[Federal Register: June 15, 2006 (Volume 71, Number 115)]
[Notices]
[Page 34620-34621]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn06-40]
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FEDERAL TRADE COMMISSION
[File No. 052 3158]
Take-Two Interactive Software, Inc. and Rockstar Games, Inc.;
Analysis of Proposed Consent Order 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 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 July 10, 2006.
ADDRESSES: Interested parties are invited to submit written comments.
Comments should refer to ``Take-Two Interactive Software, Inc., et al.,
File No. 052 3158,'' to facilitate the organization of comments. A
comment filed in paper form should include this reference both in the
text and on the envelope, and should be mailed or delivered to the
following address: Federal Trade Commission/Office of the Secretary,
Room 135-H (Annex N), 600 Pennsylvania Avenue, NW., Washington, DC
20580. Comments containing confidential material 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) (2005).\1\ The FTC is requesting
that any comment filed in paper form be sent by courier or overnight
service, if possible, because U.S. postal mail in the Washington area
and at the Commission is subject to delay due to heightened security
precautions. Comments that do not contain any nonpublic information may
instead be filed in electronic form as part of or as an attachment to
email messages directed to the following e-mail box: https://secure.commentworks.com/ftc-taketwo/
.
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\1\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See Commission Rule 4.9(c),
16 CFR 4.9(c).
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The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. All timely and responsive public comments, whether filed
in paper or electronic form, will be considered by the Commission, and
will be available to the public on the FTC Web site, to the extent
practicable, at http://www.ftc.gov. As a matter of discretion, the FTC
makes every effort to remove home contact information for individuals
from the public comments it receives before placing those comments on
the FTC Web site. More information, including routine uses permitted by
the Privacy Act, may be found in the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.htm
.
FOR FURTHER INFORMATION CONTACT: Richard F. Kelly (202/326-3304) or
Keith R. Fentonmiller (202/326-2775), Bureau of Consumer Protection,
600 Pennsylvania Avenue, NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec. 2.34 of
the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given
that the above-captioned consent agreement containing a consent order
to cease and desist, having been filed with and accepted, subject to
final approval, by the Commission, has been placed on the public record
for a period of thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for June 8, 2006), on the World Wide Web, at http://www.ftc.gov/os/2006/0/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. All comments should be filed as
prescribed in the ADDRESSES section above, and must be received on or
before the date specified in the DATES section.
Analysis of Agreement Containing Consent Order To Aid Public Comment
The Federal Trade Commission has accepted, subject to final
approval, an agreement containing a consent order from Take-Two
Interactive Software, Inc. and Rockstar Games, Inc. (``the
companies''). The proposed consent order has been placed on the public
record for thirty (30) days for receipt of comments by interested
persons. Comments received during this period will become part of the
public record. After thirty (30) days, the Commission will again review
the agreement and the comments received, and will decide whether it
should withdraw from the agreement or make final the agreement's
proposed order.
This matter involves alleged deceptive representations in
advertising and on product packaging concerning the content in the
video game Grand Theft Auto: San Andreas (``San Andreas''). In
September 2004, the companies submitted materials to the Entertainment
Software Rating Board (``ESRB'') for the purpose of obtaining a rating
for the PlayStation 2 version of San Andreas. The companies did not
inform the ESRB about the existence of an interactive sex mini-game
that was embedded in the game's computer code, but was inaccessible
during normal game play. Nor did the companies tell the ESRB that the
game disc contained data files (unused in game play) for female skins,
which, if accessed, render the female characters partially or
completely nude. However, the ESRB's published requirements in effect
at that time did not state that game companies were required to
disclose unused skins in the game software or content in the game code
that was inaccessible and unplayable without modifying the code. Based
on the companies' submission, the ESRB assigned San Andreas a M (Mature
17+) rating and content descriptors for Blood and Gore, Intense
Violence, Strong Language, Strong Sexual Content, and Use of Drugs. The
companies released the Playstation 2 version of San Andreas in October
2004.
