Next year the Federal Trade Commission (“FTC” or “Commission”) will adopt a new four-year strategic plan for fiscal years 2022-2026, as required by the GPRA Modernization Act of 2010. This Act requires federal agencies to update their strategic plans every four years.
The FTC recently released a draft of its forthcoming strategic plan, with public comments accepted through the end of November. As we await the final plan, an analysis of the draft, as compared to the FTC’s existing strategic plan (2018-2022), offers further insight into the FTC’s enforcement priorities under new Chair, Lina M. Khan.
In comparison to the current plan, three issues stand out in the draft plan. First, the FTC’s concern about technology industries and the need to keep current with rapid developments and changing competitive dynamics. Second, an emphasis on monopsony power of employers to improperly suppress wages of laborers. And third, the degree to which diversity, equity, and inclusion (DEI) will affect the FTC’s operations at every level – – consumer protection, antitrust enforcement, and internal operations.
As with the current plan, the draft details enforcement priority goals within the FTC’s twin duties of consumer protection and antitrust enforcement, with internal operations comprising a third goal.
Goal number 1 is to protect the public from false practices. In addition to describing its litigation efforts to achieve this goal, the draft plan reminds the public that the FTC conducts investigations, promulgates rules, and educates the public about their rights and obligations. The FTC’s current investigations into supply chain problems, gasoline prices, and healthcare costs, are reminders of the FTC investigatory powers. These powers are significant and include the authority to compel the production of documents and information via subpoenas (Civil Investigative Demands), even without the formality of a pending legal action.
Unlike the current strategic plan, the draft plan includes the following DEI-related statements:
- Advance racial equity, and all forms of equity, and support underserved and marginalized communities through the FTC’s consumer protection mission.
- Maintain strong relationships with community-based organizations and advocacy organizations nationwide, while continuously seeking new ways to build relationships with trusted community leaders (e.g., church leaders, teachers, community organizers, non-profit leaders, etc.)
- The FTC’s Every Community Initiative which “uses research, collaboration, and strategic planning to ensure that the FTC is responsive to the needs of people of color and historically underserved and marginalized communities, including communities that have been adversely affected by economic inequality or otherwise bear disproportionate economic burdens ”
Goal number 2 relates to antitrust enforcement. In addition to pre-merger review (a task that the FTC shares with the Antitrust Division of the Department of Justice), this goal includes policy research and development; education to deter anti- competitive practices; and encouraging local, state and federal governments to evaluate how their polices impact competition. The FTC also coordinates with international sister agencies to realize this goal.
The draft plan emphasizes the need to address technological advancements, including the importance of small tech firms. The draft plan contains the following stated objective: “Engage in research, advocacy, and outreach to promote public awareness and understanding of fair competition and its benefits.” Within this objective, technology matters are addressed: the Commission “plans to be especially attentive to next-generation technologies, innovations, and nascent industries across sectors. By staying apprised of new developments, the agency can learn from new evidence and course-correct as needed. An interdisciplinary team of researchers and analysts will best position the FTC [to] mitigate information asymmetries and narrow the gap between theory and practice.”
Regarding DEI matters, Goal 2 states:
- An objective to “[a]dvance racial equity, and all forms of equity, and support underserved and marginalized communities through the FTC’s competition mission.”
- Improve strategies to identify potentially anticompetitive conduct and transactions, including those that may have a disparate impact on consumers, workers, and small businesses in underserved and marginalized communities.
With a nod to current monopsony issues in certain low-wage industries, the draft plan states that the Commission will “[i]ncrease use of provisions to improve worker mobility including restricting the use of non-compete provisions.” Later the draft plan announces a section titled: Focus on workers, which states: “Study and investigate the impact on worker wages and benefits from merger and non-merger conduct, as well as non-compete and other potentially unfair contractual terms resulting from power asymmetries between workers and employers.”
Goal number 3 deals with operations matters. The Commission aims to optimize resources; foster a high-performing and diverse workforce and optimize information and data management.
Regarding DEI matters, another goal is to “Increase the FTC’s presence as job fairs and other events designed for specific job seekers (e.g., racial minorities, veterans, persons with disabilities, members of the LGBTQIA+ community and women attorneys and law students, etc.).”
If technology, DEI matters, and worker protections remain in the FTC’s final strategic plan for 2022-2026, as they likely will, those representing clients before the FTC should be aware of these priorities.
The full draft strategic plan can be found here.