On demand 1h 1m 10s Intermediate

Website and Digital Communication Regulatory Compliance Under the ADA, FTC, FCC and FINRA

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Website and Digital Communication Regulatory Compliance Under the ADA, FTC, FCC and FINRA

The topic of Website Regulatory Compliance is made up of a complex set of federal regulatory rules and guidelines to ensure that business websites and digital communications are honest and truthful, accessible to people with disabilities and compliant with financial services requirements.  These rules and guidelines can be found under: The Federal Trade Commission (FTC)
The Americans with Disabilities’ Act (ADA);The Federal Communications Commission (FCC); and
Financial Industry Regulatory Authority (FINRA).

Transcript

Hi, this is Stacy Turmel and today's presentation is Website and Digital Communication Regulatory Compliance under the ADA, FTC, FCC and FINRA. So what is this thing called Website Regulatory Compliance? It's kind of a new phrase that's out there, but there is a complex set of regulatory rules that exist, that are out there to ensure that business websites and digital communications are supposed to be honest and truthful, accessible to people with disabilities, and also compliant with financial services requirements. This is not necessarily an exhaustive list of all the regulatory compliance requirements related to websites, but it's what's relevant for our discussion today. And in particular, today, we're gonna be talking about the Federal Trade Commission, also known as the FTC, the Americans with Disabilities Act, also known as the ADA, the Federal Communications Commission, also known as the FCC, and the Financial Industry Regulatory Authority, which is also known as FINRA. So let's first start talking about the FTC. So the basic statute that we're gonna be discussing with respect to websites that's enforced by the FTC is Section 5A of the FTC Act. And that particular section empowers the Federal Trade Commission to investigate and prevent unfair methods of competition or unfair or deceptive acts or trade practices affecting commerce. So you might be thinking, well, what does that have to do with websites? Well, websites are another way that people engage and businesses engage in commerce. So here for the FTC under Section 5A, we're talking about the agency has two primary missions with respect to its interest in protecting consumers. One is protecting competition, which is, you know, making sure that no organization has monopoly on a particular, you know, industry so that we can have capitalism and competition. And the other is, in particular, protecting consumers who are out there buying things in the stream of commerce. So when we deal with, you know, antitrust issues and consumer protection laws, you know, the FTC enforces those, they deal with almost every industry out there, with the exception of just a couple. So they don't deal with banks, that's regulated by a whole different group or insurance, non-profits, or transportation or communication carriers. So here we're really talking about the FTC and everything else but those when it comes to consumer protection. So what does deceptive mean? This is an important term for us to understand when it comes to the Federal Trade Commission. So how the FTC defines deceptive is it says that a representation or omission or practice is deceptive if it's likely to mislead consumers and affect consumers behavior or decisions about the product or service. And what the FTC is really talking about there when it's talking about affect consumers behavior, it's really talking about the decision to buy, right? Because it's not an issue unless something happens that causes you as a consumer to purchase something that maybe you wouldn't have purchased had you known more information about that product or service. So what the FTC can do is it has the authority to seek relief for consumers, help consumers, if you will, through what's called regulatory enforcement and civil actions. And this regulatory enforcement can include fines, it can include penalties, injunctions, where the FTC says, stop doing something or start doing something, and also can help provide consumer refunds. So let's break that down. So the orders to cease and desist, if the FTC finds that, say for example, in a, you know, a pyramid scheme or something like that, finds a company engaging in what's called a pyramid scheme and they want them to stop, that would be an order to cease and desist. And so whenever an organization tells somebody to do something, either start or stop doing something that's called an injunction. So in order to cease and desist would be the injunction, what we were talking about just a minute ago. The FTC also has the ability to leverage penalties, we were talking about that. And currently those penalties right now are $46,517 per violation. And it's important to remember that is per violation. So if the court, excuse me, if the FTC finds that a particular business or organization has engaged in a deceptive practice, and maybe they did that with a thousand consumers, you can see how that number could, you know, rapidly increase when it's multiplied. Violations of court orders when the FTC has ordered some action, like the cease and desist that we were talking about before, if the business doesn't comply with what the FTC has said, then that can result in civil or criminal penalties. And that's related to contempt, meaning