Concurring Statement of Commissioner Orson Swindle
In the Matters of
Microsoft Corp., File No. 002-3331 and
I voted to accept both of these consent agreements for public comment, because the proposed consent orders are adequate relief for the violations alleged in the complaint. Nonetheless, I have strong reservations about the use of unenforceable "voluntary" consumer education. In each of these cases, staff negotiated with the proposed respondent to achieve a consumer education campaign that is being undertaken wholly outside the confines of the order. Consumer education remedies sometimes pose difficult issues and Commissioners may disagree as to whether a particular consumer education remedy is appropriate and reasonably related to the complaint allegations. Yet the solution for such disagreements is not simply to excise such remedies from the legally enforceable obligations that respondents are undertaking in settlement. If consumer education is important enough to include in negotiations, there likely is some impact on what is achieved in negotiating the terms of the consent order itself. Moreover, to the extent that the FTC promotes such "voluntary" consumer education initiatives in our efforts to publicize the consent agreements, we may see many more deep-pocketed respondents seeking to add a bit of "voluntary" and unenforceable consumer education to a broader promotional campaign in exchange for a weaker order than might otherwise be negotiated.