Federal Register / Vol. 88, No. 235 / Friday, December 8, 2023 / Proposed Rules 85525 

1See FTC, Negative Option Rule, https://

www.regulations.gov/document/FTC-2023-0033- 

0001/comment. 

2The FTC Act provides that ‘‘an interested person 

is entitled to present his position orally or by 

documentary submission (or both).’’ 15 U.S.C. 

57a(c)(2)(A). 

3 16 CFR 1.11(e)(1)–(3). 

4All but one—TechFreedom—identified their 

interest in the proceeding either as industry groups 

or as private companies with vested interests in the 

outcome of this rulemaking. See TechFreedom 

comment (June 23, 2023), https://

www.regulations.gov/comment/FTC-2023-0033- 

0872. 

5 IFA identified itself as ‘‘the world’s oldest and 

largest organization representing franchising’’ 

whose members include ‘‘franchise companies, 

individual franchises, and companies that support 

franchise companies,’’ explaining that ‘‘IFA is 

particularly concerned on [sic] the potential adverse 

effects of the proposed amendments to the Rule on 

franchised small businesses.’’ IFA comment at 1 

(June 23, 2023), https://www.regulations.gov/ 

comment/FTC-2023-0033-0856. 

6Although TechFreedom failed to identify its 

interests in the rulemaking proceeding, according to 

a recent internet search, ‘‘TechFreedom is a nonprofit, non-partisan technology think tank launched 

in 2011, . . . [f]ocusing on issues of internet 

freedom and technological progress.’’ See 

TechFreedom, About, https://techfreedom.org/ 

about/ (last visited Nov. 30, 2023). 

7PDMI explained that its more than 130 member 

companies, doing business in performance and 

direct-to-consumer marketing, ‘‘market their goods 

or services using the types and styles of marketing 

covered by the FTC’s proposed Rule changes.’’ 

PDMI comment at 1 (June 23, 2023), https://

www.regulations.gov/comment/FTC-2023-0033- 

0864. 

8NCTA stated that its members provide 

consumers with ‘‘cable, broadband, voice, video 

streaming, and other services’’ and ‘‘is the principal 

trade association for the U.S. cable industry,’’ and 

Continued 

Procedures,’’ prior to any FAA final 

regulatory action. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend 14 CFR part 71 as 

follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g); 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order JO 7400.11H, 

Airspace Designations and Reporting 

Points, dated August 11, 2023, and 

effective September 15, 2023, is 

amended as follows: 

Paragraph 6005 Class E Airspace Areas 

Extending Upward From 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

ANM UT E5 Green River, UT [New] 

Green River Municipal Airport, UT 

(Lat. 38°57′42′′ N, long. 110°13′38′′ W) 

That airspace extending upward from 700 

feet above the surface within a 5.5-mile 

radius of the airport, from the 145° bearing 

clockwise to the 278° bearing within 6.8 

miles southwest of the airport, and from the 

278° bearing clockwise to the 337° bearing 

within 8.5 miles northwest of the airport. 

* * * * * 

Issued in Des Moines, Washington, on 

November 30, 2023. 

B.G. Chew, 

Group Manager, Operations Support Group, 

Western Service Center. 

[FR Doc. 2023–26798 Filed 12–7–23; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 425 

RIN 3084–AB60 

Negative Option Rule 

AGENCY: Federal Trade Commission. 

ACTION: Initial notice of informal 

hearing; final notice of informal hearing; 

list of Hearing Participants; requests for 

submissions from Hearing Participants. 

SUMMARY: The Federal Trade 

Commission (‘‘FTC’’ or ‘‘Commission’’) 

has proposed amendments to the ‘‘Rule 

Concerning the Use of Prenotification 

Negative Option Plans,’’ to be retitled 

the ‘‘Rule Concerning Subscriptions and 

Other Negative Option Plans’’ 

(‘‘Negative Option Rule’’ or ‘‘Rule’’). 

The proposed changes are calculated to 

combat unfair or deceptive business 

practices, including recurring charges 

for products or services consumers do 

not want and cannot cancel without 

undue difficulty. In response to the 

notice of proposed rulemaking, several 

commenters requested an informal 

hearing. The informal hearing will be 

conducted virtually on January 16, 

2024, at 10 a.m. Eastern, and the 

Commission’s Chief Presiding Officer, 

the Chair, has appointed Administrative 

Law Judge for the Securities and 

Exchange Commission, the Honorable 

Carol Fox Foelak, to serve as the 

presiding officer of the informal hearing. 

DATES: The informal hearing will be 

conducted virtually starting at 10 a.m. 

