KGE, Inc.; Proposed Consent Agreement With Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

[File No. 932 3040]

KGE, Inc.; Proposed Consent Agreement With Analysis To Aid Public

Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: In settlement of alleged violations of federal law prohibiting

unfair acts and practices and unfair methods of competition, this

consent agreement, accepted subject to final Commission approval, would

require, among other things, a video dating service franchise to

properly and accurately disclose the annual percentage rate (APR) and

other credit terms of financed memberships, as required by the federal

Truth in Lending Act, and would require the franchise to make refunds

to consumers who were misled by the undisclosed finance charges and

APRs.

DATES: Comments must be received on or before August 4, 1995.

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:

Stephen Cohen, FTC/S-4429, Washington, DC 20580. (202) 326-3222.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal

Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46 and Section 2.34 of

the Commission's Rules of Practice (16 CFR 2.34), notice is hereby

given the following 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. 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

Section 4.9(b)(6)(ii) of the Commission's Rules of Practice (16 CFR

4.9(b)(6)(ii)).

Agreement Containing Consent Order To Cease And Desist

In the matter of KGE, Inc., a corporation. File No. 932 3040.

The Federal Trade Commission having initiated an investigation of

certain acts and practices of KGE, Inc., a corporation, (hereinafter

referred to as proposed respondent) and it now appearing that proposed

respondent is willing to enter into an agreement containing an order to

cease and desist from the use of the acts and practices being

investigated.

It is hereby agreed by and between proposed respondent, its

attorneys, and counsel for the Federal Trade Commission that:

1. KGE, Inc., doing business as Great Expectations of Sausalito,

Great Expectations of Mountain View, and Great Expectations of Walnut

Creek (``GE-SFA''), is a corporation organized, existing, and doing

business under and by virtue of the laws of the state of California,

with its corporation office at 1943 Landings Dr., Mountain View, CA

94043, and its principal places of business located 2401 Marinship Way,

Suite 100, Sausalito, CA 94965, 2085 Landings Dr., Mountain View, CA

94043, and 1280 Civic Dr., Suite 300, Walnut Creek, CA 94596.

2. Proposed respondent admits all the jurisdictional facts set

forth in the draft of complaint.

3. Proposed respondent waives:

(a) Any further procedural steps;

(b) The requirement that the Commission's decision contain a

statement of finding of fact and conclusions of law; and

(c) Any right to seek judicial review or otherwise to challenge or

contest the validity of the order entered pursuant to this agreement.

4. This agreement shall not become a part of the public record of

the proceeding unless and until it is accepted by the Commission. If

this agreement is accepted by the Commission, it, together with the

draft of complaint contemplated thereby, will be placed on the public

record for a period of sixty (60) days and information in respect

thereto publicly released. The Commission thereafter may either

withdraw its acceptance of this agreement and so notify proposed

respondent, in which event it will take such action as it may consider

appropriate, or issue and serve its complaint (in such form as the

circumstances may require) and decision, in disposition of the

proceeding.

5. This agreement is for settlement purposes only and does not

constitute an admission by proposed respondent that the law has been

violated as alleged in the draft of complaint, or that the facts

alleged in the draft complaint, other than the jurisdictional facts,

are true.

6. This agreement contemplates that, if it is accepted by the

Commission, and if such acceptance is not subsequently withdrawn by the

Commission pursuant to the provisions of Sec. 2.34 of the Commission's

Rules, the Commission may, without further notice to proposed

respondent, (1) issue its complaint corresponding in form and substance

with the draft of complaint and its decision containing the following

order to cease and desist in disposition of the proceeding, and (2)

make information public in respect thereto. When so entered, the order

to cease and desist shall have the same force and effect and may be

altered, modified, or set aside in the same manner and within the same

time provided by statute for other orders. The order shall become final

upon service. Delivery by the U.S. Postal Service of the complaint and

decision containing the agreed-to order to proposed respondent's

address as stated in this agreement shall constitute service. Proposed

respondent waives any right it may have to any other manner of service.

