Well this is a big one. And although it doesn’t relate directly to the TCPA, the cross-over issues here are pretty clear.
So there’s this agency–the FTC– and it has a number of powers at its disposal. But much like the FCC, its enforcement capabilities are limited by certain statutes that give it those powers. Some of them are pretty broad–like Section 5 of the FTC Act–and some of them seem pretty narrow –like Section 13 of that Act. Essentially Section 13 just gave the FTC power to seek injunctive relief–not to recover any money in Court.
The FTC has acted (very slowly and incrementally) to unilaterally expand its powers under Section 13 over the years because its way faster than using its other powers. Essentially it gave itself the right to go to court and quickly recover profits that were obtained by clearly illegal conduct in “exceptional cases.” And over time it used this power with increasing frequency–now bringing dozens of these cases each year.
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