In the Matter of New England Tractor Trailer Training Schools of Mass. Inc., et al.

9823040

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION

COMMISSIONERS:: Robert Pitofsky, Chairman; Sheila F. Anthony; Mozelle W. Thompson; Orson Swindle; Thomas B. Leary

In the Matter of
NEW ENGLAND TRACTOR TRAILER TRAINING SCHOOL OF MASSACHUSETTS, INC., and
NEW ENGLAND TRACTOR TRAILER TRAINING SCHOOL OF CONNECTICUT, INC.,
corporations, and
MARK GREENBERG,
individually and as an officer and director of the corporations.

DOCKET NO. C-3916
DECISION AND ORDER

The Federal Trade Commission having initiated an investigation of certain acts and practices of the respondents named in the caption hereof, and the respondents having been furnished thereafter with a copy of a draft complaint which the Bureau of Consumer Protection proposed to present to the Commission for its consideration and which, if issued by the Commission, would charge respondent with violations of the Federal Trade Commission Act, and

The respondents and counsel for the Commission having thereafter executed an agreement containing a consent order, and admission by the respondents of all the jurisdictional facts set forth in the draft complaint, a statement that the signing of said agreement is for settlement purposes only and does not constitute an admission by respondents that the law has been violated as alleged in such complaint, or that the facts as alleged in such complaint, other than jurisdictional facts, are true, and waivers and other provisions as required by the Commission's Rules; and

The Commission having thereafter considered the matter and having determined that it had reason to believe that the respondents violated the said Act, and that a complaint should issue stating its charges in that respect, and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity with the procedure prescribed in Section 2.34 of its Rules, the Commission hereby issues its complaint, makes the following jurisdictional findings, and enters the following order:

1. Respondent New England Tractor Trailer Training School of Massachusetts, Inc., is a Massachusetts corporation with its headquarters located at 1050 Hancock Street, Quincey, Massachusetts.

2. Respondent New England Tractor Trailer Training School of Connecticut, Inc., is a Connecticut corporation with its headquarters located at 32 Field Road, Somers, Connecticut 06071.

3. Respondent Mark Greenberg is an officer and director of the corporate respondents. Individually or in concert with others, he formulates, directs, or controls the policies, acts, or practices of the corporations. His principal office or place of business is the same as that of New England Tractor Trailer Training School of Massachusetts, Inc.

4. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondents, and the proceeding is in the public interest.

ORDER

DEFINITIONS

For purposes of this Order, the following definitions shall apply:

1. "Training program" shall mean any and all training or instructional course or program of whatever type, duration, or medium used.

2. "Clearly and prominently" 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 video portions of the advertisement. Provided, however, that in any advertisement presented solely through video or audio means, the disclosure may be made through the same means in which the advertisement is presented. The audio disclosure shall be delivered in a volume and cadence sufficient for an ordinary consumer to hear and comprehend it. The video 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. In addition to the foregoing, in interactive media the disclosure shall be unavoidable and shall be presented prior to the consumer incurring any financial obligation.

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. In multi-page documents, the disclosure shall appear on the cover or first page.

C. In oral communications, the disclosure shall be delivered in a volume and cadence sufficient for an ordinary consumer to hear and comprehend it.

D. In all cases, the disclosure must be in understandable language and syntax, and in the same language as the representation that triggers the disclosure, and nothing contrary to, inconsistent with, or in mitigation of the disclosure shall be used.

3. Unless otherwise specified, "respondents" shall mean New England Tractor Trailer Training School of Massachusetts, Inc., and New England Tractor Trailer Training School of Connecticut, Inc., corporations, their successors and assigns and their officers; Mark Greenberg, individually and as an officer and director of the corporations; and each of the above's agents, representatives, and employees.

4. "Commerce" shall mean as defined in Section 4 of the Federal Trade Commission Act, 15 U.S.C. § 44.

IT IS ORDERED that respondents, directly or through any corporation, subsidiary, division, or other device, in connection with the advertising, promotion, offering for sale, or sale, of any training program, in or affecting commerce, shall not make any representation, in any manner, expressly or by implication, about:

A. the job placement rate or record of employment success of graduates of their training programs;

B. the opportunities for employment, or employment demand, for graduates of their training programs;

C. the percent, number or portion of graduates of their training programs who pass qualifying tests, including, but not limited to, the CDL test;

D. the adequacy of their training programs to prepare graduates to pass qualifying tests, including, but not limited to, the CDL test;

E. the placement assistance that respondents provide to graduates of their training programs;

F. reimbursement of the cost of tuition by employers of graduates of respondents' training programs;

G. the equipment used in their training programs;

H. the experience and qualifications of their instructors;

I. the amount of student driving time included in their training programs;

J. the terms and conditions of admittance to or completion of respondents' training programs; and

K. any other representation regarding the results or benefits of respondents' training programs or career services; unless the representation is true and, at the time it is made, respondents possess and rely upon competent and reliable evidence that substantiates the representation.

