Eleventh Circuit Construes 'Called Party' Consent Provision of TCPA

 By Andrew Glass and Greg Blase 

Courts continue to weigh in on the evolving body of law under the Telephone Consumer Protection Act.  Last month, the U.S. Court of Appeals for the Eleventh Circuit joined the conversation on the issue of who may be considered the “called party” under the TCPA for purposes of providing consent to receive auto-dialed and pre-recorded voice calls placed to a wireless number.  The TCPA prohibits such calls to wireless phones without the “prior express consent of the called party.”

Continue Reading...
Tweet Like Email

FTC Has Power to Regulate Data Security Practices, Court Rules

By Jenny Paul, Roberta Anderson and Marty Stern 

In a closely watched case, a federal district court judge last week ruled that the Federal Trade Commission has the authority to bring enforcement actions against companies for data security breaches as an unfair practice under the FTC Act. 
 

Continue Reading...
Tweet Like Email

ECJ Decision Broadens Protections For Database Creators

 By Tobias Bosch and Jenny Paul 

The European Court of Justice has issued a
decision that appears to broaden the legal protection accorded to databases, finding that data scraping by dedicated meta search engines infringes the rights of the database creator in certain circumstances.

Continue Reading...
Tweet Like Email

FCC Clarifies Consent Issues for Autodialed Calls and Texts to Mobile Phones

By Jenny Paul and Marty Stern 

The Federal Communications Commission last week clarified several open issues under the Telephone Consumer Protection Act relating to its prohibition on autodialed and prerecorded calls to mobile phones without the called party’s prior express consent, which applies to both voice calls and text messages.  
 

Continue Reading...
Tweet Like Email

FTC Settles With Fandango, Credit Karma Over Mobile App Security

By Jenny Paul and Marc Martin 

Movie ticket seller Fandango and financial management service Credit Karma have agreed to settle the Federal Trade Commission’s allegations that the companies misrepresented the security of their mobile apps and failed to secure the transmission of millions of consumers’ sensitive personal information from the apps, the agency announced last week.
 

Continue Reading...
Tweet Like Email

FTC Settles With Home Security Company Over "Do Not Call" Violations

By Jenny Paul and David Tallman

The Federal Trade Commission announced this week that it had reached a settlement with a home security company that allegedly violated the FTC’s Telemarketing Sales Rule by making sales calls to millions of consumers on the FTC’s Do Not Call Registry and to consumers who had asked the company not to call them again.
 

Continue Reading...
Tweet Like Email

NIST Releases Guidelines to Help Organizations Manage Cyber Risks

By Roberta Anderson and Jenny Paul

In an effort to create workable guidelines and practices to help organizations manage cyber risks, the National Institute of Standards and Technology last week released a Framework for Improving Critical Infrastructure Cybersecurity

Continue Reading...
Tweet Like Email

NHTSA Strongly Endorses Connected Vehicle Technology, But Implementation Questions Remain

By Thomas DeCesar, Edward Fishman, Cliff Rothenstein, and Marty Stern

In a recent announcement, the United States Department of Transportation’s (“DOT”) National Highway Traffic Safety Administration (“NHTSA”) endorsed the future implementation of vehicle-to-vehicle (“V2V”) communication technology in light vehicles (e.g., passenger vehicles and light trucks).  This technology, which is seen by some as the future of vehicle safety, allows vehicles to exchange location and speed information with other vehicles.  This information is processed to provide warnings of driving hazards, or even to automatically stop the vehicle.

Continue Reading...
Tweet Like Email

FCC's Net Neutrality Rules Largely Overturned

By Jenny Paul, Marc Martin, and Marty Stern 

UPDATE 2/24/14
:  The Federal Communications Commission announced last week that it will not appeal the D.C. Circuit’s net neutrality ruling and instead is poised to open a new rulemaking proceeding to write different rules, relying on the D.C Circuit’s finding that the Communications Act of 1934, as amended, grants the commission limited authority to impose general “open Internet” regulations on broadband providers. 

In a statement, Chairman Tom Wheeler said that the Commission will work to write rules within its authority that would fulfill the goals of the anti-blocking and anti-discrimination provisions that the D.C. Circuit struck down in January.  Wheeler said the new rules should ensure that edge providers are not unfairly blocked, explicitly or implicitly, from reaching consumers.  To fulfill its anti-discrimination goal, he said, the Commission will consider (1) setting an enforceable legal standard that provides guidance and predictability to edge providers, consumers, and broadband providers; (2) evaluating on a case-by-case basis whether that standard is met; and (3) identifying key behaviors by broadband providers that the Commission would view with particular skepticism.

