[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Notices]
[Pages 39959-39961]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19240]
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FEDERAL TRADE COMMISSION
[File No. 941-0107]
Santa Clara County Motor Car Dealers Association; Proposed
Consent Agreement With Analysis to Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement.
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SUMMARY: In settlement of alleged violations of federal law prohibiting
unfair acts and practices and unfair methods of competition, this
consent agreement, accepted subject to final Commission approval, would
prohibit, among other things, a California association from carrying
out, participating in, inducing or assisting any boycott or concerted
refusal to deal with any newspaper, periodical, television or radio
station, and would require the association to amend its by-laws to
incorporate the stipulated prohibition, and to distribute the amended
by-laws and the final Commission order to each of its members.
DATES: Comments must be received on or before October 3, 1995.
ADDRESSES: Comments should be directed to: FTC/Office of Secretary,
Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT:
Ralph Stone, San Francisco Regional Office, Federal Trade Commission,
901 Market St., Suite 570, San Francisco, CA 94103. (415) 744-7920.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of
the Commission's Rules and Practice (16 CFR 2.34), notice is hereby
given that the following consent agreement containing a consent order
to cease and desist, having been filed with and accepted, subject to
final approval, by the Commission, has been placed on the public record
for a period of sixty (60) days. Public comment is invited. Such
comments or views will be considered by the Commission and will be
available for inspection and copying at its principal office in
accordance with Section 4.9(b)(6)(ii) of the Commission's Rule of
Practice (16 CFR 4.9(b)(6)(ii)).
In the Matter of: Santa Clara County Motor Car Dealers
Association, an unincorporated association; File No. 941-0107.
Agreement Containing Consent Order to Cease and Desist
The Federal Trade Commission, having initiated an investigation of
certain acts and practices of the Santa Clara County Motor Car Dealers
Association, an unincorporated association, and it now appearing that
the Santa Clara County Motor Car Dealers Association, hereinafter
sometimes referred to as the ``Association'' or ``proposed
respondent,'' is willing to enter into an agreement containing an order
to cease and desist from the acts and practices being investigated,
It is Hereby Agreed by and between the Association, by its duly
authorized
[[Page 39960]]
officers, and its attorney, and counsel for the Federal Trade
Commission that:
1. The Association is an unincorporated association organized,
existing, and doing business under and by virtue of the laws of the
State of California, with its office and principal place of business at
336 East Hamilton Avenue, Campbell, California 95008.
2. The Association admits all the jurisdictional facts set forth in
the draft of Complaint.
3. The Association waives:
(a) Any further procedural steps;
(b) The requirement that the Commission's decision contain a
statement of findings of fact and conclusions of law;
(c) All rights to seek judicial review or otherwise to challenge or
contest the validity of the Order entered pursuant to this agreement;
and
(d) All claims under the Equal Access to Justice Act, 5 U.S.C.
Sec. 504.
4. This agreement shall not become part of the public record of the
proceeding unless and until it is accepted by the Commission. If this
agreement is accepted by the Commission, it together with the draft of
Complaint contemplated thereby, will be placed on the public record for
a period of sixty (60) days and information in respect thereto publicly
released. The Commission thereafter may either withdraw its acceptance
of this agreement and so notify the proposed respondent, in which event
it will take such action as it may consider appropriate, or issue and
serve its Complaint (in such form as the circumstances may require) and
decision, in disposition of the proceeding.
5. This agreement is for settlement purposes only and does not
constitute an admission by proposed respondent that the law has been
violated as alleged in the draft of Complaint, or that the facts as
alleged in the draft of Complaint, other than the jurisdictional facts,
are true.
6. This agreement contemplates that, if it is accepted by the
Commission, and if such acceptance is not subsequently withdrawn by the
Commission pursuant to the provisions of Section 2.34 of the
Commission's Rules, the Commission may, without further notice to
proposed respondent, (a) issue its Complaint corresponding in form and
substance with the draft of Complaint and its decision containing the
following Order to cease and desist in disposition of the proceeding
and (b) make information public in respect thereto. When so entered,
the Order to cease and desist shall have the same force and effect and
may be altered, modified or set aside in the same manner and within the
same time provided by statute for other orders. The Order shall become
final upon service. Delivery by the U.S. Postal Service of the
Complaint and decision containing the agreed-to Order to proposed
respondent's address as stated in this agreement shall constitute
service. Proposed respondent waives any right it may have to any other
manner of service. The Complaint may be used in construing the terms of
the Order, and no agreement, understanding, representation, or
interpretation not contained in the Order or the agreement may be used
to vary or contradict the terms of the Order.
7. Proposed respondent has read the proposed Complaint and Order
contemplated hereby. Proposed respondent understands that once the
Order has been issued, it will be required to file one or more
compliance reports showing that it has fully complied with the Order.
Proposed respondent further understands that it may be liable for civil
penalties in the amount provided by law for each violation of the Order
after it becomes final.
Order
I
It Is Ordered that, for the purposes of this Order, ``respondent''
or ``Association'' shall mean the Santa Clara County Motor Car Dealers
Association, its predecessors, successors and assigns, and its
directors, committees, officers, delegates, representatives, agents,
and employees.
