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On November 10, the FTC issued a policy statement announcing that it would “rigorously enforc[e] the federal ban on unfair methods of competition.” According to the announcement, the FTC intends to make wider use of the FTC Act to police companies that use unfair tactics to try to gain a competitive advantage. “When Congress created the FTC, it clearly commanded us to crack down on unfair methods of competition,” FTC Chair Lina M. Khan said. “Enforcers have to use discretion, but that doesn’t give us the right to ignore a central part of our mandate. Today’s policy statement reactivates Section 5 and puts us on track to faithfully enforce the law as Congress designed.” In enacting Section 5, Congress purposely introduced the phrase “unfair methods of competition” in the statute to distinguish the FTC’s authority from the definition of “unfair competition” at common law, the policy explained, adding that Section 5 was designed to extend beyond the reach of antitrust laws. However, recognizing that a static definition would become outdated, Congress afforded the FTC flexibility to adapt to changing circumstances. The policy statement lays out the FTC’s approach for policing unfair methods of competition, and will allow the Commission to, among other things, sue companies under its mandate to protect consumers from fraudulent practices, price discrimination, exclusive deals and loyalty rebates, and misleading business practices such as commercial bribery and false or deceptive advertising.
On September 15, five Republican Senators and four Democrats sent a letter to FDIC acting Chairman Martin Gruenberg expressing their support for the industrial loan company (ILC) charter. The Senators also expressed their opposition to regulatory actions that could “target the ILC charter in a manner not consistent with the laws Congress has passed.” The Senators noted that “the safety and soundness of the ILC charter has been broadly successful when historically compared to the rest of the banking industry,” and further explained that the ILC charter will allow “new and expanded opportunities in the regulated banking sector.” The Senators stated that they support more competition in financial services and encourage regulators “to ensure that new competition is kept under the confines of the regulated banking system, which ultimately protects consumers and our constituents.”
On September 21, CFPB Director Rohit Chopra discussed Bureau efforts to ensure markets for consumer financial products and services are “fair, transparent, and competitive.” Speaking during the Exchequer Club Fireside Chat, Chopra explained that the agency’s authorizing statute specifically directs the Bureau to promote competition by consistently enforcing the law regardless of whether an entity takes deposits. He clarified that there should not be different standards for assessing when a firm violates the law, and highlighted several ways that the Bureau is working to fulfill its mandate to ensure competitive markets. One example Chopra provided relates to reshaping the Bureau’s approach to promoting new products and offerings, especially as they relate to refinancing options. He pointed to Bureau efforts to ensure both banks and nonbanks could launch products to save private student loan borrowers money as an example of making sure all potential market entrants could benefit. Chopra stated that the Bureau is also requesting feedback from investors, lenders, and the public on topics related to improving mortgage refinancing options (covered by InfoBytes here), and is working on ways to stimulate more credit card and auto loan refinancing. Additionally, Chopra touched on other areas of focus, including consumer finance offerings that rely on emerging technologies such as banking in augmented reality and the metaverse, nonbank supervision and oversight, bright-line regulatory approaches, competitive pricing and back-end fees, regulatory arbitrage, and personal financial data rights.
On July 11, CFPB Director Rohit Chopra provided an overview of recent steps taken by the agency as part of a “whole-of-government effort” to promote financial market competition. In an effort to identify obstacles facing consumers who want to refinance or easily switch providers, the Bureau sent letters to the CEOs of the nation’s largest credit card companies asking for explanations of how they furnish data to credit reporting agencies regarding the exact monthly payment amounts made by borrowers (covered by InfoBytes here). The Bureau reported that “[c]onsumers reasonably expect that they will receive competitively priced credit based on their ability to manage and repay their credit obligations,” but warned that “this is impaired if actual payment amount information is being suppressed by major credit card companies.” Chopra added that the Bureau is also working to “identify impediments to refinancing in other markets, including mortgages and auto,” and is “accelerating its work to implement a required rulemaking on personal financial data rights” to help promote competition and switching by providing consumers more control of their data.
Chopra also highlighted an initiative to reduce junk fees. As previously covered by InfoBytes, the Bureau has requested comments from the public on fees associated with consumers’ bank accounts, prepaid or credit card accounts, mortgages, loans, payment transfers, and other financial products that are allegedly not subject to competitive processes to ensure fair pricing. The Bureau also issued an advisory opinion last month stating its interpretation that Section 808 of the FDCPA and Regulation F generally prohibit debt collectors from charging consumers “pay-to-pay” fees, also commonly known as convenience fees, for making payments online or by phone to make sure debt collectors are not “disadvantaged by those that impose unlawful fees” (covered by InfoBytes here). A rulemaking process has also begun to address credit card late fees and late payments and card issuers’ revenue and expenses (covered by InfoBytes here).
