UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
In the Matter of
HEWLETT-PACKARD COMPANY, a corporation.
FILE NO. 002-3220
AGREEMENT CONTAINING CONSENT ORDER
The Federal Trade Commission has conducted an investigation of certain acts and
practices of Hewlett-Packard Company, a corporation ("proposed respondent").
Proposed respondent, having been represented by counsel, is willing to enter into an
agreement containing a consent order resolving the allegations contained in the attached
draft complaint. Therefore,
IT IS HEREBY AGREED by and between Hewlett-Packard Company, by its duly authorized
officer, and counsel for the Federal Trade Commission that:
- 1. Proposed respondent Hewlett-Packard Company is a Delaware corporation with its
principal office or place of business at 3000 Hanover Street, Palo Alto, California 94304.
2. Proposed respondent admits all the jurisdictional facts set forth in the draft
complaint.
3. Proposed respondent waives:-
- a. Any further procedural steps;
b. The requirement that the Commission's decision contain a statement of findings of fact
and conclusions of law; and
c. All rights 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 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 complaint, will be placed on the public record for
a period of thirty (30) days and information about it 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 complaint, or
that the facts as 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acceptance is not subsequently withdrawn by the Commission pursuant to the provisions of
Section 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
attached draft complaint and its decision containing the following order in disposition of
the proceeding, and (2) make information about it public. When so entered, the order 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 of the complaint and the decision and order to
proposed respondent's address as stated in this agreement by any means specified in
Section 4.4(a) of the Commission's Rules 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 draft complaint and consent order. It understands that
it may be liable for civil penalties in the amount provided by law and other appropriate
relief for each violation of the order after it becomes final.
ORDER
DEFINITIONS
For purposes of this Order, the following definitions shall apply:
- 1. Unless otherwise specified, "respondent" shall mean Hewlett-Packard
Company, a corporation, its successors and assigns and its officers, agents,
representatives, and employees.
-
- 2. "Clearly and conspicuously" shall mean as follows:
-
- A. In an advertisement communicated through an electronic medium (such as television,
video, radio, and interactive media such as the Internet and online services), the
disclosure shall be presented simultaneously in both the audio and visual portions of the
advertisement. Provided, however, that in any advertisement presented solely
through visual or audio means, the disclosure may be made through the same means in which
the ad is presented. The audio disclosure shall be delivered in a volume and cadence
sufficient for an ordinary consumer to hear and comprehend it. The visual disclosure shall
be of a size and shade, and shall appear on the screen for a duration, sufficient for an
ordinary consumer to read and comprehend it.
-
- B. In a print advertisement, promotional material, or instructional manual, the
disclosure shall be in a type size and location sufficiently noticeable for an ordinary
consumer to read and comprehend it, in print that contrasts with the background against
which it appears.
C. On a product label, the disclosure shall be in a type size and location on the same
display panel as the triggering representation sufficiently noticeable for an ordinary
consumer to read and comprehend it, in print that contrasts with the background against
which it appears.
The disclosure shall be in understandable language and syntax. Nothing contrary to,
inconsistent with, or in mitigation of the disclosure shall be used in any advertisement
or on any label.-
- 3. In the case of advertisements disseminated by means of an interactive electronic
medium such as software, the Internet, or online services, a disclosure made through the
use of a hyperlink shall not be deemed "clear and conspicuous" unless the
hyperlink itself is clear and conspicuous, is clearly identified as a hyperlink, is
labeled to convey the nature and relevance of the information it leads to, is on the same
webpage, online service page, or other electronic page and proximate to the triggering
representation, and takes the consumer directly to the disclosure on the click-through
electronic page or other display window or panel.
4. "Remotely access the Internet or email accounts" shall mean accessing the
Internet or email messages when away from any computer.
5. "General-purpose ISP service" shall mean the category of services which allow
consumers to access the Internet from personal computers. It shall not include a specific
Internet access service, if respondent's product requires use of that specific service to
access the Internet.
6. "Commerce" shall mean as defined in Section 4 of the Federal Trade Commission
Act, 15 U.S.C. § 44.
I.
