82 FR 17263 - American Guild of Organists; Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

Federal Register Volume 82, Issue 67 (April 10, 2017)

The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order-- embodied in the consent agreement--that would settle these allegations.

[Federal Register Volume 82, Number 67 (Monday, April 10, 2017)]
[Notices]
[Pages 17263-17265]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-07070]


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FEDERAL TRADE COMMISSION

[File No. 151 0159]


American Guild of Organists; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair methods of competition. 
The attached Analysis to Aid Public Comment describes both the 
allegations in the complaint and the terms of the consent order--
embodied in the consent agreement--that would settle these allegations.

DATES: Comments must be received on or before May 2, 2017.

ADDRESSES: Interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/americanguildconsent online or on paper, 
by following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``In the Matter of 
American Guild of Organists; File No. 151-0159'' on your comment and 
file your comment online at https://ftcpublic.commentworks.com/ftc/americanguildconsent by following the instructions on the web-based 
form. If you prefer to file your comment on paper, write ``In the 
Matter of American Guild of Organists; File No. 151-0159'' 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.

FOR FURTHER INFORMATION CONTACT: Karen A. Mills (202-326-2052), Bureau 
of Competition, 600 Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreement 
containing consent orders 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 thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreement, and the allegations in the complaint. An electronic 
copy of the full text of the consent agreement package can be obtained 
from the FTC Home Page (for March 31, 2017), on the World Wide Web, at 
http://www.ftc.gov/os/actions.shtm.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before May 2, 2017. 
Write ``In the Matter of American Guild of Organists; File No. 151-
0159'' on your comment. Your comment--including your name and your 
state--will be placed on the public record of this proceeding, 
including, to the extent practicable, on the public Commission Web 
site, at https://www.ftc.gov/policy/public-comments. As a matter of 
discretion, the Commission tries to remove individuals' home contact 
information from comments before placing them on the Commission Web 
site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which . . . is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ 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.
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    \1\ 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).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a

[[Page 17264]]

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/americanguildconsent 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 ``In the Matter of 
American Guild of Organists; File No. 151-0159'' 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. 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 2, 2017. 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 Agreement Containing Consent Order To Aid Public Comment

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an Agreement Containing Consent Order (``Consent 
Agreement'') from the American Guild of Organists (hereinafter ``the 
AGO''). The Commission's complaint (``Complaint'') alleges that the 
AGO, acting as a combination of its members and in agreement with at 
least some of its members, restrained competition among its members and 
others in violation of Section 5 of the Federal Trade Commission Act, 
as amended, 15 U.S.C. 45, by adopting and maintaining provisions in its 
Code of Ethics that restrain AGO members from freely seeking or 
accepting work, and by recommending that its members use standard fees 
and approaches to determine compensation for members' services. This 
likely raised prices for consumers seeking to employ organists for 
special occasions, as well as the organizations that employed 
organists.
    The proposed Consent Agreement requires the AGO to cease and desist 
from restraining competition among its members, including by 
restricting members' freedom to seek or accept work, or by restraining 
price competition among members.
    The Commission anticipates that accepting the proposed order, 
subject to final approval, contained in the Consent Agreement, will 
resolve the competitive issues described in the Complaint. The proposed 
Consent Agreement has been placed on the public record for 30 days for 
receipt of comments from interested members of the public. Comments 
received during this period will become part of the public record. 
After 30 days, the Commission will review the Consent Agreement again 
and the comments received, and will decide whether it should withdraw 
from the Consent Agreement or make final the accompanying Decision and 
Order (``the Proposed Order'').
    This Analysis to Aid Public Comment seeks to invite and facilitate 
public comment. It does not constitute an official interpretation of 
the proposed Consent Agreement and the accompanying Proposed Order or 
in any way modify their terms.
    The Consent Agreement is for settlement purposes only and does not 
constitute an admission by the AGO that the law has been violated as 
alleged in the Complaint or that the facts alleged in the Complaint, 
other than jurisdictional facts, are true.

I. The Complaint

    The Complaint makes the following allegations.

