Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Notices 11199

3Since filing its tariff in the ATFI system in June

1996, Ever Freight has maintained a tariff consisting

only of three classes of Cargo N.O.S. rates. Ever

Freight does not publish ‘‘per container’’ rates, nor

does it appear to charge those Cargo N.O.S. rates

which it does publish, inasmuch as its rates are

tariffed solely on a weight/measurement (W/M) ton

basis.

obtain payment of the NVOCC’s freight

charges from the U.S. importer, in each

case correctly describing the commodity

based on actual contents shipped.

In addition, during time periods

subsequent to the filing of Ever Freight’s

NVOCC tariff and bond in June 1996,

Ever Freight appears both as shipper

and as a carrier issuing its own (Ever

Freight) NVOCC bill of lading with

respect to the commodity being

shipped. The rates assessed and

collected by Ever Freight and its U.S.

agents for these shipments, however,

bear no relation to the rates set forth in

Ever Freight’s ATFI tariff on file with

the Commission.3 Since Ever Freight

has never subsequently modified its

tariff rates, it would appear that all

shipments in which Ever Freight issued

its NVOCC bill of lading may be found

to constitute violations of section

10(b)(1) of the 1984 Act.

Section 10(a)(1) of the Shipping Act of

1984 (‘‘1984 Act’’), 46 U.S.C. app

§ 1709(a)(1), prohibits any person

knowingly and willfully, directly or

indirectly, by means of false billings,

false classification, false weighing, false

report of weight, false measurement, or

by any other unjust or unfair device or

means, to obtain or attempt to obtain

ocean transportation for property at less

than the rates or charges that would

otherwise be applicable. Section

10(b)(1), 46 U.S.C. app. § 1709(b)(1),

prohibits a common carrier from

charging, collecting or receiving greater,

less or different compensation for the

transportation of property than the rates

and charges set forth in its tariff. Under

section 13 of the 1984 Act, 46 U.S.C.

app. § 1712, a person is subject to a civil

penalty of not more than $25,000 for

each violation knowingly and willfully

committed, and not more than $5,000

for other violations. Section 13 further

provides that a common carrier’s tariff

may be suspended for violations of

section 10(b)(1) for a period not to

exceed one year, while section 23 of the

1984 Act, 46 U.S.C. app. § 1721

provides for a similar suspension in the

case of violations of section 10(a)(1) of

the 1984 Act. Finally, section 19(b) of

the 1984 Act, 46 U.S.C. app. § 1717(b),

provides that the license of a freight

forwarder shall be suspended or

revoked if it appears that the licensee is

no longer qualified to render forwarding

services to the public or has willfully

failed to comply with any provisions of

the 1984 Act.

Now therefore, it is ordered, That

pursuant to section 10, 11, 13, 19 and

23 of the 1984 Act, 46 U.S.C. app.

§§ 1709, 1710, 1712, 1717 and 1721, an

investigation is instituted to determine:

(1) Whether Ever Freight International

Ltd., Sigma Express Inc., and Mario

Chavarria dba Transcargo International,

violated section 10(a)(1) of the 1984 Act

by directly or indirectly obtaining

transportation at less than the rates and

charges otherwise applicable through

the means of misdescription of the

commodities actually shipped;

(2) Whether Ever Freight International

Ltd., in its capacity as a common carrier,

violated section 10(b)(1) of the 1984 Act

by charging, demanding, collecting or

receiving less or different compensation

for the transportation of property than

the rates and charges shown in its

NVOCC tariff;

(3) Whether, in the event violations of

sections 10(a)(1) and 10(b)(1) of the

1984 Act are found, civil penalties

should be assessed against Ever Freight

International Ltd., Sigma Express Inc.

and Mario F. Chavarria dba Transcargo

International and, if so, the amount of

penalties to be assessed against any or

all of the parties;

(4) Whether, in the event violations of

sections 10(a)(1) and 10(b)(1) of the

1984 Act are found, the tariff of Ever

Freight International Ltd. should be

suspended;

(5) Whether, in the event violations of

sections 10(a)(1) of the 1984 Act are

found, the freight forwarding license of

Mario F. Chavarria should be suspended

or revoked; and

(6) Whether, in the event violations

are found, an appropriate cease and

desist order should be issued against

any or all of the parties.

