice and comment procedures, Commissioner Kovacic stated that the Commission’s rulemaking authority is unique in its range of subject matter (unfair or deceptive acts or practices) and sectors (reaching across the economy, except for specific, albeit significant, carve-outs). Except where Congress has given the Commission a more focused mandate to address particular problems, beyond the FTC Act’s broad prohibition of unfair or deceptive acts or practices, Commissioner Kovacic believes it prudent to retain procedures beyond those encompassed in the APA. However, he supports sector-specific APA rulemaking to promulgate rules that set forth unfair or deceptive acts or practices relating to all financial services. Further, he would be willing to consider more generally whether all the procedures currently required to issue, repeal, or amend rules issued under the FTC Act are necessary.
Commissioner Kovacic also dissented from the Commission’s endorsement of across-the-board civil penalty authority. Commissioner Kovacic believes that the existing consequences attendant to a finding that an act or practice is unfair or deceptive under the FTC Act are generally appropriate remedies, and they are consistent with the goal of developing FTC law to develop new doctrine and to reach new and emerging problems. In his view, the routine availability of civil penalties, even if subject to a scienter requirement, would risk constraining the development of doctrine, much as judicial concerns about the availability of private litigation with mandatory treble damages appear to be constraining the development of antitrust doctrine. Commissioner Kovacic would prefer that Congress grant more targeted authority to seek civil penalties, perhaps including civil penalty authority where financial services are involved, and particularly including civil penalty authority in matters where existing remedies are likely to be inadequate.
Regarding President Obama’s proposed Consumer Financial Protection Agency, the testimony expressed FTC support for the goal of making consumer financial protection more effective while ensuring that the FTC’s authority and ability to protect consumers remains uneroded and clear. The FTC told Congress that it should remain active and effective in policing financial and nonfinancial products and services. Commissioner Kovacic and Commissioner Rosch recommended, perhaps as an alternative to creating a new agency to perform the federal banking agencies’ current consumer protection functions, that the Committee consider a model by which consumer protection with respect to banks and other depository institutions would be enhanced by providing the Commission with a role in protecting consumers of depository institutions. Such expansion of the Commission’s consumer protection role would require a concomitant increase in the Commission’s resources to ensure the continuing excellence of its enforcement record.