Louisiana Real Estate Appraisers Board; Analysis of Agreement Containing Consent Order To Aid Public Comment
| Published date | 22 June 2021 |
| Citation | 86 FR 32678 |
| Record Number | 2021-13139 |
| Section | Notices |
| Court | Federal Trade Commission |
Federal Register, Volume 86 Issue 117 (Tuesday, June 22, 2021)
[Federal Register Volume 86, Number 117 (Tuesday, June 22, 2021)]
[Notices]
[Pages 32678-32680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13139]
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FEDERAL TRADE COMMISSION
[File No. 161 0068, Docket No. 9374]
Louisiana Real Estate Appraisers Board; Analysis of Agreement
Containing Consent Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement; request for comment.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair methods of competition.
The attached Analysis of Proposed Consent Orders to Aid Public Comment
describes both the allegations in the complaint and the terms of the
consent orders--embodied in the consent agreement--that would settle
these allegations.
DATES: Comments must be received on or before July 22, 2021.
ADDRESSES: Interested parties may file comments online or on paper, by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write: ``Louisiana Real
Estate Appraisers Board; File No. 161 0068, Docket No. 9374'' on your
comment, and file your comment online at www.regulations.gov by
following the instructions on the web-based form. If you prefer to file
your comment on paper, please mail your comment to the following
address: Federal Trade Commission, Office of the Secretary, 600
Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580;
or deliver your comment to the following address: Federal Trade
Commission, Office of the Secretary, Constitution Center, 400 7th
Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024.
FOR FURTHER INFORMATION CONTACT: Patricia M. McDermott (202-326-2569),
Bureau of Competition, Federal Trade Commission, 600 Pennsylvania
Avenue NW, Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34,
notice is hereby given that the above-captioned consent agreement
containing a consent order to cease and desist, having been filed with
and accepted, subject to final approval, by the Commission, has been
placed on the public record for a period of thirty (30) days. The
following Analysis of Agreement Containing Consent Orders to Aid Public
Comment describes the terms of the consent agreement and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC website at
this web address: https://www.ftc.gov/news-events/commission-actions.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before July 22, 2021.
Write ``Louisiana Real Estate Appraisers Board; File No. 161 0068,
Docket No. 9374'' on your comment. Your comment--including your name
and your state--will be placed on the public record of this proceeding,
including, to the extent practicable, on the www.regulations.gov
website.
Due to protective actions in response to the COVID-19 pandemic and
the agency's heightened security screening, postal mail addressed to
the Commission will be subject to delay. We strongly encourage you to
submit your comments online through the www.regulations.gov website.
If you prefer to file your comment on paper, write ``Louisiana Real
Estate Appraisers Board; File No. 161 0068, Docket No. 9374'' on your
comment and on the envelope, and mail your comment to the following
address: Federal Trade Commission, Office of the Secretary, 600
Pennsylvania Avenue NW, Suite CC-5610 (Annex D), Washington, DC 20580;
or deliver your comment to the following address: Federal Trade
Commission, Office of the Secretary, Constitution Center, 400 7th
Street SW, 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If
possible, submit your paper comment to the Commission by courier or
overnight service.
Because your comment will be placed on the publicly accessible
website at www.regulations.gov, you are solely responsible for making
sure that your comment does not include any sensitive or confidential
information. In particular, your comment should not include any
sensitive personal information, such as your or anyone else's Social
Security number; date of birth; driver's license number or other state
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. You are also
solely responsible for making sure your comment does not include any
sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2),
16 CFR 4.10(a)(2)--including in particular competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular,
the written request for confidential treatment that accompanies the
comment must include the factual and legal basis for the request, and
must identify the specific portions of the comment to be withheld from
the public record. See FTC Rule 4.9(c). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted on www.regulations.gov--as legally required by FTC Rule
4.9(b)--we cannot redact or remove your comment from that website,
unless you submit a confidentiality request that meets the requirements
for such treatment under FTC Rule 4.9(c), and the General Counsel
grants that request.
