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:
Let’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 “violatorsâ€. Blog operators will then get a “demand letter†from the regional office demanding they either post certain disclaimers or remove offending posts. These letters will include a “consent order†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 doesn’t negotiate. You can’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, you’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 — 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.
Sebastian said: “Congress should eliminate the Federal Trade Commission and replace it with an agency it retains more control over. ”
I fixed you sentence for you. Just trying to help.
Congress should eliminate the Federal Trade Commission and replace it with an agency it retains more control over.
Well, i tried to be cute and strike the last part of the sentence out but apparently the html doesn’t work.
My first real political awakening occurred when I realized that the concept of “checks and balances” – something so key to the American government – effectively does not apply to the subsidiary organizations of the branches of government. Sure, on paper it does, but as you said, the costs involved in exercising that concept are often out of the reach of average citizens.
We can only hope some enthusiastic (read: ‘pro bono’) lawyers might be kicking around when one of us invariably gets the package in the mail…
“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…”
It’s also not timely. Since the FTC has total control over its internal (pre-court of appeals) process, it can drag a case out for years before you even have the ability to seek redress in a real court. I was personally involved with one FTC case where the FTC took nearly two years to hear an appeal from an administrative law judge who’d ruled against the Commission. The final decision — against the defendant, of course — was ludicrous in its reasoning. The court of appeals overturned it, but it took another 1 1/2 years on top of the 2 years of internal FTC appeals and another year and-a-half before that for the original trial before the administrative law judge.
BTW — and this is a minor nit — the FTC isn’t quite a New Deal relic. It was actually created in 1917 as part of Wilsonian “Progressivism.”
Thanks for the insightful comment. I’m not sure I feel better about the FTC knowing it’s part of Wilsonian Progressivism though :) But I appreciate the insight from someone who is familiar with these matters.
Nex ut Tyrannus!
The hogs are hungry!
All Freedom lovers read, “Unintended Consequences” by John Ross