The complaint may be used in construing the terms of the order, and no

agreement, understanding, representation, or interpretation not

contained in the order or the agreement may be used to vary or

contradict the terms of the order.

7. Proposed respondent has read the proposed complaint and order

contemplated hereby. It understands that once the order has been

issued, it will be required to file one or more compliance reports

showing that it has fully complied with the order. Proposed respondent

further understands that it may be liable for civil penalties in the

amount provided by law for each violation of the order after it becomes

final.

Order

I

It Is Ordered that:

A. Respondent GE-SFA, its successors and assigns, and their

officers, agents, representatives, and employees, directly or through

any corporation, subsidiary, division, or other device, in connection

with the offering of credit, do forthwith cease and desist from failing

to accurately calculate and disclose the annual percentage rate, as

required by Sections 107(a) and (c) of the TILA, 15 U.S.C. 1606(a) and

(c), and Sections 226.18(e) and 226.22 of Regulation Z, 12 CFR

226.18(e) and 226.22;

B. Respondent GE-SFA, its successors and assigns, and its officers,

agents, representatives, and employees, directly or through any

corporation, subsidiary, division, or other device, in connection with

the offering of credit, do forthwith [[Page 29619]] cease and desist

from failing to accurately calculate and disclose the finance charge,

as required by Section 106 of the TILA, 15 U.S.C. 1605, and Sections

226.4 and 226.18(d) of Regulation Z, 12 CFR 226.4 and 226.18(d);

C. Respondent GE-SFA, its successors and assigns, and its officers,

agents, representatives, and employees, directly or through any

corporation, subsidiary, division, or other device, in connection with

the offering of credit, do forthwith cease and desist from failing to

make all disclosures in the manner, form, and amount required by

Sections 122 and 128(a) of the TILA, 15 U.S.C. 1632 and 1638(a), and

Sections 226.17 and 226.18 of Regulation Z, 12 CFR 226.17 and 226.18;

D. Respondent GE-SFA, its successors and assigns, and its officers,

agents, representatives, and employees, directly or through any

corporation, subsidiary, division, or other device, in connection with

the offering of credit, do forthwith cease and desist from failing to

comply with the TILA, 15 U.S.C. 1601 et seq., and Regulation Z, 12 CFR

part 226.

II

Refund Program

It Is Further Ordered that:

A. Within thirty (30) days following the date of service of this

order, respondent shall:

1. Determine to whom respondent disclosed on the original TILA

disclosure an annual percentage rate that was miscalculated by more

than one quarter of one percentage point below the annual percentage

rate determined in accordance with Section 226.22 of Regulation Z, 12

CFR 226.22, or that disclosed a finance charge that was miscalculated

by more than one dollar below the finance charge determined in

accordance with Section 226.4 of Regulation Z, 12 CFR 226.4, so that

each such person will not be required to pay a finance charge in excess

of the finance charge actually disclosed or the dollar equivalent of

the annual percentage rate actually disclosed, whichever is lower, plus

a tolerance of one quarter of one percentage point;

2. Calculate a lump sum refund and a monthly payment adjustment, if

applicable, in accordance with Section 108(e) of the TILA, 15 U.S.C.

1607(e);

3. Mail a refund check to each eligible consumer in the amount

determined above, along with Attachment 1; and

4. Provide the Federal Trade Commission with a list of each such

consumer, the amount of the refund, the number of payments refunded,

the amount of adjustment for future payments and the number of future

payments to be adjusted.

