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Federal Register / Vol. 80, No. 70 / Monday, April 13, 2015 / Notices
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In particular, the written request for confidential
treatment that accompanies the comment must
include the factual and legal basis for the request,
and must identify the specific portions of the
comment to be withheld from the public record. See
FTC Rule 4.9(c), 16 CFR 4.9(c).
4.9(c).
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Your comment will be kept
confidential only if the FTC General
Counsel, in his or her sole discretion,
grants your request in accordance with
the law and the public interest.
Postal mail addressed to the
Commission is subject to delay due to
heightened security screening. As a
result, we encourage you to submit your
comments online. To make sure that the
Commission considers your online
comment, you must file it at https://
ftcpublic.commentworks.com/ftc/
tesfranchisingconsent by following the
instructions on the web-based form. If
this Notice appears at http://
www.regulations.gov/#!home, you also
may file a comment through that Web
site.
If you file your comment on paper,
write ‘‘TES Franchising, LLC, Consent
Agreement; File No. 1523015’’ on your
comment and on the envelope, and mail
your comment to the following address:
Federal Trade Commission, Office of the
Secretary, 600 Pennsylvania Avenue
NW., Suite CC–5610 (Annex D),
Washington, DC 20580, or deliver your
comment to the following address:
Federal Trade Commission, Office of the
Secretary, Constitution Center, 400 7th
Street SW., 5th Floor, Suite 5610
(Annex D), Washington, DC 20024. If
possible, submit your paper comment to
the Commission by courier or overnight
service.
Visit the Commission Web site at
http://www.ftc.gov to read this Notice
and the news release describing it. The
FTC Act and other laws that the
Commission administers permit the
collection of public comments to
consider and use in this proceeding as
appropriate. The Commission will
consider all timely and responsive
public comments that it receives on or
before May 7, 2015. You can find more
information, including routine uses
permitted by the Privacy Act, in the
Commission’s privacy policy, at http://
www.ftc.gov/ftc/privacy.htm.
Analysis of Proposed Consent Order To
Aid Public Comment
The Federal Trade Commission
(‘‘FTC’’ or ‘‘Commission’’) has accepted,
subject to final approval, a consent
agreement applicable to TES
Franchising, LLC (‘‘TES’’).
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 and take
appropriate action or make final the
agreement’s proposed order.
This matter concerns alleged false or
misleading representations that TES
made to consumers concerning its
participation in the Safe Harbor privacy
frameworks agreed upon by the U.S. and
the European Union and the U.S. and
Switzerland (collectively, ‘‘Safe Harbor
Frameworks’’) and concerning the
handling of consumer disputes relating
to the Safe Harbor Frameworks. The
proposed complaint also alleges that
TES made false or misleading
representations to the effect that it was
a current licensee of the TRUSTe self-
regulatory program.
The Safe Harbor Frameworks allow
U.S. companies to transfer data outside
the EU and Switzerland consistent with
European law. To join the Safe Harbor
Frameworks, a company must self-
certify to the U.S. Department of
Commerce (‘‘Commerce’’) that it
complies with a set of principles and
related requirements that have been
deemed by the European Commission
and Switzerland as providing
‘‘adequate’’ privacy protection. These
principles include notice, choice,
onward transfer, security, data integrity,
access, and enforcement. Among other
things, the enforcement principle
requires companies to provide a readily
available and affordable independent
recourse mechanism to investigate and
resolve an individual’s complaints and
disputes. Commerce maintains a public
Web site, www.export.gov/safeharbor,
where it posts the names of companies
that have self-certified to the Safe
Harbor Frameworks. The listing of
companies indicates whether their self-
certification is ‘‘current’’ or ‘‘not
current.’’ Companies are required to re-
certify every year in order to retain their
status as ‘‘current’’ members of the Safe
Harbor Frameworks.
TES provides business coaching
services to franchisees. According to the
Commission’s complaint, TES has set
forth on its Web site,
www.entrepreneursource.com, privacy
policies and statements about its
practices, including (1) statements
related to its participation in the Safe
Harbor Frameworks and (2) statements
indicating that it is a licensee of the
TRUSTe Privacy Program.
The Commission’s complaint alleges
that from March 2013 until February
2015 TES falsely represented that it was
a ‘‘current’’ participant in the Safe
Harbor Frameworks when, in fact, the
company’s self-certifications had
lapsed. The Commission’s complaint
also alleges that during this same time
period TES represented that all Safe
Harbor-related disputes would be
settled by an ‘‘arbitration administered
agency’’ such as the American
Arbitration Association, that hearings
would take place in Connecticut, and
that the costs of arbitration would be
shared equally by the parties. In fact, the
independent recourse mechanism
authorized under TES’s Safe Harbor
certification was the European data
protection authorities, which resolve
Safe Harbor-related disputes at no cost
to consumers and do not require in-
person hearings. The Commission’s
complaint alleges that these false
representations are likely to deter EU
and Swiss citizens from attempting to
take advantage of the dispute resolution
services offered by the company.
The Commission’s complaint further
alleges that until February 2015, TES
represented through statements in its
online privacy policy that it was a
current licensee of the TRUSTe Privacy
Program, when, in fact, it was not a
current licensee.
Part I of the proposed order prohibits
TES from making misrepresentations
about its membership in any privacy or
security program sponsored by the
government or any other self-regulatory
or standard-setting organization,
including, but not limited to, the U.S.-
EU Safe Harbor Framework, the U.S.-
Swiss Safe Harbor Framework, and the
TRUSTe privacy programs. Part II of the
proposed order also prohibits TES from
misrepresenting in any manner, its
participation in, or the rules, processes,
policies, or costs of, any alternative
dispute resolution process or service,
including but not limited to, arbitration,
mediation, or other independent
recourse mechanism.
Parts III through VII of the proposed
order are reporting and compliance
provisions. Part III requires TES to
retain documents relating to its
compliance with the order for a five-
year period. Part IV requires
dissemination of the order now and in
the future to persons with
responsibilities relating to the subject
matter of the order. Part V ensures
notification to the FTC of changes in
corporate status. Part VI mandates that
TES submit an initial compliance report
to the FTC, and make available to the
FTC subsequent reports. Part VII is a
provision ‘‘sunsetting’’ the order after
twenty (20) years, with certain
exceptions.
The purpose of this analysis is to
facilitate public comment on the
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