[Federal Register Volume 64, Number 77 (Thursday, April 22, 1999)]
[Rules and Regulations]
[Pages 19700-19711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9841]


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FEDERAL TRADE COMMISSION

16 CFR Parts 239, 700, 701, 702, and 703


Final Action Concerning Review of Interpretations of Magnuson-
Moss Warranty Act; Rule Governing Disclosure of Written Consumer 
Product Warranty Terms and Conditions; Rule Governing Pre-Sale 
Availability of Written Warranty Terms; Rule Governing Informal Dispute 
Settlement Procedures; and Guides For the Advertising of Warranties and 
Guarantees

AGENCY: Federal Trade Commission.

ACTION: Notice of final action.

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SUMMARY: The Federal Trade Commission (``the Commission'') is 
announcing its final action in connection with the review of a set of 
warranty-related rules and guides: the Interpretations of the Magnuson-
Moss Warranty Act, (``Interpretations''); the Rule Governing Disclosure 
of Written Consumer Product Warranty Terms and Conditions, (``Rule 
701''); the Rule Governing Pre-Sale Availability of Written Warranty 
Terms, (``Rule 702''); the Rule Governing Informal Dispute Settlement 
Procedures, (``Rule 703''); and the Guides for the Advertising of 
Warranties and Guarantees, (``Guides'').
    The Interpretations represent the Commission's views on various 
aspects of the Magnuson-Moss Warranty Act (``the Act''), 15 U.S.C. 2301 
et seq., and are intended to clarify the Act's requirements. They are 
similar to industry guides in that they are advisory in nature, 
although failure to comply with the Act and the Rules under the Act as 
elucidated by the Interpretations may result in corrective action by 
the Commission. Rule 701 specifies the information that must appear in 
a written warranty on a consumer product. Rule 702 details the 
obligations of sellers and warrantors to make warranty information 
available to consumers prior to purchase. Rule 703 specifies the 
minimum standards which must be met by any informal dispute settlement 
mechanism that is incorporated into a written consumer product warranty 
and which the consumer must use prior to pursuing any legal remedies in 
court. The Guides are intended to help advertisers avoid unfair or 
deceptive practices in the advertising of warranties or guarantees.

EFFECTIVE DATE: April 22, 1999.

FOR FURTHER INFORMATION CONTACT: Carole I. Danielson, Investigator, 
Division of Marketing Practices, Federal Trade Commission, Washington, 
DC 20580, (202) 326-3115.

SUPPLEMENTARY INFORMATION: On April 3, 1996, the Commission published a 
Federal Register notice \1\, soliciting written public comments 
concerning four warranty rules and guides: (1) The Commission's 
Interpretations of the Magnuson-Moss Warranty Act, 16 CFR part 700; (2) 
the Rule Governing Disclosure of Written Consumer Product Warranty 
Terms and Conditions, 16 CFR part 701; (3) the Rule Governing Pre-Sale 
Availability of Written Warranty Terms, 16 CFR part 702; and (4) the 
Guides for the Advertising of Warranties and Guarantees, 16 CFR part 
239. On April 2, 1997, the Commission published a second Federal 
Register notice, this time soliciting written public comments 
concerning Rule 703.2 On June 13, 1997, the Commission 
extended the comment period on Rule 703 until August 1, 
1997.3 The Commission requested comments on these rules and 
guides as part of its regulatory review program, under which it reviews 
rules and guides periodically in order to obtain information about the 
costs and benefits of the rules and guides under review, as well as 
their regulatory and economic impact. The information obtained assists 
the Commission in identifying rules and guides that warrant 
modification or rescission. After careful review of the comments 
received in response to both requests, the Commission has determined to 
retain the Interpretations, Rules 701, 702, and 703, and the Guides 
without change.
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    \1\ 61 FR 14688 (April 3, 1996).
    \2\ 62 FR 15636 (April 2, 1997).
    \3\ 62 FR 32338 (June 13, 1997).
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A. Background

1. 16 CFR Part 700: Interpretations of the Magnuson-Moss Warranty Act 
(``Interpretations'')

    The Magnuson-Moss Warranty Act, 15 U.S.C. 2301 et seq., which 
governs written warranties on consumer products, was signed into law on 
January 4, 1975. Soon thereafter, the Commission received many 
questions concerning the Act's requirements. In response to these 
inquiries, the Commission decided to provide guidance in order to 
facilitate compliance with the requirements of the Act. The Commission 
published a policy statement in the Federal Register (40 FR 25721) on 
June 18, 1975, to provide interim guidance during the initial 
implementation of the Act. As the Commission continued to receive 
questions and requests for advisory opinions, however, it determined 
that guidance of a more permanent nature was appropriate. Therefore, on 
July 13, 1977, the Commission published in the Federal Register (42 FR 
36112) its Interpretations of the Magnuson-Moss Warranty Act.
    The Interpretations apply to written warranties on consumer 
products. They set forth the Commission's views on various terms and 
provisions of the Act that are not entirely clear on the face of the 
statute. Thus, the Interpretations clarify the Act's requirements for 
all who are affected by them--consumers, manufacturers, importers, 
distributors, and retailers. The Interpretations are not substantive 
rules, and do not have the force or effect of such rules; like industry 
guides, they are advisory in nature. Nonetheless, failure to comply 
with the requirements of the Act and the substantive Rules adopted 
under the Act as elucidated by the Interpretations could result in 
enforcement action by the Commission.
    The Interpretations cover a wide range of subjects covered by the 
Act and terms used in the Act, including what types of products are 
considered ``consumer products'' under the Act; what constitutes an 
``expression of general policy'' under section 103(b) of the Act 
4 and what the Act requires with respect to such expressions 
of general policy; how warranty registration cards may be used in 
connection with full and limited warranties; what constitutes an 
illegal tying arrangement under section 102(c) of the Act;\5\ and how 
to distinguish between ``written warranty,'' ``service contract,'' and 
``insurance.''
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    \4\ 15 U.S.C. 2303(b).
    \5\ 15 U.S.C. 2302(c).
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2. 16 CFR Part 701: Disclosure of Written Consumer Product Warranty 
Terms and Conditions (``Rule 701'')

    The language of the Act and its legislative history make it amply 
clear that Congress intended that the Commission promulgate rules 
regarding the disclosure of written warranty terms and conditions. 
Accordingly, on December 31, 1975, the Commission published Rule 701 in 
the Federal Register.6 Rule 701 sets forth what warrantors 
must disclose about the terms and conditions of the written warranties 
they offer on consumer products that actually cost the consumer more 
than $15.00. Rule 701 tracks the disclosure requirements suggested in

[[Page 19701]]

section 102(a) of the Act, 7 specifying information that 
must appear in the written warranty, and, for certain disclosures, 
mandates the exact language that must be used. Rule 701 requires that 
the information be disclosed in a single document in simple, easily 
understood, and concise language. In promulgating Rule 701, the 
Commission determined that the items required to be disclosed are 
material facts about product warranties, the non-disclosure of which 
would be deceptive or misleading.8
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    \6\ 40 FR 60168, 60188.
    \7\ 15 U.S.C. 2302(a).
    \8\ 40 FR 60168, 60169-60170.
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    In addition to specifying the information that must appear in a 
written warranty, Rule 701 also requires that, if the warrantor uses a 
warranty registration or owner registration card, the warranty must 
disclose whether return of the registration card is a condition 
precedent to warranty coverage. (16 CFR 701.4) Finally, it clarifies 
that, in connection with some ``seal of approval'' programs, the 
disclosures required by the Rule need not be given in the actual seal 
itself, if they are made in a publication. (16 CFR 701.3(b))

3. 16 CFR Part 702: Pre-Sale Availability of Written Warranty Terms 
(``Rule 702'')

    Section 102(b)(1)(A) of the Act directs the Commission to prescribe 
rules requiring that the terms of any written warranty on a consumer 
product be made available to the prospective purchaser prior to the 
sale of the product. Accordingly, on December 31, 1975, the Commission 
published Rule 702 in the Federal Register. 9 Subsequently, 
the Commission amended the Rule on March 12, 1987, to provide sellers 
with greater flexibility in how to make warranty information 
available.\10\
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    \9\ 40 FR 60168, 60189.
    \10\ 52 FR 7569.
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    Rule 702 establishes requirements for sellers and warrantors to 
make the text of any written warranty on a consumer product available 
to the consumer prior to sale. Among other things, the Rule (as 
amended) requires sellers to make the text of the warranty readily 
available either by (1) displaying it in close proximity to the product 
or (2) furnishing it on request and posting signs in prominent 
locations advising consumers that the warranty is available. The Rule 
requires warrantors to provide materials to enable sellers to comply 
with the Rule's requirements, and also sets out the methods by which 
warranty information can be made available prior to the sale if the 
product is sold through catalogs, mail order or door-to-door sales.

