[Federal Register Volume 89, Number 60 (Wednesday, March 27, 2024)]
[Proposed Rules]
[Pages 21216-21222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06468]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 89, No. 60 / Wednesday, March 27, 2024 / 
Proposed Rules  

[[Page 21216]]



FEDERAL TRADE COMMISSION

16 CFR Part 464

[Docket ID FTC-2023-0064]
RIN 3084-AB77


Trade Regulation Rule on Unfair or Deceptive Fees

AGENCY: Federal Trade Commission

ACTION: Initial notice of informal hearing; final notice of informal 
hearing; list of Hearing Participants; requests for submissions from 
Hearing Participants.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') 
recently published a notice of proposed rulemaking (``NPRM'') in the 
Federal Register, titled ``Rule on Unfair or Deceptive Fees,'' which 
would prohibit unfair or deceptive practices relating to fees for goods 
or services, specifically, misrepresenting the total costs of goods and 
services by omitting mandatory fees from advertised prices and 
misrepresenting the nature and purpose of fees. The NPRM announced the 
opportunity for interested parties to present their positions orally at 
an informal hearing. Seventeen commenters requested to participate at 
the informal hearing. The Commission's Chief Presiding Officer, the 
Chair, has appointed an Administrative Law Judge for the Federal Trade 
Commission, the Honorable Jay L. Himes to serve as the presiding 
officer of the informal hearing.

DATES: 
    Hearing date: The informal hearing will be conducted virtually on 
April 24, 2024, at 10 a.m. Eastern.
    Participation deadline: If you are a Hearing Participant and would 
like to submit your oral presentation in writing or file a 
supplementary documentary submission, you must do so on or before April 
10, 2024.

ADDRESSES: Hearing Participants may submit their oral presentations in 
writing or file supplementary documentary submissions, online or on 
paper, by following the instructions in part IV of the SUPPLEMENTARY 
INFORMATION section below. Write ``Unfair or Deceptive Fees Rule (16 
CFR part 464) (R207011)'' on your submission and send it electronically 
to [email protected], with a copy to [email protected]. If you 
prefer to file your submission on paper, mail it to the following 
address: Federal Trade Commission, Office of the Secretary, 600 
Pennsylvania Avenue NW, Mail Stop H-144 (Annex J), Washington, DC 
20580.

FOR FURTHER INFORMATION CONTACT: Janice Kopec or Spencer Jackson-Kaye, 
Division of Advertising Practices, Bureau of Consumer Protection, 
Federal Trade Commission, 202-326-2550 (Kopec), 202-975-8671 (Jackson-
Kaye), [email protected], [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Following public comment on an advance notice of proposed 
rulemaking, 87 FR 67413 (Nov. 8, 2022), the FTC published a notice of 
proposed rulemaking (``NPRM''), 88 FR 77420 (Nov. 9, 2023), entitled 
``Rule on Unfair or Deceptive Fees,'' in the Federal Register, 
proposing to add part 464 to 16 CFR, to prohibit unfair or deceptive 
practices relating to fees for goods or services, specifically, 
misrepresenting the total costs of goods and services by omitting 
mandatory fees from advertised prices and misrepresenting the nature 
and purpose of fees. A month before the NPRM was published in the 
Federal Register for a 90-day public comment period, the Commission 
released a preliminary copy of the NPRM in a press release on October 
11, 2023.
    In accordance with section 18(b)(1) of the FTC Act, 15 U.S.C. 
57a(b)(1), which requires the Commission to provide the opportunity for 
an informal hearing in section 18 rulemaking proceedings, the NPRM also 
announced the opportunity for interested persons to present their 
positions orally at an informal hearing. Eight of the commenters 
requested the opportunity to present their position orally or 
participate at an informal hearing. Nine additional commenters 
requested the opportunity to participate in a hearing if one were held 
but did not request a hearing themselves.

II. The Requests for an Informal Hearing; Presentation of Oral 
Submissions

    Section 18 of the FTC Act, 15 U.S.C. 57a, as implemented by the 
Commission's Rules of Practice, 16 CFR 1.11(e),\1\ provides interested 
persons with the opportunity to present their positions orally at an 
informal hearing upon request.\2\ To make such a request, a commenter 
must submit, no later than the close of the comment period for the 
NPRM, (1) a request to make an oral submission, if desired; (2) a 
statement identifying the interested person's interests in the 
proceeding; and (3) any proposal to add disputed issues of material 
fact to be addressed at the hearing.\3\
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    \1\ The FTC Act provides that ``an interested person is entitled 
to present his position orally or by documentary submission (or 
both).'' 15 U.S.C. 57a(c)(2)(A).
    \2\ 16 CFR 1.11(e).
    \3\ 16 CFR 1.11(e)(1) through (3).
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    The following eight commenters requested an informal hearing 
generally in accordance with the requirements of 16 CFR 1.11(e): \4\
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    \4\ In addition to this list, the Commission received a request 
from the Towing and Recovery Association of America, Inc. on 
February 23, 2024, more than two weeks after the close of the 
comment period, requesting an opportunity to make an oral 
presentation. Because any such requests must be submitted no later 
than the close of the comment period, 16 CFR 1.11(e), this request 
did not meet the requirements to be allowed an opportunity to 
present at an informal hearing.

1. ACA Connects--America's Communication Association (``ACA Connects'') 
\5\
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    \5\ ACA Connects ``represents approximately 500 small and 
medium-sized independent companies . . . that provide broadband, 
phone, and video services to nearly 8 million customers and offer 
services to 18 percent of households nationwide.'' ACA Connects, 
Cmt. on NPRM at n. 1 (Feb. 7, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3143.
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2. American Bankers Association and Consumer Bankers Association 
(``Bankers Associations'') \6\
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    \6\ The American Bankers Association represents ``the nation's 
$23.6 trillion banking industry, which is composed of small, 
regional and large banks.'' Bankers Associations, Cmt. on NPRM at 
n.1 (Feb. 7, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3139. The Consumer Bankers Association is a ``national 
financial trade group focused exclusively on retail banking and 
personal financial services--banking services geared toward 
consumers and small businesses.'' Id. at n.2.
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3. U.S. Chamber of Commerce (``the Chamber'') \7\
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    \7\ The Chamber did not fulfill the requirement to identify its 
interest in an informal hearing proceeding. See 16 CFR 1.11(e)(2) 
(containing requirements for requesting an informal hearing); U.S. 
Chamber of Commerce, Cmt. on NPRM (Feb. 7, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3127. Nevertheless, on its 
website, the Chamber describes itself as ``the world's largest 
business organization [whose] members range from the small 
businesses and chambers of commerce across the country that support 
their communities, to the leading industry associations and global 
corporations that innovate and solve for the world's challenges, to 
the emerging and fast-growing industries that are shaping the 
future.'' U.S. Chamber of Commerce, https://www.uschamber.com/about. 
Based on this description, the Commission will allow the Chamber to 
participate in the informal hearing if it so chooses.

