FTC Clarifies Public Interest Threshold Concerning Reopening or Modifying Final Commission Orders

The Federal Trade Commission today announced that it is clarifying the test it will apply when a respondent to a final order requests that it be reopened and modified on public interest grounds.

In a letter ruling issued in 1983, the Commission said that a request to reopen and modify an order in the public interest must make a threshold showing of "affirmative need." Some have interpreted that "need" as a showing of the requester's need for relief from competitive burdens imposed by the order. There is, however, a range of threshold public interest considerations that the Commission may take into account under the "public interest" standard. Thus, the Commission is now eliminating the "affirmative need" terminology to dispel any misconception that petitions to reopen on public interest grounds must demonstrate that relief is needed to prevent competitive injury to the requester. The Commission, however, retains the requirement in Rule 2.51(b) that a requester make a "satisfactory showing" of the "public interest" (or of changed conditions of law or fact) in support of any request to reopen and modify. This showing must be supported by credible and reliable evidence.

The Commission's announcement accompanies an amendment to Rule 2.51(b) that clarifies that affidavits filed in support of petitions to reopen in the public interest must set forth specific facts demonstrating in detail the reasons why the public interest would be served by the modification.

The Commission vote to approve the clarification was 5-0. The Rule change will be detailed and explained in a Federal Register notice shortly.

Copies of the documents mentioned in this release are available from the FTC's Web site at http://www.ftc.gov and also from the FTC's Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580; 877-FTC-HELP (877-382-4357); TDD for the hearing impaired 1-866-653-4261. To find out the latest news as it is announced, call the FTC NewsPhone recording at 202-326-2710.

(File No. P859907)