83 FR 11529 - Oregon Lithoprint, Inc.; Analysis To Aid Public Comment

FEDERAL TRADE COMMISSION

Federal Register Volume 83, Issue 51 (March 15, 2018)

Page Range		11529-11532
FR Document		2018-05252

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 83 Issue 51 (Thursday, March 15, 2018)

[Federal Register Volume 83, Number 51 (Thursday, March 15, 2018)]
[Notices]
[Pages 11529-11532]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-05252]

-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

[File No. 161 0230]

Oregon Lithoprint, Inc.; Analysis To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreement.

-----------------------------------------------------------------------

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 April 8, 2018.

ADDRESSES: Interested parties may file a comment 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
Oregon Lithoprint, Inc., File No. 161 0230'' on your comment, and file
your comment online at https://ftcpublic.commentworks.com/ftc/oregonlithoprintconsent by following the instructions on the web-based
form. If

[[Page 11530]]

you prefer to file your comment on paper, write ``In the Matter of
Oregon Lithoprint, Inc., File No. 161 0230'' 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: Michael Turner (202-326-3619), 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 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 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 9, 2018), on the World Wide Web, at
https://www.ftc.gov/news-events/commission-actions.
You can file a comment online or on paper. For the Commission to
consider your comment, we must receive it on or before April 8, 2018.
Write ``In the Matter of Oregon Lithoprint, Inc., File No. 161 0230''
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 website, at https://www.ftc.gov/policy/public-comments.
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/oregonlithoprintconsent 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 website.
If you prefer to file your comment on paper, write ``In the Matter
of Oregon Lithoprint, Inc., File No. 161 0230'' 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.
Because your comment will be placed on the publicly accessible FTC
website at https://www.ftc.gov, you are solely responsible for making
sure that your comment does not include any sensitive or confidential
information. In particular, your comment should not include any
sensitive personal information, such as your or anyone else'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, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
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)--including in particular competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
Comments containing material for which confidential treatment is
requested must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with FTC Rule 4.9(c). 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). Your comment will be kept
confidential only if the General Counsel grants your request in
accordance with the law and the public interest. Once your comment has
been posted on the public FTC website--as legally required by FTC Rule
4.9(b)--we cannot redact or remove your comment from the FTC website,
unless you submit a confidentiality request that meets the requirements
for such treatment under FTC Rule 4.9(c), and the General Counsel
grants that request.
Visit the FTC website 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 April 8, 2018. For information on the
Commission's privacy policy, including routine uses permitted by the
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Analysis of Agreement Containing Consent Orders To Aid Public Comment

The Federal Trade Commission (``Commission'') has accepted, subject
to final approval, an agreement containing consent order (``Consent
Agreement'') from Oregon Lithoprint Inc. (``OLI''). The Commission's
Complaint alleges that OLI violated Section 5 of the Federal Trade
Commission Act, as amended, 15 U.S.C. 45, by inviting a competitor in
the publication of foreclosure notices to divide clients by geographic
market.
Under the terms of the proposed Consent Agreement, OLI is required
to cease and desist from communicating with its competitors about the
placement of foreclosure notices. It is also barred from entering into,
participating in, inviting, or soliciting an agreement with any
competitor to divide markets or to allocate customers.
The 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 (``Proposed Order'').
The purpose of this Analysis to Aid Public Comment is to invite and
facilitate public comment. It is not intended to constitute an official
interpretation of the proposed Consent Agreement and the accompanying
Proposed Order or in any way to modify their terms.

