The scuttlebut is that the Commission believes it may not be able to bring and win a traditional, Section 2 antitrust action, and so may resort to Section 5 to make its case - or simply force a settlement, as the FTC did against IntelВ in late 2010. The topic has come up, of course, in the context of the FTCвЂ™s case against Google. Given the attention being paid to the FTCвЂ™s antitrust authority under Section 5, we thought it would be helpful to offer a brief primer on the topic, highlighting why we share the skepticism expressed by the letter-writing members of Congress (along with many other critics). Only under heavy pressure from Congress, including a brief shutdown of the agency (and significant public criticism for becoming the вЂњ National NannyвЂњ), did the agency finally produce a Policy Statement on UnfairnessВ - which Congress eventually codified by statute. As Howard Beales recounts, the FTC took an expansive view of its authority and failed to produce guidelines or limiting principles to guide its growing enforcement against вЂњunfairвЂќ practices - just as today it offers no limiting principles or guidelines for antitrust enforcement under the Act. This brewing standoff is reminiscent of a similar contest between Congress and the FTC over the CommissionвЂ™s aggressive use of Section 5 in consumer protection cases in the 1970s.

Unfortunately for the Commissioners, no appellate court has upheld such an action since the 1960s. The FTC is rumored to be considering such a suit, and FTC Chairman Jon Leibowitz and Republican Commissioner Tom Rosch have expressed a desire to litigate such a so-called вЂњpureвЂќ Section 5 antitrust case - one not adjoining a cause of action under the Sherman Act.

In the past two weeks, Members of Congress from both partiesВ have penned scathing letters to the FTC warning of the consequences (both to consumers and the agency itself) if the Commission sues Google not under traditional antitrust law, but instead by alleging unfair competition under Section 5 of the FTC Act.

Ftc act s 5