4. 16 CFR Part 703: Informal Dispute Settlement Procedures (``Rule 
703'')

    In enacting the Warranty Act, Congress recognized the potential 
benefits of consumer dispute mechanisms as an alternative to the 
judicial process. Section 110(a) of the Act sets out the Congressional 
policy to ``encourage warrantors to establish procedures whereby 
consumer disputes are fairly and expeditiously settled through informal 
dispute settlement mechanisms'' and erected a framework for their 
establishment. As an incentive to warrantors to establish such informal 
dispute settlement mechanisms (``IDSMs''), Congress provided in section 
110(a)(3), 15 U.S.C. 2310(a)(3), that warrantors may incorporate into 
their written consumer product warranties a requirement that a consumer 
must resort to an IDSM before pursuing a legal remedy under the Act for 
breach of warranty. To ensure fairness to consumers, however, Congress 
also directed that, if a warrantor were to incorporate such a ``prior 
resort requirement'' into its written warranty, the warrantor must 
comply with the minimum standards set by the Commission for such IDSMs; 
section 110(a)(2) directed the Commission to establish those minimum 
standards. Accordingly, on December 31, 1975, the Commission published 
Rule 703, 16 CFR part 703.11
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    \11\ 40 FR 60190.
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    Rule 703 contains extensive procedural standards for IDSMs, which 
must be followed by any warrantor who wishes to incorporate an IDSM, 
through a prior resort requirement, into the terms of a written 
consumer product warranty. These standards include requirements 
concerning the mechanism's structure (e.g., funding, staffing, and 
neutrality), the qualifications of staff or decision makers, the 
mechanism's procedures for resolving disputes (e.g., notification, 
investigation, time limits for decisions, and follow-up), 
recordkeeping, and annual audits. The Rule applies only to those firms 
that choose to be bound by it by placing a prior resort requirement in 
their written consumer product warranties. Neither Rule 703 nor the Act 
requires warrantors to set up IDSMs. Furthermore, a warrantor is free 
to set up an IDSM that does not comply with Rule 703 as long as the 
warranty does not contain a prior resort requirement.
    In the twenty years since Rule 703 was promulgated, most 
developments in mediation and arbitration programs for the resolution 
of consumer warranty disputes has taken place in the automobile 
industry. It is unclear how many companies, if any, continue to utilize 
a Rule 703 mechanism.12 Most vehicle manufacturers no longer 
include a prior resort requirement in their warranties; thus, they and 
any dispute resolution programs in which they participate are not 
required to comply with Rule 703.
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    \12\ General Motors ceased incorporating an IDSM in its warranty 
beginning with its 1986 models and no longer operates a 703 program. 
Ford discontinued operation under Rule 703 with its 1988 model year 
cars. Chrysler discontinued its Rule 703 program with its 1991 
models. Similarly, American Honda, Nissan, Volvo, and other auto 
manufacturers have all discontinued operating Rule 703 programs. The 
Commission has not been notified that any of these manufacturers has 
reinstituted a prior resort requirement in their warranties. 
Although they are not required to do so, the IDSMs for the major 
auto manufacturers continue to file annual audits with the 
Commission. These audits are placed on the public record and can be 
obtained from the FTC's Public Reference Branch, Room 130, 6th St. 
and Pennsylvania Ave., NW., Washington, DC 20580; 202-326-2222. (FTC 
File No. R711002)
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    The fact that most warrantors do not include prior resort 
requirements in their warranties does not mean, however, that 
warrantors have abandoned informal dispute resolution programs. On the 
contrary, due to the terms of state lemon laws 13 (as 
explained more fully below), all major automakers participate in either 
manufacturer-sponsored or state-run dispute resolution programs that 
frequently are modeled on the minimum standards set out in Rule 703 
even though they are not required to do so under any provision of 
federal law.
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    \13\ State lemon laws give consumers the right to a replacement 
or a refund if their new cars cannot be repaired under warranty. 
Under these lemon laws, if a reasonable number of repair attempts 
fails to correct a major problem, the manufacturer must either 
replace the car or refund the full purchase price, less a reasonable 
allowance for the consumer's use of the car prior to reporting the 
defect. Most of these laws define a ``reasonable number of repair 
attempts'' to be four or more times during the first year of 
ownership. Consumers may also be entitled to a refund or replacement 
remedy when a new car has been out of service for repair for the 
same problem for a cumulative period of thirty days or more within 
one year following delivery of the vehicle.
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5. 16 CFR Part 239: Guides for the Advertising of Warranties and 
Guarantees (``Guides'')

    In May, 1985, the Commission published the Guides in the Federal 
Register.14 The Guides were intended to help advertisers 
avoid unfair or deceptive practices when advertising warranties or 
guarantees. They took the place of the Commission's ``Guides Against 
Deceptive Advertising of

[[Page 19702]]

Guarantees,'' 16 CFR part 239, adopted April 26, 1960, which had become 
outdated due to developments in Commission case law and, more 
importantly, changes in circumstances brought about by the Magnuson-
Moss Warranty Act and by Rules 701 and 702 under that Act. The 1985 
Guides advise that advertisements mentioning warranties or guarantees 
should contain a disclosure that the actual warranty document is 
available for consumers to read before they buy the advertised product. 
In addition, the Guides set forth advice for using the terms 
``satisfaction guarantees,'' ``lifetime,'' and similar representations. 
Finally, the Guides advise that sellers or manufacturers should not 
advertise that a product is warranted or guaranteed unless they 
promptly and fully perform their warranty obligations.
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    \14\ 50 FR 18470 (May 1, 1985); 50 FR 20899 (May 21, 1985).
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B. Analysis of the Comments on the Interpretations, Rule 701, Rule 
702, and the Guides

    Seven (7) organizations submitted comments in response to the April 
3, 1996, Federal Register notice.15 The small number of 
comments likely reflects that compliance with these Rules and Guides is 
not burdensome and that seeking rescission or modification of them is 
therefore not a high priority for industry members most closely 
affected by them. In fact, the comments generally reflect a strong 
level of support for the view that the Warranty Rules and Guides are 
achieving the objectives they were fashioned to achieve--i.e., to 
facilitate the consumer's ability to obtain clear, accurate warranty 
information, as well as the consumer's ability to enforce a warrantor's 
contractual obligations under any written warranty. Some commenters 
enthusiastically supported the current regulatory regime. For example, 
AAMA stated that the current system is working well and is not 
unreasonably costly to warrantors. AAMA stated that the Rules are 
workable and understood by industry and that there is no evidence that 
either the adequacy of warranty disclosure or that the legal 
sufficiency of the warranties given is a major source of complaints; 
nor is there evidence that customers are unaware of their warranty 
rights. AAMA cautioned:
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    \15\ The seven commenters are: (1) American Automobile 
Manufacturers Association (``AAMA''); (2) Association of 
International Automobile Manufacturers, Inc. (``AIAM''); (3) Cohen, 
Milstein, Hausfeld & Toll (``Cohen'') by Gary Mason, Esq.; (4) 
National Consumer Law Center (``NCLC''); (5) National Retail 
Federation (``NRF''); (6) North American Insulation Manufacturers 
Association (``NAIMA''); and (7) North American Retail Dealers 
Association (``NARDA'') by James M. Goldberg, Esq., Goldberg & 
Associates.

    In view of the effectiveness of the current system, AAMA and its 
members * * * urge the Commission to proceed cautiously in 
considering a major overhaul to the Rules. Any comprehensive changes 
will unavoidably involve substantial compliance costs as warrantors 
and their staffs will have both to unlearn the current system and to 
assimilate the new provisions. * * * The Magnuson-Moss Warranty Act 
and the Rules promulgated under it provide an important avenue for 
consumer protection and establishing consumer confidence in the 
marketplace and the products they buy. As presently structured, 
these Rules are workable and effective, and permit warrantor 
compliance without unreasonable expense. * * * (A) major overhaul of 
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the system is neither necessary or appropriate.

    AAMA recommended that, before making any significant changes to the 
system, the Commission should first conduct a formal study of the 
marketplace to ensure that changes are needed, the specific proposed 
revisions would help, and the benefits achieved would outweigh the 
costs of the changes to industry and to consumers.16
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    \16\ AAMA at 2.
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    NAIMA echoed AAMA's positive appraisal of the benefits derived from 
the Warranty Rules and Guides. NAIMA cautioned that, in the absence of 
such guides, there would be an increase in unfair and deceptive uses of 
warranties to promote products.17 NAIMA believes that the 
warranty regulations benefit both consumers and warrantors: the 
requirements ``increase the consumer's confidence in a warranty and 
increase the likelihood that a consumer will rely on the warranty * * * 
(T)he honest warrantor also benefits because of increased consumer 
confidence in warranties.'' 18 NAIMA noted that the costs of 
the warranty regulations are not imposed upon businesses by government, 
but rather are voluntarily assumed by companies that choose to offer 
written warranties. As such, NAIMA states that ``any cost incurred by a 
firm would be calculated into a business decision to offer a warranty 
or guarantee and should not be weighed as a factor to eliminate or 
diminish the requirement.'' 19
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    \17\ NAIMA at 2.
    \18\ NAIMA at 4.
    \19\ NAIMA at 3.
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    Four other commenters, although not expressly endorsing retention 
of the present regulatory regime, supported such retention by 
implication in suggesting modifications to the rules and guides which 
they believed would provide greater consumer protections and/or 
minimize burdens on firms subject to the regulations. One commenter 
(NRF) recommended that the Commission report to Congress that the Rule 
702 was no longer necessary and recommend that Congress amend that 
portion of Magnuson-Moss requiring a pre-sale availability rule so that 
Rule 702 could be repealed.20 However, for the reasons 
discussed herein, the Commission has decided that both Rule 702 and the 
other Rules and Guides should be retained. In the following, we discuss 
in more depth each of the suggestions and the basis for the 
Commission's decision.
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    \20\ NRF at 2.
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1. 16 CFR Part 700: Interpretations.

    a. ``Building materials'' exemption. Under Secs. 700.1(c)-(f) of 
the Commission's Interpretations, building materials are not ``consumer 
products'' covered by the Act when they are already incorporated into 
the structure of a dwelling at the time the consumer buys the home. 
These same building products are ``consumer products'' covered by the 
Act when they are sold over-the-counter directly to the consumer by a 
retailer. Two commenters (Cohen and NAIMA) argued that the dichotomy 
created by this interpretation is confusing and irrational. They 
asserted that the current interpretation deprives consumers of the 
benefits and protections of the Act and its Rules when they purchase a 
home.
    Cohen argued that the current interpretation is counter to the 
legislative history, intent, and language of the Act. The Act defines 
``consumer product'' as ``any personal property * * * which is normally 
used for personal, family, or household purposes (including any such 
property intended to be attached to or installed in any real property 
without regard to whether it is so attached or installed). (15 U.S.C. 
2301(1)) Cohen asserted that building materials fall within the 
category of personal property intended to be attached to or installed 
in any real property. Cohen also cited the House Committee's discussion 
of the definition as support for the proposition that Congress intended 
that items that were to become part of realty were to be covered by 
Magnuson-Moss as ``consumer products.'' 21
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    \21\  ``There are many products which fall within this 
definition (tangible personal property normally used for personal, 
family, or household purposes) which are also used for other than 
personal, family, or household purposes * * *. Under concepts of 
property law, fixtures such as hot water heaters and air 
conditioners when incorporated into a dwelling become a part of the 
real property. It is intended that the provisions of Title I 
continue to apply to such products regardless of how they are 
classified.'' H.R. Rep. No. 93-1107, 93rd Cong., 2d Sess., (1974) 
reprinted in 1974 U.S.C.C.A.N. 7702, at 7716-7717.