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[[Page 21217]]

4. NCTA--The Internet & Television Association (``NCTA'') \8\
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    \8\ NCTA ``represents network innovators, content creators, and 
voice providers that connect, entertain, inform, and inspire 
consumers nationwide. NCTA is the principal trade association for 
the U.S. cable industry, . . . [which] is also the nation's largest 
residential broadband provider.'' NCTA, Cmt. on NPRM at n.1 (Feb. 7, 
2024), https://www.regulations.gov/comment/FTC-2023-0064-3233.
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5. International Franchise Association (``IFA'') \9\
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    \9\ IFA represents ``franchise companies in over 300 different 
industries, individual franchisees, and companies that support those 
franchise companies in marketing, law, technology, and business 
development.'' IFA, Cmt. on NPRM at 1 (Feb. 7, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3294.
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6. BattleLine LLC \10\
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    \10\ Jeremy Roseberry, of BattleLine LLC, is ``a professional 
with expertise in financial market structure and technological 
solutions for fee transparency.'' BattleLine LLC, Cmt. on NPRM at 2 
(Dec. 5, 2023), https://www.regulations.gov/comment/FTC-2023-0064-2574.
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7. IHRSA, the Global Health and Fitness Association \11\
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    \11\ IHRSA is a trade association that represents ``health and 
fitness clubs, gyms, studios, sports and aquatic facilities, and 
industry partners.'' IHRSA, Cmt. on NPRM at 1-2 (Feb. 7, 2024), 
https://www.regulations.gov/comment/FTC-2023-0064-3269.
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8. National Taxpayers Union Foundation \12\
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    \12\ NTUF is an organization of experts and advocates who 
``engage in in-depth research projects and informative, scholarly 
work pertaining to taxation in all aspects'' and have worked to 
develop ``responsible tax administration for nearly five decades.'' 
NTUF, Cmt. on NPRM at (Feb. 7, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3258.

    Gibson Dunn & Crutcher LLP (``Gibson Dunn'') also submitted a 
comment that referenced an informal hearing but did not identify the 
law firm's interests in the proceeding as required by 16 CFR 
1.11(e)(2).\13\ The comment nevertheless identified a list of three 
questions as disputed issues of material fact and recommended that the 
Commission permit expert testimony if it proceeds with an informal 
hearing. While the Commission does not find that Gibson Dunn is an 
interested party that requested an informal hearing,\14\ the 
Commission, in its discretion, addresses Gibson Dunn's purported issues 
of material fact herein.
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    \13\ See generally Gibson Dunn, Cmt. on NPRM (Feb. 7, 2024), 
https://www.regulations.gov/comment/FTC-2023-0064-3238. Gibson Dunn 
also contends that any informal hearing would be constitutionally 
infirm. Id. at 10.
    \14\ Unlike the Chamber of Commerce, Gibson Dunn's interest in 
this proceeding is not readily apparent through publicly available 
information. The Commission has made clear that lawyers should make 
plain who they are representing or if they are representing their 
own interests. 88 FR 19024 n.14 (``The Commission reserves the right 
to decline any request for participation that fails to disclose the 
requester's identity and interest in the proceeding. Lawyers and 
others who act on behalf of clients or other individuals or entities 
should expressly identify those whom they are representing with an 
interest in the proceeding--or disclaim . . . that they are acting 
on behalf of any client.'').
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    In addition, while the following commenters stated that an informal 
hearing was not necessary, they requested the opportunity to make an 
oral presentation if the Commission held an informal hearing at others' 
requests:

