[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Proposed Rules]
[Pages 60765-60774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24354]


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FEDERAL TRADE COMMISSION

16 CFR Part 435


Mail or Telephone Order Merchandise Rule

AGENCY: Federal Trade Commission (``Commission'' or ``FTC'').

ACTION: Notice of proposed rulemaking.

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SUMMARY: The FTC proposes amending the Mail or Telephone Order 
Merchandise Rule (``MTOR'' or ``Rule'') to respond to the development 
of new technologies and changed commercial practices. By doing so, the 
Commission seeks to accomplish four objectives: clarify that the Rule 
covers all Internet merchandise orders regardless of whether the buyer 
accesses the Internet through a telephone line, allow sellers to 
provide refunds and refund notices to buyers by any means at least as 
fast and reliable as first class mail, clarify sellers' obligations 
under the Rule for sales made using payment methods not specifically 
enumerated in the Rule, and require sellers to process any third party 
credit card refund within seven working days of a buyer's right to a 
refund vesting. Additionally, the FTC sets forth its interpretation of 
``demand drafts'' as the functional equivalents of checks for purposes 
of the Rule.

DATES: Written comments must be received on or before December 14, 
2011. Parties interested in an opportunity to present views orally, 
should submit a request to do so, and such requests must be received on 
or before December 14, 2011.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``16 CFR Part 435--Mail 
or Telephone Order Merchandise'' on your comment, and file your comment 
online at https://ftcpublic.commentworks.com/ftc/MTORamendmentsNPRM, by 
following the instructions on the Web-based form. If you prefer to file 
your comment on paper, mail or deliver your comment to the following 
address: Federal Trade Commission, Office of the

[[Page 60766]]

Secretary, Room H-113 (Annex N), 600 Pennsylvania Avenue, NW., 
Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Jock Chung, (202) 326-2984, Attorney, 
Division of Enforcement, Bureau of Consumer Protection, Federal Trade 
Commission, Room M-8102B, 600 Pennsylvania Ave., NW., Washington, DC 
20580, or Gregory Madden, (202) 326-2426, Attorney, Division of 
Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 
Room M-8102B, 600 Pennsylvania Ave., NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: The Commission finds that using expedited 
procedures in this rulemaking will serve the public interest. Expedited 
procedures will support the Commission's goals of clarifying and 
updating existing regulations without undue expenditure of resources, 
while ensuring that the public has an opportunity to submit data, 
views, and arguments on whether the Commission should amend the Rule. 
Because written comments should adequately present the views of all 
interested parties, the Commission is not scheduling a public hearing 
or workshop. However, if any person would like to present views orally, 
he or she should follow the procedures set forth in the DATES, 
ADDRESSES, and SUPPLEMENTARY INFORMATION sections of this document. 
Pursuant to 16 CFR 1.20, the Commission will use the procedures set 
forth in this document, including: (1) Publishing this Notice of 
Proposed Rulemaking; (2) soliciting written comments on the 
Commission's proposals to amend the Rule; (3) holding an informal 
hearing (such as a workshop), if requested by interested parties; (4) 
obtaining a final recommendation from staff; and (5) announcing final 
Commission action in a document published in the Federal Register. Any 
motions or petitions in connection with this proceeding must be filed 
with the Secretary of the Commission.

I. MTOR Background

    The Commission originally promulgated the Mail Order Rule in 1975 
in response to complaints that many mail order sellers failed to ship 
ordered merchandise, failed to ship merchandise on time, or failed to 
provide prompt refunds for unshipped merchandise. The Commission issued 
the Rule pursuant to its authority under sections 5 and 18 of the 
Federal Trade Commission Act (``FTC Act''), 15 U.S.C. 45 and 57a, to 
proscribe these deceptive and unfair acts or practices.\1\
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    \1\ Federal Trade Commission: Part 435--Mail Order Merchandise: 
Promulgation of Trade Regulation Rule, 40 FR 49492-94 (Oct. 22, 
1975); Federal Trade Commission: Part 435--Mail Order Merchandise: 
Promulgation of Trade Regulation Rule: Correction, 40 FR 51582-597 
(Nov. 5, 1975) (``Promulgation of Rule: Correction''). The 
Commission initiated the rulemaking in 1971 under section 6(g) of 
the FTC Act, 15 U.S.C. 46(g), and had substantially completed the 
rulemaking when Congress amended the FTC Act by adopting section 18, 
15 U.S.C. 57a. By operation of law, the Mail Order Rule was then 
treated as having been promulgated under authority of section 18. 
See United States v. JS&A Group, Inc., 547 F. Supp. 20, 23 (N.D. 
Ill. 1982); United States v. Braswell, Inc., No. C 81-558 A, 1981 
U.S. Dist LEXIS 15444, at *8 (N.D. Ga. 1981). The Mail Order Rule 
took effect February 2, 1976.
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    A second proceeding, concluding in 1993, demonstrated that 
consumers who ordered merchandise by telephone experienced the same 
shipment and refund problems. Accordingly, the Commission amended the 
Rule to cover merchandise ordered by telephone, ``including orders 
placed by facsimile machines or computers with telephone modems,'' and 
renamed the Rule the ``Mail or Telephone Order Merchandise Rule.'' \2\
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    \2\ Federal Trade Commission: Trade Regulation Rule; Mail or 
Telephone Order Merchandise: Final Trade Regulation Rule, 58 FR 
49096, 49097 (Sept. 21, 1993) (``Telephone Order Merchandise'').
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    The MTOR prohibits sellers from soliciting mail or telephone order 
sales unless sellers have a reasonable basis to expect that they will 
be able to ship, after receipt of a properly completed order, the 
ordered merchandise within the time stated on the solicitation or, if 
no time is stated, within 30 days. The MTOR further requires a seller 
to seek the buyer's consent to the delayed shipment when the seller 
learns that it cannot ship within the time stated or, if no time is 
stated, within 30 days. If the buyer does not consent, the seller must 
promptly refund all money paid for the unshipped merchandise.\3\
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    \3\ The MTOR is consistent with the requirements of the 
Telemarketing Sales Rule (``TSR''), 16 CFR 310, but covers different 
practices. The MTOR covers post-purchase events, such as actions 
that a seller must take when it learns it cannot ship merchandise on 
time. The TSR, unlike the MTOR, also covers sales of services, and 
covers numerous pre-purchase practices, such as disclosures made 
before a customer consents to pay. The MTOR covers telemarketing 
sales that the TSR exempts, such as certain customer-initiated 
telephone calls made in response to a direct mail solicitation, 16 
CFR 310.6(b)(6), and sales that do not involve telemarketing, such 
as mailorder or non-voice telephone (facsimile or Internet) sales.
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II. Proposed Amendments Due to Changing Conditions

