ADVISORY OPINIONs AT THE FEDERAL TRADE COMMISSION   applicable to Standards setting organizations

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How the FTC process works:  Excerpts from presentation by Judith A. Moreland Attorney Bureau of Competition Presented at the National Health Lawyers Association Antitrust in the Health Care Field Washington, D.C. February 13 and 14, 1997

The Commission's Rules are found at 16 C.F.R .§ 1.1

1. Availability: "Any person, partnership, or corporation may request advice from the Commission with respect to a course of action which the requesting party proposes to pursue."
2. Commission vs. staff opinions:
   1. "The Commission will consider such requests for advice and inform the requesting party of the Commission's views, where practicable, under the following circumstances: (1) The matter involves a substantial or novel question of fact or law and there is no clear Commission or court precedent; or (2) the subject matter of the request and consequent publication of Commission advice is of significant interest."
   2. "The Commission has authorized its staff to consider all requests for advice, where applicable, in those circumstances in which a Commission opinion would not be warranted."
   3. In practice, most advisory opinions are staff letters. The availability of Commission letters is limited by the rule and by practical considerations (such as the time limits).
3. Limitations
   1. Hypothetical questions will not be answered.
   2. A request normally will be considered inappropriate where "(1) the same or substantially the same course of action is under investigation or is or has been the subject of a current proceeding involving the Commission or another governmental agency, or (2) an informed opinion cannot be made or could be made only after extensive investigation, clinical study, testing, or collateral inquiry."
   3. The identity of the companies or other persons involved should be disclosed.
   4. Opinions are available with respect to proposed conduct, not conduct that is ongoing; and it needs to be intended conduct, not merely possible conduct.
      1. The proposal needs to be fully enough developed so that we can evaluate it. Organizational efforts can go forward without jeopardizing the availability of an opinion, so long as the specific actions that give rise to the antitrust issues are not carried out.
      2. With respect to a network, for example, we expect to see at least drafts of the organizing documents, participation agreements, and marketing plans. We would consider the conduct ongoing if a network had negotiated or executed contracts with payers, whether or not performance had begun. In some cases, agreement among the providers as to prices would be considered ongoing conduct.
      3. If we see ongoing conduct, we may open an investigation.