Marnel Distributing Company, Inc.

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In toe Matrer or MARNEL DISTRIBUTING COMPANY, INC., ET AM. CONSENT ORDER, ETC.. IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE COMMISSION ACT Docket 7691. Complaint, Dec. 17, 1959—Decision, Mar. 12, 1960 Consent order requiring an independent Philadelphia distributor of phonograph records for several manufacturers to retail outlets and jukebox operators in and around the area of eastern Pennsylvania, southern New Jersey, and Delaware, to cease giving concealed “payola” to disc jockeys of television and radio programs to induce them to “expose” and promote the payer’s records in order to increase sales. Mr, John T. Walker and Mr. James H. Kelley for the Commission.

Winohur & Kahn, by Ar. Morris J. Winohkur, Philadelphia Pa., for respondents.

Initia Deciston py J. Earn Cox, Heartnc Examiner The complaint charges respondents, who are engaged in the offering for sale. sale and distribution of phonograph records as independent distributors for several record manufacturers, with violation of the Federal Trade Commission Act, in that respondents, alone or with certain unnamed record manufacturers. have negotiated for and disbursed “pavyola,” i.e. the payment of money or other valuable consideration to disk jockeys of musical programs on radio and television stations, to induce, stimulate or motivate the disk jockeys to select, broadcast, “expose” and promote certain records, in which respondents are financially interested, on the express or implied understanding that the disk jockeys will conceal, with- MARNEL DISTRIBUTING CO.. INC.. ET AL. 1053 1052 Decision hold or camouflage the fact of such payment from the listening public.

After the issuance of the complaint, respondents, their counsel, and counsel supporting the complaint entered into an agreement containing consent order to cease and desist, which was approved by the Director and an Assistant Director of the Commission's Bureau of Litigation, and thereafter transmitted to the hearing examiner for consideration.

The agreement states that respondent Marne] Distributing Company, Inc., is a corporation existing and doing business under and by virtue of the laws of the State of Pennsylvania, with its office and principal place of business located at 1622 Fairmount. Avenue, Philadelphia, Pennsylvania, and that respondent Nelson Verbit is the president of the respondent corporation and formulates, directs and controls the acts and practices of said corporation, the address of this individual respondent. being the same as that of the corporate respondent.

The agreement provides, among other things. that respondents admit all the jurisdictional facts alleged in the complaint, and agree that the record may be taken as if findings of jurisdictional facts had been duly made in accordance with such allegations; that the record on which the initia] decision and the decision of the Commission shall be based shall consist solely of the complaint and this agreement; that the agreement shall not become a part. of the official record unless and until it. becomes a part of the decision of the Commission; that the complaint may be used in construing the terms of the order agreed upon, which may be altered, modified or set aside in the manner provided for other orders; that the agreement is for settlement purposes only and does not constitute an admission by respondents that they have violated the law as alieged in the complaint; and that the order set forth in the agreement. and hereinafter included in this decision shall have the same force and effect. as if entered after a full hearing. Respondents waive any further procedural steps before the hearing examiner and the Commission, the making of findings of fact or conclusions of law, and all of the rights they may have to challenge or contest. the validity of the order to cease and desist entered in accordance with the agreement.

The order agreed upon fully disposes of all the issues raised in the complaint, and adequately prohibits the acts and practices charged therein as being in violation of the Federal Trade Commission Act. Accordingly, the hearing examiner finds this proceeding to be in the public interest, and accepts the agreement Syllabus 56 F.T.C.

containing consent order to cease and desist as part of the record upon which this decision is based. Therefore, lt is ordered, That respondents, Marnel Distributing Company, Inc., a corporation, and its officers, and Nelson Verbit, individually and as an officer of said corporation, and respondents’ agents, representatives and employees, directly or through any corporate or other device, in connection with phonograph records which have been distributed in commerce, or which are used by radio or television stations in broadcasting programs in commerce, as “commerce” is defined in the Federal Trade Commission Act, do forthwith cease and desist from:

1. Giving or offering to give, without requiring public disclosure, any sum of money or other material consideration, to any person, directly or indirectly, to induce that person to select, or participate in the selection of, and broadcasting of, any such records in which respondents, or any of them, have a financial interest. of any nature ;

2. Giving or offering to give, without requiring public disclosure, any sum of money, or other material consideration, to any person, directly or indirectly, as an inducement to influence any employee of a radio or television broadcasting station, or any other person, in any manner, to select, or participate in the selection of, and the broadcasting of, any such records in which respondents, or any of them, have a financial interest of any nature. There shall be “public disclosure” within the meaning of this order by any employee of a radio or television broadcasting station, or any other person, who selects or participates in the selection and broadcasting of a record, when he shall disclose, or cause to have disclosed, to the listening public at the time the record is played, that his selection and broadcasting of such record are in consideration for compensation of some nature, directly or indirectly, received by him or his employer.

DECISION OF THE COMMISSION AND ORDER TO FILE REPORT OF COMPLIANCE Pursuant to Section 3.21 of the Commission’s Rules of Practice, the initial decision of the hearing examiner shall, on the 12th day of March, 1960, become the decision of the Commission; and. accordingly :

It is ordered, That the above-named respondents shall, within sixty (60) days after service upon them of this order, file with the Commission a report in writing, setting forth in detail the manner and form in which they have complied with the order to cease and desist.

HARLOW HAIR EXPERTS. 1055 Findings