12586 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Notices 

its independent dealers and installers 

with advertising and other promotional 

materials making the above 

unsubstantiated representations, 

respondent provided the means and 

instrumentalities to engage in deceptive 

practices. Thus, the complaint alleges 

that respondent engaged in unfair or 

deceptive practices in violation of 

Section 5(a) of the FTC Act. 

The proposed consent order contains 

three provisions designed to prevent 

respondent from engaging in similar 

acts and practices in the future. Part I 

addresses the marketing of windows. It 

prohibits respondent from making any 

representation that: (A) Consumers who 

replace their windows with 

respondent’s windows achieve up to or 

a specified amount or percentage of 

energy savings or reduction in heating 

and cooling costs; or (B) respondent 

guarantees or pledges that consumers 

who replace their windows with 

respondent’s windows will achieve up 

to or a specified amount or percentage 

of energy savings or reduction in 

heating and cooling costs; unless the 

representation is non-misleading and, at 

the time of making such representation, 

respondent possesses and relies upon 

competent and reliable scientific 

evidence to substantiate that all or 

almost all consumers are likely to 

receive the maximum represented 

savings or reduction. Further, if 

respondent represents, guarantees, or 

pledges that consumers achieve such 

energy savings or heating and cooling 

cost reductions under specified 

circumstances, it must: Disclose those 

circumstances clearly and prominently 

in close proximity to such 

representation, guarantee, or pledge; 

and substantiate that all or almost all 

consumers are likely to receive the 

maximum represented, guaranteed, or 

pledged savings or reduction under 

those circumstances (e.g., when 

replacing a window of a specific 

composition in a building having a 

specific level of insulation in a specific 

region). The performance standard 

imposed under this Part constitutes 

fencing-in relief reasonably necessary to 

ensure that any future energy savings or 

reduction claims are not deceptive. 

Part I of the order requires 

substantiation for representations 

including the words ‘‘up to’’ because the 

respondent may elect to make such 

representations in the future. The words 

‘‘up to’’ do not effectively qualify 

representations regarding the energy 

savings or cost reductions likely to be 

achieved through replacement 

windows. Therefore, Part I requires the 

same level of substantiation regardless 

of whether the covered representation 

includes the words ‘‘up to.’’ The FTC’s 

proposed consent order should not be 

interpreted as a general statement of 

how the Commission may interpret or 

take other action concerning 

representations including the words ‘‘up 

to’’ for other products or services in the 

future. 

Parts II and III address any product or 

service for which respondent makes any 

energy-related efficacy representation. 

Part II prohibits respondent from 

making any representation: (A) That any 

specific number or percentage of 

consumers who replace their windows 

with respondent’s windows achieve 

energy savings or reduction in heating 

and cooling costs; or (B) about energy 

consumption, energy savings, energy 

costs, heating and cooling costs, Ufactor, solar heat gain coefficient, Rvalue, K-value, insulating properties, 

thermal performance, or energy-related 

efficacy; unless the representation is 

non-misleading and substantiated by 

competent and reliable scientific 

evidence. Part III prohibits respondent 

from providing to others the means and 

instrumentalities with which to make 

any false, unsubstantiated, or otherwise 

misleading representation of material 

fact. It defines ‘‘means and 

instrumentalities’’ to mean any 

information, including any advertising, 

labeling, or promotional, sales training, 

or purported substantiation materials, 

for use by trade customers in their 

marketing of any such product or 

service. 

Parts IV though VII require 

respondent to: Keep copies of 

advertisements and materials relied 

upon in disseminating any 

representation covered by the order; 

provide copies of the order to certain 

personnel, agents, and representatives 

having responsibilities with respect to 

the subject matter of the order; notify 

the Commission of changes in its 

structure that might affect compliance 

obligations under the order; and file a 

compliance report with the Commission 

and respond to other requests from FTC 

staff. Part VIII provides that the order 

will terminate after twenty (20) years 

under certain circumstances. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed order. It is not intended to 

constitute an official interpretation of 

the complaint or the proposed order, or 

to modify the proposed order’s terms in 

any way. 