    The Commission can issue a notice of proposed rulemaking under the 
FTC Act if it has ``reason to believe that the unfair or deceptive acts 
or practices which are the subject of the proposed rulemaking are 
prevalent.'' 15 U.S.C. 57a(b)(3). The Commission can find ``unfair or 
deceptive acts or practices are prevalent'' where: ``(A) It has issued 
cease and desist orders regarding such acts or practices, or (B) any 
other information available to the Commission indicates a widespread 
pattern of unfair or deceptive acts or practices.'' Id. at 
57a(b)(3)(A)-(B). The Commission has ``wide latitude for judgment'' in 
fashioning a remedy and need only show a ``reasonable relationship'' 
between the unfair or deceptive act or practice and the remedy. 
American Fin. Servs. Ass'n v. FTC, 767 F.2d 957, 988 (DC Cir. 1985) 
(quoting Jacob Siegel Co. v. FTC, 327 U.S. 608, 612-13 (1946)); see 
also Telephone Order Merchandise, 58 FR 49096, 49106.
    On September 11, 2007, as part of its rule review process,\4\ the 
Commission published a request for public comment,\5\ which also served 
as an Advance Notice of Proposed Rulemaking.\6\ In this Advance Notice 
of Proposed Rulemaking (``ANPR''), the Commission generally sought 
comment on the Rule's costs, benefits, and the continuing need for the 
Rule.\7\ The Commission specifically sought comment on whether to 
propose amending the Rule to: (1) Clarify that it covers all Internet 
merchandise sales regardless of how buyers access the Internet (e.g., 
dial-up telephone modem, cable, or wireless); (2) allow sellers to 
provide refunds and refund notices by means at least as fast and 
reliable as first class mail; and (3) require sellers to provide cash, 
check, or money order refunds when buyers use any payment method other 
than credit.
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    \4\ The Commission reviews all its rules and guides periodically 
to ensure that they remain relevant. These periodic reviews seek 
information about the costs and benefits of the Commission's rules 
and guides as well as their economic and regulatory impact. The 
information obtained assists the Commission in identifying rules and 
guides that warrant modification or rescission.
    \5\ Federal Trade Commission: Mail or Telephone Order 
Merchandise: Request For Public Comment, 72 FR 51728 (Sept. 11, 
2007) (``ANPR'').
    \6\ 15 U.S.C. 57a(b)(2)(A).
    \7\ In a separate document published elsewhere in this Federal 
Register, the Commission publishes its determination retaining the 
Rule. In that document, the Commission is also making final, non-
substantive technical amendments, placing the Rule's definitions at 
the beginning and alphabetizing the definitions. References in this 
document are to the Rule as reordered and redesignated in the final 
rule.
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    After reviewing the comments received in response to the ANPR, and 
based on recent enforcement actions and complaints, the Commission 
finds that it has reason to believe that unfair

[[Page 60767]]

or deceptive acts or practices involving Internet sales are prevalent, 
notwithstanding the number of reliable Internet retailers. 
Consequently, the Commission proposes amending the Rule to address new 
technologies and commercial practices by: (1) Expressly covering all 
Internet merchandise orders, (2) allowing sellers to provide refunds 
and refund notices by any means at least as fast and reliable as first 
class mail, (3) clarifying sellers' obligations under the Rule for 
sales made using payment methods not specifically enumerated in the 
Rule, and (4) requiring sellers to provide refunds within seven working 
days where the buyer uses a third party credit card.\8\ The Commission 
finds these proposed amendments are reasonably related to remedying 
unfair and deceptive acts or practices and ensuring that buyers receive 
timely delivery or timely refunds.
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    \8\ Even though the ANPR sought comment on only three potential 
amendments, the Commission now proposes four amendments to the MTOR. 
The additional proposed amendment responds to comments the FTC 
received.
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    Finally, consistent with the Federal Reserve System's handling of 
demand drafts, the Commission announces its determination that ``demand 
drafts'' are the functional equivalent of checks and the Commission 
will treat them as such for purposes of the Rule.

A. Clarify Coverage of Internet Orders

    The Commission expanded coverage of the Rule to include Internet 
orders when it amended the ``telephone'' definition in 1993.\9\ At that 
time, to the extent consumers had access to the Internet, they 
typically accessed it through the telephone. Other means of accessing 
the Internet, however, are now widespread. In fact, from June 2000 to 
May 2011, American consumers largely switched from dial-up connections 
to broadband for Internet access.\10\ The Commission's 2007 ANPR 
therefore sought comment on whether the Commission should clarify the 
Rule by amending it to expressly cover merchandise ordered via the 
Internet regardless of the access method.\11\
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    \9\ Section 435.1(f) defines ``telephone'' as ``any direct or 
indirect use of the telephone to order merchandise, regardless of 
whether the telephone is activated by, or the language used is that 
of human beings, machines, or both.'' The Commission noted that 
rulemaking participants understood that the ``telephone'' definition 
was meant to ``cover orders taken by mechanical means over the 
phone, orders placed by computers, and orders placed by fax 
transmission.'' Telephone Order Merchandise, 58 FR at 49113.
    \10\ During this period, the portion of U.S. households 
accessing the Internet through dial-up connections declined from 34 
percent to 4 percent, and the portion using broadband increased from 
3 percent to 60 percent. Broadband and Dial-up Adoption, 2000-2011, 
http://pewinternet.org/Trend-Data/Home-Broadband-Adoption.aspx.
    \11\ In 2007, the Commission explained that it intended to 
``cover all Internet ordering, regardless of [buyers'] means of 
access * * *.'' ANPR, 72 FR at 51729.
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    All four responsive comments supported clarifying the Rule in this 
manner.\12\ The Direct Marketing Association (``DMA'') \13\ commented 
that its own guidelines treat all Internet orders equally and its 
members follow those guidelines.\14\ The National Retail Federation 
(``NRF'') \15\ also supported covering Internet orders regardless of 
means of access, provided that the order was placed through the 
``publicly accessible worldwide web.'' NRF at 3. Specifically, NRF's 
comments urged the Commission not to cover sales by retailers who use 
Internet connections within their stores only to provide information to 
sales representatives.\16\ NRF at 3 n.1.
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    \12\ Public comments received in response to the ANPR are 
available at: http://www.ftc.gov/os/comments/mailortelephoneorder/index.shtm. This document cites to these comments by indicating the 
short form for the commenter, e.g., ``DMA'' for the Direct Marketing 
Association, and the page of the comment.
    \13\ DMA is a global trade organization representing business 
and nonprofit organizations engaged in direct marketing. DMA at 1. 
DMA represents more than 3,600 companies in the U.S. and abroad, 
along with more than 200 nonprofit organizations. Id.
    \14\ DMA, http://www.ftc.gov/os/comments/mailortelephoneorder/532289-00004.htm, at 3.
    \15\ NRF identifies itself as the world's largest retail trade 
association with membership from all retailing formats and 
distribution channels (e.g., catalog sales, Internet sales). NRF, 
http://www.ftc.gov/os/comments/mailortelephoneorder/532289-00003.htm, at 1. NRF's membership comprises more than 1.6 million 
U.S. retail establishments with 2006 sales of $4.7 trillion. Id. NRF 
includes a division for members with interests in merchandise 
distribution via the Internet, Shop.Org, that specifically joined 
NRF's comments. Id.
    \16\ The Commission notes that the MTOR does not presently cover 
transactions in which a seller's representative merely receives 
product or inventory information through a telephone, but the 
transaction with the buyer is conducted by means of media outside 
the Rule's scope (e.g., face-to-face transactions). Similarly, the 
proposed amendments to the MTOR would not cover transactions in 
which a seller's representative uses the Internet to receive product 
or inventory information, but where the buyer orders the merchandise 
by means outside of the Rule's scope.
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    Two individual commenters also voiced support. Paul T. Dearing 
(``Dearing'') commented that a merchant could not ``reasonably argue 
that an order placed over a wireless network was somehow exempt from 
the requirements of the Rule.'' \17\ He further noted that, given 
current practices, amending the Rule would not ``impose any new 
obligations or create any new rights that have not already been 
recognized for over a decade.'' Id. Oriyomi Nwokeji (``Nwokeji'') 
commented that consumers and merchants do not consider access methods 
when processing Internet orders.\18\
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    \17\ Dearing, http://www.ftc.gov/os/comments/mailortelephoneorder/532289-00002.pdf, at 2.
    \18\ Nwokeji, http://www.ftc.gov/os/comments/mailortelephoneorder/532289-00001.htm, at 1.
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    These comments are consistent with publicly available data, 
consumer complaints, and enforcement actions. First, Internet sales 
accounted for 44 percent of the almost $200 billion of 2007 non-store 
merchandise sales, indicating how common such purchases have 
become.\19\ As noted, the overwhelming majority of these sales occur 
via broadband Internet access, not telephone dial-up.
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    \19\ U.S. Census Bureau, E-Stats, 2007 E-Commerce Multi-Sector 
Report, May 28, 2009, http://www.census.gov/compendia/statab/2010/tables/10s1022.pdf, tbl.1022 Electronic Shopping and Mail-Order 
Houses--Total and E-Commerce Sales by Merchandise Line: 2006-2007.
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    Second, consumer complaints indicate that Internet merchandise 
buyers, regardless of the way they connect to the Internet, suffer from 
the unfair or deceptive acts or practices that prompted adoption of the 
Rule. The Internet Crime Complaint Center (``IC3'') \20\ reported that 
in 2009 almost 12 percent of the 336,655 Internet-related complaints 
that it received (approximately 40,000 complaints) related to ``Non-
Delivery of Merchandise/Payment.'' \21\ Significantly, non-delivery 
represented almost 20 percent of the 146,633 complaints referred to 
local, State, and Federal law enforcement authorities for further 
investigation (approximately 29,000 referrals). Id. at 5.
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    \20\ IC3 is a joint operation of the National White Collar Crime 
Network and the Federal Bureau of Investigation. It serves as a 
clearinghouse for receiving, developing, and referring complaints 
regarding Internet crime.
    \21\ 2009 Internet Crime Report, at 2, Internet Crime Complaint 
Center, http://www.ic3.gov/media/annualreport/2009_IC3Report.pdf 
(2010). IC3 defines this category as: ``Non-Delivery of Merchandise 
(non-auction)--An incident in which the complainant bought 
something, but it never arrived.'' Id. app. II.
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    While many Internet sellers are highly reliable, law enforcement 
actions \22\ and

