Federal Trade Commission (FTC)

The Federal Trade Commission (FTC) was established as an independent administrative agency pursuant to the Federal Trade Commission Act of 1914. The purpose of the FTC is to enforce the provisions of the Federal Trade Commission Act, which prohibits "unfair or deceptive acts or practices in commerce." The Clayton Antitrust Act (1914) also granted the FTC the authority to act against specific and unfair monopolistic practices. The FTC is considered to be a law enforcement agency, and like other such agencies it lacks punitive authority. Although the FTC cannot punish violators—that is the responsibility of the judicial system—it can issue cease and desist orders and argue cases in federal and administrative courts.

Today, the Federal Trade Commission serves an important function as a protector of both consumer and business rights. While the restrictions that it imposes on business practices often receive the most attention, other laws enforced by the FTC—such as the 1979 Franchise Rule, which directed franchisors to provide full disclosure of franchise information to prospective franchisees—have been of great benefit to entrepreneurs and small business owners. Basically, all business owners should educate themselves about the guidelines set forth by the FTC on various business practices. Some of its rules can be helpful to small businesses and entrepreneurs. Conversely, businesses that flout or remain ignorant of the FTC's operating guidelines are apt to regret it.

CREATION OF THE FTC

The FTC was created in response to a public outcry against the abuses of monopolistic trusts during the late 19th and early 20th centuries. The Sherman Antitrust Act of 1890 had proven inadequate in limiting trusts, and the widespread misuse of economic power by companies became so problematic that it became a significant factor in the election of Woodrow Wilson to the White House in 1912. Once Wilson assumed the office of the Presidency, he followed through on his campaign promises to address the excesses of America's trusts. Wilson's State of the Union Message of 1913 included a call for extensive antitrust legislation. Wilson's push, combined with public displeasure with the situation, resulted in the passage of two acts. The first was the Federal Trade Commission Act, which created and empowered the FTC to define and halt "unfair practice" in trade and commerce. It was followed by the Clayton Antitrust Act, which covered specific activities of corporations that were deemed to be not in the public interest. Activities covered by this act included those mergers which inhibited trade by creating monopolies. The FTC began operating in 1915; the Bureau of Operations, which had previously monitored corporate activity for the federal government, was folded into the FTC.

The FTC is empowered to enforce provisions of both acts following specific guidelines. The offense must fall under the jurisdiction of the various acts and must affect interstate commerce. The violations must also affect the public good; the FTC does not intervene in disputes between private parties. As noted, the FTC lacks authority to punish or fine violators, but if an FTC ruling—such as a cease and desist order—is ignored, the FTC can seek civil penalties in federal court and seek compensation for those harmed by the unfair or deceptive practices.

Since 1914 both the Federal Trade Commission Act and the Clayton Act have been amended numerous times, thus expanding the legal responsibilities of the FTC. Some of the more notable amendments are:

• Webb-Pomerene Export Trade Act of 1918—This act promoted exports by encouraging cooperative activities
• Robinson-Patman Act of 1936—This act strengthened the Clayton Act and addressed pricing practices of suppliers and wholesalers
• Wool Products Labeling Act of 1939—This act ensured the purity of wool products
• Lanham Trademark Act of 1946—This act required the registration and protection of trademarks used in commerce
• Fair Packaging and Labeling Act of 1966—This act legislated against unfair or deceptive labeling and packaging
• Truth in Lending Act of 1969—This legislation offered increased protection to consumers by requiring that companies provide full disclosure of credit terms and limit consumer liability concerning stolen credit cards; it also established regulations for advertising for credit services

