Mr. Jacob J. Alifraghis, Also Doing Business As InstantUPCCodes.com, and 680 Digital, Inc., Also Doing Business As Nationwide Barcode, and Philip B. Peretz; Analysis to Aid Public Comment, 44030-44033 [2014-17785]

Download as PDF rmajette on DSK2TPTVN1PROD with NOTICES 44030 Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Notices of this ICR and then click on the ICR Reference Number. A copy of the FCC submission to OMB will be displayed. OMB Control Number: 3060–0600. Title: Application to Participate in an FCC Auction, FCC Form 175. Form Number: FCC Form 175. Type of Review: Revision of a currently approved collection. Respondents: Business or other forprofit entities, not-for-profit institutions, and state, local or tribal governments. Estimated Number of Respondents and Responses: 500 respondents and 500 responses. Estimated Time Per Response: 90 minutes. Frequency of Response: On occasion reporting requirement. Obligation to Respond: Required to obtain or retain benefits. Statutory authority for the currently approved information collection is contained in sections 154(i) and 309(j)(5) of the Communications Act, as amended, 47 U.S.C. 4(i), 309(j)(5), and sections 1.2105, 1.2110, 1.2112 of the Commission’s rules, 47 CFR 1.2105, 1.2110, 1.2112. Authority for the revised information collection is contained in US note 91 in section 2.106 of the Commission’s rules, 47 CFR 2.106, US note 91, and section 27.1134(f) of the Commission’s rules, 47 CFR 27.1134(f). Estimated Total Annual Burden: 750 hours. Total Annual Costs: None. Nature and Extent of Confidentiality: Information collected on FCC Form 175 is made available for public inspection, and the Commission is not requesting that respondents submit confidential information on FCC Form 175. Respondents seeking to have information collected on FCC Form 175 withheld from public inspection may request confidential treatment of such information pursuant to section 0.459 of the Commission’s rules, 47 CFR 0.459. Privacy Act Impact Assessment: No impact(s). Needs and Uses: The Commission is submitting this revised information collection to OMB under its emergency processing procedures. The Commission is seeking emergency OMB approval no later than 26 days after the collection is received at OMB. The Commission is revising the currently approved information collection to require the submission of a signed acknowledgment with FCC Form 175 to implement US note 91 in section 2.106 of the Commission’s rules, 47 CFR 2.106, US note 91, and section 27.1134(f) of the Commission’s rules, 47 CFR 27.1134(f). The Commission’s auction rules and requirements are designed to ensure that the competitive bidding process is VerDate Mar<15>2010 15:02 Jul 28, 2014 Jkt 232001 limited to serious qualified applicants, deter possible abuse of the bidding and licensing process, and enhance the use of competitive bidding to assign Commission licenses in furtherance of the public interest. The information collected on FCC Form 175 is used by the Commission to determine if an applicant is legally, technically, and financially qualified to participate in a Commission auction. Additionally, if an applicant applies for status as a particular type of auction participant pursuant to Commission rules, the Commission uses information collected on Form 175 to determine whether the applicant is eligible for the status requested. Commission staff reviews the information collected on FCC Form 175 for a particular auction as part of the pre-auction process, prior to the auction being held. Staff determines whether each applicant satisfies the Commission’s requirements to participate in the auction and, if applicable, is eligible for the status as a particular type of auction participant it requested. The revised collection will enable the Commission to confirm that an auction applicant understands its specific obligations with respect to Federal incumbent users and systems in the 1755–1780 MHz frequency band should it ultimately become licensed in this band by requiring that applicant to submit a signed acknowledgement with its FCC Form 175 stating that (1) the applicant acknowledges that under 47 CFR 27.1134(f) it must accept any interference from incumbent federal operations in 1755–1780 MHz identified in an approved Transition Plan until such time as these operations vacate the 1755–1780 MHz band in accordance with 47 CFR part 301; (2) the applicant acknowledges that under 47 U.S.C. 2.106, US note 91 it must accept harmful interference from certain incumbent federal systems, including federal earth stations at 25 sites; (3) the applicant accepts the risk that this may pose to any base station or associated equipment that it may deploy; any services it may offer; and any of its other business arrangements; (4) the applicant acknowledges that it understands these risks could potentially affect the value of any licenses in 1755–1780 MHz band and that it has considered these risks before submitting any bids for applicable licenses; and (5) this acknowledgement does not supersede the licensee’s rights and obligations specified by law, rule, or other Commission action with respect to these frequencies. The Commission plans to continue to use the FCC Form 175 for all upcoming spectrum auctions, PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 