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UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, DC 20580 

Prepared Remarks of Chairman Joseph Simons1

Fordham Speech on Hearings Output

September 13, 2019

I. INTRODUCTION

Good morning, and many thanks to Fordham University for hosting the 46th Conference on 

International Antitrust Law and Policy. I am pleased to join Kris Dekeyser, Director for Policy and 

Strategy at DG-Competition, on the panel. I am going to focus my remarks on the FTC’s Hearings 

on Competition and Consumer Protection in the 21st Century. The goal of these hearings is to 

consider whether broad-based changes in the economy, evolving business practices, new 

technologies, and international developments warrant adjustments to competition and consumer 

protection law and enforcement priorities. The hearings are modeled on the 1995 hearings 

organized by the late FTC Chairman Bob Pitofsky. The ’95 hearings produced important output 

and were the first step in establishing the FTC as a modern center for “competition R&D.” 

This past June, we held the last of our fourteen hearings. Our hearings spanned 23 days 

and featured a wide spectrum of perspectives by legal and economic academics and practitioners 

and representatives of consumer and business groups. Thousands of people either viewed them 

via webcast or attended in person. In response to our request for public input, we received over 

900 unique comments. The transcripts, presentations, questions, and comments are all available 

 

1 These remarks reflect my own views. They do not necessarily reflect the views of the Commission or any other 

individual Commissioner.
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on the FTC website, and I highly commend them to anyone interested in the current debates 

about the future of competition and consumer protection policy.

We are now turning our attention to producing output from the hearings, led by our 

Office of Policy Planning, or OPP. At the outset of the hearings, we posed a series of difficult 

policy questions and solicited input to help us develop perspectives on those questions. We are 

now processing that input and are formulating responses to many of those questions. As a part of 

that process, we will consider the submitted comments and public testimony. We also will 

review academic writing and judicial decisions. OPP’s output on these topics may take different 

forms. In some cases, it will be a report. In other instances, we may produce guidance or a 

policy statement that will clarify the staff’s perspective on how best to analyze firm conduct or 

transactions pursuant to existing law and economics. Where appropriate, the output will identify 

areas where the Commission may wish to develop the case law through its enforcement efforts or 

amicus program. We also are developing a protocol for a merger retrospectives program.

Given the international nature of this conference, I will focus primarily on the 

international hearing, held on March 23-24. I will also talk about the other output that we expect 

to release in the coming months. 

II. INTERNATIONAL HEARING: “THE FTC’S ROLE IN A CHANGING WORLD”

The March hearing, entitled, “The FTC’s Role in a Changing World,” was devoted to the 

international aspects of the FTC’s competition and consumer protection work. It was organized 

by our Office of International Affairs and co-sponsored by the George Washington University 

Law School’s Competition Law Center, which is headed by Bill Kovacic. It included eight 

panels as well as individual presentations, featuring 44 speakers from 17 countries. We expect to 
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release a staff report of this hearing in the near future. But I can already share with you five 

“take-aways” and recommendations based on this hearing.

First, there was strong support throughout the hearing for reauthorizing the US SAFE 

WEB Act and for making it a permanent part of the FTC Act. The SAFE WEB Act gives the 

FTC critical powers to enhance cross-border cooperation on consumer protection investigations

and fraud actions, as well as to support cross-border data transfer mechanisms. It confirms the 

agency’s legal authority to sue foreign wrongdoers and challenge misleading practices with a 

nexus to the United States or American consumers. It enhances the agency’s ability to cooperate 

through memoranda of understanding, international agreements, and staff exchanges. Notably, 

this recommendation has its roots in this conference. In 2002, FTC Chairman Tim Muris called 

for legislative changes to improve the agency’s ability to engage in mutual assistance on crossborder consumer fraud matters with our foreign counterparts in his speech here at the Fordham 

conference.

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 That call became the SAFE WEB Act, which we have used hundreds of times in 

various cases, from Internet pyramid schemes and sweepstakes telemarketing schemes to 

complex advertising and privacy investigations. 

The hearings confirmed the Act’s value and success. Foreign consumer protection, 

privacy, and criminal law enforcement officials, as well as senior U.S. agency officials and 

academics, singled out the legislation as a “key element” of the FTC’s enforcement program.3 In 

his keynote presentation, Bill Kovacic explained that the Act created an “indispensable element 

 2 Timothy J. Muris, The Interface of Competition and Consumer Protection at 27-28 (Oct. 31, 2002), 

https://www.ftc.gov/sites/default/files/documents/public_statements/interface-competition-and-consumerprotection/021031fordham.pdf. 3 Fed. Trade. Comm’n Hearings on Competition and Consumer Protection in the 21st Century: The FTC’s Role in a 

Changing World, Mar. 25th Hr’g Tr. at 28, 52, 90, 115, 130 (2019) (hereinafter Hr’g Tr.), 

https://www.ftc.gov/system/files/documents/public_events/1454018/ftc_hearings_session_11_transcript_day_1_3-

25-19.pdf.
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of the infrastructure that supports international cooperation today. . . .”4

 Foreign enforcers, 

including the U.K. Information Commissioner’s Office and several Canadian law enforcement 

agencies, cited numerous examples of cooperation pursuant to the Act that benefited consumers 

in the United States and elsewhere. Others foreign officials described how they had developed 

reciprocal mechanisms modeled on the SAFE WEB Act that enabled them to provide similar 

assistance to the FTC. 