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IC3 data indicate that some Internet sellers fail to ship substantial 
numbers of Internet merchandise orders on time or at all.\23\ Because 
of the proliferation of Internet access by cable, satellite, optical-
fiber, and other non-telephonic means, many of these purchases 
undoubtedly involved access to the Internet using a means other than 
the telephone. Therefore, the Commission concludes that, although many 
Internet retailers are highly reliable, there is reason to believe that 
the merchandise shipment and refund problems are prevalent regardless 
of the means of Internet access. Explicitly covering all Internet order 
sales regardless of the means of access to the Internet is consistent 
with the Commission's longstanding intent to address all Internet 
merchandise orders.
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    \22\ IC3's report highlights two criminal prosecutions related 
to non-delivery of merchandise purchased on the Internet. Id. at 13. 
Additionally, several states have filed failure to deliver or 
untimely delivery cases for a variety of products sold through the 
Internet. Complaint for Injunctive Relief, Restitution, Civil 
Penalties and Other Relief, Florida v. Lyne, 16-2008-CA-2759 (Fla. 
Cir. Ct. Mar. 3, 2008); Complaint for Permanent Injunctive Relief, 
Civil Penalties and Other Relief, Florida v. Showbiz Promotions, 
LLC, 2009-CA-005681 (Fla. Cir. Ct. Apr. 9, 2009); Complaint for 
Injunctive and Other Relief, People of State of Illinois ex. rel. 
Madigan v. United World Exchange, No. 07CH16005 (Cook County Cir. 
Ct. June 18, 2007); Complaint for Injunctive and Other Relief, 
People of State of Illinois v. Meyer, No. 2007CH003506 (Dupage 
County Cir. Ct. Dec. 28, 2007); Complaint for Declaratory Judgment, 
Injunctive Relief, Consumer Restitution, and Civil Penalty, State of 
Ohio ex. rel. Cordray v. Decorate With Style, Inc. d/b/a USA 
WallPaper, Case No. 2009CV0885 (Ct. Common Pleas Erie County, Oct. 
19, 2009).
    \23\ This is an unfair or deceptive practice, as the Commission 
indicated when it promulgated the initial Rule.
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    Furthermore, because sellers cannot determine how buyers access 
their Web sites, sellers that comply with the Rule do not distinguish 
between access methods and comply with the Rule for all Internet 
orders. Thus, explicitly covering all Internet transactions provides 
clarity without imposing new costs on these sellers. Moreover, 
consumers have no reason to expect that their legal protections depend 
on how they access the Internet. Therefore, the Commission proposes 
amending the Rule's name, coverage section, and the ``order sales'' 
definition by inserting the word ``Internet'' where appropriate.

B. Permit New Refund Delivery Options

    The Commission proposes amending the Rule to allow sellers to 
deliver refunds ``by any means at least as fast and reliable as first 
class mail.'' Currently, sellers must send refunds and charge reversal 
notices by first class mail. 16 CFR 435.1(b).\24\ When the Commission 
promulgated the Rule, first class mail was the most reliable method of 
ensuring timely refunds. In the ANPR, the Commission requested comment 
on changing the first class mail requirement in light of new refund 
methods, such as electronic transfer. ANPR, 72 FR at 51730.
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    \24\ Specifically, Sec.  435.1(b) states that Prompt refund 
shall mean: Where a refund is made pursuant to paragraph (d)(1) or 
(2)(iii) of this section, a refund sent to the buyer by first class 
mail within seven (7) working days of the date on which the buyer's 
right to refund vests under the provisions of this part; where a 
refund is made pursuant to paragraph (d)(2)(i) or (ii) of this 
section, a refund sent to the buyer by first class mail within one 
(1) billing cycle from the date on which the buyer's right to refund 
vests under the provisions of this part.
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    In response, two commenters favored, and none opposed, amending the 
Rule to provide sellers with more flexibility when delivering refunds. 
DMA suggested amending the Rule to ``embrace new practicable means of 
sending refunds.'' DMA at 3. It stated that such a change would advance 
the Rule's original intent of ensuring buyers receive refunds quickly 
without unduly burdening sellers. Id. at 3-4 (citing Promulgation of 
Rule: Correction, 40 FR at 51593.) Nwokeji commented that legal 
requirements should recognize technological changes, and suggested 
amending the Rule to permit refunds via electronic transfers and e-mail 
notification of charge reversals or refunds. Nwokeji at 2.
    This proposed amendment would also harmonize the Rule with 
Regulation Z, which implements the Truth In Lending Act (``TILA''), 15 
U.S.C. 1601 et seq. Regulation Z requires third party credit card 
refunds to occur ``through the card issuer's normal channels for credit 
statements.'' 12 CFR 226.12(e)(1). The proposed amendment should 
eliminate potential inconsistency between the requirements of the Rule 
and Regulation Z when the card issuer's normal channel does not include 
first class mail.
    Although DMA suggested that private couriers or electronic 
transfers are at least as fast and reliable as first class mail for 
providing refunds, the Commission's proposal does not identify specific 
permissible methods other than first class mail. DMA at 4. Instead the 
Commission proposes providing sellers flexibility to use any refund 
delivery method they can demonstrate is as fast and reliable as first 
class mail. This flexibility will allow sellers to incorporate new 
delivery methods in the future.

