[Federal Register: December 10, 2002 (Volume 67, Number 237)]
[Notices]
[Page 75855-75857]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de02-42]
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FEDERAL TRADE COMMISSION
[File No. 011 0242]
National Academy of Arbitrators; Analysis to Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis to
Aid Public Comment describes both the allegations in the draft
complaint that accompanies the consent agreement and the terms of the
consent order--embodied in the consent agreement--that would settle
these allegations.
DATES: Comments must be received on or before January 2, 2003.
ADDRESSES: Comments filed in paper form should be directed to: FTC/
Office of the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW.,
Washington, DC 20580. Comments filed in electronic form should be
directed to: consentagreement@ftc.gov, as prescribed below.
FOR FURTHER INFORMATION CONTACT: L. Barry Costilo, FTC, Bureau of
Competition, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202)
326-2024.
SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal
Trade
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Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Section 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 thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for December 3, 2002), on the World Wide Web, at http://www.ftc.gov/os/2002/12/index.htm.
A paper copy can be obtained from the FTC Public
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington,
DC 20580, either in person or by calling (202) 326-2222.
Public comments are invited, and may be filed with the Commission
in either paper or electronic form. Comments filed in paper form should
be directed to: FTC/Office of the Secretary, Room 159-H, 600
Pennsylvania Avenue, NW., Washington, DC 20580. If a comment contains
nonpublic information, it must be filed in paper form, and the first
page of the documents must be clearly labeled ``confidential.''
Comments that do not contain any nonpublic information may instead be
filed in electronic form (in ASCII format, WordPerfect, or Microsoft
Word) as part of or as an attachment to email messages directed to the
following email box: consentagreement@ftc.gov. Such comments will be
considered by the Commission and will be available for inspection and
copying at its principal office in accordance with Section
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 to a
proposed consent order from the National Academy of Arbitrators
(``NAA''). NAA has its principal place of business in Pittsburgh,
Pennsylvania.
The proposed consent order has been placed on the public record for
thirty (30) days for reception of comments by interested persons.
Comments received during this period will become part of the public
record. After thirty (30) days, the Commission will again review the
agreement and the comments received, and decide whether it should
withdraw from the agreement or make final the agreement's proposed
order.
NAA is an honorary association for labor-management arbitrators.
Labor-management arbitrators hear and decide disputes between labor
unions and employers. The complaint alleges that NAA engages in
substantial activities for the economic benefit of its members. The
complaint further alleges that NAA has approximately 600 members, many
of whom arbitrate labor-management disputes for a fee.
The complaint charges that NAA has violated Section 5 of the
Federal Trade Commission Act by acting as a combination of its members
and in agreement with some of its members to retrain competition by
restricting advertising and solicitation by its members. The complaint
alleges that in furtherance of the combination and agreement NAA has
adopted and maintained a Code of Professional Responsibility for
Arbitrators of Labor-Management Disputes and Formal Advisory Opinions
that restrain arbitrators from engaging in truthful, non-deceptive
advertising and solicitation, regardless of whether such advertising or
solicitation compromises or appears to compromise the impartiality of
Arbitrators. The Code of Professional Responsibility states:
An arbitrator must not solicit arbitration assignments. * * *
Solicitation, as prohibited by this section, includes the making of
requests for arbitration work through personal contacts with individual
parties, orally or in writing.
In addition to prohibiting solicitation, the previous version of the
Code prohibited virtually all advertising. The advertising restriction
was recently amended to restrict only false and misleading advertising.
However, NAA's Formal Advisory Opinions, which serve as official
interpretations of the Code, often do not draw a distinction between
advertising and solicitation and continue to restrict members from
distributing truthful information. For example, Opinion 14 deems an
arbitrator's unsolicited mailing to both labor and management
representatives that contains truthful biographical information to be a
violation of NAA's ethics provisions on advertising and solicitation.
Opinion 16 concludes that it is unethical solicitation and advertising
for an arbitrator to send out announcements of the change of address of
his office, which include his resume (including the fact that he is a
lawyer) and state his fee schedule. Opinion 18 declares it unethical
for an arbitrator to ``distribute his business cards, except on
request, to potential clients.'' And Opinion 19 holds that an
arbitrator who gives potential clients ball point pens to inform them
of his change of address runs afoul of the proscriptions on advertising
and solicitation. Given these Formal Advisory Opinions, the narrowing
of the advertising restrictions in the Code to false and misleading
advertising does not eliminate competitive concerns.
The complaint alleges that the above acts and practices constitute
unfair methods of competition which have restrained competition
unreasonably. It further alleges that the effects of the acts and
practices are to injure consumers by depriving consumers of the
services of labor-management arbitrators of the benefits of truthful,
non-deceptive information and of free and open competition among
arbitrators.
NAA has signed a consent agreement containing the proposed consent
order. The proposed consent order would prohibit NAA from maintaining
or enforcing any policy, ethics rule, interpretation or guideline that
impedes or restricts arbitrators from engaging in advertising truthful
information about their services, including the prices, terms and
conditions of sale of their services. The proposed consent order would
also prohibit NAA from maintaining or enforcing any policy, ethics
rule, interpretation or guideline against solicitation of arbitration
work. The order permits NAA to adopt and promulgate reasonable ethics
guidelines governing the conduct of its members with respect to
representations that NAA reasonably believes would be false or
deceptive or governing conduct that NAA reasonably believes would
compromise or appear to compromise the impartiality of arbitrators.
To ensure and monitor compliance, the consent order provides, among
other things, that within certain time frames NAA shall remove the
provisions that are inconsistent with the order from NAA's Code of
Professional Responsibility for Arbitrators of Labor-Management
Disputes, NAA's Advisory Opinions, any NAA policy statement or
guideline and NAA's website. The order requires NAA to publish a copy
of the order and complaint in its newsletter. It further provides that
the order and complaint shall be published on the NAA web site, with a
link placed in a prominent position on the web site's home page. The
proposed consent order also contains other provisions to monitor
compliance.
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
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the agreement and proposed order or to modify in any way their terms.
By director of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 02-31143 Filed 12-9-02; 8:45 am]
BILLING CODE 6750-01-M