As part of its “aggressive agenda” of enforcement and outreach regarding the professional licensing systems that regulate an FTC-estimated 25%-30% of jobs nationally, the Economic Liberty Task Force held a public roundtable on July 27 in Washington, DC. The Task Force, which was launched by Maureen K. Ohlhausen shortly after she took over as Acting Chairman early this year, was created—in part—to identify unnecessary and overbroad occupational licensing and prioritize the roll back of such regulations.
The roundtable is just the latest step in an active area of advocacy for the FTC. The FTC has worked with governors and state legislators to reform occupational licensing, and the agency regularly submit advocacy filings and comments on the competitive effects of proposed state legislation. In June, for example, the FTC submitted a comment in response to proposed legislation in North Carolina, claiming that NC House Bill 829 would displace competition in the market for appraisal fees paid to real estate appraisers. The FTC further warned that the North Carolina Appraisal Board tasked with adopting rulemaking necessary to enforce the proposed risked being subject to federal antitrust laws per the Supreme Court’s ruling in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015). In that landmark case, the Court held that the immunity from antitrust laws states receive as sovereigns (state act immunity) does not apply to a non-sovereign actor, and that agencies to which state legislatures have delegated control over certain markets are non-sovereign actors if composed of active market participants and not actively supervised by the state.
While the Task Force has primarily focused on advocacy and partnership with states in its review of licensing restrictions, it has shown a willingness to pursue enforcement in the area. For example, in May, the FTC filed an administrative complaint against the Louisiana Real Estate Appraisers Board, raising several issues similar to those relating to NC House Bill 829. Actions such as these define the balance of power between the federal government and the states and any entity involved in commerce with or relating to the states should consider the ramifications of federal antitrust law by enforcers willing to challenge the application of the state action doctrine.
Earlier this week, the Task Force announced a second roundtable on occupational licensing, this one focused largely on the economic theory. This and other enforcement trends provide insight as to the regulators’ current enforcement priorities and help navigate antitrust in a time of regulatory uncertainty.