Eastern on January 16, 2024. 

ADDRESSES: Hearing participants may 

submit their oral presentations in 

writing or file supplementary 

documentary submissions online or on 

paper by following the instructions in 

Part IV of the SUPPLEMENTARY

INFORMATION section below. Write 

‘‘Negative Option Rule (16 CFR part 

425) (Project No. P064202)’’ on your 

request or documentary submission, and 

file it online through https://

www.regulations.gov. If you prefer to 

file your request or documentary 

submission on paper, please send it via 

overnight service to the following 

address: Federal Trade Commission, 

Office of the Secretary, 600 

Pennsylvania Avenue NW, Suite CC– 

5610 (Annex N), Washington, DC 20580. 

FOR FURTHER INFORMATION CONTACT: 

Katherine Johnson, Attorney, Division 

of Enforcement, Bureau of Consumer 

Protection, Federal Trade Commission, 

600 Pennsylvania Avenue NW, 

Washington, DC 20580 (phone: 202– 

326–2185). 

SUPPLEMENTARY INFORMATION: 

I. Background 

Following public comment on an 

advance notice of proposed rulemaking 

(ANPR), 84 FR 52393 (Oct. 2, 2019), the 

FTC proposed amending the Negative 

Option Rule as described in a notice of 

proposed rulemaking (NPRM), 88 FR 

24716 (Apr. 24, 2023). The Commission 

posted 1,163 public comments in 

response to the NPRM.1

II. The Requests for an Informal 

Hearing; Presentation of Oral 

Submissions 

Section 18 of the Federal Trade 

Commission Act, 15 U.S.C. 57a, and the 

Commission’s Rules of Practice, 16 CFR 

1.11(e), provide interested persons the 

opportunity to make an oral statement at 

an informal hearing upon request.2 To 

make such a request, a commenter must 

submit, no later than the close of the 

comment period for the NPRM, (1) a 

request to make an oral submission, if 

desired; (2) a statement identifying the 

interested person’s interests in the 

proceeding; and (3) any proposal to add 

disputed issues of material fact to be 

addressed at the hearing.3

The Commission received six 4 such 

requests in response to the NPRM from: 

1. International Franchise Association 

(IFA) 5

2. TechFreedom 6

3. Performance Driven Marketing 

Institute (PDMI) 7

4. NCTA—The Internet & Television 

Association (NCTA) 8


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85526 Federal Register / Vol. 88, No. 235 / Friday, December 8, 2023 / Proposed Rules 

expressed concern the ‘‘proposed rule will have 

unintended consequences that would burden, 

confuse, and harm consumers, and would prohibit 

Members from providing consumers with key 

information that could inform their decisions about 

whether to modify or cancel their services.’’ NCTA 

comment at 1–2 (June 23, 2023), https://

www.regulations.gov/comment/FTC-2023-0033- 

0858. 

9FrontDoor stated that it and its subsidiaries 

‘‘have served millions of customers for over fifty 

years by offering comprehensive home repair and 

maintenance services through an extensive network 

of pre-qualified professional contractors’’ and that 

many of the contracts it offers come with an 

automatic renewal option. FrontDoor comment at 1 

(June 23, 2023), https://www.regulations.gov/ 

comment/FTC-2023-0033-0862. 

10 IAB represents ‘‘over 700 leading media 

companies, brand marketers, agencies, and 

technology companies’’ responsible for ‘‘selling, 

delivering, and optimizing digital advertising and 

marketing campaigns,’’ and whose members 

‘‘account for 86 percent of online advertising 

expenditures’’ in the United States. IAB comment 

at 1 (June 23, 2023), https://www.regulations.gov/ 

comment/FTC-2023-0033-1000. 

11See infra Part IV. These interested persons are 

referred to herein as the ‘‘Hearing Participants.’’ 

12Commission Rule 1.12(a)(5) requires the initial 

notice of informal hearing to include a ‘‘list of the 

groups of interested persons determined by the 

Commission to have the same or similar interests 

in the proceeding.’’ 16 CFR 1.12(a)(5). 

13 88 FR 24716, 24730 (Apr. 24, 2023). 

14FrontDoor requested that the Commission 

‘‘hold an informal hearing to engage in further 

factfinding on the disputed issues of material fact 

that have been raised in comments’’ but FrontDoor 

failed to identify any specific disputed issues of 

material fact as required by Commission Rule 

1.11(e)(3). FrontDoor comment at 3. 

15NCTA comment at 35–37. 16 IAB comment at 20–21. 