not complying with the court order. And then also, like previously mentioned, the FTC can provide refunds to consumers for actual damages. So if, for example, consumers purchased a product or service that was subject to deceptive action that the FTC stepped in on, the FTC can order that company to provide refunds to those consumers as a result of suffering those damages. So who is supposed to comply with the FTC? Well, sellers who are out there selling things, products and services on the internet, they are responsible for the claims that they make about their products and services. So as you can see how we're starting to get into what is the relationship with websites and the FTC. It's pretty much impossible these days to shop for anything without doing at least some, if not all of it online. And so here sellers have to be responsible with the claims that they're making with regards to their products or services and you know, like are they being truthful? And so what we're also talking about here is, you know, you can have third parties who could be involved. For example, if you own a business and you have an advertising agency or a website designer or somebody that's considered to be an e-commerce marketer and those, you know, those organizations or those third parties are helping you out there with your business and they know that what you're saying about your product or service is not true, they could also be liable if they had that kind of knowledge. So it's just something that lots of different organizations and businesses and those helping those businesses need to pay attention to because it can have some very serious consequences. So let's get into what are the rules of FTC website compliance? So what we're talking about here is, like I briefly mentioned before, when you're out there advertising products or services on the internet, the advertising that you're putting out there needs to tell the truth and not mislead consumers. And a claim is misleading if it either includes information or conveniently leads out important information if it leads the consumer to believe something that's not necessarily true. For example, if you have a weight loss product and maybe, you know, one quarter of 1% of the people who take that weight loss product have seen successful or incredible results, and you market that as being, that's what's gonna happen for everybody because it happened to that one quarter of 1%. There's some potential liability there, there's some problems. So claims are supposed to be substantiated with what's called solid proof, and the FTC really gets fired up about this when it concerns the health, safety, or performance of certain products or services. And then the FTC has a special kind of requirement when it comes to you advertising to kids, or if you're marketing children related products to their parents, they have some significant truth in advertising standards and they really have some heightened requirements with respect to food advertising, to children and adolescents that need to be paid attention to. So keeping going with the rules, disclaimers, if you have a disclaimer or you're disclosing things about a particular product or service, it's gotta be clear, it's gotta be noticeable. You can't have it in tiny little print that's sitting in the bottom of a website that nobody could really understand. And again, they're taking that action that they, you know, are buying, you know, your particular product or service because they believe something that you were supposedly, you know, didn't disclaim, although you had this tiny print that they couldn't see. If you have endorsements and testimonials, those have guidelines too under the Federal Trade Commission and you need to pay attention to those, for example, you know, one of those areas is under the Consumer Review Fairness Act, which is a resource that's been provided to you as far as you know, what are reviews supposed to say and what is supposed to be put in there with regards to review, if for example, it's been a paid review, maybe some of you who've had the opportunity to do some online shopping, you might notice that some reviews will say, this is a compensated review where somebody has either received a free product or maybe they've received some sort of perk or benefit with regards to leaving that review. Those organizations that are sharing that information and disclosing that are complying with what they're supposed to. But you could see how things could quickly shift for consumers with regards to products and services if reviews are paid for, basically purchased by the company or organization, yet that information is not disclosed to the general public, that would be problematic and that would fall under what's called a deceptive practice. Also, you know, this comes into play when we're talking about environmental or you see the term green, you know, if something's considered to be green and there's an option for you to purchase a green version of a product or service, you know, that's gotta be supported by scientific evidence. You just can't roll out there and say, Hey, you know, what I put together for pest control or something is green unless you have reliable scientific evidence to back that up. Same applies to made in the USA. The Federal Trade Commission has very clear guidelines and requirements on what qualifies to utilize the label made in the USA. Also, we're talking about performance of products or services. If there's a demonstration