C. Clarify Sellers' Obligations for Sales Using Non-Enumerated Payment 
Methods

    The Commission proposes amending the Rule to identify sellers's 
obligations for sales made using all payment methods. The Rule's' 
``mail or telephone order sales'' definition already explicitly covers 
all mail or telephone order sales ``regardless of the method of 
payment.'' 16 CFR Sec.  435.1(a).\25\ However, the Rule's definitions 
tie sellers' shipment, notification, and refund obligations to payment 
methods in just two categories: (1) Cash, check, or money order; or (2) 
credit.\26\ Consequently, the Rule does not delineate sellers' 
obligations when buyers pay by methods not enumerated in the Rule, such 
as debit card, prepaid gift card, or payroll card payments.
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    \25\ Specifically, Sec.  435.1(a) states:
    Mail or telephone order sales shall mean sales in which the 
buyer has ordered merchandise from the seller by mail or telephone, 
regardless of the method of payment or the method used to solicit 
the order.
    \26\ Under the ``refund'' definition, if the buyer paid by cash, 
check, or money order, the seller must send the buyer a refund by 
cash, check, or money order. 16 CFR 435.1(d). If the buyer paid by 
authorizing the seller to charge the buyer's charge account (i.e., 
by credit), the seller must act to remove or reverse the charge. Id.
    Under the ``prompt refund'' definition, the seller must send 
refunds by cash, check, or money order by first class mail within 
seven working days after a buyer's right to a refund vests. 16 CFR 
435.1(d)(1) and (2)(iii); 16 CFR 435.1(b)(1). If the buyer paid by 
credit, the seller must send the charge reversal notice (i.e., the 
refund) to the buyer by first class mail within one billing cycle of 
a buyer's right to a refund vesting. 16 CFR 435.1(d)(2)(i) & (ii); 
16 CFR 435.1(b)(2).
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    To clarify sellers' obligations, the Commission suggested possible 
solutions and asked for comment in the ANPR. Below, the Commission 
describes: (1) The responsive comments, and (2) the Commission's 
proposed amendments.
1. ANPR Comments
    In the ANPR, the Commission sought comment to help identify the 
appropriate requirements for sales made using newly developed payment 
methods. ANPR, 72 FR at 51729. Specifically, the Commission asked 
``into which of the two categories [(1) cash, check, or money order; or 
(2) credit] the new payment methods best fall, or whether they should 
be placed in a third category.'' Id.
    Two commenters supported, and none opposed, amending the Rule to 
delineate sellers' obligations.\27\ DMA suggested amending the Rule to 
identify obligations for ``new forms of payment, including, but not 
limited to, debit cards and demand drafts.'' DMA at 3. Nwokeji 
suggested that ``[c]reating an expanded list [of payment methods] with 
open-ended options may be preferable; that way consumers and merchants 
are not trapped in a morass of administrative rigidity.'' Nwokeji at 2.
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    \27\ NRF did not oppose expressly identifying the Rule's 
obligations that apply when new payment methods are used, but as 
discussed below, did raise concerns about sellers' refund 
obligations triggered by the different payment methods. NRF at 3-4.
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    The commenters, however, expressed conflicting opinions about how 
to categorize payment methods that currently are not enumerated in the 
Rule (``non-enumerated methods''). DMA advocated placing demand drafts 
and debit card payments in the same category as cash, checks, or money 
orders because doing so would

[[Page 60769]]

appropriately treat them ``in the same manner as check payment 
methods.'' DMA at 3. In contrast, NRF recommended placing third party 
card payment methods, i.e., payment methods where a party other than 
the seller issues the payment card, in the same category as credit card 
payments because sellers often cannot readily distinguish between debit 
and credit card transactions. NRF at 4. It stated that placing 
different requirements on debit card, payroll card, or third party gift 
card payments than on credit card payments would be ``unnecessarily 
cumbersome'' because it would force merchants to distinguish these 
payments from credit card payments in order to meet the Rule's 
requirements. NRF at 5.
    NRF therefore recommended that transactions appearing to sellers to 
operate as credit cards be subject to the same one billing cycle refund 
requirement as credit transactions. NRF argued that applying this 
requirement to payments by non-enumerated methods would not, as a 
practical matter, inconvenience buyers because ``currently most 
customers' [credit or debit] accounts are not debited for payment until 
merchandise is ready for shipping'' to engender good customer 
relations, to simplify Rule compliance, and to avoid the need to 
process refunds. Id. Thus, according to NRF, in most instances where a 
merchant fails to ship merchandise there is no charge to reverse.
    Nwokeji commented that the Rule should allow sellers flexibility. 
He suggested amending the Rule to require that ``refunds be made in the 
manner in which payments were received with the exception of Western 
Union, MoneyGram, escrow, Paypal, gift card, or other universally 
accepted method of payment.'' Nwokeji at 3-4. For these exceptions, he 
recommended refunds by check or, ``if the merchant is likely to incur 
burdensome expense, the next best option * * *.'' Id.
2. FTC Proposal
    Based on the comments, the Commission proposes amending the Rule to 
create explicit requirements for sellers when buyers use non-enumerated 
methods. Specifically, the Commission proposes creating a third payment 
category, distinct from both the ``cash, check, or money order'' 
category, and from the ``credit'' category. The proposal requires 
sellers to make prompt refunds of such payments by either reversing the 
payment or sending a cash, check, or money order refund within seven 
working days.
    To effectuate these requirements, the Commission proposes amending 
the definitions for: ``Receipt of a properly completed order,'' 
``Refund,'' and ``Prompt Refund.''
a. ``Receipt of a Properly Completed Order''
    The current ``receipt of a properly completed order'' definition 
establishes the starting point for calculating the time by which 
sellers must ship orders, notify consumers of shipment delays, offer to 
cancel orders, or make refunds. 16 CFR 435.1(c). Specifically, the Rule 
times these obligations from the point when the buyer tenders payment 
``in the form of cash, check, money order, or authorization from the 
buyer to charge an existing charge account.'' Id. The Commission 
proposes amending this definition to expressly include other payment 
methods that are not enumerated in the Rule. The proposed amendment 
would add that a seller also has receipt of a properly completed order 
when the buyer tenders payment by ``other payment methods.'' The 
amended definition would establish a clear starting point for 
calculating the time by which sellers must ship or take other action, 
regardless of the method of payment.
b. ``Refund''
    The current ``refund'' definition prescribes the payment method for 
refunding cash, check, or money order sales (Sec.  435.1(d)(1)), and 
for credit sales (Sec.  435.1(d)(2)).\28\ The Commission proposes 
amending this definition to establish the payment method sellers can 
use to refund sales made with other methods of payment.\29\ The 
proposed amendment would require sellers to refund such payments by 
reversing the transaction or, where appropriate, by cash, check, or 
money order.\30\ Alternatively, if sellers have not yet accessed the 
buyers' funds, they must notify the buyers that they have not done so, 
will not do so, and have cancelled the orders.
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    \28\ The present ``refund'' definition provides that: (1) Where 
the seller is the creditor, a seller can make a refund by sending 
``an account statement reflecting the * * * absence of any remaining 
charge''; and (2) where a third party is the creditor, a seller can 
make a refund by sending ``a statement from the seller acknowledging 
the cancellation of the order and representing that it has not taken 
any action regarding the order which will result in a charge to the 
buyer's account with the third party.'' 16 CFR 435.1(d)(2)(i)-(ii).
    \29\ After considering the comments, the Commission no longer 
proposes requiring that all non-enumerated payment method refunds be 
made by cash, check, or money order. Requiring debit card, payroll 
card, or gift card payment refunds to be made by cash, check, or 
money order would require sellers to distinguish between electronic 
payment methods in order to process refunds in accordance with the 
Rule. NRF commented sellers cannot readily do so. The Commission's 
proposal therefore avoids placing this additional burden on sellers.
    \30\ For some payment methods, regulations or contractual 
obligations may require sellers to reverse transactions rather than 
issue refunds by cash, check, or money order. The proposed 
amendments do not override such requirements.
---------------------------------------------------------------------------