On June 7, 2005, the companies released versions of San Andreas
playable on PCs and the Xbox console. The PC and Xbox game discs also
contained the same code for the sex mini-game and the nude skins. As
with the PlayStation 2 version, the companies did not disclose the
existence of the disabled sex mini-game or the nude skins on the PC and
Xbox game discs. The ESRB rated the PC and Xbox versions of the game M
(Mature
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17+) and assigned the same content descriptors previously assigned to
the PlayStation 2 version.
The ESRB rating information appeared in print, television, and
retailer advertisements for Grand Theft Auto: San Andreas, and on game
packaging, for all three versions of the game. Among other things, the
companies made the following claims about the game: ``MATURE 17+ * * *
M * * *'' and ``CONTENT RATED BY ESRB.'' None of the advertising
mentioned that the game contained nudity.
On June 9, 2005--two days after the release of the PC version of
the game--game enthusiasts posted a program on the Internet, which,
when downloaded and installed on a user's PC, enables the sex mini-game
code. This program was dubbed ``Hot Coffee.'' A subsequent version of
the program imported nude skins resident on the game disc onto several
of the female characters. PlayStation 2 and Xbox players eventually
were able to access the mini-game by physically modifying or adding a
hardware accessory to their game console, installing special software,
and inputting cheat codes developed by third parties.
On July 20, 2005, the ESRB revoked the existing rating for the game
as a result of, among other things, viewing Grand Theft Auto: San
Andreas as modified by the Hot Coffee program and the widespread
availability of that program. The companies entered into an agreement
with the ESRB that provided that they would not contest a change in
rating for the game from M (Mature 17+) to AO (Adults Only 18+) with an
additional content descriptor for nudity. The companies also agreed to
re-label or recall all existing inventory, and to make available to
consumers a downloadable patch rendering the Hot Coffee content
inoperable. In response, most retailers decided not to sell the re-
labeled AO version of the game. In September 2005, the companies
released a second M-rated version of San Andreas without the Hot Coffee
content.
According to the FTC complaint, the companies represented,
expressly or by implication, that the ESRB had rated the content of the
original versions of Grand Theft Auto: San Andreas M (Mature 17+) and
that the ESRB had assigned the following content descriptors as part of
the ESRB rating: Blood and Gore, Intense Violence, Strong Language,
Strong Sexual Content, and Use of Drugs. The complaint alleges that the
companies did not disclose to consumers that the game discs contained
unused, but potentially viewable, nude female skins and disabled, but
potentially playable, software code for a sexually explicit mini-game
that the ESRB had not rated. The presence on the game discs of this
unrated content that might change, and, in fact, did change, the rating
of the game to AO (Adults Only 18+) with an additional content
descriptor for nudity, would have been material to many consumers,
particularly parents, in their purchase, rental, or use of the product.
The complaint alleges that the companies' failure to disclose these
facts, in light of the representation made, was and is a deceptive
practice.
The proposed consent order contains provisions designed to prevent
the companies from engaging in similar acts and practices in the
future. Part I of the consent order requires the companies, in
connection with the advertising, sale, or distribution of any
electronic game, to disclose, clearly and prominently, on product
packaging and in any promotion or advertisement for an electronic game,
content relevant to the rating, unless that content has been disclosed
sufficiently in prior submissions to the rating authority. Part I also
prohibits the companies from misrepresenting the rating or content
descriptors for an electronic game, and requires the companies to
establish and implement, and thereafter maintain, a comprehensive
system reasonably designed to ensure that all content in an electronic
game is considered and reviewed by the companies in preparing
submissions to a rating authority. Finally, Part I of the order states
that nothing in the order shall constitute a waiver of the companies'
right to assert that any of their conduct is or was protected by the
First Amendment to the United States Constitution or any analogous
provision of a State constitution, except that the companies
nonetheless acknowledge their obligations to comply with the order.
Parts II through V of the consent order require the companies to
keep copies of relevant advertisements and promotional materials, to
provide copies of the order to certain of their personnel, to notify
the Commission of changes in corporate structure, and to file
compliance reports with the Commission. Part VI provides that the order
will terminate after twenty (20) years under certain circumstances.
The purpose of this analysis is to facilitate public comment on the
proposed order, and it is not intended to constitute an official
interpretation of the agreement and proposed order or to modify in any
way their terms.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E6-9359 Filed 6-14-06; 8:45 am]
BILLING CODE 6750-01-P