Facebook has asked recently confirmed Federal Trade Council Chairman Lina Khan to withdraw from the agency’s antitrust enforcement against Facebook, arguing that her previous criticism of the company rejects her from a fair assessment of its behavior.
Wall Street Journal was first reported on Facebook appeal, which was filed with the FTC today. In the petition, Facebook’s lawyers write that “President Khan has consistently and very publicly stated that Facebook is guilty of violating competition laws. He has built his career largely by dismissing Facebook as a recognized antitrust violator. “Facebook cites Khan’s previous antitrust work at the nonprofit Open Markets Institute, his contribution to congressional antitrust research, and his popular and academic writings on technology industry monopolies and tweets that praise the FTC’s compliance with antitrust rules against Facebook.
The petition alleges that Khan has “anticipated Facebook’s alleged competitive liability” by supporting the FTC’s previous law enforcement efforts and conducting academic and congressional investigations in which he held that Facebook had a monopoly. Khan’s opinions have been unusually high, but it is not uncommon for government officials to have worked for law firms or expressed their opinions about their experts, and it is rare for a confirmed nominee to be dismissed on this basis.
Facebook is following Amazon’s playlist, which is also asked Khan to withdraw any Amazon procedures. (“Facebook agrees with Amazon’s arguments about situations where the commissioner’s previous statements call for rejection, and includes these legal arguments,” the petition states.) But Facebook has an even more immediate risk: last month, the judge threw out federal competition lawsuit against Facebook and allowed the FTC until July 29 to amend and supplement it.
Khan joined the FTC soon before the Facebook case was rejected, and as chairman, he could play a key role in deciding its future. Facebook wants Khan to refrain from participating in decisions about the FTC’s extension of antitrust rules against the company and how.
Requests for rejection of FTC commissioners are generally not accepted, and Khan was confirmed largely because of support from both parties for his sharp and public criticism of technology companies. He hasn’t announced his intention to withdraw from Amazon’s cases – and it seems unlikely that he would do the same with Facebook.