1. A coalition of 52 national and state consumer advocacy groups 
submitted by the Consumer Federation of America (``CFA'') 
(collectively, ``CFA consumer advocacy coalition'') \15\
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    \15\ The comment was authored by American Economic Liberties 
Project, Consumer Action, Consumer Federation of America, National 
Association of Consumer Advocates, National Consumer Law Center, 
National Consumers League, U.S. Public Interest Research Group and 
signed by 52 ``national and state consumer advocacy groups'' 
including the comment's authors. CFA consumer advocacy coalition, 
Cmt. on NPRM at 1-2 (Feb. 7, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3160.
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2. CFA, National Consumer Law Center (``NCLC'') on behalf of its low-
income clients, and the National Association of Consumer Advocates 
(``NACA'') (``CFA Auto Comment'') \16\
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    \16\ While CFA, NCLC, and NACA submitted additional coalition 
comments, this comment was limited to the proposed rule's coverage 
of auto dealers. CFA Auto Comment, Cmt. on NPRM (Feb. 7, 2024), 
https://www.regulations.gov/comment/FTC-2023-0064-3270.
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3. A coalition of 33 health and consumer protection advocacy groups 
submitted by Community Catalyst (``Health and Consumer Protection 
Coalition'') \17\
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    \17\ The coalition consists of 33 groups that ``focus on a range 
of health and consumer protection issues, including medical debt, 
disability rights, health equity, and economic justice.'' Health and 
Consumer Protection Coalition, Cmt. on NPRM at 1 (Feb. 7, 2024), 
https://www.regulations.gov/docket/FTC-2023-0064/comments?filter=FTC-2023-0064-3191.
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4. A coalition of 39 housing justice advocacy organizations submitted 
by the National Housing Law Project (``NHLP'') \18\
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    \18\ The comment was submitted on behalf of 39 ``organizations 
engaged in housing justice advocacy'' including the National Housing 
Law Project, whose ``mission is to advance housing justice for 
people living in poverty and their communities'' and the Housing 
Justice Network, which is a ``field network of over 2,000 community-
level housing advocates and resident leaders . . . committed to 
protecting affordable housing and residents' rights for low-income 
families across the country.'' NHLP, Cmt. on NPRM at 1 (Feb. 7, 
2024), https://www.regulations.gov/comment/FTC-2023-0064-3235.
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5. NCLC on behalf of its low-income clients, Prison Policy Initiative 
(``PPI''), and Stephen Raher \19\
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    \19\ NCLC, PPI, and Raher, Cmt. on NPRM at 1 (Feb. 7, 2024), 
https://www.regulations.gov/comment/FTC-2023-0064-3283.
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6. Formerly Incarcerated, Convicted People and Families Movement 
(``FICPFM'') \20\
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    \20\ The FICPFM comment was signed by a coalition of 55 members 
and allies of FICPFM and prepared in collaboration with the 
Partnership for Just Housing. FICPFM ``is a national movement of 
directly impacted people speaking in our own voices about the need 
to end mass incarceration, America's current racial and economic 
caste system.'' FICPFM, Cmt. on NPRM at 1 (Feb. 7, 2024), https://www.regulations.gov/docket/FTC-2023-0064/comments?filter=FTC-2023-0064-3199.
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7. Truth in Advertising, Inc. (``TINA.org.'') \21\
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    \21\ TINA.org is ``a nonpartisan, nonprofit consumer advocacy 
organization whose mission is to combat deceptive advertising and 
consumer fraud; promote understanding of the serious harms 
commercial dishonesty inflicts; and work with consumers, businesses, 
independent experts, synergy organizations, self-regulatory bodies 
and government agencies to advance countermeasures that effectively 
prevent and stop deception in our economy.'' TINA.org, Cmt. on NPRM 
at 1 (Feb. 6, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3104. TINA.org filed an addendum to its original comment 
clarifying that while it believes there are no disputed issues of 
material fact, it nevertheless requests participation in any hearing 
if the Commission determines that such disputes exist. TINA.org, 
Cmt. Addendum on NPRM (Feb. 7, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3136.
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8. NCLC (``NCLC Housing Comment'') \22\
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    \22\ While NCLC submitted additional coalition comments, this 
comment was limited to the proposed rule's relationship to rental 
housing fees. NCLC Housing Comment, Cmt. on NPRM (Feb. 7, 2024), 
https://www.regulations.gov/comment/FTC-2023-0064-3218.
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9. Fair Price, Fair Wage Coalition \23\
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    \23\ This comment was submitted by DC Jobs With Justice, Jews 
United for Justice, Metro DC Democratic Socialists of America, 
National Women's Law Center, Restaurant Opportunities Center of DC, 
United Planning Organization, Max Hawla, consumer and tipped worker, 
and Trupti Patel, consumer and tipped worker, who are ``consumers, 
tipped professionals, grassroots organizations, policy 
organizations, and advocates in the District of Columbia that form 
part of the District of Columbia Fair Price, Fair Wage coalition.'' 
Fair Price, Fair Wage Coalition, Cmt. on NPRM at 1, 6 (Feb. 7, 
2024), https://www.regulations.gov/comment/FTC-2023-0064-3248.

    The Commission finds these requests were generally adequate \24\ 
and therefore

[[Page 21218]]

will hold an informal hearing. These commenters will have the 
opportunity to make oral presentations during the informal hearing. The 
Commission does not find it necessary to identify any group of 
interested persons with the same or similar interest in the 
proceeding.\25\
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    \24\ The Commission notes that two commenters, the Chamber of 
Commerce and the IFA, did not specifically request the opportunity 
to present orally at an informal hearing.
    \25\ 16 CFR 1.12(a)(5) requires the initial notice of informal 
hearing to include a ``list of the groups of interested persons 
determined by the Commission to have the same or similar interests 
in the proceeding.'' 16 CFR 1.12(d) explains that the Commission 
``will, if appropriate, identify groups of interested persons with 
the same or similar interests in the proceeding.'' Doing so 
facilitates the Commission's ability to ``require any group of 
interested persons with the same or similar interests in the 
proceeding to select a single representative to conduct cross-
examination on behalf of the group.'' Id.
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III. Disputed Issues of Material Fact; Final Notice

