ANALYSIS OF PROPOSED CONSENT ORDER
The Federal Trade Commission has accepted, subject to final approval, an agreement containing a consent order from Palm, Inc. ("Palm").
The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement or make final the agreement's proposed order.
This matter involves alleged misleading representations about Palm handheld computers or personal digital assistants ("PDAs"). This matter concerns allegedly false and deceptive advertising claims made in advertisements regarding the ability of Palm devices to wirelessly access the Internet and email accounts and to perform other functions.
According to the FTC complaint, Palm
misrepresented that Palm PDAs, as sold, contain everything that consumers
need to wirelessly access the Internet and their email accounts. In fact,
in order to wirelessly access the Internet and email accounts using Palm
PDAs, other than the Palm VII model line, consumers must purchase and
carry a separate wireless modem or a device to connect the Palm to certain
mobile telephones; and, moreover, many mobile telephones currently in use
in the U.S. are not compatible with Palm PDAs. The complaint also alleges
that in representing that consumers can use Palm PDAs, as sold, to access
the Internet and their email accounts wirelessly, Palm failed to disclose
or failed to disclose adequately that in order to wirelessly access the
Internet and their email accounts, consumers must purchase and carry a
separate wireless modem or a device to connect the Palm to certain mobile
telephones. The complaint alleges that the failure to disclose this
material fact is a deceptive practice.
Finally, the complaint alleges that in representing that consumers can use the Palm VII model line to access the Internet and their email accounts wirelessly, Palm failed to disclose or failed to disclose adequately that consumers must subscribe to Palm.Net, a proprietary for-fee service. The complaint alleges that the failure to disclose this material fact is a deceptive practice.
The proposed consent order contains provisions designed to prevent Palm from engaging in similar acts and practices in the future.
Part I of the proposed order prohibits respondent from making misrepresentations that any PDA or handheld Internet or email access device can perform any common business function that it cannot perform without additional products or services that consumers must purchase. Part I also prohibits misrepresentations that wireless Internet or email service coverage for the product is available everywhere or almost everywhere in the U.S.
Part II of the proposed order prohibits misrepresentations about performance characteristics relating to Internet or email account access of any non-wireless PDA or handheld Internet or email access device ( i.e., one that requires the use of an additional device in order to access the Internet or email accounts wirelessly).
Part III requires that when respondent makes any claims about the ability of any PDA or handheld Internet or email access device to perform any function that requires the purchase of additional products or services, it must make a clear and conspicuous disclosure, depending upon the function being discussed. When the function involves accessing the Internet or email accounts, respondent must disclose any other products (such as a modem, mobile telephone, or adapter) or Internet or email access services (other than general-purpose ISP service, as defined in the order), that consumers must purchase in order to access the Internet or email accounts. When the function does not involve accessing the Internet or email accounts, respondent must disclose that additional products must be purchased in order to perform such function(s).
Part IV of the proposed order provides that, for up to 120 days after service of the order, respondent may continue to ship products from existing stock in packaging with nonconforming labeling, as long as the packaging was printed less than 30 days after the date respondent signed the consent agreement.
Parts VI through IX require Palm to keep copies of relevant advertisements and materials substantiating claims made in the advertisements, to provide copies of the order to certain of its personnel, to notify the Commission of changes in corporate structure, and to file compliance reports with the Commission. Part X provides that the order will terminate after twenty (20) years under certain circumstances.
The purpose of this analysis is to facilitate public comment on the proposed order, and it is not intended to constitute an official interpretation of the agreement and proposed order or to modify in any way their terms.