Overlawyered has a good summary of exactly how the new FTC regulations are going to affect bloggers, but in his comments, we get an idea of what an FTC action looks like. I have done a bit of research, which seems to confirm this:
Letâ€™s also understand the process by which the FTC will enforce its rules. FTC regional offices will be spending their days combing the Internet looking for â€œviolatorsâ€. Blog operators will then get a â€œdemand letterâ€ from the regional office demanding they either post certain disclaimers or remove offending posts. These letters will include a â€œconsent orderâ€ admitting guilt without any sort of due process, as well as a lengthy financial disclosure form that provides the FTC with a complete picture of your personal and business finances.
The FTC doesnâ€™t negotiate. You canâ€™t call them up to straighten things out. Once the demand letter is issued, you have already been judged guilty. If you want to contest the charges, youâ€™ll be hauled before an FTC administrative law judge, not a regular federal court. Even if you convince the ALJ to side with you, the FTC commissioners hear any appeals â€” and the FTC has a 100% reversal rate when the ALJs rule against FTC staff.
You can appeal from the FTC commission to the US Court of Appeals, then to the Supreme Court, but that much lawyering isn’t exactly cheap. This is chilling. I’d like to blame Obama for this, but the rule change was started under Bush. Congress should eliminate the Federal Trade Commission and replace it with an agency it retains more control over. The FTC, under our system of Government, is a pseudo-legislative, pseudo-judicial body that should not be constitutional. It is a relic of the New Deal, and needs to go.