Facebook recently asked senior Federal Trade Commission chairwoman Lina Khan to step down from the agency’s antitrust fight against Facebook, saying her previous criticisms of the company prevent her from fairly judging her conduct.
The Wall Street Journal first reported on Facebook’s petition, which was filed with the FTC today. In the petition, lawyers for Facebook write that “President Khan has consistently and very publicly concluded that Facebook is guilty of violating antitrust laws. She has built her career, in large part, by naming Facebook as an alleged violator of antitrust laws. Facebook cites Khan’s previous antimonopoly work at the nonprofit Open Markets Institute, his contribution to a congressional antitrust investigation, and his popular and academic writings on technology industry monopolies, as well as his tweets, which make praising the FTC’s antitrust law enforcement against Facebook.
The petition claims Khan “prejudged Facebook’s alleged antitrust liability” by supporting past enforcement actions by the FTC and by conducting academic and congressional inquiries where it found Facebook to have monopoly power. Khan’s views have been exceptionally high profile, but it is not uncommon for government officials to have held advocacy positions or expressed opinions on their areas of expertise, and it is rare for a confirmed candidate to be disqualified on this base.
Facebook is following a playbook compiled by Amazon, which also asked Khan to recuse himself from possible Amazon proceedings. (“Facebook agrees with Amazon’s arguments regarding the circumstances in which a commissioner’s prior statements require challenge and incorporate these legal arguments,” the petition notes.) But Facebook faces an even more immediate risk. : Last month, a judge dismissed a federal antitrust action against Facebook and gave the FTC until July 29 to amend and re-file it.
Khan joined the FTC shortly before the Facebook case was closed and, as chairwoman, she could play a pivotal role in deciding her future. Facebook wants Khan to refrain from “participating in any decision regarding whether and how to pursue the FTC’s antitrust case against the company.”
Disqualification petitions against FTC commissioners are generally not granted, and Khan has been upheld in large part thanks to bipartisan support from his scathing and public criticism of tech companies. She has not indicated her intention to recuse herself from matters involving Amazon – and it seems unlikely that she will do so with Facebook either.