I. The Complaint

The allegations of the Complaint are summarized below:

[[Page 11531]]

OLI owns the News-Register, a twice-weekly community newspaper
based in Yamhill, Oregon. Among other things, the News-Register charges
clients to publish a type of legal notice known as a foreclosure
notice. Under Oregon law, parties foreclosing on real property must
place a notice of foreclosure in a qualifying newspaper in the county
within which the property is located.
The News-Register's only competitor in Yamhill County is The
Newberg Graphic, a weekly community newspaper. The Newberg Graphic also
publishes foreclosure notices, and it charges considerably less than
the News-Register for the service. The News-Register has more
subscribers and a wider circulation within Yamhill County than The
Newberg Graphic.
In August 2016, the publisher of the News-Register learned that a
client intended to place foreclosure notices only in The Newberg
Graphic from that point on because The Newberg Graphic was less
expensive than the News-Register. In response, on August 29, 2016, the
publisher emailed a manager at the parent company of The Newberg
Graphic and explained the publisher's view that, under state law,
foreclosure notices should be placed in the newspaper with the largest
circulation in the area that the property is located. The publisher
concluded his email by inviting the competitor to join the News-
Register in instructing mutual clients that they should place
foreclosure notices in the newspaper dominant in the area of the
foreclosed property. The parent company of the The Newberg Graphic
rejected the invitation and reported it to the Federal Trade
Commission.
Several months later, in October 2016, the publisher of the News-
Register emailed the competitor again to state that the News-Register
had told a client to use The Newberg Graphic because the property in
question was located in its area, and that the client was in fact going
to use The Newberg Graphic to publish the notice. He ended the email
stating ``[i]t is probably too much to expect that others would do
likewise.''
The parent company of the The Newberg Graphic interpreted this
second email as another invitation to collude, rejected the invitation,
and reported it to the Federal Trade Commission.

II. Analysis

OLI's August 29, 2016, email to its competitor is an explicit
attempt to arrange an agreement between the two companies to divide
foreclosure notices by geography. It is an invitation to collude. The
October 2016 email is also an invitation to collude: OLI proposed a
market allocation scheme and expressed a hope that its competitor would
join that conduct. The Commission has long held that invitations to
collude violate Section 5 of the FTC Act.
In a 2015 statement, the Commission explained that unfair methods
of competition under Section 5 ``must cause, or be likely to cause,
harm to competition or the competitive process, taking into account any
associated cognizable efficiencies and business justifications.'' \1\
Potential violations are evaluated under a ``framework similar to the
rule of reason.'' \2\ Competitive effects analysis under the rule of
reason depends upon the nature of the conduct that is under review.\3\
---------------------------------------------------------------------------

\1\ Fed. Trade Comm'n, Statement of Enforcement Principles
Regarding ``Unfair Methods of Competition'' Under Section 5 of the
FTC Act (Aug. 13, 2015) (Section 5 Unfair Methods of Competition
Policy Statement), available at https://www.ftc.gov/system/files/documents/public_statements/735201/150813section5enforcement.pdf.
Acting Chairman Ohlhausen dissented from the issuance of the Section
5 Unfair Methods of Competition Policy Statement. See https://www.ftc.gov/public-statements/2015/08/dissenting-statement-commissioner-ohlhausen-ftc-act-section-5-policy.
\2\ Section 5 Unfair Methods of Competition Policy Statement.
\3\ See, e.g., California Dental Ass'n v. FTC, 526 U.S. 756, 781
(1999) (``What is required . . . is an inquiry meet for the case,
looking to the circumstances, details, and logic of a restraint.'').
---------------------------------------------------------------------------

An invitation to collude is ``potentially harmful and . . . serves
no legitimate business purpose.'' \4\ For this reason, the Commission
treats such conduct as ``inherently suspect'' (that is, presumptively
anticompetitive).\5\ Accordingly, an invitation to collude can be
condemned under Section 5 without a showing that the respondent
possesses market power.\6\
---------------------------------------------------------------------------

\4\ In re Valassis Commc'ns., Inc., 141 F.T.C. 247, 283 (2006)
(Analysis of Agreement Containing Consent Order to Aid Public
Comment); see also Address by FTC Chairwoman Edith Ramirez, Section
5 Enforcement Principles, George Washington University Law School at
5 (Aug. 13, 2015), available at https://www.ftc.gov/system/files/documents/public_statements/735411/150813section5speech.pdf.
\5\ See, e.g., In re North Carolina Bd. of Dental Examiners, 152
F.T.C. 640, 668 (2011) (noting that conduct is inherently suspect if
it can be ``reasonably characterized as `giv[ing] rise to an
intuitively obviously inference of anticompetitive effect.' ''
(citation omitted)).
\6\ See, e.g., In re Realcomp II, Ltd., 148 F.T.C. ___, No.
9320, 2009 FTC LEXIS 250 at *51 (Oct. 30, 2009) (Comm'n Op.)
(explaining that if conduct is ``inherently suspect'' in nature, and
there are no cognizable procompetitive justifications, the
Commission can condemn it ``without proof of market power or actual
effects'').
---------------------------------------------------------------------------

