< Back to S. 3386 (111th Congress, 2009–2010)

Text of the Restore Online Shoppers’ Confidence Act

This bill was enacted after being signed by the President on December 29, 2010. The text of the bill below is as of Aug 2, 2010 (Reported by Senate Committee).

This is not the latest text of this bill.

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S 3386 RS

Calendar No. 500

111th CONGRESS

2d Session

S. 3386

[Report No. 111-240]

To protect consumers from certain aggressive sales tactics on the Internet.

IN THE SENATE OF THE UNITED STATES

May 19, 2010

Mr. ROCKEFELLER (for himself, Mr. PRYOR, Mr. NELSON of Florida, Ms. KLOBUCHAR, Mrs. MCCASKILL, and Mr. LEMIEUX) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

August 2, 2010

Reported by Mr. Rockefeller, with an amendment

[Strike all after the enacting clause and insert the part printed in italic]


A BILL

To protect consumers from certain aggressive sales tactics on the Internet.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

[Struck out->] SECTION 1. SHORT TITLE. [<-Struck out]

    [Struck out->] This Act may be cited as the ‘Restore Online Shoppers’ Confidence Act’. [<-Struck out]

[Struck out->] SEC. 2. FINDINGS; DECLARATION OF POLICY. [<-Struck out]

    [Struck out->] The Congress finds the following: [<-Struck out]

      [Struck out->] (1) The Internet has become an important channel of commerce in the United States, accounting for billions of dollars in retail sales every year. Over half of all American adults have now either made an online purchase or an online travel reservation. [<-Struck out]

      [Struck out->] (2) Consumer confidence is essential to the growth of online commerce. To continue its development as a marketplace, the Internet must provide consumers with clear, accurate information and give sellers an opportunity to fairly compete with one another for consumers’ business. [<-Struck out]

      [Struck out->] (3) An investigation by the Senate Committee on Commerce, Science, and Transportation found abundant evidence that the aggressive sales tactics many companies use against their online customers have undermined consumer confidence in the Internet and thereby harmed the American economy. [<-Struck out]

      [Struck out->] (4) The Committee showed that, in exchange for ‘bounties’ and other payments, hundreds of reputable online retailers and websites shared their customers’ billing information, including credit card and debit card numbers, with third party sellers through a process known as ‘data pass’. These third party sellers in turn used aggressive, misleading sales tactics to charge millions of American consumers for membership clubs the consumers did not want. [<-Struck out]

      [Struck out->] (5) Third party sellers offered membership clubs to consumers as they were in the process of completing their initial transactions on hundreds of websites. These third party ‘post-transaction’ offers were designed to make consumers think the offers were part of the initial purchase, rather than a new transaction with a new seller. [<-Struck out]

      [Struck out->] (6) Third party sellers charged millions of consumers for membership clubs without ever obtaining consumers’ billing information, including their credit or debit card information, directly from the consumers. Because third party sellers acquired consumers’ billing information from the initial merchant through ‘data pass’, millions of consumers were unaware they had been enrolled in membership clubs. [<-Struck out]

      [Struck out->] (7) The use of a ‘data pass’ process defied consumers’ expectations that they could only be charged for a good or a service if they submitted their billing information, including their complete credit or debit card numbers. [<-Struck out]

      [Struck out->] (8) Third party sellers used a free trial period to enroll members, after which they periodically charged consumers until consumers affirmatively canceled the memberships. This use of ‘free-to-pay conversion’ and ‘negative option’ sales took advantage of consumers’ expectations that they would have an opportunity to accept or reject the membership club offer at the end of the trial period. [<-Struck out]

[Struck out->] SEC. 3. PROHIBITIONS AGAINST CERTAIN UNFAIR AND DECEPTIVE INTERNET SALES PRACTICES. [<-Struck out]

    [Struck out->] (a) Requirements for Certain Internet-Based Sales- It shall be unlawful for any post-transaction third party seller to charge or attempt to charge any consumer’s credit card, debit card, bank account, or other financial account for any good or service sold in a transaction effected on the Internet, unless-- [<-Struck out]

      [Struck out->] (1) before obtaining the purchaser’s billing information, the post-transaction third party seller has clearly and conspicuously disclosed to the purchaser all material terms of the transaction, including-- [<-Struck out]

