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FCC Denies $3.3 Billion in Bidding Credits to AWS-3 Auction Winners, Requires Full Payment in 30 Days
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Unmanned Aircraft–A Winged Threat to Privacy?
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FAA Asks Law Enforcement to Help Police Unmanned Aircraft Use
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E-LABEL Act Exempts Wireless Devices from Physical Label Requirements
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Ruling Confirms FAA Enforcement Authority Over Reckless Unmanned Aircraft Operations
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Arbitration Provision Unenforceable in TCPA Class Action, Ninth Circuit Holds
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Eleventh Circuit Endorses Different TCPA Liability Standards for Faxes and Calls
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Eleventh Circuit Bolsters FCC Interpretation of “Prior Express Consent” under the TCPA
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FCC Confirms ‘Opt-Out’ Notice Requirement for All Fax Advertisements
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Marriott agrees to $600,000 penalty for blocking personal hotspots

FCC Denies $3.3 Billion in Bidding Credits to AWS-3 Auction Winners, Requires Full Payment in 30 Days

By Stephen J. Matzura and Marty Stern

The FCC unanimously adopted an order released earlier this week denying approximately $3.3 billion in small business bidding credits to SNR Wireless LicenseCo, LLC and Northstar Wireless, LLC, two entities financed by DISH Network Corporation that had won licenses in the AWS-3 auction which concluded in January (Auction 97).  The auction, which had net winning bids of over $41 billion, significantly exceeded expectations and has been termed a “whopping success” from a revenue standpoint. In a statement issued prior to the order’s release, Commission Chairman Tom Wheeler stated that the entities “are not eligible for bidding credits” based on the Commission’s “fact-based analysis,” which “ensures that bidding credits only go to the small businesses our rules aim to serve.”  The Commission’s order, released the following day, details the Commission’s analysis of whether DISH revenues should be attributed to SNR and Northstar based on its degree of control over the entities.

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Unmanned Aircraft–A Winged Threat to Privacy?

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

It is has been a busy time in the field of unmanned aircraft systems (a.k.a., drones).  The Federal Aviation Administration recently released a Notice of Proposed Rulemaking that would allow the widespread use of small unmanned aircraft for a variety of low-altitude, line-of-site commercial operations–something currently prohibited by the agency.  However, the FAA does not typically deal with privacy issues.  So, while the FAA will regulate the use of these devices, President Obama issued a Presidential Memorandum calling for the National Telecommunications and Information Administration to begin a multi-stakeholder process to outline industry guidelines related to privacy, transparency, and accountability in the use of unmanned aircraft.  (See our recent client alert on the FAA small UAS NPRM and the Presidential Memorandum by clicking here.)  Although the NTIA’s typical focus is on telecommunications issues, it has convened a multi-stakeholder processes to address privacy issues involving such things as mobile app disclosures and facial recognition technologies. Read More

FAA Asks Law Enforcement to Help Police Unmanned Aircraft Use

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

The Federal Aviation Administration recently released new guidance directed to local and state law enforcement asking for help in policing unmanned aircraft flights that violate its policies. The FAA is concerned with an apparent increase in the unauthorized or unsafe use of small Unmanned Aircraft Systems by individuals and businesses.  Read More

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

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