of a product, it needs to be demonstrated under normal use, regular use, not special use that's going to achieve that one quarter of 1%, you know, winning result. But what is normal use? And if you promise refunds to dissatisfied consumers, if that's something that you put out there on your website and if you promised it, you better make 'em because that's another basis for the FTC to potentially come after you if a complaint is filed by a disgruntled consumer. So lots of information about the FTC, you can see how the advertising can, you know, become very problematic if it's not paid attention to, and those requirements are not met under the Federal Trade Commission. Now we're going to turn our attention to the Americans with Disabilities Act, right? And what is Website Regulatory Compliance under the Americans with Disabilities Act? Well, the ADA is a federal civil rights law that was enacted in 1990 and it prohibits discrimination against people with disabilities in everyday activities. And so it prohibits discrimination similar to other civil rights laws, like for example, no discrimination based on race, color, sex, or age. The ADA is considered to be a civil rights law with respect to people with disabilities. So the ADA actually guarantees that people with disabilities have the same opportunities as everybody else to enjoy things like employment opportunities, to purchase goods and services, and to participate in state and local government programs. And so this information is taken directly from the federal government's website, ada.gov. And so it's important to note that this is actually a guarantee. It's not just a hopeful promise, this is something that the ADA is requiring to be provided to people with disabilities. And so it actually has different requirements for different levels of organizations that what are, you know, basically fall under or are subject to the ADA. And so this is where we're talking about, so who is supposed to have an accessible website because that is part of enjoyment of being able to purchase goods or services or having access to information that would also fall under that equal enjoyment requirement. And that would include, you know, we're conducting our lives quite frequently, if not a majority of you know, purchasing or gathering information online. So we have different titles under the ada. So title one are employers that have 15 or more employees, and these include state and local governments. Title two are state and local government services, programs and activities. And then title three are what are called public accommodation businesses and nonprofits that are serving the public. And so these public accommodation businesses, as you can see, there's not a number attached to how big that business needs to be in order to be subject to the ADA. So title three requires businesses to provide people with disabilities an equal opportunity to access the goods and services they offer, and this includes professional offices, restaurants, gyms, private schools also includes privately operated transit, for example, taxis, hotel shuttles, Uber, Lyft or ride share programs. But back to the number. So you don't see a specific number that a business has to be in order to be a public accommodation business. Why is that important? Well, if you are a professional office, an accounting office of one, and you are considered to be a public accommodation business, which an accounting office would be, you are subject to the ADA. So it's important to make that distinction and understand the wide sweeping consequences that businesses and organizations are subject to as public accommodation businesses, under Title three of the ADA. And this is where we see a majority of the website compliance litigation related to accessible websites is dealing with public accommodation businesses. So what are the rules of ADA website compliance? Well, there's no legislation that directly sets out what are the requirements of website accessibility. There is no statute, rule, you know, government law in any state or our federal government that I can point you to that says, this is what you are supposed to do. This statute tells you what you're supposed to do in order to make your website accessible. The Department of Justice is the federal organization that is tasked with enforcing the ADA in addition to private citizen actions, meaning lawsuits that can be filed by private citizens against businesses and organizations for a violation of the ADA. So the Department of Justice has said that they believe the ADA applies to public accommodations websites, but it hasn't said what are those technical standards? The DOJ is saying, yes, it does apply, but then it's silent as to what are the particular standards it wants you to meet. And so what that does is it kind of leaves the door wide open for a variety of interpretations. And so what it also has done is left the door wide open for a onslaught of lawsuits that have been on the rise since mid 2015. So what's been happening is that because we don't have this clear guidance, the courts that you know are out there dealing with these lawsuits, are looking to other case law where this has been dealt with. And also something that's called the Web Content Accessibility Guidelines. And those guidelines were developed by an organization called the Worldwide Web Consortium, otherwise known as the W3C. And the Worldwide Web Consortium has promulgated what it considers to be its recommended