The Federal Trade Commission continues its move to more aggressively vet mergers in general and tech mergers in particular, signaling it will be releasing some data next week on tech mergers that have heretofore flown under the antitrust enforcement radar, and proposing other steps to boost its regulatory profile.
The latest signal came in the release of its agenda for the upcoming Sept. 15 public meeting, meetings that under new chair Lina Khan have begun to resemble those of the FCC, with its focus on regulation, rather than the FTC, which has traditionally functioned as an enforcement agency.
The September meeting includes a staff presentation on "some findings from the Commission’s inquiry into large technology platforms’ unreported acquisitions, including an analysis of the structure of deals that customarily fly under enforcers’ radar." The FTC has been looking into whether Big Tech purchases of small tech start-ups at prices that did not trigger antitrust reviews were a way to foreclose competition and "buy up" to monopoly.
Also on the docket are votes on a process for collecting public input on rulemaking petitions and a proposal to withdraw the vertical merger guideline updated under President Trump. Some Democrats argued that the update still kept a thumb on the scale for those mergers by suggesting they were generally pro-competitive.
Khan signaled process changes were coming to the FTC when she started holding public meetings and circulating some proposals for public perusal, though with not enough lead time to please some of the tech companies that will almost certainly be on the business end of the commission's effort to ramp up its rulemaking authority.
Unlike the FCC, the FTC historically issued press releases or held press conference to announce it had filed suit or secured a settlement over false, deceptive or anticompetitive conduct. But FTC chairs from both parties have signaled the agency should beef up its rulemaking authority--including to deal with the biggest of Big Tech--and Khan is clearly on the same page.