It is further ordered, That a public

hearing be held in this proceeding and

that this matter be assigned for hearing

before an Administrative Law Judge of

the Commission’s Office of

Administrative Law Judges at a date and

place to be hereafter determined by the

Administrative Law Judge in

compliance with Rule 61 of the

Commission’s rules of practice and

procedure, 46 CFR 502.61. The hearing

shall include oral testimony and crossexamination in the discretion of the

Presiding Administrative Law Judge

only after consideration has been given

by the parties and the Presiding

Administrative Law Judge to the use of

alternative forms of dispute resolution,

and upon a proper showing that there

are genuine issues of material fact that

cannot be resolved on the basis of sworn

statements, affidavits, depositions, or

other documents or that the nature of

the matters in issue is such that an oral

hearing and cross-examination are

necessary for the development of an

adequate record;

It is further ordered, That Ever Freight

International Ltd., Sigma Express Inc.

and Mario F. Chavarria dba Transcargo

International are designated as

Respondents in this proceeding;

It is further ordered, That the

Commission’s Bureau of Enforcement is

designated a party to this proceeding;

It is further ordered, That notice of

this Order be published in the Federal

Register, and a copy be served on parties

of record;

It is further ordered, That other

persons having an interest in

participating in this proceeding may file

petitions for leave to intervene in

accordance with Rule 72 of the

Commission’s rules of practice and

procedure, 46 CFR 502.72;

It is further ordered, That all further

notices, orders, and/or decisions issued

by or on behalf of the Commission in

this proceeding, including notice of the

time and place of hearing or prehearing

conference, shall be served on parties of

record;

It is further ordered, That all

documents submitted by any party of

record in this proceeding shall be

directed to the Secretary, Federal

Maritime Commission, Washington, DC

20573, in accordance with Rule 118 of

the Commission’s rules of practice and

procedure, 46 CFR 502.118, and shall be

served on parties of record; and

It is further ordered, That in

accordance with Rule 61 of the

Commission’s rules of practice and

procedure, the initial decision of the

Administrative Law Judge shall be

issued by March 6, 1998 and the final

decision of the Commission shall be

issued by July 6, 1998.

Joseph C. Polking,

Secretary.

[FR Doc. 97–6038 Filed 3–10–97; 8:45 am]

BILLING CODE 6730–01–M

FEDERAL TRADE COMMISSION

[File No. 952–3275]

Apple Computer, Inc.; Analysis To Aid

Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair or deceptive acts or practices and

unfair methods of competition, this

consent agreement, accepted subject to
11200 Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Notices

final Commission approval, would

require, among other things, the

Cupertino, California-based computer

hardware and software manufacturer to

offer Power PC Upgrade Kits, at less

than half the original price, to each

consumer who purchased one of three

of the company’s entry-level ‘‘Performa’’

model personal computers. Apple has

already agreed to rebate $776 of the

original price to consumers who have

already purchased the upgrade. The

complaint accompanying the consent

agreement alleges that Apple

misrepresented that the upgrade was

available to consumers at the time that

they purchased a Performa or within a

reasonable period of time thereafter.

DATES: Comments must be received on

or before May 12, 1997.

ADDRESSES: Comments should be

directed to: FTC/Office of the Secretary,

Room 159, 6th St. and Pa. Ave., NW.,

Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Matthew Gold, San Francisco Regional

Office, Federal Trade Commission, 901

Market Street, Suite 570, San Francisco,

CA 94103. (415) 356–5276.

