50818 Federal Register / Vol. 73, No. 168 / Thursday, August 28, 2008 / Notices 

1 The comment must be accompanied by an 

explicit request for confidential treatment, 

including the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. 

The request will be granted or denied by the 

Commission’s General Counsel, consistent with 

applicable law and the public interest. See 

Commission Rule 4.9(c), 16 CFR 4.9(c). 

2 See, e.g., FTC v. Motion Picture Advertising 

Service Co., 344 U.S. 392, 395 (1953). 

3 See, e.g., FTC v. Sperry & Hutchinson Co., 405 

U.S. 233, 239, 244 (1972) (‘‘section 5 empower[s] 

the Commission to define and proscribe an unfair 

competitive practice, even though the practice does 

not infringe either the letter or the spirit of the 

antitrust laws.’’); FTC v. Motion Picture Advertising 

Service Co., 344 U.S. 392, 395 (1953) (‘‘The ‘unfair 

methods of competition,’ which are condemned by 

§ 5(a) of the Act, are not confined to those that were 

illegal at common law or that were condemned by 

the Sherman Act’’). 

4 FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 

454 (1986) (dicta) (upholding a violation of 

Sherman Act Section 1). 

5E.I duPont de Nemours & Co. v. FTC (‘‘Ethyl’’), 

729 F.2d 128, 138 (2nd Cir. 1984); see also, Boise 

Cascade Corp. v. FTC, 637 F.2d 573 (9th Cir. 1980) 

(FTC theory ‘‘blur[red] the distinction between 

guilty and innocent commercial behavior’’); Official 

Airline Guides v. FTC, 630 F.2d 920, 927 (2nd Cir. 

1980) (‘‘enforcement of the FTC’s order here would 

give the FTC too much power to substitute its own 

business judgment for that of the monopolist in any 

decision that arguably affects competition in 

another industry’’). 

6 See, e.g.,Valassis Communications, Docket No. 

C-4160 (April 28, 2006); FMC Corp., 133 F.T.C. 815 

(2002); Stone Container Corp., 125 F.T.C. 853 

(1998); Precision Moulding Co., 122 F.T.C. 104 

FEDERAL TRADE COMMISSION 

Public Workshop Concerning the 

Prohibition of Unfair Methods of 

Competition In Section 5 of the Federal 

Trade Commission Act 

AGENCY: Federal Trade Commission. 

ACTION: Notice of Public Workshop 

SUMMARY: The Federal Trade 

Commission will hold a public 

workshop on October 17, 2008, in 

Washington, D.C., to explore the scope 

of the prohibition of ‘‘unfair methods of 

competition’’ in Section 5 of the FTC 

Act, 15 U.S.C. § 45. In particular, the 

workshop will consider the appropriate 

scope of Section 5 in light of legal 

precedent, economic learning and 

changing business practices in a global 

and hi-tech economy. The Commission 

seeks the views of the legal, academic, 

and business communities on the issues 

to be explored at the workshop. This 

notice poses a series of questions 

relevant to those issues for which the 

Commission seeks comment. The 

agency will consider these comments as 

it prepares for the workshop. Prior to 

the workshop, the Commission will 

publish an agenda on its website. 

DATES: The workshop will be held 

October 17, 2008, in the Conference 

Center of the FTC office building at 601 

New Jersey Avenue, N.W., Washington, 

D.C. Comments must be received on or 

before October 24, 2008. 

ADDRESSES: Any interested person may 

submit written comments responsive to 

any of the topics identified in this 

Federal Register notice or in any 

subsequent announcement. 

Respondents are encouraged to provide 

comments as soon as possible, but no 

later than October 24, 2008. Comments 

should refer to ‘‘Section 5 Workshop, 

P083900’’ to facilitate the organization 

of comments. Comments containing 

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

Commission Rule 4.9(c).1 Because paper 

mail in the Washington area, and 

specifically to the Federal Trade 

Commission, is subject to delay due to 

heightened security screening, please 

consider submitting your comments in 

electronic form. Comments filed in 

electronic form should be submitted by 

using the following weblink: (https:// 

secure.commentworks.com/ftcSection5workshop) (and following the 

instructions on the web-based form). To 

ensure that the Commission considers 

an electronic comment, you must file it 

on that web-based form. If this notice 

appears at http://www.regulations.gov, 

you may also file an electronic comment 

through that Web site. The Commission 

will consider all comments that 

www.regulations.gov forwards to it. A 

comment filed in paper form should 

include the ‘‘Section 5 Workshop, 

P083900’’ reference both on the first 

page of the text and on the envelope, 

and should be mailed or delivered to the 

following address: Federal Trade 

Commission/Office of the Secretary, 

Room H-135 (Annex C), 600 

Pennsylvania Avenue, N.W., 

Washington, D.C. 20580. The 

Commission requests that any comment 

filed in paper form be sent by courier or 

overnight service, if possible, because, 

as noted above, postal mail in the 

Washington area and at the Commission 

is subject to delay due to heightened 

security precautions. 