        [Struck out->] (A) a description of the goods or services being offered; [<-Struck out]

        [Struck out->] (B) the fact that the post-transaction third party seller is not affiliated with the initial merchant, which may include disclosure of the name of the post-transaction third party in a manner that clearly differentiates the post-transaction third party seller from the initial merchant; and [<-Struck out]

        [Struck out->] (C) the cost of such goods or services; and [<-Struck out]

      [Struck out->] (2) the post-transaction third party seller has received the express informed consent for the charge from the consumer whose credit card, debit card, bank account, or other financial account will be charged by-- [<-Struck out]

        [Struck out->] (A) obtaining from the consumer-- [<-Struck out]

          [Struck out->] (i) the full account number of the account to be charged; and [<-Struck out]

          [Struck out->] (ii) the consumer’s name and address and a means to contact the consumer; and [<-Struck out]

        [Struck out->] (B) an additional affirmative action from the consumer, such as clicking on a confirmation button or checking a box that indicates the consumer’s consent to be charged the amount disclosed. [<-Struck out]

    [Struck out->] (b) Prohibition on Data-Pass Used To Facilitate Certain Deceptive Internet Sales Transactions- It shall be unlawful for an initial merchant to disclose a credit card, debit card, bank account, or other financial account number, or to disclose other billing information that is used to charge a customer of the initial merchant, to any post-transaction third party seller for use in an Internet-based sale of any goods or services from that post-transaction third party seller. [<-Struck out]

    [Struck out->] (c) Limitations on Use of Negative Option Feature in Internet-Based Sales Transactions- It shall be unlawful for any person to charge or attempt to charge any consumer for any goods or services sold in a transaction effected on the Internet through a negative option feature, unless-- [<-Struck out]

      [Struck out->] (1) before obtaining the purchaser’s initial agreement to participate in the negative option plan, the seller has clearly and conspicuously disclosed all material terms of the transaction, including-- [<-Struck out]

        [Struck out->] (A) the name of the entity offering the goods or services; [<-Struck out]

        [Struck out->] (B) a description of the goods or services being offered; [<-Struck out]

        [Struck out->] (C) the cost of such goods or services; [<-Struck out]

        [Struck out->] (D) notice of when billing will begin and at what intervals the charges will occur; and [<-Struck out]

        [Struck out->] (E) the length of any trial period, including a statement that the consumer’s account will be charged unless the consumer takes affirmative action and the steps the consumer must take to the avoid the charge; [<-Struck out]

      [Struck out->] (2) the seller has obtained the express informed consent described in subsection (a)(2) from the purchaser before charging or attempting to charge the purchaser’s credit card, debit card, bank account, or other financial account on a recurring basis; [<-Struck out]

      [Struck out->] (3) the seller enables the purchaser to stop recurring charges from being made to the purchaser’s credit card, debit card, bank account, or other financial account through a simple process that is available via-- [<-Struck out]

        [Struck out->] (A) the Internet; and [<-Struck out]

        [Struck out->] (B) telephone; and [<-Struck out]

      [Struck out->] (4) not less than 10 days prior to the initiation of each charge to a purchaser’s credit card, debit card, bank account, or other financial account, the seller has sent the purchaser an e-mail (at an e-mail account provided by the consumer) that clearly and conspicuously discloses-- [<-Struck out]

        [Struck out->] (A) that a charge will be made to the consumer’s credit card, debit card, bank account, or other financial account; [<-Struck out]

        [Struck out->] (B) the amount of the charge and a description of the goods and services for which the consumer will be charged; and [<-Struck out]

        [Struck out->] (C) instructions for stopping recurring charges in accordance with the requirements of paragraph (3). [<-Struck out]

    [Struck out->] (d) Application with Other Law- Nothing in this Act shall be construed to supersede, modify, or otherwise affect the requirements of the Electronic Funds Transfer Act (15 U.S.C. 1693 et seq.) or any regulation promulgated thereunder. [<-Struck out]

    [Struck out->] (e) Definitions- In this section: [<-Struck out]

      [Struck out->] (1) Initial merchant- The term ‘initial merchant’ means a person that has obtained a consumer’s billing information directly from the consumer through an Internet transaction initiated by the consumer. [<-Struck out]