The Commission has long held that an invitation to collude violates
Section 5 of the FTC Act even where there is no proof that the
competitor accepted the invitation \7\ This is for several reasons.
First, unaccepted solicitations may facilitate coordination between
competitors because they reveal information about the solicitor's
intentions or preferences. Second, it can be difficult to discern
whether a competitor has accepted a solicitation. Third, finding a
violation may deter conduct that has no legitimate business purpose.\8\
---------------------------------------------------------------------------

\7\ See, e.g., In re Valassis Commc'ns, Inc., 141 F.T.C. 247
(2006); In re Stone Container, 125 F.T.C. 853 (1998); In re
Precision Moulding, 122 F.T.C. 104 (1996). See also In re McWane,
Inc., Docket No. 9351, Opinion of the Commission on Motions for
Summary Decision at 20-21 (F.T.C. Aug. 9, 2012) (``an invitation to
collude is `the quintessential example of the kind of conduct that
should be . . . challenged as a violation of Section 5' '') (citing
the Statement of Chairman Liebowitz and Commissioners Kovacic and
Rosch, In re U-Haul Int'l, Inc., 150 F.T.C. 1, 53 (2010)). This
conclusion has been endorsed by leading antitrust scholars. See P.
Areeda & H. Hovenkamp, VI ANTITRUST LAW ] 1419 (2003); Stephen
Calkins, Counterpoint: The Legal Foundation of the Commission's Use
of Section 5 to Challenge Invitations to Collude is Secure,
ANTITRUST Spring 2000, at 69. In a case brought under a state's
version of Section 5, the First Circuit expressed support for the
Commission's application of Section 5 to invitations to collude. Liu
v. Amerco, 677 F.3d 489 (1st Cir. 2012).
\8\ In re Valassis Comm'c, Inc., 141 F.T.C. 247, 283 (2006)
(Analysis of Agreement Containing Consent Order to Aid Public
Comment).
---------------------------------------------------------------------------

III. The Proposed Consent Order

The Proposed Order contains the following substantive provisions:
Section II, Paragraph A of the Proposed Order enjoins OLI from
entering or attempting to enter any agreement to refuse to publish
legal notices or allocate customers for the publication of legal
notices.
Section II, Paragraph B prohibits OLI from publically or privately
communicating with a competitor that the competitor should advice
customers to place foreclosure notices in the newspaper with the widest
circulation in the area in which the property is located, or refuse to
publish notices for properties located in a competitor's primary
distribution area.
Section II, Paragraph C, contains three provisos. The first allows
OLI to communicate with any governmental body regarding the proper
interpretation of state law related to legal notices. The second allows
OLI to participate with any effort of the Oregon newspaper association
to lobby any governmental body regarding legal notices. The third
allows OLI to disseminate information regarding legal notices to the
public.
Sections III-VI of the Proposed Order impose certain standard
reporting and compliance requirements on OLI.
The Proposed Order will expire in 10 years.

[[Page 11532]]

The purpose of this analysis is to facilitate public comment on the
proposed Consent agreement, and the Commission does not intend this
analysis to constitute an official interpretation of the proposed
Consent Agreement or to modify its terms in any way.