Visit the FTC website at http://www.ftc.gov to read this Notice and
the news release describing this matter. The FTC Act and other laws
that the Commission administers permit the
[[Page 32679]]
collection of public comments to consider and use in this proceeding,
as appropriate. The Commission will consider all timely and responsive
public comments that it receives on or before July 22, 2021. For
information on the Commission's privacy policy, including routine uses
permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
Analysis of Agreement Containing Consent Orders To Aid Public Comment
I. Introduction
The Federal Trade Commission (``Commission'') has accepted, subject
to final approval by the Commission, an Agreement Containing Consent
Order (``Consent Agreement'') with the Louisiana Real Estate Appraisers
Board (``the Board''). The Consent Agreement resolves allegations
against the Board in the administrative complaint issued by the
Commission on May 31, 2017.
The Commission has placed the Consent Agreement on the public
record for 30 days to solicit comments from interested persons.
Comments received during this period will become part of the public
record. After 30 days, the Commission will again review the Consent
Agreement and the comments received, and will decide whether it should
withdraw from the Consent Agreement, modify it, or issue the proposed
Order. The proposed Order is for settlement purposes only and does not
constitute an admission by the Board that it violated the law, or that
the facts alleged in the complaint, other than jurisdictional facts,
are true.
II. Challenged Conduct
This matter involves allegations that the Board unreasonably
restrained price competition for appraisal services in Louisiana. The
Board is a state regulatory agency controlled by Louisiana-licensed
appraisers. The Commission's complaint challenges the Board's
promulgation and enforcement of subparts A, B, and C of Rule 31101 of
Title 46 Part LXVII of the Professional and Occupational Standards of
the Louisiana Administrative Code (``Rule 31101'').
The complaint alleges that the Board's promulgation and enforcement
of Rule 31101 displaced competition and introduced a regime of rate
regulation. The Board's actions had the effect of requiring appraisal
management companies (``AMCs'') to pay rates for appraisal services
consistent with median fees identified in fee surveys commissioned and
published by the Board. Specifically, the Board investigated and issued
complaints against AMCs that paid fees below the rates specified in the
surveys, and entered into settlement agreements with AMCs that required
those companies to pay fees at or above the median fee survey levels.
The complaint alleges that the Board's actions exceeded the scope
of its obligations under the appraisal independence provisions in the
2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (``Dodd-
Frank Act''). The complaint further alleges that the Board's conduct
resulted in anticompetitive harm in the form of higher appraisal fees
paid by AMCs in Louisiana, and that this harm is not outweighed by any
procompetitive benefits.
III. Legal Analysis
The factual allegations in the complaint support a finding that the
Board violated Section 5 of the FTC Act, 15 U.S.C. 45, by promulgating
and enforcing Rule 31101. Section 5 of the FTC Act prohibits unfair
methods of competition, including unlawful agreements in restraint of
trade prohibited by Section 1 of the Sherman Act, 15 U.S.C. 1.\1\ Under
Section 1, a plaintiff must show (1) concerted action that (2)
unreasonably restrains competition.\2\
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\1\ 15 U.S.C. 45; see, e.g., FTC v. Cement Inst., 333 U.S. 683,
693-94 (1948).
\2\ 15 U.S.C. 1; see, e.g., Arizona v. Maricopa Cnty. Med. Soc.,
457 U.S. 332, 342-343 (1982).
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A state regulatory board that consists of market participants with
distinct and potentially competing economic interests engages in
concerted action when it adopts or enforces rules that govern the
conduct of its members' separate businesses.\3\ Rule 31101, adopted and
enforced by the Board, regulates the fees paid by AMCs to appraisers in
Louisiana, including those appraisers that serve as members of the
Board.
