[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Notices]
[Pages 73655-73657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29880]


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FEDERAL TRADE COMMISSION

[File No. 112 3182]


Epic Marketplace, Inc., and Epic Media Group, LLC; Analysis of 
Proposed Consent Order To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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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 January 7, 2013.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/epicmarketplaceconsent online or on 
paper, by following the instructions in the Request for Comment part of 
the SUPPLEMENTARY INFORMATION section below. Write AEpic, File No. 112 
3182'' on your comment and file your comment online at https://ftcpublic.commentworks.com/ftc/epicmarketplaceconsent 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 Secretary, Room H-113 (Annex 
D), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Kate White (202-326-2878), FTC, Bureau 
of Consumer Protection, 600 Pennsylvania Avenue NW., Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing a consent

[[Page 73656]]

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 complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for December 5, 2012), 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, DC 
20580, either in person or by calling (202) 326-2222.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before January 7, 2013. 
Write AEpic, File No. 112 3182'' on your comment. Your comment B 
including your name and your state B 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 does not include any 
sensitive personal information, like 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 does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any A[t]rade secret or any commercial or financial information 
which * * * is privileged or confidential,'' as discussed 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, do not 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).\1\ 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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    \1\ 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).
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    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/epicmarketplaceconsent by following the instructions 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 AEpic, File No. 112 3182'' 
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 D), 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 January 7, 2013. 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.

Analysis of Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission has accepted, subject to final 
approval, a consent agreement from Epic Marketplace, Inc. and Epic 
Media Group, LLC.
    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.
    Epic Marketplace, Inc. (``Epic'') is an advertising company that 
engages in online behavioral advertising, which is the practice of 
tracking a consumer's online activities in order to deliver advertising 
targeted to the consumer's interests. Epic is a wholly-owned subsidiary 
of Epic Media Group, LLC (``EMG''). Epic acts as an intermediary 
between Web site owners who publish advertisements on their Web site 
for a fee (``publishers'') and advertisers who wish to have their 
advertisements placed on Web sites. Epic purchases advertising space on 
publishers' Web sites and contracts with advertisers to place their 
advertisements on the Web sites. Epic refers to the network of Web 
sites on which it purchases advertising space as the Epic Marketplace 
Network, which includes over 45,000 publishers.
    The Commission's complaint alleges that, from March 2010 through 
August 2011, Epic engaged in ``history sniffing''--running software 
code on a Web page to determine whether a user has previously visited a 
Web page--by checking how a user's browser styles the display of a 
hyperlink. This practice allegedly allowed Epic to determine whether a 
consumer had visited any of over 54,000 domains, including pages 
relating to fertility issues, impotence, menopause, incontinence, 
disability insurance, credit repair, debt relief, and personal 
bankruptcy. According to the complaint, history sniffing allowed Epic 
to determine whether consumers had visited Web pages that were outside 
the Epic Marketplace Network, information it would not otherwise have 
been able to obtain, and Epic used this history-sniffing data for 
behavioral targeting purposes.
    The FTC's complaint charges that Epic and EMG violated Section 5(a) 
of the FTC Act by falsely representing to consumers that respondents 
only collected information on consumers' visits to Web sites within the 
Epic Marketplace Network. The complaint also alleges that the companies 
failed to disclose to consumers that they were engaged in history 
sniffing.
    The proposed order contains provisions designed to prevent Epic; 
EMG; their parent company FAS Labs, Inc.; and any of their 
subsidiaries, successors, and assigns (collectively, ``respondents'') 
from engaging in practices similar to those alleged in the complaint in 
the future.
    Part I of the proposed order prohibits respondents from 
misrepresenting in any manner, expressly or by implication: (A) The 
extent to which they maintain the privacy or

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confidentiality of data from or about a particular consumer, computer, 
or device, including but not limited to the extent to which that data 
is collected, used, disclosed, or shared; or (B) the extent to which 
software code on a Web page determines whether a user has previously 
visited a Web page.
    Part II of the proposed order prohibits respondents from collecting 
any data through history sniffing--running software code on a Web page 
to determine whether a user has previously visited a Web page by 
checking how a user's browser styles the display of a hyperlink or by 
accessing a user's browser cache--or using any data obtained by history 
sniffing.
    Part III of the proposed order prohibits respondents from using, 
disclosing, selling, renting, leasing, or transferring any information 
that was collected using history sniffing. In addition, within five (5) 
days after the date of service of the order, respondents must 
permanently delete or destroy all information collected using history 
sniffing.
    Parts IV through VIII of the proposed order are reporting and 
compliance provisions. Part IV requires that respondents retain, for a 
period of three (3) years, documents relating to its compliance with 
the order. Part V requires dissemination of the order to all current 
and future principals, officers, directors, and managers; and all 
current and future managers, employees, agents, and representatives who 
have responsibilities on behalf of respondents with respect to the 
subject matter of this order. Part VI ensures notification to the FTC 
of changes in corporate status. Part VII mandates that respondents 
submit an initial compliance report to the FTC and make available to 
the FTC subsequent reports. Part VIII is a provision ``sunsetting'' the 
order after twenty (20) years, with certain exceptions.
    The purpose of the analysis is to aid public comment on the 
proposed order. It is not intended to constitute an official 
interpretation of the proposed complaint or order or to modify the 
order's terms in any way.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2012-29880 Filed 12-10-12; 8:45 am]
BILLING CODE 6750-01-P