    In the NPRM, the Commission did not identify any disputed issues of 
material fact that needed to be resolved at an informal hearing. 
However, the Commission may still do so in this initial notice of 
informal hearing, either on its own initiative or in response to a 
persuasive showing from a commenter.\26\ A number of commenters 
proposed potential disputed issues of material fact for the 
Commission's consideration.
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    \26\ See 16 CFR 1.12(a)(3); 15 U.S.C. 57a(c)(2)(B); see also 88 
FR 77420, 77440 (Nov. 9, 2023).
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    ACA Connects identified the following purported disputed issues of 
material fact:
    1. ``Do CSPs [(an abbreviation for ``communications service 
providers'')] engage in a widespread pattern of deceiving consumers 
through deceptive or misleading fee disclosures?''
    2. ``Will consumers be confused by duplicative and/or conflicting 
disclosure requirements?''
    3. ``Will the Proposed Rule impose significant costs on CSPs?''
    4. ``Will the costs imposed by the Proposed Rule result in 
decreased competition in the communications marketplace?''
    5. ``Will the Proposed Rule as applied to CSPs result in less 
transparency or greater consumer confusion about prices, terms, and 
conditions?''
    6. ``Will the Proposed Rule effectively reduce consumer ``search 
time'' for broadband, voice, and cable services?'' \27\
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    \27\ ACA Connects, Cmt. on NPRM at 15-16.
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    The NCTA identified the following purported disputed issues of 
material fact:
    1. ``Do 90% of firms (exclusive of the live-event ticketing, short-
term lodging, and restaurant industries) already comply with the 
proposed rule?''
    2. ``Will the proposed rule reduce consumers' search costs? Will 
the proposed rule facilitate the ability to accurately compare 
products?''
    3. ``Do reasonable consumers expect the `total price' `exclusive of 
government charges' to exclude only government charges imposed directly 
on consumers?'' \28\
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    \28\ NCTA, Cmt. on NPRM at 31-32.
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    The Bankers Associations argued that ``there appears to be a 
`disputed issue of material fact' . . . concerning the relationship 
between the disclosures required by the Proposed Rule and the 
disclosures required under other federal consumer financial law.'' \29\
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    \29\ Bankers Associations, Cmt. on NPRM at 8.
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    The Chamber did not articulate the disputed issues in the form of 
questions but recommended ``an informal hearing with an opportunity for 
cross-examination of witnesses or workshop to explore'':
    1. ``consumer expectations about fees or charges consumers expect 
to be included with the purchase of a product or service,''
    2. ``how displaying Total Price more prevalent than any other 
pricing information will impact consumer's understanding of and access 
to cost-saving discounts and rebates,''
    3. ``the impact of extensive fee disclosures early in the 
purchasing process on consumer's understanding of fees most likely to 
generate additional costs post-purchase or most relevant to the 
consumer's purchasing decision,''
    4. ``the procompetitive impacts or efficiencies of partitioned or 
drip pricing,'' and
    5. ``whether a fee disclosure that complies with the Commission's 
`Total Price' requirements is easier for a consumer to navigate, 
understand, and comparison shop than (1) disclosures that provide item 
price information separate from dynamic or variable fees or (2) where 
dynamic or variable fees vary, similar to shipping and carriage costs, 
depending on characteristics of the order not ascertainable until the 
consumer provides information or makes order selections.'' \30\
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    \30\ Chamber, Cmt. on NPRM at 19-21.
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    The IFA did not independently identify any disputed issues of 
material fact in its request for an informal hearing, but it appeared 
to endorse those raised by the Chamber.\31\
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    \31\ IFA, Cmt. on NPRM at 13. The IFA noted that ``in the 
Chamber Comment and IHRSA [comments], there are disputed issues of 
material fact needing to be resolved and requiring an informal 
hearing.'' However, IHRSA did not raise any disputed issues of 
material fact in their comment filed in this proceeding.
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    Finally, Gibson Dunn stated that ``[a]mong others, there are 
factual questions relating to (1) whether the practices are `deceptive' 
or `unfair,' (2) whether such unfair or deceptive practices are 
`prevalent,' and (3) the extent to which the Proposed Rule's 
substantial costs outweigh the relatively marginal benefits, given 
disputes over what costs the Rule would impose, what benefits it would 
present, and how those costs and benefits would be reflected in various 
industries.'' \32\ Although Gibson Dunn failed to meet the requirements 
of 16 CFR 1.11(e) in several respects, the Commission will nevertheless 
address these purported issues of material fact in this document.
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    \32\ Gibson Dunn, Cmt. on NPRM at 10 (Feb. 7, 2024), https://www.regulations.gov/comment/FTC-2023-0064-3238.
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    To be appropriate for cross-examination or rebuttal, a disputed 
issue of material fact must raise ``specific facts'' that are 
``necessary to be resolved'' \33\ and not ``legislative facts.'' \34\ 
Unlike specific facts, legislative facts ``help . . . determine the 
content of law and of policy'' and do not need to ``be developed 
through evidentiary hearings'' because they ``combine empirical 
observation with application of administrative expertise

[[Page 21219]]

