UNITED STATES OF AMERICA

242-3029

UNITED STATES OF AMERICA

BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS:

Andrew N. Ferguson, Chairman

Mark R. Meador

________________________________________________

In the Matter of

DECISION AND ORDER

CMG MEDIA CORPORATION.

DOCKET NO. C________________________________________________

DECISION

The Federal Trade Commission (“Commission”) initiated an investigation of certain acts and

practices of the Respondent named in the caption. The Commission’s Bureau of Consumer

Protection (“BCP”) prepared and furnished to Respondent a draft Complaint. BCP proposed to

present the draft Complaint to the Commission for its consideration. If issued by the

Commission, the draft Complaint would charge Respondent with violations of the Federal Trade

Commission Act.

Respondent and BCP thereafter executed an Agreement Containing Consent Order (“Consent

Agreement”). The Consent Agreement includes: 1) statements by Respondent that it neither

admits nor denies any of the allegations in the Complaint, except as specifically stated in this

Decision and Order, and that only for purposes of this action, it admits the facts necessary to

establish jurisdiction; and 2) waivers and other provisions as required by the Commission’s

Rules.

The Commission considered the matter and determined that it had reason to believe that

Respondent has violated the Federal Trade Commission Act, and that a Complaint should issue

stating its charges in that respect. The Commission accepted the executed Consent Agreement

and placed it on the public record for a period of 30 days for the receipt and consideration of

public comments. The Commission duly considered any comments received from interested

persons pursuant to Section 2.34 of its Rules, 16 C.F.R. § 2.34. Now, in further conformity with

the procedure prescribed in Rule 2.34, the Commission issues its Complaint, makes the

following Findings, and issues the following Order:

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Findings

1. Respondent is CMG Media Corporation d/b/a Cox Media Group, a Delaware corporation

with its principal office or place of business at 1601 W. Peachtree Street NE, Atlanta, GA,

30309.

2. The Commission has jurisdiction over the subject matter of this proceeding and over

Respondent, and the proceeding is in the public interest.

ORDER

Definitions

For the purposes of this Order, the following definition applies:

1. “Voice Data” means any full or partial audio file of an individual’s voice, voice

communications, or audio communications, as well as any transcripts of such audio file.

Provisions

I.

Prohibition Against Misrepresentations Regarding Voice Data and Advertising

and Marketing Services

IT IS ORDERED that Respondent, and Respondent’s officers, agents, employees, and

attorneys and all other persons in active concert or participation with any of them, who receive

actual notice of this Order, whether acting directly or indirectly, in connection with advertising,

promotion, offering for sale, sale or distribution of advertising or marketing services offered by

Respondent, or any business Respondent controls, must not make any misrepresentation,

expressly or by implication related to:

A. The qualities or features of its advertising or marketing services;

B. The collection and use of Voice Data;

C. Consumers’ consent to the collection, use, or disclosure of Voice Data; or

D. The geographic targeting capabilities of its advertising or marketing services.

II.

Monetary Relief

IT IS FURTHER ORDERED that:

A. Respondent must pay to the Commission $880,000, which Respondent stipulates its

undersigned counsel holds in escrow for no purpose other than payment to the

Commission.

B. Such payment must be made within 8 days of the effective date of this Order by

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electronic fund transfer in accordance with instructions provided by a representative of

the Commission.

III.

Additional Monetary Provisions

IT IS FURTHER ORDERED that:

A. Respondent relinquishes dominion and all legal and equitable right, title, and interest in

all assets transferred pursuant to this Order and may not seek the return of any assets.

B. The facts alleged in the Complaint will be taken as true, without further proof, in any

subsequent civil litigation by or on behalf of the Commission to enforce its rights to any

payment pursuant to this Order, such as a nondischargeability complaint in any

bankruptcy case.

C. The facts alleged in the Complaint establish all elements necessary to sustain an action by

or on behalf of the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy

Code, 11 U.S.C. § 523(a)(2)(A), and this Order will have collateral estoppel effect for

such purposes.