The Act is currently subject to a “sunset” provision that will terminate it on 

September 30, 2020.5 Recognizing its importance to our mission, we have asked Congress to 

reauthorize the Act and eliminate the sunset provision so that its provisions can become a 

permanent part of the FTC Act.6 

Second, there was strong support for pursuing mechanisms for enhanced information 

sharing and investigative assistance in antitrust investigations. In today’s interconnected world, 

the agencies need to obtain and share information quickly and efficiently in order to conduct

effective cross-border investigations. Participants stressed the need to improve opportunities for 

obtaining information, including confidential information, and investigative assistance from the 

FTC’s counterpart competition agencies. 

Although the FTC’s current network of international agreements provide important legal 

frameworks for cooperation in competition investigations, they do not provide for the ability to 

share confidential information or to use domestic investigative tools to provide reciprocal 

investigative assistance. The International Antitrust Enforcement Assistance Act of 1994 had the 

 4 Hr’g Tr. at 28.

5 Undertaking Spam, Spyware, and Fraud Enforcement With Enforcers Beyond Borders Act (U.S. SAFE WEB 

Act), Pub. L. No. 109-455, 120 Stat. 3372, extended by Pub. L. No. 112-203, 126 Stat. 1484 (amending 15 U.S.C. 

§§ 41 et seq.). 6 E.g., Oversight of the Federal Trade Commission: Hearing Before the Subcomm. on Consumer Prot. and 

Commerce of the H. Comm. on Energy and Commerce, 115th Cong. 25-27 (May 8, 2017) (statement of Fed. Trade 

Comm’n). 
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laudable intention of filling those gaps. But the agencies have only been able to conclude one 

agreement (with Australia) pursuant to the Act.7 Based on testimony at the hearing, staff 

recommends that the FTC should, with the Department of Justice (“DOJ”), redouble its efforts to 

pursue more such agreements. 

Third, the staff recommends that the FTC should continue to exercise its international

leadership, leveraging its competition and consumer protection expertise to address emerging 

issues. Panelists recognized the FTC’s leadership in promoting sound antitrust enforcement 

internationally, and suggested ways in which we could expand our leadership. For example, they 

cited the FTC’s role in the ICN where we have led projects resulting in ICN best practices, 

including on merger notification and review, the assessment of dominance, and most recently, 

important due process principles. Panelists urged the FTC to continue its ICN leadership and to 

prioritize its work in this critical area of procedural fairness. Panelists also recognized the FTC’s 

role in positively influencing the antitrust enforcement approaches promoted through the OECD 

and UNCTAD. 

Panelists encouraged the FTC to continue to share its research, policies, and practices 

with the international community, including through reports and guidelines. An example of how 

this can play an important role is the revised FTC-DOJ Antitrust Guidelines for International 

Enforcement and Cooperation, which explained our policy regarding extraterritorial remedies.

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These Guidelines have helped influence the enforcement policies of other agencies. 

The hearing identified challenges for FTC leadership as other jurisdictions, such as the 

EU, adopt new privacy laws and frameworks. The panelists, however, agreed that the FTC has 

 7 U.S.-Australia Mutual Antitrust Enforcement Assistance Agreement, https://www.ftc.gov/policy/cooperationagreements/usaaustralia-mutual-antitrust-enforcement-assistance-agreement. 8

 Dep’t of Justice & Fed. Trade Comm’n, Antitrust Guidelines for International Enforcement and Cooperation 

§ 5.1.5 (Jan. 13, 2017), https://www.ftc.gov/public-statements/2017/01/antitrust-guidelines-internationalenforcement-cooperation-issued-us. 
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an important leadership role to play internationally. As Bill Kovacic explained, the FTC Act 

“has the broadest jurisdiction of any type of law that we [in the United States] have to regulate 

privacy and security” and, where we do have privacy laws, they “can bite you pretty hard.”9

 

(Our record Facebook civil penalty is a good example.10) He and other panelists recognized that 

it is important for Congress to pass strong, comprehensive privacy legislation, as endorsed by the 

FTC, to support U.S. leadership on privacy and data security internationally. 

Fourth, panelists supported expanded initiatives to build strong relations with 

counterparts. Witnesses praised the FTC’s efforts to promote international convergence and 

encouraged the FTC to continue to build strong partnerships through direct engagement with our

foreign counterparts at leadership and staff levels, both bilaterally and through multilateral 

organizations. Panelists also suggested that, in addition to case cooperation, the FTC explore 

joint workshops and studies and more regional engagement.