      [Struck out->] (2) Negative option feature- The term ‘negative option feature’ has the meaning given that term in section 310.2(t) of the Federal Trade Commission’s Telemarketing Sales Rule regulations (16 C.F.R. 310.2(t)). [<-Struck out]

      [Struck out->] (3) Post-transaction third party seller- The term ‘post-transaction third party seller’ means a person that-- [<-Struck out]

        [Struck out->] (A) sells, or offers for sale, any good or service on the Internet; [<-Struck out]

        [Struck out->] (B) solicits the purchase of such goods or services on the Internet through an initial merchant after the consumer has initiated a transaction with the initial merchant; and [<-Struck out]

        [Struck out->] (C) is not a subsidiary or corporate affiliate of the initial merchant. [<-Struck out]

[Struck out->] SEC. 4. ENFORCEMENT BY FEDERAL TRADE COMMISSION. [<-Struck out]

    [Struck out->] (a) IN GENERAL- Violation of this Act or any regulation prescribed under this Act shall be treated as a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) regarding unfair or deceptive acts or practices. The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. [<-Struck out]

    [Struck out->] (b) REGULATIONS- Notwithstanding any other provision of law, the Commission may promulgate such regulations as it finds necessary or appropriate under this Act under section 553 of title 5, United States Code.- [<-Struck out]

    [Struck out->] (c) Powers of Commission- [<-Struck out]

      [Struck out->] (1) In general- The Commission shall prevent any person from violating this Act and any regulation prescribed under this Act, in the same manner, by the same means, and with the same jurisdiction, powers and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. [<-Struck out]

      [Struck out->] (2) Penalties- Any person who violates this Act or any regulation prescribed under this Act, shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated in and made part of this Act. [<-Struck out]

    [Struck out->] (d) Authority Preserved- Nothing in this section shall be construed to limit the authority of the Commission under any other provision of law. [<-Struck out]

[Struck out->] SEC. 5. ENFORCEMENT BY STATE ATTORNEYS GENERAL. [<-Struck out]

    [Struck out->] (a) RIGHT OF ACTION- Except as provided in subsection (e), the attorney general of a State, or other authorized State officer, alleging a violation of this Act or any regulation issued under this Act that affects or may affect such State or its residents may bring an action on behalf of the residents of the State in any United States district court for the district in which the defendant is found, resides, or transacts business, or wherever venue is proper under section 1391 of title 28, United States Code, to obtain appropriate injunctive relief. [<-Struck out]

    [Struck out->] (b) INITIATION OF CIVIL ACTION- [<-Struck out]

      [Struck out->] (1) NOTICE TO COMMISSION REQUIRED IN ALL CASES- A State shall provide prior written notice to the Federal Trade Commission of any civil action under subsection (a) together with a copy of its complaint, except that if it is not feasible for the State to provide such prior notice, the State shall provide such notice immediately upon instituting such action. [<-Struck out]

      [Struck out->] (2) FILING OF COMPLAINT- A State may initiate the civil action by filing a complaint-- [<-Struck out]

        [Struck out->] (A) at any time after the date on which the 30-day period ends; or [<-Struck out]

        [Struck out->] (B) earlier than such date if the Commission consents to an earlier initiation of the civil action by the State. [<-Struck out]

        [Struck out->] (C) FORM OF NOTICE- The written notice required by this paragraph may be provided by electronic mail, facsimile machine, or any other means of communication accepted by the Commission. [<-Struck out]

    [Struck out->] (c) INTERVENTION BY THE COMMISSION- The Commission may intervene in such civil action and upon intervening-- [<-Struck out]

      [Struck out->] (1) be heard on all matters arising in such civil action; and [<-Struck out]

      [Struck out->] (2) file petitions for appeal of a decision in such civil action. [<-Struck out]

    [Struck out->] (d) CONSTRUCTION- Nothing in this section shall be construed-- [<-Struck out]

      [Struck out->] (1) to prevent the attorney general of a State, or other authorized State officer, from exercising the powers conferred on the attorney general, or other authorized State officer, by the laws of such State; or [<-Struck out]

      [Struck out->] (2) to prohibit the attorney general of a State, or other authorized State officer, from proceeding in State or Federal court on the basis of an alleged violation of any civil or criminal statute of that State. [<-Struck out]

    [Struck out->] (e) LIMITATION- No separate suit shall be brought under this section if, at the time the suit is brought, the same alleged violation is the subject of a pending action by the Federal Trade Commission or the United States under this Act. [<-Struck out]

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Restore Online Shoppers’ Confidence Act’.

