95-19240. Santa Clara County Motor Car Dealers Association; Proposed Consent Agreement With Analysis to Aid Public Comment  

  • [Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
    [Notices]
    [Pages 39959-39961]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 95-19240]
    
    
    
    -----------------------------------------------------------------------
    
    FEDERAL TRADE COMMISSION
    [File No. 941-0107]
    
    
    Santa Clara County Motor Car Dealers Association; Proposed 
    Consent Agreement With Analysis to Aid Public Comment
    
    AGENCY: Federal Trade Commission.
    
    ACTION: Proposed consent agreement.
    
    -----------------------------------------------------------------------
    
    SUMMARY: In settlement of alleged violations of federal law prohibiting 
    unfair acts and practices and unfair methods of competition, this 
    consent agreement, accepted subject to final Commission approval, would 
    prohibit, among other things, a California association from carrying 
    out, participating in, inducing or assisting any boycott or concerted 
    refusal to deal with any newspaper, periodical, television or radio 
    station, and would require the association to amend its by-laws to 
    incorporate the stipulated prohibition, and to distribute the amended 
    by-laws and the final Commission order to each of its members.
    
    DATES: Comments must be received on or before October 3, 1995.
    
    ADDRESSES: Comments should be directed to: FTC/Office of Secretary, 
    Room 159, 6th St. and Pa. Ave., NW., Washington, DC 20580.
    
    FOR FURTHER INFORMATION CONTACT:
    Ralph Stone, San Francisco Regional Office, Federal Trade Commission, 
    901 Market St., Suite 570, San Francisco, CA 94103. (415) 744-7920.
    
    SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
    Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of 
    the Commission's Rules and Practice (16 CFR 2.34), notice is hereby 
    given that the following consent agreement containing a consent order 
    to cease and desist, having been filed with and accepted, subject to 
    final approval, by the Commission, has been placed on the public record 
    for a period of sixty (60) days. Public comment is invited. Such 
    comments or views will be considered by the Commission and will be 
    available for inspection and copying at its principal office in 
    accordance with Section 4.9(b)(6)(ii) of the Commission's Rule of 
    Practice (16 CFR 4.9(b)(6)(ii)).
    
        In the Matter of: Santa Clara County Motor Car Dealers 
    Association, an unincorporated association; File No. 941-0107.
    
    Agreement Containing Consent Order to Cease and Desist
    
        The Federal Trade Commission, having initiated an investigation of 
    certain acts and practices of the Santa Clara County Motor Car Dealers 
    Association, an unincorporated association, and it now appearing that 
    the Santa Clara County Motor Car Dealers Association, hereinafter 
    sometimes referred to as the ``Association'' or ``proposed 
    respondent,'' is willing to enter into an agreement containing an order 
    to cease and desist from the acts and practices being investigated,
        It is Hereby Agreed by and between the Association, by its duly 
    authorized 
    