The FTC Act and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC 

website, to the extent practicable, at 

http://www.ftc.gov. The workshop will 

be transcribed; the transcript will be 

placed on the public record; and any 

written comments received will also be 

placed on the public record. The 

Commission will consider whether to 

issue a report following the conclusion 

of the workshop. As a matter of 

discretion, the FTC makes every effort to 

remove home contact information for 

individuals from the public comments it 

receives before placing those comments 

on the FTC website. More information, 

including routine uses permitted by the 

Privacy Act, may be found in the FTC’s 

privacy policy, at (http://www.ftc.gov/ 

ftc/privacy.shtm.) 

FOR FURTHER INFORMATION CONTACT: Neil 

Averitt, Office of Policy and 

Coordination, Bureau of Competition, 

600 Pennsylvania Avenue, N.W., 

Washington, D.C. 20580; telephone 202- 

326-2885; e-mail, 

Section5Workshop@ftc.gov. A detailed 

agenda and schedule for the workshop 

will be available on the FTC website 

(http://www.ftc.gov), and can be located 

through the website’s search function. 

SUPPLEMENTARY INFORMATION: When 

Congress created the FTC in 1914, it 

empowered the agency to prevent 

‘‘unfair methods of competition’’

through Section 5 of the FTC Act, 15 

U.S.C. § 45. Under Section 5, the 

Commission may condemn conduct that 

violates the Sherman Act, 15 U.S.C. § 1- 

7.2 But based on its review of the FTC 

Act’s legislative history, the Supreme 

Court has stated that Section 5 also 

reaches beyond violations of the 

Sherman Act to broader categories of 

conduct.3

The precise reach of Section 5 and its 

relationship to other antitrust statutes 

has long been a matter of debate. The 

Supreme Court has observed that the 

‘‘standard of ‘unfairness’ under the FTC 

Act is, by necessity, an elusive one, 

encompassing not only practices that 

violate the Sherman Act and the other 

antitrust laws but also practices that the 

Commission determines are against 

public policy for other reasons.’’4 In the 

early 1980s, however, lower courts were 

critical of efforts by the FTC to enforce 

a reading of Section 5 that captured 

conduct falling outside the Sherman 

Act. In striking down the FTC’s orders, 

those courts expressed a concern that 

the Commission’s theory of liability 

failed ‘‘to discriminate between 

normally acceptable business behavior 

and conduct that is unreasonable or 

unacceptable.’’5

The great majority of FTC non-merger 

cases enforce the Sherman Act. 

Beginning in the early 1990s, however, 

the Commission reached a number of 

consent agreements in matters involving 

invitations to collude;6 practices that 


jlentini on PROD1PC65 with NOTICES
Federal Register / Vol. 73, No. 168 / Thursday, August 28, 2008 / Notices 50819 

(1997); YKK (U.S.A.) Inc.,116 F.T.C. 628 (1993); AE 

Clevite, Inc., 116 F.T.C. 389 (1993); Quality Trailer 

Products,115 F.T.C. 944 (1992); FTC v. Mead 

Johnson & Co., Civ. No. 92-1366 (D.D.C. June 11, 

1992), press release available at (http:// 

www.ftc.gov/opa/predawn/F93/mead-ahp24.htm.) 

7 This category is illustrated by the cases 

involving minimum advertised prices for CDs. See 

BMG Music, Docket No. C-3973 (Aug. 30, 2000); 

Capital Records, Docket No. C-3975 (Aug. 30, 2000); 

Sony Music Entertainment, Docket No. C-3971 

(Aug. 30, 2000); Time-Warner, Inc., Docket No. C3972 (Aug. 30, 2000); Universal Music and Video 

Distribution, Docket No. C- 3974 (Aug. 30, 2000). 

See also FTC v. Mead Johnson & Co., supra. 

8 Dell Computer Corp., 121 F.T.C. 616 (1996) 

(misrepresentation of patent rights to a standardsetting body); Negotiated Data Solutions (‘‘N-Data’’), 

File No. 051-0094 (press release Jan. 23, 2008) 

(provisionally accepting consent subject to public 

comments) (reneging on prior commitment made to 

a standard setting body). 

9 II P. Areeda & H. Hovenkamp, Antitrust Law 

¶ 302h (2nd ed. 2000 Supp. 2007) (proposing this 

interpretation of Section 5). 

facilitate collusion or collusion-like 

results in the absence of an agreement;7

and misconduct relating to standard 

setting.8 Because the complaints in 

these matters did not allege all the 

elements of a Sherman Act violation, 

the Commission’s theory of liability 

rested on a broader reach of Section 5. 

As consents, none of these matters have 

been reviewed by a court. 

The workshop will examine three 

topics: (1) the history of Section 5, 

including Congress’s enactment, the 

FTC’s enforcement, and the courts’

response; (2) the range of possible 

interpretations of Section 5; and (3) 

examples of business conduct that may 

be unfair methods of competition 

addressable by Section 5. The 

Commission particularly seeks the input 

of the business community in preparing 

this last topic. 