By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2018-05252 Filed 3-14-18; 8:45 am]
BILLING CODE 6750-01-P

Federal Register / Vol. 83, No. 51 / Thursday, March 15, 2018 / Notices 11529

period will become part of the public The Commission’s Complaint alleges transfer patients to and from medical
record. After 30 days, the Commission that the relevant geographic market in facilities and the aircraft it operates.
will again review the Consent which to analyze the effects of the The proposed Consent Agreement
Agreement and the comments received, Acquisition is the State of Hawaii. also contains an Order to Maintain
and will decide whether it should The Commission’s Complaint alleges Assets that will issue at the time the
withdraw from the Consent Agreement, that the Acquisition will increase proposed Consent Agreement is
modify it, or make final the Decision concentration in an already highly accepted for public comment. The Order
and Order (‘‘Order’’). concentrated market. AMGH and AMR to Maintain Assets requires
are the only two providers of inter- Respondents to operate and maintain
II. The Parties
facility air ambulance transport services the divestiture assets in the normal
A. AMGH in Hawaii. course of business through the date that
AMGH is wholly owned by KKR the Respondents complete divestiture of
V. Effects of the Transaction the assets, thereby maintaining the
North America Fund XI (AMG) LLC. It
is likely the largest provider of air According to the Commission, the economic viability, marketability, and
ambulance services in the United States effect of the Acquisition, if competitiveness of the assets. The Order
with 270 operating locations in 38 consummated, may be substantially to to Maintain Assets also authorizes the
states. AMGH operates as Hawaii Life lessen competition and tend to create a Commission to appoint an independent
Flight in Hawaii. monopoly in inter-facility air ambulance third party as a monitor to oversee the
transport services, and increase the Respondents’ compliance with the
B. AMR requirements of the proposed Consent
likelihood of the unilateral exercise of
AMR is a wholly-owned subsidiary of market power. The Acquisition would Agreement.
Envision Healthcare and is the largest increase the likelihood that consumers, The purpose of this analysis is to
national ground ambulance provider in third-party payers, or government health facilitate public comment on the
the United States, but also provides air care providers would be forced to pay proposed Consent agreement, and the
ambulance services in several locations. higher prices or experience degradation Commission does not intend this
In Hawaii, it provides both ground in service or quality. analysis to constitute an official
ambulance services and inter-facility air interpretation of the proposed Consent
ambulance transport services. To VI. Entry Conditions Agreement or to modify its terms in any
provide inter-facility air ambulance The Commission’s Complaint alleges way.
transport services, AMR partners with that entry into the relevant market By direction of the Commission.
LifeTeam, an air ambulance provider would not be timely, likely, or sufficient Donald S. Clark,
located in the Midwest, which has the to deter or counteract the Secretary.
necessary FAA licenses and anticompetitive effects of the [FR Doc. 2018–05251 Filed 3–14–18; 8:45 am]
certifications, and provides the pilots Acquisition. The primary barrier to
and maintenance for the fixed-wing BILLING CODE 6750–01–P
entry is the lack of sufficient volume of
aircraft. AMR handles the marketing, referrals and payments from third party
medical personnel, and billing for the payers to justify the economic risk of
services provided. FEDERAL TRADE COMMISSION
new entry, even if the parties imposed
a small but significant non-transitory [File No. 161 0230]
III. The Proposed Acquisition
Under an agreement executed on increase in price (SSNIP). Oregon Lithoprint, Inc.; Analysis To
August 7, 2017, AMGH will acquire 100 VII. The Proposed Consent Agreement Aid Public Comment
percent of the voting stock of AMR in
a deal valued at approximately $2.4 The proposed Consent Agreement AGENCY: Federal Trade Commission.
billion. remedies the anticompetitive concerns ACTION: Proposed consent agreement.
The Commission’s Complaint alleges raised by the Acquisition by requiring
AMR to sell its inter-facility air SUMMARY: The consent agreement in this
that the Acquisition, if consummated
ambulance transport services business, matter settles alleged violations of
would violate Section 7 of the Clayton
including the assets that support that federal law prohibiting unfair methods
Act, as amended, 15 U.S.C. 18, and
business, to AIRMD, LLC, dba LifeTeam. of competition. The attached Analysis to
Section 5 of the FTC Act, as amended,
LifeTeam is a large, established Aid Public Comment describes both the
15 U.S.C. 45, by substantially lessening
company with experience in the allegations in the complaint and the
competition for the provision of inter-
industry. It is also the current operator terms of the consent order—embodied
facility air ambulance transport services
of the FAA certified aircraft used by in the consent agreement—that would
in Hawaii.
AMR for inter-facility air ambulance settle these allegations.
IV. The Relevant Market and Structure transport services in Hawaii, and thus DATES: Comments must be received on
of the Markets very familiar with AMR’s assets and or before April 8, 2018.
The Commission’s Complaint alleges operations in Hawaii. Under the ADDRESSES: Interested parties may file a
that the relevant product market in proposed Consent Agreement, AMR will comment online or on paper, by
which to analyze the Acquisition is the divest to LifeTeam the four-fixed wing following the instructions in the
provision of inter-facility air ambulance aircraft it uses to fly patients inter- Request for Comment part of the
transport services. These services island, support LifeTeam’s application SUPPLEMENTARY INFORMATION section
sradovich on DSK3GMQ082PROD with NOTICES