5. FrontDoor 9

6. Interactive Advertising Bureau 

(IAB) 10

The Commission finds that these 

requests were adequate and therefore 

will hold an informal hearing. These 

commenters constitute the 

Commission’s list of interested persons, 

pursuant to Commission Rule 1.12(a)(4), 

who will make oral presentations or 

additional submissions (or both) during 

the hearing.11 The Commission has not 

determined whether there are any 

groups of interested persons with the 

same or similar interests in the 

proceeding, so it does not include any 

such list in this Notice.12

III. Disputed Issues of Material Fact; 

Final Notice 

In the NPRM, the Commission did not 

identify any disputed issues of material 

fact that need to be resolved at an 

informal hearing. The Commission may 

still do so, however, after the NPRM, 

either on its own initiative or in 

response to a persuasive showing from 

a commenter.13 Two interested persons, 

NCTA and IAB, proposed that the 

Commission consider several potential 

disputed issues of material fact.14

Specifically, NCTA proposed the 

following (reprinted verbatim): 15

• Is there substantial evidence that (1) 

broadband, cable, voice (including both 

VoIP and mobile wireless services), and 

video streaming service providers have 

failed to provide consumers with 

material information relating to their 

services and any negative option 

features and (2) such practices are 

prevalent? 

• Is there substantial evidence that (1) 

broadband, cable, voice (including both 

VoIP and mobile wireless services), and 

video streaming service providers have 

imposed unwanted services on 

consumers through deceptive 

statements made during enrollment and 

(2) such practices are prevalent? 

• Is there substantial evidence that (1) 

broadband, cable, voice (including both 

VoIP and mobile wireless services), and 

video streaming service providers have 

imposed unwanted services on 

consumers through deceptive 

communications when consumers seek 

to cancel one or more of their services 

and (2) such practices are prevalent? 

• Is there substantial evidence that (1) 

broadband, cable, voice (including both 

VoIP and mobile wireless services), and 

video streaming service providers have 

misrepresented their billing practices 

relating to automatic renewal and (2) 

such practices are prevalent? 

• Is there substantial evidence that (1) 

broadband, cable, voice (including both 

VoIP and mobile wireless services), and 

video streaming service providers have 

failed to obtain consent from consumers 

before enrolling them for automatically 

renewing services and (2) such practices 

are prevalent? 

• Is there substantial evidence that (1) 

consumers have difficulty cancelling 

their broadband, cable, voice, or video 

streaming services and (2) such 

difficulty is due to practices and 

processes of providers that are 

prevalent? 

• Is there substantial evidence that (1) 

a click-to-cancel approach for multifaceted, complex, and often bundled 

broadband, cable, voice, and video 

streaming services benefits consumers 

and (2) such benefits outweigh the 

downsides and consumer harms? 

• Is there substantial evidence that (1) 

consumers often forget they have 

purchased broadband, cable, voice, or 

video streaming services, warranting an 

annual notice to remind them they are 

not incurring charges for services they 

do not want to use and (2) such 

practices are prevalent? 

• Is there substantial evidence that 

broadband, cable, voice, or video 

streaming service transactions have 

distinctive characteristics which place 

consumers in a disadvantaged 

bargaining position and leave them 

especially vulnerable to prevalent unfair 

and deceptive practices? 

• Is there substantial evidence that (1) 

consumers are burdened by listening to 

‘‘saves’’ or ‘‘upsells’’ and (2) 

burdensome ‘‘saves’’ or ‘‘upsells’’ are 

prevalent? 

• Do consumers who hear a ‘‘save’’ 

often decide to retain or modify service? 

• If the proposed Rule is adopted, 

will (1) the ‘‘click to cancel’’ mechanism 

as required by proposed section 425.6(c) 

impose significant costs on businesses 

that must change systems and user 

interfaces and (2) these costs on 

businesses result in higher costs for 

consumers? 

• If the proposed Rule is adopted, 

will (1) a prohibition on ‘‘saves’’ as 

required by proposed section 425.6(d) 

impose significant costs on businesses 

and (2) these costs on businesses result 

in higher costs or less access to 

discounts for consumers? 

IAB,16 for its part, indicated that it 

‘‘intended to raise several disputed 

issues of material fact,’’ first with 

respect to the compliance costs and the 

accuracy of the Commission’s estimates 

as follows (reprinted verbatim): 

• Whether the costs associated with 

implementing these new requirements 

will be significantly higher than the FTC 

estimates; and 

• Whether the NPRM makes 

compliance easier for businesses, in 

light of the lack of preemption of state 

law. 

