Category: Consumer Issues, Privacy & Data Security

1
Ruling Confirms FAA Enforcement Authority Over Reckless Unmanned Aircraft Operations
2
Arbitration Provision Unenforceable in TCPA Class Action, Ninth Circuit Holds
3
Eleventh Circuit Endorses Different TCPA Liability Standards for Faxes and Calls
4
Eleventh Circuit Bolsters FCC Interpretation of “Prior Express Consent” under the TCPA
5
Marriott agrees to $600,000 penalty for blocking personal hotspots
6
No Group Hugs: The Supreme Court Says “Yes” to Class Action Arbitration Waivers
7
Senators McCain and Kerry Introduce Privacy Bill of Rights
8
U.S. Justice Department Raises Concerns Regarding Proposal to Limit Federal Government’s Access to ‘Cloud’ Data
9
Retransmission Consent Examined in Heated, Live Webcast Debate Among Broadcast, Cable, Programming, and Consumer Interests
10
House Votes to Overturn FCC’s Net Neutrality Order

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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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

No Group Hugs: The Supreme Court Says “Yes” to Class Action Arbitration Waivers

By Andrew Glass and Robert Sparkes III

The Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion continues the Court’s string of arbitration decisions bringing greater clarity to what has been a cloudy subject.  In this decision, the Court addresses the question of whether businesses can enforce class action waivers in their consumer arbitration agreements, answering unequivocally “yes.” Indeed, the decision is an important victory for businesses, and is likely to help businesses avoid the costs of what are more often than not meritless class lawsuits.

The Concepcion decision finds its roots in the Court’s recent decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corporation. There, the Court established the principle that parties cannot be forced to submit to class-wide arbitration unless they have actually agreed to do so. In Stolt-Nielsen the Court did not have the occasion to address whether parties can expressly waive arbitration on a class-wide basis. Now, applying Stolt-Nielsen to express class action arbitration waivers, Concepcion finds the Federal Arbitration Act (FAA) invalidates state law aimed at barring such waivers. State law is preempted by the FAA where it presents “an obstacle” to accomplishing Congress’s objective of promoting the efficiency of arbitration.

The telecommunications, consumer credit and finance, and sales industries, as well as other businesses that offer consumer services, are likely to benefit from the lower costs of individual arbitration. AT&T contends that consumers will also benefit from the streamlined procedures offered by arbitration.

Senators McCain and Kerry Introduce Privacy Bill of Rights

On April 12, 2011, Senator John Kerry (D-MA) and Senator John McCain (R-AZ) introduced the “Commercial Privacy Bill of Rights Act of 2011” to establish the first federal statutory baseline of consumer privacy protection that would apply across industry sectors. The bill would govern how customer information is used, stored, and distributed online. We will provide more analysis soon, but for now, here are the highlights:

Information covered. The bill applies to broad categories of information, including names, addresses, phone numbers, e-mail addresses, other unique identifiers, and biometric data when any of those categories are combined with a date of birth, place of birth, birth certificate number, location data, unique identifier information (that does not, alone, identify an individual), information about an individual’s use of voice services, or any other information that could be used to identify the individual.

Right to security and accountability. Information-collecting entities would be required to implement security measures to protect user information and would be prohibited from collecting more individual information than is necessary “to enforce a transaction or deliver a service requested by that individual,” subject to certain exceptions.

Privacy by design. Entities would be required to implement privacy by design concepts, which would require entities to incorporate privacy protection into each stage of product or service development in a manner that is much more comprehensive than previously required anywhere in the United States.

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U.S. Justice Department Raises Concerns Regarding Proposal to Limit Federal Government’s Access to ‘Cloud’ Data

By Oded Green

On April 6, 2011, the Senate Judiciary Committee held a hearing regarding a proposed update to the Electronic Communications Privacy Act (ECPA) in light of cloud computing and other technological developments that have occurred since the statute was enacted more than two decades ago. The ECPA is comprised of three laws — the Wiretap Act, the Stored Communications Act, and the Pen Register Act — which govern when certain parties, including law enforcement and other governmental authorities, may access communications and related data and to whom they may disclose those communications and data.

According to Senate Judiciary Committee Chairman, Patrick Leahy, with the explosion of cloud computing, social networking sites and other new technologies, determining how to bring ECPA into the digital age is one of Congress’ greatest challenges. He added that ECPA is “hampered by conflicting standards that cause confusion for law enforcement, businesses and consumers.” For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent.

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Retransmission Consent Examined in Heated, Live Webcast Debate Among Broadcast, Cable, Programming, and Consumer Interests

A live webcast last week carried on Internet TV channel Broadband US TV examined all sides of the debate on whether rules governing the grant of retransmission consent by local broadcast stations to cable operators, DBS providers, and other multichannel video programming distributors (MVPDs), should be reformed.

Retransmission consent negotiations have become quite contentious in recent years, at times resulting in the temporary blackout of a local broadcast station in the face of an impasse between the MVPD and broadcaster.

The lively and, at times, raucous debate featured Toni Cook Bush of Skadden, Arps and John Hane of Pillsbury Winthrop Shaw Pittman for broadcasters, Ross Lieberman of the American Cable Association and Cristina Pauze of Time Warner Cable for cable operators, Gigi Sohn of Public Knowledge for consumer interests, and Richard Waysdorf, of Starz Entertainment for independent programmers. The program was moderated by Broadband US TV co-hosts Marty Stern of K&L Gates and Jim Baller of the Baller Herbst Law Group.

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House Votes to Overturn FCC’s Net Neutrality Order

In a setback to one of the FCC’s key policy proposals, the House of Representative today voted in favor of a Resolution of Disapproval under the Congressional Review Act aimed at invalidating the Commission’s Net Neutrality Order adopted late last year. The vote follows months of heated industry and Congressional debate, including sharply partisan debate  about the Resolution’s merits, court challenges brought by wireless carriers, and procedural delays in bringing the Resolution to the House floor. While the Resolution seeks to overturn the FCC’s new anti-blocking, network management transparency, and traffic discrimination rules, it faces an uphill battle to become law. The Resolution would need to get passed by the Democrat-controlled Senate and get signed by the President. The White House recently said it plans to veto any measure overturning the FCC’s Net Neutrality Order.

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