Re: Accountable Tech Petition for Rulemaking to Prohibit Tailored Advertising (Comment to the Federal Trade Commission)

17 Pages Posted: 28 Jan 2022 Last revised: 30 Jan 2022

See all articles by James C. Cooper

James C. Cooper

George Mason University - Antonin Scalia Law School

Jane R. Bambauer

University of Florida Levin College of Law; University of Florida - College of Journalism & Communication; University of Arizona - James E. Rogers College of Law

Joshua D. Wright

Lodestar Law and Economics

John M. Yun

George Mason University - Antonin Scalia Law School

Date Written: January 27, 2022

Abstract

This comment addresses Accountable Tech’s Petition asking the Federal Trade Commission (FTC) to initiate a rulemaking to prohibit tailored advertising (TA) as an unfair method of competition (UMC). We make five main points that cast serious doubt on the wisdom and viability of such a rulemaking. First, as a threshold matter, there are reasons to doubt that Congress has given the FTC the power to promulgate rules under its UMC authority. Second, the FTC can reach any use of TA that harms competition under its current authority. Third, given that a per se condemnation of TA would represent such a monumental departure from Sherman Act precedent, there are serious doubts that such an interpretation of the Commission’s UMC power would withstand judicial scrutiny under Chevron. Fourth, TA provides consumer benefits in terms of access to free content and services that far exceed the costs in lost privacy. Finally, any rule that would limit TA will have to pass First Amendment scrutiny.

Keywords: antitrust, competition law, consumer protection, Federal Trade Commission, online advertising, unfair method of competition, Chevron deference, First Amendment

JEL Classification: K2, K20, K21, K23

Suggested Citation

Cooper, James C. and Yakowitz Bambauer, Jane R. and Wright, Joshua D. and Yun, John M., Re: Accountable Tech Petition for Rulemaking to Prohibit Tailored Advertising (Comment to the Federal Trade Commission) (January 27, 2022). George Mason Law & Economics Research Paper No. 22-01, Arizona Legal Studies Discussion Paper No. 22-03, Available at SSRN: https://ssrn.com/abstract=4019697 or http://dx.doi.org/10.2139/ssrn.4019697

James C. Cooper

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9582 (Phone)

Jane R. Yakowitz Bambauer

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

University of Florida - College of Journalism & Communication ( email )

United States

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

Joshua D. Wright

Lodestar Law and Economics ( email )

P.O. Box 751
Mclean, VA 22101
United States

John M. Yun (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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