Additionally, Chopra discussed Bureau efforts to identify roadblocks facing small financial institutions and new entrants when challenging larger, more dominant players. Specifically, the Bureau issued orders to six large U.S. technology companies seeking information and data on their payment system business practices (covered by InfoBytes here). According to Chopra’s statement, the “information will help the CFPB shed light on how they will decide who they kick off their platform and how they will use the data of individual consumers and any competing businesses.” The Bureau is also working with community banks to understand the impact of major core services providers on their business (covered by InfoBytes here).
On May 24, the CFPB launched the Office of Competition and Innovation, which will focus on competition and explore ways to “create market conditions where consumers have choices, the best products win, and large incumbents cannot stifle competition by exploiting their network effects or market power.” The new office will be housed under the Bureau’s Research, Markets and Regulation division, providing “greater access to resources to look at market-structure problems that create obstacles to innovation.” It replaces the Bureau’s existing Office of Innovation, which was established in 2018 and focused on allowing companies to apply for no-action letters and regulatory sandboxes in order to test specific product offerings. According to the Bureau, the agency will no longer offer these programs after a review established that the initiatives “proved to be ineffective and that some firms participating in these programs made public statements indicating that the Bureau had conferred benefits upon them that the Bureau expressly did not.”
The new office will focus on competition and explore ways to stop large banks and fintech lenders from “squeezing out smaller players” in the consumer finance market. It will also explore ways to ensure that consumers have their “walking rights” and can easily switch service providers. Additionally, the new office will research “structural problems” that create obstacles to innovation, examine dynamics between large and small players related to competition, identify ways to address commonplace obstacles such as access to capital and talent, examine financial data-sharing to ensure large financial institutions are not hoarding large volumes of digital data, and host events that explore barriers to entry and other obstacles, the Bureau said.
Recently, the FTC released a report to Congress regarding the Commission’s actions in strengthening measures to link data privacy and competition enforcement, among other things. The report responds to the Joint Explanatory Statement accompanying the Consolidated Appropriations Act of 2021, P.L. 116-260, which directed the FTC to “conduct a comprehensive internal assessment measuring the agency’s current efforts related to data privacy and security while separately identifying all resource-based needs of the FTC to improve in these areas.” The report highlights areas that the FTC is focusing on to improve the effectiveness of the Commission’s efforts to protect Americans’ privacy:
- Integrating competition concerns. The FTC intends to “spend more time on the overlap between data privacy and competition.” The report also points out that the FTC has a “structural advantage” compared to other agencies and will look with “privacy and competition lenses at problems that arise in digital markets.”
- Advancing remedies. The FTC is providing relief for consumers and deterring unfair or deceptive privacy and security practices though four remedies: (i) notifying harmed consumers; (ii) obtaining monetary remedies for harmed consumers; (iii) obtaining non-monetary remedial relief for consumers; and (iv) prohibiting companies from benefitting from illegal data collection.
- Focusing on digital platforms. The FTC intends to increase its focus on the data practices of dominant digital platforms, which includes focusing on order enforcement.
- Expanding the FTC’s guidance and understanding of the consumer protection and competition implications of algorithms. The FTC intends “to deepen [its] understanding of the consumer protection and competition risks associated with algorithms and to expand upon the guidance that [it has] provided to businesses on using algorithms and AI truthfully, fairly, and equitably.”
Among other things, the report also urges Congress “to clarify Section 13(b) of the FTC Act and shore up the FTC’s ability to enjoin illegal conduct and revive its authority return to consumers money they have lost, which will greatly assist [the FTC’s] efforts to protect consumers.” The report further notes that the FTC will continue to push Congress to enact privacy and data security legislation, enforceable by the FTC.
In a statement released on October 1, FTC Chair Lina Khan stated the agency “should approach data privacy and security protections by considering substantive limits rather than just procedural protections, which tend to create process requirements while sidestepping more fundamental questions about whether certain types of data collection and processing should be permitted in the first place.”
- Warren W. Traiger to join Woodstock Institute for a discussion on “What’s next for the Community Reinvestment Act? Should race be included?”
- Steve vonBerg to discuss “Too QM or not-2-QM” on LinkedIn with host Ralph Armenta of Computershare Loan Services
- Sherry-Maria Safchuk to discuss “Hot topics in compliance” at 2022 California MBA Legal Issues and Regulatory Compliance conference
- Melissa Klimkiewicz to discuss “New FHA regulations on private flood insurance acceptance” at a CoreLogic Flood Services webinar