Bureau of Consumer Protection 

Division of Enforcement 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

WASHINGTON, D.C. 20580 

November 17,2011 

Via Email and Overnight Mail 

L. Jean Noonan 

Hudson Cook, LLP 

1020 19th Street, N. W., 7th Floor 

Washington, DC 20036 

Dear Ms. Noonan, 

This staff advisory opinion responds to your August 19,2011, letter seeking an 

informal staff opinion regarding the application of the Restore Online Shoppers' 

Confidence Act ("ROSCA"), 15 USC § 840 I, et. seq., to the proposed online husiness 

practices of your client, the National Railroad Passenger Corporation (Amtrak). The 

views expressed in this letter are those of the staff assigned to enforce ROSCA. In 

accordance with Section 1.3(c) of the Commission's Rules of Practice and Procedure, 16 

C.F.R. § 1.3(c), this is a staff opinion only and has not been reviewed or approved by the 

Commission or by an individual Commissioner. It is not binding upon the Commission 

and is given without prejudice to the right of the Commission later to rescind the advice 

ana, when appropriate, to commence an enforcement proceeding. In conformance with 

Section 1.4 of the Commission's Rules of Practice, 16 C.F.R. § 1.4, this letter and 

Amtrak's request, are being placed on the public record. The opinions expressed in this 

letter are based on the factual scenario you described in your letter. 

As described in your letter, Amtrak allows its customers to purchase train tickets 

on its website. Prior to the enactment of ROSCA, Amtrak also offered travel-related 

products and services from trusted third party partners. When ROSCA went into effect, 

Amtrak ceased offering consumers the opportunity to purchase third party products and 

services on Amtrak's website. The central issue raised in your letter is whether Amtrak's 

prior practice of offering third party products and services, with certain modifications, 

would violate ROSCA. As described below, we conclude that under the specific factual 

scenario presented in your letter, staff would not recommend an enforcement action 

against Amtrak for violations ofROSCA. 
Ms. Jean Noonan 

Hudson Cook, LLP 

November l7,2011-Page2 

ROSCA PROVISIONS 

Section 3(b) ofROSCA provides that "[i]t shall be unlawful for an initial 

merchant to disclose a credit card, debit card, bank account, or other financial account 

number, or to disclose other billing information that is used to charge a customer of the 

initial merchant, to any post-transaction third party seller for use in an Internet-based sale 

of any goods or services from that post-transaction third party seller." ROSCA § 3(d)(I) 

defines initial merchant as "a person that has obtained a consumer's billing information 

directly from the consumer through an Internet transaction initiated by the consumer." A 

post-transaction third party seller is "a person that (A) sells, or offers for sale, any good 

or service on the Internet; (B) solicits the purchase of such goods or services on the 

Internet through an initial merchant after the consumer has initiated a transaction with the 

initial merchant; and (C) is not (i) the initial merchant; (ii) a subsidiary or corporate 

affiliate of the initial merchant; or (iii) a successor of an entity described in clause (i) or 

(ii)." ROSCA § 3( d)(2). 

DISCUSSION 

According to your letter, when a consumer seeks to purchase a train ticket on 

Amtrak's website, the consumer must enter itinerary details, including the city to which 

the consumer seeks to travel, the class of service desired, and the date(s) and time(s) of 

travel. The consumer is then provided with ticket options. Once a ticket is selected, the 

consumer must add the ticket to a "cart" that is clearly displayed on the side of the 

consumer's computer screen as an itinerary. Prior to ROSCA, Amtrak would next offer 

consumers travel-related products such as rental cars, hotels, and activities provided by 

third party partners. The consumer could then decide whether to add third party products 

to their Amtrak shopping cart. The consumer could also proceed with the booking 

process without reviewing any other products by clicking the "Enter Passenger 

Information" box located above the third party products. Only after the consumer 

finished shopping for tickets and other travel-related products and services, was the 

consumer sent to a passenger information page that asked the consumer to log in to 

Amtrak's website or enter passenger contact information. The consumer was then 

directed to a payment information page where they could enter financial account 

information and finalize the purchase. Finally, consumers were sent to a purchase 

confirmation page. Amtrak ultimately passed consumers' financial data to the third party 

partners from whom a product or service was purchased. 