While the opening of the new proceeding means that the Commission is not moving to reclassify broadband and regulate it as a common carrier service, Wheeler made clear that he is not taking that option off the table just yet.  “As the Court of Appeals noted, as long as Title II – with the ability to reclassify Internet access service as a telecommunications service – remains a part of the Communications Act, the Commission has the ability to utilize it if warranted,” he said in a statement.

UPDATE 02/04/14:
 Days after the D.C. Circuit struck down the bulk of the Commission’s net neutrality rules, a group of Democrats in the House of Representatives have introduced a bill that would restore the rules the court threw out.  The bill, titled the “Open Internet Preservation Act of 2014,” would reinstate the rules until the Commission takes final action in its Open Internet proceedings.  Sen. Ed Markey (D-Mass.) plans to introduce a companion bill in the Senate.

While the bill likely won’t get very far in the House of Representatives, which in 2011 passed a resolution opposing the Commission’s net neutrality rules, the introduction alone may signal to FCC Chairman Tom Wheeler that Democrats in the House and Senate would back Commission action that would more aggressively regulate broadband providers.

The D.C. Circuit struck a blow to the Federal Communications Commission’s net neutrality rules last week, upholding the Commission’s jurisdiction to regulate broadband service providers’ network management practices, but striking down anti-discrimination and anti-blocking provisions that were designed to ensure equal treatment of Internet traffic by broadband providers.

Continue Reading...
Tweet Like Email

Apple and FTC Settle In-App Charges Complaint for More than $30 Million

 By Jenny Paul and Marc Martin 

Apple has agreed to pay at least $32.5 million to settle a Federal Trade Commission complaint that the company charged consumers millions of dollars for in-app purchases made by children in kids’ mobile apps without parental consent.

Continue Reading...
Tweet Like Email

Supreme Court Agrees to Hear Aereo Case

By Jenny Paul 


The Supreme Court last week agreed to hear the dispute between broadcasters and online streaming service Aereo, a move that could settle whether the start-up service’s business model and network architecture violate copyright law.

Continue Reading...
Tweet Like Email

Hulu Privacy Class Action Ruling Eases Road to Recovery for Plaintiffs

By Jenny Paul 

A federal magistrate judge in California recently ruled that Hulu LLC users do not need to demonstrate an actual injury beyond the wrongful disclosure of personally identifiable information to recover damages under the federal Video Privacy Protection Act, a ruling that may ease the road to recovery for other VPPA plaintiffs.
 

Continue Reading...
Tweet Like Email

FTC Approves First New Method for Verifying Parental Consent under COPPA

By Nickolas Milonas

The Federal Trade Commission recently approved a new method for verifying parental consent under a revised rule of the Children's Online Privacy Protection Act.  COPPA requires websites and online services geared toward children to get parental consent before collecting information on children under 13.  While the rule enumerates acceptable methods for gaining parental consent (such as verification via Social Security number), changes to the rule that took effect July 1 allow for FTC approval of new VPC methods.  

Continue Reading...
Tweet Like Email

House Energy and Commerce Committee Approves Bill to Incentivize Federal Agencies to Release More Spectrum for Commercial Use

By Jenny PaulMarc Martin, and Marty Stern 

The House Energy and Commerce Committee recently
approved the Federal Spectrum Incentive Act, a bill that provides a financial incentive for federal agencies to relinquish some of their government spectrum to the FCC, which would reallocate it for commercial use and auction it to the public. The bill’s incentive structure allows federal agencies that agree to relinquish their spectrum to share in a portion of the proceeds from the FCC’s auction of such spectrum.  This approach draws on the similar 600 MHz “incentive auction” model, which gives broadcast television licensees who relinquish their 600 MHz broadcast spectrum the ability to share in the proceeds of its auction for commercial wireless broadband uses.

Continue Reading...
Tweet Like Email

FCC, Industry Announce Carriers' Voluntary Commitment to Unlock Phones

By Jenny PaulMarc Martin and Marty Stern

The Federal Communications Commission and CTIA recently announced that five major U.S. carriers have agreed to facilitate the unlocking of certain cellphones and tablets, allowing customers to use the unlocked devices on another carrier’s network.

Continue Reading...
Tweet Like Email