Written by Chris Mohr
Five weeks ago, the Federal Trade Commission (FTC) filed a lawsuit against Amazon, accusing the company of anti-competitive conduct. In past times, the government tried its case in the courts. Yesterday, the FTC released an unredacted version of the complaint and its spokesperson elected to riff on its contents.
There are really sound public policy reasons for the government to not engage in this kind of activity. The first is that people generally are more apt to believe government spokespeople. In addition, those spokespeople are immune from defamation liability for statements made within the scope of their employment. Finally, it is worth pointing out that the Department of Justice has a media policy that specifically prohibits its employees from engaging in this type of extra-judicial commentary in ongoing matters.
For example, the FTC devotes a substantial amount of its comments on an atmospheric issue–lawful advertising on the Amazon Marketplace–that it does not charge as an illegal practice. Reading that, you’d think what Amazon is doing is illegal, but it isn’t.
One of the wrongs that it does charge involves Amazon’s alleged control over retail delivery, claiming that businesses enrolled in Amazon’s “Seller Fulfilled Prime” (SFP) met their self-selected delivery targets 95 percent of the time. It is not surprising that these businesses met their own self-selected criteria most of the time. What’s missing is any credible allegation that those sellers were able to satisfy the two-day delivery promise that Amazon determined its customers wanted. If that evidence existed, they would have said so.
Your ordinary Twitter (sorry, X) reader will not pick up on that nuance, and the FTC knows this: they prosecute people for misleading statements all the time. It’s one thing for the Commission to put its thumb on the scale in the context of rulemaking. It’s quite another (and far more serious) for the government to put its thumb on the scale through public relations efforts in an enforcement proceeding. Taken together, these kinds of actions begin to paint a picture of a Commission that is headed off the rails.