    [[Page 39960]]
    officers, and its attorney, and counsel for the Federal Trade 
    Commission that:
        1. The Association is an unincorporated association organized, 
    existing, and doing business under and by virtue of the laws of the 
    State of California, with its office and principal place of business at 
    336 East Hamilton Avenue, Campbell, California 95008.
        2. The Association admits all the jurisdictional facts set forth in 
    the draft of Complaint.
        3. The Association waives:
        (a) Any further procedural steps;
        (b) The requirement that the Commission's decision contain a 
    statement of findings of fact and conclusions of law;
        (c) All rights to seek judicial review or otherwise to challenge or 
    contest the validity of the Order entered pursuant to this agreement; 
    and
        (d) All claims under the Equal Access to Justice Act, 5 U.S.C. 
    Sec. 504.
        4. This agreement shall not become part of the public record of the 
    proceeding unless and until it is accepted by the Commission. If this 
    agreement is accepted by the Commission, it together with the draft of 
    Complaint contemplated thereby, will be placed on the public record for 
    a period of sixty (60) days and information in respect thereto publicly 
    released. The Commission thereafter may either withdraw its acceptance 
    of this agreement and so notify the proposed respondent, in which event 
    it will take such action as it may consider appropriate, or issue and 
    serve its Complaint (in such form as the circumstances may require) and 
    decision, in disposition of the proceeding.
        5. This agreement is for settlement purposes only and does not 
    constitute an admission by proposed respondent that the law has been 
    violated as alleged in the draft of Complaint, or that the facts as 
    alleged in the draft of Complaint, other than the jurisdictional facts, 
    are true.
        6. This agreement contemplates that, if it is accepted by the 
    Commission, and if such acceptance is not subsequently withdrawn by the 
    Commission pursuant to the provisions of Section 2.34 of the 
    Commission's Rules, the Commission may, without further notice to 
    proposed respondent, (a) issue its Complaint corresponding in form and 
    substance with the draft of Complaint and its decision containing the 
    following Order to cease and desist in disposition of the proceeding 
    and (b) make information public in respect thereto. When so entered, 
    the Order to cease and desist shall have the same force and effect and 
    may be altered, modified or set aside in the same manner and within the 
    same time provided by statute for other orders. The Order shall become 
    final upon service. Delivery by the U.S. Postal Service of the 
    Complaint and decision containing the agreed-to Order to proposed 
    respondent's address as stated in this agreement shall constitute 
    service. Proposed respondent waives any right it may have to any other 
    manner of service. The Complaint may be used in construing the terms of 
    the Order, and no agreement, understanding, representation, or 
    interpretation not contained in the Order or the agreement may be used 
    to vary or contradict the terms of the Order.
        7. Proposed respondent has read the proposed Complaint and Order 
    contemplated hereby. Proposed respondent understands that once the 
    Order has been issued, it will be required to file one or more 
    compliance reports showing that it has fully complied with the Order. 
    Proposed respondent further understands that it may be liable for civil 
    penalties in the amount provided by law for each violation of the Order 
    after it becomes final.
    
    Order
    
    I
    
        It Is Ordered that, for the purposes of this Order, ``respondent'' 
    or ``Association'' shall mean the Santa Clara County Motor Car Dealers 
    Association, its predecessors, successors and assigns, and its 
    directors, committees, officers, delegates, representatives, agents, 
    and employees.
    
    II
    
        It Is Further Ordered that the Association, directly or indirectly, 
    or through any person or any corporate or other device, in or in 
    connection with its activities as a trade association, in or affecting 
    commerce, as ``commerce'' is defined in the Federal Trade Commission 
    Act, shall forthwith cease and desist from carrying out, participating 
    in, inducing, suggesting, urging, encouraging, or assisting any boycott 
    of, or concerted refusal to deal with, any newspaper, periodical, 
    television station, or radio station; provided, however, that nothing 
    in this Order shall prohibit the Association or any of its members from 
    establishing, participating in, or maintaining joint advertising 
    programs, so long as such joint advertising programs are not a part of 
    any boycott or concerted refusal to deal and do not otherwise violate 
    this Order.
    
    III
    
        It Is Further Ordered that the Association shall:
        A. Within sixty (60) days after the date this Order becomes final, 
    amend its by-laws to incorporate by reference Paragraph II of this 
    Order, and distribute by first-class mail a copy of the amended by-laws 
    to each of its members;
        B. Within thirty (30) days after the date this Order becomes final, 
    distribute by first-class mail a copy of this Order and the Complaint 
    to each of its members;
        C. For a period of five (5) years after the date this Order become 
    final, provide each new member with a copy of this Order, the 
    complaint, and the amended by-laws within thirty (30) days of the new 
    member's admission to the Association; and
        D. Within seventy-five (75) days after the date this Order becomes 
    final, and annually thereafter for a period of five (5) years on the 
    anniversary of the date this Order became final, file with the 
    Secretary of the Commission a verified written report setting forth in 
    detail the manner and form in which the Association has complied with 
    and is complying with this Order.
    
    IV
    
        It Is Further Ordered that the Association shall notify the 
    Commission at least thirty (30) days prior to any change in the 
    Association, such as dissolution or reorganization resulting in the 
    emergence of a successor corporation or association, or any other 
    change in the corporation or association which may affect compliance 
    obligations arising out of this Order.
    