There was also strong support among hearing participants for the FTC’s technical 

assistance and International Fellows programs. The FTC has a long history of providing 

technical assistance to foreign competition and consumer protection agencies, including by 

commenting on proposed laws, regulations, and guidelines, and through short- and long-term 

training missions. The FTC has used authority from the SAFE WEB Act to host over 

140 foreign officials for periods of several months and to exchange staff with foreign counterpart 

agencies. Panelists highlighted the value of these programs in helping agencies bring their laws 

and policies in line with international best practices and to strengthen cooperative ties among 

agency staff. 

 9 Hr’g Tr. 1 at 34-35. 10 FTC Press Release, FTC Imposes $5 Billion Penalty and Sweeping New Privacy Restrictions on Facebook (July 

24, 2019), https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-5-billion-penalty-sweeping-newprivacy-restrictions. 
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Fifth, the hearings provided support for the FTC’s role in formulating broader 

U.S. government policies that involve international issues within our mandate. The FTC’s long 

and deep experience and expertise enables us to advocate effectively for policies that promote 

consumer welfare and sound economics, and to assess the impact of foreign government 

enforcement and policies on U.S. competition policies and interests. For example, in recent 

years, U.S. companies have increasingly gone to other parts of the U.S. Government (for 

example to the Office of the U.S. Trade Representative and our foreign embassies) to complain 

about foreign antitrust investigations (sometimes with good justification). But these other parts 

of our government do not focus like we do on competition policy and enforcement implications, 

and so it is important that they hear from the antitrust agencies. The most obvious reason is that 

we sometimes are investigating the same firms for the same conduct, sometimes based on similar 

legal theories. Even if not, we do not want other U.S. agencies to complain to foreign agencies 

based on theories we think are valid and might use in similar matters. This makes convergence 

more difficult.

Now that I have covered some of the key takeaways from the international hearing, I 

want to turn to some examples of what we will be producing on some of the other topics covered 

by the hearings. I will focus on competition topics because this is a competition program, but we 

also are considering output on privacy and data security issues. 

III. OTHER HEARINGS OUTPUT

We are drafting a guidance document explaining how the antitrust laws might apply to 

conduct by technology platforms. The questions that we posed leading up to our “Multi-Sided 

Platforms” hearing will give you a good sense of the substantive issues this guidance document 

will address. We expect this document to be similar in format to the Competitor Collaboration 
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Guidelines (CCGs).11 I am hoping we can articulate a framework for evaluating tech platforms 

similar to the way the CCGs did for joint ventures, and that we can provide a structure to guide 

our existing and future tech platform cases. 

We are preparing a guidance document on vertical mergers. This document will be 

similar to the 2006 Commentary on the Horizontal Merger Guidelines.12 The DOJ’s case against 

AT&T/Time Warner exposed significant misconceptions about the government’s interest in and 

willingness to challenge vertical mergers, and the extent to which any particular merger should 

have a presumption of legality. This Commentary will help explain the staff’s analytic 

framework for evaluating vertical mergers. It will make clear that anticompetitive vertical 

mergers are not unicorns, and there should not be a presumption that all vertical mergers are 

benign. There are well-known ways in which vertical mergers can be anticompetitive, and 

although such mergers may not arise every day, they are common enough that we need to pay 

careful attention to look for and challenge them. 

We are also working with the DOJ to develop vertical merger guidelines, but it is too 

early to say whether that effort will be successful. In any event, we do expect to produce a 

commentary on vertical mergers that will provide significant guidance.

In addition, we will be developing an addendum to the 2006 Horizontal Merger 

Commentary explaining how staff analyzes acquisitions of nascent competitors and how staff 

accounts for non-price factors in horizontal merger analysis. 

 11 See Fed. Trade Comm’n & Dep’t of Justice, Antitrust Guidelines for Collaborations Among Competitors (Apr. 7, 

2000), https://www.ftc.gov/public-statements/2000/04/policy-statement-ftc-doj-issue-antitrust-guidelinescollaborations-among. 12 See Fed. Trade Comm’n & Dep’t of Justice, Joint Commentary on the Horizontal Merger Guidelines (Mar. 27, 

2006), https://www.ftc.gov/news-events/press-releases/2006/03/ftc-doj-issue-joint-commentary-horizontal-mergerguidelines. 
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OPP is looking closely at the economic literature on “common ownership” or horizontal 

shareholding and will consider and recommend to the Commission whether that literature 

supports any enforcement or policy changes at or by the Commission. We are also considering 

whether a 6(b) study might be helpful.

Finally, OPP will do an analysis of the consumer welfare standard, and alternatives to 

that standard. We expect this analysis will include a review and evaluation of the literature on 

trends in concentration in product and labor markets, and discuss concerns over whether 

enforcement has been too lax. 

IV. CONCLUSION

That is a lot of work for our Office of Policy and Planning to do and to manage. But they 

are a dedicated group working very hard to generate what we hope will be valuable output. I 

would also like to thank all of those who contributed to our international hearings. We greatly 

value their input. Although the period for submitting public comments has ended, in the FTC 

tradition of continual self-reflection, our doors are always open to hearing your thoughts. In 

closing, I want to thank you for your time this morning, and I look forward to the discussion.