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[[Page 19703]]

    The Commission is not persuaded by these arguments. The 
Commission's analysis starts with the statute. The Commission believes 
that there are three conclusions that can be drawn based on the 
language used in the statutory definition of ``consumer product.'' 
First, the definition assumes the traditional legal distinction between 
real property and personal property. Second, it clearly places 
``personal'' property within the scope of the Act's coverage. Third, 
through the drafters' choice of language, the definition obviously 
stops short of sweeping within the scope of the Act's coverage all 
property, real and personal. In this connection, the legislative 
history includes the following instructive colloquy, which was part of 
the floor debate on the legislation by Congressmen Broyhill and Moss, 
two members of the Conference Committee and of the House Committee 
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responsible for the Act: 22

    \22\ Congressional Record, Vol. 120, No. 139 (September 17, 
1974) p. H9316.
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    Mr. Broyhill of North Carolina. I would like to address a 
question to Mr. Staggers or Mr. Moss concerning the definition of 
``consumer product'' in section 101(1) of the bill. Would a house be 
in the definition of consumer product?
    Mr. Moss. A house would not fall within the definition of 
consumer product since a house is not quite ``tangible personal 
property.''
    Mr. Broyhill of North Carolina. If a warranty applied to 
component parts of a home such as dry wall, plumbing, heating and 
air conditioning, would these items be in the definition of 
``consumer product''?
    Mr. Moss. The definition of consumer product in section 101 
includes ``tangible personal property which is distributed in 
commerce and which is normally used for personal, family or 
household purposes--including any such property intended to be 
attached to or installed in any real property.'' This definition 
would apply to any separate equipment such as heating and air 
conditioning systems which are sold with a new home. However, such a 
definition would not apply to items such as dry walls, pipes, or 
wiring which are not separate items of equipment but are rather 
integral components of a home.

    The Commission believes that the Interpretations embody the same 
practical rationale as that espoused by the Act's sponsor in the above-
quoted exchange. The Interpretations draw the line, apparently 
contemplated by the language of the statute, to separate personalty 
(covered by the Act) and realty (not covered) in a manner that is clear 
and workable, and that is consistent with the intent of Congress, to 
the extent it can be determined. Thus, after having reconsidered this 
issue, the Commission adheres to the view that its original 
interpretation is correct and should be retained as written: Structural 
components of a new home such as lumber, dry wall, pipes or electrical 
conduit or wiring are not considered separate items of equipment and 
are not considered consumer products within the meaning of section 101 
of the Act. Insulation is another item that is a structural component 
of a new home and thus would not be a consumer product. These items are 
not functionally separate from the realty. In contrast, such items 
would be ``consumer products'' and within the scope of the Act were 
they purchased either separately or in combination to improve, repair, 
replace or otherwise modify an existing structure. This distinction 
holds true regardless of whether the consumer purchased the items for 
new home construction directly from a retail supplier.
    b. Coverage of export items. In its comment, NCLC asked the 
Commission to reconsider whether its warranty regulations should apply 
to goods exported to foreign countries. In Sec. 700.1(i) of its 
Interpretations, the Commission stated that, although the Act arguably 
applies to products exported to foreign jurisdictions:

the public interest would not be served by the use of Commission 
resources to enforce the Act with respect to such products. 
Moreover, the legislative intent to apply the requirements of the 
Act to such products is not sufficiently clear to justify such an 
extraordinary result.

    No evidence has been submitted to the Commission that would justify 
changing its stated position. The Commission's enforcement 
responsibilities have expanded since adoption of the Interpretations in 
1976, spreading scarce law enforcement resources further. Therefore, 
the Commission has decided to retain Sec. 700.1(i) remain as written.
    c. Warrantor's decision as final. Section 700.8 prohibits the 
warrantor from indicating in any warranty or service contract that the 
decision of the warrantor, service contractor, or any designated third 
party is final or binding in any dispute involving the warranty or 
service contract. NCLC expressed the fear that a warrantor who is also 
the seller could circumvent this prohibition by placing such a 
restriction in a document other than the warranty or service contract 
and, therefore, suggested that the Commission reword this section in 
order to bar such a possibility. No evidence has been provided, 
however, to indicate that this hypothetical situation occurs, or that 
it occurs with a frequency that would merit the expenditure of 
Commission resources necessary to make the wording change. Absent such 
evidence, the Commission has decided to retain Sec. 700.8 unchanged.
    d. Tying arrangements. Section 700.10 sets out the Commission's 
interpretations regarding the use of tying arrangements in connection 
with warranties. Among other things, Sec. 700.10 prohibits conditioning 
the continued validity of a warranty on the use of authorized repair 
service for non-warranty service and maintenance. NCLC recommended that 
the Commission amend Sec. 700.10 to prohibit used car warranties which 
provide for a percentage (e.g., 25 percent) of parts and labor costs 
provided the repair is done by the dealer or a place of the dealer's 
choosing. According to NCLC, these warranties allegedly are for a short 
term, often 30-days or 1,000 miles. NCLC stated that these warranties 
are common among ``low-end'' used car dealers and alleges that the 
warranties harm consumers because they provide little value and that 
the consumer has little control over the prices charged for the repair. 
Since the consumer is paying 75 percent of the repair cost under the 
warranty, the consumer may actually lose money by using the warranty to 
obtain repairs, according to NCLC.
    The Commission has determined not to incorporate the change NCLC 
proposed into the Interpretations for two reasons. First, a drafting 
change probably is not necessary to accomplish what NCLC advocated, 
since such warranties already likely violate section 102(c) of the Act. 
Section 102(c) prohibits arrangements that condition warranty coverage 
on the use of an article or service identified by brand, trade, or 
corporate name unless that article or service is provided without 
charge to the consumer. Since the consumer must pay a significant 
charge for parts and labor under these warranties, the warranties may 
violate section 102(c) by restricting the consumer's choices for 
obtaining warranty service. Second, the Commission notes that, although 
consumers may have little control over the prices charged for repairs 
under such warranties, they do have a choice of whether to use the 
warranty. Many states have enacted legislation requiring auto servicers 
to give estimates on any repair to be done. These estimates allow the 
consumer to shop for the best price. If the consumer realizes that 
having a repair done under the warranty may actually cost more than 
having the repair done by an independent servicer, the consumer can go 
elsewhere for the

[[Page 19704]]

work. For these reasons, the Commission has decided to retain 
Sec. 700.10 as written.

2. 16 CFR Part 701: Disclosure of Terms and Conditions (Rule 701).

    a. ``On the face of the warranty'' requirement. Two commenters 
(AAMA and AIAM) suggested that the Commission modify the requirement in 
Sec. 701.3(a)(7) that limitations on the duration of implied warranties 
be ``disclosed on the face of the warranty.'' In the case of multi-page 
warranty documents, Sec. 701.1(i)(1) of the Rule defines ``face of the 
warranty'' to mean ``the page on which the warranty text begins.'' The 
commenters stated that this restriction constrains the warrantor's 
ability to make the warranty document more user-friendly. They maintain 
that a warranty booklet is more difficult for consumers to read when 
the limitations come before complete descriptions of all warranty 
coverage. These commenters suggest that Sec. 701.3(a)(7) be modified to 
permit the limitations to appear anywhere within the text of the 
warranty, provided that the limitations are displayed prominently, 
clearly and conspicuously.
    The Commission believes that Sec. 701.3(a)(7) should be retained 
without change. One of the problems that led to passage of the 
Magnuson-Moss Warranty Act was that warrantors frequently gave 
warranties which at first appeared to offer very expansive coverage, 
which was in fact severely eroded by provisions buried further on in 
the document limiting coverage of the written warranty, or of the 
implied warranties of merchantability or fitness for a particular 
purpose. Such warranties were deceptive, since they could mislead 
consumers into thinking that coverage is greater than it actually is. 
Protection of the consumer's implied warranty rights is the bedrock of 
the Magnuson-Moss Warranty Act regulatory scheme. Accordingly, it is 
essential that any limitation on these rights be disclosed up-front and 
not buried elsewhere in a multi-page document. The Commission has been 
provided with no evidence that would compel revision of this core 
provision of Rule 701.
    b. Value thresholds. Two commenters 23 suggested that 
the Commission should modify Secs. 701.3(a) and 702.3 to increase the 
threshold for products subject to the rules in order to account for the 
impact of inflation. The AAMA suggested that the threshold be raised 
from $15 to $25, and also suggested that the Commission report to 
Congress, recommending that the corresponding value thresholds in the 
statute itself also be adjusted (15 U.S.C. 2302(e) and 
2303(d)).24 The Commission, however, believes that the 
dollar thresholds set out in the rules and in the statute remain 
appropriate. The statute and the rules were drafted to be flexible. 
There is no requirement that a company offer a written warranty. 
Therefore, a company that sells a product costing less than $15 is 
under no obligation to give a written warranty. The costs of compliance 
are minimal for those products that cost under $15--i.e., principally a 
prohibition against warranty tying arrangements and a requirement that 
the warranty be labeled either ``limited'' or ``full.''
---------------------------------------------------------------------------