    Under this proposal, sellers would be able to use the same payment 
method as the buyer to refund non-enumerated payments when that is the 
simplest or cheapest means available.\31\ For example, sellers could 
reverse debit card payments without distinguishing them from credit 
card payments. This addresses NRF's concerns about the costs and 
burdens of making such a determination.
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    \31\ The proposed amendment provides that, when sellers provide 
refunds using the same non-enumerated payment method as the buyer, 
``refund'' shall mean instructions sent to the entity that 
transferred payment to the seller instructing that entity to return 
to the buyer the amount tendered in the form tendered and a 
statement sent to the buyer setting forth the instructions sent to 
the entity, including the date of the instructions and the amount to 
be returned to the buyer.
    Proposed 16 CFR 435.1(d)(3)(i).
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    In addition, where appropriate, sellers could make refunds by cash, 
check, or money order. This would provide flexibility where refunding: 
(1) By the original payment method is not possible (e.g., because the 
buyer has closed his or her debit card account, or value cannot be 
returned to the buyer's prepaid gift card); or (2) by cash, check, or 
money order is cheaper or easier (e.g., refunding by wire payment would 
require a seller to pay wire fees).\32\
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    \32\ Contrary to NRF's recommendation, the Commission does not 
propose requiring that sellers refund purchases made with non-
enumerated payment methods in the same manner as they refund credit 
payments, by reversing such transactions. Some non-enumerated 
payments, such as certain gift card payments, cannot be reversed, 
and some non-enumerated payments may be expensive to reverse.
---------------------------------------------------------------------------

    Finally, where a seller has not yet accessed a buyer's funds, a 
seller could simply notify the buyer that it has cancelled the order. 
This provision tracks an existing, similar provision dealing with 
credit sales. 16 CFR 435.1(d)(2)(ii).
c. ``Prompt Refund''
    The ``prompt refund'' definition sets the time frames and 
identifies the recipients for prompt refunds of cash, check, money 
order, and credit purchases.\33\ Sellers must refund cash, check, or 
money order refunds within seven working days after a buyer's right to 
a refund vests. For credit sales, sellers

[[Page 60770]]

must provide a refund within one billing cycle. The definition does not 
specify the time frames or recipients for refunds for non-enumerated 
payment method purchases.\34\
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    \33\ The Rule covers all sales ``regardless of the method of 
payment'' and all sellers have an obligation to provide a ``prompt 
refund'' within a reasonable time frame regardless of the buyer's 
payment method. 16 CFR 435.1(a).
    \34\ The ``prompt refund'' definition references subsections of 
the ``refund'' definition that currently apply only to cash, check, 
or money order payments, or to credit payments. The prompt refund 
obligation is timed from the ``receipt of a properly completed 
order.''
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    The Commission proposes amending the ``prompt refund'' definition 
to require sellers to send refunds for transactions using non-
enumerated methods within seven working days of a buyer's right to a 
refund vesting.\35\ Proposed 16 CFR 435.1(b)(1) and (d)(3). Under the 
proposed amendment, when a seller learns that it cannot provide a 
refund using the buyer's payment method, it must send a cash, check, or 
money order refund within seven working days.\36\
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    \35\ The Rule currently requires the seller to send the buyer 
``a copy of an appropriate credit memorandum or the like to the 
third party creditor.'' This requires the seller to send the 
original credit memorandum to the third party creditor, and does not 
set forth a time frame for sending the original. The Commission 
proposes clarifying the Rule by amending the ``refund'' and ``prompt 
refund'' definitions to explicitly require the seller to send the 
original to the third party creditor within seven working days. The 
Commission proposal further requires the seller to tell the buyer 
the date that the seller sent the original to the third party 
creditor and the amount of the charge to be removed.
    \36\ For example, if a seller cannot reverse a debit card 
payment because a buyer has closed his or her debit account, the 
seller must send a cash, check, or money order refund within seven 
working days.
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    The proposed amendment provides clarity, while imposing little 
burden on sellers. Technological improvements make it easier for 
sellers to process refunds within seven working days.\37\ The proposal 
to permit prompt refunds by means at least as fast and reliable as 
first class mail will permit sellers to take advantage of these faster 
technologies. Moreover, when payment is made by credit or debit card, 
sellers generally delay charging buyers' accounts until shipment to 
avoid processing refunds. NRF at 5. Such a seller satisfies its refund 
obligation by sending a notice informing the buyer that the seller has 
cancelled the order and will not request payment.
---------------------------------------------------------------------------

    \37\ See Nwokeji at 2.
---------------------------------------------------------------------------

D. Require Third Party Credit Sale Refunds Within Seven Working Days

    The Commission proposes further amending the ``prompt refund'' 
definition to require sellers to provide refunds within seven working 
days to buyers who purchased with third party credit cards (e.g., Visa, 
MasterCard, or American Express cards).\38\ In addition to the obvious 
benefit for consumers, the proposed amendment would also benefit 
sellers in two ways.
---------------------------------------------------------------------------

    \38\ As noted above, the Rule currently requires sellers to 
provide refunds for all credit sales within one billing cycle. 16 
CFR 435.1(b)(2) and (d)(2).
---------------------------------------------------------------------------

    First, harmonizing the treatment of credit card sale orders and 
sales by non-enumerated methods would provide simplicity for sellers. 
NRF commented on the difficulty of distinguishing credit sales from a 
number of other non-enumerated methods, such as debit card payments. 
NRF at 4-5. The proposed amendment addresses this problem by setting 
the same refund deadline for third party credit sales as for non-
enumerated methods, thereby limiting the need to distinguish between 
different types of card payments.
    Second, the seven working day time frame is consistent with current 
credit card regulations and business practices. Regulation Z requires 
that sellers make third party credit card refunds within seven business 
days.\39\ 12 CFR 226.12(e)(1). Therefore, the proposed change should 
have limited impact on sellers. Moreover, to avoid costs associated 
with high chargeback rates, sellers have economic incentives to process 
refunds immediately. For example, Visa advises merchants to process 
refunds ``as quickly as possible, preferably the same day as the credit 
transaction is generated'' to prevent chargebacks.\40\
---------------------------------------------------------------------------

    \39\ Section 226.12(e)(1) of Regulation Z states: ``[w]hen a 
creditor other than the card issuer accepts the return of property 
or forgives a debt for services that is to be reflected as a credit 
to the consumer's credit card account, that creditor shall, within 7 
business days from accepting the return or forgiving the debt, 
transmit a credit statement to the card issuer through the card 
issuer's normal channels for credit statements.''
    \40\ Preventing Chargebacks, http://usa.visa.com/merchants/operations/chargebacks_dispute_resolution/preventing_chargebacks.html.
---------------------------------------------------------------------------

    The proposed amendment, however, recognizes that the Rule places 
greater obligations on a seller creditor \41\ than on a seller using a 
third party creditor (e.g., Visa). A seller creditor must remove a 
charge within the time allotted by the Rule. A seller using a third 
party creditor need only send timely notice to that third party. 
Therefore, shortening the seller creditors' refund period to seven days 
would create an additional burden, which the Commission declines to 
propose at this time.\42\ However, the FTC seeks comment on whether 
seller creditors should also be subject to the seven working day refund 
deadline.
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    \41\ Seller creditors are merchants using their own store credit 
or charge cards.
    \42\ There is a huge disparity between the number of third party 
creditor and seller creditor transactions. Retailer credit cards 
where the retailer is the creditor appear to be less than 5 percent 
of total debit and credit card sales. See http://www.creditcards.com/credit-card-news/retail-store-credit-card-comparison-table and http://www.creditcards.com/credit-card-news/credit-card-industry-facts-personal-debt statistics. (2007 total 
retail store credit card sales $138.8 million versus 2008 credit 
card sales of $2.1 trillion, 2008 debit card sales of $1.33 
trillion, and combined 2008 credit and debit card sales of $3.44 
trillion.)
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E. Demand Drafts as Check Payments