consist of air ambulance services that for a Certificate of Need with the State below. Write: ‘‘In the Matter of
transfer patients between medical of Hawaii to operate ground Oregon Lithoprint, Inc., File No. 161
facilities on different islands, including ambulances, and offer LifeTeam the 0230’’ on your comment, and file your
from medical facilities with low acuity option to purchase up to four ground comment online at https://
or limited patient treatment capabilities ambulances from AMR. LifeTeam would ftcpublic.commentworks.com/ftc/oregon
to those that can provide the use the ground ambulances to support lithoprintconsent by following the
appropriate medical and surgical care. its air ambulance transport service to instructions on the web-based form. If

VerDate Sep<11>2014 17:34 Mar 14, 2018 Jkt 244001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\15MRN1.SGM 15MRN1

Federal Register / Vol. 83, No. 51 / Thursday, March 15, 2018 / Notices 11531

OLI owns the News-Register, a twice- an invitation to collude: OLI proposed invitation 7 This is for several reasons.
weekly community newspaper based in a market allocation scheme and First, unaccepted solicitations may
Yamhill, Oregon. Among other things, expressed a hope that its competitor facilitate coordination between
the News-Register charges clients to would join that conduct. The competitors because they reveal
publish a type of legal notice known as Commission has long held that information about the solicitor’s
a foreclosure notice. Under Oregon law, invitations to collude violate Section 5 intentions or preferences. Second, it can
parties foreclosing on real property must of the FTC Act. be difficult to discern whether a
place a notice of foreclosure in a In a 2015 statement, the Commission competitor has accepted a solicitation.
qualifying newspaper in the county explained that unfair methods of Third, finding a violation may deter
within which the property is located. competition under Section 5 ‘‘must conduct that has no legitimate business
The News-Register’s only competitor cause, or be likely to cause, harm to purpose.8
in Yamhill County is The Newberg competition or the competitive process,
Graphic, a weekly community III. The Proposed Consent Order
taking into account any associated
newspaper. The Newberg Graphic also cognizable efficiencies and business The Proposed Order contains the
publishes foreclosure notices, and it justifications.’’ 1 Potential violations are following substantive provisions:
charges considerably less than the Section II, Paragraph A of the
evaluated under a ‘‘framework similar to
News-Register for the service. The Proposed Order enjoins OLI from
the rule of reason.’’ 2 Competitive effects entering or attempting to enter any
News-Register has more subscribers and analysis under the rule of reason
a wider circulation within Yamhill agreement to refuse to publish legal
depends upon the nature of the conduct notices or allocate customers for the
County than The Newberg Graphic. that is under review.3
In August 2016, the publisher of the publication of legal notices.
News-Register learned that a client An invitation to collude is Section II, Paragraph B prohibits OLI
intended to place foreclosure notices ‘‘potentially harmful and . . . serves no from publically or privately
only in The Newberg Graphic from that legitimate business purpose.’’ 4 For this communicating with a competitor that
point on because The Newberg Graphic reason, the Commission treats such the competitor should advice customers
was less expensive than the News- conduct as ‘‘inherently suspect’’ (that is, to place foreclosure notices in the
Register. In response, on August 29, presumptively anticompetitive).5 newspaper with the widest circulation
2016, the publisher emailed a manager Accordingly, an invitation to collude in the area in which the property is
at the parent company of The Newberg can be condemned under Section 5 located, or refuse to publish notices for
Graphic and explained the publisher’s without a showing that the respondent properties located in a competitor’s