accessibility requirements that websites should meet guidelines just like it says in order to achieve website accessibility. So because of the heavy litigation that has been ongoing with public accommodations businesses under Title three, what is happening is that where you do business impacts your legal risk under the ADA, now what does that mean? Well, what it means is that there's a case law divide, meaning we don't have consistent rulings from our courts across the country. There's the minority view, which are courts that have said that a website, a standalone website, is considered to be a public accommodation within the meaning of the ADA. So remember when we were talking about title one, title two, title three of the ADA and title three had to do with public accommodations businesses. And there's a list there that you can take a look at your own, well, courts interpreting that list have determined that list also includes standalone websites, again, the minority viewpoint. So meaning a smaller number of courts have made that interpretation than a larger number of courts, well, what does that mean? That means that if you have a business that is just online only, meaning no brick and mortar, no door opening onto the street, that certain courts have determined that your website is a place of public accommodation and it needs to be accessible to people with disabilities. And you should be paying very close attention to the web content accessibility guidelines. The majority view says that it really focuses on what we call a nexus theory. And the nexus theory means that if your website is integral and a significant part and related to your brick and mortar business, then that website needs to be accessible based on a nexus theory, meaning it's an important part of your business offerings and you also offer things in a brick and mortar location that has doors that open up to the street. And so that website should not be a barrier to somebody who is trying to access information about your business's products or services, that's the Nexus theory. And that being a majority of you, meaning more courts, have found that is what a public accommodation requirement is when it comes to websites and businesses than just a standalone website. So you can see how this can quickly become just a complete, you know, like just wide open free for all for lawsuits depending on, you know, where you're doing business. Now from a standpoint that you know, you're on the internet, where are you not doing business, I think is a better question, right? Because if you're out there, are you specifically saying, Hey, we're not doing business with people who live in these particular states? If you're not saying that, then you're doing business everywhere. So something to pay attention to as far as you know, what are the rules and requirements and what is the viewpoint or how is the case law falling in your particular state or jurisdiction, something to pay attention to. So like I was talking about earlier, website compliance lawsuits have been just doing nothing but increasing. 2021 was a record breaking year when it came to website compliance lawsuits, you know, the top three jurisdictions, New York, California, and Florida. We had a ruling in Florida that actually kind of quieted things down for website compliance lawsuits. And that's why the numbers there are pretty low. York continues to lead the charge in lawsuit filings related to ADA website compliance. And no surprise, but the bulk of the lawsuits are related to e-commerce businesses, almost three quarters of them. And then after that you have like digital marketing, banking, financial, food service, healthcare and travel. And so medium and small businesses are generally the hardest hits where you know, are getting hit really hard and over six 67% of the companies, so more than two thirds of the companies that are getting sued are medium and small businesses. So it's important to note that this is not something that looks like it's going to be slowing down, the 2021 lawsuits were basically being filed at a rate of like one an hour during a business day, approximately 10 per day. So you know, something to pay attention to. Those lawsuits are continuing to escalate. So now we're gonna move into the Federal Communications Commission. When we think about the Federal Communications Commission, many of us think about television or radio broadcasting, that type of thing, and that's true, you know, the FCC regulates interstate and international communications by radio, television, wire, satellite, and cable across the country and DC and our territories. So what do they have to do with website accessibility and compliance? Well, the FCC is the primary authority for communications law, regulation, and technological innovation. So they are responsible for implementing and enforcing America's communications laws and regulations, which is important for us to pay attention to. And I know you're still wondering, what does that have to do with website compliance? Well, we take a look at what the goal of the FCC is and it's there to promote connectivity and to ensure what's called a robust and competitive market through developing and implementing regulatory programs, they process applications for licenses and other filings, they are out there encouraging the development of innovative services, they also have an enforcement wing where they conduct investigations and they analyze complaints. They're also responsible