    In the ANPR, the Commission sought comment on treating demand 
drafts as checks. In the context of the MTOR, a demand draft is a check 
created by the seller, with the buyer's authorization and the buyer's 
checking account number, without a physical signature.\43\ As the 
Commission noted in the ANPR, demand drafts allow sellers access to 
buyers' bank accounts in the same manner as traditional checks.\44\ 
ANPR, 72 FR at 51729. Moreover, the Federal Reserve expressly 
identifies a document with the attributes of a demand draft as a 
``remotely-created check'' subject to Federal Reserve Regulation CC 
governing the bank check clearing system. 12 CFR 229.2(fff); see also 
Collection of Checks, 70 FR at 71218. Thus, the Commission considers 
demand drafts to be checks, and refunds for payments made through 
demand drafts should be processed in the same manner as checks. Because 
the Rule already uses the term ``check,'' and the Commission's 
interpretation clarifies but does not alter the substantive scope of 
that term, the Commission finds it unnecessary to amend the Rule 
further to reflect this interpretation.\45\
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    \43\ Other terms used include ``telechecks,'' ``preauthorized 
drafts,'' and ``paper drafts.'' See Federal Reserve System: 
Collection of Checks and Other Items by Federal Reserve Banks and 
Funds Transfers Through Fedwire and Availability of Funds and 
Collection of Checks: Final rule, 70 FR 71218 (``Collection of 
Checks''), 71219, n.1. (Nov. 28, 2005).
    \44\ Due to the substantial potential for fraud with demand 
drafts, the Telemarketing Sales Rule prohibits the use of demand 
drafts unless the telemarketer obtains an express verifiable 
authorization (e.g., customer's express written authorization or 
tape recorded oral authorization) from the consumer. 16 CFR 
310.3(a)(3); see also ``Demand Draft Fraud,'' FTC Prepared Statement 
Before the House of Representatives Banking Committee, April 15, 
1996.
    \45\ The Commission's definition of ``demand draft'' as a check, 
if incorporated into the Rule as a formal amendment, would be an 
interpretive rule not subject to notice and comment requirements. 
See ANPR, 72 FR at 51728-29.
---------------------------------------------------------------------------

III. Request for Comment

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before December 14, 
2011. Write ``16 CFR part 435--Mail or Telephone Order Merchandise'' on 
your comment. Your

[[Page 60771]]

comment--including your name and your state--will be placed on the 
public record of this proceeding, including, to the extent practicable, 
on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to 
remove individuals' home contact information from comments before 
placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment doesn't include any 
sensitive personal information, such as anyone'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. You are also 
solely responsible for making sure that your comment doesn't include 
any sensitive health information, such as medical records or other 
individually identifiable health information. In addition, don't 
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 FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, don't 
include competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\46\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \46\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------

    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/MTORamendmentsNPRM, by following the instruction on the Web-based 
form. If this Notice appears at http://www.regulations.gov/#!home, you 
also may file a comment through that Web site.
    If you file your comment on paper, write ``16 CFR Part 435--Mail or 
Telephone Order Merchandise'' on your comment and on the envelope, and 
mail or deliver it to the following address: Federal Trade Commission, 
Office of the Secretary, Room H-113 (Annex N), 600 Pennsylvania Avenue, 
NW., Washington, DC 20580. If possible, submit your paper comment to 
the Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that 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 on or before December 14, 2011. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Questions

    The Commission seeks comments on all proposed Rule changes. The 
Commission specifically solicits public comment on the costs and 
benefits to buyers and sellers of each of the proposals. In addition, 
the Commission solicits comments on the specific questions identified 
below. These questions are designed to assist the public and should not 
be construed to limit the issues about which the public may comment.
    (1) In what ways, and to what extent, do buyers' experiences with 
untimely shipments, notices of delay, and refunds for merchandise 
ordered over the Internet through telephone connections resemble or 
differ from their experiences for merchandise ordered over the Internet 
through connections that use other means to access the Internet? What 
evidence supports your answer?
    (2) In what ways, and to what extent, do buyers' experiences with 
untimely shipments, notices of delay, and refunds for merchandise 
ordered using payment methods not specifically enumerated in the Rule 
resemble or differ from their experiences for merchandise ordered using 
cash, check, money order, or credit? What evidence supports your 
answer?
    (3) In the absence of express shipment representations, in what 
ways and to what extent do buyers' expectations with respect to 
shipment times or refunds for merchandise ordered using payment methods 
not specifically enumerated in the Rule resemble or differ from their 
expectations for merchandise ordered using cash, check, money order, or 
credit? What evidence supports your answer?
    (4) What usual or customary practices do sellers follow, and how 
much time do they need, to make a ``prompt refund'' through first class 
mail as required by the Rule? Would these practices and times differ 
for refunds made by methods other than first class mail? If so, how? If 
not, why not? What evidence supports your answer?
    (5) What refund delivery means can sellers use that are at least as 
fast and reliable as first class mail? What are the costs and benefits 
of providing refunds by delivery means other than first class mail? 
What evidence supports your answer?
    (6) Would the following amendments impose costs or confer benefits 
on buyers, especially small businesses? Would the amendments impose 
costs or confer benefits on sellers, especially small businesses? If 
so, how? If not, why not? What evidence supports your answers?
    (a) Amending the Rule to explicitly cover all merchandise orders 
placed over the Internet;
    (b) Amending the ``prompt refund'' definition to permit sellers to 
deliver refunds by any means at least as fast and reliable as first 
class mail;
    (c) Amending the ``receipt of a properly completed order'' 
definition to add that a seller has receipt of a properly completed 
order when the seller receives ``authorization to access the buyer's 
funds by other payment methods.''
    (d) Amending the ``refund'' definition to require sellers, who 
accept payment for mail, Internet, or telephone merchandise orders by 
payment methods other than cash, check, money order, or credit, to make 
required refunds by the same method that payment was tendered; or by 
cash, check, or money order; or by sending a statement to the buyer 
acknowledging the cancellation of the order and representing that the 
seller has not accessed any of the buyer's funds;
    (e) Amending the ``prompt refund'' definition to require sellers to 
make refunds by cash, check, or money order within seven working days 
of the date on which sellers discover they cannot provide a refund by 
the same method as the customer tendered payment for mail, Internet, or 
telephone merchandise orders made with non-enumerated payment methods;
    (f) Amending the ``prompt refund'' definition to require sellers to 
make

[[Page 60772]]

refunds within seven working days of the date on which the buyer's 
right to a refund vests for mail, Internet, or telephone merchandise 
orders, other than credit orders where the seller is the creditor; and
    (g) Amending the ``prompt refund'' definition to require sellers to 
make refunds within seven working days from the date on which the 
buyer's right to a refund vests for mail, Internet, or telephone 
merchandise orders, including credit orders where the seller is the 
creditor.
    (7) What methods of payment other than check, cash, money order or 
credit do sellers accept as payment for mail, Internet, or telephone 
merchandise orders? For each of these payment methods, identify whether 
a seller can provide a refund in the form tendered? If so, how? If not, 
why not? What evidence supports your answer?
    (8) When a purchase is made using a debit card, credit card, or 
prepaid card, to what extent do sellers delay accessing the buyer's 
assets to remove funds for payment until the merchandise is shipped? Do 
sellers delay accessing the buyer's funds when accepting any other 
payment method(s)? What evidence supports your answer?
    (9) General Questions: To maximize the benefits and minimize the 
costs for buyers and sellers (including specifically small businesses), 
the Commission seeks views and data on the following general questions 
for all the proposed changes described in this document:
    (a) What benefits would the proposed changes confer, and on whom?
    (b) What paperwork burdens would the proposed changes impose, and 
on whom?
    (c) What other costs or burdens would the proposed changes impose, 
and on whom?
    (d) What regulatory alternatives to the proposed changes are 
available that would reduce the burdens of the proposed changes while 
providing the same benefits?