By direction of the Commission, 

Commissioner Rosch abstaining. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2012–4997 Filed 2–29–12; 8:45 am] 

BILLING CODE 6750–01–P 

FEDERAL TRADE COMMISSION 

[File No. 112 3001] 

Serious Energy, Inc.; Analysis of 

Proposed Consent Order To Aid Public 

Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

federal law prohibiting unfair or 

deceptive acts or practices or unfair 

methods of competition. The attached 

Analysis To Aid Public Comment 

describes both the allegations in the 

draft complaint and the terms of the 

consent order—embodied in the consent 

agreement—that would settle these 

allegations. 

DATES: Comments must be received on 

or before March 23, 2012. 

ADDRESSES: Interested parties may file a 

comment online or on paper, by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘Serious Energy, File No. 

112 3001’’ on your comment, and file 

your comment online at https:// 

ftcpublic.commentworks.com/ftc/ 

seriousenergyconsent, by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, mail or deliver your comment to 

the following address: Federal Trade 

Commission, Office of the Secretary, 

Room H–113 (Annex D), 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. 

FOR FURTHER INFORMATION CONTACT: 

James A. Kohm (202–326–2640) or 

Joshua S. Millard (202–326–2454), FTC, 

Bureau of Consumer Protection, 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

Commission Act, 38 Stat. 721, 15 U.S.C. 

46(f), and § 2.34 the Commission Rules 

of Practice, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

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 thirty (30) days. The following 

Analysis to Aid Public Comment 

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Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Notices 12587 

1 In particular, the written request for confidential 

treatment that accompanies the comment must 

include the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. See 

FTC Rule 4.9(c), 16 CFR 4.9(c). 

describes the terms of the consent 

agreement, and the allegations in the 

complaint. An electronic copy of the 

full text of the consent agreement 

package can be obtained from the FTC 

Home Page (for February 22, 2012), on 

the World Wide Web, at http:// 

www.ftc.gov/os/actions.shtm. A paper 

copy can be obtained from the FTC 

Public Reference Room, Room 130–H, 

600 Pennsylvania Avenue NW., 

Washington, DC 20580, either in person 

or by calling (202) 326–2222. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before March 23, 2012. Write ‘‘Serious 

Energy, File No. 112 3001’’ on your 

comment. Your comment—including 

your name and your state—will be 

placed on the public record of this 

proceeding, including, to the extent 

practicable, on the public Commission 

Web site, at http://www.ftc.gov/os/ 

publiccomments.shtm. As a matter of 

discretion, the Commission tries to 

remove individuals= home contact 

information from comments before 

placing them on the Commission Web 

site. 

Because your comment will be made 

public, you are solely responsible for 

making sure that your comment does 

not include any sensitive personal 

information, like anyone’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 that your comment does 

not include any sensitive health 

information, like medical records or 

other individually identifiable health 

information. In addition, do not include 

any ‘‘[t]rade secret or any commercial or 

financial information which is obtained 

from any person and which is privileged 

or confidential,’’ as provided in Section 

6(f) of the FTC Act, 15 U.S.C. 46(f), and 

FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). 

In particular, do not include 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

If you want the Commission to give 

your comment confidential treatment, 

you must file it in paper form, with a 

request for confidential treatment, and 

you have to follow the procedure 

explained in FTC Rule 4.9(c), 16 CFR 

4.9(c).1 Your comment will be kept 

confidential only if the FTC General 

Counsel, in his or her sole discretion, 

grants your request in accordance with 

the law and the public interest. 

Postal mail addressed to the 

Commission is subject to delay due to 

heightened security screening. As a 

result, we encourage you to submit your 

comments online. To make sure that the 

Commission considers your online 

comment, you must file it at https:// 

ftcpublic.commentworks.com/ftc/ 

seriousenergyconsent by following the 

instructions on the web-based form. If 

this Notice appears at http:// 

www.regulations.gov/#!home, you also 

may file a comment through that Web 

site. 

If you file your comment on paper, 

write ‘‘Serious Energy, File No. 112 

3001’’ on your comment and on the 

envelope, and mail or deliver it to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

Room H–113 (Annex D), 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. If possible, submit your 

paper comment to the Commission by 

courier or overnight service. 

Visit the Commission Web site at 

http://www.ftc.gov to read this Notice 

and the news release describing it. The 

FTC Act and other laws that the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives on or 

before March 23, 2012. You can find 

more information, including routine 

uses permitted by the Privacy Act, in 

the Commission’s privacy policy, at 

http://www.ftc.gov/ftc/privacy.htm. 