for promoting public safety and homeland security. And they're also out there providing consumer information and education. There are some things that the FCC also encourages. So in 2017, the FCC had a privacy policy that was repealed. It had banned internet service providers from collecting, storing, and sharing and selling certain types of customer information without their consent. And so this data would include your web browsing history, so where you've been, the websites that you've been looking at, also the types of apps that you're using, and then location details. So when a particular business organization would be collecting your location, you know, this is what this privacy and safety policy was about, but like I said, it was repealed. So the FCC also encourages what is called net neutrality. Now you know, what is that? Well, what the FCC is saying here is that all data traffic on a network is supposed to be treated equally. Meaning that I should have the same access to speed of a network as my neighbor or somebody down the street or somebody in a town 250 miles away. So that's what, you know, net neutrality is. So internet service providers are restricted or there should be restricted from blocking or slowing down or speeding up the delivery of online content at their discretion. So but like I said, what am I talking about here? I'm seeing encouraging meaning it's not necessarily a regulated that's not required, okay? So as you can see from a little bit of the history, in 2015, the FCC passed a net neutrality order in 2017, that order was repealed in 2022, it might be back in play, but as we sit here right now, it's not, there's no requirement, meaning that different businesses and organizations can, you know, try to get faster or slower speeds or engage in what's called blocking, slowing down, or speeding at the delivery of online content related to network speeds. You can see how that could become problematic if my neighbor can afford to pay for faster delivery than maybe I can, even though we both have the same plan and they might be treated more favorably than I am, right? So that's the whole point of net neutrality, keep it equal. So how does the FCC regulate communication? 'Cause that's what they're all about, right? They're about communication. So when it comes to radio, no surprise here, they can grant or revoke a license. Again with television grant or revoke a license also regulating content, meaning what's on and when in advertising the FCC can regulate and limit the ways in which companies can use telecommunications to contact consumers, including limiting what is called robocalls or automated calling systems. So or expectations from phone solicitors, I mean, can't count the number of times I've been told that the warranty on a car I haven't owned for seven years is about to expire. So the FCC and the FTC, the Federal Trade Commission, are the ones who are responsible for creating the do not call list, so that's important to know. So now with regards to accessibility, the FCC also ensures that telecommunications technologies are available to underserved populations such as people with disabilities, rural communities, the poor and small businesses. So you can see the importance of the encouragement of net neutrality and trying to get that back to being, you know, available to everybody equally. So what is the 21st Century Communications and Video Accessibility Act? So the CVAA was passed by Congress back in 2010, and that was done to update telecommunications access and video programming for people with disabilities. And so what this required, and this falls under the FCC, so the CVAA requires telecommunications, manufacturers, suppliers and service providers, including voice over internet VOIP and non interconnected or one way VOIP providers to make their products and services accessible to persons with disabilities. And this is an important part here, these organizations, manufacturer, supplier service providers, are also supposed to ensure that their products and services are usable, that's important, they need to be usable. So what does that mean, what's the significance of that? What is the usability requirement under the CVAA? So usability refers to the ability of people with disabilities to learn how to use covered products and services, including their accessibility features effectively and independently. So back to the FCC, the FCC regulations are requiring these equipment suppliers, these manufacturers, the service providers to ensure access to information and documentation provided to other customers for their customers with disabilities. This includes user guides, bills for services, installation guides for a user to install a device, and product support communications. These are all required to be usable. So who is subject to this usability requirement? So what the FCC has basically said is that this usability requirement applies to everyone in the chain, you know, so who is in the line of providers with regards to telecommunications, product development and distribution? So you're gonna have the people who manufacture it, you're gonna have the organizations that supply it, those that market it, those that install it, you know, everybody in that chain of telecommunications, product development, distribution, as well as to advance communication services, they are required to ensure that this product or service is usable. And that's significant for purposes of our discussion. So we're gonna talk