    \23\ AAMA at 3; NAIMA at 5.
    \24\ Section 102(e) of the Act provides that all written 
warranties on consumer products costing $5 or more will be subject 
to the provisions of section 102. This threshold serves two 
purposes: First, it insures that any warrantor giving a written 
warranty on a consumer product costing $5 or more may not condition 
the warranty on the consumer's use of a specific brand or trade name 
of product or service (15 U.S.C. 2302(c)). Second, this section sets 
a floor for the written warranties to be covered by the Commission 
rules which were to be promulgated under the Act. Those rules could 
set the threshold higher than $5, but could not lower the threshold 
to encompass all products. In addition, section 103(d) provides that 
only those warranties on products costing $10 or more must adhere to 
the labeling requirements of section 103 (i.e., labeling the 
warranty either ``limited'' or ``full.'')
---------------------------------------------------------------------------

    Furthermore, the Commission believes that consumers might be 
deprived of important protections if the threshold for rule coverage 
were to be raised to $25. Although many warrantors voluntarily would 
continue to disclose fully the terms and conditions of the warranty, 
others might choose not to do so since the legal obligation would no 
longer be present. It is true that, if a low-cost product were to 
malfunction, some consumers might choose to simply throw it away and 
purchase another. However, not all consumers view products costing $15-
$25 as disposable. Some consumers might choose to assert their warranty 
rights in getting the product repaired or replaced.25 
Therefore, the Commission has decided that the threshold values for 
coverage by the statute and the rules shall remain unchanged.
---------------------------------------------------------------------------

    \25\ This position has some support from the 1984 Warranty 
Consumer Follow-Up Study, (``Warranty Rules Consumer Follow-Up: 
Evaluation Study Final Report'' (1984), at ES-4. (``Warranty 
Study'')), in which over 30 percent of the respondents felt that it 
was important to see the warranty for products costing as little as 
$15.
---------------------------------------------------------------------------

    c. Use of owner registration cards. One commenter 26 
recommended that Sec. 701.4 27 should be eliminated due to 
perceived conflict with the Commission's interpretations in 16 CFR 
700.7(b) regarding the use of owner registration cards in connection 
with a full warranty, and with the intent of Section 104(b)(1) of the 
Act.28 NARDA stated the view that retaining 701.4 would 
allow manufacturers to continue ``raiding'' retailer customer lists 
under the guise of ``warranty card registration.'' NARDA opined that 
such customer information can be used by manufacturers to compete 
directly with the retailer in offering service contracts and other 
products. NARDA did not oppose that manufacturers be allowed to collect 
demographic and similar market information on consumers, but urged that 
they should not be allowed to do so under the premise of conditioning 
warranty coverage on the furnishing of that information.
---------------------------------------------------------------------------

    \26\ NARDA at 1-2.
    \27\ Section 701.4 requires a warrantor to disclose in the 
warranty if an owner or warranty registration card is a condition 
precedent to warranty coverage. The section also requires the 
warrantor to disclose that the return of the card is not necessary 
for warranty coverage if the return of such a card reasonably 
appears to be a condition precedent to warranty coverage and 
performance, but is not such a condition.
    \28\ Section 104(b)(1) of the Act prohibits a warrantor that 
offers a ``full'' warranty (i.e., one that meets the minimum 
standard of coverage set out in section 104(a)) from imposing on the 
consumer any duty other than notification in order to obtain 
warranty service. Section 770.7 of the Interpretations cover the use 
of warranty registration cards as a condition precedent to perform 
obligations under a full warranty and whether the use of such cards 
constitutes an ``unreasonable duty'' in violation of section 
104(b)(1). The Interpretations state that the use of such cards 
constitute an ``unreasonable duty'' when their return is a condition 
precedent to warranty performance and coverage under a full 
warranty. However, warrantors may suggest the use of such cards as 
one possible means of proof of the purchase date of the product. In 
addition, sellers can use these cards to obtain information from 
purchasers at the time of sale on behalf of the warrantor.
---------------------------------------------------------------------------

    A second commenter (NCLC) suggested that Sec. 700.7(c) should be 
clarified to prohibit return instructions for registration cards that 
imply that returning the card is necessary in order to obtain warranty 
coverage. NCLC cites language such as ``Return this card to ensure 
warranty registration'' as misleading because consumers are led to 
believe that registration is necessary to obtain coverage.
    The Commission is aware that warrantors commonly request that 
purchasers return owner or warranty registration cards in order to 
obtain marketing and demographic information. The required return of 
such owner registration cards is prohibited as an ``unreasonable duty'' 
only when the warrantor gives a full warranty; requiring return of such 
cards is permitted under a limited warranty as long as the warrantor 
discloses in the

[[Page 19705]]

warranty that the consumer must return the card in order to get 
coverage.
    However, no evidence submitted to the Commission identified 
specific situations where the return of such a card is a condition 
precedent for warranty coverage, or how often this occurs, if at all. 
Nor has any evidence been provided that consumers actually are being 
misled by the language used on owner registration cards. The record, 
therefore, contains no indication that such language is inherently 
deceptive or misleading and as such should be banned. (Of course, 
particular language or instructions could still be challenged as 
deceptive or unfair under section 5 of the FTC Act (15 U.S.C. 45)).
    In sum, in the absence of specific evidence that these cards are 
being misused by warrantors and/or that the language used is inherently 
deceptive or misleading, the commission believes that Secs. 701.4 and 
700.7 should remain unchanged.

3. 16 CFR 702: Pre-Sale Availability (Rule 702)

    a. Should the Rule be Rescinded? The NRF proposed that Rule 702 no 
longer serves the purpose for which it was intended and that it should 
be rescinded. Section 102(b)(1)(A) of the Magnuson-Moss Warranty Act 
29 directs the Commission to promulgate rules requiring that 
the terms of any written warranty be made available to the consumer 
prior to sale. Because the Act specifically requires a pre-sale 
availability rule, the NRF recommended that the Commission report to 
Congress that the rule is no longer necessary to ensure that consumers 
are informed about warranties and request that Congress repeal section 
102(b)(1)(A) of the Act.
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 2302(b)(1)(A).
---------------------------------------------------------------------------

    The NRF asserted that consumers no longer need Rule 702 in order to 
obtain information about warranties since a variety of sources exist 
for consumers to educate themselves about consumer issues in general, 
including warranties. To buttress this argument, the NRF cited an 
anecdotal survey conducted by three of its members indicating that 
consumers rarely request warranty information from 
retailers.30 The NRF also cited the Commission's 1984 
Warranty Study as further support for rescinding the rule. According to 
NRF, that study indicated that the primary reason consumers did not ask 
retailers for warranty information was that they already knew all they 
needed to know about the warranty for the particular product they were 
buying.31 The NRF reasoned that since few consumers request 
warranty information from retailers, most consumers are aware of 
warranties. Therefore, according to NRF, the Commission is imposing 
unnecessary costs on retailers to maintain product warranties on hand 
and up to date.
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    \30\ The NRF also cites the Commission's statement in its 1987 
amendment of Rule 702 that ``consumers rarely consult warranty 
binders.'' (NRF at 2, citing 52 FR 7569, 7569 (March 12, 1987). 
However, the Commission notes that it made this statement in the 
context of explaining why the specific detailed methods of 
compliance were not needed and why detailed regulatory requirements 
were unnecessary. While the statement is useful in explaining why 
more flexible methods are necessary to provide warranty information, 
Commission believes that it would be incorrect to infer from that 
statement that it is unnecessary to ensure that warranty information 
is available.
    \31\ Warranty Study at 57.
---------------------------------------------------------------------------

    The Commission believes that NRF is misguided in its interpretation 
of the Warranty Study results. The Commission believes that the 
Warranty is more a measure of the importance of warranties in making a 
purchase decision on certain products rather than the importance to 
consumers of pre-sale availability of warranty information generally on 
all products. The study shows that warranties were considered in the 
purchase decision for 54.2 percent of the products for which buyers 
comparison shopped.32 In 40 percent of those cases, 
consumers reported having information about the warranty prior to 
purchasing the product. Of those 40 percent, 23.1 percent said that 
they received at least some of that information from reading the 
warranty.33 The study goes on to state:
---------------------------------------------------------------------------

    \32\ The Warranty Study implies that one reason many consumers 
do not read warranties before buying a product is because they 
rarely experience problems with the products they purchase and, 
those who do, had few problems in obtaining satisfactory repairs 
under the warranty. (Warranty Study at ES-3)
    \33\ Warranty Study at ES-2. The Warranty Study also indicates 
that more people apparently learn about warranties from salespersons 
and newspaper or magazine articles than from an actual reading of 
the document. However, more people will seek out warranty 
information on high-priced goods. (Warranty Study at 50)

    Most consumers [who did not read warranties before buying] did 
not believe pre-purchase warranty reading was important in that 
particular instance. * * * While very few consumers appear to engage 
in serious warranty reading, most feel that it is important to see 
the written warranty before buying--only 11.8 percent of the 
respondents believed that it was never important to see the warranty 
before buying. [emphasis added] 34
---------------------------------------------------------------------------

    \34\ Warranty Study at ES-4.