to reach generalized conclusions.'' \35\ The relevant legislative 
history explains that ``disputed issues of material fact necessary to 
be resolved'' should be interpreted narrowly.\36\ In this context, 
``disputed'' and ``material'' are given the same meaning as in the 
standard for summary judgment.\37\ As in summary judgment, the 
challenging party must do more than simply assert there is a dispute 
regarding the Commission's findings. If those findings are otherwise 
adequately supported by record evidence, the challenging party must 
come forward with sufficient evidence to show there is a genuine, bona 
fide dispute over material facts that will affect the outcome of the 
proceeding.\38\
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    \33\ See, e.g., 16 CFR 1.13(b)(1)(i) (issues that ``must'' be 
considered for cross-examination or rebuttal are only those disputed 
issues of fact the Commission determines to be ``material'' and 
``necessary to resolve'').
    \34\ 16 CFR 1.12(b)(1) (``An issue for cross-examination or the 
presentation of rebuttal submissions, is an issue of specific fact 
in contrast to legislative fact.''). ``The only disputed issues of 
material fact to be determined for resolution by the Commission are 
those issues characterized as issues of specific fact in contrast to 
legislative fact. It was the judgment of the conferees that more 
effective, workable and meaningful rules will be promulgated if 
persons affected by such rules have the opportunity afforded by the 
bill, by cross-examination and rebuttal evidence or other 
submissions, to challenge the factual assumptions on which the 
Commission is proceeding and to show in what respect such 
assumptions are erroneous.'' H.R. Rep. No. 93-1606, at 34 (Dec. 16, 
1974) (Conf. Rep.). Further, as explained in Association of National 
Advertisers, Inc. v. FTC, 627 F.2d 1151, 1164 (D.C. Cir. 1979), the 
distinction between ``specific fact'' and ``legislative fact'' grew 
out of a recommendation from the Administrative Conference of the 
United States (ACUS):
    Conference Recommendation 72-5 is addressed exclusively to 
agency rulemaking of general applicability. In such a proceeding, 
almost by definition, adjudicative facts are not at issue, and the 
agency should ordinarily be free to, and ordinarily would, proceed 
by the route of written comments, supplemented, perhaps, by a 
legislative-type hearing. Yet there may arise occasionally in such 
rulemaking proceedings factual issues which, though not 
adjudicative, nevertheless justify exploration in a trial-type 
format because they are sufficiently narrow in focus and 
sufficiently material to the outcome of the proceeding to make it 
reasonable and useful for the agency to resort to trial-type 
procedure to resolve them. These are what the Recommendation refers 
to as issues of specific fact.
    Id. at 1164.
    \35\ Ass'n of Nat'l Advertisers, 627 F.2d at 1161-62.
    \36\ See, e.g., H.R. Rep. No. 93-1107, 93d Cong., 2d Sess., 
reprinted in 1974 U.S.C.C.A.N. 7702, 7728; Ass'n of Nat'l 
Advertisers, 627 F.2d at 1163 (quoting H.R. Rep. No. 93-1606, at 33 
(1974) (Conf. Report)).
    \37\ As explained in the legislative history:
    The words `disputed issues of material fact' are intended to 
describe and limit the scope of cross-examination in a rulemaking 
proceeding. Thus, the right of participants in the proceeding to 
cross-examine Commission witnesses does not include cross-
examination on issues as to which there is not a bona fide dispute. 
In this connection, the Committee considers the rules of summary 
judgment applied by the courts analogous. Where the weight of the 
evidence is such that there can be no bona fide dispute over the 
facts, summary judgment is proper. Similarly, in such a situation 
cross-examination would not be permitted; neither is a participant 
entitled to cross-examination where the disputed issues do not 
involve material facts. This language in the bill is used to 
distinguish facts which might be relevant to the proceeding but not 
of significant enough import to rise to the level of materiality. 
The word material is used here with the same meaning it is given 
under the common law rules of evidence. Also of importance is the 
word `fact.' Cross-examination is not required regarding issues in 
rulemaking proceedings which are not issues of fact. Examples of 
such issues are matters of law or policy or matters whose 
determination has been primarily vested by Congress in the Federal 
Trade Commission. Thus, unless the subject matter with regard as to 
which cross-examination is sought relates to disputed issues, which 
are material to the proposed rule and which are fact issues, there 
is no right to cross-examination on the part of any party to the 
proceeding.
    H.R. Rep. No. 93-1107, 93d Cong., 2d Sess., reprinted in 1974 
U.S.C.C.A.N. 7702, 7728.
    \38\ Id.; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 248 (1986) (explaining the standard as ``[o]nly disputes over 
facts that might affect the outcome''); Matsushita Elec. Indus. Co. 
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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    The purported disputed issues of material fact described above fall 
generally into several categories: the Commission's determination of 
unfair or deceptive practices, the Commission's finding of prevalence, 
the relationship between the proposed rule's obligations and those 
imposed by existing rules and regulations, and the Commission's cost-
benefit analysis. In addition, one commenter raised questions about the 
scope of the proposed rule's definition of Government Charges.
    First, two commenters raised questions regarding the Commission's 
findings that pricing structures that do not initially disclose the 
total mandatory cost of a good or service are deceptive or unfair.\39\ 
These arguments do not raise disputed issues of material fact because 
they are legal and legislative issues rather than specific issues of 
fact. Whether the practices of misrepresenting the total costs of goods 
and services by omitting mandatory fees from advertised prices and 
misrepresenting the nature and purpose of fees are unfair or deceptive 
are legal questions. The Commission established the unfairness and 
deceptiveness of these practices through legal analysis in section 
III.A-B of the NPRM.\40\ Even if these questions were questions of 
specific fact, they do not raise bona fide disputes because the 
Commission has supported its findings with evidence, and the commenters 
have not introduced their own evidence to contradict the 
Commission.\41\
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    \39\ See Chamber, Cmt. on NPRM at 20 (recommending a hearing 
with evidentiary procedures on ``consumer expectations about fees or 
charges consumers expect to be included with the purchase of a 
product or service'' and ``the impact of extensive fee disclosures 
early in the purchasing process on consumer's [sic] understanding of 
fees most likely to generate additional costs post-purchase or most 
relevant to the consumer's purchasing decision''); Gibson Dunn, Cmt. 
on NPRM at 10 (disputing ``(1) whether the practices are `deceptive' 
or `unfair' '').
    \40\ NPRM, 88 FR at 77432 nn.146-47 (citing long-held FTC 
positions that misleading door openers are deceptive and caselaw 
recognizing that it is a violation of the FTC Act if a consumer's 
first contact is induced through deception, even if the truth is 
clarified prior to purchase). The Commission also cited evidence 
demonstrating harm from unfair and deceptive fee practices, 
specifically the practice of advertising only part of a product's 
price upfront and revealing additional charges later as consumers go 
through the buying process (drip pricing) and the practice of 
dividing the price into multiple components without disclosing the 
total (partitioned pricing). See, e.g., id. at n.153.
    \41\ The comments received in response to the ANPR, in addition 
to the Commission's history of enforcement actions, demonstrated 
that advertising misrepresentation and unlawful practices related to 
pricing and added fees are a chronic problem confronting consumers.
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    Second, two commenters argued that the Commission's finding that 
bait-and-switch pricing practices are prevalent was a disputed 
fact.\42\ The Commission must make two findings regarding prevalence if 
it promulgates a rule under section 18. First, the NPRM must set forth 
the Commission's ``reason to believe that the unfair or deceptive acts 
or practices which are the subject of the proposed rulemaking are 
prevalent.'' \43\ The Commission articulated its reasons to believe 
bait-and-switch pricing practices are prevalent in section III of the 
NPRM, particularly section III.C, which discusses the comments received 
in response to the ANPR, the Commission's history of enforcement 
actions, and other complementary work that demonstrate the prevalence 
of these practices. Second, the Commission must include ``a statement 
as to the prevalence of the acts or practices treated by the rule'' 
\44\ in the statement of basis and purpose to accompany any final rule. 
Ultimately, the Commission's prevalence findings need only have ``some 
basis or evidence'' to show ``the practice the FTC rule seeks to 
regulate does indeed occur.'' \45\
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    \42\ ACA Connects, Cmt. on NPRM at 15 (``Do CSPs engage in a 
widespread pattern of deceiving consumers through deceptive or 
misleading fee disclosures?''); Gibson Dunn, Cmt. on NPRM at 10 
(disputing ``(2) whether such unfair or deceptive practices are 
`prevalent' '').
    \43\ 15 U.S.C. 57a(b)(3).
    \44\ 15 U.S.C. 57a(d)(1)(A).
    \45\ Pa. Funeral Dirs. v. FTC, 41 F.3d 81, 87 (3d Cir. 1994). 
ACA Connects appears to suggest that the Commission must make a 
determination that a practice is widespread in every individual 
industry and market in order to support a finding of prevalence. It 
offers no support for this assertion, which runs contrary to 
precedent finding that ``even where there is a limited record as to 
the prevalence of a practice on a nationwide basis or where the data 
reviewed only relates to a few states, the practice can be found to 
be prevalent enough to warrant a regulation.'' Id. Furthermore, the 
NPRM described numerous comments in response to the ANPR and 
enforcement actions involving these practices in various industries, 
including the telecommunications industry. ACA Connects failed to 
provide any evidence to demonstrate a bona fide dispute as to this 
question.
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    Third, two commenters raised issues regarding the proposed rule's 
interaction with other rules, regulations, or statutes.\46\ In the 
NPRM, the Commission solicited input ``to determine if compliance with 
the proposed rule along with the specific disclosure provisions for 
certain types of sectors or transactions would be impossible, overly 
burdensome, or beneficial.'' \47\ The Bankers Associations in 
particular provided detailed views regarding the interplay between the 
requirements of the proposed rule and a number of rules and regulations 
that contain pricing disclosure requirements applicable to certain 
consumer financial services products. The Commission appreciates the 
views of the Bankers Associations regarding these important questions 
and will give them careful consideration. However, determining the 
appropriate scope of the proposed rule and its interaction with other 
legal

