Porter, David

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF DAVID PORTER CONSENT ORDER, ETC. IN REGARD TO ALLEGED VIOLATION OF SEC. 5 OF THE FEDERAL TRADE COMMISSION ACT Docket 9172. Complainr, Dec. 1983-Decision, Sept. , 1984 This consent order requires a Springfield, Missouri operator of retail grocery stores among other things, to cease engaging in any concerted action to impede the collection or dissemination of comparative price information. For a period of five years, Mr. Porter is prohibited from requiring price checkers to purchase items to he priced as a condition of allowing them to price check; denying price checkers the same access to his stores as is provided to customers; or coercing any price checker, publisher or broadcaster to refrain from collecting or reporting comparative price intiJrmation. Mr. Porter is also required, upon the resumption of price reporting by TeleCable of Springfeld, to reimburse the company $250 per week tier the cost of the program, up to $1 000, or for a period of three years, whichever comes first; and to notify consumers of the broadcast through posted signs and newspaper ads.

Appearances For the Commission: Patricia Bremer. For the respondent: Donald w: Jones Springfeld, Mo. DECISION AND ORDER The Commission having heretofore issued its complaint charging the respondent named in the caption hereof with violation of Section 5 ofthe Federal Trade Commission Act, as amended, and the respondent having been served with a copy of that complaint, together with a notice of contemplated relief; and The respondent, his attorney, and counsel for the Commission having thereafter executed an agreement containing a consent order, an admission by the respondent of all the jurisdictional facts set forth in the complaint, a statement that the signing of said agreement is lor settlement purposes only and does not constitute an admission by respondent that the law has been violated as alleged in such complaint, and waivers and other provisions as required by the Commission s Rules; and The Secretary of the Commission having thereafter withdrawn this .Complaint previoualy published at 104 F. C- 526. 534 Decision and Order matter from adjudication as to this respondent in accordance with Section 3.25(c) of its Rules; and The Commission having considered the matter and having thereupon accepted the executed consent agreement and placed such agreement on the public record for a period of sixty (60) days, now in further conformity with the procedure prescribed in Section 3.25 of its Rules, the Commission hereby makes the following jurisdictional findings and enters the following order:

1. Respondent David Porter is an individual trading and. doing business as Porter s So-Lo Markets, with his principal business offce at 1475 North National, Springfield, Missouri. 2. The Federal Trade Commission has jurisdiction of the subject matter of this proceeding and of the respondent, and the proceeding is in the public interest.

ORDER For the purpose of this Order, the following definitions shall apply: A. Porter means David Porter, individually and through Porter So-La Markets or any other entity or corporate device, and his representatives, agents, employees, successors and assigns. E. Price check or price checkingmeans the collecting, from information available to customers, of retail prices of items ofiered for sale by any retail grocery store (SIC 5411), which is done neither by nor on behalf of a person engaged in the sale of groceries, and which information is used in price reporting.

C. Price checker means any person engaged in price checking. D. Price reporting or price report means the dissemination to the public of price checking information through any medium by any person not engaged in the sale of groceries. E. Springfield means the counties of Christian and Greene, Missound.

F. Customer means any individual who enters a retail grocery store for the purpose of grocery shopping, whether or not that individual actually makes a purchase.

G. Person means individuals, corporations, partnerships, unincorporated associations, and any other business entity. H. Geographic area means: (1) a Standard Metropolitan Statistical Area as defined by the Bureau of the Census, U.S. Department of Commerce, as of October 1, 1982; or (2) a county. Decision and Order 104 F.TC. I. Supermarket means any retail grocery store (SIC 5411) with annual sales of more than one milion dollars ($1 000 000.00). II.

It is further ordered That:

A. Porter shall forthwith cease and desist from taking any action in concert with any other person engaged in the sale of grocery products which has the purpose or effect of restricting, impeding, interfering with or preventing price checking or price reporting. B. Except as provided in paragraph II. , for five (5) years following the date on which this Order becomes final, Porter shall cease and desist from taking or threatening to take any unilateral action that would:

1. Require price checkers to purchase items to be price checked as a condition of allowing them to price check; or 2. Deny price checkers the same access to Porter s supermarkets as is provided to customers; or 3. Coerce, or attempt to coerce, any price checker, publisher or broadcaster into refraining from or discontinuing price checking or price reporting.

C. 1. Nothing in paragraph II.B. sball prevent Porter from adopting reasonable, non-discriminatory rules governing the number of price checkers in his supermarkets at anyone time for the purpose of preventing disruption of Porter s normal business operations. 2. Nothing in subparagraph II.B.3. shall prevent Porter from publicly commenting upon or objecting to any price report in which his prices are compared to those of any other grocery retailer. 3. Whenever Porter believes that conditions exist that justify the exclusion of a price checker, he may submit to the Federal Trade Commission a sworn statement setting forth with particularity the facts that Porter believes meet such conditions. For purposes of this Order, the only conditions justifying the exclusion of a price checker are that another supermarket operator with whose prices Porter prices are compared in a price report has knowingly tampered with or manipulated the results of such price report for its own competitive gain either (a) by tbe use of information wrongfully obtained and not available to all supermarket operators whose prices are being compared, or (b) by inducing any price reporter or price checker to cause false information to be published or broadcast. Following the Federal Trade Commission s actual receipt of such statement, Porter may exclude the price checkers from his supermarkets in the geographic area(s) covered bv the affected price report for so long as the condi- 534 Decision and Order tions set forth in Porter s statement shalf eXlst. In any civil penaltyaction against Porter for a violation of subparagraph ILB. 2. occurring after notice to the Federal Trade Commission was given by Porter as provided in this subparagraph, Porter shall have the burden of proving, by a preponderance ofthe evidence, that the conditions justifying the exclusion of a price checker as set forth in this subparagraph have been met. In meeting his burden, Porter may offer evidence only for the purpose of proving the facts set forth in his statement to the Federal Trade Commission. Nothing in this subparagraph shall be construed to be an exception to the prohibitions of paragraph ILA. of this Order.

