Independent News Company, Inc.; Prohibited Trade Practices and Affirmative Corrective Actions

FEDERAL TRADE COMMISSION

[Dkt. 7611]

Independent News Company, Inc.; Prohibited Trade Practices and

Affirmative Corrective Actions

AGENCY: Federal Trade Commission.

ACTION: Set aside order.

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SUMMARY: This order reopens a 1960 consent order--which required the

company to offer promotional allowances for its publications on

proportionally equal terms to all customers--and sets aside the consent

order as to respondent Warner Publisher Services, the successor of

Independent News Company, pursuant to the Commission's Sunset Policy

Statement, under which the Commission presumes that the public interest

requires terminating competition orders that are more than 20 years

old.

DATES: Consent order issued July 6, 1960. Set aside order issued June

14, 1995.

FOR FURTHER INFORMATION CONTACT:

Daniel Ducore, FTC/S-2115, Washington, DC. 20580. (202) 326-2526.

SUPPLEMENTARY INFORMATION: In the Matter of Independent News Company,

Inc. The prohibited trade practices and/or corrective actions are

removed as indicated.

(Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets or applies sec. 2,

49 Stat. 1526; 15 U.S.C. 13)

Order Reopening Proceeding and Setting Aside Order

Commissioners: Robert Pitofsky, Chairman, Mary L. Azcuenaga, Janet

D. Steiger, Roscoe B. Starek, III, Christine A. Varney

On February 16, 1995, Warner Publisher Services, Inc. (``WPS''), as

respondent and successor of Independent News Company, Inc.,\1\ filed a

Petition to Reopen and Set Aside Consent Order (``Petition''), in this

matter. WPS requests that the Commission set aside the 1960 consent

order in this matter pursuant to section 5(b) of the Federal Trade

Commission Act, 15 U.S.C. 45(b), Rule 2.51 of the Commission's rules of

practice, 16 CFR 2.51, and the Statement of Policy With Respect to

Duration of Competition Orders and Statement of Intention to Solicit

Public Comment With Respect to Duration of Consumer Protection Orders,

issued on July 22, 1994, and published at 59 FR 45,286-92 (Sept. 1,

1994) (``Sunset Policy Statement''). In its Petition, WPS affirmatively

states that it has not engaged in any conduct violating the terms of

the order. The Petition was placed on the public record, and the

thirty-day comment period expired on March 27, 1995. No comments where

received.

\1\ Since the Commission issued the order in this matter,

Independent has changed its name to Warner Publisher Services, Inc.

and is now owned by Warner Communications Inc. The other respondent

in this matter, The New American Library of World Literature, Inc.,

did not petition to have the order set aside as to it.

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The Commission in its Sunset Policy Statement said, in relevant

part, that ``effective immediately, the Commission

[[Page 43801]]

will presume, in the context of petitions to reopen and modify existing

orders, that the public interest requires setting aside orders in

effect for more than twenty years.'' \2\ The Commission's consent order

in Docket No. 7611 was issued on July 6, 1960, and has been in effect

for more than twenty years. Consistent with the Commission's Sunset

Policy Statement, the presumption is that the order should be

terminated. Nothing to overcome the presumption having been presented,

the Commission has determined to reopen the proceeding and set aside

the order in Docket No. 7611 as to WPS.

\2\ See Sunset Policy Statement, 59 Fed. Reg. at 45,289.

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Accordingly, it is ordered that this matter be, and it hereby is,

reopened;

It is further ordered that the Commission's order in Docket No.

7611 be, and it hereby is, set aside as to respondent Warner Publisher

Services, Inc., as of the effective date of this order.

By the Commission.

Benjamin I. Berman,

Acting Secretary.

Concurring Statement of Commissioner Mary L. Azcuenaga in Independent

News Company, Inc., Docket No. 7611

I concur in the decision to grant the request of Warner Publisher

Services, Inc., the successor of Independent News Company, Inc., to set

aside the 1960 order in this case. I dissent from the decision to limit

the setting aside of the order to Warner, instead of setting aside the

order in its entirety.

The decision to limit relief to Warner, one of the two respondents

under the order, appears to be inconsistent with the Commission's

announced policy to presume ``that the public interest requires

reopening and setting aside the order in its entirety'' (emphasis

added) ``when a petition to reopen and modify a competition order is

filed'' and the order is more than twenty years old.\1\ The

Commission's recognition of the limitations of the findings underlying

an order \2\ further suggests that the presumption that an order will

be terminated after twenty years should apply to the order in its

entirety and not be limited to the petitioner.\3\

\1\ FTC, Statement of Policy with Respect to Duration of

Competition Orders and Statement of Intention To Solicit Public

Comment with Respect to Duration of Consumer Protection Orders (July

22, 1994), at 8 (hereafter ``Sunset Policy Statement'').

\2\ ``[F]indings upon which [orders] are based should not be

presumed to continue'' for longer than twenty years. Sunset Policy

Statement at 4.

\3\ The presumption of termination after 20 years applies

automatically for new orders in competition cases and is not limited

to individual respondents, further supporting the view that the

twenty-year presumption in favor of sunset for existing orders

should apply to the order, not to particular respondents.

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I previously have expressed my concern that the adoption of a

presumption instead of an across-the-board rule in favor of sunset

``will impose costs by requiring respondents to file individual

petitions and the Commission to assess in the context of each such

petition whether the presumption has been overcome for that order.''

\4\ Now the Commission would further increase the burden on both public

and private resources by applying the presumption in favor of sunset

not only on a case-by-case basis but on a respondent-by-respondent

basis.

\4\ Separate Statement of Commissioner Mary L. Azcuenaga on

Sunset Policy (July 22, 1994), at 7 (footnote omitted).

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The petition filed by Warner invoked the twenty-year presumption

that the order should be set aside. No evidence of recidivist conduct

by any respondent, including The New American Library of World

Literature, Inc., having been presented to overcome the presumption,\5\

the order should be set aside in its entirety.

\5\ See Sunset Policy Statement at 8 n.19.

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[FR Doc. 95-20904 Filed 8-22-95; 8:45 am]

BILLING CODE 6750-01-M