A. The Respondent and the Provisions at Issue

    The AGO is a non-profit trade association. The AGO has 
approximately 15,000 members organized in more than 300 chapters 
throughout the United States and abroad. The AGO membership includes 
organists and choral conductors. The AGO's members provide services as 
organists and choral conductors for a fee.
    The AGO maintains a Code of Ethics applicable to the commercial 
activities of its members. The Code of Ethics states in part that,

    ``Members shall not seek or appear to be seeking employment for 
themselves, a student, or a colleague, in a position held by someone 
else . . .'' and
    ``Members shall obtain the approval of the incumbent musician 
before accepting an engagement for a wedding, funeral, or other 
service requested by a third party. In such cases, the incumbent 
should receive his/her customary fee, and the third party is 
expected to provide it. It is the responsibility of the guest member 
to inform the third party of this rule.''

    The AGO adopted standardized documents relating to compensation, 
including fee schedules, a salary guide, worksheets for calculating 
work performed, and model contract provisions for members to 
(hereinafter ``compensation guidelines''). The fee schedules cover the 
fees to be charged for such work as rehearsals, performing as a 
substitute, weddings, funerals, rehearsals, contracting additional 
musicians, mileage reimbursement, and cancelled services, and include a 
formula for its chapters and members to use for geographic adjustment 
of the compensation baselines.

B. The Anticompetitive Conduct

    The FTC investigated the provisions of the AGO's Code of Ethics and 
compensation guidelines that allegedly restrained competition and 
harmed consumers, and which had generated consumer and organist 
complaints. The Complaint alleges that the AGO violated Section 5 of 
the Federal Trade Commission Act by agreeing to restrain competition 
among organists and choral conductors. The AGO's adoption and 
enforcement of the Code of Ethics and compensation guidelines represent 
agreements among competitors not to compete. The Code of Ethics limits 
the freedom of organists and choral directors to seek or accept 
positions and engagements. The compensation guidelines limit price 
competition and impose additional costs on consumers. For consumers who 
wanted to employ an organist of their choice for a wedding, funeral, or 
other occasion, the AGO's Code of Ethics included a provision that had 
the effect of requiring some consumers to pay for the services of two 
organists--the organist they chose and hired, and the incumbent 
organist of the venue location even though only the first organist 
performed. The provisions and enforcement of the AGO's Code of Ethics, 
as well as its compensation guidelines, likely increased prices for 
consumers and those that employed organists as choral directors or in 
permanent organist positions.
    The AGO adopted the Code of Ethics, educates members about the Code 
of Ethics, exhorts its members to follow the Code of Ethics, and 
enforces the Code of Ethics. The AGO may expel a member that fails to 
abide by the Code of Ethics.

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    The AGO instructs its chapters to use AGO's compensation schedules 
and formulas to develop regionally applicable compensation schedules. 
AGO chapters used the AGO compensation schedules and formulas to 
develop and publicize regionally applicable compensation schedules. AGO 
members used the compensation schedules to determine what to charge for 
their services.
    The purpose, effect, tendency, or capacity of the combination, 
agreement, acts and practices of the AGO has been and is to restrain 
competition unreasonably and to injure consumers by discouraging and 
restricting competition among organists and choral directors.

II. The Proposed Order

    The Proposed Order has the following substantive provisions.
    Paragraph II of the Proposed Order requires the AGO to cease and 
desist from restraining or declaring unethical, interfering with, or 
advising against price competition by members, and from creating or 
recommending lists, guidelines, or model contract provisions for its 
members to use to determine fees or compensation. It also requires the 
AGO to cease and desist from restricting members freedom to seek or 
accept positions or engagements. Paragraph II also prohibits the AGO 
from accepting as a chapter or maintaining a relationship with any 
chapter that the AGO knows engages in conduct prohibited by the 
Proposed Order.
    Paragraph III of the Proposed Order requires the AGO to remove from 
its organization documents and Web site any statement inconsistent with 
the Proposed Order, including the challenged Code of Ethics 
restrictions. The AGO must publicize to its members, new members, 
leaders, employees, and the public the changes the AGO must make to the 
Code of Ethics, and a statement describing the Consent Agreement. 
Paragraph III also requires the AGO to terminate recognition of 
chapters that fail to certify Compliance with the Proposed Order, and 
chapters that the AGO learns have engaged in any prohibited practice, 
if such chapters do not commit to ending such practices.
    Paragraph IV of the Proposed Order requires the AGO to design, 
maintain, and operate an antitrust compliance program. Paragraphs V-VII 
contain standard reporting, notification, and cooperation requirements.
    The Proposed Order will expire in 20 years; the Proposed Order 
limits certain provisions to a period of five years.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017-07070 Filed 4-7-17; 8:45 am]
 BILLING CODE 6750-01-P