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\3\ See N.C. Bd. of Dental Exam'rs v. FTC., 574 U.S. 494, 510-12
(2015); In re N.C. Bd. of Dental Exam'rs, 2011 FTC LEXIS 290 at *38-
39, 2011-2 Trade Cas. (CCH) ] 77,705 (Comm'n Op. and Order, Dec. 7,
2011); see also Mass. Bd. of Registration in Optometry, 110 FTC 549,
1988 WL 1025476 at *47-48 (Comm'n Op. and Order, June 13, 1988).
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Price regulation practiced by market participants is a form of
price fixing and is per se unlawful.\4\ In the alternative, a restraint
on price competition may be judged inherently suspect: that is, the
agreement is presumed to be anticompetitive because the anticompetitive
nature of the challenged conduct is obvious.\5\
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\4\ FTC v. Ticor Title Ins. Co., 504 U.S. 621, 639 (1992)
(equating price regulation by market participants with per se
unlawful price fixing); Cal. Retail Liquor Dealers Ass'n v. Midcal
Aluminum, Inc., 445 U.S. 97, 103-106 (1980) (same); Goldfarb v. Va.
State Bar, 421 U.S. 773, 781-82 (1975) (same); Schwegmann Bros. v.
Calvert Distillers Corp., 341 U.S. 384, 386-390 (1951) (same); Ky.
Household Goods Carriers Ass'n., Inc. v. FTC, 199 F. App'x 410, 411
(6th Cir. 2006) (same).
\5\ N. Tex. Specialty Physicians v. FTC, 528 F.3d 346, 359-63
(5th Cir. 2008); Polygram Holding, Inc. v. FTC, 416 F.3d 29, 35-36
(D.C. Cir. 2005).
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The state action defense is not applicable here. On a motion for
partial summary decision, the Commission concluded: (1) The Board is
controlled by active market participants; (2) therefore, in order to
constitute state action, the Board's conduct must be actively
supervised by the State; and (3) the Board's promulgation and
enforcement of Rule 31101 were not actively supervised by the State of
Louisiana.\6\
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\6\ In the Matter of La. Real Est. Appraisers Bd., No. 9374, Op.
and Order of the Comm'n, at 19-20 (Apr. 10, 2018).
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The Dodd-Frank Act also does not give rise to a defense to
antitrust liability. Exemptions from the antitrust laws are to be
narrowly construed,\7\ and the general rule is, except where federal
statutes impose conflicting obligations, courts will give effect to
both statutes.\8\ The ``good faith regulatory compliance defense'' to
antitrust liability is a narrow, rarely invoked defense. The defense
applies only when there is an inconsistency between the antitrust laws
and the imperatives imposed on the respondent by federal regulation,
such that the respondent is not able to comply with both laws.\9\ ``The
defense does not insulate anticompetitive conduct that a respondent
freely chooses to undertake; the conduct must be necessitated by
regulatory and factual imperatives.'' \10\
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\7\ Union Labor Life Ins. Co., v. Pireno, 458 U.S. 119, 126
(1982).
\8\ See Pom Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 107
(2014) (``When two statutes complement each other, it would show
disregard for the congressional design to hold that Congress
nonetheless intended one federal statute to preclude the operation
of the other.''); Morton v. Mancari, 417 U.S. 535, 551 (1974) (``The
courts are not at liberty to pick and choose among congressional
enactments, and when two statutes are capable of co-existence, it is
the duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.''); United
States v. Borden Co., 308 U.S. 188, 198 (1939) (``When there are two
acts upon the same subject, the rule is to give effect to both if
possible.'')
\9\ In the Matter of La. Real Est. Appraisers Bd., No. 9374, Op.
and Order of the Comm'n, at 5-7 (May 6, 2019) (``May 6 Comm'n
Order''); see also PhoneTele, Inc. v. Am. Tel. & Tel. Co., 664 F.2d
716, 737-38 (9th Cir. 1981) (defendant must establish that ``at the
time the various anticompetitive acts alleged here were taken, it
had a reasonable basis to conclude that its actions were
necessitated by concrete factual imperatives recognized as
legitimate by the regulatory authority'').