Analysis of Agreement Containing 

Consent Order To Aid Public Comment 

The Federal Trade Commission 

(‘‘FTC’’ or ‘‘Commission’’) has accepted, 

subject to final approval, an agreement 

containing a consent order from Serious 

Energy, Inc., a corporation 

(‘‘respondent’’). 

The proposed consent order has been 

placed on the public record for thirty 

(30) days for receipt of comments by 

interested persons. Comments received 

during this period will become part of 

the public record. After thirty (30) 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. 

This matter involves respondent’s 

marketing and sale of replacement 

windows for use in residences. 

According to the FTC complaint, 

respondent represented that consumers 

who replace their windows with 

SeriousWindows 600 Quantum 2 Series 

windows are likely to achieve 

residential energy savings of 49% or 

save 49% on residential heating and 

cooling costs. Additionally, according to 

the FTC complaint, respondent 

represented that consumers who replace 

their windows with SeriousWindows 

501 Series windows are likely to 

achieve residential energy savings of 

40% or save 40% on residential heating 

and cooling costs. The complaint alleges 

that respondent did not possess and rely 

upon a reasonable basis substantiating 

these representations when it made 

them. Many factors determine the 

savings homeowners can realize by 

replacing their windows, including the 

home’s geographic location, size, 

insulation package, and existing 

windows. Consumers who replace 

single or double-paned wood or vinylframed windows—common residential 

window types in the United States— 

with SeriousWindows replacement 

windows are not likely to achieve a 40% 

or 49% reduction in residential energy 

consumption or heating and cooling 

costs. The complaint also alleges that, 

by providing its independent dealers 

and installers with advertising and other 

promotional materials making the above 

unsubstantiated representations, 

respondent provided the means and 

instrumentalities to engage in deceptive 

practices. Thus, the complaint alleges 

that respondent engaged in unfair or 

deceptive practices in violation of 

Section 5(a) of the FTC Act. 

Some promotional materials 

challenged in the FTC’s complaint 

include the words ‘‘up to’’ in an 

apparent attempt to qualify 

representations that consumers who 

replace windows with respondent’s 

windows are likely to achieve specified 

amounts of residential energy savings or 

reduction in residential heating and 

cooling costs. In the context of specific 

ads in this case, the words ‘‘up to’’ do 

not effectively qualify such 

representations for replacement 

windows. The FTC’s complaint and the 

proposed consent order should not be 

interpreted as a general statement of 

how the Commission may interpret or 

take other action concerning 

representations including the words ‘‘up 

to’’ for other products or services in the 

future. 

The proposed consent order contains 

three provisions designed to prevent 

respondent from engaging in similar 

mstockstill on DSK4VPTVN1PROD with NOTICES

12588 Federal Register / Vol. 77, No. 41 / Thursday, March 1, 2012 / Notices 

acts and practices in the future. Part I 

addresses the marketing of windows. It 

prohibits respondent from making any 

representation that: (A) Consumers who 

replace their windows with 

respondent’s windows achieve up to or 

a specified amount or percentage of 

energy savings or reduction in heating 

and cooling costs; or (B) respondent 

guarantees or pledges that consumers 

who replace their windows with 

respondent’s windows will achieve up 

to or a specified amount or percentage 

of energy savings or reduction in 

heating and cooling costs; unless the 

representation is non-misleading and, at 

the time of making such representation, 

respondent possesses and relies upon 

competent and reliable scientific 

evidence to substantiate that all or 

almost all consumers are likely to 

receive the maximum represented 

savings or reduction. Further, if 

respondent represents, guarantees, or 

pledges that consumers achieve such 

energy savings or heating and cooling 

cost reductions under specified 

circumstances, it must: Disclose those 

circumstances clearly and prominently 

in close proximity to such 

representation, guarantee, or pledge; 

and substantiate that all or almost all 

consumers are likely to receive the 

maximum represented, guaranteed, or 

pledged savings or reduction under 

those circumstances (e.g., when 

replacing a window of a specific 

composition in a building having a 

specific level of insulation in a specific 

region). The performance standard 

imposed under this Part constitutes 

fencing-in relief reasonably necessary to 

ensure that any future energy savings or 

reduction claims are not deceptive. 

Parts II and III address any product or 

service for which respondent makes any 

energy-related efficacy representation. 