    If most consumers believe that it is important to see the warranty 
before buying in some instances, the Commission believes that it would 
not be in the public interest to recommend legislative action that 
would permit rescission of Rule 702. Certainly, before recommending 
that such a drastic step be taken, the Commission would require more 
up-to-date factual evidence countering the results of the 1984 Warranty 
Study regarding the importance to consumers of having warranty 
information available before the sale.
    The Commission believes that Rule 702 continues to serve the 
purpose for which it was intended: to ensure that full and accurate 
warranty information is available prior to sale when consumers want it. 
In some instances and with respect to some purchases, consumers might 
be satisfied with general information about a warranty that can be 
gleaned from other sources such as advertising or a salesperson's oral 
presentation. Nonetheless, the warranty survey indicates that, in a 
substantial number of instances, such information will not satisfy 
consumers' needs. Because a warranty is a legally enforceable document 
that defines the respective rights and obligations of the purchaser and 
the warrantor, a summary description of the warranty, derived from 
advertising or from a salesman's oral representations, may or may not 
completely and accurately convey material terms of coverage. Such 
alternative sources of information are an inadequate substitute for the 
actual text of the warranty.
    Furthermore, the 1987 amendment to Rule 702 gave retailers a great 
deal of flexibility in how to comply with the rule and alleviated much 
of the burden imposed by the original rule. The Commission believes 
that this flexibility has made compliance costs minimal. Anecdotal 
information provided by the NRF for three members regarding compliance 
costs does not provide an adequate basis to conclude that compliance 
costs outweigh benefits and that Congress should repeal the Act's 
requirements for a rule on pre-sale availability of warranty 
information.
    b. Posting requirement. NARDA recommends that the Commission should 
amend Sec. 702.3(a) to eliminate the requirement that retailers post 
signs notifying customers where actual copies of the warranties may be 
obtained.35 NARDA maintains that since the rule was adopted 
in 1975, compliance with

[[Page 19706]]

the posting requirement has ebbed to the point where few retailers 
comply. However, despite the alleged non-compliance, NARDA believes 
that there has been no corresponding decrease in information made 
available to consumers. NARDA recommends that the rule should be 
amended to eliminate the posting requirement and simply require 
retailers to make warranty information available upon 
request.36 NARDA believes that this modification would cause 
no consumer harm and would eliminate compliance costs for those 
retailers who do attempt to comply with the requirement.
---------------------------------------------------------------------------

    \35\ Section 702.3(a) requires the retailer to either display 
the actual product warranty in close proximity to the product, or to 
furnish it upon request. If the retailer chooses to furnish it on 
request, the retailer must place signs in prominent locations 
advising buyers that copies of warranties are available upon 
request.
    \36\ NARDA at 2-3.
---------------------------------------------------------------------------

    Commission has been concerned about the non-compliance with the 
Rule 702 that NARDA alleges is commonplace. As a result, the Commission 
has brought several actions against major retailers in recent years for 
failing to comply with the rule's requirements.37 These 
actions place all retailers on notice that they risk Commission action 
by ignoring their compliance responsibilities under Rule 702. If NARDA 
is correct that there is widespread non-compliance with the posting 
requirements of Rule 702, such non-compliance would not support 
eliminating the requirement as much as it would support an argument for 
increased enforcement activity.38
---------------------------------------------------------------------------

    \37\ See, e.g., Circuit City Stores, Inc., FTC Docket No. C-3389 
(1992); Nobody Beats the Wiz, FTC Docket No. C-3329 (1991); The Good 
Guys, FTC Docket No. C-3388 (1992); Sears, Roebuck & Co., FTC Docket 
No. C-3529 (1994); Montgomery Ward & Co., FTC Docket No. C-3528 
(1994); and R.H. Macy & Co., Inc., FTC Docket No. C-3115 (1994). In 
addition, the Commission brought an action against a mail order 
company which included charges that the company had violated Rule 
702 See, Advance Watch Co., Civil Action No. 94 CV601 78AA (E.D. 
Mich. 1994).
    \38\ Interestingly, the NRF recognized the Commission's 
commitment to enforcing Rule 702 and asked the Commission to 
``reexamine its enforcement priorities in this area.'' (NRF at 2).
---------------------------------------------------------------------------

    NARDA does not offer any empirical evidence regarding the 
compliance costs of posting signs regarding the availability of 
warranty information. When the Commission amended Rule 702 in 1987, it 
substituted the posting requirement for the requirement in the original 
rule that specified the particular methods by which retailers should 
make the warranty information available (e.g., by the use of a binder). 
At that time, the evidence available to the Commission indicated that 
the cost of posting signs is relatively low. The Commission concluded 
that, on balance, this low compliance cost was substantially outweighed 
by the potential benefit of raising consumer awareness about their 
ability to obtain warranty information. The Commission has seen no 
evidence which would challenge this conclusion and, therefore, has 
determined that Sec. 702.3(a) be retained unchanged.
    c. Plain language warranties. One commenter (NCLC) suggested that 
the Commission amend Sec. 702.3 to require the display of ``key 
points'' of warranties, especially on big-ticket items.39 
NCLC also suggested that the Commission consider creating model 
``plain-language'' warranty forms as a guide on how to write warranties 
that can be easily understood.
---------------------------------------------------------------------------

    \39\ Section 702.3 is the core section of Rule 702 that sets out 
the duties of the seller and the warrantor in making warranty 
information available prior to sale.
---------------------------------------------------------------------------

    The Commission believes that market forces already drive many 
warrantors and retailers to promote the key points of their warranties, 
in print and broadcast media as well as in point-of-sale promotional 
pieces. In fact, because of this competition, the Commission issued its 
Guides for the Advertising of Warranties and Guarantees to ensure that 
consumers are not misled into thinking that the ``key points'' 
mentioned constitute all material terms of coverage. The Guides require 
a statement directing consumers to where they can obtain full details 
of the warranty. Given the apparent healthy competition in promoting 
warranties, the Commission sees no basis for government intervention to 
impose such a ``key points'' disclosure requirement. With regard to 
creating model ``plain-language'' warranty forms, the Commission 
believes that the examples and guidance set out in the FTC business 
education publications, A Businessperson's Guide to Federal Warranty 
Law and Writing Readable Warranties, are sufficient to assist those who 
want to make their warranties readable.40
---------------------------------------------------------------------------

    \40\ These publications as well as other consumer and business 
education brochures and other materials are available online in the 
FTC Consumer Publications and FTC Business Publications sections of 
the FTC's Home Page, located at http://www.ftc.gov/ftc/news.htm.
---------------------------------------------------------------------------

4. 16 CFR Part 239: Warranty Guides

    One commenter (AIAM) suggested that the Commission amend the 
Warranty Guides to eliminate the requirement that an advertisement 
mentioning a warranty also include a statement of where the consumer 
can find complete details about the warranty. The AIAM believed that, 
at least for automobiles, the statement ``See your dealer for details'' 
is a ``statement of the obvious and accordingly unnecessary.''
    The Commission does not believe the disclosure of such information 
is unnecessary. The message intended is not just that the dealer or 
other retailer has the warranty; that much is obvious. What may not be 
obvious is the remainder of the message: that prospective purchasers 
have a right to read the warranty, if they desire, before purchasing. 
Because the aspects of warranty coverage touted in an advertisement may 
not necessarily provide a complete understanding of a warranty's 
overall coverage, the Commission believes that it is important to alert 
consumers that the actual warranty text is available for review, to 
obtain an accurate and complete understanding of the coverage. 
Accordingly, the Commission has determined to retain the Warranty 
Guides unchanged.

C. Analysis of Comments on Rule 703

    Thirteen (13) organizations submitted comments in response to the 
April 2, 1997 Federal Register notice.41 The comments 
generally reflected strong support for the Rule 703 and indicated that 
the Rule is achieving the objectives it was fashioned to achieve--i.e., 
to encourage the fair and expeditious handling of consumer disputes 
through the use of informal dispute settlement mechanisms.42 
Commenters pointed to the importance of Rule 703 in serving as a 
standard for IDSMs in general (particularly in the absence of any other 
standards from private or government organizations) and, more 
specifically, in providing a benchmark for the state lemon law 
IDSMs.43 Commenters noted that, for those 45 states that 
incorporate Rule 703 into their lemon laws or reference the Rule in 
these laws, 44 Rule

[[Page 19707]]

703 provides either the sole standard or a critical part of the 
standards that are used to determine the threshold acceptability of a 
dispute resolution program in accordance with state law prior resort 
requirements.45 Commenters believed that the minimum 
standards set out in Rule 703 were developed with forethought and have 
withstood the test of time and usage.46 As one commenter put 
it, ``Rule 703 is an integral part of a wide-ranging system of informal 
dispute resolution procedures * * * (which) functions smoothly and 
provides quick, inexpensive and informal dispute resolution.'' 
47
---------------------------------------------------------------------------

    \41\ The thirteen commenters are: (1) American Automobile 
Manufacturers Association (``AAMA''); (2) Association of 
International Automobile Manufacturers, Inc. (``AIAM''); (3) 
California Arbitration Review Program (``California''); (4) The CIT 
Group (``CIT''); (5) Consumers for Auto Reliability and Safety 
Foundation (``CARS''); (6) Council of Better Business Bureaus, Inc. 
(``BBB''); (7) Jay R. Drick, Esq. (``Drick''); (8) Manufactured 
Housing Institute (``MHI''); (9) Frank E. McLaughlin 
(``McLaughlin''); (10) National Association of Consumer Advocates 
(``NACA''); (11) National Consumer Law Center, Inc. (``NCLC''); (12) 
P.R. Nowicki & Company (``Nowicki''); and (13) Donald Lee Rome, 
Esq., Robinson & Cole (``Rome'').
    \42\ AAMA at 1; AIAM at 1; BBB at 1-2; California at 1; CARS at 
2; McLaughlin at 2-3; NACA at 1; NCLC at 1; Nowicki at 2. Although 
not expressly endorsing retention of the present regulatory regime, 
three other commenters (CIT, MHI, and Rome) supported such retention 
by implication in suggesting modifications to the Rule which they 
believed would provide greater consumer protections or would reduce 
burdens on firms subject to the regulations. CIT, MHI, and Rome. 
Only one commenter (Drick) recommended that Rule 703 be rescinded, 
stating that the Rule serves no useful purpose since few if any 
programs actually operate under Rule 703. Drick at 2.
    \43\ AAMA at 1; BBB at 2.
    \44\ Many state lemon laws prohibit consumers from pursuing a 
state lemon law action in court unless the consumer first attempts 
to resolve the claim through the manufacturer's IDSM, if it complies 
with Rule 703.
    \45\ BBB at 2.
    \46\ McLaughlin at 2; Nowicki at 2.
    \47\ AIAM at 1.
---------------------------------------------------------------------------

    Commenters cautioned the Commission that rescinding the Rule would 
create significant problems for consumers and manufacturers because of 
the impact such action would have on the functioning of state lemon 
laws.48 Rescission would create a vacuum in the 45 states 
that reference Rule 703 in their lemon laws, thus requiring massive 
efforts to alter existing state laws and reconfigure auto maker 
programs.49 The uniformity in dispute resolution programs 
which Rule 703 promotes would be lost, to the detriment of consumers, 
warrantors, IDSMs, and state governments.50
---------------------------------------------------------------------------

