The Senate confirmation of Alvaro Bedoya to the Federal Trade Commission last week may jump-start the agency’s ambitious policy agendas on privacy and antitrust.
Bedoya was previously a visiting professor at Georgetown Law, where he founded and directed the Center on Privacy and Technology. Responding to his nomination in September 2021, he wrote on Twitter, “It is the honor of my life to be nominated to serve on the FTC.”
Some eight months later, he was confirmed with a 50-50 vote that split along party lines and required the vote of Vice President Kamala Harris to break the tie. Bedoya’s lengthy nomination process was plagued by Republican and business group opposition, COVID-related delays, and the temporary medical absence of New Mexico Sen. Ben Ray Lujan. The filled commissioner seat gives Democrats 3-2 control at the FTC.
Bedoya’s experience is largely concentrated on privacy issues and their intersection with technology and law. Before his stint at Georgetown, he served as chief counsel of the U.S. Senate Judiciary Subcommittee on Privacy, Technology, and the Law. That experience in the legislative branch could prove helpful in coordinating with Congress to move the majority policy agenda forward at the nation’s most powerful regulatory agency.
That likely includes FTC Chairman Lina Khan’s liberal ambitions to install new privacy regulations and protections in the digital economy. The agency quickly announced plans to examine the enforcement of the Children’s Online Privacy Protection Act in the context of digital learning tools being offered in schools at what will be the first FTC open meeting since Bedoya’s confirmation.
With the commissioner seat vacant since October of last year, the 2-2 partisan stalemate slowed Khan’s privacy agenda and crackdown on Big Tech. The tech giants are part of just one industry among many that Khan and her allies on the Left believe to be too concentrated and insufficiently competitive. It’s likely Bedoya will be an ally in both antitrust and privacy. Those same issues are mostly stalled on Capitol Hill by slim Democratic majorities and the distraction of the midterm elections.
Hal Singer, managing director of Econ One, an economic litigation and consulting firm, told the Washington Examiner, “I’m sure there’s a logjam of cases that the chair wants to bring but can’t because the two GOP commissioners are opposed to enforcement generally, and particularly when it comes to reining in Big Tech or protecting workers through monopsony cases. So, I would expect some immediate cases to be filed. And I also expect some big rule-makings. For example, if Congress fails to pass the Klobuchar-Grassley bill, the FTC could regulate self-preferencing via rule-making.”
The American Innovation and Choice Online Act, sponsored by Sen. Amy Klobuchar (D-MN) and Sen. Chuck Grassley (R-IA), has yet to be taken to the floor for a full vote. It would prohibit large digital platforms, such as Amazon and Google, from preferencing their own products and services online. Rule changes and litigation from the FTC are seen as an alternative way of achieving those same policy goals Congress has yet to pass into law and are more likely with Bedoya’s confirmation.
Singer advises, “Grab your popcorn. This is going to be a fun ride.”
In a statement reacting to the confirmation, the Chamber of Commerce echoed the significance of Bedoya’s impact on FTC policy and enforcement activity but warned rather than cheered, counseling the business community to “buckle up.” Neil Bradley, the Chamber’s chief policy officer, said, “Chair Kahn now has the potential third vote she needs to unleash greater uncertainty — the enemy of business growth and opportunity — on the economy.” The Chamber opposed Bedoya’s nomination throughout the confirmation process.
Jeffrey Westling, director of technology and innovation policy at the American Action Forum, agreed that the addition of Bedoya will usher in more assertive regulation. He told the Washington Examiner, “With a Democratic majority reestablished at the FTC, the commission will move full speed ahead on priorities it laid the groundwork for late last year.”
Westling continued, “The White House has clearly made competition reform a priority. It is no secret that Chairwoman Khan sees concentration as a problem in and of itself, a large departure from the mainstream view of competition policy for the last half-century.”