Linda Badger, San Francisco Regional

Office, Federal Trade Commission, 901

Market Street, Suite 570, San Francisco,

CA 94103. (415) 356–5275.

SUPPLEMENTARY INFORMATION: Pursuant

to section 6(f) of the Federal Trade

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

46, and § 2.34 of the commission’s 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 sixty (60) days. The following

Analysis to Aid Public Comment

describes the terms of the consent

agreement, and the allegations in the

accompanying complaint. An electronic

copy of the full text of the consent

agreement package can be obtained from

the Commission Actions section of the

FTC Home Page (for March 3, 1997), on

the World Wide Web, at ‘‘http://

www.ftc.gov/os/actions/htm.’’ A paper

copy can be obtained from the FTC

Public Reference Room, Room H–130,

Sixth Street and Pennsylvania Avenue,

NW., Washington, DC 20580, either in

person or by calling (202) 326–3627.

Public comment is invited. Such

comments or views will be considered

by the Commission and will be available

for inspection and copying at its

principal office in accordance with

§ 4.9(b)(6)(ii) of the Commission’s rules

of practice (16 CFR 4.9(b)(6)(ii)).

Analysis of Proposed Consent Order to

Aid Public Comment

The Federal Trade Commission has

accepted an agreement, subject to final

approval, to a proposed consent order

from Apple Computer, Inc. (hereinafter

‘‘Apple’’ or ‘‘respondent’’). Apple is a

major manufacture and marketer of

personal computer hardware and

software products.

The proposed consent order has been

placed on the public record for sixty

(60) days for the reception of comments

by interested persons. Comments

received during this period will become

part of the public record. After sixty (60)

days, the Commission will again review

the agreement and any comments

received and will decide whether it

should withdraw from the agreement

and take other appropriate action or

make final the agreement’s proposed

order.

This matter has focused on Apple’s

advertisements for the ‘‘Performa 550,’’

‘‘Macintosh LC 550,’’ and ‘‘Performa

560’’ personal computers. The Performa

550, Macintosh LC 550, and Performa

560 models are based on the Motorola

680030 microprocessor. While

continuing to promote the sale of these

computers, respondent introduced a

new series of computers based on the

faster, more powerful ‘‘PowerPC’’

microprocessor.

Beginning on or about April 1, 1994,

subsequent to the introduction of the

PowerPC microprocessor, respondent

advertised Performa 550, Macintosh LC

550, and Performa 560 computers as

upgradeable to PowerPC performance. A

PowerPC upgrade, however, was not

offered for at least one year after Apple

began representing that these computers

were upgradeable. Further, by the time

Apple made the upgrade available, its

price approached the cost of an entirely

new computer with a PowerPC

microprocessor.

The proposed complaint alleges that

Apple made false claims that: (1) A

PowerPC upgrade was available to

consumers at the time that they

purchased a Performa 550 or Performa

560 computer; and (2) a PowerPC

upgrade would be available within a

reasonable period of time after the

purchase of a Performa 550, Macintosh

LC 550, or Performa 560 computer.

The proposed complaint further

alleges that Apple deceptively failed to

disclose that the PowerPC upgrade

package for the Performa 550,

Macintosh LC 550, or Performa 560

computers would include not only a

PowerPC upgrade card, but also a new

logic board. As a result, the complaint

alleges, consumers were not aware that

they would have to incur the cost and

inconvenience associated with the

replacement of the logic board.

Part I of the proposed order prohibits

Apple from misrepresenting the

availability of any microprocessor

upgrade product. Part II of the proposed

order prohibits Apple from representing

that any computer hardware product is

currently upgradeable, unless at the

time such representation is made, the

upgrade is then available, in reasonable

quantities to the public, given good-faith

projections of anticipated demand.

Parts III and IV of the proposed order

address Apple’s failure to disclose that

the upgrade product for the Performa

550, Macintosh LC 550, or Performa 560

computers would include a new logic

board in addition to an upgrade card.