IV. Communications to Commissioners and Commissioner Advisors by 
Outside Parties

    Pursuant to Commission Rule 1.18(c)(1), the Commission has 
determined that communications with respect to the merits of this 
proceeding from any outside party to any Commissioner or Commissioner 
advisor shall be subject to the following treatment. Written 
communications and summaries or transcripts of oral communications 
shall be placed on the rulemaking record if the communication is 
received before the end of the comment period on the staff report. They 
shall be placed on the public record if the communication is received 
later. Unless the outside party making an oral communication is a 
member of Congress, such communications are permitted only if advance 
notice is published in the Weekly Calendar and Notice of ``Sunshine'' 
Meetings.\47\
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    \47\ See 15 U.S.C. 57a(i)(2)(A); Federal Trade Commission: Oral 
Presentations Before the Commission and Communications With 
Commissioners and Their Staffs in Trade Regulation Rulemaking 
Proceedings: Proposed Rule, 45 FR 50814 (1980); Federal Trade 
Commission: Oral Presentations Before the Commission and 
Communications With Commissioners and Their Staffs in Trade 
Regulation Rulemaking Proceedings: Final Rules, 45 FR 78626 (1980).
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V. Preliminary Regulatory Analysis and Regulatory Flexibility Act 
Requirements

    Under Section 22 of the FTC Act, 15 U.S.C. 57b, the Commission must 
issue a preliminary regulatory analysis for a proceeding to amend a 
rule only when it: (1) Estimates that the amendment will have an annual 
effect on the national economy of $100 million or more; (2) estimates 
that the amendment will cause a substantial change in the cost or price 
of certain categories of goods or services; or (3) otherwise determines 
that the amendment will have a significant effect upon covered entities 
or upon consumers. The Commission has preliminarily determined that the 
proposed amendments to the Rule will not have such effects on the 
national economy; on the cost of ordering merchandise by mail, 
telephone, or over the Internet; or on covered parties or consumers. 
The comments indicate that sellers already treat Internet orders in the 
same manner as mail or telephone orders, and do not charge buyers' 
debit cards until the time of shipment, so the proposed amendments 
would not require sellers to alter their behavior and would not impose 
additional costs on sellers. The Commission, however, requests comment 
on the economic effects of the proposed amendments.
    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612, 
requires that the Commission conduct an analysis of the anticipated 
economic impact of the proposed amendments on small entities. The 
purpose of a regulatory flexibility analysis is to ensure that an 
agency consider the impacts on small entities and examines regulatory 
alternatives that could achieve the regulatory purpose while minimizing 
burdens on small entities. Section 605 of the RFA, 5 U.S.C. 605, 
provides that such an analysis is not required if the agency head 
certifies that the regulatory action will not have a significant 
economic impact on a substantial number of small entities.
    The Commission believes that the proposed amendments to the Rule 
would not have a significant economic impact upon small entities, 
although it may affect a substantial number of small businesses. 
Specifically, the Commission is proposing a few limited amendments 
designed to clarify the Rule and defining for sellers how to satisfy 
the Rule's refund requirement. In the Commission's view, the proposed 
amendments should not have a significant or disproportionate impact on 
the costs of small entities that solicit orders for merchandise to be 
ordered through the mail, by telephone, or via the Internet. To the 
extent that the proposed amendments expand the Rule's coverage, the 
proposed amendments do so in a way that will not result in 
significantly higher costs because sellers generally have already 
aligned their practices with the proposed amendments. Specifically, 
expanding the Rule to clarify its application to all Internet 
merchandise orders will not result in significantly higher costs as the 
comments indicate that sellers currently treat all Internet orders as 
being subject to the Rule. Dearing at 2, DMA at 3, NRF at 3, Nwokeji at 
1. Moreover, defining the timing and method of refunding non-enumerated 
payment methods should not have a significant cost impact on small 
entities because sellers typically do not access buyer funds until 
merchandise shipment, and thus there are only a limited number of 
refunds issued. NRF at 5. For the same reason, requiring refunds for 
third party credit sales within seven working days should not have a 
significant impact on small entities. Therefore, based on available 
information, the Commission certifies that amending the MTOR as 
proposed will not have a significant economic impact on a substantial 
number of small businesses.
    Although the Commission certifies under the RFA that the proposed 
Rule would not, if promulgated, have a significant impact on a 
substantial number of small entities, the Commission has determined, 
nonetheless, that it is appropriate to publish an Initial Regulatory 
Flexibility Analysis in order to inquire into the impact of the 
proposed Rule on small entities. Therefore, the Commission has prepared 
the following analysis:

[[Page 60773]]

A. Description of the Reasons That Action by the Agency Is Being Taken

    In response to public comments, the Commission proposes amending 
the Rule to respond to the development of new technologies and changed 
commercial practices.

B. Statement of the Objectives of, and Legal Basis for, the Proposed 
Rule

    The objective of the proposed Rule is to clarify that the Rule 
covers all Internet merchandise orders, allow sellers to provide 
refunds and refund notices to buyers by any means at least as fast and 
reliable as first class mail, clarify sellers' obligations under the 
Rule for sales made using payment methods not specifically enumerated 
in the Rule, and require sellers to process any third party credit card 
refund within seven working days of a buyer's right to a refund 
vesting. Section 18(b)(3) of the FTC Act, 15 U.S.C. 57a(b)(3) provides 
the Commission with authority to issue a notice of proposed rulemaking 
where it has reason to believe that the unfair or deceptive acts or 
practices which are the subject of the proposed rulemaking are 
prevalent.

C. Small Entities to Which the Proposed Rule Will Apply

    Under the Small Business Size Standards issued by the Small 
Business Administration, Mail-Order Houses qualify as small businesses 
if their sales are less than $ 35.5 million annually. The Commission 
estimates that the proposed Rule will not have a significant impact on 
small businesses because, according to comments, sellers already comply 
in many respects with the requirements of the proposed Rule. The 
Commission seeks comment and information with regard to the estimated 
number or nature of small business entities for which the proposed Rule 
would have a significant impact.

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements, Including Classes of Covered Small Entities and 
Professional Skills Needed To Comply

    As explained earlier in this document, the proposed amendments will 
clarify that the Rule covers all Internet merchandise sales regardless 
of how buyers access the Internet, will allow sellers to provide 
refunds and refund notices by means at least as fast and reliable as 
first class mail, and will clarify sellers' obligations under the Rule 
for sales made using non-enumerated payment methods. The small entities 
potentially covered by these amendments will include all such entities 
subject to the Rule (e.g., for purposes of the proposed amendment, 
entities selling merchandise ordered by mail, Internet, or telephone 
and paid for using non-enumerated payment methods). The professional 
skills necessary for compliance with the proposed amendments would 
include clerical personnel. The Commission invites comment and 
information on these issues.