For ROSCA to apply in these circumstances, Amtrak must be an "initial 

merchant" under Section 3(d)(l) and Amtrak's third party partners must be "posttransaction third party seller[s]" under Section 3(d)(2). Because Amtrak obtains billing 

information directly from customers that initiate an Internet transaction on its website, it 

is an initial merchant. ROSCA § 3(d)(I). If Amtrak's proposed third party partners meet 

the three criteria set forth in Sections 3(d)(2)(A)-(C), they would be "post-transaction 

third party seller[s]." Per your letter they clearly meet two of the criteria: the third party 
Ms. Jean Noonan 

Hudson Cook, LLP 

November 17, 2011 - Page 3 

partners sell goods or services over the Internet, Section 3( d)(2)(A), and are not the initial 

merchant, Section § 3( d)(2)(C). 

Therefore, the key issue is whether Amtrak's third party partners would solicit the 

purchase of goods or services after consumers have initiated a transaction with Amtrak 

under Section 3( d)(2)(B). ROSCA does not define "initiate a transaction" and no courts 

have addressed this issue. One interpretation of Section 3 is that a transaction is initiated 

after a consumer proceeds to a website's checkout page. Under this interpretation, 

ROSCA would not apply because the solicitation for third party products occurs before 

consumers go to Amtrak's checkout or payment submission page. Another interpretation 

is that a transaction is initiated when a consumer places products or services in a 

website's shopping cart. Under this interpretation, Amtrak's third party partners would 

be "post-transaction third party seller[s]" and ROSCA would apply. 

Even if the second interpretation is correct, staff would not recommend an 

enforcement action because the business practices you describe are unlikely to result in 

consumer confusion or injury and, therefore, staff would not recommend an enforcement 

action. There are four aspects of Amtrak's proposed marketing that should prevent any 

consumer injury were Amtrak to resume offering third party products and services by 

way ofthe clear and conspicuous marketing described in your letter. 

First, consumers will be required to affirmatively select and add desired third 

party products and services to their shopping cart. In stark contrast to the aggressive, 

misleading tactics described in ROSCA § 2 (4) that caused consumers to be charged for 

products that they do not want, Amtrak's proposed practices enable consumers to select 

only the specific products and services they want. Likewise, Amtrak's proposed 

practices are designed to make consumers aware of what they are purchasing. Contra 

ROSCA § 2 (6) (millions of consumers were unaware that they had been enrolled in 

membership clubs). 

Second, when offering third party products, Amtrak will prominently display the 

names and logos of its third party partners, including rental car companies and hotels. 

Such clear and conspicuous disclosures make it unlikely that consumers will erroneously 

conclude that products are being offered by Amtrak itself or that the third party partners 

are affiliated with Amtrak. Contra ROSCA § 2 (4) and (5). 

Third, Amtrak will clearly and conspicuously disclose the total cost of each third 

party product. Thus, consumers will know exactly what products or services they are 

purchasing as well as how much they will be charged and by whom. Because Amtrak's 

proposed business practices do not obfuscate the existence or financial obligations ofthe 

third party transactions, the concerns identified in ROSCA §§ 2 (5) and (7) (that offers 

were designed to make consumers think they were part of the initial purchase, rather than 

a new transaction with a new seller, and that consumers do not expect to be charged when 

they have not submitted their billing information) are minimized. 
Ms. Jean Noonan 

Hudson Cook, LLP 

November 17, 2011 - Page 4 

Finally, Amtrak will constantly display a shopping cart, which details the 

consumer's entire itinerary and itemizes both train tickets and ancillary products. The 

website will allow consumers to remove ancillary products from the shopping cart 

through a simple one-click mechanism, enabling consumers to reconsider whether to do 

business with Amtrak's third party partners before completing the initial transaction. In 

contrast to the findings ofROSCA § 2 (8), Amtrak provides consumers with multiple 

opportunities to reject the third party transactions. 

As discussed above, Amtrak's proposed marketing does not rely on the 

problematic marketing tactics addressed in the ROSCA findings. Moreover, Amtrak's 

intended marketing will enable consumers to make informed purchasing decisions and 

minimize the risk of consumer harm. Accordingly, given your factual description of 

Amtrak's proposed marketing, we would not recommend an enforcement action under 

ROSCA. 

IJ 

Associate Director 

Division of Enforcement