Independent News Company, Inc

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IN THE MA ITER OF INDEPENDENT NEWS COMPANY, INC.

SET ASIDE ORDER IN REGARD TO ALLEGED VIOLA non OF SEC. 2 OF THE CLA YTON ACT Docket 7611. Consent Order, July 6. 1960--5et Aside Order, June . 1995 The Federal Trade Commission has reopened a 1960 consent order (57 FTC 56) -which required the company to offer promotional allowances for its publications on proportionally equal terms to all customers -- and has set aside the consent order as to respondent Warner Publisher Services, the sucessor of Independent News Company, pursuant to the Commission s Sunset Policy Statement, under which the Commission presumes that the public interest requires terminating competition orders that are more than 20 years old. ORDER REOPENING PROCEEDING AND SETTING ASIDE ORDER On February 16, 1995, Warer Publisher Services, Inc. ("WPS" as respondent and successor of Independent News Company, Inc. fied a Petition to Reopen and Set Aside Consent Order ("Petition in this matter. WPS requests that the Commission set aside the 1960 consent order in this matter pursuant to Section 5(b) of the Federal Trade Commission Act, 15 U. c. 45(b), Rule 2. 51 of the Commssion s Rules of Practice, 16 CFR 2. , and the Statement of Policy With Respect to Duration of Competition Orders and Statement of Intention to Solicit Public Comment With Respect to Duration of Consumer Protection Orders, issued on July 22, 1994 and published at 59 Fed. Reg. 45 286-92 (Sept. 1 , 1994) ("Sunset Policy Statement ). In its Petition, WPS affinnatively states that it has not engaged in any conduct violating the terms of the order. The Petition was placed on the public record, and the thirty-day comment period expired on March 27, 1995. No comments were received. The Commssion in its Sunset Policy Statement said, in relevant part, that "effective immediately, the Commission will presume, in the context of petitions to reopen and modify existing orders, that the public interest requires setting aside orders in effect for more than I Since the Commission issued the order in this matter, Independent has changed its name to Warner Publisher Services, Inc. and is now owned by Warner Communications Inc. The other respondent in this maner, The New American Librar of World Literature, Inc., did not petition to have the order set aside as to it.

INDEPENDENT NEWS COMPANY. INe. 833 832 Concuning Statement twenty years.'" The Commission s consent order in Docket No. 7611 was issued on July 6, 1960, and has been in effect for more than twenty years. Consistent with the Commission s Sunset Policy Statement, the presumption is that the order should be tenninated. Nothing to overcome the presumption having been presented, the Commission has determined to reopen the proceeding and set aside the order in Docket No. 7611 as to WPS.

Accordingly, It is ordered That this matter be, and it hereby is reopened;

It isfurther ordered, That the Commission s order in Docket No. 7611 be, and it hereby is, set aside as to respondent Warer Publisher Services, Inc., as of the effective date of this order. CONCURRlNG STATEMENT OF COMMISSIONER MARY L. AZCUEN AGA 1 concur in the decision to grant the request of Warner Publisher Services, Inc., the successor of Independent News Company, Inc., to set aside the 1960 order in this case. I dissent from the decision to limit the setting aside of the order to Warer, instead of setting aside the order in its entirety.

The decision to limit relief to Warer, one of the two respondents under the order, appears to be inconsistent with the Commission announced policy to presume "that the public interest requires reopening and setting aside the order in its entiretv" (emphasis added) when a petition to reopen and modify a competition order is filed" and the order is more than twenty years old. i The Commission recognition of the limitations of the findings underlying an order' further suggests that the presumption that an order wil be terminated after twenty years should apply to the order in its entirety and not be limited to the petitioner I previously have expressed my concern that the adoption of a presumption instead of an across-the-board rule in favor of sunset See Sunset Policy Statement, 59 Fed. Reg. at 45 289. ! FTC, Stalement of Policy with Respect to Duration of Competition Orders and Statement of Intention To Solicit Public Comment with Respect to Duration of Consumer Protection Orders (July 22, 1994), at 8 (hereafter "Sunset Policy Statement (Findings upon which lordersJ ar based should not be presumed to continue" for longer than twenty year. Sunset Policy Statement at 4. 3 The presumption of tcmination after 20 years applies automatically for new mders in competition cases and is no! limited to individual respondents, further supporting the view that the twenty-year presumption in favor of sunset for existing orders should apply to the order, not to particular respondents.

Concurrng Statement 119 F. will impose costs by requiring respondents to file individual petitions and the Commission to assess in the context of each such petition whether the presumption has been overcome for that order. ,,' N ow the Commission would further increase the burden on both public and private resources by applying the presumption in favor of sunset not only on a case-by-case basis but on a respondentrespondent basis.

The petition fied by Warner invoked the twenty-year presumption that the order should be set aside. No evidence of recidivist conduct by any respondent, including The New American Library of World Literature, Inc., having been presented to overcome S the order should be set aside in its entirety.the presumption 4 Separate Statement of Commissioner Mary L. Azcuenaga on Sunset Policy (July 22, 1994), at 7 (footnote omitted).

5 See Sunset Policy Statement at 8 n.

T ALEIGH CORPORATION. ET At. 835 835 Complaint