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Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Notices 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 Commissions 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.

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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 Commissions complaint challenges the Boards 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 Boards promulgation and enforcement of Rule 31101 displaced competition and introduced a regime of rate regulation.
The Boards 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
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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 Boards 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 Boards 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
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.
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 1 15 U.S.C. 45; see, e.g., FTC v. Cement Inst., 333
U.S. 683, 69394 1948.
2 15 U.S.C. 1; see, e.g., Arizona v. Maricopa Cnty.
Med. Soc., 457 U.S. 332, 342343 1982.
3 See N.C. Bd. of Dental Examrs v. FTC., 574 U.S.
494, 51012 2015; In re N.C. Bd. of Dental Examrs, 2011 FTC LEXIS 290 at 3839, 20112
Trade Cas. CCH 77,705 Commn Op. and Order, Dec. 7, 2011; see also Mass. Bd. of Registration in Optometry, 110 FTC 549, 1988 WL 1025476 at 47
48 Commn Op. and Order, June 13, 1988.
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 Assn v. Midcal Aluminum, Inc., 445 U.S. 97, 103106 1980 same; Goldfarb v. Va. State Bar, 421 U.S. 773, 78182 1975
same; Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 386390 1951 same; Ky.
Household Goods Carriers Assn., Inc. v. FTC, 199
F. Appx 410, 411 6th Cir. 2006 same.

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agreement is presumed to be anticompetitive because the anticompetitive nature of the challenged conduct is obvious.5
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 Boards conduct must be actively supervised by the State; and 3
the Boards promulgation and enforcement of Rule 31101 were not actively supervised by the State of Louisiana.6
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
5 N. Tex. Specialty Physicians v. FTC, 528 F.3d 346, 35963 5th Cir. 2008; Polygram Holding, Inc.
v. FTC, 416 F.3d 29, 3536 D.C. Cir. 2005.
6 In the Matter of La. Real Est. Appraisers Bd., No.
9374, Op. and Order of the Commn, at 1920 Apr.
10, 2018.
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 Commn, at 57 May 6, 2019 May 6 Commn Order; see also PhoneTele, Inc. v. Am. Tel. & Tel. Co., 664 F.2d 716, 73738 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 Commn Order at 7 citing PhoneTele, 664 F.2d at 73738.

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