including those required or authorized to be conducted pursuant to the 2012 Spectrum Act, collecting only the information necessary for each particular auction. Thus, the signed acknowledgement that is the subject of this revised collection will not be required for all auctions, and will only be used in auctions of licenses in the 1755–1780 MHz band. Federal Communications Commission. Marlene J. Dortch, Secretary. Office of the Secretary, Office of the Managing Director. [FR Doc. 2014–17794 Filed 7–28–14; 8:45 am] BILLING CODE 6712–01–P FEDERAL TRADE COMMISSION [File No. 141 0036] Mr. Jacob J. Alifraghis, Also Doing Business As InstantUPCCodes.com, and 680 Digital, Inc., Also Doing Business As Nationwide Barcode, and Philip B. Peretz; Analysis to Aid Public Comment Federal Trade Commission. Proposed consent agreements. AGENCY: ACTION: The consent agreements in this matter settle alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaints and the terms of the consent orders— embodied in the consent agreements— that would settle these allegations. DATES: Comments must be received on or before August 18, 2014. ADDRESSES: For InstantUPCCodes.com, interested parties may file a comment at https://ftcpublic.commentworks.com/ ftc/instantupccodesconsent online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write ‘‘InstantUPCCodes.com— Consent Agreement; File No. 141 0036’’ on your comment and file your comment online at https:// ftcpublic.commentworks.com/ftc/ instantupccodesconsent by following the instructions on the web-based form. For Nationwide Barcode, interested parties may file a comment at https:// ftcpublic.commentworks.com/ftc/ barcodeconsent online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write ‘‘Barcode Resellers Release—Consent Agreement; File No. 141 0036’’ on your comment and file your comment online at https:// ftcpublic.commentworks.com/ftc/ SUMMARY: E:\FR\FM\29JYN1.SGM 29JYN1 rmajette on DSK2TPTVN1PROD with NOTICES Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Notices barcodeconsent by following the instructions on the web-based form. If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. FOR FURTHER INFORMATION CONTACT: Matthew Accornero, Bureau of Competition, (202–326–3102), 600 Pennsylvania Avenue NW., Washington, DC 20580. SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreements containing consent orders to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, have been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreements, and the allegations in the complaints. An electronic copy of the full text of the consent agreement packages can be obtained from the FTC Home Page (for July 21, 2014), on the World Wide Web, at http://www.ftc.gov/ os/actions.shtm. You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before August 18, 2014. Write ‘‘InstantUPCCodes.com—Consent Agreement; File No. 141 0036’’ or ‘‘Barcode Resellers Release—Consent Agreement; File No. 141 0036’’ on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/ publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals’ home contact information from comments before placing them on the Commission Web site. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone’s Social Security number, date of birth, driver’s license number or other state identification number or foreign country equivalent, passport number, financial VerDate Mar<15>2010 15:02 Jul 28, 2014 Jkt 232001 account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any ‘‘[t]rade secret or any commercial or financial information which . . . is privileged or confidential,’’ as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names. If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).1 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest. Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https:// ftcpublic.commentworks.com/ftc/ instantupccodesconsent or https:// ftcpublic.commentworks.com/ftc/ barcodeconsent by following the instructions on the web-based forms. If this Notice appears at http:// www.regulations.gov/#!home, you also may file a comment through that Web site. If you file your comment on paper, write ‘‘InstantUPCCodes.com—Consent Agreement; File No. 141 0036’’ or ‘‘Barcode Resellers Release—Consent Agreement; File No. 141 0036’’ on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC–5610 (Annex D), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024. If possible, submit your paper comment to 1 In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c), 16 CFR 4.9(c). PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 44031 the Commission by courier or overnight service. Visit the Commission Web site at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before August 18, 2014. You can find more information, including routine uses permitted by the Privacy Act, in the Commission’s privacy policy, at http://www.ftc.gov/ftc/privacy.htm. Analysis To Aid Public Comment The Federal Trade Commission (‘‘Commission’’) has accepted, subject to final approval, an agreement containing consent order (‘‘Consent Agreement’’) from Mr. Jacob J. Alifraghis, who operates InstantUPCCodes.com (‘‘Instant’’), and a separate Agreement from Philip B. Peretz and 680 Digital, Inc., also d/b/a Nationwide Barcode (‘‘Nationwide’’). These individuals and entities are collectively referred to as ‘‘Respondents.’’ The Commission’s complaints (‘‘Complaints’’) allege that each Respondent violated Section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, by inviting certain competitors in the sale of barcodes to join together in a collusive scheme to raise prices. Under the terms of the proposed Consent Agreements, Respondents are required to cease and desist from communicating with their competitors about rates or prices. They are also barred from entering into, participating in, inviting, or soliciting an agreement with any competitor to divide markets, to allocate customers, or to fix prices. The Commission anticipates that the competitive issues described in the Complaints will be resolved by accepting the Proposed Orders, subject to final approval, contained in the Consent Agreements. The Consent Agreements have been placed on the public record for 30 days for receipt of comments from interested members of the public. Comments received during this period will become part of the public record. After 30 days, the Commission will review the Consent Agreements again and the comments received, and will decide whether it should withdraw from the Consent Agreements or make final the accompanying Decisions and Orders (‘‘Proposed Orders’’). The purpose of this Analysis to Aid Public Comment is to invite and facilitate public comment. It is not E:\FR\FM\29JYN1.SGM 29JYN1 44032 Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Notices intended to constitute an official interpretation of the proposed Consent Agreements and the accompanying Proposed Orders or in any way to modify their terms. The Consent Agreements are for settlement purposes only and do not constitute an admission by Respondents that the law has been violated as alleged in the Complaints or that the facts alleged in the Complaints, other than jurisdictional facts, are true. I. The Complaints The allegations of the Complaints are summarized below: Instant, Nationwide, and a firm we refer to as Competitor A sell barcodes over the Internet. A firm we refer to as Competitor B also sells barcodes over the Internet, but at higher prices than Instant, Nationwide, and Competitor A. Price competition among these firms caused the price of barcodes to decrease over time. Prior to August 2013, Instant had never communicated with Nationwide or Competitor A. On the evening of August 4, 2013, Mr. Alifraghis of Instant sent a message to Mr. Peretz of Nationwide proposing that all three competitors raise their prices to meet the higher prices charged by Competitor B: rmajette on DSK2TPTVN1PROD with NOTICES Hello Phil, Our company name is InstantUPCCodes.com, as you may be aware, we are one of your competitors within the same direct industry that you are in. . . . Here’s the deal Phil, I’m your friend, not your enemy. . . . Here’s what I’d like to do: All 3 of us—US, YOU and [Competitor A] need to match the price that [Competitor B] has. . . . I’d say that 48 hours would be an acceptable amount of time to get these price changes completed for all 3 of us. The thing is though, we all need to agree to do this or it won’t work. . . . Reply and let me know if you are willing to do this or not. Mr. Alifraghis then sent a similar email message to Competitor A. The next day, on August 5, Mr. Peretz forwarded Mr. Alifraghis’ message to Competitor A, asking for Competitor A’s thoughts on the proposal to raise and fix prices. On August 6, Mr. Peretz emailed Mr. Alifraghis and Competitor A. He stated that, rather than raise price within the next 48 hours as proposed by Mr. Alifraghis, he would prefer to wait until Sunday, August 11, to raise his prices. Mr. Peretz added a second condition: he wanted Instant to raise its prices first: We are open to what you suggest . . . and are willing to pull the trigger on this at midnight Sunday, August 11th. Competitor A did not respond to this email or to any emails in the series. Not VerDate Mar<15>2010 15:02 Jul 28, 2014 Jkt 232001 having heard from Competitor A, Mr. Alifraghis emailed Mr. Peretz stating that he would have to hear from Competitor A directly before any price increase could take place. On August 7, Mr. Peretz sent an email to Mr. Alifraghis and Competitor A, trying to overcome the lack of lack of trust that he perceived as impeding efforts to coordinate a price increase. On August 11, the price increase discussed by the barcode competitors in multiple email messages failed to materialize. Two days later, on August 13, Mr. Peretz wrote again to Mr. Alifraghis and Competitor A. Mr. Peretz urged his competitors to continue their dialogue and to take the opportunity presented to raise prices: This is a dialog [. . .] a dialog is a very good thing and it seems, regardless of how I feel about each of you and how you feel about each other or me, this is an opportunity to increase profitability. All it takes is conversation and a leap of faith. This is the opportunity that we have all wanted [. . .] to be able to increase our prices and to make some money. In their correspondence, Mr. Alifraghis and Mr. Peretz also threatened to lower their own prices if the other parties did not cede to their demands to collectively increase pricing. For example, on August 19, Mr. Peretz