Notice Regarding Requests Relating to the Informal Hearing 

in Project No. P064202, the Negative Option Rule

The Commission received requests seeking extensions of time in connection with the 

informal hearing scheduled for January 16, 2024, in the above-referenced matter. These include 

both requests for extensions to provide documentary submissions1 and requests for 

postponement of the hearing date.2 One interested party filed a new and therefore untimely 

request to present orally at the hearing.3 These requests are denied for the reasons detailed 

below. Lastly, others asked the Commission to reconsider its determination that there are no 

genuinely disputed issues of material fact necessary to be resolved at the informal hearing.

4

 

These requests are denied without prejudice and referred to the informal hearing’s presiding 

officer who is responsible for handling them under the Commission’s Rules of Practice.

Pursuant to Section 18 of the FTC Act, 15 U.S.C. § 57a, the Commission published the 

notice of proposed rulemaking (NPRM) concerning the Negative Option Rule in the Federal 

Register on April 24, 2023, with a sixty-day comment period that ended on June 23, 2023.

5 In 

the NPRM, the Commission did not identify any disputed issues of material fact that need to be 

resolved at an informal hearing and solicited the public’s views on whether there are any such 

issues.

6

 The NPRM informed interested persons that they must submit any requests to present 

views orally by the conclusion of the notice and comment period, no later than June 23, 2023.

7

The Commission received six requests to present orally as well as two requests that the 

Commission designate potentially disputed issues of material fact.

8

 

On December 8, 2023, the Commission published in the Federal Register an initial and 

final notice of informal hearing, which scheduled the informal hearing for January 16, 2024.9 In 

that notice, the Commission explained its finding that there are no disputed issues of material 

fact necessary to be resolved.

10 Hearing participants were given until December 22, 2023, to 

provide documentary submissions. These periods afforded the public a meaningful opportunity 

to provide the Commission with written comments regarding its rulemaking proposal. 

Generally, agencies must provide 15 days’ advance notice of a hearing. See 44 U.S.C. § 1508. 

1 Cmt. of the Interactive Advertising Bureau (“IAB”) (Dec. 22, 2023), https://www.regulations.gov/comment/FTC2023-0073-0007; Cmt. of the Performance-Driven Marketing Institute (“PDMI”) (Dec. 22, 2023), 

https://www.regulations.gov/comment/FTC-2023-0073-0005; Cmt. of the U.S. Chamber of Commerce (Dec. 22, 

2023), https://www.regulations.gov/comment/FTC-2023-0073-0006; Cmt. of NCTA-the Internet & Television 

Association (“NCTA”) (Dec. 22, 2023), https://www.regulations.gov/comment/FTC-2023-0073-0008; and Cmt. of 

BSA-the Software Alliance (“BSA”) (Dec. 20, 2023), https://www.regulations.gov/comment/FTC-2023-0073-0002. 2 Cmts. of IAB, NCTA. 3 Cmt. of BSA. 4 Cmts. of IAB, NCTA, PDMI. 5 See Fed. Trade Comm’n, Notice of Proposed Rulemaking to Amend Negative Option Rule, 88 Fed. Reg. 24716

(Apr. 24, 2023), https://www.federalregister.gov/documents/2023/04/24/2023-07035/negative-option-rule. 6 88 Fed. Reg. at 24730. 7 88 Fed. Reg. at 24716. 8 See Fed. Trade Comm’n, Initial and Final Notice of Informal Hearing on Negative Option Rule, 88 Fed. Reg.

85525, 85525-26 (Dec. 8, 2023), https://www.federalregister.gov/documents/2023/12/08/2023-26946/negativeoption-rule. 9 88 Fed. Reg. at 85525. 10 See 88 Fed. Reg. at 85528.
Here, interested parties had two months to consider whether they wanted to present views orally, 

after which the Commission provided 39 days’ advance notice of the informal hearing. Based on 

the facts and law, the Commission declines to expand or extend the period for documentary 

submissions, postpone the hearing date, or allow additional hearing participants. 

Commission Rule 1.13(a)(2)(viii) allows the presiding officer to rule on all requests 

“made during the course of the informal hearing” pursuant to the presiding officer’s authority to 

oversee “the orderly conduct of the informal hearing.” 16 C.F.R. § 1.13(a)(2)(viii). The presiding 

officer may also add or modify designated issues of material fact that are necessary to be 

resolved. See id. § 1.13(b)(1)(ii) (“The presiding officer may at any time on the presiding 

officer’s own motion or pursuant to a written petition by interested persons, add or modify any 

issues designated pursuant to § 1.12(a).”). The requests made to the Commission to add 

designated issues of material fact are therefore denied without prejudice and referred to the 

presiding officer to address in the first instance under the Rules of Practice. Requests from 

participants may be made to the presiding officer at the informal hearing, or in advance pursuant 

to Commission Rule 4.2(d)(1), 16 C.F.R. § 4.2(d)(1). Write “Negative Option Rule (16 CFR 

part 425) (Project No. P064202)” on your submission and file it online through 

https://www.regulations.gov/docket/FTC-2024-0001. Or, if you prefer, send via overnight 

service to: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue, NW, 

Suite CC-5610 (Annex N), Washington, DC 20580. 

By the Commission. 

April J. Tabor 

Secretary

SEAL

ISSUED: January 10, 2024