view that, under state law, foreclosure possesses market power.6 primary distribution area.
notices should be placed in the The Commission has long held that an Section II, Paragraph C, contains three
newspaper with the largest circulation invitation to collude violates Section 5 provisos. The first allows OLI to
in the area that the property is located. of the FTC Act even where there is no communicate with any governmental
The publisher concluded his email by proof that the competitor accepted the body regarding the proper interpretation
inviting the competitor to join the of state law related to legal notices. The
News-Register in instructing mutual 1 Fed. Trade Comm’n, Statement of Enforcement second allows OLI to participate with
clients that they should place Principles Regarding ‘‘Unfair Methods of any effort of the Oregon newspaper
Competition’’ Under Section 5 of the FTC Act (Aug. association to lobby any governmental
foreclosure notices in the newspaper 13, 2015) (Section 5 Unfair Methods of Competition
dominant in the area of the foreclosed Policy Statement), available at https://www.ftc.gov/
body regarding legal notices. The third
property. The parent company of the system/files/documents/public_statements/735201/ allows OLI to disseminate information
The Newberg Graphic rejected the 150813section5enforcement.pdf. Acting Chairman regarding legal notices to the public.
invitation and reported it to the Federal
Ohlhausen dissented from the issuance of the Sections III–VI of the Proposed Order
Section 5 Unfair Methods of Competition Policy impose certain standard reporting and
Trade Commission. Statement. See https://www.ftc.gov/public-
Several months later, in October 2016, statements/2015/08/dissenting-statement- compliance requirements on OLI.
the publisher of the News-Register commissioner-ohlhausen-ftc-act-section-5-policy. The Proposed Order will expire in 10
emailed the competitor again to state
2 Section 5 Unfair Methods of Competition Policy years.
Statement.
that the News-Register had told a client 3 See, e.g., California Dental Ass’n v. FTC, 526 7 See, e.g., In re Valassis Commc’ns, Inc., 141
to use The Newberg Graphic because the U.S. 756, 781 (1999) (‘‘What is required . . . is an F.T.C. 247 (2006); In re Stone Container, 125 F.T.C.
property in question was located in its inquiry meet for the case, looking to the 853 (1998); In re Precision Moulding, 122 F.T.C. 104
area, and that the client was in fact circumstances, details, and logic of a restraint.’’). (1996). See also In re McWane, Inc., Docket No.
4 In re Valassis Commc’ns., Inc., 141 F.T.C. 247,
going to use The Newberg Graphic to 9351, Opinion of the Commission on Motions for
283 (2006) (Analysis of Agreement Containing Summary Decision at 20–21 (F.T.C. Aug. 9, 2012)
publish the notice. He ended the email Consent Order to Aid Public Comment); see also (‘‘an invitation to collude is ‘the quintessential
stating ‘‘[i]t is probably too much to Address by FTC Chairwoman Edith Ramirez, example of the kind of conduct that should be . . .
expect that others would do likewise.’’ Section 5 Enforcement Principles, George challenged as a violation of Section 5’ ’’) (citing the
The parent company of the The Washington University Law School at 5 (Aug. 13, Statement of Chairman Liebowitz and
2015), available at https://www.ftc.gov/system/files/ Commissioners Kovacic and Rosch, In re U-Haul
Newberg Graphic interpreted this documents/public_statements/735411/ Int’l, Inc., 150 F.T.C. 1, 53 (2010)). This conclusion
second email as another invitation to 150813section5speech.pdf. has been endorsed by leading antitrust scholars. See
collude, rejected the invitation, and 5 See, e.g., In re North Carolina Bd. of Dental P. Areeda & H. Hovenkamp, VI ANTITRUST LAW
reported it to the Federal Trade Examiners, 152 F.T.C. 640, 668 (2011) (noting that ¶ 1419 (2003); Stephen Calkins, Counterpoint: The
Commission. conduct is inherently suspect if it can be Legal Foundation of the Commission’s Use of
‘‘reasonably characterized as ‘giv[ing] rise to an Section 5 to Challenge Invitations to Collude is
sradovich on DSK3GMQ082PROD with NOTICES