    \48\ AIAM at 1; McLaughlin at 2-3; Nowicki at 2. As mentioned, 
many state lemon laws require consumers to resort to a 
manufacturer's IDSM before pursuing a legal remedy in court. 
However, the consumer is required to do so only if  the IDSM 
complies with Rule 703.
    \49\ AIAM at 1; Nowicki at 2.
    \50\ McLaughlin at 2.
---------------------------------------------------------------------------

    Commenters generally did not think that compliance with the Rule 
was particularly burdensome or costly. The AAMA estimated that its 
three member companies pay the independent suppliers that administer 
their IDSMs an estimated $10 million, in addition to corporate staff 
support or related filing, recordkeeping or administrative 
costs.51 However, other commenters noted that, except for 
the annual audit and specific record keeping requirements in Rule 703, 
most of the costs involved are the administrative costs that would be 
associated with the operation of any dispute resolution 
program.52 The only IDSM to submit a comment was the BBB 
which operates the BBB AUTOLINE program. The BBB estimated that the 
annual costs of Rule 703's audit and record keeping requirements were 
less than $100,000 for the entire AUTOLINE program.53 
California stated that manufacturers have indicated that IDSM programs 
are a cost effective way to avoid expensive litigation and that they 
would continue to use these programs for warranty disputes even if not 
required to do so by state lemon laws.54
---------------------------------------------------------------------------

    \51\ AAMA at 2-3. Another report indicated that GM alone spent 
$8.4 million in 1994 on its BBB AUTOLINE program. Leslie Marable, 
``Better Business Bureaus Are A Bust,'' Money, October 1995, p. 108, 
cited in Nowicki at 5, fn. 5.
    \52\ BBB at 3; California at 2. CARS noted that any discussion 
of cost burdens by the manufacturers should be viewed with 
skepticism since most have opted not to offer Rule 703 programs and 
thus they are not in a position to calculate any additional costs 
that a 703 program would cause them to incur. CARS at 6, 7.
    \53\ BBB at 3. The AAMA estimated that the annual aggregate cost 
for its three members to conduct the annual audits is about 
$160,000. AAMA at 3. (One of the three members of AAMA is General 
Motors, which uses the BBB AUTOLINE as its dispute resolution 
mechanism; thus, there may be some duplication between the BBB 
figures and the AAMA figures.)
    \54\ California at 2.
---------------------------------------------------------------------------

    Based on its review of the comments and on its experience with the 
evolving area of alternative dispute resolution, the Commission has 
decided to retain Rule 703 unchanged. Although most commenters 
supported retention of Rule 703, they also recommended certain 
modifications that they believed would benefit consumers or reduce the 
burden on warrantors and IDSMs. These recommendations fall into four 
major categories: (1) Certification or other oversight of IDSM 
compliance; (2) mandatory pre-dispute arbitration clauses; (3) 
increasing the time limit for rendering a decision from 40 days to 60 
days; (4) encouraging a mediation approach to dispute resolution; and 
(5) other suggested modifications (e.g., allowing electronic storage of 
records and changing the nature of the required statistical 
compilations).
    1. Certification and oversight of IDSMs. Commenters generally 
expressed the view that a need exists for stronger government oversight 
both on the federal and state levels and for increased funding to 
monitor IDSM and warrantor operations to ensure that their procedures 
comply with Rule 703.55 However, commenters did not suggest 
how such increased oversight or monitoring could, as a practical 
matter, be achieved given the voluntary nature of the Rule. As noted, 
the Rule applies only to warrantors who ``give or offer to give a 
written warranty which incorporates an informal dispute settlement 
mechanism,'' 56 but few warrantors incorporate an IDSM into 
their warranties--i.e., few include a prior resort requirement in their 
warranties. Therefore, there are few IDSMs that come within the ambit 
of the Rule's existing monitoring requirement (in Sec. 703.7), which 
mandates an annual audit for compliance with the Rule.57 The 
comments do not support radically revising the Rule to mandate use of 
IDSMs across the board, regardless of whether a warrantor incorporates 
an IDSM into its warranty.
---------------------------------------------------------------------------

    \55\ CARS at 3; McLaughlin at 3-4; Nowicki at 4-5. One 
suggestion was to use the model of California and Florida where 
manufacturers pay between 25-28 cents on each car sale to fund the 
state lemon law programs, including the annual review of IDSM 
operations. Nowicki at 5. Another commenter suggested that increased 
warrantor and IDSM compliance might be achieved at a lower cost by 
establishing a voluntary offenders program similar to the Funeral 
Rule Offenders Program (``FROP''), which is used in conjunction with 
law enforcement actions under the Commission's Funeral Rule, 16 CFR 
part 453. McLaughlin at 4.
    \56\ 16 CFR 703.1(d).
    \57\ Nonetheless, the manufacturer IDSMs continue to submit 
annual audits to the FTC on a voluntary basis.
---------------------------------------------------------------------------

    Despite the fact that the Rule seldom comes into play in the manner 
originally contemplated (i.e., by inclusion of prior resort 
requirements in warranties), the Rule now serves as an essential 
reference point for state lemon laws. Specifically, many state lemon 
laws, paralleling section 110(a)(3) of the Warranty Act, prohibit the 
consumer from pursuing any state lemon law rights in court unless the 
consumer first seeks a resolution of the claim to the manufacturer's 
(or a state-operated) IDSM.58 Those statutes also provide 
that the consumer is required to use the manufacturer's IDSM only if it 
complies with the FTC's standards set out in Rule 703. Thus, in effect, 
these states incorporate Rule 703 into their lemon laws.59 A 
threshold question for many state lemon law suits is whether the IDSM 
complies with Rule 703 and thus whether the consumer must use that IDSM 
or may proceed directly to a court action.
---------------------------------------------------------------------------

    \58\ ``Lemon laws'' entitle the consumer to obtain a replacement 
or a refund for a defective new car if the warrantor is unable to 
repair the car after a reasonable number of repair attempts.
    \59\ Some state lemon laws require that the IDSM comply with 
additional state standards in addition to complying with the Rule 
703 provisions. For example, approximately ten states (CA, CT, FL, 
GA, IA, NJ, NY, OH, OR, WI) require manufacturer IDSMs to maintain 
state-specific records in addition to the recordkeeping requirements 
in Rule 703.
---------------------------------------------------------------------------

    The problem of determining compliance is not a new 
one.60 The auto manufacturers recommended nationwide 
certification of IDSM compliance with Rule 703, possibly through a 
neutral third-party organization, that would preempt state

[[Page 19708]]

certification standards.61 The manufacturers argued that a 
federal certification program would be an incentive to warrantors to 
set up Rule 703 IDSMs because, among other benefits, it would eliminate 
the uncertainty of conflicting state certification standards and the 
risk of litigation over the issue of whether a mechanism complies with 
Rule 703.62 Manufacturers further argued that not only does 
the lack of a national certification program lead to economic 
inefficiencies, but it also harms consumers by prolonging the dispute 
settlement process through fostering litigation over the issue of 
compliance.63 The manufacturers maintained that non-
uniformity in federal and state laws increases costs to warrantors, to 
IDSMs, and to consumers, thus frustrating the Congressional policy 
stated in the Warranty Act 64 of encouraging the development 
of IDSMs.
---------------------------------------------------------------------------

    \60\ In 1988, the auto manufacturers petitioned the Commission 
to initiate a rulemaking proceeding to amend Rule 703, proposing, 
among other things, that the Commission institute a national 
certification program for IDSMs in order to determine whether a 
specified warrantor or IDSM complies with Rule 703's standards.
    \61\ See, generally, AAMA and AIAM.
    \62\ AAMA at 2, 5-6; AIAM at 2.
    \63\ AAMA at 2. No data was supplied as to the actual number of 
cases in which compliance with Rule 703 is litigated.
    \64\ 15 U.S.C. 2310(a)(1).
---------------------------------------------------------------------------

    The Commission recognizes that a uniform certification program 
could possibly diminish uncertainty as to whether an IDSM complies with 
Rule 703 and, thus, whether the consumer must use the IDSM before 
pursuing a court action. Nonetheless, for the reasons stated below, the 
Commission has decided to reject the suggestion that it institute a 
national certification program.
    First, it is possible that FTC certification would not eliminate an 
IDSM's alleged non-compliance with Rule 703 as an issue for litigation, 
but merely shift the focus for consumer litigants to challenge FTC 
certifications.65 Such an outcome would not likely curtail 
the litigation that the manufacturers allege makes final resolution of 
disputes elusive; in fact, such a certification program might well 
prolong and further complicate such litigation.
---------------------------------------------------------------------------

    \65\ Conceivably, auto manufacturer litigants also might 
challenge the denial of certification.
---------------------------------------------------------------------------

