AMERICAN OPTOMETRIC ASS'N v. F. T. C.

Nos. 78-1461, 78-1514, 78-1687, 78-1693, 78-1695, 78-1696, 78-1841 and 78-1872.

626 F.2d 896 (1980)

AMERICAN OPTOMETRIC ASSOCIATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. AMERICAN MEDICAL ASSOCIATION, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. The STATE OF TEXAS, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent, State of North Carolina, Commonwealth of Pennsylvania, Intervenors. STATE OF OKLAHOMA ex rel. The BOARD OF EXAMINERS IN OPTOMETRY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent, State of North Carolina, Commonwealth of Pennsylvania, State of Tennessee, Intervenors. STATE OF NEBRASKA, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent, State of North Carolina, Commonwealth of Pennsylvania, State of Tennessee, Intervenors. STATE OF INDIANA, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent, State of North Carolina, Commonwealth of Pennsylvania, State of Tennessee, Intervenors. The STATE OF WYOMING, Acting By and Through the WYOMING BOARD OF EXAMINERS IN OPTOMETRY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. COMMONWEALTH OF KENTUCKY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent.

United States Court of Appeals, District of Columbia Circuit.

Decided February 6, 1980.


Attorney(s) appearing for the Case

Edward A. Groobert, Washington, D. C., with whom Ellis Lyons, Bennett Boskey and Thomas S. Moore, Washington, D. C., were on brief, for petitioner in No. 78-1461.

Susan J. Dasher, Asst. Atty. Gen., State of Texas, Austin, Tex., with whom John L. Hill, Atty. Gen., and P. M. Schenkkan, Sp. Asst. Atty. Gen., State of Texas, Austin, Tex., were on brief, for petitioner in No. 78-1687.

H. Lee Schmidt, Asst. Atty. Gen., State of Oklahoma, Oklahoma City, Okl., was on brief, for petitioners in No. 78-1693.

Paul Douglas, Atty. Gen., and Melvin K. Kammerlohr, Asst. Atty. Gen., State of Nebraska, Lincoln, Neb., were on brief, for petitioner in Nos. 78-1695 and 78-1696.

Donald B. Bogard, Indianapolis, Ind., Chief Counsel for the Atty. Gen., State of Indiana, was on brief, for petitioner in No. 78-1696.

Michael H. Schilling, Asst. Atty. Gen., State of Wyoming, Cheyenne, Wyo., was on brief, for petitioner in No. 78-1841.

Mark F. Armstrong, Asst. Atty. Gen., State of Kentucky, Frankfort, Ky., was on brief, for petitioner in No. 78-1872.

Newton N. Minow, Chicago, Ill., with whom Jack R. Bierig, Chicago, Ill. and Lee M. Mitchell, Washington, D. C., were on brief, for petitioner in No. 78-1514.

Terry S. Latanich, Atty., F. T. C., Washington, D. C., with whom Michael N. Sohn, Gen. Counsel, David M. Fitzgerald and Jane P. Schlaifer, Attys., F. T. C., Washington, D. C., were on brief, for respondents.

Rufus L. Edmisten, Atty. Gen., David S. Crump and Howard A. Kramer, Asst. Attys. Gen., Raleigh, N. C., were on brief, for intervenor, State of North Carolina, in Nos. 78-1687, 78-1693, 78-1695 and 78-1696.

John L. Shearburn, Deputy Atty. Gen., State of Pennsylvania, Harrisburg, Pa., was on brief, for intervenor in Nos. 78-1687, 78-1693, 78-1695, 78-1696.

William M. Barrick, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., was on brief, for intervenor in Nos. 78-1692, 78-1695, 78-1696.

Thomas L. Boeder, Senior Asst. Atty. Gen., State of Washington, Seattle, Wash., was on brief, for State of Washington, amicus curiae urging the Court to set aside and void the Federal Trade Commission ruling in No. 78-1461.

Donald O. Meserve and Paul E. Sherman, Albany, N. Y., were on brief, for amicus curiae, the Board of Regents of the State of New York, urging the Court to declare 16 C.F.R. Part 456 void and in excess of the Federal Trade Commission's statutory authority in Nos. 78-1461, 78-1514, 78-1687, 78-1693, 78-1695, 78-1696, 78-1841 and 78-1872.

Donald S. Dawson and M. Joseph Stoutenburgh, Washington, D. C., were on brief, for Opticians Association of America, amicus curiae urging the denial of petition in Nos. 78-1461, 78-1514, 78-1687, 78-1693, 78-1685, 78-1696, 78-1841 and 78-1872.

Alan G. Perkins, Sacramento, Cal., was on brief, for California Optometric Association, amicus curiae urging the Court to set aside and vacate the Federal Trade Commission ruling in No. 78-1461.

Robert B. Gillan, Los Angeles, Cal., was on brief, for California Commission on Aging, Mountain Plains Congress of Senior Organizations and Gray Panthers, amicus curiae urging affirmance in No. 78-1461.

Before McGOWAN and WALD, Circuit Judges, and PENN, District Judge, United States District Court for the District of Columbia.


Opinion for the court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

Pursuant to its authority under the Magnuson-Moss Act, the Federal Trade Commission has issued a rule which dramatically curtails the ability of states and professional associations to restrict or burden the advertising of eye examinations or of ophthalmic goods and services. The Act provides that interested persons may secure judicial review of such a rule from this court by filing...

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