IT IS ORDERED that respondent, directly or through any corporation, subsidiary,
division, or other device, in connection with the manufacturing, labeling, advertising,
promotion, offering for sale, sale, or distribution of any personal digital assistant or
handheld Internet or email access device that requires the use of an additional device or
connection to a telephone land line in order to remotely access the Internet or email
accounts, in or affecting commerce, shall not misrepresent, in any manner, expressly or by
implication, the ability of such product to access the Internet or email accounts, or any
performance characteristic of such product affecting access to the Internet or email
accounts.
II.
IT IS FURTHER ORDERED that respondent, directly or through any corporation, subsidiary,
division, or other device, in connection with the manufacturing, labeling, advertising,
promotion, offering for sale, sale, or distribution of any personal digital assistant or
handheld Internet or email access device that requires the use of an additional device or
connection to a telephone land line in order to remotely access the Internet or email
accounts, in or affecting commerce, shall not make any representation, in any manner,
expressly or by implication, about the ability of any such product to access the Internet
or email accounts unless respondent discloses, clearly and conspicuously, any other
products (such as a modem, mobile telephone, or adapter) or Internet or email access
services, other than general-purpose ISP service, that consumers must purchase in order to
access the Internet or email accounts using such product.
III.
IT IS FURTHER ORDERED that respondent Hewlett-Packard Company and its successors and
assigns shall, for five (5) years after the last date of dissemination of any
representation covered by this order, maintain and upon request make available to the
Federal Trade Commission for inspection and copying:
- A. All advertisements and promotional materials containing the representation;
-
- B. All materials that were relied upon in disseminating the representation; and
-
- C. All tests, reports, studies, surveys, demonstrations, or other evidence in their
possession or control that contradict, qualify, or call 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.
IV.
IT IS FURTHER ORDERED that respondent Hewlett-Packard Company and its successors and
assigns shall deliver a copy of this order to all current and future principals, officers,
directors, and managers, and to all current and future managerial or supervisory
employees, agents, and representatives having responsibilities with respect to the subject
matter of this order, and shall secure from each such person a signed and dated statement
acknowledging receipt of the order. Respondents shall deliver this order to current
personnel within thirty (30) days after the date of service of this order, and to future
personnel within thirty (30) days after the person assumes such position or
responsibilities.
V.
IT IS FURTHER ORDERED that respondent Hewlett-Packard Company and its successors and
assigns shall notify the Commission at least thirty (30) days prior to any change in the
corporation that may affect compliance obligations arising under this order, including,
but not limited to, a dissolution, assignment, sale, merger, or other action that would
result in the emergence of a successor corporation; the creation or dissolution of a
subsidiary, parent, or affiliate that engages in any acts or practices subject to this
order; the proposed filing of a bankruptcy petition; or a change in the corporate name or
address. Provided, however, that, with respect to any proposed change in the
corporation about which respondent learns less than thirty (30) days prior to the date
such action is to take place, respondent shall notify the Commission as soon as is
practicable after obtaining such knowledge. All notices required by this Part shall be
sent by certified mail to the Associate Director, Division of Enforcement, Bureau of
Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington,
D.C. 20580.
VI.
IT IS FURTHER ORDERED that respondent Hewlett-Packard Company and its successors and
assigns shall, within sixty (60) days after service of this order, and at such other times
as the Federal Trade Commission may require, file with the Commission a report, in
writing, setting forth in detail the manner and form in which they have complied with this
order.
VII.
This order will terminate twenty (20) years from the date of its issuance, or twenty
(20) years from the most recent date that the United States or the Federal Trade
Commission files a complaint (with or without an accompanying consent decree) in federal
court alleging any violation of the order, whichever comes later; provided, however,
that the filing of such a complaint will not affect the duration of:
- A. Any Part in this order that terminates in less than twenty (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
Part.
Provided, further, that if such complaint is dismissed or a federal court
rules that the 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 Part 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.
Signed this ________________ day of _______________ 200_.
Hewlett-Packard Company
By:
An officer of the corporation
ROBERT A. SKITOL
Drinker Biddle & Reath LLP
Attorney for Respondent
JOCK K. CHUNG
Counsel for the Federal Trade Commission
KEITH FENTONMILLER
Counsel for the Federal Trade Commission
MICHAEL OSTHEIMER
Counsel for the Federal Trade Commission
APPROVED:
C. LEE PEELER
Associate Director
Division of Advertising Practices
JOAN Z. BERNSTEIN
Director
Bureau of Consumer Protection |