stated in an email to Instant and Competitor A: Gentlemen, Have we given up on this conversation? This is the busiest time of year . . . and I am considering meeting and/or beating your prices. Would like to see what your thoughts are before I screw up our industry even more. Mr. Peretz and Mr. Alifraghis continued to exchange communications about price levels into January 2014, until they learned of the FTC’s investigation. II. Analysis The term ‘‘invitation to collude’’ describes an improper communication from a firm to an actual or potential competitor that the firm is ready and willing to coordinate on price or output or other important terms of competition. Mr. Alifraghis’ August 4 email to his competitors outlining a mechanism by which the three companies can and should fix the price of barcodes is a clear example of an invitation to collude. The ensuing private communications among barcode sellers outlined in the Complaints establish a series of subsequent invitations, with each Respondent repeatedly communicating its willingness to raise and fix prices for barcodes, contingent on other competitors doing so, and PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 soliciting rivals to participate in a common scheme. For 20 years, the Commission has held that an invitation to collude may violate Section 5 of the FTC Act.2 Several legal and economic justifications support the imposition of liability upon a firm that communicates an invitation to collude, even where there is no proof of acceptance. First, difficulties exist in determining whether a competitor has or has not accepted a particular solicitation. Second, even an unaccepted solicitation may facilitate coordinated interaction by disclosing the solicitor’s intentions or preferences. Third, the anti-solicitation doctrine serves as a useful deterrent against potentially harmful conduct that serves no legitimate business purpose.3 If the invitation is accepted and the competitors reach an agreement, the Commission will refer the matter to the Department of Justice for a criminal investigation. In this case, the complaint does not allege that Nationwide, Instant, and Competitor A reached an agreement. An invitation to collude, which, if accepted, would constitute a per se violation of the Sherman Act, is a violation of Section 5. Although this case involves particularly egregious conduct, less egregious conduct may also result in Section 5 liability. It is not essential that the Commission find such explicit invitations to increase prices. Nor must the Commission find repeated misconduct attributable to the principals of firms. III. The Proposed Consent Orders The Proposed Orders have the following substantive provisions: Section II, Paragraph A of the Proposed Orders enjoin Respondents 2 See, e.g., In re Quality Trailer Prods., 115 F.T.C. 944 (1992); In re AE Clevite, 116 F.T.C. 389 (1993); In re Precision Moulding, 122 F.T.C. 104 (1996); In re Stone Container, 125 F.T.C. 853 (1998); In re MacDermid, 129 F.T.C (C–3911) (2000); see also In re McWane, Inc., Docket No. 9351, Opinion of the Commission on Motions for Summary Decision at 20–21 (F.T.C. Aug. 9, 2012) (‘‘an invitation to collude is ‘the quintessential example of the kind of conduct that should be . . . challenged as a violation of Section 5’’’) (citing the Statement of Chairman Leibowitz and Commissioners Kovacic and Rosch, In re U-Haul Int’l, Inc., 150 F.T.C. 1, 53 (2010). This conclusion has been affirmed by leading antitrust scholars. See, P. Areeda & H. Hovenkamp, VI ANTITRUST LAW ¶ 1419 (2003); Stephen Calkins, Counterpoint: The Legal Foundation of the Commission’s Use of Section 5 to Challenge Invitations to Collude is Secure, ANTITRUST Spring 2000, at 69. In a case brought under a state’s version of Section 5, the First Circuit expressed support for the Commission’s application of Section 5 to invitations to collude. Liu v. Amerco, 677 F.3d 489 (1st Cir. 2012). 3 Valassis Communications, Inc., Analysis of Agreement Containing Consent Order to Aid Public Comment, 71 FR 13976, 13978–79 (Mar. 20, 2006). E:\FR\FM\29JYN1.SGM 29JYN1 Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Notices from communicating with their competitors about rates or prices, with a proviso permitting public posting of rates and a second proviso that permits Respondents to buy or sell barcodes. Section II, Paragraph B prohibits Respondents from entering into, participating in, maintaining, organizing, implementing, enforcing, inviting, offering, or soliciting an agreement with any competitor to divide markets, to allocate customers, or to fix prices. Section II, Paragraph C bars Respondents from urging any competitor to raise, fix or maintain its price or rate levels or to limit or reduce service terms or levels. Sections III–VI of the Proposed Orders impose certain standard reporting and compliance requirements on Respondents. The Proposed Orders will expire in 20 years. By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. 2014–17785 Filed 7–28–14; 8:45 am] BILLING CODE 6750–01–P DEPARTMENT OF HEALTH AND HUMAN SERVICES Agency for Healthcare Research and Quality Agency Information Collection Activities: Proposed Collection; Comment Request Agency for Healthcare Research and Quality, HHS. ACTION: Notice. AGENCY: This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: ‘‘Phase II of a Longitudinal Program Evaluation of Health and Human Services (HHS) Healthcare Associated Infections (HAI) National Action Plan (NAP).’’ In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501–3521, AHRQ invites the public to comment on this proposed information collection. This proposed information collection was previously published in the Federal Register on April 23rd and allowed 60 days for public comment. No comments were received. The purpose of this notice is to allow an additional 30 days for public comment. DATES: Comments on this notice must be received by August 28, 2014. rmajette on DSK2TPTVN1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 15:02 Jul 28, 2014 Jkt 232001 Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at doris.lefkowitz@AHRQ.hhs.gov. Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer. FOR FURTHER INFORMATION CONTACT: Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427–1477, or by email at doris.lefkowitz@AHRQ.hhs.gov. SUPPLEMENTARY INFORMATION: ADDRESSES: Proposed Project Phase II of a Longitudinal Program Evaluation of Health and Human Services (HHS) Healthcare Associated Infections (HAI) National Action Plan (NAP) This evaluation of HHS’ Healthcare Associated Infections National Action Plan will assess the efficacy, efficiency and coordination of federal efforts to mitigate and prevent Healthcare Associated Infections (HAIs). As such, the evaluation represents a critical component of AHRQ’s mission to promote health care quality improvement. HAIs are infections that patients acquire while receiving treatment for other conditions while in a health care setting. They affect care in hospitals, -hereafter referred to as ‘‘acute care-,’’ ambulatory care settings, and long-term care facilities, and represent a significant cause of illness and death in the United States. Over one million HAIs occur across health care settings every year. In 2008, amidst growing demands on the health care system, rising health care costs, and increasing concerns about antimicrobial-resistant pathogens, HHS established a senior-level Steering Committee for the Prevention of HAIs. Charged with improving coordination and maximizing the efficiency of prevention efforts across HHS, the Steering Committee released the first ‘‘National Action Plan to Prevent Health Care-Associated Infections’’ (HAI NAP) in 2009. This plan outlined a systematic and phased approach to reducing HAIs and associated morbidity, mortality, and costs. Phase One of HAI NAP, which concluded in 2012, focused on HAI prevention in acute care hospitals, where data on prevention and the capacity to measure improvement were most complete. Additionally, the plan set specific targets for reducing rates of six high priority HAIs or specific causative organisms: Surgical site infection (SSI), central-line associated bloodstream infection (CLABSI), PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 44033 ventilator-associated pneumonia (VAP), catheter-associated urinary tract infection (CAUTI), Clostridium difficile infection, and methicillin-resistant Staphylococcus aureus infection (MRSA). Phase II of the Action Plan, entitled National Action Plan to Prevent Healthcare-Associated Infections: Roadmap to Elimination was released in April 2012. Phase 11 expanded the Action Plan to include prevention of HAIs in ambulatory surgical centers (ASCs) and end-stage renal disease (ESRD) facilities, and increasing influenza vaccination coverage of health care personnel. Phase III of the HAI NAP, released for public comment in April 2013, further expanded the Action Plan to include prevention of HAIs in long-term care facilities. Evaluation of HAI NAP. In 2009, AHRQ funded an independent, outside evaluation of HHS’ HAI prevention efforts, as guided by the Action Plan. The goals of this evaluation were to: (1) Record the content and scope of the Action Plan, its current design, its progress, and impact on the future; (2) establish baseline data and provide additional information on the HAT landscape prior to and following the initiation of the Action Plan effort; and (3) provide strategic insights from ongoing processes for reducing HAIs and outcomes of these processes. The current evaluation will expand upon this initial effort, encompassing the additional health care settings outlined in Phases H and III of the HAI NAP. The goals of this Phase II evaluation are to: 1. Identify commonalities, gaps, themes, and opportunities for collaboration across six Federal quality improvement and patient safety efforts to eliminate HAIs; and 2. highlight actionable opportunities across HHS to collaborate and efficiently utilize resources in these quality improvement and patient safety efforts; and 3. assess the unique and aggregate contributions of each quality improvement and patient safety effort to the mitigation and prevention of HAIs. This study is being conducted by AHRQ through its contractor, Insight Policy Research, Inc. and its subcontractors, IMPAQ International and RAND Corporation, pursuant to AHRQ’s statutory authority to conduct and support research and evaluations on health care and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of health care E:\FR\FM\29JYN1.SGM 29JYN1