SEC. 2. FINDINGS; DECLARATION OF POLICY.

    The Congress finds the following:

      (1) The Internet has become an important channel of commerce in the United States, accounting for billions of dollars in retail sales every year. Over half of all American adults have now either made an online purchase or an online travel reservation.

      (2) Consumer confidence is essential to the growth of online commerce. To continue its development as a marketplace, the Internet must provide consumers with clear, accurate information and give sellers an opportunity to fairly compete with one another for consumers’ business.

      (3) An investigation by the Senate Committee on Commerce, Science, and Transportation found abundant evidence that the aggressive sales tactics many companies use against their online customers have undermined consumer confidence in the Internet and thereby harmed the American economy.

      (4) The Committee showed that, in exchange for ‘bounties’ and other payments, hundreds of reputable online retailers and websites shared their customers’ billing information, including credit card and debit card numbers, with third party sellers through a process known as ‘data pass’. These third party sellers in turn used aggressive, misleading sales tactics to charge millions of American consumers for membership clubs the consumers did not want.

      (5) Third party sellers offered membership clubs to consumers as they were in the process of completing their initial transactions on hundreds of websites. These third party ‘post-transaction’ offers were designed to make consumers think the offers were part of the initial purchase, rather than a new transaction with a new seller.

      (6) Third party sellers charged millions of consumers for membership clubs without ever obtaining consumers’ billing information, including their credit or debit card information, directly from the consumers. Because third party sellers acquired consumers’ billing information from the initial merchant through ‘data pass’, millions of consumers were unaware they had been enrolled in membership clubs.

      (7) The use of a ‘data pass’ process defied consumers’ expectations that they could only be charged for a good or a service if they submitted their billing information, including their complete credit or debit card numbers.

      (8) Third party sellers used a free trial period to enroll members, after which they periodically charged consumers until consumers affirmatively canceled the memberships. This use of ‘free-to-pay conversion’ and ‘negative option’ sales took advantage of consumers’ expectations that they would have an opportunity to accept or reject the membership club offer at the end of the trial period.

SEC. 3. PROHIBITIONS AGAINST CERTAIN UNFAIR AND DECEPTIVE INTERNET SALES PRACTICES.

    (a) Requirements for Certain Internet-Based Sales- It shall be unlawful for any post-transaction third party seller to charge or attempt to charge any consumer’s credit card, debit card, bank account, or other financial account for any good or service sold in a transaction effected on the Internet, unless--

      (1) before obtaining the purchaser’s billing information, the post-transaction third party seller has clearly and conspicuously disclosed to the purchaser all material terms of the transaction, including--

        (A) a description of the goods or services being offered;

        (B) the fact that the post-transaction third party seller is not affiliated with the initial merchant, which may include disclosure of the name of the post-transaction third party in a manner that clearly differentiates the post-transaction third party seller from the initial merchant; and

        (C) the cost of such goods or services; and

      (2) the post-transaction third party seller has received the express informed consent for the charge from the consumer whose credit card, debit card, bank account, or other financial account will be charged by--

        (A) obtaining from the consumer--

          (i) the full account number of the account to be charged; and

          (ii) the consumer’s name and address and a means to contact the consumer; and

        (B) requiring the consumer to perform an additional affirmative action, such as clicking on a confirmation button or checking a box that indicates the consumer’s consent to be charged the amount disclosed.

    (b) Prohibition on Data-Pass Used To Facilitate Certain Deceptive Internet Sales Transactions- It shall be unlawful for an initial merchant to disclose a credit card, debit card, bank account, or other financial account number, or to disclose other billing information that is used to charge a customer of the initial merchant, to any post-transaction third party seller for use in an Internet-based sale of any goods or services from that post-transaction third party seller.