\10\ May 6 Comm'n Order at 7 (citing PhoneTele, 664 F.2d at 737-
38).
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[[Page 32680]]
With regard to the Board's conduct at issue here, there is no
conflict or inconsistency between the Board's obligations under the
Dodd-Frank Act and its obligations under the antitrust laws; the Board
may readily comply with both laws. The Dodd-Frank Act invites States
(and not private actors such as the Board) to cooperate with federal
authorities in regulating the real estate appraisal industry. The
antitrust laws constrain the actions of private actors (such as the
Board), but do not apply to states acting in their sovereign
capacity.\11\ It follows that, if the State of Louisiana wishes to use
a regulatory board as its instrument for implementing Dodd-Frank
responsibilities, it can avoid antitrust complications by complying
with the requirements of the state action doctrine. This assures the
resulting regulatory regime furthers the governmental interests of the
State, and not the private interests of market participants.\12\
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\11\ Parker v. Brown, 317 U.S. 341, 350-51 (1943).
\12\ See N.C. Dental, 574 U.S. at 505-12.
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IV. The Proposed Order
The proposed Order remedies the Board's anticompetitive conduct by
requiring rescission of Rule 31101 and prohibiting the Board from
regulating or fixing appraisal fees in Louisiana.
Sections II and III of the proposed Order address the core of the
Board's anticompetitive conduct. Paragraph II.A prohibits the Board
from enforcing Rule 31101, or adopting or enforcing any other rule that
sets, determines, or fixes compensation levels for appraisal services.
Paragraph II.B prohibits the Board from raising, fixing, maintaining,
or stabilizing compensation levels for appraisal services; requiring or
encouraging an AMC to pay any specific fee or range of fees for
appraisal services; or requiring or encouraging appraisers to request
any specific fee or range of fees for appraisal services. Prohibited
conduct includes adopting a fee schedule for appraisal services or
requiring AMCs to pay fees consistent with a fee survey or schedule of
appraisal fees. Paragraph II.C prohibits the Board from discriminating
against any AMC based on the fees that the company pays for appraisal
services except in the limited circumstance described below. Prohibited
discrimination includes requesting information, conducting audits or
investigations, or holding enforcement hearings based on the AMC's
fees. The non-discrimination provision includes a proviso that permits
the Board to take actions necessary to comply with specific written
instructions it receives in conjunction with a compliance review by the
Appraisal Subcommittee of the Federal Financial Institutions
Examination Council, which monitors States' implementation of minimum
requirements for registration and supervision of AMCs under the Dodd-
Frank Act. A copy of these instructions must be provided to Commission
staff no later than 15 days after receipt, together with a description
of how the Board will comply with them. The proviso does not apply to
or limit the broad prohibitions on interfering with price competition
set forth in Paragraphs II.A and II.B of the proposed Order. Paragraph
III.A requires the Board to rescind Rule 31101, and any enforcement
order based on an alleged violation of Rule 31101, within 30 days of
the issuance of the Order. Paragraph III.B requires the Board to notify
the Commission within 60 days any time the Board adopts a new rule or
amends an existing rule relating to compensation levels for appraisal
services.
Section IV requires the Board to provide notice of the Order to the
Board's members and employees, as well as each AMC licensed by the
Board. Section V requires the Board to file with the Commission
verified written compliance reports. Section VI requires the Board to
notify the Commission in advance of changes in the Board's structure
that would affect its compliance obligations. Section VII requires that
the Board provide the Commission with access to certain information for
the purpose of determining or securing compliance with the Order.
Section VIII provides that the Order will terminate 20 years from the
date it is issued.
The purpose of this Analysis to Aid Public Comment is to invite and
facilitate public comment concerning the proposed Order. It does not
constitute an official interpretation of the proposed Order or in any
way modify its terms.
By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2021-13139 Filed 6-21-21; 8:45 am]
BILLING CODE 6750-01-P
