Senate Confirms Bedoya, Signals Opposition to FTC Zombie Votes

The Senate confirmed FTC nominee Alvaro Bedoya 51-50 Wednesday, restoring Chair Lina Khan’s Democratic majority at the commission. The Senate Commerce Committee voted unanimously during a hearing in support of a proposal that would end the agency’s practice of so-called “zombie voting,” a tactic Democratic Commissioner Rohit Chopra used after he left the agency (see 2112030042).

With Bedoya’s confirmation, the FTC “can now take steps to ensure privacy protections for children and all Americans,” Senate Majority Leader Chuck Schumer, D-N.Y., said Wednesday. A full commission will allow the FTC to crack down on bad actors “who are using anticompetitive practices, inflation, and price manipulation to bilk consumers and drive up profits.”

Senate Majority Leader Mitch McConnell, R-Ky., asked Democrats to pull the nomination Tuesday. Republicans cited Bedoya’s criticisms of former President Donald Trump and his supporters on Twitter (see 2111170059). Khan applauded Bedoya’s confirmation, tweeting his “knowledge, experience, and energy will be a great asset to the FTC as we pursue our critical work.” Bedoya, in a statement, thanked Senate Commerce Committee Chair Maria Cantwell, D-Wash., for her “steadfast support” and ranking member Roger Wicker, R-Miss. Wicker’s staff was “rigorous but also respectful and fair,” he said.

Republican Commissioners Noah Phillips and Christine Wilson spoke highly of Bedoya leading up to his confirmation (see 2204120062 and 2111230066). Phillips tweeted Wednesday he looks forward to working with him and the rest of the commission to protect competition and consumers.

Vice President Kamala Harris cast the tie-breaking, party-line vote for Bedoya. The zombie vote proposal passed by voice vote during a markup for an underlying Democratic proposal that would restore the FTC’s Section 13(b) authority (see 2205050026 and 2205030056). The underlying bill received a 14-14 party-line vote.

Sens. Jerry Moran, R-Kan., and Ted Cruz, R-Texas, introduced the zombie vote amendment. It would ensure “only current commissioners” are able to vote and make active decisions before the commission, said Moran. He cited November reports of “ghost votes,” in which Chopra’s votes were recorded after he left the commission. Current rules allow votes to be recorded up to 60 days after departure. The change would be retroactive to September, said Moran. Cantwell said she appreciated Moran’s intentions and is happy to continue working with him on it: “This is something we still need to work on.”

Wicker raised concerns about the direction of the FTC under Khan, saying Democrats’ 13(b) bill fails to incorporate meaningful guardrails that would protect legitimate businesses from undue harassment from the agency. The zombie votes, eliminating bipartisan policy statements and revision of agency rules without proper input are among Khan’s missteps, said Wicker.

Cantwell told us she was surprised by Wicker’s opposition, considering he had similar language in his own draft version of the bill. “So apparently at one point they supported it,” she said of Republicans. The FTC has been able to fight for consumers for 40 years against these wrongful actions leaving consumers “in the hole,” and Congress needs to act, she said. “It’s not ready, and I really wish it would not be put on the agenda,” Wicker told us. “It’s not likely to go forward.”

Cantwell referenced the language from Wicker during the hearing, discussing his Safe Data Act with Sen. Marsha Blackburn, R-Tenn. Both sides agree this authority needs to be restored, including commissioners from both sides of the aisle, she said. “The policy seems clear to me on why we need to be moving.” Sen. Ben Ray Lujan, D-N.M., who sponsored the bill with Sen. Amy Klobuchar, D-Minn., told us “in the larger conversations, there seems to be agreement that action is needed in this particular space.”

Wicker said he included a provision in his data privacy bill to clarify the FTC’s authority. It was done in good faith to reach bipartisan compromise, and the two sides are still negotiating two years later, he said. It’s “highly possible and achievable” to reach consensus on important issues during the remainder of this Congress, including on data privacy, he said.

Khan shouldn’t be granted additional authority because Congress can’t trust the direction of the commission, said Sen. Mike Lee, R-Utah. Lee offered an amendment that would tighten requirements for the FTC trying to prove cases using its 13(b) authority. The FTC would have to turn over certain claims to the DOJ under the amendment. It also implements a knowledge standard about unfair and deceptive acts, and requires the FTC to prove consumer harm more stringently. It mirrored a bill he introduced with Sens. Cruz; Blackburn; Cynthia Lummis, R-Wyo.; and Roy Blunt, R-Mo. The amendment failed on a 14-14 vote. It was designed to make it difficult, if not impossible, for the FTC to recoup consumer losses, requiring proof of consumer harm for every single consumer, said Cantwell. The FTC couldn’t possibly prove that many claims, and its three-year statute of limitations is unreasonable, she said. Her bill includes a 10-year statute of limitations.

Sen. Kyrsten Sinema, D-Ariz., said she has reservations about the legislation, despite her yes vote. It needs more work before it’s ready for the floor, and there should be compromises so the bill garners bipartisan support and ensures appropriate protections against “overreach,” she said. Public Knowledge urged Congress to restore the authority and pass Cantwell’s bill.

Senate Commerce also advanced two bipartisan telecom bills on voice votes: the Funding Affordable Internet with Reliable (FAIR) Contributions Act (S-2427) and the Network Equipment Transparency Act (S-3692). S-2427 would require the FCC to study “the feasibility of funding" USF "through contributions supplied by edge providers” like Google-owned YouTube and Netflix. Those companies have benefited from connectivity the USF supports, but they haven’t had to contribute, said bill sponsor Wicker. S-3692 would require the FCC to determine as part of future Telecom Act Section 706 broadband deployment reports “whether a lack of network equipment significantly impacted the deployment of advanced telecommunications capability during the applicable year.” The measure is meant to “increase broadband supply chain transparency in order to ensure an on-time rollout” of FCC-managed broadband programs.