Part III provides that Apple, when

marketing any microprocessor upgrade

product that incorporates a new logic

board, may not represent that such

product is an ‘‘upgrade’’ unless it

clearly and prominently discloses that a

new logic board is a component of the

upgrade product.

Part IV of the proposed order

prescribes a redress program under

which Apple is required to offer a

PowerPC Upgrade Kit for the reduced

price of $599 to consumers who

purchased a Performa 550, or Macintosh

LC 550 computer after Apple began

advertising them as upgradeable. Under

Part IV, the kit will include all of the

hardware necessary for the upgrade, as

well as four megabytes of RAM, two

essential pieces of PowerPC software,

and a coupon for free installation of the

upgrade redeemable at any authorized

Apple service location.

Under Part IV, Apple has the option

of providing eligible consumers with a

new PowerPC system in lieu of the

upgrade kit. This provision is designed

to protect consumers if Apple runs out

of the hardware necessary to build the

upgrade kits. Any consumer who

receives a new system will have to

return the old computer to an

authorized Apple dealer. Apple will

then be responsible for arranging for the

dealer to transfer all the consumer’s data

and peripherals to the new PowerPC,

and for testing the new system to make

certain that it is functional.

To compensate the consumers who

have already purchased an upgrade for

one of the relevant computers, Part IV

of the proposed order requires Apple to

rebate $776.00 of the original purchase

price of $1,375.00.

The proposed order also requires the

respondent to maintain materials relied

upon to substantiate claims covered by

the order; to provide a copy of the

consent agreement to all employees or
Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Notices 11201

1Copies of the Complaint and the Decision and

Order are available from the Commission’s Public

Reference Branch, H–130, 6th Street & Pennsylvania

Avenue, NW., Washington, DC 20580.

1Copies of the Complaint and the Decision and

Order are available from the Commission’s Public

Reference Branch, H–130, 6th Street & Pennsylvania

Avenue, NW., Washington, DC 20580.

1Copies of the Complaint, the Decision and

Order, and Commissioner Azcuenaga’s statement

are available from the Commission’s Public

Reference Branch, H–130, 6th Street and

Pennsylvania Avenue, NW., Washington, DC 20580.

representatives with duties affecting

compliance with the terms of the order;

to notify the Commission of any changes

in corporate structure that might affect

compliance with the order; and to file

one or more reports detailing

compliance with the order.

The purpose of this analysis is to

facilitate public comment on the

proposed order, and it is not intended

to constitute an official interpretation of

the agreement and proposed order, or to

modify in any way their terms.

Donald S. Clark,

Secretary.

[FR Doc. 97–6056 Filed 3–10–97; 8:45 am]

BILLING CODE 6750–01–M

[Dkt. C–3708]

Victoria Bie d/b/a Body Gold;

Prohibited Trade Practices, and

Affirmative Corrective Actions

AGENCY: Federal Trade Commission.

ACTION: Consent order.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair or deceptive acts or practices and

unfair methods of competition, this

consent order prohibits, among other

things, a California-based dietary

supplement manufacturer from making

certain claims for dietary supplements,

without competent and reliable

scientific evidence to support them;

from misrepresenting the results of any

test, study or research; and from

representing that any testimonial or

endorsement is the typical experience of

users of the advertised product, unless

the claim is substantiated or the

respondent discloses the generally

expected results clearly and

prominently.

DATES: Complaint and Order issued

January 22, 1997.1

FOR FURTHER INFORMATION CONTACT:

Sohni Bendiks, Federal Trade

Commission, Denver Regional Office,

1961 Stout St., Suite 1523, Denver, Co.

80294. (303) 844–3923.

SUPPLEMENTARY INFORMATION: On Friday,

November 15, 1996, there was

published in the Federal Register, 61 FR

58559, a proposed consent agreement

with analysis In the Matter of Victoria

Bie d/b/a Body Gold, for the purpose of

soliciting public comment. Interested

parties were given sixty (60) days in

which to submit comments, suggestions

or objections regarding the proposed

form of the order.

