President-elect Donald Trump recently announced that Republican Commissioner Andrew Ferguson will chair the Federal Trade Commission during Mr. Trump’s second administration. Commissioner Ferguson is also a known critic of excessive federal regulation and how it arguably stifles innovation, the FTC’s penalty offense authority and the FTC administrative process.
It is anticipated that Commissioners Bedoya (D), Holyoak (R) and Slaughter (D) will remain. Mark Meador, an antitrust attorney, has been nominated to fill Chair Lina Khan’s (D) position when she departs.
Immediately preceding President-elect Trump’s first administration, there was much speculation regarding how his policy of deregulation might impact FTC investigations and enforcement actions. The same issues are once again being contemplated, although, this time, with a bit precedent that may be informative. For example, the limitation of regulatory action to traditional, bread-and-butter fraud, deception, privacy and telemarketing while avoiding excessive rulemaking.
And then there is a dissenting statement issued by Commissioner Ferguson on December 4, 2024 in the Matter of Guardian Service Industries, Inc. (Matter Number 2410082), wherein FTC investigation attorneys issued an administrative complaint and accepted a proposed consent agreement with Guardian Service, a building services contractor. The Complaint alleges that some of Guardian’s contracts with building-management clients contain so called “no-hire” provisions, also sometimes referred to as “no-poach” provisions.
“The Commission is wise to focus its resources on protecting competition in labor markets .. But as I have warned before, we must always act within the boundaries Congress has imposed on our authority,” Commissioner Ferguson states.
While Mr. Meador’s Senate confirmation will give Republicans a three-Commissioner majority in the FTC and potentially signal the end of the FTC’s Non-Compete Ban, the FTC will still be able to pursue businesses for overreaching non-competes.
Commissioner Ferguson also recently dissented regarding Telemarketing Sales Rule rulemaking “because the time for rulemaking by the Biden-Harris FTC is over. The American people have roundly rejected its regulatory assault on American business. They delivered a resounding victory for President Trump and a decisive mandate for his vision for the most pro-innovation, pro-competition, pro-worker, and pro-consumer administration in the history of our country. The proper role of this lame-duck Commission is not to announce new policies, but to hold down the fort, conduct routine law enforcement, and provide for an orderly transition to the Trump Administration. I will vote against all new rules not required by statute, and any enforcement action that advances an unprecedented theory of liability until that transition is complete.”
Commissioner Ferguson’s TSR-related dissent pertains to a FTC announcement of a Final Rule that expands coverage of the Telemarketing Sales Rule to inbound telemarketing calls for technical support services. Technical support services are defined as “any plan, program, software, or service that is marketed to repair, maintain, or improve the performance or security of any device on which code can be downloaded, installed, run, or otherwise used, such as a computer, smartphone, tablet, or smart home product, including any software or application run on such device.”
Now, consumers calling a marketer of technical support services in response to any advertisement therefor are covered by the TSR. Any “plan, program, software, or service in which the person providing the repair, maintenance, or improvement obtains physical possession of the device being repaired” shall be considered exempt.
Commissioner Holyoak defended the TSR rulemaking, in part, by citing Mr. Trump’s aggressive anti-fraud policies.