• Fair Credit Reporting Act of 1970—This act established regulations and fair operating practices for credit reporting agencies
• Magnuson-Moss Warranty-Federal Trade Commission Improvement Act of 1975—This legislation expanded the authority of the FTC by allowing it to seek redress for consumers and civil penalties for repeat offenders. It also increased the FTC's authorization to pursue violations "affecting commerce" rather than violations "in commerce." This was an important distinction. Under the terms of the act, manufacturers are not required to warrant their products but if they do they must specify whether their warranties are "full" or "limited." The law also introduced rules requiring businesses to explain any limitations on warranties in writing
• FTC Franchise Rule of 1979—This rule requires franchisors to provide prospective franchisees with a full disclosure of relevant information about the franchise
• Telemarketing and Consumer Fraud and Abuse Prevention Act of 1994—This law, commonly referred to as the "Telemarketing Sales Rule," was put together in response to widespread consumer complaints about fraudulent and/or bothersome telemarketing practices. The act imposed meaningful curbs on such activities. Among the restrictions imposed by the legislation were specific identity disclosure requirements, prohibitions on misrepresentations, limitations on time during which telemarketers can make their calls, prohibitions on making calls to consumers who specifically ask not to be called, restrictions on sales of certain goods and services, and new recordkeeping requirements. The FTC and many consumer and business advocates, however, contend that FTC penalties for deceptive telemarketing practices are insufficient to meaningful curtail such activities. They are currently engaged in efforts to increase the size of FTC fines and support stiffer penalties (including jail time) for offending parties.
• The Children's Online Privacy Protection Act of 1998—This act protects children's privacy by giving parents the tools to control what information is collected from their children online. Under the act, operators of commercial Web sites and online services that include children as their intended audience, are obliged to carry out a list of actions meant to protect children and in some cases to assure parental knowledge of a child's online activity.
• Do-Not-Call Registry Act of 2003—This act authorizes the FTC, under sections of the Telemarketing and Consumer Fraud and Abuse Prevention Act, to implement and enforce a do-not-call registry to be established and run by the commission. The registry is nationwide in scope, applies to all telemarketers (with the exception of certain non-profit organizations), and covers both interstate and intrastate telemarketing calls. Commercial telemarketers are not allowed to call a number that is on the registry, subject to certain exceptions.
• Fair and Accurate Credit Transactions Act of 2003—This act's provisions are designed to improve the accuracy of consumers' credit-related records. It gives consumers the right to one free copy of their credit report a year from the credit reporting agencies, and consumers may also purchase for a reasonable fee a credit score along with information about how the credit score is calculated. The act also includes provisions to prevent and mitigate identity theft, to enable consumers to place fraud alerts in their credit files, and to grant consumers additional rights with respect to how their information is used.

In recent years, the Federal Trade Commission has been very attentive to developments related to e-commerce and online activities generally. With the growth of globalization and the information economy, the FTC is likely to continue exploring the ways in which these movements converge and impact consumer protection. This is the area most likely to see expanded FTC regulations in the future.

FTC BUREAUS

The FTC is administered by a five-member commission. Each commissioner is appointed by the President for a seven-year term with the advice and consent of the Senate. The commission must represent at least three political parties and the President chooses from its ranks one commissioner to be chairperson. The chairperson appoints an executive director with the consent of the full commission; the executive director is responsible for general staff operations.

Three bureaus of the FTC interpret and enforce jurisdictional legislation: the Bureau of Consumer Protection, the Bureau of Competition, and the Bureau of Economics.

Bureau of Consumer Protection

The Bureau of Consumer Protection is charged with protecting the consumer from unfair, deceptive, and fraudulent practices. It enforces congressional consumer protection laws and regulations issued by the Commission. In order to meet its various responsibilities, the Bureau often becomes involved in federal litigation, consumer, and business education, and conducts various investigations under its jurisdiction. The Bureau has divisions of advertising, marketing practices, credit, and enforcement.

Bureau of Competition

The FTC's Bureau of Competition is responsible for antitrust activity and investigations involving restraint of trade. The Bureau of Competition works with the Antitrust Division of the U.S. Department of Justice, but while the Justice Department concentrates on criminal violations, the Bureau of Competition deals with the technical and civil aspects of competition in the marketplace.

Bureau of Economics

The Bureau of Economics predicts and analyzes the economic impact of FTC activities, especially as these activities relate to competition, interstate commerce, and consumer welfare. The Bureau provides Congress and the Executive Branch with the results of its investigations and undertakes special studies on their behalf when requested.

APPLICATIONS FOR COMPLAINTS

The FTC becomes aware of alleged unfair or deceptive trade practices as a result of its own investigations or complaints from consumers, business people, trade associations, other federal agencies, or local and state governmental agencies. These complaints become known as "applications for complaints" and are reviewed to determine whether or not they fall under FTC jurisdiction. If the application does fall under FTC jurisdiction, the case can be settled if the violator agrees to a consent order. This is a document issued by the FTC after a formal—and in some cases—public hearing to hear the complaint. Consent orders are handed down in situations where the offending company or person agrees to discontinue or correct the challenged practices. If an agreement is not reached via a consent order, the case is litigated before an FTC Administrative Law Judge. After the judge has handed down his or her decision, either the FTC counsel or the respondent can appeal the decision to the Commission. The Commission may either dismiss the case or issue a cease and desist order. If a cease and desist order is issued, the respondent has sixty days to take all necessary steps to obey the order or launch an appeal process through the federal court system.

For further information on the FTC, its various responsibilities, and its impact on small business owners, contact the agency at one of the following addresses: Federal Trade Commission, CRC-240, Washington, D.C. 20580, or online at http://www.ftc.gov/.