consumer acting reasonably in the circumstances, to the consumer's detriment.

13

Omissions and misrepresentations by CJB.NET regarding its use of adware are likely to

mislead reasonable consumers.  In determining whether a reasonable user would be

misled by a party, the FTC examines the totality of the circumstances.  Under this test,

the practices of CJB.NET are likely to mislead reasonable consumers.  First, CJB.NET's

disclosure of its advertising practices to potential users is buried within its Web site,

rather than being conspicuously included in the registration process.  No information

about the true nature of CJB.NET's advertising practices is provided at any time during

the registration process.

21. Webmasters who use the free hosting option must visit the CJB.NET Web site and

click on a  Policies  link in the lower right hand corner of the site to learn that  CJB

Management, Inc. reserves the right to send you advertisements and promotional offers

and to place advertisements on the services we provide to you.   Assuming that a

user/webmaster finds this policy, the average user would not understand that everyone

who visits their CJB.NET hosted Web site will be led to believe that they are required to

download invasive advertising software.  A reasonable consumer may recognize that

CJB.NET might send them advertising, but would not realize that all visitors to their Web

site would also receive advertising.

22. The only clear notice given regarding the role of advertising in the Web hosting

service reads simply  CJB Management, Inc. reserves the right to send you

advertisements and promotional offers and to place advertisements on the services we

provide to you. You authorize CJB Management, Inc. to provide your contact

information to third parties for the purpose of sending you advertisements and

promotional offers. 

14

  Any reasonable reading of the ordinary meaning of the phrase

 place advertisements on the services we provide to you  would indicate that all of the

advertising utilized by CJB.NET would be on the hosted Web site.  While a small

advertising box is placed on CJB.NET hosted Web sites, the sites also deceptively cause

visitors to believe that they are required to download unnecessary software that creates

advertising in a format completely separate from the hosted sites.  Moreover, the software

communicates the Web browsing habits of the visitors to an entirely separate company,

indefinitely, until the software is removed.

23. Visitors to Web sites hosted by CJB.NET are also subjected to misleading security

warnings (ActiveX prompts).  ActiveX prompts provide insufficient notice for users.

Such prompts are not designed for the purpose of giving users information to make

decisions about downloading software.  Rather, the prompts are designed to gain consent

for software downloads characterized as being integral to the Web browsing experience.

On a Web site hosted by CJB.NET, text in the ActiveX box states  Website Access By

Zango Search Tools.   This implies that in order to view the Web site hosted by

CJB.NET, one needs to download the  Website Access  program created by

13

 FTC Policy Statement on Deception, Letter from FTC to John D. Dingell, Chairman U.S. House of

Representatives Committee on Energy & Commerce (Oct. 14, 1983), appended to Cliffdale Assocs., 103

F.T.C. 110 (1984).

14

 See http://www.cjb.net/policies.html (emphasis added).

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