TMT Law Watch

Business, legal, and policy developments affecting the telecom, media, and technology sector.

 

1
Circuit and District Courts Grapple with Questions Raised in the Wake of Campbell-Ewald v. Gomez
2
Seventh Circuit Holds That TCPA Fax Regulations Do Not Impose Strict Liability for Actions of Contractors
3
The New EU-US Privacy Shield: a New Deal on Personal Data Transfers
4
Safe Harbor 2.0 is Coming (This Week)
5
Drones May Have Limited Range, But Regulatory Coordination Doesn’t Have To
6
Your Money Is No Good Here: U.S. Supreme Court Holds That an Unaccepted Rule 68 Offer of Complete Relief Does Not Moot an Individual’s Claims, but Questions Remain
7
Third Circuit Applies FCC’s New TCPA “Autodialer” Interpretation
8
FCC Hits Companies in Latest Wi-Fi Blocking Inquiries, Proposing $718,000 Penalty, Fueling Further Controversy
9
U.S.-EU Safe Harbor Invalidated. What Next?
10
Consider Fair Use Before Submitting Takedown Request

Circuit and District Courts Grapple with Questions Raised in the Wake of Campbell-Ewald v. Gomez

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

In the wake of Campbell-Ewald v. Gomez, in which the Supreme Court held that an unaccepted Rule 68 offer of complete relief does not moot a plaintiff’s individual claims, the Third Circuit recently held that an unaccepted settlement offer “has no force” and therefore neither the plaintiffs’ individual claims nor the class claims in the suit were mooted by defendant’s offer of full relief prior to the filing of a motion to certify a class in Weitzner et al. v. Sanofi Pasteur Inc. et al.  (Our previous analysis of Campbell-Ewald can be found here.)

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Seventh Circuit Holds That TCPA Fax Regulations Do Not Impose Strict Liability for Actions of Contractors

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

On March 21, 2016, the Seventh Circuit issued its decision in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793 (7th. Cir. 2016), holding that agency principles apply to TCPA claims in determining whether a fax sent by a third-party is sent “on behalf of” a principal.  In doing so, the Seventh Circuit applied a uniform standard of agency principles to fax advertisements and calls under the TCPA despite the Federal Communications Commission’s (the “FCC”) previous assertions that vicarious liability for fax activity is subject to a different and potentially broader test.  As previously discussed, other courts have declined to apply agency principles to decide this question, in effect applying different standards to fax and call activity. Read More

The New EU-US Privacy Shield: a New Deal on Personal Data Transfers

By Bruce J. Heiman, Michael J. O’Neil, Ignasi Guardans, Etienne Drouard

On February 2, two days after the deadline set by Europe for agreement on a new Safe Harbor governing US access to the personal data of European citizens, US and EU negotiators announced that they had agreed upon a framework for a new data sharing agreement, which will be called the EU-US Privacy Shield, to replace the Safe Harbor agreement struck down by the European Court of Justice on October 6, 2015.

US companies adhering to the EU-US Privacy Shield, which has yet to be formally adopted by both the EU Commission and the US Department of Commerce, will be able to receive, store and use personal data from Europe according to its terms.

The key elements of the EU-US Privacy Shield, which aims to assure that US protections of European personal data will be essentially equivalent to that provided in Europe, will be: Read More

Safe Harbor 2.0 is Coming (This Week)

US companies will need to take action to comply with any new agreement

As we explained in detail in our Explanatory note of October 6 2015, and the webinar that followed held on October 9, the Schrems decision of the Court of Justice of the EU (CJEU) invalidated the US Safe Harbor program, and as a result of that most transfers of European personal data to the US done under that scheme became potentially illegal, if not covered by other legal options as described below.

Subsequently, Europe’s national Data Protection Authorities (DPAs), through the so called Article 29 Working Group, declared their intention not to bring enforcement actions against such EU – US data transfers before February 1, in order to give the US and EU time to reach a new agreement that could meet the objections raised by the CJEU.

In the meantime, we have been assisting a number of companies who decided to pursue alternate methods of compliance (model contract clauses and binding corporate rules). However, other companies decided to wait to see the results of negotiation, hoping that they would be able to comply with a new revised Safe Harbor agreement.

Fortunately, senior government officials on both sides of the Atlantic have suggested that this is the week for a new agreement to be announced. Any such agreement will have to provide additional transparency regarding US Government access to personal information under a national security rationale. It also will have to provide additional avenues of redress for Europeans whose data may have been inappropriately collected or used. We also expect that there will be a transition period for US companies previously relying on the Safe Harbor program to benefit from the coverage of the new arrangement.

