No sooner did I leave the stage at our Ad Law Summit than an alert lit up my phone with the news of an FTC warning letter. This one really caught my eye because it reflected exactly the kind of FTC activity that I had just presented about. My topic at the Summit, "What Advertising Lawyers Are (Or Should Be) Worrying About in 2026", addressed - among other topics – what appear to be the new priorities of the new FTC.  What we've seen, so far, mixed in with "kitchen table" enforcement areas (negative options, business opportunity scams and the like), are a few unusual matters: included among these are the FTC’s full-day workshop “The Dangers of ‘Gender-Affirming Care’ for Minors” and its warning letter to Alphabet about its alleged practice of applying Gmail’s spam filter to Republican fundraising emails but not to Democratic ones. As I said in my presentation, these not-exactly-kitchen-table areas of enforcement are the ones that, to me, underscore the fact that this truly is a new FTC and that there could be more surprises in store. 

I just didn't think they’d come so soon, like the minute I finished my presentation. 

The new warning letter, from FTC Chairman Andrew Ferguson, is addressed to Tim Cook, CEO of Apple, and takes aim at Apple News, the news aggregator made available on iPhone and iPads. The letter claims that “there have been reports that Apple News has systematically promoted news articles from left-wing news outlets and suppressed news articles from more conservative publications” and that “Apple News has chosen not to feature a single article from an American conservative-leaning news source, while simultaneously promoting hundreds of articles from liberal publications.”  As evidence for these conclusions, the letter cites two sources: an article from the New York Post (owned by News Corp, the global media conglomerate which also includes Fox and the Wall Street Journal) and one from the Media Research Center, a “conservative watchdog group tracking media bias” (according to the New York Post).

Since, as recognized by Commissioner Ferguson, the First Amendment precludes the FTC from acting as “speech police” or requiring “Apple or any other firm to take affirmative positions on any political issue, …or to curate news offerings consistent with one ideology or another,” the letter takes a different tack: it asserts that “Big Tech companies that suppress or promote news articles in their news aggregators or feeds based on the perceived ideological or political viewpoint of the article or publication may violate the FTC Act if that suppression or promotion (1) is inconsistent with the terms and conditions of service; (2) is contrary to consumers’ reasonable expectations such that failure to disclose the ideological favoritism is a material omission; or (3) when those practices cause substantial injury that is neither reasonably avoidable nor outweighed by countervailing benefits to consumers or competition.”  

In other words, according to the FTC, featuring more articles with a liberal bias than with a conservative bias violates the FTC Act if Apple News claims (i.e., in its Terms of Use) to present all news without “ideological favoritism” or consumers reasonably expect it to do so. 

A few things of note (though not addressed by the Chair): some decidedly non-liberal news outlets are included – and featured -- in Apple News, including Fox News.  Moreover, the aggregation service is personalized and personalizable: users’ activities in the News app impact what they see and users can affirmatively choose which outlets they see. 

What steps the FTC takes next – and what steps (if any) Apple, which saw its stock price plunge today, takes to appease the FTC – remain to be seen.  But, whatever they are, this action is already sending shockwaves.