And, as ‘‘to each of the major 

substantive sections in the NPRM’’: 

• Whether the disclosure 

requirements proposed by the NPRM 

improve customer understanding of the 

terms of an automatic renewal across 

devices and contexts; 

• Whether the double opt-in consent 

requirement improves consumer 

understanding, even if sellers disclose 

the autorenewal feature per the 

proposed disclosure requirements; 

• Whether a cancellation flow that 

complies with the Commission’s 

requirements (i.e., that asks the 

consumer for consent to receive a save) 

is easier for a consumer to navigate and 

understand than a cancellation flow that 

simply provides the offer or discount; 

• Whether consumers are actually 

confused or burdened by a reasonable 

number of ‘‘saves’’; and 

• Whether the deceptive practices 

identified in the rulemaking record are 

limited to certain media (e.g., phone or 

in-person). 

To be appropriate for crossexamination or rebuttal, a disputed 

issue of material fact must raise 


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17Commission Rule 1.12(b)(1) (‘‘An issue for 

cross-examination or the presentation of rebuttal 

submissions, is an issue of specific fact in contrast 

to legislative fact.’’). This Commission Rule follows 

directly from the legislative history of the adoption 

of Section 18 of the FTC Act: ‘‘The only disputed 

issues of material fact to be determined for 

resolution by the Commission are those issues 

characterized as issues of specific fact in contrast 

to legislative fact. It was the judgment of the 

conferees that more effective, workable and 

meaningful rules will be promulgated if persons 

affected by such rules have the opportunity 

afforded by the bill, by cross-examination and 

rebuttal evidence or other submissions, to challenge 

the factual assumptions on which the Commission 

is proceeding and to show in what respect such 

assumptions are erroneous.’’ H.R. Rep. No. 93– 

1606, at 34 (Dec. 16, 1974) (Conf. Rep.). As further 

explained in Association of National Advertisers, 

Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979), the 

distinction between ‘‘specific fact’’ and ‘‘legislative 

fact’’ grew out of a recommendation from the 

Administrative Conference of the United States 

(ACUS): 

Conference Recommendation 72–5 is addressed 

exclusively to agency rulemaking of general 

applicability. In such a proceeding, almost by 

definition, adjudicative facts are not at issue, and 

the agency should ordinarily be free to, and 

ordinarily would, proceed by the route of written 

comments, supplemented, perhaps, by a legislativetype hearing. Yet there may arise occasionally in 

such rulemaking proceedings factual issues which, 

though not adjudicative, nevertheless justify 

exploration in a trial-type format because they are 

sufficiently narrow in focus and sufficiently 

material to the outcome of the proceeding to make 

it reasonable and useful for the agency to resort to 

trial-type procedure to resolve them. These are what 

the Recommendation refers to as issues of specific 

fact. Id. at 1164. 

18 16 CFR 1.13(b) (addressing issues that ‘‘must’’ 

be considered for cross-examination or rebuttal are 

only those disputed issues of fact the Commission 

determines ‘‘material’’ and ‘‘necessary to be 

resolved’’). See also 15 U.S.C. 57a(c)(2)(B) 

(providing that cross-examination and rebuttal are 

available only ‘‘if the Commission determines that 

there are disputed issues of material fact it is 

necessary to resolve’’). 

19See, e.g., H.R. Rep. No. 93–1107, 93d Cong., 2d 

Sess., reprinted in [1974] U.S.C.C.A.N. 7702, 7728; 

Ass’n of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 

1151, 1163 (D.C. Cir. 1979) (quoting H.R. Rep. No. 

93–1606, at 33 (1974) (Conf. Report)). 

20As explained in the legislative history: 

The words ‘disputed issues of material fact’ are 

intended to describe and limit the scope of crossexamination in a rulemaking proceeding. Thus, the 

right of participants in the proceeding to crossexamine Commission witnesses does not include 

cross-examination on issues as to which there is not 

a bona fide dispute. In this connection, the 

Committee considers the rules of summary 

judgment applied by the courts analogous. Where 

the weight of the evidence is such that there can 

be no bona fide dispute over the facts, summary 

judgment is proper. Similarly, in such a situation 

cross-examination would not be permitted; neither 

is a participant entitled to cross-examination where 

the disputed issues do not involve material facts. 