[[Page 21220]]

obligations is a quintessential question of legal interpretation and 
policy and is not determined by the resolution of an issue of specific 
fact. The comment from ACA framed the issue as whether consumers would 
be confused by duplicative or conflicting disclosure requirements. Here 
again, whether the disclosure requirements are duplicative or 
conflicting is a legal question and the question of whether consumers 
might be confused by multiple disclosure falls more neatly into the 
category of a legislative fact--``combining empirical observation with 
application of administrative expertise to reach generalized 
conclusions''--than a specific fact. The Commission appreciates the 
views and commentary ACA provided on this topic and will give them 
careful consideration, but is not persuaded that they present disputed 
issues of material fact.
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    \46\ ACA Connects, Cmt. on NPRM at 15 (``Will consumers be 
confused by duplicative and/or conflicting disclosure 
requirements?''); Bankers Associations, Cmt. on NPRM at 8 
(describing issues ``concerning the relationship between the 
disclosures required by the Proposed Rule and the disclosures 
required under other federal consumer financial law.'').
    \47\ NPRM, 88 FR at 77480, Section IX.
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    Fourth, several commenters challenged the adequacy of the 
Commission's cost-benefit analysis, including the impact of the 
proposed rule on consumer understanding and competition, and 
assumptions underlying the Commission's analysis. Section VII of the 
NPRM contains the Commission's Preliminary Regulatory Analysis, 
required under 15 U.S.C. 57b-3(a), setting forth the Commission's 
preliminary analysis of the projected benefits and any adverse economic 
effects (or other effects) for the proposed rule. The Preliminary 
Regulatory Analysis is supported by substantial evidence, that is, it 
contains ``such relevant evidence as a reasonable mind might accept as 
adequate to support a conclusion.'' \48\ The NPRM quantified costs and 
benefits where it could, and, where costs and benefits could not be 
quantified, the Commission identified assumptions made to reach its 
conclusions. If an assumption was needed, the NPRM made clear which 
quantities were being assumed. The Commission's preliminary analysis 
concluded that there are positive benefits to the proposed rule if the 
benefit per consumer is at least $6.65 per year over a 10-year period. 
For both quantified benefits and costs, the Commission provided a range 
representing the set of assumptions that resulted in a ``low-end'' or 
``high-end'' estimate and the $6.65 benefit threshold assumes the high-
end estimate of costs. Ultimately, the Commission's analysis calculated 
low-end and high-end estimates of the total quantified economy-wide 
costs and the necessary ``break-even benefit'' per consumer.
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    \48\ Pa. Funeral Dirs. Ass'n v. FTC, 41 F.3d at 85.
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    Several commenters asserted that the Commission failed to consider 
potential costs to consumers, suggesting that the proposed rule may 
result in consumer confusion and difficulty comparing prices. ACA 
Connects argued that the proposed rule ``would increase consumer search 
times if CSPs'' opt to ``present consumers with multiple pricing 
formats'' or ``forgo providing up-front pricing information'' to comply 
with the proposed rule. NCTA similarly raised concerns that the 
Proposed Rule could result in businesses omitting pricing information 
from advertising, thereby ``undermining the rule's stated goal of 
reducing consumers' search time.'' The Chamber argued that there is a 
disputed issue of material fact concerning the benefits to consumers of 
the proposed rule's `Total Price' requirement, as compared to itemized 
disclosures or variable or dynamic pricing models. The Chamber further 
suggested that the proposed rule may negatively impact consumers 
because it will result in consumer confusion and will impact consumer 
access to ``cost-saving discounts and rebates.'' \49\ Gibson Dunn 
contended generally that there is a disputed issue of material fact 
concerning ``the extent to which the Proposed Rule's substantial costs 
outweigh the relatively marginal benefits, given disputes over what 
costs the Rule would impose, what benefits it would present, and how 
those costs and benefits would be reflected in various industries.''
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    \49\ As the Commission indicated in the NPRM, under the proposed 
rule, businesses would be free to apply discounts and rebates after 
disclosing Total Price. NPRM, 88 FR at 77439, Section V.A. To the 
extent that the Chamber is seeking further clarification on the 
Commission's understanding of Total Price for consumers that have 
provided loyalty or discount membership information, the Commission 
appreciates this comment and will give it careful consideration.
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    Commenters also questioned the Proposed Rule's impact on 
competition. Both ACA Connects and the Chamber argued that a disputed 
issue of material fact exists as to the impact of the Proposed Rule on 
competition in the marketplace. ACA Connects asserted that if adopted, 
the Proposed Rule ``may undermine competition among CSPs by giving an 
unfair competitive advantage to larger firms that can afford to expend 
the financial resources to take on the legal risk of continuing to 
advertise pricing to consumers.'' The Chamber, for its part, suggested 
that ``partitioned and drip pricing may have pro-competitive and pro-
consumer justifications'' that the Commission did not consider in its 
cost-benefit analysis.
    These questions about the Commission's cost-benefit analysis do not 
constitute disputed issues of material fact. As noted above, the 
legislative history strongly suggests the term ``disputed issues of 
material fact'' should be interpreted narrowly and given the same 
meaning as in summary judgment.\50\ Further, a challenging party must 
demonstrate that there is a bona fide dispute that will affect the 
outcome of the rulemaking proceeding.\51\ None of the commenters 
provided competing empirical evidence or data to challenge the 
Commission's analysis, and instead offered unsupported statements, 
predictions about how businesses might respond to the proposed rule, or 
general requests for further analysis.\52\ Summarily disagreeing with 
the Commission's analysis does not create a material or disputed issue 
of fact.
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    \50\ See Ass'n of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151, 
1164 (D.C. Cir. 1979); Kurt Walters, Reassessing the Mythology of 
Magnuson-Moss: A Call to Revive Section 18 Rulemaking at the FTC, 16 
Harv. L. & Pol'y Rev. 519, 544 (2022).
    \51\ See Ass'n of Nat'l Advertisers, 627 F.2d at 1162.
    \52\ Gibson Dunn attempts to recreate the Commission's break-
even analysis by modifying the rate firms will pay data scientists 
and attorneys to come into compliance with the proposed rule; but 
Gibson Dunn offers no contrary evidence to challenge the 
Commission's assumptions, other than to say that they are incorrect. 
Instead, Gibson Dunn's comment offers a critique of the Commission's 
economic analysis, challenging many of the Commission's estimates as 
unlikely and contending that the calculations estimating benefits 
are too high and the calculations estimating costs too low. The 
Commission is reviewing this analysis carefully.
---------------------------------------------------------------------------