    Second, as a general matter, the Commission traditionally has been 
unwilling to commit its limited law enforcement resources to regulatory 
schemes that entail licensing or prior approval, such as the 
certification program recommended by some commenters. The Commission, 
moreover, would be loathe to take regulatory action likely to exert a 
chilling effect on competition and on experimentation by IDSMs, 
warrantors, and state governments in setting up and administering these 
programs.
    Finally, were the Commission to follow some commenters' 
recommendation to preempt state certification standards through a 
federal certification program, it could jeopardize the very laws that 
give force to Rule 703's IDSM standards by incorporating them into 
state lemon law statutory schemes. For these reasons, the Commission 
has determined not to undertake a national certification program for 
IDSMs.
    2. Binding arbitration clauses. Two commenters urged that the Rule 
be amended to permit mandatory binding arbitration clauses in consumer 
contracts,\66\ while comments from two consumer advocacy groups (NACA 
and NCLC) urged the Commission to continue the Rule's current 
prohibition against binding arbitration.\67\ NACA and NCLC pointed to 
the increased use by corporations of mandatory binding arbitration 
clauses in standard form contracts with consumers. They expressed the 
belief that the use of binding arbitration is more favorable to 
institutional interests than to the consumer and that it provides the 
corporation with a way to avoid class actions, punitive damage awards, 
attorney fee awards, discovery, and juries.\68\ NACA and NCLC indicated 
that the use of mandatory binding arbitration clauses is expanding in 
the securities, credit, and health care industries and expressed the 
fear that, without the protection of Rule 703 in its current form, 
warrantors may begin to require mandatory binding arbitration as a 
precondition of warranty coverage on consumer products.
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    \66\ MHI and CIT proposed a ``streamlined'' warranty dispute 
resolution process when the dispute is related to manufactured 
homes. Among other characteristics of such a process, MHI 
recommended that the process allow the decision of the IDSM to be 
binding on the parties.
    \67\ See, generally, NACA and NCLC. Section 703.5(j) of the Rule 
states that the informal dispute settlement procedure cannot be 
legally binding on any person.
    \68\ NACA at 1-2; NCLC at 2-3.
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    The Commission examined the legality and the merits of mandatory 
binding arbitration clauses in written consumer product warranties when 
it promulgated Rule 703 in 1975. Although several industry 
representatives at that time had recommended that the Rule allow 
warrantors to require consumers to submit to binding arbitration, the 
Commission rejected that view as being contrary to the Congressional 
intent.
    The Commission based this decision on its analysis of the plain 
language of the Warranty Act. Section 110(a)(3) of the Warranty Act 
provides that if a warrantor establishes an IDSM that complies with 
Rule 703 and incorporates that IDSM in its written consumer product 
warranty, then ``(t)he consumer may not commence a civil action (other 
than a class action) * * * unless he initially resorts to such 
procedure.'' (Emphasis added.) This language clearly implies that a 
mechanism's decision cannot be legally binding, because if it were, it 
would bar later court action. The House Report supports this 
interpretation by stating that ``(a)n adverse decision in any informal 
dispute settlement proceeding would not be a bar to a civil action on 
the warranty involved in the proceeding.'' \69\ In summarizing its 
position at the time Rule 703 was adopted, the Commission stated:

    \69\ House Report (to accompany H.R. 7917), H. Report, No. 93-
1107, 93d Cong., 2d Sess. (1974), at 41.
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    The Rule does not allow (binding arbitration) for two reasons. 
First * * * Congressional intent was that decisions of section 110 
Mechanisms not be legally binding. Second, even if binding 
Mechanisms were contemplated by section 110 of the Act, the 
Commission is not prepared, at this point in time, to develop 
guidelines for a system in which consumers would commit themselves, 
at the time of product purchase, to resolve any difficulties in a 
binding, but nonjudicial proceeding. The Commission is not now 
convinced that any guidelines which it set out could ensure 
sufficient protection for consumers. (Emphasis added.) \70\

    \70\ 40 FR 60168, 60210 (1975). The Commission noted, however, 
that warrantors are not precluded from offering a binding 
arbitration option to consumers after a warranty dispute has arisen. 
40 FR 60168, 60211 (1975).
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    Based on its analysis, the Commission determined that ``reference 
within the written warranty to any binding, non-judicial remedy is 
prohibited by the Rule and the Act.'' \71\ The Commission believes that 
this interpretation continues to be correct.\72\ Therefore, the 
Commission has determined not to amend Sec. 703.5(j) to allow for 
binding arbitration. Rule 703 will continue to prohibit warrantors from 
including

[[Page 19709]]

binding arbitration clauses in their contracts with consumers that 
would require consumers to submit warranty disputes to binding 
arbitration.
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    \71\ 40 FR 60168, 60211 (1975).
    \72\ At least one federal district court has upheld the 
Commission's position that the Warranty Act does not intend for 
warrantors to include binding arbitration clauses in written 
warranties on consumer products. Wilson v. Waverlee Homes, Inc., 954 
F. Supp. 1530 (M.D. Ala. 1997). The court ruled that a mobile home 
warrantor could not require consumers to submit their warranty 
dispute to binding arbitration based on the arbitration clauses in 
the installment sales and financing contracts between the consumers 
and the dealer who sold them the mobile home. The court noted that a 
contrary result would enable warrantors and the retailers selling 
their products to avoid the requirements of the Warranty Act simply 
by inserting binding arbitration clauses in sales contracts. Id. at 
1539-1540.
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    3. Increase time limit for rendering a decision from 40 days to 60 
days. The BBB recommended that the time limit for rendering a decision 
be increased from 40 days to 60 days, at least for those dispute 
resolution programs that provide for oral hearings.\73\ The BBB stated 
that BBB and State experience with arbitration programs indicates that 
time requirements should be more flexible in order to provide for an 
arbitration hearing, and notes that several states with state-run 
programs (e.g., Florida, Connecticut, and Texas) allow for a 60-day 
time period to render decisions.\74\
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    \73\ BBB at 2.
    \74\ BBB at 2. Twelve states offer consumers the opportunity to 
use a state-run arbitration program in addition to, or in lieu of, a 
manufacturer-sponsored IDSM. Although those states require that the 
manufacturer-sponsored IDSM comply with Rule 703's 40-day 
requirement, ten of them allow their state-run panels longer than 40 
days to render a decision. The time limits for state-run panels in 
those twelve states are as follows: 40 days: NJ, NY; 45 days: HI, 
ME, MA. The remaining states require decisions within 50-150 days: 
50 days: VT (30 days to hold hearing and 20 days thereafter to 
render decision); 60 days: CT, FL; 70 days: NH (40 days to hold 
hearing and 30 days thereafter to render decision) and WA (10 days 
to forward application to Board, 45 days thereafter to hold hearing, 
and 15 days after hearing to render decision); 150 days: TX (60 days 
to render decision after hearing; if process not completed within 
150 days of date consumer application and fee received, consumer can 
go into court); no stated time limit: GA.
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    The BBB argued that the 40-day time frame set by Rule 703 may work 
to the detriment of consumers because the BBB is often unable to 
accommodate consumer requests for delay or postponement of hearings 
because the Rule requires that disputes be resolved within 40 days. 
Furthermore, the BBB maintained that the 40-day time period often 
constrains their efforts to mediate disputes for those consumers who 
prefer a mediated resolution rather than the more formal arbitration 
process that Rule 703 sets forth.
    When the Rule was promulgated in 1975, the Commission received many 
comments on its proposal that decisions must be rendered within 40 
days. Many consumer commenters believed that 40 days was too long to 
wait when there is a malfunctioning product, while industry comments 
generally took the position that the time limit was too short.\75\
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    \75\ 40 FR 60168, 60208. Consumer witnesses recommended a time 
period of 10 to 30 days, while industry recommended a 90-day limit.
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    The goal of encouraging fair and expeditious informal handling of 
consumer warranty disputes remains an important step in providing 
consumers a means to obtain relief for defective products. The 
Commission's intent in promulgating the requirements set out in Rule 
703 was to avoid creating artificial or unnecessary procedural burdens 
so long as the basic goals of speed, fairness, and independent 
participation are met.\76\ The Commission is concerned that by the time 
a dispute has ripened to referral to an IDSM the consumer in many cases 
has already had to contend with a defective product for a protracted 
period. The Commission is concerned that any period longer than 40 days 
would, in many cases, serve only to wear down consumers so they will 
abandon their attempts to obtain redress. In the absence of firmer 
evidence to the contrary, the Commission believes that the 40-day time 
period, on balance, is beneficial to consumers most in need of an IDSM 
remedy. The Commission believes that the 40-day time limit should 
remain in effect.
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    \76\ 40 FR 60168, 60193.
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    4. Encourage the use of a mediation approach to settling disputes. 
Two commenters sounded the theme that warrantors, consumers, and IDSMs 
need flexibility to fashion dispute resolution procedures using 
mediation and other forms of alternative dispute resolution mechanisms 
so disputes can be resolved in an expeditious and cost effective 
manner.\77\ MHI recommended that mediation be allowed in addition to, 
or in lieu of, arbitration.\78\ Donald Rome recommended that the Rule 
encourage mediation as an approach to facilitate the early resolution 
of warranty disputes in a manner that would better meet the needs and 
expectations of consumers than more formal arbitration proceedings.\79\
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    \77\ See, Rome; MHI.
    \78\ MHI, Appendix A at 3.
    \79\ See, generally, Rome.
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    The Commission supports the use of mediation to achieve a mutually-
agreed-upon settlement among the parties to the dispute prior to 
initiating the more formal arbitration process outlined in the Rule. 
Indeed, Sec. 703.5(d) itself implies that there will be ongoing 
attempts to settle the dispute short of having the decision maker 
render a decision.

    If the dispute has not been settled, the Mechanism shall, as 
expeditiously as possible, but at least within 40 days of 
notification of the dispute * * * render a fair decision. (Emphasis 
added.)