about a case study that has to do specifically with the FCC so you can understand the relationship between Website Regulatory Compliance, which is what we've been discussing here, and this case study that's ViaTalk under the FCC and ViaTalk was cited for violating the FCC disability access rules. So what happened here is you had a longtime ViaTalk customer, he had actually been a ViaTalk customer for over 10 years. He was a quadriplegic and he had requested a call with the telecommunications provider ViaTalk for additional troubleshooting because he had received a replacement VOIP adapter and he was having difficulty navigating the online support platform because of his disability. And so he kept calling ViaTalk and making requests for VIA talk to call him and help him troubleshoot his problem with this VOIP service and adapter. And the company just was not responding ViaTalk, just ghosted him and never responded back to him and never followed up to schedule a call to help him with the difficulty that he was having. So he filed a, what was called a dispute resolution request. And the dispute resolution request is where you can file a complaint with the FCC and say, I'm having a problem with a particular provider and you know, this is what my problem is and I need this regulatory organization, the FCC, to step in and help me. And so the FCC found that ViaTalk violated the usability requirement because they ignored this quadriplegic customer's request for technical support over the phone. They just never responded. So what is the potential, you know, issue with that as far as what is the risk to ViaTalk? Well, because of the investigation and the determinations made by the FCC, viatalk was facing possible forfeiture or other sanctions, which was, you know, to be determined by the FCCs Enforcement Bureau in a subsequent proceeding. So you can see that the FCC did its investigation and made a determination that ViaTalk did you know, was responsible for not, you know, maintaining the usability requirement and not servicing or helping this particular customer. So you know, that determination was made at one level and then you had the enforcement bureau, which is basically saying, this is what we're going to make you do. And so in the FCCs Enforcement Bureau, they required ViaTalk to schedule and conduct a call with the complainant, which was the long time, long time customer and quadriplegic and also his attorney to provide accessible product support information and guidance on restoring his service. They also required ViaTalk to make system-wide changes that would improve responsiveness to complaints from individuals with disabilities. So these were, you know, wide sweeping requirements that were made to ViaTalk in order for it to, you know, still maintain its licensure and continue to operate legitimately under the FCC. So what's the significance of this particular case study? Well, what's important to understand here is that even though the FCC, which is a regulatory organization that is generally just out there governing communications, we might not necessarily think that they are involved with Website Regulatory Compliance. You can see under the CVAA and the usability requirement, and in particular usability for people with disabilities, that there is a regulatory requirement here with respect to ensuring access to information. And this also includes specifically with this particular case study, access to installation information and troubling in, excuse me, troubleshooting information for this individual who had been a long time customer seeking help. And so the FCC does have requirements under that usability requirement that for those organizations and businesses out there that are in the telecommunications business, whether as a manufacturer, supplier, distributor and such, these are important things to pay attention to. The FCC clearly has indicated with this ViaTalk order that they are not taking usability lightly, and this is something that they find to be significant and important and they're going to enforce. And so I think it's something that needs to be paid attention to, so that is the FCCs role. So now we're going to move into FINRA. So what is FINRA? Well, fINRA stands for the Federal Industry Regulatory Authority, and it's a not-for-profit organization that is working under the supervision of the SEC, which is the Securities Exchange Commission. And they are actively engaged with, and they provide in tools for investors, member firms, and policy makers. So what we're talking about here is like brokerage firms and investment companies. And so FINRA is authorized by Congress to protect America's investors by making sure that broker dealers, that industry is operating fairly and honestly to safeguard the investing public against fraud and bad practices. So FINRA, what do they do? Well, they write and they enforce the rules governing registered brokers and broker brokerage firms in the United States. And in addition to overseeing these firms and their brokers, FINRA also administers qualifying exams that securities professionals must pass to sell securities or supervise others who do, so FINRA's out there, you know, basically issuing the licensing exams for those people who want to become brokers and have different licenses to sell different types of securities, and also for those companies who are managing those people or those brokers who are working for them, there's also those more supervisory levels. And FINRA is