Federal Trade Commission
Room H-159, Sixth St. & Pennsylvania Ave., N.W.
Washington, D.C. 20580
Interpretation of Rules and Guides
Bell Atlantic Corporation is a telecommunications company with facilities and operations extending from Maine to West Virginia. Bell Atlantic provisions more than 41 million telephone access lines and has more than 6.7 million wireless communications customers. In addition, through Bell Atlantic's Internet Solutions, the company offers Bell Atlantic.net, a dial-up Internet access service now available in selected cities in Maryland, Pennsylvania, New York and Rhode Island as well as in the District of Columbia. Through another subsidiary, Bell Atlantic also publishes an on-line directory, Big Yellow(sm) which carries thousands of separate ads for third parties with links to other sites.
Bell Atlantic welcomes this opportunity to comment on the proposed Federal Trade Commission Interpretation of Rules and Guides for Electronic Media; Request for Comment (63 Fed.Reg. 24996 May 6,1998.) Bell Atlantic also supports and joins in the comments submitted by the Interactive Services Association. Bell Atlantic is commenting upon the proposed policies as both an electronic media supplier as well as a major advertiser which uses a variety of media to convey our messages to the public.
While Bell Atlantic is pleased to submit these comments, we note that, of course, the Federal Trade Commission has no general regulatory authority over common carriers and therefore Bell Atlantic falls outside the jurisdiction of the Commission.
Electronic Media Should Not Be Expected or Compelled to Screen Advertising for Compliance With Commission Rules or Guidelines
Bell Atlantic believes strongly that it would be entirely inappropriate for service providers who only carry third party information over their lines to police the advertising of unrelated parties. We note that the Commission in recent consent orders has required that the advertiser in question notify the various media which had carried the challenged advertising of the Commission's consent order. This notification requirement appears to attempt to place additional responsibilities on advertising media to assure that the advertising they carry is compliant with the FTC order. This possible trend is the cause of some concern to media which are not charged with reviewing the advertising they carry and are ill equipped to undertake such a task. We therefore urge the Commission in its policy interpretation to clarify that the role of any electronic medium is nothing more than to carry advertising and other information formatted and furnished by others. The Commission should emphasize that although it is interpreting its policies for the electronic media, individual advertisers are still the parties charged with compliance with the Federal Trade Commission Act.
The Electronic "Reasonable Consumer"
Bell Atlantic believes that electronic media are not only unique in the manner in which they convey information, but that electronic media, at this point in their development, also have a unique audience. The public which is addressed in internet advertising is of necessity literate and well informed with respect to consumer information. Regular internet users are experienced in finding, using and sorting through information of all kinds; the nature of the web with its loose structure and casual organization requires that the users develop deft navigational skills and speedy judgment in order to make maximal use of this medium. Thus, we believe the Commission should recognize that any evaluation of internet advertising should assume that a "reasonable consumer" using the internet is a sophisticated consumer who understands and is familiar with the unique features of this medium. The Commission should remain mindful of the internet's unique features as it considers how to apply to it its advertising guidelines.
Improvements in internet and web browsing technology, the growth in availability of easy-to-use internet access and on-line services, and the continued growth in computer ownership and use at home, in the office, and in schools has led to an astounding expansion in the number of Americans who know how to access and use the internet. These users know how to use search engines, how to query a web site through e-mail about a product, service or statement, and they often participate in chat groups where they can share information and ask about services they see on the web. This interactive dimension makes the internet a significantly different market place than the physical market environment, where consumers have much more difficulty finding answers to questions raised by a newspaper advertisement, for example, or need to visit shops to make comparisons on price, guarantees and features. All of these things are much more easily done on the internet; consumers at all levels are becoming familiar with how to use the internet to make wise buying decisions. These attributes make the internet a much different environment and its users a different audience. Simply transferring the policies that apply in the physical world may not only be unnecessary but may harm the very flexibility and strengths the internet offers consumers.
Factors Used to Evaluate Clear and Conspicuous Disclosures Do Not Transfer Well To Electronic Media
We believe that the factors which the Commission has identified as contributing to the clarity and conspicuity of disclosures(1) do not transfer easily to the medium under scrutiny here. For advertising on the internet the test of whether the advertiser has made a proper disclosure is whether the information required to be disclosed is readily available on line and whether its location is clearly and conspicuously communicated; whether the actual information is actually in front of the consumer on the computer screen is not as important as knowing where he or she can find it with the click of the mouse.
The Commission cited a number of factors which it proposed as standards by which to judge whether a disclosure was sufficiently clear and conspicuous in internet advertising. Bell Atlantic does not believe any of those factors to be either an appropriate measure of clarity and conspicuity, nor even relevant to whether the consumer will read the information which is being proffered. For example, unavoidability is not an appropriate factor to use in judging clear and conspicuous disclosure. Unavoidability, i.e., locating certain required information in an ad so that a consumer cannot avoid seeing it, might well result in the consumer viewing an entire screen full of mandated information, but will not add to either clarity or conspicuity with respect to that information. It is even easier to click past an eye-glazing screen of words than it is to shut out the voice in a radio ad racing through the terms of a finance lease. In fact, we believe that it is far more effective to specifically and prominently label a "pop-up" or hyperlink to inform the consumer of the type of information which needs to be disclosed. If, for example, a consumer wishes to know the warranty terms of an item being sold or advertised, it is far easier to click on a clearly labeled "warranty information" button than to return to a previous screen where the information was (unavoidably) displayed.
Due to the formatting and interactive nature of the internet, consumers are far more likely to actively seek out information which they need or desire. Especially when consumers are viewing material which they know to be advertising, they are more likely to simply scroll past mandated lengthy information. Indeed, the speed at which a user can make information disappear from the screen raises the question as to whether any information on this medium is "unavoidable."
We believe that all of the factors which the Commission has determined contribute to the clarity and conspicuity of disclosures themselves in other, non-interactive media should be applicable only to the labeling of the location of the disclosure in the new electronic media advertising. The only adequate method to determine whether a disclosure is clear and conspicuous is to judge whether the required information is easily located and accessed.
The Commissions insists on clarity and conspicuity in other media so that a consumer can easily locate the required information on a printed ad or on packaging, in other words, to enable the consumer to easily spot the information. In this context, such standards made sense. In the new medium, literal translation of standards applicable to older media may only serve to distract the user from the information which he or she is supposed to note most carefully.
Bell Atlantic looks forward to participating in and providing meaningful input to the workshop which the Commission has tentatively planned to sponsor. In the interim, we offer these comments in an effort to provide some guidance to the Commission. We applaud this acknowledgment of the fact that the new electronic media require new rules and different ways in which to interpret existing guidelines. We join with ISA in our approval of this effort by the Commission.
1. Unavoidability, constant access, proximity, prominence, non-distracting factors, repetition and audio and visual presentation.