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Re-Connected: after years in congressional limbo, power may at long last be restored to the FTC – and that’s good news to advertisers By Alan Pell Crawfor

John Dingell, chairman of the House Committee on Energy an

Dingell is a powerful bully, too. One-third of all substantive legislation must pass through the meat grinder of his committee, which oversees several federal agencies. Each of these agencies, whose clout he fights ferociously to protect, has indeed remained strong through the years.
All, that is, except the FTC. Since 1980, the agency has had to get its work done without congressional authorization, which all other federal agencies enjoy. The FTC’s peculiar status is the result of a quarrel between the House and Senate going back to the 1970s. At issue is whether the agency can ban commercials that are not only “false” or “deceptive,” which no one disputes, but those it deems “unfair,” a vague term that has never been fully or properly defined.
Back during the Carter years, when the FTC tried to rule that children’s advertising was “unfair,” Congress took away that power, and the House has been trying to restore it ever since. Until that’s done, the House has consistently refused to reauthorize the agency. So each year the Senate Appropriations Committee has had to attach a rider to FTC funding legislation explicitly barring the agency from using any of the money for “unfairness” rule making. And each year Dingell, acutely humiliated by the whole shameful exercise in Senaterial Dingell-dissing, has had to acquiesce.
Word is he’s sick of it, and this will be the last year the FTC will be so hobbled, as well as the last year he will have to endure this torture. On June the Energy and Commerce Committee voted as always to reauthorize the agency, but only after the chairman assured committee members opposed to the “unfairness” powers that he will be willing to compromise (surrender?) on the issue during negotiations with the Senate.
One committee member to receive Dingell’s assurances was Carlos Moorehead, a California Republican, who had called the FTC’s status “an institutional embarrassment.” Another was Ohio Republican Mike Oxley, who had referred to the “harmful consequences” of allowing the agency to remain in limbo. That condition, Oxley said during the committee’s final session on the matter, “calls the (FTC’s) legal legitimacy into question, casts doubt on the agency’s continued funding, and undermines the morale of the agency’s personnel.”
Both have since stressed the chairman’s vow to them that a “consensus” on the unfairness issue can and will be reached. In this promising atmosphere, the Senate Commerce Committee is expected to send its bill to the Senate floor by late June or early July, and the whole issue may be resolved by summer’s end.
Reauthorization is no mere matter of designation. The ad industry has long been dismayed by the agency’s inferior status visa vis the other agencies, especially when zealots in the Congress have been seeking to reduce the FTC’s powers still further by distributing its authority over ad regulation to other agencies.
“A strong FTC must be the lead agency for regulating consumer communications in our society,” DeWitt F. Helm Jr., president of the Association of National Advertisers, told Al Swift’s Transportation subcommittee in late May, just before the panel’s vote. “We oppose calls of some lawmakers for dividing up the FTC’s authority over advertising and parceling it out to other federal agencies or to state authorities.”
If the FTC is to retain its hold on ad regulations, it has got to remain strong in itself, and reauthorization will go far to restore what in the way of muscle has been taken away. While things at this point seem to be going the ad industry’s way, don’t think Dingell will roll over completely. No one knows exactly what assurances he gave to wavering Energy and Commerce Committee colleagues, but he is not the kind of character to give up without a fight.
This, after all, is a man who says his favorite activity once he is done conducting a hearing is to walk over to the witness table to see which seats are wet. Boxing gloves are recommended when you go up against some guys. With Dingell, you may need rubber pants.
Copyright Adweek L.P. (1993)