Facebook Lawsuit Is Career-Defining Act for FTC Chairman

When the FTC and 46 states unveiled their tandem lawsuits against Facebook Wednesday afternoon, the commission held no press conference, and Mr. Simons said nothing at all. Instead, the FTC posted online a pre-recorded two-minute video by one of Mr. Simons’ deputies, who, with two model sailboats in the background, announced the case from his home.

The FTC lawsuit alleges Facebook engaged in an anticompetitive campaign to buy up and shut out rivals. The company rejects the claims as revisionist history and is preparing to battle the FTC in court. The case came on a 3-2 vote, with Mr. Simons, a Republican, joining two Democratic commissioners in the majority. The FTC’s other two GOP members voted no.

Mr. Simons, 62 years old, “is not flamboyant. He doesn’t stand up and claim credit. He did not take this job in order to get another job,” said George Washington University law professor William Kovacic, a former FTC chairman who previously worked with Mr. Simons at the commission. “I think he’s done a brilliant job in the hardest possible circumstances.”

The Facebook case comes after Mr. Simons has faced difficulties with the White House, which believed he was unsupportive of an administration push against tech platforms for allegedly disfavoring conservative political speech, a charge the companies generally deny. President Trump issued an executive order in May that, among other things, urged the FTC to consider taking action on the issue.

At a Senate hearing in early August, Mr. Simons made it clear he had little interest in pursuing the White House agenda, viewing it as outside the FTC’s legal authority.

Mr. Trump had pushed Mr. Simons on conservative censorship in a meeting this summer, and some within the White House wanted to explore whether the chairman could be replaced before the end of Mr. Trump’s term, according to people familiar with the matter.

“The White House has respected the role of independent agencies, but will continue to push strongly to protect Americans’ freedom of expression online,” said White House spokesman Judd Deere.

After Mr. Trump won the White House in 2016, he didn’t select an FTC chairman for almost a year. Mr. Simons, who didn’t campaign heavily for the job, emerged as the pick as other potential nominees canceled each other out. He took the helm of the five-member FTC in May 2018.

He has been under fire from the start. Mr. Simons, who also worked at the FTC during the George W. Bush administration, has led the commission while antitrust enforcement has entered the mainstream political debate. Policy advocates and lawmakers from both parties have accused the commission and the Justice Department of doing too little to police the nation’s biggest companies for competition violations, especially in the tech space.

Mr. Simons promised vigorous enforcement, including in Silicon Valley.  “We’re interested in tech platforms,” he said shortly after taking office.

The FTC, however, has been dogged by a reputation for caution and slow-paced deliberations. Its decision in 2013 not to bring a case against Google after a lengthy investigation drew criticism for years, especially as European enforcers brought multiple antitrust cases against the search giant.

While the FTC was working behind the scenes on tech, Congress was doing so publicly.  A House committee launched an investigation into dominant tech platforms and questioned the chief executives of Facebook, Google, Amazon.com and Apple Inc. in a public hearing that included criticism of the commission’s past work.

Separate from antitrust matters, the FTC last year announced Facebook agreed to a landmark $5 billion settlement for allegedly deceiving consumers about privacy protections. That agreement, too, proved controversial. The commission’s two Democrats said the settlement didn’t go far enough to restrain Facebook, one of several instances in which they have criticized the commission for not being tough enough in enforcement.

The criticisms stung Mr. Simons, according to people familiar with the matter, who has found himself trying to balance strong personalities, with two Democratic commissioners who favor a decidedly liberal direction, and two Republicans whose views are more conservative than his own. Others at the FTC, meanwhile, have felt that Mr. Simons can be guarded in his views, making it difficult at times to understand his agenda and priorities.

Mr. Simons repeatedly defended the Facebook privacy settlement, saying it provided immediate and important benefits to consumers, instead of a lengthy and uncertain court battle. In public testimony, he also has talked up other FTC efforts, including to preserve competition in the health-care space and to protect consumers from fraud.

“Working at the FTC has been the highlight of my career,” he said in an emailed statement Friday. “The Commission is filled with bright, dedicated, and energetic people who have been incredibly productive under historically adverse circumstances. The staff are the reason for our accomplishments over the last two plus years.”

People familiar with the FTC’s deliberations leading up to this week’s antitrust lawsuit against Facebook say the case wouldn’t have happened without Mr. Simons, and that the complaint reflects his views. FTC staffers who investigated the case and drafted the lawsuit were guided and overseen by the chairman’s office.

The lawsuit wasn’t assured until the end. Democratic Commissioner Rohit Chopra had pushed for additional allegations but ultimately agreed to back a bipartisan complaint, the people said. The companion lawsuit from the 46 states made some of those additional claims, including allegations that Facebook had degraded consumer privacy by squashing rivals.

Had the FTC waited until the start of the Biden administration, a case could have taken many months to materialize, which would have left the commission playing a secondary role to the state attorneys general. Mr. Simons is likely to step down in early 2021, which would leave the commission split 2-2, and a divided Senate could take months to confirm a new commissioner.

—Andrew Restuccia contributed to this article.

Write to Brent Kendall at [email protected] and John D. McKinnon at [email protected]