Facebook says FTC chief can’t be impartial and should step away from antitrust probes

Facebook Inc. is asking that the new head of the Federal Trade Commission step away from antitrust investigations into the social network giant, asserting that past public criticism of the company’s market power makes it impossible for her to be impartial.

Facebook petitioned the agency Wednesday to remove Chair Lina Khan from taking part in current investigations of the company’s market conduct. Khan has been a persistent critic of Amazon, Google and Apple, as well as Facebook.

FTC officials declined to comment on Facebook’s motion, which came two weeks after Amazon requested that Khan be excused from taking part in investigations of that company. The agency could be expected to respond formally at some point. Khan has said she would seek the opinion of FTC ethics monitors if issues arose of potential conflict of interest.

The requests from Facebook and Amazon come as the four tech giants fall under increasing scrutiny and legislative pressure from the FTC, the Justice Department, lawmakers in Washington, European regulators and, most recently, a White House executive order.

A federal judge recently dismissed antitrust lawsuits brought against Facebook by the FTC and a coalition of states, saying they didn’t provide enough evidence to prove that Facebook is a monopoly in the social networking market. The judge, however, allowed the FTC to revise its complaint and try again.

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“When a new commissioner has already drawn factual and legal conclusions and deemed the target a lawbreaker, due process requires that individual to recuse herself from related matters when acting in the capacity of an FTC commissioner,” Facebook said in its petition. “Chair Khan has consistently made public statements not only accusing Facebook of conduct that merits disapproval, but specifically expressing her belief that the conduct meets the elements of an antitrust offense.”

As counsel to a House Judiciary Committee antitrust panel in 2019 and 2020, Khan played a key role in an extensive bipartisan investigation of the market power of tech giants.

President Biden recently installed Khan as one of five commissioners and head of the FTC, signaling a tough stance toward Big Tech and its market dominance. At 32, she is the youngest chair in the history of the agency, which polices competition and consumer protection in industry generally, as well as digital privacy.

Facebook said it was making the request “to protect the fairness and impartiality” of the agency’s antitrust proceedings. “Chair Khan has consistently made well-documented statements about Facebook and antitrust matters that would lead any reasonable observer to conclude that she has prejudged the Facebook antitrust case brought by the FTC,” the company said in a statement.

Biden’s sweeping executive order on competition in U.S. industries, issued Friday, includes a new policy of closer scrutiny by regulators of proposed mergers, especially by dominant internet companies. Giant tech companies have snapped up competitors in hundreds of mergers in recent years, waved through by antitrust enforcers in both Republican and Democratic administrations.

The new order also asks the FTC to establish new rules on surveillance by tech giants and their accumulation of users’ data. In addition, the agency is requested to write rules barring unfair practices toward competitors in online marketplaces.

Last month, ambitious legislation that could curb the market power of Facebook, Google, Amazon and Apple and force them to sever their dominant platforms from their other lines of business was approved by a key House committee and sent to the full House. Some lawmakers and others critical of Facebook have cited its popular Instagram and WhatsApp messaging services as likely candidates to be divested from the core platform.