II
It Is Further Ordered that the Association, directly or indirectly,
or through any person or any corporate or other device, in or in
connection with its activities as a trade association, in or affecting
commerce, as ``commerce'' is defined in the Federal Trade Commission
Act, shall forthwith cease and desist from carrying out, participating
in, inducing, suggesting, urging, encouraging, or assisting any boycott
of, or concerted refusal to deal with, any newspaper, periodical,
television station, or radio station; provided, however, that nothing
in this Order shall prohibit the Association or any of its members from
establishing, participating in, or maintaining joint advertising
programs, so long as such joint advertising programs are not a part of
any boycott or concerted refusal to deal and do not otherwise violate
this Order.
III
It Is Further Ordered that the Association shall:
A. Within sixty (60) days after the date this Order becomes final,
amend its by-laws to incorporate by reference Paragraph II of this
Order, and distribute by first-class mail a copy of the amended by-laws
to each of its members;
B. Within thirty (30) days after the date this Order becomes final,
distribute by first-class mail a copy of this Order and the Complaint
to each of its members;
C. For a period of five (5) years after the date this Order become
final, provide each new member with a copy of this Order, the
complaint, and the amended by-laws within thirty (30) days of the new
member's admission to the Association; and
D. Within seventy-five (75) days after the date this Order becomes
final, and annually thereafter for a period of five (5) years on the
anniversary of the date this Order became final, file with the
Secretary of the Commission a verified written report setting forth in
detail the manner and form in which the Association has complied with
and is complying with this Order.
IV
It Is Further Ordered that the Association shall notify the
Commission at least thirty (30) days prior to any change in the
Association, such as dissolution or reorganization resulting in the
emergence of a successor corporation or association, or any other
change in the corporation or association which may affect compliance
obligations arising out of this Order.
V
It Is Further Ordered that, for the purpose of determining or
securing compliance with this Order, respondent shall permit any duly
authorized representative of the Commission:
A. Upon seven (7) days' notice to respondent, to have access,
during office hours and in the presence of counsel, to inspect and copy
all books, ledgers, accounts, correspondence, memoranda and other
records and documents in the possession or under the control of
respondent relating to any matters contained in this Order; and
B. Upon seven (7) days' notice to respondent and without restraint
or interference from it, to interview officers, directors, or employees
of respondent.
[[Page 39961]]
VI
It Is Further Ordered that this Order shall terminate twenty (20)
years from the date this Order becomes final.
Analysis of Proposed Consent Order To Aid Public Comment
The Federal Trade Commission has accepted, subject to final
approval, an agreement to a proposed consent order from the Santa Clara
County Motor Car Dealers Association (``Association'').
The proposed consent order has been placed on the public record for
sixty (60) days for reception of comments by interested persons.
Comments received during this period will become part of the public
record. After sixty (60) days, the Commission will again review the
agreement and the comments received and will decide whether it should
withdraw from the agreement or make final the agreement's proposed
order.
Description of the Complaint
A complaint prepared for issuance by the Commission along with the
proposed order alleges that the Association and at least some of its
members agreed that members would cancel advertising in, and thereafter
collectively withhold advertising from, the San Jose Mercury News
newspaper in retaliation for a Mercury News article that was intended
to educate consumers on how to analyze the manufacturer's factory
invoice as part of the automobile-buying process. Armed with this
information, the consumer may be better equipped to negotiate a lower
price.
The complaint alleges that the purposes or effects of the agreement
were to restrain competition among new automobile and truck dealers in
Santa Clara County, California, and to deprive consumers of truthful
information pertinent to the purchase of new automobiles and trucks.
Agreements not to disemminate information through advertising can make
it more difficult for consumers to choose among automobile dealers by
preventing direct interbrand and intrabrand comparisons of dealers'
automobiles and their prices and services, and thus may increase
consumer search costs. Moreover, the use of the combined economic power
of the automobile dealers to affect a newspaper's editorial content may
chill the publication of information that would lower search costs and
make readers more effective consumers.
Description of the Proposed Consent Order
The proposed order would prohibit the Association from carrying
out, participating in, inducing, suggesting, urging, encouraging, or
assisting any boycott of, or concerted refusal to deal with, any
newspaper, periodical, television station, or radio station.
The proposed order would permit the Association to establish,
participate in, and maintain joint advertising programs, so long as
such joint advertising programs are not part of any boycott or
concerted refusal to deal.
The proposed order would require the Association to amend its by-
laws to incorporate by reference the order. It would also require the
Association to distribute a copy of the amended by-laws, the order, and
the complaint to each of its members, file compliance reports, and
notify the Commission of certain changes in its structure.
Finally, the proposed order contains a twenty year ``sunset''
provision. Under this provision, the terms of the order shall terminate
twenty years after the date the order becomes final.
The purpose of this analysis is to facilitate public comment on the
proposed order, and it is not intended to constitute an official
interpretation of the agreement and proposed order or to modify in any
way their terms.
The proposed consent order has been entered into for settlement
purposes only and does not constitute an admission by the Association
that the law has been violated as alleged in the complaint.
Benjamin I. Berman,
Acting Secretary.
[FR Doc. 95-19240 Filed 8-3-95; 8:45 am]
BILLING CODE 6750-01-M