II.
PLACEMENT RATES DISCLOSURE

IT IS FURTHER ORDERED that respondents, directly or through any corporation, subsidiary, division or other device, in connection with the advertising, promotion, offering for sale, or sale of any training program, in or affecting commerce,

A. shall not make any representation, in any manner, expressly or by implication, about the number of graduates of respondents' training programs, or similar types of training programs, who obtain employment, or the rate of placement or employment of such graduates, or use any terms (including, but not limited to, many or most) that purport to quantify the likelihood that such graduates will obtain employment, unless respondents disclose, clearly and prominently, and in close proximity to the representation, respondents' "Placement Rates," as calculated pursuant to Appendix A; and

B. shall provide, during the initial discussion of enrollment with any prospective purchaser of respondents' training programs and prior to the time the enrollment agreement and other enrollment forms are presented to the prospective student, a copy of the Placement Rates Disclosure Statement (to be retained by the prospective purchaser), set forth in Appendix B. The Placement Rates Disclosure Statement shall be set forth in the same format and type size as set forth in Appendix B. The Disclosure Statement shall be set forth in a separate document and shall contain no other information in the same document, except that the Test Pass Rates Disclosure Statement, required by Part III of this Order, may be included in the same document. Respondents shall hand the Disclosure Statement to the prospective purchaser separately from other documents and shall, in immediate proximity thereto, clearly and prominently, make the following oral disclosure, or a substantially similar statement:

Here are the job placement rates for the programs at our school.

If test pass rates are included on the Disclosure Statement, the following oral disclosure, or a substantially similar statement, shall be substituted:

Here are the job placement rates and CDL [or other] test pass rate for the programs at our school.

III.
TEST PASS RATES DISCLOSURE

A. shall not make any representation, in any manner, expressly or by implication, about the rate of passing of any test, including but not limited to the CDL test, by graduates of their training programs, or of similar types of training programs, unless respondents disclose, clearly and prominently, and in close proximity to the representation, respondents' "Test Pass Rates," as calculated pursuant to Appendix C; and

B. shall provide, during the initial discussion of enrollment with any prospective purchaser of respondents' training programs and prior to the time the enrollment agreement and other enrollment forms are presented to the prospective student, a copy of the Test Pass Rates Disclosure Statement (to be retained by the prospective purchaser), set forth in Appendix D. The Test Past Rates Disclosure Statement shall be set forth in a separate document in the same format and type size as set forth in Appendix D, and shall contain no other information in the same document, except that the Placement Rates Disclosure Statement, required by Part II of this Order, may be included in the same document. Respondents shall hand the Disclosure Statement to the prospective purchaser separately from other documents and shall, in immediate proximity thereto, clearly and prominently, make the following oral disclosure, or a substantially similar statement:

Here is the CDL [or other] test pass rate for the programs at our school.

If placement rates are included on the Disclosure Statement, the following oral disclosure, or a substantially similar statement, shall be substituted:

Here are the job placement rates and CDL [or other] test pass rate for the programs at our school.

IV.
RECORD KEEPING

IT IS FURTHER ORDERED that respondents New England Tractor Trailer Training School of Massachusetts, Inc., and New England Tractor Trailer Training School of Connecticut, Inc., and their successors and assigns, and respondent Mark Greenberg 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, business records demonstrating their compliance with the terms and provisions of this Order, including but not limited to:

A. all advertisements and promotional materials, sales or admissions interview scripts or training manuals, catalogs, or other marketing materials;

B. all materials that were relied upon in disseminating any representation covered by this Order; and

C. all evidence in their possession or control that contradicts, qualifies, or calls into question the representation, or the basis relied upon for the representation, including complaints, and the responses thereto, and other communications with consumers or with governmental or consumer protection organizations.

V.
DISTRIBUTION OF ORDER

IT IS FURTHER ORDERED that, for a period of five (5) years from the date of issuance of this Order, respondents New England Tractor Trailer Training School of Massachusetts, Inc., and New England Tractor Trailer Training School of Connecticut, Inc., and their successors and assigns, and respondent Mark Greenberg shall:

A. Provide a copy of this Order to, and obtain a signed and dated acknowledgment of receipt of same from each officer and director, each individual serving in a management capacity who has any responsibilities with respect to the subject matter of this Order, all personnel involved in responding to consumer complaints or inquiries, and all sales personnel, recruiters, and admissions representatives (whether designated as employees, consultants, independent contractors or otherwise), as follows: (1) to current personnel, within thirty (30) days after the date of service of this Order and (2) to future personnel immediately after the person assumes such position or responsibilities;

B. Maintain for a period of three (3) years after creation, and upon reasonable notice, make available to representatives of the Commission, the original signed and dated acknowledgments of the receipt of copies of this Order, as required in Paragraph A. of this Part.

VI.
NOTIFICATION BY CORPORATE RESPONDENTS

IT IS FURTHER ORDERED that respondents New England Tractor Trailer Training School of Massachusetts, Inc., and New England Tractor Trailer Training School of Connecticut, Inc., and their successors and assigns, shall notify the Commission at least thirty (30) days prior to any change in the corporations 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(s) about which respondents learn less than thirty (30) days prior to the date such action is to take place, respondents 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, Washington, D.C. 20580.