No comments having been received,

the Commission has ordered the

issuance of the complaint in the form

contemplated by the agreement, made

its jurisdictional findings and entered

an order to cease and desist, as set forth

in the proposed consent agreement, in

disposition of this proceeding.

(Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets

or applies sec. 5, 38 Stat. 719, as amended;

15 U.S.C. 45, 52)

Donald S. Clark,

Secretary.

[FR Doc. 97–6055 Filed 3–10–97; 8:45 am]

BILLING CODE 6750–01–M

[Dkt. C–3705]

Computer Business Services, Inc., et

al.; Prohibited Trade Practices, and

Affirmative Corrective Actions

AGENCY: Federal Trade Commission.

ACTION: Consent order.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair or deceptive acts or practices and

unfair methods of competition, this

consent order prohibits, among other

things, an Indiana home-based

computer business opportunity firm and

three principals from misrepresenting

the earnings or success rate of investors;

the existence of a market for their

products or services; the amount of time

it would take investors to recoup their

investments and from making any

representation regarding the

performance, benefits, efficacy or

success rate of any product or service

unless they possess reliable evidence to

substantiate the claims. The consent

order also prohibits the use of

misleading testimonials or

endorsements. In addition, the consent

order requires that advertisements for

automatic telephone dialing systems

disclose federal restrictions on their use

and requires the respondents to pay $5

million in consumer redress.

DATES: Complaint and Order issued

January 21, 1997.1

FOR FURTHER INFORMATION CONTACT:

C. Steven Baker, Federal Trade

Commission, Chicago Regional Office,

55 East Monroe St., Suite 1860, Chicago,

IL. 60603. (312) 353–8156.

SUPPLEMENTARY INFORMATION: On

Tuesday, August 27, 1996, there was

published in the Federal Register, 61 FR

44061, a proposed consent agreement

with analysis In the Matter of Computer

Business Services, Inc., et al., for the

purpose of soliciting public comment.

Interested parties were given sixty (60)

days in which to submit comments,

suggestions or objections regarding the

proposed form of the order.

Comments were filed and considered

by the Commission. The Commission

has ordered the issuance of the

complaint in the form contemplated by

the agreement, made its jurisdictional

findings and entered an order to cease

and desist, as set forth in the proposed

consent agreement, in disposition of this

proceeding.

(Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets

or applies sec. 5, 38 Stat. 719, as amended,

15 U.S.C. 45)

Donald S. Clark,

Secretary.

[FR Doc. 97–6052 Filed 3–10–97; 8:45 am]

BILLING CODE 6730–01–M

[Docket C–3704]

Montana Associated Physicians, Inc.,

et al.; Prohibited Trade Practices, and

Affirmative Corrective Actions

AGENCY: Federal Trade Commission.

ACTION: Consent order.

SUMMARY: In settlement of alleged

violations of federal law prohibiting

unfair or deceptive acts or practices and

unfair methods of competition, this

consent order prohibits, among other

things, two Montana-based

organizations from entering or

attempting to enter into any agreement

with physicians to: Negotiate or refuse

to deal with any third-party payer;

determine the terms on which

physicians deal with such payers; or fix

the fees charged for any physician’s

services. In addition, the consent order

prohibits the respondents from advising

physicians to raise, maintain or adjust

the fees charged for their medical

services, or encouraging adherence to

any fee schedule for physician’s

services.

DATES: Complaint and Order issued

January 13, 1997.1

FOR FURTHER INFORMATION CONTACT:

Robert Leibenluft, FTC/S–3115,

Washington, DC 20580. (202) 326–2756.

SUPPLEMENTARY INFORMATION: On

Monday, November 4, 1996, there was

published in the Federal Register, 61 FR

56682, a proposed consent agreement

with analysis In the Matter of Montana

Associated Physicians, Inc., et al., for

the purpose of soliciting public