responsible for regulating those too. So FINRA is also out there analyzing billions of daily marketing, excuse me, market events. Those daily market events are going to be things like, you know, purchases and sales of securities and other types of assets that might be sold by securities firms or brokers and brokerage firms. So they provide several different resources. One of these resources is called broker check, which is, you know, verifying that the broker that you are working with is not somebody who's maybe, you know, on an FBI wanted list or something like that, that somebody is properly licensed. The reason why is because there's such a high risk of harm, right, I mean, if you're working with somebody who's not licensed to be doing, you know, buying or selling or assisting you or, you know, giving you guidance with regards to security sales or purchases, that person could go, you know, could cause significant harm to you if they were maybe engaging in those practices, you know, with deceitful intent. So who is supposed to comply with FINRA and why are we talking about this? So FINRA provides regulatory oversight over all securities firms. So any securities firm that is doing business with the public, plus any of those that are offering training, testing, and licensing of registered persons. So if it's a particular organization that's offering education and testing for somebody who's wanting to become a licensed broker, you know, this is something that FINRA provides regulatory oversight, they're watching to make sure that it's done properly. Also, this includes arbitration and mediation and market regulation by contract for the New York Stock Exchange, NASDAQ stock Market, the Amex Exchange, and also International Securities Exchange. This includes in industry utilities and, you know, which would include trade reporting facilities. Basically those exchanges and other what are called OTC are over the counter operations. So you can see that FINRA has an incredible amount of responsibility and they oversee more than 3,500 brokerage firms approximately 154,000 branch offices. And you know, the numbers just continue to get bigger, 625,000 registered securities representatives so the individuals who are out there helping people buy and sell, you know, securities and other assets. So FINRA has a lot of regulatory responsibility when it comes to the public related to, you know, basically the securities and sales of securities. So what are the rules of FINRA website compliance? So you remember when we talked earlier about how the FTC has basically oversight over businesses and you know, with regards to the truth of marketing and advertising that's going on in business websites and just also the truth in marketing in general by those businesses. But there were several exclusions in that list. So here's where FINRA is stepping in on, you know, to manage the exclusions that the FTC is not managing. So here FINRA requires that financial services organizations they must avoid making guarantees, optimistic projections or ambiguous statements that might be misinterpreted. They're also to include clear, visible, and easily understandable disclosures and disclaimers. So as you can see when we talked about the FTC earlier during our discussion, and we're seeing some similarities here. So you know, especially in the area of financial security sales, you know, no guarantees. So making sure that when you know there's advertisements being made by a broker or its, you know, its managing securities firm that there's no guarantees. Not saying that you are definitely going to earn, you know, X amount from this particular purchase or sale. Or optimistic projections. You know, oh, well if you buy this today, it's gonna increase, you know by 300 % or more over the next several months. They're not allowed to do that. Or ambiguous statements, things like, well you can't lose by buying this particular, you know, securities or investment, any statement that might be misinterpreted. In addition, clear, visible, easily understandable disclosures and disclaimers. So you recall when we were talking about the FTC and Federal Trade Commission and how disclosures and disclaimers were supposed to be very clear and easily findable, noticeable, visible. You're seeing a lot of the same requirements here by FINRA with regards to broker dealers and brokers, that if there is a disclosure that's related, you know, to a particular security or even just buying and selling securities in general, you know, the disclosure that they are not FDIC insured, you know, not insured by federal deposit, that investment accounts are just not insured there. That, you know, when you're buying your, you're buying securities and selling them, you're doing so at your own risk, you know, the disclaimers, you know, as far as like rates of returns are not gonna be guaranteed. And so they have to put all of that information out there as warnings to the public that, you know, this is something that is, you know, potentially risky and there is no guarantee that you are going to come out on the positive end of things. So you can see a lot of similarities between what's being required of FINRA with respect to what these organizations are supposed to have on their websites and also just what in general the FTC required of just businesses with respect to products and services. So what else is FINRA requiring on the websites? Well, we're dealing, you know, with financial services organizations, so