VII.
NOTIFICATION BY INDIVIDUAL RESPONDENT

IT IS FURTHER ORDERED that respondent Mark Greenberg, for a period of five (5) years from the date of issuance of this Order, shall notify the Commission of each affiliation with a new business or employment the activities of which include the advertising, promotion, sale, or offering for sale of vocational training programs, or of his affiliation with a new business or employment in which his duties and responsibilities involve the advertising, promotion, sale, or offering for sale of vocational training programs. The notice shall include respondent's new business address and telephone number and a description of the nature of the business or employment and his duties and responsibilities. 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, Washington, D.C. 20580.

VIII.
MONITORING COMPLIANCE OF SALES PERSONNEL

A. Take reasonable steps sufficient to monitor and ensure that all employees and/or independent contractors engaged in admissions, recruiting, sales or other customer service functions comply with Parts I, II, and III of this Order. Such steps shall include adequate monitoring of admission interviews, recruiting activity, sales presentations or other contacts with prospective purchasers, and shall also include, at a minimum, the following: (1) listening, on a regular basis, to the oral representations made by persons engaged in admissions, recruiting, sales or other customer service functions; (2) establishing a procedure for receiving and responding to consumer complaints; and (3) ascertaining the number and nature of consumer complaints regarding transactions in which each employee or independent contractor is involved; provided, that this Paragraph does not authorize or require the defendants to take any steps that violate any federal, state or local laws;

B. Investigate promptly and fully any consumer complaint received by any business to which this Part applies; and

C. Take corrective action with respect to any admission representative, recruiter, or sales person who is not complying with this Order, which action may include training, disciplining, and/or terminating such person.

IX.
COMPLIANCE REPORT

IT IS FURTHER ORDERED that respondents New England Tractor Trailer Training School of Massachusetts, Inc., and New England Tractor Trailer Training School of Connecticut, Inc., and their successors and assigns, and respondent Mark Greenberg, shall file with the Commission, according to the following schedule, written reports setting forth in detail the manner and form in which they have complied with this Order:

A. The first report shall be filed within one hundred and twenty (120) days after the date of service of this Order;

B. The second report shall be filed within one (1) year after the date of service of this Order; and

C. Subsequent reports shall be filed at such other times as the Federal Trade Commission may require.

X.
MONITORING OF COMPLIANCE BY COMMISSION

IT IS FURTHER ORDERED that the Commission is authorized to use investigators posing as consumers or prospective consumers of respondents, without the necessity of identification or prior notice.

XI.
SUNSET OF ORDER

This Order will terminate on January 10, 2020, 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.

By the Commission, Commissioner Leary not participating.

Donald S. Clark
Secretary
ISSUED: January 10, 2000

APPENDIX A
CALCULATION OF PLACEMENT RATES

"PLACEMENT RATES" shall be expressed as a percentage, calculated by dividing (a) the number of persons who graduated, during the time period, who were employed in jobs for which the program trained them by (b) the number of persons who graduated, during the time period, who were available for placement.

The time period shall be the period disclosed on the form set forth in Appendix B, in the heading "STUDENTS GRADUATING BETWEEN _______ AND _________," and shall be at least a twelve month period, and no more than a twenty-four month period. Respondents shall use the time period covered by the school's most recent report to the school's accrediting agency or the state licensure body. If the school is not accredited or licensed, respondents shall use the time periods specified for any such reports by the appropriate accrediting agency or licensing body.

For purposes of the disclosure required by Part II.A of this Order, the placement rates disclosed shall be for the same program as that referred to in the representation that triggers the disclosure.

For purposes of the disclosure required by Part II.B of this Order, the placement rates must be disclosed separately for all certificate programs offered by the school at which the disclosure is made.

APPENDIX B

PLACEMENT RATES DISCLOSURE STATEMENT

PLACEMENT RATES: PERCENTAGE OF GRADUATES WHO OBTAINED EMPLOYMENT
STUDENTS GRADUATING BETWEEN _______ AND _________
PROGRAM	PLACEMENT RATE

APPENDIX C

"TEST PASS RATE" shall be expressed as a percentage, calculated by dividing (a) the number of persons who graduated, during the time period, who passed the test by (b) the number of persons who graduated, during the time period, who took the test.

The time period shall be as defined in Appendix A.

For purposes of the disclosure required by Part III.A of this Order, the test pass rate disclosed shall be for the same program as that referred to in the representation that triggers the disclosure.

For purposes of the disclosure required by Part III.B of this Order, the test pass rates must be disclosed separately for all certificate programs offered by the school at which the disclosure is made.

APPENDIX D
TEST PASS RATES DISCLOSURE STATEMENT

TEST PASS RATES*
STUDENTS GRADUATING BETWEEN _______ AND _________
TEST	Number Taking Test	Percent Passing Test

* Graduates may have had to take the test more than once before passing.