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Facebook is shaken and calls for FTC Chairman Khan’s removal from antitrust cases against him – TechCrunch

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Facebook has joined Amazon in expressing concern over the sudden rise of antitrust hawk Lina Khan as FTC chairman by demanding that she be challenged from all decisions relating to the company. The argument, more or less the same as Amazon’s, is that prior to his appointment Khan was too outspoken about his professional opinion that companies like these break antitrust rules.

In a letter filed with the FTC and obtained by the WSJ, which the agency could not provide and declined to comment, Facebook explained that the last few years of Khan’s academic publications and articles in other media amounted to a challenge to decisions about the company. (I have asked Facebook for a copy of the petition and will update this post if I receive it.)

“President Khan has always made public statements not only accusing Facebook of conduct that deserves disapproval, but specifically expressing her belief that the conduct meets the elements of an antitrust offense. When a new commissioner has already made factual and legal findings and considered the target to be an offender, due process requires that person to recuse himself, ”the petition reads.

Neither the FTC nor Khan in any capacity responded to challenge requests from Facebook and Amazon. She noted in her appointment process that challenge requests like these occur and are resolved on a case-by-case basis (unlike automatic challenges for reasons like financial or personal interests). Maybe even now that she’s meeting the ethics experts at the agency.

Khan has, however, certainly made his political positions known in numerous articles and documents, many of which have argued that antitrust regulators have been very conservative in their interpretation and deployment of their legal powers, and equally permissive in their oversight of the current crop. huge tech companies. Things like acquiring competitors, artificially lowering prices to put pressure on a market, or misrepresenting the collection and use of customer data have gone unchallenged or little punished.

She notably served as legal counsel for the Chamber’s investigation into competition in digital markets, an antitrust report released last fall. Amazon and Facebook are building on cases from 1966 and 1970 where an FTC commissioner was challenged for “prejudicing” a case during a congressional inquiry in which he participated. It’s a promising hook to hook a deal, of course, but the circumstances are by no means equivalent. I’m not a lawyer, but it seems to me that no specific case or even allegation has been prejudged, only the general idea that Facebook, Apple, Google and Amazon all have monopolies or have market power. (They didn’t care much when the report was released.)

The main conclusion of the House report, in fact, was arguably that there could be no legal case because the existing laws and regulations are insufficient. Granted, Khan has been shouting this from the rooftops for a few years now, but the conclusion is a legislative issue, not an FTC issue. It would be very difficult for Khan to have prejudged an antitrust case based on laws that have yet to be written.

Khan’s FTC suffered an early setback under his watch, but not on his part in dismissing some complaints in the agency’s current antitrust case against Facebook. It was for lack of evidence that the company has monopoly control over social media that the judge asked the FTC to come back and try again. Maybe Khan intends to remedy this with an additional case, or maybe she will take the loss and muster her strength for another attempt in a year or two, but either way, he is. probably best to resolve the issue of his alleged “prejudice” before this decision. is announced. (The FTC declined to speculate on whether the recusal request would affect the ongoing proceedings.)

But the agency also has explicit White House support in the form of President Biden’s request to prioritize “dominant internet platforms, with particular attention to acquiring nascent competitors, serial mergers. , data accumulation, competition for free products, and the effect on user privacy. So Khan probably doesn’t feel the sting of the aforementioned legal challenge.

Petitions filed by Amazon and Facebook present near zero risk to businesses and an outside chance of provoking a challenge, so it makes strategic sense to file them. They also provide breadcrumbs later for their inevitable objections to the FTC’s (under Khan, equally inevitable) allegations of monopoly practices. Legal repercussions are difficult to predict, but it’s usually better to have a complaint already on the table than to file it late in the process.

Given President Khan’s position that the FTC itself needs to be overhauled and empowered in order to take actions like this against companies like Facebook, it seems clear that all of these are just the first games of a long, long game.

Sources

1/ https://Google.com/

2/ https://techcrunch.com/2021/07/14/facebook-is-shook-asks-for-removal-of-ftc-chair-khan-from-antitrust-cases-against-it/

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