FTC Issues Staff Report on Enforcement Perspectives on Noerr-Pennington Doctrine

The Federal Trade Commission today released a staff report by its Office of Policy Planning and Bureau of Competition that provides enforcement perspectives on the Noerr-Pennington doctrine, which precludes enforcement of the antitrust laws against certain private acts that urge government action.

“When properly applied, the Noerr doctrine serves important purposes in our representative democracy,” said Maureen Ohlhausen, Director of the FTC’s Office of Policy Planning. “Unnecessarily broad interpretations of the doctrine, however, can protect abuses of government processes and impose significant costs on consumers.”

The report provides the staff’s views on how best to apply the Noerr doctrine to conduct that imposes great risk to competition but does not further the First Amendment and government decision-making principles that underlie the doctrine. The views presented are based on recent FTC enforcement experience and the staff’s assessment of the type of issues that the Commission is likely to encounter in the future.

Structure of the Report: The report begins with an introduction that explains the fundamental goals of the FTC’s antitrust enforcement program and how they relate to Noerr-Pennington, and then identifies three types of potentially anticompetitive conduct: 1) requests for ministerial acts; 2) misrepresentations to a government decision maker in a non-political context; and 3) repetitive requests for government action filed regardless of merit solely to use the government process, rather than the outcome of the process, to injure competitors.

Part I of the report describes the development of the doctrine. It includes a section on the evolution of Supreme Court jurisprudence related to the doctrine and an analysis of the underpinnings of the doctrine, including First Amendment rights, as well as protection of the governmental decision-making process.

Part II explains how to delineate the proper parameters of the Noerr Pennington doctrine, focusing on filings that seek only a ministerial response, misrepresentations, and repetitive petitioning.

Finally, Part III contains staff recommendations regarding the doctrine, including recommending that the doctrine be clarified to provide that: 1) conduct protected by Noerr does not extend to filings, outside of the political arena, that seek no more than a ministerial government act; 2) conduct protected by Noerr does not extend to misrepresentations, outside of the political arena, that meet the standards set forth in the Commission’s Unocal decision; and 3) conduct protected by Noerr does not extend to patterns of repetitive petitioning, outside of the political arena, filed without regard to merit that employ government processes, rather than the outcome of those processes, to harm competitors in an attempt to suppress competition.

The Commission vote to issue the report was 4-0, with Commissioner J. Thomas Rosch recused.

Copies of the staff report are available on the FTC’s Web site at www.ftc.gov. The FTC’s Bureau of Competition, in coordination with the Bureau of Economics, seeks to prevent business practices that restrain competition. The Bureau carries out its mission by investigating alleged law violations and, when appropriate, recommending that the Commission take formal enforcement action. To notify the Bureau concerning particular business practices, call or write the Bureau of Competition, Federal Trade Commission, Room 394, 600 Pennsylvania Ave, N.W., Washington, DC 20580, Electronic Mail: antitrust@ftc.gov; Telephone (202) 326-3300. For more information on the laws that the Bureau enforces, the Commission has published “Promoting Competition, Protecting Consumers: A Plain English Guide to Antitrust Laws,” which can be accessed at http://www.ftc.gov/bc/compguide/index.htm.

(FTC File No. P013518)