This language in the bill is used to distinguish facts 

which might be relevant to the proceeding but not 

of significant enough import to rise to the level of 

materiality. The word material is used here with the 

same meaning it is given under the common law 

rules of evidence. Also of importance is the word 

‘fact.’ Cross-examination is not required regarding 

issues in rulemaking proceedings which are not 

issues of fact. Examples of such issues are matters 

of law or policy or matters whose determination has 

been primarily vested by Congress in the Federal 

Trade Commission. Thus, unless the subject matter 

with regard as to which cross-examination is sought 

relates to disputed issues, which are material to the 

proposed rule and which are fact issues, there is no 

right to cross-examination on the part of any party 

to the proceeding. H.R. REP. No. 93–1107, 93d 

Cong., 2d Sess., reprinted in [1974] U.S. CODE 

CONG. & AD. NEWS 7702, 7728. 

21 Id. See also Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986) (explaining the standard 

as ‘‘[o]nly disputes over facts that might affect the 

outcome’’); Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 586 (1986). 

22 15 U.S.C. 57a(b)(3). 

23 88 FR 24716, 24725 & n.60 (collecting cases). 

See also ANPR, 84 FR 52393, 52396 (noting that 

‘‘recent cases and the high volume of ongoing 

complaints suggests there is prevalent, unabated 

consumer harm in the marketplace’’ and soliciting 

comment on prevalence). 

24 15 U.S.C. 57a(d)(1). ‘‘The contents and 

adequacy of any statement required’’ in the 

statement of basis and purpose, such as the 

statement as to prevalence, ‘‘shall not be subject to 

judicial review in any respect.’’ Id. 57a(e)(5)(C). 

25Pa. Funeral Dirs. v. FTC, 41 F.3d 81, 87 (3d Cir. 

1994). 

26 Id., 41 F.3d at 85 (citing cases). 

‘‘specific facts’’ and not ‘‘legislative 

facts’’ 17 and must be not only 

‘‘material’’ but also ‘‘necessary to be 

resolved.’’ 18 The relevant legislative 

history explains ‘‘disputed issues of 

material fact necessary to be resolved’’ 

should be interpreted narrowly.19 As 

explained below, the Commission has 

reviewed the two interested persons’ 

proposed disputed issues of material 

fact and has determined that they are 

not ‘‘disputed,’’ ‘‘material,’’ or ‘‘specific 

facts’’ ‘‘necessary to be resolved.’’ 

In this context, ‘‘disputed’’ and 

‘‘material’’ are given the same meaning 

as in the standard for summary 

judgment.20 As in summary judgment, 

the challenging party must do more than 

simply assert there is a dispute 

regarding the Commission’s findings. If 

those findings are otherwise adequately 

supported by record evidence, they 

must come forward with sufficient 

evidence to show there is a genuine, 

bona fide dispute over material facts 

that will affect the outcome of the 

proceeding.21 As discussed below, 

NCTA and IAB proposed disputed 

issues of material fact challenging the 

Commission’s findings as to (1) the 

prevalence of unfair or deceptive acts or 

practices in negative option marketing; 

(2) the sufficiency of the evidence 

supporting the various Rule provisions 

and the Commission’s statements on the 

proposed Rule’s economic impact. 

However, these findings are supported 

by ample evidence in the record, and 

neither interested person identified any 

evidence challenging the FTC’s 

conclusions. 

As to prevalence, the Commission 

must make two findings on prevalence 

if it promulgates a rule under Section 

18. First, it must explain its ‘‘reason to 

believe that the unfair or deceptive acts 

or practices which are the subject of the 

proposed rulemaking are prevalent’’ 

when, after an ANPR, it issues an 

NPRM.22 The Commission did that.23

The second is that, in the statement of 

basis and purpose to accompany any 

final rule, the Commission must include 

‘‘a statement as to the prevalence of the 

acts or practices treated by the rule.’’ 24

The Commission’s prevalence findings 

need only have ‘‘some basis or 

evidence’’ to show ‘‘the practice the 

FTC rule seeks to regulate does indeed 

occur.’’ 25 The Commission based its 

first prevalence finding on its extensive 

record of law enforcement cases 

challenging deceptive or unfair negative 

option practices. The robust rulemaking 

record also included comments from 

State Attorneys General, who also have 

vast experience in this area, as well as 

comments from consumer advocates 

and individual consumers. There is no 

genuine dispute as to the fact that, if the 

Commission decides, after the informal 

hearing, to promulgate a final rule, it 

will be able to include a statement as to 

the prevalence of the negative-option 

practices treated by the rule with far 

more than some basis or evidence that 

they do indeed occur. 