Agencies

[Federal Register Volume 79, Number 145 (Tuesday, July 29, 2014)]
[Notices]
[Pages 44030-44033]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17785]


=======================================================================
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FEDERAL TRADE COMMISSION

[File No. 141 0036]


Mr. Jacob J. Alifraghis, Also Doing Business As 
InstantUPCCodes.com, and 680 Digital, Inc., Also Doing Business As 
Nationwide Barcode, and Philip B. Peretz; Analysis to Aid Public 
Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreements.

-----------------------------------------------------------------------

SUMMARY: The consent agreements in this matter settle alleged 
violations of federal law prohibiting unfair methods of competition. 
The attached Analysis to Aid Public Comment describes both the 
allegations in the draft complaints and the terms of the consent 
orders--embodied in the consent agreements--that would settle these 
allegations.

DATES: Comments must be received on or before August 18, 2014.

ADDRESSES: For InstantUPCCodes.com, interested parties may file a 
comment at https://ftcpublic.commentworks.com/ftc/instantupccodesconsent online or on paper, by following the 
instructions in the Request for Comment part of the SUPPLEMENTARY 
INFORMATION section below. Write ``InstantUPCCodes.com--Consent 
Agreement; File No. 141 0036'' on your comment and file your comment 
online at https://ftcpublic.commentworks.com/ftc/instantupccodesconsent 
by following the instructions on the web-based form. For Nationwide 
Barcode, interested parties may file a comment at https://ftcpublic.commentworks.com/ftc/barcodeconsent online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Barcode Resellers 
Release--Consent Agreement; File No. 141 0036'' on your comment and 
file your comment online at https://ftcpublic.commentworks.com/ftc/

[[Page 44031]]

barcodeconsent by following the instructions on the web-based form. If 
you prefer to file your comment on paper, mail your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
600 Pennsylvania Avenue NW., Suite CC-5610 (Annex D), Washington, DC 
20580, or deliver your comment to the following address: Federal Trade 
Commission, Office of the Secretary, Constitution Center, 400 7th 
Street SW., 5th Floor, Suite 5610 (Annex D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Matthew Accornero, Bureau of 
Competition, (202-326-3102), 600 Pennsylvania Avenue NW., Washington, 
DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(f) of the Federal 
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule 2.34, 16 CFR 2.34, 
notice is hereby given that the above-captioned consent agreements 
containing consent orders to cease and desist, having been filed with 
and accepted, subject to final approval, by the Commission, have been 
placed on the public record for a period of thirty (30) days. The 
following Analysis to Aid Public Comment describes the terms of the 
consent agreements, and the allegations in the complaints. An 
electronic copy of the full text of the consent agreement packages can 
be obtained from the FTC Home Page (for July 21, 2014), on the World 
Wide Web, at http://www.ftc.gov/os/actions.shtm.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before August 18, 2014. 
Write ``InstantUPCCodes.com--Consent Agreement; File No. 141 0036'' or 
``Barcode Resellers Release--Consent Agreement; File No. 141 0036'' on 
your comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which . . . is privileged or confidential,'' as discussed in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/instantupccodesconsent or https://ftcpublic.commentworks.com/ftc/barcodeconsent by following the instructions on the web-based forms. If 
this Notice appears at http://www.regulations.gov/#!home, you also may 
file a comment through that Web site.
    If you file your comment on paper, write ``InstantUPCCodes.com--
Consent Agreement; File No. 141 0036'' or ``Barcode Resellers Release--
Consent Agreement; File No. 141 0036'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-5610 (Annex D), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before August 18, 2014. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Analysis To Aid Public Comment

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an agreement containing consent order (``Consent 
Agreement'') from Mr. Jacob J. Alifraghis, who operates 
InstantUPCCodes.com (``Instant''), and a separate Agreement from Philip 
B. Peretz and 680 Digital, Inc., also d/b/a Nationwide Barcode 
(``Nationwide''). These individuals and entities are collectively 
referred to as ``Respondents.'' The Commission's complaints 
(``Complaints'') allege that each Respondent violated Section 5 of the 
Federal Trade Commission Act, as amended, 15 U.S.C. 45, by inviting 
certain competitors in the sale of barcodes to join together in a 
collusive scheme to raise prices.
    Under the terms of the proposed Consent Agreements, Respondents are 
required to cease and desist from communicating with their competitors 
about rates or prices. They are also barred from entering into, 
participating in, inviting, or soliciting an agreement with any 
competitor to divide markets, to allocate customers, or to fix prices.
    The Commission anticipates that the competitive issues described in 
the Complaints will be resolved by accepting the Proposed Orders, 
subject to final approval, contained in the Consent Agreements. The 
Consent Agreements have been placed on the public record for 30 days 
for receipt of comments from interested members of the public. Comments 
received during this period will become part of the public record. 
After 30 days, the Commission will review the Consent Agreements again 
and the comments received, and will decide whether it should withdraw 
from the Consent Agreements or make final the accompanying Decisions 
and Orders (``Proposed Orders'').
    The purpose of this Analysis to Aid Public Comment is to invite and 
facilitate public comment. It is not