    The Commission has made clear, however, that the use of mediation 
must not impede those consumers who wish to pursue a remedy through 
other avenues (e.g., arbitration and litigation). Those avenues must be 
readily accessible if mediation does not produce a satisfactory 
resolution of the dispute. In addition, consumers must not be obligated 
to use mediation instead of the Rule 703 arbitration process, nor 
should they be pressured into accepting a settlement that is 
unsatisfactory to them. The Commission articulated its position on this 
subject in 1984 when it granted limited exemptions from Rule 703, for a 
two-year trial period, to the BBB, the Chrysler Customer Arbitration 
Board, the Automotive Consumer Action Panel, and the Ford Consumer 
Appeals Board programs.\80\ The exemptions suspended the 40-day time 
limit and extended the Rule's time limit for arbitration decisions to 
60 days in order to allow the programs up to 20 days to pursue 
mediation prior to conducting arbitration. In granting the exemption, 
however, the Commission imposed three conditions to ensure that 
consumers retained control over the speed of the process.
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    \80\ 49 FR 28397 (July 12, 1984) (Approval of Exemption for BBB, 
Chrysler, and Automotive Consumer Action Panel); and 50 FR 27936 
(July 9, 1985) (Approval of Exemption for Ford Consumer Appeals 
Board). These programs did not renew their requests for exemptions 
after the two-year trial period ended.
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    (1) The mediation process must be optional. Consumers should not be 
required to participate in mediation and must be allowed to terminate 
mediation at any time during the process and still obtain a decision 
from the IDSM.
    (2) As soon as the consumer notifies the IDSM that he or she elects 
to terminate mediation and begin the arbitration process, the IDSM must 
render a decision within 40 days of that notification, or within 60 
days of the date on which the IDSM first received notification of the 
dispute, whichever is less.
    (3) The above two conditions must be disclosed clearly and 
conspicuously to the consumer after the mechanism has received notice 
of the dispute and prior to beginning the arbitration process.
    The Commission believed that these conditions would ensure that 
consumers would not lose any of their protections under Rule 703 for a 
speedy and fair resolution of their warranty disputes. Consumers would 
retain control over which approach (mediation and/or arbitration) they 
wished to use and also would control the speed of the process.
    The Commission continues to believe that mediation's informality, 
flexibility, and emphasis on the particular needs of

[[Page 19710]]

disputing parties makes it a useful tool in achieving a fair and 
expeditious resolution of consumer product warranty disputes. However, 
the Commission does not believe that it is necessary to amend the Rule 
to specifically encourage the use of mediation since the Rule's 
provisions already allow for such settlements before a decision is 
rendered.
    5. Other recommendations.
    a. Changes in technology. The BBB notes that it is implementing an 
electronic document management system that will enable all case records 
and documents to be stored as electronic images. The BBB asks that Rule 
703 be updated to specifically provide for storage of records as 
electronic images. \81\
---------------------------------------------------------------------------

    \81\ BBB at 4.
---------------------------------------------------------------------------

    As the BBB notes, Rule 703's recordkeeping requirements do not 
mandate the form in which records are stored. There is nothing in the 
Rule to prohibit the use of electronic storage or any other new 
technology, as long as the IDSM can meet its obligations under the Rule 
to allow public inspection and copying of the statistical summaries and 
other public records, to allow parties to the dispute to access and 
copy the records relating to the dispute, and to allow an annual audit 
of the IDSM's operations. It is not the Commission's intention that the 
Rule be interpreted to restrict to antiquated technological methods the 
form or format of records required to be kept under the Rule.
    b. Changing the type of required statistical analyses. One 
commenter (Nowicki) recommends that Sec. 703.6(e) be abolished. \82\ 
Section 703.6(e) requires the IDSM to maintain certain statistical 
compilations, including the number and percent of disputes resolved or 
decided and whether the warrantor has complied; the number of decisions 
adverse to the consumer; and the number of decisions delayed beyond 40 
days and the reasons for the delay. Mr. Nowicki argues that the 
categories of statistical compilations the mechanism must maintain are 
``either moot, nebulous, or even worse, misleading and deceptive.''
---------------------------------------------------------------------------

    \82\ Nowicki at 3-4.
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    Mr. Nowicki maintains, for example, that the statistical 
compilations underreport the number of decisions that are not resolved 
within 40 days because many manufacturer IDSMs assign a new file each 
time a consumer files a complaint, even if the consumer previously had 
filed a complaint for the same vehicle and the same problem. Thus, if a 
consumer was awarded an interim repair and refiles because the repairs 
did not cure the problem, the refiling is assigned a new case number 
and triggers a new 40-day time period. Mr. Nowicki believes the 
statistics would be more meaningful if they tracked the entire process 
of resolving the consumer's complaint about a particular vehicle, 
regardless of how many times the consumer refiles. Similarly, he 
maintains that the statistical compilations understate the level of 
compliance by warrantors with settlements and decisions and that the 
category that reports the number of ``adverse decisions'' under reports 
the number of consumers who are not awarded the relief they sought 
(e.g., the consumer is awarded further repairs instead of a 
replacement).
    The Commission appreciates that the statistical compilations 
required by Sec. 703.6(e) cannot provide an in-depth picture of the 
workings of a particular IDSM. However, the statistics were not 
intended to serve that function. The statistical compilations attempt 
to provide a basis for minimal review by the interested parties to 
determine whether the IDSM program is working fairly and expeditiously. 
Based on that review, a more detailed investigation could then be 
prompted. In addition, in adopting the recordkeeping requirements, the 
Commission was mindful that substantial recordkeeping costs might 
dissuade the establishment of IDSMs. Therefore, the Commission sought 
to minimize the costs of the recordkeeping burden on the IDSM while 
ensuring that sufficient information was available to the public to 
provide a minimal review. The Commission does not believe that there is 
sufficient record evidence to prompt changes in the statistical 
compilations required under Sec. 703.6(e). Accordingly, the Commission 
has determined to retain Sec. 703.6(e) unchanged.

D. Regulatory Flexibility Act Analysis

    The Regulatory Flexibility Act provides for analysis of the 
potential impact on small businesses of Rules proposed by federal 
agencies. (5 U.S.C. 603, 604). Rules 701 and 702 are the only warranty-
related matters currently under review that require such an analysis. 
\83\ In 1987, the Commission conducted a Regulatory Flexibility Act 
analysis of Rule 702 in connection with its amendment of that Rule. See 
52 FR 7569. The April 3, 1996 request for comment was the first review 
of Rule 701 since it was promulgated in 1975 and thus presented the 
first opportunity to conduct such an analysis for that Rule. Therefore, 
the April 3 notice included questions to elicit the necessary 
information.
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    \83\ Rule 703 does not require a Regulatory Flexibility Act 
analysis because the only entities affected by the requirements of 
Rule 703 are those warrantors and IDSMs who purport to follow Rule 
703 standards (the auto manufacturers and their IDSM programs). 
Currently, none of those entities fall within the definition of 
``small'' based on Small Business Administration size standards. 
Therefore, Rule 703 does not appear to have a significant effect on 
a substantial number of small entities.
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    The Commission believes that a very high percentage of businesses 
subject to Rule 701 are ``small'' based on Small Business 
Administration size standards. Unfortunately, the available data do not 
provide a precise measurement of the impact Rule 701 has had on small 
businesses nor the economic impact that would result from leaving the 
Rule unchanged.
    For example, in the regulatory analysis conducted for Rule 702, the 
Commission's investigation found that nearly all the manufacturers 
(11,365 companies or 97 percent) and nearly all retailers (952,916 
companies or 99.3 percent) affected by Rule 702 were considered 
``small'' using the size standards promulgated by the Small Business 
Administration. That investigation indicated that, if the companies 
were compared according to annual receipts, small retailers would 
represent about 47 percent and small manufacturers about 23 percent of 
the gross annual receipts in their respective industries.
    In 1984, the FTC's Office of Impact Evaluation issued a study 
evaluating the Impact of the Warranty Rules (Market Facts, Warranty 
Rules Consumer Follow-Up: Evaluation Study. Final Report, Washington, 
DC, July 1984 (``the Study'')). The Study found that some type of 
warranty was offered for 87 percent of the consumer products surveyed. 
Of those warranted products, almost 63 percent carried only a 
manufacturer's warranty, about 12 percent were warranted only by the 
retailer, and about 13 percent were covered by both a manufacturer's 
and a retailer's warranty. Thus, the costs of Rule 701 would appear to 
fall principally on manufacturers, since those entities are more likely 
to provide a written warranty. However, it is unknown how many of those 
manufacturers or retailers who give written warranties are also small 
entities.
    Much of the burden imposed on business by Rule 701 is statutorily 
imposed. Section 102 of the Magnuson-Moss Warranty Act, 15 U.S.C. 2301 
et seq., requires warrantors who use written warranties to disclose 
fully and conspicuously the terms and conditions of the warranty. The 
Act lists a number of items that may be included in any

[[Page 19711]]

rules requiring disclosure that the Commission might prescribe, and, in 
Rule 701, the Commission tracked those items. Nonetheless, in 
promulgating the Rule, the Commission attempted to comply with the 
Congressional mandate in Section 102 of the Act while minimizing the 
economic impact on affected businesses. For example, the Commission 
limited the disclosure requirements to warranties on consumer products 
actually costing the consumer more than $15.00. Furthermore, the 
Commission exempted ``seal of approval'' programs from providing the 
disclosures on the actual seal.
    The comments provided some indication that the Commission succeeded 
in drafting the Rule so as not to make it unduly burdensome to 
business. The comments from AAMA and NAIMA indicate that Rule 701 is 
not unreasonably costly to warrantors. These two commenters indicated 
that the system is working well. The AAMA stated that the current 
system is working well and is not unreasonably costly to warrantors: 
The Rules are workable and understood by industry and that there is no 
evidence that the adequacy of warranty disclosure nor that the legal 
sufficiency of the warranties given is a major source of complaints, 
nor is there evidence that customers are unaware of their warranty 
rights. The AAMA stated ``As presently structured, these Rules are 
workable and effective, and permit warrantor compliance without 
unreasonable expense.'' 84
---------------------------------------------------------------------------

    \84\ AAMA at 2.
---------------------------------------------------------------------------

    The NAIMA echoed AAMA's opinion. NAIMA indicated that the costs of 
the warranty regulations are not imposed upon businesses by government, 
but rather are voluntarily assumed by companies that choose to offer 
written warranties. As such, NAIMA states that ``any cost incurred by a 
firm would be calculated into a business decision to offer a warranty 
or guarantee and should not be weighed as a factor to eliminate or 
diminish the requirement.'' 85
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    \85\ NAIMA at 3.
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    The other commenters were silent as to the effects of Rule 701 on 
small businesses. Therefore, based on the information available, the 
Commission has determined that, to the extent that Rule 701's 
requirements are not Congressionally mandated, the current version of 
Rule 701 does not unduly burden small businesses.

List of Subjects in 16 CFR Parts 239, 700, 701, 702, and 703.

    Warranties, advertising, dispute resolution, trade practices.

    Authority: 15 U.S.C. 41-58.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 99-9841 Filed 4-21-99; 8:45 am]
BILLING CODE 6750-01-P