As to evidentiary sufficiency, the 

Commission’s factual findings are 

supported by substantial evidence if the 

record contains ‘‘such relevant evidence 

as a reasonable mind might accept as 

adequate to support a conclusion.’’ 26

Again, based on evidence cited in the 

NPRM and from FTC cases, State 

Attorneys General, and commenters, the 

Commission has more than adequate 

evidence from which one could find 

unfair or deceptive practices in negative 

option marketing. No interested person 

identified any evidence showing 

otherwise. For instance, both NCTA and 

IAB suggested there is insufficient 

evidence to support the Commission’s 

initial finding that costs imposed by 

implementing the Rule’s disclosure and 

other requirements are not significant. 

However, this statement, without more, 

does not rise to the level of a bona fide 

dispute, and no reasonable factfinder 

could conclude the Commission has 

failed to meet the applicable standard 

given its vast experience in this area and 

the extensive rulemaking record. 

Further, NCTA’s and IAB’s proposed 

disputed issues of material fact 

challenge the Commission’s findings as 

to quintessentially ‘‘legislative facts’’— 

‘‘facts which help the tribunal 

determine the content of law and of 


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27Ass’n of Nat’l Advertisers, 627 F.2d at 1161–62 

(D.C. Cir. 1979) (internal citation omitted). 

28 Id. at 1162. 

29See generally supra nn.18–22. 

30 If any interested person seeks to have disputed 

issues of material fact designated by the presiding 

officer, the interested person may make such 

request pursuant to Commission Rule 1.13(b)(1)(ii), 

16 CFR 1.13(b)(1)(ii). 

31 16 CFR 1.12(b). 

32 16 CFR 1.12(c). 

33 Id. 

policy.’’ 27 Because such facts ‘‘combine 

empirical observation with application 

of administrative expertise to reach 

generalized conclusions, they need not 

be developed through evidentiary 

hearings.’’ 28 Thus, because these do not 

raise questions of ‘‘specific fact,’’ they 

do not warrant cross-examination and 

rebuttal submissions.29

Accordingly, the Commission finds 

that the issues raised by NCTA and IAB 

are not genuinely disputed or material 

within the narrow meaning set forth in 

the case law and legislative history and 

that they do not require a ‘‘trial-type’’ 

proceeding for their proper 

determination because they are not 

issues of ‘‘specific fact.’’ Therefore, the 

Commission finds that there are no 

‘‘disputed issues of material fact’’ to 

resolve at the informal hearing 30 and no 

need for cross-examination or rebuttal 

submissions.31

This initial notice of informal hearing 

also serves as the ‘‘final notice of 

informal hearing.’’ 32 A final notice of 

informal hearing is limited in its 

substance to matters that arise only 

when the Commission designates 

disputed issues of material fact: who 

will conduct cross-examination; 

whether any interested persons with 

similar interests will be grouped 

together for such purposes; and who 

will make rebuttal submissions.33

Because cross-examination and 

submission of rebuttal evidence are not 

anticipated to occur in this informal 

hearing, no separate final notice of 

informal hearing is necessary. 

IV. List of Hearing Participants; Making 

an Oral Statement; Requests for 

Documentary Submissions 

Pursuant to Commission Rule 

1.12(a)(4), 16 CFR 1.12(a)(4), the 

following is the list of interested 

persons (‘‘Hearing Participants’’) who 

will have the opportunity to make oral 

presentations at the informal hearing: 

1. International Franchise Association 

(IFA) 

2. TechFreedom 

3. Performance Driven Marketing 

Institute (PDMI) 

4. NCTA—The Internet & Television 

Association (NCTA) 

5. FrontDoor 

6. Interactive Advertising Bureau (IAB) 

Oral statements will be limited to 10 

minutes, although they may be 

supplemented by documentary 

submissions as described below, and the 

presiding officer may grant an extension 

of time for good cause shown. 

Transcripts of the oral statements will 

be placed in the rulemaking record. 

Hearing Participants will be provided 

with instructions as to how to 

participate in the virtual hearing. 

If you are a Hearing Participant and 

would like to submit your oral 

presentation in writing or file a 

supplementary documentary 

submission, you can do so by 

submitting a comment on this 

rulemaking docket. You must do so on 

or before December 22, 2023. Write 

‘‘Negative Option Rule (16 CFR part 

425) (Project No. P064202)’’ on your 

submission. If you file a documentary 

submission under this Section, your 

documentary submission—including 

your name and your state—will be 

placed on the public record of this 

proceeding, including on the website 

https://www.regulations.gov. To ensure 

the Commission considers your online 

documentary submission, please follow 

the instructions on the web-based form. 