The Commission invites public 

comment on questions relevant to these 

topics, including: 

1. What principles concerning the 

scope of Section 5 can be garnered from 

Supreme Court and appellate court 

decisions? 

2. What legal, economic, and policy 

concerns are important when 

interpreting Section 5’s prohibition 

against ‘‘unfair methods of 

competition?’’ What is the role of 

Section 5 in protecting nonprice 

competition? 

3. Is Section 5 coterminous with the 

Sherman Act? How has the courts’

development of the Sherman Act over 

time altered its relationship to Section 

5? Does the Sherman Act encompass all 

conduct that is truly harmful to 

competition? 

4. Does Section 5 authorize the FTC 

to fill technical gaps in the coverage of 

the other antitrust statutes? 

5. Can Section 5 reach externallydefined business torts where they 

threaten to bring about a future 

lessening of competition? 

6. Should Section 5 be interpreted to 

reach practices that pose at least a 

moderate threat to competition and few 

offsetting benefits to consumers, (e.g., 

reduced costs, improved products, or 

other efficiencies), where enforcement is 

limited to the FTC and relief is limited 

to an injunction prohibiting or undoing 

the challenged conduct?9

7. Does the FTC’s use of Section 5, 

independent of the Sherman Act, make 

it less likely that treble damages could 

be assessed in follow-on actions? If so, 

should that fact influence the 

interpretation of Section 5’s scope, or its 

application? 

8. What limiting principles should be 

applied to the definition of ‘‘unfair 

methods of competition?’’ How can 

‘‘unfair methods of competition’’ under 

Section 5 be defined to avoid capturing 

benign or procompetitive conduct while 

allowing for sufficient guidance and 

predictability for business? 

9. If Section 5 captures conduct 

falling outside the Sherman Act, what 

economic evidence and analysis would 

be useful in identifying violations? 

What economic evidence and analysis 

would be useful in identifying the 

proper limiting principles for the 

enforcement of Section 5? 

10. Was the Commission’s use during 

the last two decades of Section 5 claims 

in settled complaints that did not allege 

all the elements of a Sherman Act 

violation beneficial and principled or 

harmful and unbounded? How might 

courts have evaluated these claims? 

11. What are examples of business 

conduct that may be unfair methods of 

competition addressable by Section 5? 

How does that conduct harm 

competition and consumers? 

By direction of the Commission. 

Richard C. Donohue, 

Acting Secretary. 

[FR Doc. E8–20008 Filed 8–27–08: 8:45 am] 

BILLING CODE 6750–01–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

National Institute for Occupational 

Safety and Health; Designation of a 

Class of Employees for Addition to the 

Special Exposure Cohort 

AGENCY: National Institute for 

Occupational Safety and Health 

(NIOSH), Department of Health and 

Human Services (HHS). 

ACTION: Notice. 

SUMMARY: The Department of Health and 

Human Services (HHS) gives notice of a 

decision to designate a class of 

employees at the Y–12 Plant in Oak 

Ridge, Tennessee, as an addition to the 

Special Exposure Cohort (SEC) under 

the Energy Employees Occupational 

Illness Compensation Program Act of 

2000. On August 15, 2008, the Secretary 

of HHS designated the following class of 

employees as an addition to the SEC: 

All employees of the Department of Energy 

(DOE), its predecessor agencies, and DOE 

contractors or subcontractors who worked at 

the Y–12 Plant in Oak Ridge, Tennessee from 

March 1, 1943 through December 31, 1947 for 

a number of work days aggregating at least 

250 work days occurring either solely under 

this employment or in combination with 

work days within the parameters established 

for one or more other classes of employees 

in the Special Exposure Cohort. 

This designation will become 

effective on September 14, 2008, unless 

Congress provides otherwise prior to the 

effective date. After this effective date, 

HHS will publish a notice in the 

Federal Register reporting the addition 

of this class to the SEC or the result of 

any provision by Congress regarding the 

decision by HHS to add the class to the 

SEC. 

FOR FURTHER INFORMATION CONTACT: 

Larry Elliott, Director, Office of 

Compensation Analysis and Support, 

National Institute for Occupational 

Safety and Health (NIOSH), 4676 

Columbia Parkway, MS C–46, 

Cincinnati, OH 45226, Telephone 513–

533–6800 (this is not a toll-free 

number). Information requests can also 

be submitted by e-mail to 

OCAS@CDC.GOV. 

Dated: August 22, 2008. 

Christine M. Branche, 

Acting Director, National Institute for 

Occupational Safety and Health. 

[FR Doc. E8–19966 Filed 8–27–08; 8:45 am] 

BILLING CODE 4160–17–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

National Institute for Occupational 

Safety and Health; Designation of a 

Class of Employees for Addition to the 

Special Exposure Cohort 

AGENCY: National Institute for 

Occupational Safety and Health 

(NIOSH), Department of Health and 

Human Services (HHS). 

ACTION: Notice. 

SUMMARY: The Department of Health and 

Human Services (HHS) gives notice of a 

decision to designate a class of 

employees at the Spencer Chemical 


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