you know, they are requiring that every member firm website is supposed to include this obvious reference and a hyperlink to what's called broker check, which we talked about a little bit earlier. And so this is that broker background evaluation tool that I was mentioning to you. So this is supposed to be sitting there easily findable for any person who's going to any broker firm's website and they want to check on the name of the person maybe that they were referred to to help them buy and sell securities to make sure that this person is legitimately licensed and isn't currently facing some sort of disciplinary action or sanctions. And so that's important for people to have access to be able to do. Also these financial services organizations are supposed to ensure compliance for any content that's on their website that they have adopted or endorsed. This also includes links to third party websites. So this is important to pay attention to. So you may recall that when we were talking about the FTC, we talked about how there's potential liability for third parties like web designers or advertisers or you know, marketers and that type of thing, you know, for those are the people who are working with that business on, you know, putting things on their website for sale, for advertising and that type of thing, well, here with FINRA, we're not only looking at just, you know, what is the information that's sitting on the website that's being marketed in a particular way, but if there is a link to another company's website on that broker dealer's website that information also has to comply with FINRA, so these broker dealers have a heightened requirement to ensure that any website that they are linking to is also compliant with what are the FINRA requirements with respect to the disclaimers, the disclosures, you know, any of those requirements. Not making guarantees, not providing ambiguous statements. So these organizations have to do a lot of due diligence and vetting to ensure that they are not linking to third party websites that might have information that violates those FINRA requirements. Because what FINRA is saying here in no uncertain terms, is that if they're requiring the third party websites to be compliant with FINRA, that means that the website that links to the third party website could be responsible for that content and be, you know, held liable for that from a regulatory standpoint. So why is that important? Well, because FINRA will step in and they will, you know, issue what are considered to be sanctions, you know, these are the penalties for not complying with FINRA. So what are these sanctions. Well, FINRA has a wide variety of sanctions that it can impose and you were also provided with a resource as far as like what is the most recent sanctions listing that FINRA can do. And these sanctions for wrongdoing can include fines, they can include suspensions, so that could be, you know, a suspension of an individual broker, could also be a suspension of a brokerage firm from being allowed to continue to operate out there and have brokers working for it, which would be very problematic when you're dealing with some serious misconduct. Then, you know, we could talk about what are called bars from the brokerage industry. So this is when you know somebody who may have committed either a Ponzi scheme or something like that is now stripped of their license and they're never allowed to come back. That is what is considered to be a bar from the brokerage industry. And so these are things that, you know, usually are newsworthy when we see them, you know, the fines are not usually small, they're actually quite large and can go into, the millions of dollars depending on the depth and breadth of the violations. So FINRA publishes its sanctions guidelines so that members or associated people and their attorneys counsel can understand the types of disciplinary sanctions that might be applicable to various violations. So this information is out there as far as you know, what are the risks for not complying with FINRA. So just to kind of do a brief recap, we talked about the FTC Federal Trade Commission and requirements with respect to websites, truth in advertising, making sure you're not, you know, over promising and underdelivering, that's a major issue there, we talked about the ADA, making sure that your website content is accessible to people with disabilities. We talked about the FCC, the Federal Communications Commission, and its usability requirement for telecommunications providers to make sure that anybody in the chain of telecommunications is ensuring that whatever they're providing is usable. And this is also for people with disabilities. And then we talked about FINRA, which is what our broker dealer financial services industry, what are those websites supposed to have, and again, you know, some similarities to the FTC, which is making sure that there's no over promising and under-delivering, no guarantees being provided and that there's an easy way for you to make sure that the person that you're dealing with is properly licensed for you to work with. And if not, then there are some, you know, serious sanctions that could be available. So I hope that you have found this information to be helpful and enlightening and I hope you enjoyed it. Thank you.

Presenter(s)

ST
Stacey Turmel
Assistant General Counsel/Senior Vice President of Technology Transactions
Citigroup

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