    (c) Limitations on Use of Negative Option Feature in Internet-Based Sales Transactions- It shall be unlawful for any person to charge or attempt to charge any consumer for any goods or services sold in a transaction effected on the Internet through a negative option feature, unless--

      (1) before obtaining the purchaser’s initial agreement to participate in the negative option plan, the seller has clearly and conspicuously disclosed all material terms of the transaction, including--

        (A) the name of the entity offering the goods or services;

        (B) a description of the goods or services being offered;

        (C) the cost of such goods or services;

        (D) notice of when billing will begin and at what intervals the charges will occur;

        (E) the length of any trial period, including a statement that the consumer’s account will be charged unless the consumer takes affirmative action and the steps the consumer must take to the avoid the charge; and

        (F) instructions for stopping the recurring charges in accordance with the requirements of paragraph (3);

      (2) the seller has obtained the express informed consent described in subsection (a)(2) from the purchaser before charging or attempting to charge the purchaser’s credit card, debit card, bank account, or other financial account on a recurring basis; and

      (3) the seller enables the purchaser to stop recurring charges from being made to the purchaser’s credit card, debit card, bank account, or other financial account through a simple process that is available via--

        (A) the Internet; or

        (B) e-mail.

    (d) Application with Other Law- Nothing in this Act shall be construed to supersede, modify, or otherwise affect the requirements of the Electronic Funds Transfer Act (15 U.S.C. 1693 et seq.) or any regulation promulgated thereunder.

    (e) Definitions- In this section:

      (1) Initial merchant- The term ‘initial merchant’ means a person that has obtained a consumer’s billing information directly from the consumer through an Internet transaction initiated by the consumer.

      (2) Negative option feature- The term ‘negative option feature’ has the meaning given that term in section 310.2(t) of the Federal Trade Commission’s Telemarketing Sales Rule regulations (16 C.F.R. 310.2(t)).

      (3) Post-transaction third party seller- The term ‘post-transaction third party seller’ means a person that--

        (A) sells, or offers for sale, any good or service on the Internet;

        (B) solicits the purchase of such goods or services on the Internet through an initial merchant after the consumer has initiated a transaction with the initial merchant; and

        (C) is not a subsidiary or corporate affiliate of the initial merchant.

SEC. 4. ENFORCEMENT BY FEDERAL TRADE COMMISSION.

    (a) IN GENERAL- Violation of this Act or any regulation prescribed under this Act shall be treated as a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a) regarding unfair or deceptive acts or practices. The Federal Trade Commission shall enforce this Act in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act.

    (b) REGULATIONS- Notwithstanding any other provision of law, the Commission may promulgate such regulations as it finds necessary or appropriate under this Act under section 553 of title 5, United States Code.

    (c) Penalties- Any person who violates this Act or any regulation prescribed under this Act shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated in and made part of this Act.

    (d) Authority Preserved- Nothing in this section shall be construed to limit the authority of the Commission under any other provision of law.

SEC. 5. ENFORCEMENT BY STATE ATTORNEYS GENERAL.

    (a) RIGHT OF ACTION- Except as provided in subsection (e), the attorney general of a State, or other authorized State officer, alleging a violation of this Act or any regulation issued under this Act that affects or may affect such State or its residents may bring an action on behalf of the residents of the State in any United States district court for the district in which the defendant is found, resides, or transacts business, or wherever venue is proper under section 1391 of title 28, United States Code, to obtain appropriate injunctive relief.

    (b) NOTICE TO COMMISSION REQUIRED- A State shall provide prior written notice to the Federal Trade Commission of any civil action under subsection (a) together with a copy of its complaint, except that if it is not feasible for the State to provide such prior notice, the State shall provide such notice immediately upon instituting such action.

    (c) INTERVENTION BY THE COMMISSION- The Commission may intervene in such civil action and upon intervening--

      (1) be heard on all matters arising in such civil action; and

      (2) file petitions for appeal of a decision in such civil action.

    (d) CONSTRUCTION- Nothing in this section shall be construed--

      (1) to prevent the attorney general of a State, or other authorized State officer, from exercising the powers conferred on the attorney general, or other authorized State officer, by the laws of such State; or

      (2) to prohibit the attorney general of a State, or other authorized State officer, from proceeding in State or Federal court on the basis of an alleged violation of any civil or criminal statute of that State.

    (e) LIMITATION- No separate suit shall be brought under this section if, at the time the suit is brought, the same alleged violation is the subject of a pending action by the Federal Trade Commission or the United States under this Act.

Calendar No. 500

111th CONGRESS

2d Session

S. 3386

[Report No. 111-240]

A BILL

To protect consumers from certain aggressive sales tactics on the Internet.


AUGUST 2, 2010

Reported with an amendment