some facts on Texas Sues Vonage - clear and conspicuous disclosure

[David Farber <dave () farber net>]

------ Forwarded Message
From: Genny Pershing <gennypershing () YAHOO COM>
Reply-To: Telecom Regulation & the Internet
<CYBERTELECOM-L () LISTSERV AOL COM>
Date: Fri, 25 Mar 2005 11:03:45 -0800
To: <CYBERTELECOM-L () LISTSERV AOL COM>
Subject: Texas Sues Vonage - clear and conspicuous disclosure

Texas alleges in its complaint that Vonage's 911
information is not presented "clearly and
conspicuously."  This is a legal term of art.  The FTC
has guidance on what this means - note that this
standard is taken from the perspective of Joe-Six
Pack, not the perspective of a CTO:

http://www.ftc.gov/bcp/conline/pubs/buspubs/dotcom/index.html#III

B. The Clear and Conspicuous Requirement

Disclosures that are required to prevent deception˜or
to provide consumers material information about a
transaction˜must be presented "clearly and
conspicuously."18 Whether a disclosure meets this
standard is measured by its performance˜that is, how
consumers actually perceive and understand the
disclosure within the context of the entire ad. The
key is the overall net impression of the ad˜that is,
whether the claims consumers take from the ad are
truthful and substantiated.19

In reviewing their online ads, advertisers should
adopt the perspective of a reasonable consumer.20 They
also should assume that consumers don‚t read an entire
Web site, just as they don‚t read every word on a
printed page.21 In addition, it is important for
advertisers to draw attention to the disclosure.
Making the disclosure available somewhere in the ad so
that consumers who are looking for the information
might find it doesn‚t meet the clear and conspicuous
standard.

Even though consumers have control over what and how
much information they view on Web sites, they may not
be looking for˜or expecting to find˜disclosures.
Advertisers are responsible for ensuring that their
messages are truthful and not deceptive. Accordingly,
disclosures must be communicated effectively so that
consumers are likely to notice and understand them.

C. What are Clear and Conspicuous Disclosures?

There is no set formula for a clear and conspicuous
disclosure. In all media, the best way to disclose
information depends on what information must be
provided and the nature of the advertisement. Some
disclosures are quite short, while others are more
detailed. Some ads use only text, while others use
graphics, video and audio. Advertisers have the
flexibility to be creative in designing their ads, so
long as necessary disclosures are communicated
effectively and the overall message conveyed to
consumers is not misleading.

To evaluate whether a particular disclosure is clear
and conspicuous, consider:

    * the placement of the disclosure in an
advertisement and its proximity to the claim it is
qualifying,
    *the prominence of the disclosure,
    * whether items in other parts of the
advertisement distract attention from the disclosure,
    * whether the advertisement is so lengthy that the
disclosure needs to be repeated,
    * whether disclosures in audio messages are
presented in an adequate volume and cadence and visual
disclosures appear for a sufficient duration, and
    *whether the language of the disclosure is
understandable to the intended audience.

. . . . .

"We give dogs time we can spare, space we can spare and love we can  spare..
And in return, dogs give us their all. It's the best deal man has ever
made." --M. Facklam



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