[[Page 44032]]

intended to constitute an official interpretation of the proposed 
Consent Agreements and the accompanying Proposed Orders or in any way 
to modify their terms.
    The Consent Agreements are for settlement purposes only and do not 
constitute an admission by Respondents that the law has been violated 
as alleged in the Complaints or that the facts alleged in the 
Complaints, other than jurisdictional facts, are true.

I. The Complaints

    The allegations of the Complaints are summarized below:
    Instant, Nationwide, and a firm we refer to as Competitor A sell 
barcodes over the Internet. A firm we refer to as Competitor B also 
sells barcodes over the Internet, but at higher prices than Instant, 
Nationwide, and Competitor A. Price competition among these firms 
caused the price of barcodes to decrease over time.
    Prior to August 2013, Instant had never communicated with 
Nationwide or Competitor A. On the evening of August 4, 2013, Mr. 
Alifraghis of Instant sent a message to Mr. Peretz of Nationwide 
proposing that all three competitors raise their prices to meet the 
higher prices charged by Competitor B:

    Hello Phil, Our company name is InstantUPCCodes.com, as you may 
be aware, we are one of your competitors within the same direct 
industry that you are in. . . . Here's the deal Phil, I'm your 
friend, not your enemy. . . .
    Here's what I'd like to do: All 3 of us--US, YOU and [Competitor 
A] need to match the price that [Competitor B] has. . . . I'd say 
that 48 hours would be an acceptable amount of time to get these 
price changes completed for all 3 of us. The thing is though, we all 
need to agree to do this or it won't work. . . . Reply and let me 
know if you are willing to do this or not.

    Mr. Alifraghis then sent a similar email message to Competitor A. 
The next day, on August 5, Mr. Peretz forwarded Mr. Alifraghis' message 
to Competitor A, asking for Competitor A's thoughts on the proposal to 
raise and fix prices.
    On August 6, Mr. Peretz emailed Mr. Alifraghis and Competitor A. He 
stated that, rather than raise price within the next 48 hours as 
proposed by Mr. Alifraghis, he would prefer to wait until Sunday, 
August 11, to raise his prices. Mr. Peretz added a second condition: he 
wanted Instant to raise its prices first:

    We are open to what you suggest . . . and are willing to pull 
the trigger on this at midnight Sunday, August 11th.

    Competitor A did not respond to this email or to any emails in the 
series. Not having heard from Competitor A, Mr. Alifraghis emailed Mr. 
Peretz stating that he would have to hear from Competitor A directly 
before any price increase could take place.
    On August 7, Mr. Peretz sent an email to Mr. Alifraghis and 
Competitor A, trying to overcome the lack of lack of trust that he 
perceived as impeding efforts to coordinate a price increase.
    On August 11, the price increase discussed by the barcode 
competitors in multiple email messages failed to materialize. Two days 
later, on August 13, Mr. Peretz wrote again to Mr. Alifraghis and 
Competitor A. Mr. Peretz urged his competitors to continue their 
dialogue and to take the opportunity presented to raise prices:

    This is a dialog [. . .] a dialog is a very good thing and it 
seems, regardless of how I feel about each of you and how you feel 
about each other or me, this is an opportunity to increase 
profitability. All it takes is conversation and a leap of faith.
    This is the opportunity that we have all wanted [. . .] to be 
able to increase our prices and to make some money.

    In their correspondence, Mr. Alifraghis and Mr. Peretz also 
threatened to lower their own prices if the other parties did not cede 
to their demands to collectively increase pricing. For example, on 
August 19, Mr. Peretz stated in an email to Instant and Competitor A:

    Gentlemen,
    Have we given up on this conversation?
    This is the busiest time of year . . . and I am considering 
meeting and/or beating your prices. Would like to see what your 
thoughts are before I screw up our industry even more.

