[Federal Register Volume 88, Number 235 (Friday, December 8, 2023)]
[Proposed Rules]
[Pages 85525-85529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26946]


=======================================================================
-----------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \1\ See FTC, Negative Option Rule, https://www.regulations.gov/document/FTC-2023-0033-0001/comment.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \2\ The 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).
---------------------------------------------------------------------------

    The Commission received six \4\ such requests in response to the 
NPRM from:
---------------------------------------------------------------------------

    \4\ All 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.

1. International Franchise Association (IFA) \5\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

2. TechFreedom \6\
---------------------------------------------------------------------------

    \6\ Although TechFreedom failed to identify its interests in the 
rulemaking proceeding, according to a recent internet search, 
``TechFreedom is a non-profit, 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).
---------------------------------------------------------------------------

3. Performance Driven Marketing Institute (PDMI) \7\
---------------------------------------------------------------------------

    \7\ PDMI 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.
---------------------------------------------------------------------------

4. NCTA--The Internet & Television Association (NCTA) \8\
---------------------------------------------------------------------------

    \8\ NCTA 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 
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.

---------------------------------------------------------------------------

[[Page 85526]]

5. FrontDoor \9\
---------------------------------------------------------------------------

    \9\ FrontDoor 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.
---------------------------------------------------------------------------

6. Interactive Advertising Bureau (IAB) \10\
---------------------------------------------------------------------------

    \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.

    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\
---------------------------------------------------------------------------

    \11\ See infra Part IV. These interested persons are referred to 
herein as the ``Hearing Participants.''
    \12\ Commission 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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \13\ 88 FR 24716, 24730 (Apr. 24, 2023).
    \14\ FrontDoor 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.
    \15\ NCTA comment at 35-37.
---------------------------------------------------------------------------

    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> 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?
    <bullet> Is there substantial evidence that (1) a click-to-cancel 
approach for multi-faceted, complex, and often bundled broadband, 
cable, voice, and video streaming services benefits consumers and (2) 
such benefits outweigh the downsides and consumer harms?
    <bullet> 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?
    <bullet> 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?
    <bullet> Is there substantial evidence that (1) consumers are 
burdened by listening to ``saves'' or ``upsells'' and (2) burdensome 
``saves'' or ``upsells'' are prevalent?
    <bullet> Do consumers who hear a ``save'' often decide to retain or 
modify service?
    <bullet> 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?
    <bullet> 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):
---------------------------------------------------------------------------

    \16\ IAB comment at 20-21.
---------------------------------------------------------------------------

    <bullet> Whether the costs associated with implementing these new 
requirements will be significantly higher than the FTC estimates; and
    <bullet> 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'':
    <bullet> Whether the disclosure requirements proposed by the NPRM 
improve customer understanding of the terms of an automatic renewal 
across devices and contexts;
    <bullet> Whether the double opt-in consent requirement improves 
consumer understanding, even if sellers disclose the autorenewal 
feature per the proposed disclosure requirements;
    <bullet> 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;
    <bullet> Whether consumers are actually confused or burdened by a 
reasonable number of ``saves''; and
    <bullet> Whether the deceptive practices identified in the 
rulemaking record are limited to certain media (e.g., phone or in-
person).
    To be appropriate for cross-examination or rebuttal, a disputed 
issue of material fact must raise

[[Page 85527]]

``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.''
---------------------------------------------------------------------------

    \17\ Commission 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 
legislative-type 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'').
    \19\ See, 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)).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \20\ As explained in the legislative history:
    The words `disputed issues of material fact' are intended to 
describe and limit the scope of cross-examination in a rulemaking 
proceeding. Thus, the right of participants in the proceeding to 
cross-examine 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
    \25\ Pa. Funeral Dirs. v. FTC, 41 F.3d 81, 87 (3d Cir. 1994).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

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

    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

[[Page 85528]]

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\
---------------------------------------------------------------------------

    \27\ Ass'n of Nat'l Advertisers, 627 F.2d at 1161-62 (D.C. Cir. 
1979) (internal citation omitted).
    \28\ Id. at 1162.
    \29\ See generally supra nn.18-22.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \32\ 16 CFR 1.12(c).
    \33\ Id.
---------------------------------------------------------------------------

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/siteinformation/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

[[Page 85529]]

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.
---------------------------------------------------------------------------

    \34\ See 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.'').
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

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

    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