II.

It is further ordered That, upon the resumption of price reporting by TeleCable of Springfeld that is similar in quality and coverage to that broadcast by it prior to October 14, 1981, and that includes any Porter supermarket, and upon receipt by Porter of written request for payment from TeleCable, Porter shall reimburse TeleCable for its actual cost of obtaining a price reporting program up to the amount of two hundred fifty dollars ($250.00) per week. Porter s obligation under this Part (Ill) shall terminate either when he has reimbursed TeleCable in the total amount of one thousand dollars ($1 000.00) or three (3) years following the date on which this Order becomes final whichever occurs first. Porter shall not reimburse TeleCable for costs incurred by TeleCable during any week for which TeleCable s costs are reimbursed by any other person.

IV.

It is further ordered That, within seven (7) days following the date on which this Order becomes final, Porter shall send a letter, a copy of which is attached here as Exhibit A, together with a copy of this Order, to TeleCable of Springfield, informing TeleCable of Porter obligations under Parts II and V of this Order, TeleCable s rights under Part III, and the notices that Porter must receive from TeleCable before certain Order provisions become binding upon Porter. It is further ordered, That, if at any time during the two years following the date on which this Order becomes final, Porter is notified in writing by TeleCable of Springfeld that price reporting that includes any of Porter s supermarkets has resumed in Springfeld: 538 FEDERAL TRADE:COMMtSS1QN DECISIONS Decision and Order 104 F. A. For a period of sixty (60) days following the receipt of such notice Porter shall post signs no smaller than 30 inches by 40 inches in a front window in each of Porter s supermarkets in Springfield, stating: GROCERY PRICE SURVEY A price survey comparing prices of selected grocery items at Porter s So-Lo Markets and other Springfield grocery supermarkets is being broadcast over cable television. This comparative price survey can he seen on channel_ and is broadcast from to B. For a period of sixty (60) days following the receipt of such notice whenever Porter places food advertisements of one-half page or larger in any printed advertising medium with circulation of 15 000 or more copies in Springfield, which advertisements cover only his own stores Porter shall publish an announcement as a part thereof in the same language provided in paragraph V.A. This announcement shall be no smaller than 3 inches high by 3 inches wide and shall be printed in conspicuous type. In each week in which Porter does not place a one-half page or larger food advertisement in such printed advertising medium, Porter shall place this announcement as a display advertisement in any printed advertising medium with circulation of15 000 or more copies in those areas of Springfield in which Porter s stores are located.

VI.

It is further ordered That Porter shall, within seven (7) days after the date on which this Order becomes final, and once a year thereafter for three years, provide a copy of this Order to each of his supermarket managers, and secure from each such individual a signed statement acknowledging receipt of this Order.

VII.

It is further ordered That Porter shall, within sixty (60) days after the date on which this Order becomes final, fie with the Commission a verified written report, setting forth in detail the manner and form in which Porter has complied with this Order. Additional reports shall be fied at such other times as the Commission may by written notice require. Each compliance report shall include all information and documentation as may be required by the Commission to show ('nmnJiQnf'P wifh this Order.

534 Decision and Order VII.

It is further ordered That Porter shall notify the Federal Trade Commission at least thirty (30) days prior to the discontinuance of his present business or employment as an individual proprietorship in the sale of groceries, or at least thirty (30) days prior to his affliation with a new business or employment, or of any similar change which may aflect compliance obligations arising out of this Order. The notice provision of this Part shall include any change in the organizational status of Porter s present business, such as incorporation assignment or sale, resulting in the emergence of a successor entity, or any other change in Porter s business or his retail grocery operations.

EXHIBIT A TeleCablc of Springfield 1533 South Enterprise Springfield, Missouri 65801 Dear Sir or Madam:

This is to notify you that I, David Porter, the owner of Porter s So-Lo Markets in Springfield, Missouri, have entered into a consent order with the Federal Trade Commission in which I have agreed that I will not interfere with efforts by independent parties such as TeleCable of Springfield to engage in price reporting or price checking in my grocery stores in Springfield. I have agreed that T will not require price checkers to purchase the items being price checked, will not deny price checkers the same access to my supermarkets as is provided to customers, and will not attempt to coerce any price checker, publisher or broadcaster into refraining from or discontinuing price checking or price reporting. The terms of and limitations ofthe agreement are set forth in a consent order issued by the Federal Trade Commission, a copy of which is enclosed herewith.

If TeleCable of Springfield institutes a price reporting program similar or superior in quality and coverage to the one broadcast by TeleCable in 1981, and if the program includes any of my grocery stores in Springfield, Missouri, I will reimburse TeleCable for its actual costs of obtaining price reports, up to the amount ofs250 per week, and up to $1 000 in total. I will also place notices in my Springfield grocery stores and in weekly advertisements, informing consumers ofTeleCable s price surveys. The precise terms of my obligations to place such notices, and to reimburse 'IeleCable for certain of its costs, are set forth in the enclosed consent order. In order to receive any funds to which you may be entitled and to eHect the placement ofthe notices described above, please notiy me in writing, c/o Porier s So-Lo Markets 1475 North National, Springfield, Missouri 65802, stating when the program began or is scheduled to begin, the time and channel on which the survey will be broadcast, and TeleCable s costs, if any, of obtaining the survey information. Very truly yours David Porter Modifying Order 104 YT.