Because your documentary 

submission will be placed on the public 

record, you are solely responsible for 

making sure that it does not include any 

sensitive or confidential information. In 

particular, your documentary 

submission should not contain sensitive 

personal information, such as your or 

anyone else’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 

your documentary submission does not 

include any sensitive health 

information, such as medical records or 

other individually identifiable health 

information. In addition, your 

documentary submission should not 

include any ‘‘[t]rade secret or any 

commercial or financial information 

which . . . is privileged or 

confidential’’—as provided in Section 

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

Commission Rule 4.10(a)(2), 16 CFR 

4.10(a)(2)—including, in particular, 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

Documentary submissions containing 

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

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

In particular, the written request for 

confidential treatment that accompanies 

the documentary submission must 

include the factual and legal basis for 

the request and must identify the 

specific portions to be withheld from 

the public record. See Commission Rule 

4.9(c). Your documentary submission 

will be kept confidential only if the 

General Counsel grants your request in 

accordance with the law and the public 

interest. Once your documentary 

submission has been posted publicly at 

https://www.regulations.gov—as legally 

required by Commission Rule 4.9(b), 16 

CFR 4.9(b)—we cannot redact or remove 

it, unless you submit a confidentiality 

request that meets the requirements for 

such treatment under Commission Rule 

4.9(c), and the General Counsel grants 

that request. 

Visit the FTC website to read this 

document and the news release 

describing it. The FTC Act and other 

laws that the Commission administers 

permit the collection of documentary 

submissions to consider and use in this 

proceeding as appropriate. The 

Commission will consider all timely 

and responsive documentary 

submissions it receives on or before 

December 22, 2023. For information on 

the Commission’s privacy policy, 

including routine uses permitted by the 

Privacy Act, see https://www.ftc.gov/site

information/privacypolicy. 

Hearing Participants who need 

assistance should indicate as much in 

their comment, and the Commission 

will endeavor to provide 

accommodations. Hearing Participants 

without the computer technology 

necessary to participate in video 

conferencing will be able to participate 

in the informal hearing by telephone; 

they should indicate as much in their 

comments. 

V. Conduct of the Informal Hearing; 

Role of Presiding Officer 

The Commission’s Chief Presiding 

Officer, the Chair, has appointed and 

designates Administrative Law Judge for 

the Securities and Exchange 

Commission, the Honorable Carol Fox 

Foelak, to serve as the presiding officer 

of the informal hearing. Judge Foelak 

will conduct the informal hearing 

virtually using video conferencing 

starting at 10:00 a.m. Eastern on January 

16, 2024. The informal hearing will be 

available for the public to watch live 

from the Commission’s website, https:// 

www.ftc.gov, and a recording or 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 88, No. 235 / Friday, December 8, 2023 / Proposed Rules 85529 

34See 16 CFR 1.13(d) (‘‘The presiding officer’s 

recommended decision will be limited to 

explaining the presiding officer’s proposed 

resolution of disputed issues of material fact.’’). 

35See 15 U.S.C. 57a(i)(2)(A); 16 CFR 1.18(c). 

transcript of the informal hearing will 

be placed in the rulemaking record. 

Because there are no ‘‘disputed issues 

of material fact’’ to resolve at the 

informal hearing, the presiding officer is 

not anticipated to make a recommended 

decision.34 The role of the presiding 

officer therefore will be to preside over 

and to ensure the orderly conduct of the 

informal hearing, including selecting 

the sequence in which oral statements 

will be heard, and to place the transcript 

and any additional written submissions 

received into the rulemaking record. 

The presiding officer may prescribe 

additional procedures or issue rulings in 

accordance with Commission Rule 1.13, 

16 CFR 1.13. In execution of the 

presiding officer’s obligations and 

responsibilities under the Commission 

Rules, the presiding officer may issue 

additional public notices. 

VI. Communications by Outside Parties 

to the Commissioners or Their Advisors 

Pursuant to Commission Rule 

1.18(c)(1), 16 CFR 1.18(c)(1), the 

Commission has determined that 

communications with respect to the 

merits of this proceeding from any 

outside party to any Commissioner or 

Commissioner advisor shall be subject 

to the following treatment. Written 

communications and summaries or 

transcripts of oral communications shall 

be placed on the rulemaking record if 

the communication is received before 

the end of the comment period. They 

shall be placed on the public record if 

the communication is received later. 

Unless the outside party making an oral 

communication is a member of 

Congress, such communications are 

permitted only if advance notice is 

published in the Weekly Calendar and 

Notice of ‘‘Sunshine’’ Meetings.35

By direction of the Commission. 

Joel Christie, 

Acting Secretary. 