II. Analysis intuitively obviously inference of anticompetitive Secure, ANTITRUST Spring 2000, at 69. In a case
effect.’ ’’ (citation omitted)). brought under a state’s version of Section 5, the
OLI’s August 29, 2016, email to its 6 See, e.g., In re Realcomp II, Ltd., 148 F.T.C. First Circuit expressed support for the
competitor is an explicit attempt to ___, No. 9320, 2009 FTC LEXIS 250 at *51 (Oct. 30, Commission’s application of Section 5 to
arrange an agreement between the two 2009) (Comm’n Op.) (explaining that if conduct is invitations to collude. Liu v. Amerco, 677 F.3d 489
‘‘inherently suspect’’ in nature, and there are no (1st Cir. 2012).
companies to divide foreclosure notices cognizable procompetitive justifications, the 8 In re Valassis Comm’c, Inc., 141 F.T.C. 247, 283
by geography. It is an invitation to Commission can condemn it ‘‘without proof of (2006) (Analysis of Agreement Containing Consent
collude. The October 2016 email is also market power or actual effects’’). Order to Aid Public Comment).

VerDate Sep<11>2014 17:34 Mar 14, 2018 Jkt 244001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\15MRN1.SGM 15MRN1

11532 Federal Register / Vol. 83, No. 51 / Thursday, March 15, 2018 / Notices

The purpose of this analysis is to cdc.gov), National Center for rotavirus, hepatitis A, meningococcal,
facilitate public comment on the Immunization and Respiratory Diseases, human papillomavirus (HPV), and
proposed Consent agreement, and the Centers for Disease Control and seasonal influenza vaccines.
Commission does not intend this Prevention, Mailstop A–19, 1600 Clifton Instructions for use of the vaccine
analysis to constitute an official Road NE, Atlanta, Georgia 30329. information materials are found on the
interpretation of the proposed Consent SUPPLEMENTARY INFORMATION: The CDC website at: http://www.cdc.gov/
Agreement or to modify its terms in any National Childhood Vaccine Injury Act vaccines/hcp/vis/index.html.
way. of 1986 (Pub. L. 99–660), as amended by Revised Vaccine Information Materials
By direction of the Commission. section 708 of Public Law 103–183,
added section 2126 to the Public Health The vaccine information materials
Donald S. Clark,
Service Act. Section 2126, codified at 42 referenced in this notice were
Secretary.
U.S.C. 300aa–26, requires the Secretary developed in consultation with the
[FR Doc. 2018–05252 Filed 3–14–18; 8:45 am] Advisory Commission on Childhood
BILLING CODE 6750–01–P
of Health and Human Services to
develop and disseminate vaccine Vaccines, the Food and Drug
information materials for distribution by Administration, and parent and
all health care providers in the United healthcare provider organizations.
DEPARTMENT OF HEALTH AND Following consultation and review of
HUMAN SERVICES States to any patient (or to the parent or
legal representative in the case of a comments submitted, the vaccine
child) receiving vaccines covered under information materials covering MMR
Centers for Disease Control and and MMRV vaccines have been
Prevention the National Vaccine Injury
Compensation Program (VICP). finalized and are available to download
[Docket No. CDC–2016–0094] Development and revision of the from http://www.cdc.gov/vaccines/hcp/
vaccine information materials, also vis/index.html or http://
Final Revised Vaccine Information www.regulations.gov (see Docket
Materials for MMR (Measles, Mumps, known as Vaccine Information
Statements (VIS), have been delegated Number CDC–2016–0094). The Vaccine
and Rubella) and MMRV (Measles, Information Statements (VISs) are
Mumps, Rubella, and Varicella) by the Secretary to the Centers for
Disease Control and Prevention (CDC). ‘‘MMR Vaccine (Measles, Mumps, and
Vaccines Rubella): What You Need to Know’’ and
Section 2126 requires that the materials
AGENCY: Centers for Disease Control and be developed, or revised, after notice to ‘‘MMRV Vaccine (Measles, Mumps,
Prevention (CDC), Department of Health the public, with a 60-day comment Rubella, and Varicella): What You Need
