In a little noticed filing ^[1]from last Friday, the Federal Trade Commission issued a consent agreement with a director of a physicians group in Boulder, Colo. But the whole commission wasn’t on board for the agreement. Commissioner J. Thomas Rosch filed a separate ^[2]statement taking his fellow commissioners to task for basing their action on “disputed facts” and undermining the agency’s “ability to effectively negotiate consent decrees in the future.”

The agency opened an investigation into the doctors group, the Boulder Valley Individual Practice Association, in 2005 to explore whether the physicians were coordinating to fix prices for insurance payments in a way that violated antitrust laws. In 2008, the physicians group entered into a consent decree with the FTC and said it would not facilitate any agreements among doctors to set pricing terms.

The executive director of the association, M. Catherine Higgins, was not named in the consent agreement and later criticized the consent decree in the press, according to Rosch’s statement. One insurance company also then told the commission that Higgins was trying to get around the agreement by coordinating prices as an individual, and not as director of the Boulder group.

The FTC then issued a separate consent decree to cover Higgins, but Rosch disagreed with that decision. “Today’s events represent a sad conclusion to an unnecessarily sordid tale,” Rosch wrote in his filing. What Higgins said after the agreement was in dispute, Rosch said, and the facts didn’t provide a sufficient basis to file a separate agreement.

The new consent decree, Rosch said, seemed overly punitive. ”I am gravely concerned that the Commission’s abrupt decision to change its tune can be viewed as retaliation for Ms. Higgins’s decision to exercise her First Amendment rights when she publicly criticized the Commission’s initial decision against Boulder Valley,” Rosch said.