Archive: 2014

1
E-LABEL Act Exempts Wireless Devices from Physical Label Requirements
2
Ruling Confirms FAA Enforcement Authority Over Reckless Unmanned Aircraft Operations
3
Arbitration Provision Unenforceable in TCPA Class Action, Ninth Circuit Holds
4
Eleventh Circuit Endorses Different TCPA Liability Standards for Faxes and Calls
5
Eleventh Circuit Bolsters FCC Interpretation of “Prior Express Consent” under the TCPA
6
FCC Confirms ‘Opt-Out’ Notice Requirement for All Fax Advertisements
7
Marriott agrees to $600,000 penalty for blocking personal hotspots
8
DOT Initiates Process to Mandate Vehicle-to-Vehicle Communications Technology In New Vehicles
9
Connected Vehicles and Drones Get Boost From New Federal Research Programs
10
Eleventh Circuit Construes ‘Called Party’ Consent Provision of TCPA

Ruling Confirms FAA Enforcement Authority Over Reckless Unmanned Aircraft Operations

By Tom DeCesar, Ed Fishman, Jim Insco, and Marty Stern

The National Transportation Safety Board (NTSB) ruled earlier this week that small, unmanned aircraft flights are subject to Federal Aviation Administration (FAA) rules prohibiting careless and reckless aircraft operation, potentially subjecting small, unmanned aircraft operators to civil enforcement penalties for such operations.  The FAA appealed the closely watched case to the full NTSB after an administrative law judge (ALJ) reached the opposite conclusion in an earlier proceeding.

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Arbitration Provision Unenforceable in TCPA Class Action, Ninth Circuit Holds

By Andrew Glass and Roger Smerage

The Ninth Circuit recently held that a consumer’s TCPA class action against Sirius XM Radio Inc. (“Sirius XM”) was not subject to Sirius XM’s arbitration agreement.  The consumer brought suit alleging that the satellite radio provider violated the TCPA by placing automated calls to his cellular phone without his consent.  Sirius XM sought to compel arbitration on an individual basis.  The consumer countered that although he purchased a car that was preloaded with a trial subscription to Sirius XM radio, the purchase agreement made no mention of a contract governing the satellite radio service.  Rather, the consumer asserted that he did not receive Sirius XM’s terms and conditions until more than a month after he purchased the car, but that those terms required cancellation of service within three days of activation of the trial subscription.  Because of the manner in which Sirius XM delivered its terms and conditions to purchasers of cars with trial subscriptions, the Ninth Circuit found that the consumer could not have provided assent to be bound by the arbitration provision.  Thus, the Ninth Circuit ruled that neither the arbitration provision nor the class action waiver it contained was enforceable.  The decision was issued in a case styled Knutson v. Sirius XM Radio Inc., — F.3d —-, 2014 WL 5802284 (9th Cir. Nov. 10, 2014).

Eleventh Circuit Endorses Different TCPA Liability Standards for Faxes and Calls

By Molly K. McGinley and Joseph Wylie

The United States Court of Appeals for the 11th Circuit recently ruled in Palm Beach Golf Center-Boca, Inc. v. Sarris that a company that contracted with a third party advertising firm to send fax advertisements could be directly liable under the Telephone Consumer Protection Act for faxes sent by the third-party firm on the company’s behalf.  In so holding, the 11th Circuit adopted a framework advanced by the Federal Communications Commission that imposes broader liability for third-party faxing than for third-party calling made on a company’s behalf. Read More

Eleventh Circuit Bolsters FCC Interpretation of “Prior Express Consent” under the TCPA

By Gregory N. Blase, Andrew C. Glass, and Samantha A. Miko

The U.S. Court of Appeals for the Eleventh Circuit recently bolstered the Federal Communications Commission’s (“FCC”) interpretation of “prior express consent,” a key term under the Telephone Consumer Protection Act (“TCPA”).

In Mais v. Gulf Coast Collection Bureau, Inc., the plaintiff’s wife provided the plaintiff’s cellphone number on a hospital admittance form.  The form disclosed that any information supplied could be shared with the hospital’s affiliates and used for any purpose, including for billing.  After the plaintiff failed to pay a hospital affiliate’s invoice for treatment services rendered, the affiliate provided the plaintiff’s contact information to the defendant, which initiated collection activity, including contacting the plaintiff at the cellphone number that was provided on his admittance form by his wife.

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FCC Confirms ‘Opt-Out’ Notice Requirement for All Fax Advertisements

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

The Federal Communications Commission recently released an Order in response to multiple petitions confirming that opt-out notices are required on all advertisements transmitted by facsimile, even those sent with the prior express permission of the recipient.  The FCC also granted retroactive waivers to petitioners that were reasonably uncertain, based on ambiguities in a 2006 Report and Order modifying the FCC’s junk fax rules, about whether the opt-out notice requirement applied to faxes sent at the invitation of the recipient.  The FCC indicated that it would also entertain retroactive waivers requests from similarly situated parties filed prior to April 30, 2015. Read More

Marriott agrees to $600,000 penalty for blocking personal hotspots

Marriott International, Inc. recently entered into a Consent Decree with the Federal Communications Commission to end an investigation into whether the company intentionally disabled consumers’ personal Wi-Fi hotspot connections at its Gaylord Opryland Hotel and Convention Center in Nashville, Tennessee. As part of the Consent Decree, Marriott will pay a $600,000 civil penalty and must file compliance reports with the FCC every three months for three years. Read More

DOT Initiates Process to Mandate Vehicle-to-Vehicle Communications Technology In New Vehicles

By Tom DeCesar, Ed Fishman, Cliff Rothenstein and Marty Stern

A new federal proposal would require new passenger cars and trucks to contain vehicle-to-vehicle communication technology, which uses radio communications to allow vehicles to “talk” to each other and, for example, warn drivers of safety hazards.  Cars that have this technology installed can communicate without the active involvement of a driver or passengers.  Proponents believe this technology also can be used to reduce vehicle emissions, fuel consumption and traffic congestion.  V2V is seen by many as an important part of the new wave of intelligent transportation systems, which will offer improved safety and functionality in the U.S. surface transportation network.

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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.”

 

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