    Mr. Peretz and Mr. Alifraghis continued to exchange communications 
about price levels into January 2014, until they learned of the FTC's 
investigation.

II. Analysis

    The term ``invitation to collude'' describes an improper 
communication from a firm to an actual or potential competitor that the 
firm is ready and willing to coordinate on price or output or other 
important terms of competition. Mr. Alifraghis' August 4 email to his 
competitors outlining a mechanism by which the three companies can and 
should fix the price of barcodes is a clear example of an invitation to 
collude. The ensuing private communications among barcode sellers 
outlined in the Complaints establish a series of subsequent 
invitations, with each Respondent repeatedly communicating its 
willingness to raise and fix prices for barcodes, contingent on other 
competitors doing so, and soliciting rivals to participate in a common 
scheme.
    For 20 years, the Commission has held that an invitation to collude 
may violate Section 5 of the FTC Act.\2\ Several legal and economic 
justifications support the imposition of liability upon a firm that 
communicates an invitation to collude, even where there is no proof of 
acceptance. First, difficulties exist in determining whether a 
competitor has or has not accepted a particular solicitation. Second, 
even an unaccepted solicitation may facilitate coordinated interaction 
by disclosing the solicitor's intentions or preferences. Third, the 
anti-solicitation doctrine serves as a useful deterrent against 
potentially harmful conduct that serves no legitimate business 
purpose.\3\
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    \2\ See, e.g., In re Quality Trailer Prods., 115 F.T.C. 944 
(1992); In re AE Clevite, 116 F.T.C. 389 (1993); In re Precision 
Moulding, 122 F.T.C. 104 (1996); In re Stone Container, 125 F.T.C. 
853 (1998); In re MacDermid, 129 F.T.C (C-3911) (2000); see also In 
re McWane, Inc., Docket No. 9351, Opinion of the Commission on 
Motions for Summary Decision at 20-21 (F.T.C. Aug. 9, 2012) (``an 
invitation to collude is `the quintessential example of the kind of 
conduct that should be . . . challenged as a violation of Section 
5''') (citing the Statement of Chairman Leibowitz and Commissioners 
Kovacic and Rosch, In re U-Haul Int'l, Inc., 150 F.T.C. 1, 53 
(2010). This conclusion has been affirmed by leading antitrust 
scholars. See, P. Areeda & H. Hovenkamp, VI ANTITRUST LAW ] 1419 
(2003); Stephen Calkins, Counterpoint: The Legal Foundation of the 
Commission's Use of Section 5 to Challenge Invitations to Collude is 
Secure, ANTITRUST Spring 2000, at 69. In a case brought under a 
state's version of Section 5, the First Circuit expressed support 
for the Commission's application of Section 5 to invitations to 
collude. Liu v. Amerco, 677 F.3d 489 (1st Cir. 2012).
    \3\ Valassis Communications, Inc., Analysis of Agreement 
Containing Consent Order to Aid Public Comment, 71 FR 13976, 13978-
79 (Mar. 20, 2006).
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    If the invitation is accepted and the competitors reach an 
agreement, the Commission will refer the matter to the Department of 
Justice for a criminal investigation. In this case, the complaint does 
not allege that Nationwide, Instant, and Competitor A reached an 
agreement.
    An invitation to collude, which, if accepted, would constitute a 
per se violation of the Sherman Act, is a violation of Section 5. 
Although this case involves particularly egregious conduct, less 
egregious conduct may also result in Section 5 liability. It is not 
essential that the Commission find such explicit invitations to 
increase prices. Nor must the Commission find repeated misconduct 
attributable to the principals of firms.

III. The Proposed Consent Orders

    The Proposed Orders have the following substantive provisions:
    Section II, Paragraph A of the Proposed Orders enjoin Respondents

[[Page 44033]]

from communicating with their competitors about rates or prices, with a 
proviso permitting public posting of rates and a second proviso that 
permits Respondents to buy or sell barcodes.
    Section II, Paragraph B prohibits Respondents from entering into, 
participating in, maintaining, organizing, implementing, enforcing, 
inviting, offering, or soliciting an agreement with any competitor to 
divide markets, to allocate customers, or to fix prices.
    Section II, Paragraph C bars Respondents from urging any competitor 
to raise, fix or maintain its price or rate levels or to limit or 
reduce service terms or levels.
    Sections III-VI of the Proposed Orders impose certain standard 
reporting and compliance requirements on Respondents.
    The Proposed Orders will expire in 20 years.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2014-17785 Filed 7-28-14; 8:45 am]
BILLING CODE 6750-01-P