Archive: 2015

1
NTIA Hosts First Meeting On UAS Privacy; Section 333 Exemption Grants Continue To Rise
2
EU Data Protection Supervisor Releases Report on Pending Data Protection Reforms
3
New TCPA Order Holds Few Bright Spots For Businesses
4
Court Awards Individual Plaintiff $229,500 in Damages Under TCPA
5
Update: Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA
6
Connecticut Mandates Identity Theft Services for SSN Data Breaches
7
Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA
8
FCC Empowers TCPA Plaintiffs At Peril Of Businesses
9
European Court of Human Rights Rules Company Liable for Offensive User-Generated Comments
10
EC Digital Single Market Strategy — Details Emerge

NTIA Hosts First Meeting On UAS Privacy; Section 333 Exemption Grants Continue To Rise

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

On August 3th, the National Telecommunications and Information Administration held the first in a series of “multi-stakeholder meetings” among participants in the unmanned aircraft systems (UAS, a.k.a. drones) industry to help create possible industry guidelines on privacy, transparency, and accountability issues.  As we discussed here, the meetings are being held pursuant to President Obama’s February 15, 2015 Presidential Memorandum.  The purpose of the first meeting was to discuss high-priority issues to be addressed during the process, and logistics regarding the best way to address the issues – including through the establishment of working groups and concrete goals.  Future meetings have been scheduled for September 24th, October 21st, and November 20th.

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EU Data Protection Supervisor Releases Report on Pending Data Protection Reforms

By Marlena Wach

The European Union Data Protection Supervisor, Giovanni Buttarelli, recently released his non-binding recommendations on the draft EU General Data Protection Regulation, which is the subject of a so-called “trilogue” consultative process among officials of the European Commission, European Parliament and Council of Ministers to agree on final language of the regulations.  It is largely expected that once finalized, the GDPR will be adopted before year end 2015, which will require approval by both the European Parliament and the Council of Ministers.   As reflected in an annex to Mr. Buttarelli’s recommendations, the European Parliament and Council of Ministers have differed in their approach to various aspects of the regulations, particularly as to enforcement and sanctions, necessitating the trilogue discussions.

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New TCPA Order Holds Few Bright Spots For Businesses

As originally published in Law360

By Martin L. Stern, Andrew C. Glass, Gregory N. BlaseJoseph C. Wylie and Samuel Castic

On Friday, July 10, 2015, the Federal Communications Commission issued its much-anticipated Declaratory Ruling and Order clarifying numerous aspects of the Telephone Consumer Protection Act. The commission had adopted the order at a particularly contentious June 18, 2015 open meeting (see earlier post), which one commissioner called “a farce” and another described as “a new low … never seen in politics or policymaking.”

In an unusual move, the commission made the order effective on its July 10 release date, rather than following publication in the Federal Register as is typical, providing companies with no opportunity to digest the order and adjust business practices accordingly.

As expected, the order largely brushes aside legitimate business concerns and a sensible approach to TCPA regulation in favor of findings that potentially increase risk for businesses in a variety of circumstances, including the possibility of increased class action litigation. In addition, beyond clarifying that carriers may offer call-blocking technologies to consumers, the order offers little to actually protect consumers from scam telemarketing schemes, including offshore “tele-spammers” that use robocalling or phone-number spoofing technologies.
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Court Awards Individual Plaintiff $229,500 in Damages Under TCPA

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

A recent decision by a New York federal court serves as a stark reminder of the need for companies to adopt and follow robust “do not call” procedures in order to minimize the risk of rapidly escalating statutory damages under the Telephone Consumer Protection Act.  The case appears to be the first to rely on the Federal Communications Commission’s recently-announced but at the time, unreleased TCPA declaratory rulings (previously discussed here).  (The order has just been released, but as of this writing, the link was down.)

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Update: Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA

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

The Sixth Circuit recently held that a facsimile which lacks commercial components on its face does not constitute an advertisement under the Telephone Consumer Protection Act and ruled that the possibility of remote economic benefit to a defendant is “legally irrelevant” to determining whether the fax violates the TCPA.  The Sixth Circuit’s narrow rule stands out among decisions from other courts that have adopted an expansive interpretation of “advertisement” under the TCPA, and demonstrates that the scope of the TCPA is indeed subject to limitations.

In Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., the defendant, a pharmacy benefits manager, sent two unsolicited faxes to the plaintiff, a chiropractor.  The faxes informed plaintiff that medications covered by defendant’s health plans could help lower costs for plaintiff’s patients, and directed plaintiff to a complete list of “plan-preferred medications” on defendant’s website.  The faxes, however, did not promote defendant’s services or solicit business from plaintiff.  Nor did the faxes contain pricing, ordering or sales information.  Notably, defendant did not offer for sale any of the identified medicines, either in the faxes themselves or on defendant’s website.

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Connecticut Mandates Identity Theft Services for SSN Data Breaches

By: Holly K. Towle

On June 30, 2015, Connecticut’s governor signed into law an amendment to the state’s data-security-breach-notice statute to mandate “appropriate” identity theft prevention services for breaches involving social security numbers. Identity theft mitigation services are also required “if applicable” (e.g., if identify theft actually occurs). The services must be provided at no cost and for at least 12 months. The statute does not explain which identity theft “prevention” or “mitigation” services are mandated or which are “appropriate.”

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Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA

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

The Sixth Circuit recently held that a facsimile which lacks commercial components on its face does not constitute an advertisement under the Telephone Consumer Protection Act and ruled that the possibility of remote economic benefit to a defendant is “legally irrelevant” to determining whether the fax violates the TCPA.  The Sixth Circuit’s narrow rule stands out among decisions from other courts that have adopted an expansive interpretation of “advertisement” under the TCPA, and demonstrates that the scope of the TCPA is indeed subject to limitations. Read More

FCC Empowers TCPA Plaintiffs At Peril Of Businesses

As originally published in Law360

By Martin L. Stern, Andrew C. Glass, Gregory N. Blase and Joseph C. Wylie 

At its June 18, 2015, open meeting, a sharply divided Federal Communications Commission made good on Chairman Tom Wheeler’s recent promise to bolster the Telephone Consumer Protection Act’s already strict rules and to bring about “one of the most significant FCC consumer protection actions since it established the Do-Not-Call Registry with the FTC in 2003.” While plaintiffs’ class action lawyers are likely to applaud the new measures, businesses are concerned that the new rules could unfairly restrict legitimate communications with customers.

Congress enacted the TCPA in 1991 to address what it perceived as the growing problem of unsolicited telemarketing with technologies such as fax machines, pre-recorded voice messages and automatic dialing systems. The TCPA requires anyone making a call to a wireless line using autodialer or pre-recorded voice-call technologies to obtain the “called party’s” “prior express consent,” and, following a 2012 FCC decision, “prior express written consent” for calls that introduce advertising or constitute telemarketing. Similarly, under that ruling, calls to residential lines using an artificial/pre-recorded voice that introduce advertising or constitute telemarketing require the called party’s prior express written consent. Read More

European Court of Human Rights Rules Company Liable for Offensive User-Generated Comments

By Ignasi Guardans

On Monday, the Grand Chamber of the European Court of Human Rights (ECHR) ruled that an Estonian commercially-run Internet news portal was liable for the offensive online comments of its readers. This was the first case in which the court had been called upon to examine a complaint about liability for user-generated comments on an Internet news portal.

In its grand chamber judgment in the case of Delfi AS v. Estonia (application no. 64569/09), the ECHR held, by 15 votes to two, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The ECHR has a final say, above any other national jurisdiction, on matters related to the European Convention on Human Rights and its judgments have a huge influence in courts all across the Continent. Read More

EC Digital Single Market Strategy — Details Emerge

By Ignasi Guardans, Etienne Drouard, and Annette Mutschler-Siebert

As we recently reported and covered in a webinar, on May 6, the European Commission released the EU’s Digital Single Market strategy, with the declared objective to tear down the obstacles to doing business online. The DSM Strategy has been released together with a document intended to provide the “Analysis and Evidence supporting it.

The DSM Strategy will create potential major challenges as well as opportunities for almost every company doing business in the EU.

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