D. All money paid to the Commission pursuant to this Order may be deposited into a fund

administered by the Commission or its designee to be used for relief, including consumer

redress and any attendant expenses for the administration of any redress fund. If a

representative of the Commission decides that direct redress to consumers is wholly or

partially impracticable or money remains after redress is completed, the Commission may

apply any remaining money for such other relief (including consumer information

remedies) as it determines to be reasonably related to Respondent’s practices alleged in

the Complaint. Any money not used is to be deposited to the U.S. Treasury. Respondent

has no right to challenge any activities pursuant to this Provision.

E. In the event of default on any obligation to make payment under this Order, interest,

computed as if pursuant to 28 U.S.C. § 1961(a), shall accrue from the date of default to

the date of payment. In the event such default continues for 10 days beyond the d ate that

payment is due, the entire amount will immediately become due and payable.

F. Each day of nonpayment is a violation through continuing failure to obey or neglect to

obey a final order of the Commission and thus will be deemed a separate offense and

violation for which a civil penalty shall accrue.

G. Respondent acknowledges that its Taxpayer Identification Number (Social Security or

Employer Identification Number), which Respondent has previously submitted to the

Commission, may be used for collecting and reporting on any delinquent amount arising

out of this Order, in accordance with 31 U.S.C. § 7701.

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IV.

Customer Information

IT IS FURTHER ORDERED that Respondent must directly or indirectly provide sufficient

customer information to enable the Commission to efficiently administer consumer redress to all

purchasers of the advertising and marketing services subject to the misrepresentations identified

in the Complaint. Respondent represents that it has provided this redress information to the

Commission. If a representative of the Commission requests in writing any information related to

redress, Respondent must provide it, in the form prescribed by the Commission representative,

within 14 days.

V.

Acknowledgments of the Order

IT IS FURTHER ORDERED that Respondent obtains acknowledgments of receipt of this

Order:

A. Respondent, within 10 days after the effective date of this Order, must submit to the

Commission an acknowledgment of receipt of this Order sworn under penalty of perjury.

B. For 20 years after the issuance date of this Order, Respondent for any business that such

Respondent is the majority owner or controls directly or indirectly must deliver a copy of

this Order to: (1) all principals, officers, directors, and LLC managers and members; (2)

all employees having managerial responsibilities for conduct related to the subject matter

of the Order and all agents and representatives who participate in conduct related to the

subject matter of the Order; and (3) any business entity resulting from any change in

structure as set forth in the Provision titled Compliance Reports and Notices. Delivery

must occur within 10 days after the effective date of this Order for current personnel. For

all others, delivery must occur before they assume their responsibilities.

C. From each individual or entity to which Respondent delivered a copy of this Order,

Respondent must obtain, within 30 days, a signed and dated acknowledgment of receipt

of this Order.

VI.

Compliance Reports and Notices

IT IS FURTHER ORDERED that Respondent makes timely submissions to the

Commission:

A. One year after the issuance date of this Order, Respondent must submit a compliance

report, sworn under penalty of perjury, in which Respondent must: (a) identify the

primary physical, postal, and email address and telephone number, as designated points

of contact, which representatives of the Commission, may use to communicate with

Respondent; (b) identify all of Respondent’s businesses by all of their names, telephone

numbers, and physical, postal, email, and Internet addresses; (c) describe the activities of

each business, including the goods and services offered, the means of advertising,

marketing, and sales; (d) describe in detail whether and how Respondent is in compliance

with each provision of this Order, including a discussion of all of the changes Respondent

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made to comply with the Order; and (e) provide a copy of each Acknowledgment of the

Order obtained pursuant to this Order, unless previously submitted to the Commission.

B. Respondent must submit a compliance notice, sworn under penalty of perjury, within 14

days of any change in the following: (a) any designated point of contact; or (b) the

structure of any entity that Respondent has any ownership interest in or controls directly

or indirectly that may affect compliance obligations arising under this Order, including:

creation, merger, sale, or dissolution of the entity or any subsidiary, parent, or affiliate

that engages in any acts or practices subject to this Order.

C. Respondent must submit notice of the filing of any bankruptcy petition, insolvency

proceeding, or similar proceeding by or against Respondent within 14 days of its filing.