Of course, any agreement will not be self executing. It will have to be approved and implemented by US, EU and by European national government authorities. But we expect this to happen. Similarly, we expect there to be legal challenges to any new arrangement before selected DPAs, which will end at some moment before the CJEU. But these proceedings will take some time and compliance with Safe Harbor 2.0 may be the easiest, cheapest and fastest way to preserve data flows unless and until the new agreement is eventually invalidated.

Drones May Have Limited Range, But Regulatory Coordination Doesn’t Have To

By Former Rep. James T. Walsh, contributor, and Rod Hall (Originally published in The Hill)

Safe integration of unmanned aircraft systems (UAS) into the national airspace is one of the foremost policy challenges of 2016. But while Capitol Hill has largely focused on the regulatory efforts of the Federal Aviation Administration (FAA), developments overseas will also shape the future of the dynamic UAS industry in the year ahead.

Just before the end of the year, the European Aviation Safety Agency (EASA) released its technical framework for UAS regulation across the 28 member states of the European Union. The framework will serve as the basis for rule-making activities at the EU and member-state levels in 2016 and 2017.

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Your Money Is No Good Here: U.S. Supreme Court Holds That an Unaccepted Rule 68 Offer of Complete Relief Does Not Moot an Individual’s Claims, but Questions Remain

By Andrew C. Glass, Gregory N. Blase, Jennifer J. Nagle, Jeremy M. McLaughlin, and Matthew Lowe

On January 20, 2016, the United States Supreme Court issued its decision in Campbell-Ewald Company v. Gomez regarding Rule 68 offers of judgment.[1]  The Court held that a defendant cannot moot a case by merely offering complete relief to a plaintiff but left unanswered whether a defendant may do so by actually providing complete relief.  Nor did the Court reach the question of whether a plaintiff can continue to seek to represent a putative class when his or her individual claims are mooted before a class is certified.

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Third Circuit Applies FCC’s New TCPA “Autodialer” Interpretation

By Joseph C. Wylie II, Molly K. McGinley, Nicole C. Mueller

The Third Circuit recently applied the FCC’s new interpretation of “automated telephone dialing system” under the Telephone Consumer Protection Act (“TCPA”), which the Commission adopted this past summer in its highly controversial Telephone Consumer Protection Act declaratory ruling.  The court in Dominguez v. Yahoo, Inc. vacated and remanded for further proceedings the district court’s order on summary judgment for Yahoo.

According to the Third Circuit, under the FCC’s newly-formulated definition, a system is an autodialer, and, in general, subject to the TCPA’s prohibition on autodialed calls to wireless numbers absent consent of the called party, if it is “able to store or produce numbers that themselves are randomly or sequentially generated ‘even if [the autodialer is] not presently used for that purpose.’”  In adopting this definition and following the FCC, the Third Circuit focused on the “capacity” element that was at the crux of the FCC’s decision.

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FCC Hits Companies in Latest Wi-Fi Blocking Inquiries, Proposing $718,000 Penalty, Fueling Further Controversy

By Stephen J. Matzura and  Marty Stern

On the heels of a consent decree with a services provider imposing a $750,000 penalty for its Wi-Fi management practices at convention center venues, the FCC slammed another services provider earlier this week for allegedly blocking Wi-Fi access at the Baltimore Convention Center.  In a Commission-level Notice of Apparent Liability (“NAL”), the FCC proposed a $718,000 penalty against M.C. Dean, Inc. for allegedly blocking access to third-party Wi-Fi hotspots during at least 26 days in November and December 2014 at the venue, “apparently” in violation of Section 333 of the Communications Act.

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U.S.-EU Safe Harbor Invalidated. What Next?

By: Martin Stern and Samuel Castic

On October 6, the U.S.-EU Safe Harbor was invalidated in a European Court of Justice decision in Schrems v. Data Protection Authority. Thousands of companies have certified as compliant with the Safe Harbor framework, and may need to reevaluate the legal basis for transfers of personal data from the EU to the U.S.

Learn more in our alert “Did the ECJ Kill the Safe Harbor Framework on E.U.-U.S. Data Transfers?”, and sign up for our webinar this Friday October 9 here.

Consider Fair Use Before Submitting Takedown Request

By Alexis Crawford Douglas (As originally posted at K&L Gates IP Law Watch)

The U.S. Digital Millennium Copyright Act (DMCA) has been a potent tool for combatting copyright infringement on the Internet. Section 512 shields Internet service providers from liability if they expeditiously remove content after copyright owners submit takedown requests notifying the ISP of infringing content. Last week, in Lenz v. Universal Music Corp., the Ninth Circuit held that copyright owners must consider fair use before sending takedown notices, or they could face liability for damages.

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