    The Commission reaches the same conclusion with respect to NCTA's 
challenge to the NPRM's assumption that 90% of firms (excepting live-
event ticketing, short-term lodging, and the restaurant industry) 
already comply with the proposed rule. The NCTA argues that the 90% 
assumption is ``inaccurate with respect to the communications industry 
and, in turn, likely invalid for the economy as a whole.'' As with 
other contentions about the Commission's cost-benefit analysis, NCTA 
does not provide any empirical evidence or data challenging the 
Commission's assumption.\53\

[[Page 21221]]

Further, the Commission makes plain that this assumption is not 
necessarily material to its break-even analysis as any increase to this 
number has effects on estimated costs and benefits that largely cancel 
each other out.\54\ If the 90% assumption is an overestimate, costs go 
up, but so do benefits; if the assumption is an underestimate, costs 
and benefits both go down. Thus, NCTA has failed to demonstrate that 
the 90% assumption is a disputed issue of specific fact or an issue 
that is material for the Commission to resolve.
---------------------------------------------------------------------------

    \53\ The NPRM contains a break-even analysis, which estimates 
the break-even point considering both a 90% existing compliance rate 
with the Proposed Rule and a 50% existing compliance rate with the 
Proposed Rule. The break-even analysis in the NPRM is specific and 
explains the Commission's reasoning. Additionally, while the 
Commission is not required to comply with OMB Circular A-4, the 
NPRM's break-even analysis is consistent with OMB guidance. Such 
break-even analyses are accepted practice by OMB, particularly where 
``non-monetized benefits and costs are likely to be important.'' OMB 
Circular A-4 at 47-48. (Nov. 9, 2023). Moreover, the assumptions 
underlying the break-even analysis are precisely the kind of 
legislative facts ``involving expert opinions and forecasts, which 
cannot be decisively resolved by testimony.'' Ass'n of Nat'l 
Advertisers, 627 F.2d at 1162 n.22 (``Because legislative facts 
combine empirical observation with application of administrative 
expertise to reach generalized conclusions, they need not be 
developed through evidentiary hearings.'').
    \54\ NPRM, 88 FR at 77452, Section VII.C.2.f.(2) Break-Even 
Analysis of Economy-Wide Costs and Benefits.
---------------------------------------------------------------------------

    Finally, NCTA identifies as a disputed issue of material fact 
whether ``reasonable consumers expect the `total price' `exclusive of 
government charges' to exclude only government charges imposed directly 
on consumers?'' \55\ NCTA posits that the ``NPRM makes inherent 
assumptions about the fees or government charges a reasonable consumer 
would expect to be included or excluded in the Total Price for a good 
or service.'' Record evidence supporting the NPRM demonstrates 
consumers believe all mandatory charges should be reflected in the 
total price, in many instances specifically including taxes.\56\ 
Nevertheless, the Commission's basis for its proposed Government 
Charges definition was to ensure that all mandatory charges are 
reflected in the Total Price, including ``amounts that the government 
imposes on a business and that the business chooses to pass on to 
consumers,'' to prevent a business from ``artificially inflating taxes 
that are excluded from the Total Price.'' The proposed rule does not 
prohibit itemization and businesses are free to itemize all government 
charges or other fees that the Total Price comprises. NCTA also gives 
the view that other regulatory pricing requirements have made different 
determinations regarding government charges. The Commission appreciates 
NCTA's comparisons and will consider them in its continued analysis of 
how the proposed rule interacts with other rules and regulations. 
Again, however, these are questions of law and legislative fact, not 
specific facts.
---------------------------------------------------------------------------

    \55\ NCTA, Cmt. on NPRM at 32.
    \56\ NPRM, 88 FR at 77430-31 n.124.
---------------------------------------------------------------------------

    Thus, the Commission finds that there are no ``disputed issues of 
material fact'' to resolve at the hearing \57\ and no need for cross-
examination or rebuttal submissions.\58\
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    \57\ If any interested person seeks to have additional disputed 
issues of material fact designated, the person may make such request 
to the presiding officer pursuant to 16 CFR 1.13(b)(1)(ii).
    \58\ 16 CFR 1.12(b).
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    This initial notice of informal hearing also serves as the ``final 
notice of informal hearing.'' \59\ A final notice of informal hearing 
is limited in its substance to matters that arise only when the 
Commission designates disputed issues of material fact: who will 
conduct cross-examination; whether any interested persons with similar 
interests will be grouped together for such purposes; and who will make 
rebuttal submissions.\60\ Because cross-examination and submission of 
rebuttal evidence are not anticipated to occur in this informal 
hearing, no separate final notice of informal hearing is necessary.
---------------------------------------------------------------------------