    V
        It Is Further Ordered that, for the purpose of determining or 
    securing compliance with this Order, respondent shall permit any duly 
    authorized representative of the Commission:
        A. Upon seven (7) days' notice to respondent, to have access, 
    during office hours and in the presence of counsel, to inspect and copy 
    all books, ledgers, accounts, correspondence, memoranda and other 
    records and documents in the possession or under the control of 
    respondent relating to any matters contained in this Order; and
        B. Upon seven (7) days' notice to respondent and without restraint 
    or interference from it, to interview officers, directors, or employees 
    of respondent.
    
    [[Page 39961]]
    
    
    VI
    
        It Is Further Ordered that this Order shall terminate twenty (20) 
    years from the date this Order becomes final.
    
    Analysis of Proposed Consent Order To Aid Public Comment
    
        The Federal Trade Commission has accepted, subject to final 
    approval, an agreement to a proposed consent order from the Santa Clara 
    County Motor Car Dealers Association (``Association'').
        The proposed consent order has been placed on the public record for 
    sixty (60) days for reception of comments by interested persons. 
    Comments received during this period will become part of the public 
    record. After sixty (60) days, the Commission will again review the 
    agreement and the comments received and will decide whether it should 
    withdraw from the agreement or make final the agreement's proposed 
    order.
    
    Description of the Complaint
    
        A complaint prepared for issuance by the Commission along with the 
    proposed order alleges that the Association and at least some of its 
    members agreed that members would cancel advertising in, and thereafter 
    collectively withhold advertising from, the San Jose Mercury News 
    newspaper in retaliation for a Mercury News article that was intended 
    to educate consumers on how to analyze the manufacturer's factory 
    invoice as part of the automobile-buying process. Armed with this 
    information, the consumer may be better equipped to negotiate a lower 
    price.
        The complaint alleges that the purposes or effects of the agreement 
    were to restrain competition among new automobile and truck dealers in 
    Santa Clara County, California, and to deprive consumers of truthful 
    information pertinent to the purchase of new automobiles and trucks. 
    Agreements not to disemminate information through advertising can make 
    it more difficult for consumers to choose among automobile dealers by 
    preventing direct interbrand and intrabrand comparisons of dealers' 
    automobiles and their prices and services, and thus may increase 
    consumer search costs. Moreover, the use of the combined economic power 
    of the automobile dealers to affect a newspaper's editorial content may 
    chill the publication of information that would lower search costs and 
    make readers more effective consumers.
    
    Description of the Proposed Consent Order
    
        The proposed order would prohibit the Association from carrying 
    out, participating in, inducing, suggesting, urging, encouraging, or 
    assisting any boycott of, or concerted refusal to deal with, any 
    newspaper, periodical, television station, or radio station.
        The proposed order would permit the Association to establish, 
    participate in, and maintain joint advertising programs, so long as 
    such joint advertising programs are not part of any boycott or 
    concerted refusal to deal.
        The proposed order would require the Association to amend its by-
    laws to incorporate by reference the order. It would also require the 
    Association to distribute a copy of the amended by-laws, the order, and 
    the complaint to each of its members, file compliance reports, and 
    notify the Commission of certain changes in its structure.
        Finally, the proposed order contains a twenty year ``sunset'' 
    provision. Under this provision, the terms of the order shall terminate 
    twenty years after the date the order becomes final.
        The purpose of this analysis is to facilitate public comment on the 
    proposed order, and it is not intended to constitute an official 
    interpretation of the agreement and proposed order or to modify in any 
    way their terms.
        The proposed consent order has been entered into for settlement 
    purposes only and does not constitute an admission by the Association 
    that the law has been violated as alleged in the complaint.
    Benjamin I. Berman,
    Acting Secretary.
    [FR Doc. 95-19240 Filed 8-3-95; 8:45 am]
    BILLING CODE 6750-01-M
    
    

Document Information

Published:
08/04/1995
Department:
Federal Trade Commission
Entry Type:
Notice
Action:
Proposed consent agreement.
Document Number:
95-19240
Dates:
Comments must be received on or before October 3, 1995.
Pages:
39959-39961 (3 pages)
Docket Numbers:
File No. 941-0107
PDF File:
95-19240.pdf