D. Any submission to the Commission required by this Order to be sworn under penalty of

perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by

concluding: “I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct. Executed on: _____” and supplying the

date, signatory’s full name, title (if applicable), and signature.

D. Unless otherwise directed by a Commission representative in writing, all submissions to

the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or sent by

overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement,

Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue

NW, Washington, DC 20580. The subject line must begin: In re CMG Media

Corporation.

VII.

Recordkeeping

IT IS FURTHER ORDERED that Respondent must create certain records for 20 years after

the issuance date of the Order, and retain each such record for 5 years. Specifically, Respondent

must create and retain the following records:

A. Accounting records showing the revenues from all goods or services sold, the costs

incurred in generating those revenues, and resulting net profit or loss;

B. Personnel records showing, for each person providing services in relation to any aspect of

the Order, whether as an employee or otherwise, that person’s: name; addresses;

telephone numbers; job title or position; dates of service; and (if applicable) the reason

for termination;

C. Copies or records of all consumer complaints and refund requests, whether received

directly or indirectly, such as through a third party, and any response;

D. All records necessary to demonstrate full compliance with each provision of this Order,

including all submissions to the Commission;

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E. A copy of each unique advertisement or other marketing material making a representation

subject to this Order;

F. For 5 years from the date of the last dissemination of any representation covered by this

Order:

1. all materials that were relied upon in making the representation; and

2. all tests, studies, analysis, demonstrations, other research or other such evidence in

Respondent’s possession, custody, or control that contradicts, qualifies, or otherwise

calls into question the representation, or the basis relied upon for the representation,

including complaints and other communications with consumers or with

governmental or consumer protection organizations;

G. For 5 years from the date received, copies of all subpoenas and other communications

with law enforcement, if such communications relate to Respondent’s compliance with

this Order; and

H. For 5 years from the date created or received, all records, whether prepared by or on

behalf of Respondent, that demonstrate non-compliance or tend to show any lack of

compliance by Respondent with this Order.

VIII. Compliance Monitoring

IT IS FURTHER ORDERED that, for the purpose of monitoring Respondent’s compliance

with this Order:

A. Within 10 days of receipt of a written request from a representative of the Commission,

Respondent must: submit additional compliance reports or other requested information,

which must be sworn under penalty of perjury, and produce records for inspection and

copying.

B. For matters concerning this Order, representatives of the Commission are authorized to

communicate directly with Respondent. Respondent must permit representatives of the

Commission to interview anyone affiliated with Respondent who has agreed to such an

interview. The interviewee may have counsel present.

C. The Commission may use all other lawful means, including posing through its

representatives as consumers, suppliers, or other individuals or entities, to Respondent or

any individual or entity affiliated with Respondent, without the necessity of identification

or prior notice. Nothing in this Order limits the Commission’s lawful use of compulsory

process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1.

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IX.

Order Effective Dates

IT IS FURTHER ORDERED that this Order is final and effective upon the date of its

publication on the Commission’s website (ftc.gov) as a final order. This Order will terminate 20

years from the date of its issuance (which date may be stated at the end of this Order, near the

Commission’s seal), or 20 years from the most recent date that the United States or the

Commission files a complaint (with or without an accompanying settlement) in federal court

alleging any violation of this Order, whichever comes later; provided, however, that the filing of

such a complaint will not affect the duration of:

A. Any Provision in this Order that terminates in less than 20 years;

B. This Order’s application to any Respondent that is not named as a defendant in such

complaint; and

C. This Order if such complaint is filed after the Order has terminated pursuant to this

Provision.

Provided, further, that if such complaint is dismissed or a federal court rules that Respondent did

not violate any provision of the Order, and the dismissal or ruling is either not appealed or

upheld on appeal, then the Order will terminate according to this Provision as though the

complaint had never been filed, except that the Order will not terminate between the date such

complaint is filed and the later of the deadline for appealing such dismissal or ruling and the date

such dismissal or ruling is upheld on appeal.

By the Commission.

April J. Tabor

Secretary

SEAL:

ISSUED:

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