Part II prohibits respondent from 

making any representation: (A) That any 

specific number or percentage of 

consumers who replace their windows 

with respondent’s windows achieve 

energy savings or reduction in heating 

and cooling costs; or (B) about energy 

consumption, energy savings, energy 

costs, heating and cooling costs, Ufactor, solar heat gain coefficient, Rvalue, K-value, insulating properties, 

thermal performance, or energy-related 

efficacy; unless the representation is 

non-misleading and substantiated by 

competent and reliable scientific 

evidence. Part III prohibits respondent 

from providing to others the means and 

instrumentalities with which to make 

any false, unsubstantiated, or otherwise 

misleading representation of material 

fact. It defines ‘‘means and 

instrumentalities’’ to mean any 

information, including any advertising, 

labeling, or promotional, sales training, 

or purported substantiation materials, 

for use by trade customers in their 

marketing of any such product or 

service. 

Parts IV through VII require 

respondent to: Keep copies of 

advertisements and materials relied 

upon in disseminating any 

representation covered by the order; 

provide copies of the order to certain 

personnel, agents, and representatives 

having responsibilities with respect to 

the subject matter of the order; notify 

the Commission of changes in its 

structure that might affect compliance 

obligations under the order; and file a 

compliance report with the Commission 

and respond to other requests from FTC 

staff. Part VIII provides that the order 

will terminate after twenty (20) years 

under certain circumstances. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed order. It is not intended to 

constitute an official interpretation of 

the complaint or the proposed order, or 

to modify the proposed order’s terms in 

any way. 

By direction of the Commission, 

Commissioner Rosch abstaining. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2012–4999 Filed 2–29–12; 8:45 am] 

BILLING CODE 6750–01–P 

FEDERAL TRADE COMMISSION 

[File No. 112 3005] 

Long Fence & Home, LLLP; Analysis of 

Proposed Consent Order To Aid Public 

Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

federal law prohibiting unfair or 

deceptive acts or practices or unfair 

methods of competition. The attached 

Analysis to Aid Public Comment 

describes both the allegations in the 

draft complaint and the terms of the 

consent order—embodied in the consent 

agreement—that would settle these 

allegations. 

DATES: Comments must be received on 

or before March 23, 2012. 

ADDRESSES: Interested parties may file a 

comment online or on paper, by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘Long Fence & Home, File 

No. 112 3005’’ on your comment, and 

file your comment online at https:// 

ftcpublic.commentworks.com/ftc/ 

longfencehomeconsent, by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, mail or deliver your comment to 

the following address: Federal Trade 

Commission, Office of the Secretary, 

Room H–113 (Annex D), 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. 

FOR FURTHER INFORMATION CONTACT: 

James A. Kohm (202–326–2640) or 

Joshua S. Millard (202–326–2454), FTC, 

Bureau of Consumer Protection, 600 

Pennsylvania Avenue NW., Washington, 

DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 6(f) of the Federal Trade 

Commission Act, 38 Stat. 721, 15 U.S.C. 

46(f), and § 2.34 the Commission Rules 

of Practice, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

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 thirty (30) days. The following 

Analysis to Aid Public Comment 

describes the terms of the consent 

agreement, and the allegations in the 

complaint. An electronic copy of the 

full text of the consent agreement 

package can be obtained from the FTC 

Home Page (for February 22, 2012), on 

the World Wide Web, at http:// 

www.ftc.gov/os/actions.shtm. A paper 

copy can be obtained from the FTC 

Public Reference Room, Room 130–H, 

600 Pennsylvania Avenue NW., 

Washington, DC 20580, either in person 

or by calling (202) 326–2222. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before March 23, 2012. Write ALong 

Fence & Home, File No. 112 3005’’ on 

your comment. Your comment B 

including your name and your state B 

will be placed on the public record of 

this proceeding, including, to the extent 

practicable, on the public Commission 

Web site, at http://www.ftc.gov/os/ 

publiccomments.shtm. As a matter of 

discretion, the Commission tries to 

remove individuals’ home contact 

information from comments before 

placing them on the Commission Web 

site. 

Because your comment will be made 

public, you are solely responsible for 

making sure that your comment does 

not include any sensitive personal 

information, like anyone’s Social 

Security number, date of birth, driver’s 

license number or other state 

mstockstill on DSK4VPTVN1PROD with NOTICES