Analysis of Proposed Consent Order to Aid Public Comment
The Federal Trade Commission has accepted an agreement to a proposed consent order from the American Institute for Conservation of Historic and Artistic Works ("AIC"). AIC has its principal place of business in Washington, DC .
The proposed consent order has been placed on the public record for thirty (30) days for reception 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 decide whether it should withdraw from the agreement or make final the agreement's proposed order.
AIC is an association of professional conservators. The complaint alleges that AIC engages in substantial activities for the economic benefit of its members. The complaint alleges that AIC has approximately 3,100 members, many of whom provide professional services for a fee or who are employed by organizations that provide such services for a fee.
A conservation professional is a person who manages, cares for, preserves, or treats cultural objects, including artistic, historical, archeological, scientific, and religious objects. The conservation professional may determine the condition, the need for treatment or restoration, and the appropriate method for preservation of such objects, and perform the required work to minimize deterioration or to restore such objects to their original state.
The complaint charges that AIC has violated Section 5 of the Federal Trade Commission Act by acting as a combination of its members and in agreement with some of its members to restrain price competition among conservation professionals. The complaint alleges that in furtherance of the combination and agreement AIC has adopted and maintained Commentaries to the Guidelines for Practice of the AIC that state that "the consistent undercutting of local or regional market rates should be understood to be unprofessional behavior." They further state that "when damage to the cultural property is imminent, and funding is limited, a conservation professional may work at reduced fees or pro bono." Read together, these provisions mean that only in these limited circumstances can a conservator work for free or at reduced fees without being considered to be engaging in "unprofessional behavior."
The complaint alleges that the above acts and practices constitute unfair methods of competition which have restrained competition unreasonably. It further alleges that the effects of the acts and practices are to discourage and restrict price competition among conservation professionals and to deprive consumers and users of conservation services of the benefit of free and open competition.
AIC has signed a consent agreement containing the proposed consent order. The proposed consent order would prohibit AIC from maintaining or enforcing any policy, ethical rule, interpretation, commentary or guideline that impedes or restricts price competition among conservation professionals, including provision of free or discounted services.
To ensure and monitor compliance, the consent order provides, among other things, that within 90 days after the order becomes final AIC shall remove the provisions that are inconsistent with the order from AIC's Code of Ethics, Guidelines for Practice of the AIC, Commentaries to the Guidelines and AIC's website, and publish the revisions of these documents in such places. In addition, the order requires AIC to publish a copy of the order and complaint in the AIC News. It further provides that the order and complaint shall be published on the AIC web site, with a link placed in a prominent position on the web site's home page. The proposed consent order also contains other provisions to monitor compliance.
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 agreements and proposed orders or to modify in any way their terms.