[Federal Register Volume 74, Number 199 (Friday, October 16, 2009)]
[Notices]
[Pages 53249-53250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24993]


-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

[File No. 092 3141]


Progressive Gaitways, Inc.; Analysis of Proposed Consent Orders 
To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

-----------------------------------------------------------------------

SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint and the terms of the consent order -- embodied in the consent 
agreement -- that would settle these allegations.

DATES: Comments must be received on or before November 5, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to ``Progressive 
Gaitways, File No. 092 3141'' to facilitate the organization of 
comments. Please note that your comment -- including your name and your 
state -- will be placed on the public record of this proceeding, 
including on the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as an individual's Social Security 
Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include any ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged or confidential . . . .,'' as provided in 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 
4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which 
confidential treatment is requested must be filed in paper form, must 
be clearly labeled ``Confidential,'' and must comply with FTC Rule 
4.9(c), 16 CFR 4.9(c).\1\
---------------------------------------------------------------------------

    \1\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
---------------------------------------------------------------------------

    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink: (https://public.commentworks.com/ftc/progressivegaitways) and following the 
instructions on the web-based form. To ensure that the Commission 
considers an electronic comment, you must file it on the web-based form 
at the weblink: (https://public.commentworks.com/ftc/progressivegaitways). If this Notice appears at (http://www.regulations.gov/search/index.jsp), you may also file an electronic 
comment through that website. The Commission will consider all comments 
that regulations.gov forwards to it. You may also visit the FTC website 
at (http://www.ftc.gov/) to read the Notice and the news release 
describing it.
    A comment filed in paper form should include the ``Progressive 
Gaitways, File No. 092 3141'' reference both in the text and on the 
envelope, and should be mailed or delivered to the following address: 
Federal Trade Commission, Office of the Secretary, Room H-135 (Annex 
D), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is 
requesting that any comment filed in paper form be sent by courier or 
overnight service, if possible, because U.S. postal mail in the 
Washington area and at the Commission is subject to delay due to 
heightened security precautions.
    The Federal Trade Commission Act (``FTC Act'') and other laws the 
Commission administers permit the collection of public comments to 
consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive public comments that it receives, 
whether filed in paper or electronic form. Comments received will be 
available to the public on the FTC website, to the extent practicable, 
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of 
discretion, the Commission makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC website. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).

FOR FURTHER INFORMATION CONTACT: Molly Crawford (202-326-3076) or Katie 
Ratt[eacute] (202-326-3514), Bureau of Consumer Protection, 600 
Pennsylvania Avenue, NW, Washington, D.C. 20580.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  2.34 the 
Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that 
the above-captioned consent agreement containing a consent order to 
cease and desist, having been filed with and accepted, subject to final 
approval, by the Commission, has been placed on the public record for a 
period of thirty (30) days. The following Analysis to Aid Public 
Comment describes the terms of the consent agreement, and the 
allegations in the

[[Page 53250]]

complaint. An electronic copy of the full text of the consent agreement 
package can be obtained from the FTC Home Page (for October 6, 2009), 
on the World Wide Web, at (http://www.ftc.gov/os/actions.shtm). A paper 
copy can be obtained from the FTC Public Reference Room, Room 130-H, 
600 Pennsylvania Avenue, NW, Washington, D.C. 20580, either in person 
or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. All comments should be filed as 
prescribed in the ADDRESSES section above, and must be received on or 
before the date specified in the DATES section.

Analysis of Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission (``FTC'' or ``Commission'') has 
accepted, subject to final approval, a consent agreement from 
Progressive Gaitways, Inc.
    The proposed consent order has been placed on the public record for 
thirty (30) days for receipt of comments by interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) days, the Commission will again review the 
agreement and the comments received, and will decide whether it should 
withdraw from the agreement and take appropriate action or make final 
the agreement's proposed order.
    This matter concerns alleged false or misleading representations 
that Progressive Gaitways made to consumers concerning its 
participation in the Safe Harbor privacy framework (``Safe Harbor'') 
agreed upon by the U.S. and the European Union (``EU''). It is among 
the Commission's first cases to challenge deceptive claims about the 
Safe Harbor. The Safe Harbor provides a mechanism for U.S. companies to 
transfer data outside the EU consistent with European law. To join the 
Safe Harbor, a company must self-certify to the U.S. Department of 
Commerce (``Commerce'') that it complies with seven principles and 
related requirements. Commerce maintains a public website, 
(www.export.gov/safeharbor), where it posts the names of companies that 
have self-certified to the Safe Harbor. The listing of companies 
indicates whether their self-certification is ``current'' or ``not 
current.'' Companies are required to re-certify every year in order to 
retain their status as ``current'' members of the Safe Harbor 
framework.
    Progressive Gaitways sells medical equipment, including through two 
websites (www.theratogs.com) and (www.gaitways.com). According to the 
Commission's complaint, from at least December 2008 until June 2009, 
Progressive Gaitways' (www.theratogs.com) website set forth privacy 
policies and statements about its practices, including statements 
related to its participation in the Safe Harbor. From at least June 
2007 until June 2009, respondent has set forth on its website, 
(www.gaitways.com), the same privacy policies and statements, including 
the statements related to participation in the Safe Harbor.
    The Commission's complaint alleges that until June 2009, 
Progressive Gaitways falsely represented that it was a current 
participant in the Safe Harbor when, in fact, Progressive Gaitways has 
not been a current participant in the Safe Harbor since November 2006 
for its (www.theratogs.com) website, and had never been a participant 
in the Safe Harbor for its (www.gaitways.com) website. The Commission's 
complaint alleges that Progressive Gaitways submitted a Safe Harbor 
self-certification on behalf of its (www.theratogs.com) website in 
November 2004 and renewed it in November 2005. It did not renew the 
self-certification in November 2006, at which point Commerce updated 
its status to ``not current'' on the Commerce public website. To date, 
Progressive Gaitways has not renewed its self-certification to the Safe 
Harbor on behalf of (www.theratogs.com). The Commission's proposed 
complaint also alleges that Progressive Gaitways has never filed a Safe 
Harbor self-certification on behalf of its (www.gaitways.com) website.
    The proposed order applies to Progressive Gaitways's 
representations about its membership in any privacy, security, or any 
other compliance program sponsored by the government or any other third 
party. It contains provisions designed to prevent Progressive Gaitways 
from engaging in the future in practices similar to those alleged in 
the complaint.
    Part I of the proposed order prohibits Progressive Gaitways from 
making misrepresentations about its membership in any privacy, 
security, or any other compliance program sponsored by the government 
or any other third party.
    Parts II through VI of the proposed order are reporting and 
compliance provisions. Part II requires Progressive Gaitways to retain 
documents relating to its compliance with the order for a five-year 
period. Part III requires dissemination of the order now and in the 
future to persons with responsibilities relating to the subject matter 
of the order. Part IV ensures notification to the FTC of changes in 
corporate status. Part V mandates that Progressive Gaitways submit an 
initial compliance report to the FTC, and make available to the FTC 
subsequent reports. Part VI is a provision ``sunsetting'' the order 
after twenty (20) years, with certain exceptions.
    The purpose of the analysis is to facilitate public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the agreement and proposed order or to modify in any 
way their terms.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E9-24993 Filed 10-15-09; 8:45 am]
BILLING CODE 6750-01-S