COMMON CARRIER ROLE UNLIKELY FOR FTC THIS SESSION, MURIS SAYS

It’s highly unlikely FTC could gain jurisdiction over common carrier regulation in this session of Congress because there’s too little time left, FTC Chmn. Timothy Muris told Communications Daily in interview. “We're trying to raise the importance of the issue,” he said: “On the other hand, we're a long way from any legislation moving.” Muris said he had held informal conversations with many on Capitol Hill about common carrier jurisdiction. He first raised issue publicly March 15, when he told Consumer Federation of America conference that FTC needed its exemption from common carrier lifted (CD March 18 p1). Legislation prevents FTC from common carrier oversight, and only Congress could give agency that jurisdiction, Muris said.

Advertising is most visible common carrier issue where FTC has interest, Muris said, but it also has role in deceptive practices, such as billing. Its exemption from common carrier causes problems in other areas as well, he said. Exemption would narrow scope of proposed national do- not-call list because FTC couldn’t include common carrier telemarketing on the list. (No-call-list also couldn’t prohibit telemarketing by banks because of exemption from that jurisdiction.) Muris said if FTC instituted no-call list, it would have to “hope” FCC and banking regulators followed suit.

Muris said he wasn’t surprised that groups such as USTA said FCC should continue to keep exclusive common carrier jurisdiction. However, he also said next year’s session of Congress could be advantageous for FTC in effort to get common carrier jurisdiction. “We just don’t know what the legislative lay of the land will be,” he said, but such legislation might be more feasible because it wouldn’t be election year. Muris said it would be “optimal” for Congress to completely eliminate common carrier exemption, but said focus on consumer protection was “primary concern,” since Justice Dept. (DoJ) antitrust division now has common carrier jurisdiction.

Common carrier exemption is part of reason FTC gave media mergers to DoJ in recent merger review agreement, which has been criticized by Sen. Hollings (D-S.C.), FTC Comr. Mozelle Thompson and consumer protection groups. Since FTC had common carrier exemption, Justice handled many common carrier issues and developed expertise in common carrier. In defending agreement, Muris said DoJ Antitrust Div. focused 35 full-time-equivalent (FTE) staffers on media antitrust issues, while FTC devotes 3 FTEs. He said AOL-Time Warner was only major media review FTC had done in last 5 years. “The agreement we've reached makes sense,” he said, emphasizing problems caused by “clearance” process in which 2 agencies negotiate which will review potential merger. Hollings already has threatened FTC’s budget because of agreement, specifically citing media mergers. Muris said FTC was actively discussing issue with Hollings’ staff and already had provided “lots of information.”

While he said he believed FTC had authority to make agreement, Muris said it certainly would be willing to take orders from Congress on issue. “There are other ways to divide the world,” he said. “If Congress wants us to do media mergers, we would do that.” Legislation wouldn’t be necessary to mandate that FTC handle media mergers, he said, but said there were many in Congress, asides from Hollings (who is Senate Commerce Committee chmn.), who have interest in issue, including judiciary committees in both houses and House Commerce Committee. “This is going to be a long process,” Muris said. “There are lots of people with an interest in this.”

Muris highlighted difficulties that emerged from delays in clearance process, with most-notable being animosity that surfaced between FTC and DoJ in merger reviews. “At times, it had a poisonous effect on the relationship between the people at the FTC and DoJ,” he said. “It’s not our job” to fight DoJ, he said, and “it’s a waste of the taxpayers’ money.” Only FTC chairman is involved in the “day-to-day” issues of merger review, he said, and Comr. Thompson and consumer groups aren’t experienced with issue.