Concurring Statement of Commissioner Christine S. Wilson

In re MoviePass, Inc. 

FTC File No. 1923000

June 7, 2021

I support the complaint and consent in this matter challenging the respondents’ marketing of its 

movie subscription product. Specifically, the respondents offered subscribers “unlimited movies” 

but deployed a variety of tactics to prevent consumers from enjoying unlimited benefits, as 

recounted in the complaint, rendering the representations deceptive. I also concur with the 

inclusion of a count challenging violations of the Restore Online Shoppers’ Confidence Act, 15 

U.S.C. § 8403 (ROSCA). The conduct alleged in this case, in my view, violates the plain 

language of the statute. 

Section 8403 of ROSCA states that:

It shall be unlawful for any person to charge or attempt to charge any consumer for any 

goods or services sold in a transaction effected on the Internet through a negative option 

feature (as defined in the Federal Trade Commission's Telemarketing Sales Rule in part 310 

of title 16, Code of Federal Regulations), unless the person—

(1) provides text that clearly and conspicuously discloses all material terms of the 

transaction before obtaining the consumer's billing information;

(2) obtains a consumer's express informed consent before charging the consumer's 

credit card, debit card, bank account, or other financial account for products or 

services through such transaction; and

(3) provides simple mechanisms for a consumer to stop recurring charges from being 

placed on the consumer's credit card, debit card, bank account, or other financial 

account.

The TSR defines “negative option feature” as “an offer or agreement to sell or provide any goods 

or services, a provision under which the customer’s silence or failure to take an affirmative 

action to reject goods or service or to cancel the agreement is interpreted by the seller as 

acceptance of the offer.” 16 C.F.R. §310.2(w).

MoviePass Unlimited was a month-to-month arrangement that consumers could cancel at any 

time. The FTC for decades has interpreted these types of recurring agreements as negative option 

plans. Each month, the consumer’s failure to cancel implies consent to be charged for an 

additional month. In other words, the seller obtains consent for the recurring charge using a 

negative option.

The “unlimited” aspect of the MoviePass subscription constituted a material term of the pass that 

the company marketed and sold. Notably, as alleged in the complaint, MoviePass highlighted 

this term as a primary selling point – touting “MoviePass Unlimited” and stating “Enjoy a new 

movie every day.” MoviePass did not disclose that it would prevent consumers from actually 

viewing one movie per day or that it would implement ticket verification procedures to frustrate

consumers’ attempts to use their passes, as described in the Commission’s complaint.. In essence, 

MoviePass throttled subscribers’ movie consumption. The terms or limits to the purportedly 
unlimited subscription that were employed to achieve this throttling effect almost certainly 

would be considered material to consumers’ decisions to purchase the subscription. 

ROSCA Section 8403 plainly states that for goods or services sold through a negative option 

feature, the seller must “clearly and conspicuously disclose all material terms of the transaction.” 

The respondents here did not disclose all material terms. Therefore, these facts, as alleged, in my 

view support a violation of ROSCA. 

I am mindful that this settlement marks the first time the Commission has alleged a violation of 

ROSCA where the undisclosed material terms do not relate specifically to the negative option 

feature but instead to the underlying good or service marketed through that feature. But I believe

that the facts of this case fall well within the bounds of the conduct that Congress contemplated 

challenging when promulgating the statute. In fact, the conduct described in the complaint fits 

neatly within the plain language of the statue. 

Given the inaugural use of ROSCA for this purpose, it is appropriate that the Commission is 

foregoing civil penalties. Businesses need predictability about the manner in which laws will be 

enforced and should be afforded the ability to contest new uses of authority. This case will serve 

as notice to the market, and future violations of this type may well warrant civil penalties. 

The Supreme Court’s recent decision in AMG1 has eliminated the FTC’s ability to seek equitable 

monetary relief under Section 13(b) of the FTC Act to compensate consumers. The temptation to 

test the limits of our remaining sources of authority is likely to be strong. On numerous 

occasions, I have expressed concern about novel interpretations of our authority that exceed the 

boundaries of underlying statutes and corresponding Congressional intent.2 And I will scrutinize 

carefully any future attempts to expand ROSCA, or any other authority entrusted to the 

Commission, beyond the plain language. Here, however, I am satisfied that the challenged 

conduct falls well within the four corners of the statute and therefore conclude that, under the 

facts alleged, including a ROSCA count is not an overreach. 

 1 AMG v. FTC, slip op No. 19-508 (Apr. 22, 2021), https://www.supremecourt.gov/opinions/20pdf/19-

508_l6gn.pdf. 2 Statement of Commissioner Christine S. Wilson Concurring in Part, Dissenting in Part, Notice of Proposed 

Rulemaking related to Made in USA Claims (June 22, 2020) (expressing concern that the proposed rule exceeds the 

scope of authority Congress granted the FTC),

https://www.ftc.gov/system/files/documents/public_statements/1577099/p074204musawilsonstatementrev.pdf; 

Separate Statement of Commissioner Christine S. Wilson Concurring in Part, Dissenting in Part, FTC v. Avant, LLC

(Apr. 15, 2019) (dissenting with respect to the maiden use of the Telemarketing Sales Rule (TSR) provision related 

to novel payments (specifically remotely created checks) in a non-fraud case),

https://www.ftc.gov/system/files/documents/public_statements/1514073/avant_inc_1623090_separate_statement_of

_christine_s_wilson_4-15-19.pdf. In the Avant matter, the Commission sought to impose liability under the TSR 

against a legitimate company, selling legitimate products, in circumstances not contemplated when the Rule was 

promulgated to address fraudulent businesses abusing these types of payments. Id.