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Does the Federal Trade Commission's Section 5 Statement Impose Limits on the Federal Trade Commission's Unfair Methods of Competition Authority?

出版	SSRN, 2019
URL	http://books.google.com.hk/books?id=plvezwEACAAJ&hl=&source=gbs_api

註釋Section 5 of the FTC Act prohibits “unfair methods of competition in or affecting commerce.” More than one hundred years after Congress created the Federal Trade Commission and gave it broad authority to prohibit “unfair methods of competition,” the FTC had yet to define what constituted an unfair method of competition. On August 13, 2015, a bipartisan majority of the FTC ended this century-long failure and adopted a statement of principles concerning how it will exercise its standalone Section 5 authority. This Article addresses whether the Section 5 Statement places a meaningful constraint on the FTC's discretion over its unfair methods of competition authority. By evaluating the agency's Section 5 enforcement record under the standard articulated in the Statement, this Article demonstrates that the Statement does in fact constrain agency discretion and that the aforementioned criticisms miss their mark. Part I discusses briefly the history of the Commission's standalone Section 5 authority. Part II summarizes the elements of the Statement and discusses the praises and criticisms for each. Part III reviews the Commission's standalone Section 5 enforcement record, identifying four categories of conduct that the Commission has conventionally prosecuted using that authority. Part IV applies the Statement's standard to the facts of the cases discussed in Part III, illustrating that under the announced standard the Commission will not be able to challenge at least some conduct that it has previously prosecuted under Section 5 and thus that the Statement can be expected to constrain the FTC's enforcement authority.