[FR Doc. 2023–26946 Filed 12–7–23; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT 

24 CFR Parts 115 and 125 

[Docket No. FR–6355–N–02] 

RIN 2529–AB07 

Removing Criminal Conviction 

Restrictions for Testers in FHIP- and 

FHAP-Funded Testing Programs; 

Extension of Comment Period 

AGENCY: Office of Fair Housing and 

Equal Opportunity, HUD. 

ACTION: Proposed rule; extension of 

comment period. 

SUMMARY: On October 31, 2023, HUD 

published in the Federal Register a 

notice of proposed rulemaking entitled 

‘‘Removing Criminal Conviction 

Restrictions for Testers in FHIP- and 

FHAP-Funded Testing Programs,’’ 

proposing to eliminate the tester 

restrictions for Fair Housing Initiatives 

Program (FHIP) grantees and for Fair 

Housing Assistance Program (FHAP) 

agencies that forbid FHIP and FHAP 

recipients from using fair housing 

testers with prior felony convictions or 

convictions of crimes involving fraud or 

perjury. The proposed rule provided for 

a 60-day comment period, which would 

have ended January 2, 2024. HUD has 

determined that a 9-day extension of the 

comment period, until January 11, 2024, 

is appropriate. This extension will allow 

interested persons additional time to 

analyze the proposal and prepare their 

comments. 

DATES: The comment period for the 

proposed rule published on October 31, 

2023, at 88 FR 74381, is extended. 

Comments should be received on or 

before January 11, 2024. 

ADDRESSES: Interested persons are 

invited to submit comments regarding 

this proposed rule. There are two 

methods for submitting public 

comments. All submissions must refer 

to the above docket number and title. 

1. Submission of Comments by Mail. 

Comments may be submitted by mail to 

the Regulations Division, Office of 

General Counsel, Department of 

Housing and Urban Development, 451 

7th Street SW, Room 10276, 

Washington, DC 20410–0500. 

2. Electronic Submission of 

Comments. Interested persons may 

submit comments electronically through 

the Federal eRulemaking Portal at 

www.regulations.gov. HUD strongly 

encourages commenters to submit 

comments electronically. Electronic 

submission of comments allows the 

commenter maximum time to prepare 

and submit a comment, ensures timely 

receipt by HUD, and enables HUD to 

make them immediately available to the 

public. Comments submitted 

electronically through the 

www.regulations.gov website can be 

viewed by other commenters and 

interested members of the public. 

Commenters should follow the 

instructions provided on that site to 

submit comments electronically. 

Note: To receive consideration as public 

comments, comments must be submitted 

through one of the two methods specified 

above. Again, all submissions must refer to 

the docket number and title of the rule. 

No Facsimile Comments: Facsimile 

(FAX) comments are not acceptable. 

Public Inspection of Comments. All 

properly submitted comments and 

communications submitted to HUD will 

be available for public inspection and 

copying between 8 a.m. and 5 p.m. 

weekdays at the above address. Due to 

security measures at the HUD 

Headquarters building, an advance 

appointment to review the public 

comments must be scheduled by calling 

the Regulations Division at 202–402– 

3055 (this is not a toll-free number). 

HUD welcomes and is prepared to 

receive calls from individuals who are 

deaf or hard of hearing, as well as 

individuals with communication 

disabilities. To learn more about how to 

make an accessible telephone call, 

please visit https://www.fcc.gov/ 

consumers/guides/telecommunicationsrelay-service-trs. Copies of all comments 

submitted are available for inspection 

and downloading at 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Demetria McCain, Principal Deputy 

Assistant Secretary for Fair Housing and 

Equal Opportunity, Department of 

Housing and Urban Development, Office 

of Fair Housing and Equal Opportunity, 

451 7th Street SW, Room 5250, 

Washington, DC 20410–8000, telephone 

number 202–402–7861 (this is not a tollfree number). HUD welcomes and is 

prepared to receive calls from 

individuals who are deaf or hard of 

hearing, as well as individuals with 

speech or communication disabilities. 

To learn more about how to make an 

accessible telephone calls, please visit: 

https://www.fcc.gov/consumers/guides/ 

telecommunications-relay-service-trs. 

SUPPLEMENTARY INFORMATION: On 

October 31, 2023, at 88 FR 74381, HUD 

published a notice of proposed 

rulemaking entitled ‘‘Removing 

Criminal Conviction Restrictions for 

Testers in FHIP- and FHAP-Funded 

Testing Programs,’’ which proposes to 

eliminate restrictions for Fair Housing 

Initiatives Program (FHIP) grantees and 


khammond on DSKJM1Z7X2PROD with PROPOSALS