B. No later than fifteen (15) days following the date of service of

this order, respondent shall provide the Federal Trade Commission with

the name and address of three independent accounting firms, with which

it, its officers, employees, attorneys, agents, and franchisees have no

business relationship. Staff for the Division of Credit Practices of

the FTC shall then have the sole discretion to choose one of the firms

(``independent agent'') and so advise respondent;

C. Within thirty (30) days following the date of adjustments made

pursuant to this section, respondent shall direct the independent agent

to review a statistically-valid sample of refunds. Respondent shall

provide the Federal trade Commission with a certified letter from the

independent agent confirming that respondent has complied with Part

II.A. of this order;

D. All costs associated with the administration of the refund

program and payment of refunds shall be borne by the respondent.

III

It Is Further Ordered that respondent, its successors and assigns,

shall maintain for at least five (5) years from the date of service of

this order and, upon thirty (30) days advance written request, make

available to the Federal Trade Commission for inspection and copying

all documents and other records necessary to demonstrate fully its

compliance with this order.

IV

It Is Further Ordered that respondent, its successors and assigns,

shall distribute a copy of this order to any present or future officers

and managerial employees having responsibility with respect to the

subject matter of this order and that respondent, its successors and

assigns, shall secure from each such person a signed statement

acknowledging receipt of said order.

V

It Is Further Ordered that respondent, for a period of five (5)

years following the date of service of this order, shall promptly

notify the Commission at least thirty (30) days prior to any proposed

change in its corporate structure such as dissolution, assignment, or

sale resulting in the emergence of a successor corporation, the

creation or dissolution of subsidiaries or affiliates, or any other

change in the corporation that may affect compliance obligations

arising out of the order.

VI

It Is Further Ordered that respondent shall, within one hundred and

eighty (180) days of the date of service of this order, file with the

Commission a report, in writing, setting forth in detail the manner and

form in which it has complied with this order.

Attachment 1

Dear Great Expectations Customer:

As part of our settlement with the Federal Trade Commission for

alleged violations of the Truth in Lending Act, we are sending you the

enclosed refund check in the amount of $______. The refund represents

the amount you were overcharged as a result of errors made by Great

Expectations in calculating or disclosing the annual percentage rate or

finance charge.

[In addition, your future monthly payments have been reduced.

Starting immediately, your monthly payments will be $______.]

We regret any inconvenience this may have caused you.

Great Expectations

Analysis of Proposed Consent Order To Aid Public Comment

The Federal Trade Commission has accepted an agreement to a

proposed consent order from respondent KGE, Inc. (``GE-SFA'').

The proposed consent order has been placed on the public record for

sixty (60) days for 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 the comments received and will decide whether it should

withdraw from the agreement or make final the agreement's proposed

order.

The complaint alleges that GE-SFA, as a creditor under the Truth in

Lending Act (``TILA''), has violated the TILA and its implementing

Regulation Z. Specifically, the TILA requires creditors to make clear

and consistent disclosures of the credit terms in a financed

transaction. GE-SEA failed to accurately calculate and disclose the

annual percentage rate (``APR'') and the finance charge, which resulted

in some consumers paying more in interest charges and finance charges

than the franchise disclosed. The complaint further alleges that this

practice is unfair or deceptive in violation of the Federal Trade

Commission Act.

Additionally, the complaint alleges that GE-SFA failed to

accurately [[Page 29620]] disclose the itemization of the amount

financed, which assists consumers in understanding whether they are

being charged a prepaid finance charge or whether any of the proceeds

are being distributed to third parties.

Finally, the complaint alleges that GE-SFA failed to identify the

creditor in each transaction.

The consent agreement would prohibit GE-SFA from failing to

accurately calculate and disclose the APR and any other terms required

by the TILA.

The consent agreement includes a refund program requiring GE-SFA to

make adjustments to the account of any consumer to whom it disclosed an

APR or finance charge that was lower than the amount the consumer

actually was required to pay.

The consent agreement would also require GE-SFA to maintain records

of its compliance with the consent agreement, distribute copies of the

agreement to its employees, and advise the Federal Trade Commission of

any changes in its corporate structure.

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. 95-13654 Filed 6-2-95; 8:45 am]

BILLING CODE 6750-01-M