    \59\ 16 CFR 1.12(c).
    \60\ Id.
---------------------------------------------------------------------------

IV. List of Hearing Participants; Making an Oral Statement; Requests 
for Documentary Submissions

    Pursuant to Commission Rule 1.12(a)(4), 16 CFR 1.12(a)(4), the 
following is the list of interested persons (``Hearing Participants'') 
who will have the opportunity to make oral presentations at the 
informal hearing:

1. ACA Connects--America's Communication Association
2. American Bankers Association and Consumer Bankers Association
3. U.S. Chamber of Commerce
4. NCTA--The Internet & Television Association
5. International Franchise Association
6. BattleLine LLC
7. IHRSA, the Global Health and Fitness Association
8. National Taxpayers Union Foundation
9. The coalition of 52 national and state consumer advocacy groups 
represented by the Consumer Federation of America
10. National Consumer Law Center (``NCLC'') on behalf of its low-income 
clients
11. National Association of Consumer Advocates
12. The coalition of 33 health and consumer protection advocacy groups 
represented by Community Catalyst
13. The coalition of 39 housing justice advocacy organizations 
represented by the National Housing Law Project
14. Prison Policy Initiative, and Stephen Raher
15. Formerly Incarcerated, Convicted People and Families Movement
16. Truth in Advertising, Inc.
17. Fair Price, Fair Wage Coalition

    Oral statements will be limited to 15 minutes, although they may be 
supplemented by documentary submissions as described below, and the 
presiding officer may grant an extension of time for good cause shown. 
Transcripts of the oral statements will be placed in the rulemaking 
record. Hearing Participants will be provided with instructions as to 
how to participate in the virtual hearing.
    If you are a Hearing Participant and would like to submit your oral 
presentation in writing or file a supplementary documentary submission, 
please write ``Unfair or Deceptive Fees Rule (16 CFR part 464) 
(R207011)'' on your submission and send it electronically to 
[email protected], with a copy to [email protected]. If you prefer 
to file your submission on paper, mail it to the following address: 
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania 
Avenue NW, Mail Stop H-144 (Annex J), Washington, DC 20580. If 
possible, please send your paper submission to the Commission by 
overnight service.
    If you file a documentary submission under this section, your 
submission--including your name and your state--will be placed on the 
public record of this proceeding, including on the website https://www.ftc.gov. Because your documentary submission will be placed on the 
public record, you are solely responsible for making sure that it does 
not include any sensitive or confidential information. In particular, 
your submission should not contain sensitive personal information, such 
as your or anyone else'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 your documentary submission does not include any sensitive health 
information, such as medical records or other individually identifiable 
health information. In addition, your documentary submission should not 
include any ``[t]rade secret or any commercial or financial information 
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)--including, in particular, competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices,

[[Page 21222]]

manufacturing processes, or customer names.
    Documentary submissions containing material for which confidential 
treatment is requested must be filed in paper form, must be clearly 
labeled ``Confidential,'' and must comply with Commission Rule 4.9(c), 
16 CFR 4.9(c). In particular, the written request for confidential 
treatment that accompanies the submission must include the factual and 
legal basis for the confidentiality request and must identify the 
specific portions to be withheld from the public record. See Commission 
Rule 4.9(c). Your documentary submission will be kept confidential only 
if the General Counsel grants your request in accordance with the law 
and the public interest. Once your documentary submission has been 
posted publicly at https://www.ftc.gov--as legally required by 
Commission Rule 4.9(b), 16 CFR 4.9(b)--we cannot redact or remove it, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under Commission Rule 4.9(c), 16 CFR 4.9(c), and the 
General Counsel grants that request.
    Visit the FTC website to read this document and the news release 
describing it. The FTC Act and other laws that the Commission 
administers permit the collection of submissions to consider and use in 
this proceeding as appropriate. The Commission will consider all timely 
and responsive documentary submissions it receives from the Hearing 
Participants on or before April 10, 2024. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
    Hearing Participants who need assistance should indicate as much in 
their submissions, and the Commission will endeavor to provide 
accommodations. Hearing Participants without the computer technology 
necessary to participate in video conferencing will be able to 
participate in the informal hearing by telephone; they should indicate 
as much in their submissions.

V. Conduct of the Informal Hearing; Role of Presiding Officer

    The Commission's Chief Presiding Officer, the Chair, has appointed 
and designates Administrative Law Judge for the Federal Trade 
Commission, the Honorable Jay L. Himes, to serve as the presiding 
officer of the informal hearing. Judge Himes will conduct the informal 
hearing virtually using video conferencing starting at 10 a.m. Eastern 
on April 24, 2024. The informal hearing will be available for the 
public to watch live from the Commission's website, https://www.ftc.gov, and a recording or transcript of the informal hearing will 
be placed in the rulemaking record.
    Because there are no ``disputed issues of material fact'' to 
resolve at the informal hearing, the presiding officer is not 
anticipated to make a recommended decision.\61\ The role of the 
presiding officer shall include presiding over and ensuring the orderly 
conduct of the informal hearing, including selecting the sequence in 
which oral statements will be heard, placing the transcript and any 
additional written submissions received into the rulemaking record. The 
presiding officer may prescribe additional procedures or issue rulings 
in accordance with Commission Rule 1.13, 16 CFR 1.13. In execution of 
the presiding officer's obligations and responsibilities under the 
Commission Rules, the presiding officer may issue additional public 
notices.
---------------------------------------------------------------------------

    \61\ See 16 CFR 1.13(d) (``The presiding officer's recommended 
decision will be limited to explaining the presiding officer's 
proposed resolution of disputed issues of material fact.'').
---------------------------------------------------------------------------

VI. Communications by Outside Parties to the Commissioners or Their 
Advisors

    Pursuant to Commission Rule 1.18(c)(1), 16 CFR 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 participation deadline. 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.\62\
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    \62\ See 15 U.S.C. 57a(i)(2)(A); 16 CFR 1.18(c).

    By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2024-06468 Filed 3-26-24; 8:45 am]
BILLING CODE 6750-01-P