and Human Services (HHS). period, and in consultation with the to Know,’’ publication date February 12,
ACTION: Notice. Advisory Commission on Childhood 2018.
With publication of this notice, by
Vaccines, appropriate health care
SUMMARY: Under the National June 1, 2018, all health care providers
provider and parent organizations, and
Childhood Vaccine Injury Act (NCVIA), must discontinue use of the previous
the Food and Drug Administration. The
CDC must develop vaccine information editions and provide copies of these
law also requires that the information
materials that all health care providers updated vaccine information materials
contained in the materials be based on
are required to give to patients/parents prior to immunization in conformance
available data and information, be
prior to administration of specific with CDC’s February 23, 2018
presented in understandable terms, and
vaccines. On October 18, 2016, CDC Instructions for the Use of Vaccine
include:
published a notice in the Federal Information Statements.
(1) A concise description of the
Register seeking public comments on benefits of the vaccine, Dated: March 12, 2018.
proposed updated vaccine information (2) A concise description of the risks Sandra Cashman,
materials for MMR vaccine and MMRV associated with the vaccine, Executive Secretary, Centers for Disease
vaccine. Following review of comments (3) A statement of the availability of Control and Prevention.
submitted and consultation as required the National Vaccine Injury [FR Doc. 2018–05299 Filed 3–14–18; 8:45 am]
under the law, CDC has finalized the Compensation Program, and BILLING CODE 4163–18–P
materials. Copies of the final vaccine (4) Such other relevant information as
information materials for MMR and may be determined by the Secretary.
MMRV vaccine are available to The vaccines initially covered under DEPARTMENT OF HEALTH AND
download from http://www.cdc.gov/ the National Vaccine Injury HUMAN SERVICES
vaccines/hcp/vis/index.html or http:// Compensation Program were diphtheria,
www.regulations.gov (see Docket tetanus, pertussis, measles, mumps, Centers for Disease Control and
Number CDC–2016–0094). rubella, and poliomyelitis vaccines. Prevention
DATES: Beginning no later than June 1, Since April 15, 1992, any health care [60Day–FY–1072; Docket No. CDC–2018–
2018, each health care provider who provider in the United States who 0020]
administers MMR or MMRV vaccine to intends to administer one of these
any child or adult in the United States covered vaccines is required to provide Proposed Data Collection Submitted
shall provide copies of the relevant copies of the relevant vaccine for Public Comment and
vaccine information materials information materials prior to Recommendations
referenced in this notice, dated February administration of any of these vaccines.
sradovich on DSK3GMQ082PROD with NOTICES

12, 2018, in conformance with the AGENCY: Centers for Disease Control and
Since then, the following vaccines have Prevention (CDC), Department of Health
February 23, 2018 CDC Instructions for been added to the National Vaccine
the Use of Vaccine Information and Human Services (HHS).
Injury Compensation Program, requiring ACTION: Notice with comment period.
Statements prior to providing such use of vaccine information materials for
vaccinations. them as well: Hepatitis B, Haemophilus SUMMARY: The Centers for Disease
FOR FURTHER INFORMATION CONTACT: influenzae type b (Hib), varicella Control and Prevention (CDC), as part of
Suzanne Johnson-DeLeon (msj1@ (chickenpox), pneumococcal conjugate, its continuing effort to reduce public

VerDate Sep<11>2014 17:34 Mar 14, 2018 Jkt 244001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\15MRN1.SGM 15MRN1

Document Created: 2018-03-15 02:37:59
Document Modified: 2018-03-15 02:37:59

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Proposed consent agreement.
Dates		Comments must be received on or before April 8, 2018.
Contact		Michael Turner (202-326-3619), Bureau of Competition, 600 Pennsylvania Avenue NW, Washington, DC 20580.
FR Citation		83 FR 11529