E. Duplicative, Overlapping, or Conflicting Federal Rules

    The Commission has not identified any other Federal statutes, 
rules, or policies that would duplicate, overlap, or conflict with the 
proposed Rule. The Commission invites comment and information on this 
issue.

F. Significant Alternatives to the Proposed Rule

    The Commission has not proposed any specific small entity exemption 
or other significant alternatives, as the proposed amendments simply 
clarify the scope of the rule (i.e., Internet sales), provide 
additional compliance options (e.g., for refunds and refund notices), 
and require certain actions (e.g., refunds) consistent with the Rule's 
existing requirements. Under these limited circumstances, the 
Commission does not believe a special exemption for small entities or 
significant compliance alternatives are necessary or appropriate to 
minimize the compliance burden, if any, on small entities while 
achieving the intended purposes of the proposed amendments. 
Nonetheless, the Commission seeks comment and information on the need, 
if any, for alternative compliance methods that would reduce the 
economic impact of the Rule on small entities. If the comments filed in 
response to this Notice identify small entities that would be affected 
by the proposed Rule, as well as alternative methods of compliance that 
would reduce the economic impact of the proposed Rule on such entities, 
the Commission will consider the feasibility of such alternatives and 
determine whether they should be incorporated into the final Rule.

VI. Paperwork Reduction Act

    The MTOR contains various information collection requirements for 
which the Commission has obtained clearance under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. (``PRA''), Office of Management 
and Budget (``OMB'') Control Number 3084-0106. OMB renewed 3-year PRA 
clearance for the MTOR on February 16, 2010, effective through February 
28, 2013.
    As discussed above, the Commission is proposing a limited number of 
amendments designed to clarify the Rule and provide sellers with 
methods for satisfying the Rule's refund requirement. As described 
above, to the extent that the proposed amendments expand the Rule's 
coverage, the proposed amendments do so in a way that will not result 
in significantly higher costs because sellers have already aligned 
their practices with the proposed amendments. Dearing at 2, DMA at 3, 
NRF at 3, Nwokeji at 1.
    In the Commission's view, there are no additional ``collection of 
information'' requirements included in the proposed amendments to 
submit to OMB for clearance under the PRA. Consequently, the proposed 
amendments would not affect the PRA ``burden'' associated with the 
Rule's requirements.

VII. Proposed Rule Language

List of Subjects in 16 CFR Part 435

    Mail order merchandise, Telephone order merchandise, Trade 
practices.

    For the reasons set out in the preamble, the Commission is 
proposing to amend 16 CFR part 435 as follows:

PART 435--MAIL, INTERNET, AND TELEPHONE ORDER MERCHANDISE

    1. The authority citation for part 435 continues to read as 
follows:

    Authority:  15 U.S.C. 57a.

    2. Revise the heading of part 435 to read as set forth above.
    3. Amend Sec.  435.1 by revising paragraphs (a) through (d) to read 
as follows:


Sec.  435.1   Definitions.

* * * * *
    (a) Mail, Internet, or telephone order sales shall mean sales in 
which the buyer has ordered merchandise from the seller by mail, via 
the Internet, or by telephone, regardless of the method of payment or 
the method used to solicit the order.
    (b) Prompt refund shall mean:
    (1) Where a refund is made pursuant to paragraph (d)(1), 
(d)(2)(ii), (d)(2)(iii), or (d)(3) of this section, a refund sent by 
any means at least as fast and reliable as first class mail within 
seven (7) working days of the date on which the buyer's right to refund 
vests under the provisions of this part. Provided, however, that where 
the seller cannot provide a refund by the same method payment was 
tendered, prompt refund shall mean a refund sent in the form of cash, 
check, or money order, by any means at least as fast and reliable as 
first

[[Page 60774]]

class mail, within seven (7) working days of the date on which the 
seller discovers it cannot provide a refund by the same method as 
payment was tendered;
    (2) Where a refund is made pursuant to paragraph (d)(2)(i) of this 
section, a refund sent by any means at least as fast and reliable as 
first class mail within one (1) billing cycle from the date on which 
the buyer's right to refund vests under the provisions of this part.
    (c) Receipt of a properly completed order shall mean, where the 
buyer tenders full or partial payment in the proper amount in the form 
of: cash, check, or money order; authorization from the buyer to charge 
an existing charge account; or other payment methods, the time at which 
the seller receives both said payment and an order from the buyer 
containing all of the information needed by the seller to process and 
ship the order. Provided, however, that where the seller receives 
notice that a payment by means other than cash or credit as tendered by 
the buyer has been dishonored or that the buyer does not qualify for a 
credit sale, receipt of a properly completed order shall mean the time 
at which:
    (1) The seller receives notice that a payment by means other than 
cash or credit in the proper amount tendered by the buyer has been 
honored;
    (2) The buyer tenders cash in the proper amount; or
    (3) The seller receives notice that the buyer qualifies for a 
credit sale.
    (d) Refund shall mean:
    (1) Where the buyer tendered full payment for the unshipped 
merchandise in the form of cash, check, or money order, a return of the 
amount tendered in the form of cash, check, or money order sent to the 
buyer;
    (2) Where there is a credit sale:
    (i) And the seller is a creditor, a copy of a credit memorandum or 
the like or an account statement sent to the buyer reflecting the 
removal or absence of any remaining charge incurred as a result of the 
sale from the buyer's account;
    (ii) And a third party is the creditor, an appropriate credit 
memorandum or the like sent to the third party creditor which will 
remove the charge from the buyer's account and a copy of the credit 
memorandum or the like sent to the buyer that includes the date that 
the seller sent the credit memorandum or the like to the third party 
creditor and the amount of the charge to be removed, or a statement 
from the seller sent to the buyer acknowledging the cancellation of the 
order and representing that it has not taken any action regarding the 
order which will result in a charge to the buyer's account with the 
third party;
    (iii) And the buyer tendered partial payment for the unshipped 
merchandise in the form of cash, check, or money order, a return of the 
amount tendered in the form of cash, check, or money order sent to the 
buyer.
    (3) Where the buyer tendered payment for the unshipped merchandise 
by any means other than those enumerated in paragraph (d)(1) or (2) of 
this section:
    (i) Instructions sent to the entity that transferred payment to the 
seller instructing that entity to return to the buyer the amount 
tendered in the form tendered and a statement sent to the buyer setting 
forth the instructions sent to the entity, including the date of the 
instructions and the amount to be returned to the buyer; or
    (ii) A return of the amount tendered in the form of cash, check, or 
money order sent to the buyer; or
    (iii) A statement from the seller sent to the buyer acknowledging 
the cancellation of the order and representing that the seller has not 
taken any action regarding the order which will access any of the 
buyer's funds.
* * * * *
    4. Amend Sec.  435.2 by revising the introductory text of the 
section and the introductory text of paragraph (a)(1) to read as 
follows:


 Sec.  435.2   Mail or telephone order sales.

    In connection with mail, Internet, or telephone order sales in or 
affecting commerce, as ``commerce'' is defined in the Federal Trade 
Commission Act, it constitutes an unfair method of competition, and an 
unfair or deceptive act or practice for a seller:
    (a)(1) To solicit any order for the sale of merchandise to be 
ordered by the buyer through the mail, via the Internet, or by 
telephone unless, at the time of the solicitation, the seller has a 
reasonable basis to expect that it will be able to ship any ordered 
merchandise to the buyer:
* * * * *

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2011-24354 Filed 9-29-11; 8:45 am]
BILLING CODE 6750-01-P