Category: Compliance Updates & Enforcement

1
Last Week to File for Retroactive Waiver of FCC Rule Requiring Opt-Out Notice on All Fax Advertisements
2
Open Internet Order Published — Triggers Appeal Deadline, June 12, 2015 Effective Date
3
E-LABEL Act Exempts Wireless Devices from Physical Label Requirements
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
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FCC Confirms ‘Opt-Out’ Notice Requirement for All Fax Advertisements
7
FCC Regulatory Fees for 2011 Due by September 14th
8
Restrictive Website Rules Found to Be Anticompetitive
9
Doing Business in Mexico? It’s Time to Revise Your Privacy Practices
10
K&L Gates Global Government Solutions Report Includes Articles on Key TMT, Privacy and Patent Developments

Last Week to File for Retroactive Waiver of FCC Rule Requiring Opt-Out Notice on All Fax Advertisements

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

Companies that communicate by fax have until April 30, 2015 to request a retroactive waiver from a Federal Communications Commission rule requiring that opt-out notice be included on all fax ads, including those sent to consumers who have provided prior express invitation or permission.

In 2006, the FCC adopted a new rule which requires opt-out notices in facsimile advertisements sent with the recipients’ prior express permission.  The FCC was then faced with an application for review of a Consumer and Governmental Affairs Bureau order and 24 petitions which collectively challenged the opt-in requirement adopted in 2006.  The petitioners argued that the TCPA applies only to unsolicited advertisements and therefore could not provide a statutory basis for the rule.  The petitioners also argued that the FCC provided conflicting statements with regard to the applicability of the rule to solicited facsimile advertisements.

As we previously discussed, on October 30, 2014, the FCC released an Order confirming that opt-out notices complying with rules and regulations adopted by the FCC are required on all advertisements transmitted by facsimile, including advertisements transmitted with the prior express permission of the recipient.  The FCC, recognizing the uncertainty over whether the opt-out requirements applied to senders with express permission of the recipients, granted retroactive waivers to the parties that had made the requests with respect to faxes sent with consent but without opt-out notices, and allowed those parties until April 30, 2015 to come into compliance with opt-out requirements.  The FCC invited “similarly situated parties” to seek waivers prior to April 30, 2015, but noted that it expected parties making similar waiver requests to “make every effort to file within six months of the release of this Order.”

At least 64 petitions for waivers have been filed, and while the FCC has invited comment on many of these petitions, it has not issued any rulings.

Open Internet Order Published — Triggers Appeal Deadline, June 12, 2015 Effective Date

By Marty Stern and Stephen J. Matzura

The FCC’s Open Internet order was published today in the Federal Register, kicking off the 60-day deadline to appeal the rules to a federal circuit court of appeals (or seek reconsideration before the FCC).   As we previously discussed, some parties have already filed appeals in various circuits, which have been consolidated in the D.C. Circuit.

Significantly, with publication in the Federal Register, key aspects of the rules go into effect in 60 days, on June 12, 2015, including reclassification of broadband Internet access as a Title II service, as well as the no blocking, no throttling, paid prioritization, and enforcement/complaint provisions of the Open Internet order.

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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

FCC Regulatory Fees for 2011 Due by September 14th

The FCC issued a public notice last week announcing that FCC licensees and various types of FCC-regulated service providers must pay their 2011 annual regulatory fees to the Commission no later than September 14, 2011. Entities owing fees must ensure their payments are received by September 14th to avoid incurring a 25% late-payment fee. The annual regulatory fees are mandated by Congress under Section 9 of the Communications Act of 1934, as amended, which requires the FCC to collect regulatory fees to recover the regulatory costs associated with the agency’s activities. Regulated entities can find additional information regarding the assessment of fees and payment methods at a special section of the FCC’s website.

Restrictive Website Rules Found to Be Anticompetitive

By Scott M. Mendel and Michelle S. Taylon

In Realcomp II, Ltd. v. FTC (6th Cir. April 6, 2011), the Sixth Circuit upheld the Federal Trade Commission’s conclusion that Realcomp, a Detroit area multiple listing service, violated Section 5 of the Federal Trade Commission Act by adopting rules restricting the ability of its broker members to advertise discounted brokerage services. While none of Realcomp’s website restrictions eliminated discount brokerage services or information regarding such services, they made such information less accessible and more costly to obtain. That was enough for the court to conclude that Realcomp’s policies had an actual anticompetitive effect based on the decline in the share of listings accounted for by discount listings.

The Realcomp decision can have significant implications for businesses, especially joint ventures, considering rules that restrict the information that can be disseminated over their websites. Rules that prevent, restrict, or make more costly the dissemination of information relating to discounted services must be reviewed carefully to determine their potential for anticompetitive effects.

Doing Business in Mexico? It’s Time to Revise Your Privacy Practices

By Holly K. Towle, Henry L. Judy, Samuel R. Castic

On July 6, 2010, Mexico’s “Law on the Protection of Personal Data Held by Private Parties” took effect, and some of the most stringent requirements are currently scheduled to take effect in July 2011.  Accordingly, the time for companies that are covered by the law to adjust their privacy policies and business practices is today, not mañana.[1]   In many ways, this law is more robust than approaches taken to data protection in the United States.  It brings Mexican privacy law far closer to, or goes beyond, the concepts and structure of the European Data Protection Directive (“EU Directive”)[2] or other approaches such as the Canadian Personal Information Protection and Electronic Documents Act.[3]   The law also seems to approximate the European Union approach of treating data protection as a basic right.[4]   This Alert discusses some of the key provisions of Mexico’s new law.

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K&L Gates Global Government Solutions Report Includes Articles on Key TMT, Privacy and Patent Developments

K&L Gates recently published its Global Government Solutions 2011 Annual Outlook, which contains articles from around the firm on key governmental developments expected in 2011.

The Annual Outlook includes an article addressing developments affecting the Telecom, Media and Technology sector in 2011 by DC partners Marc Martin and Marty Stern, noting that the TMT sector enters 2011 with significant regulatory uncertainty and the FCC facing an uphill battle on many signature regulatory initiatives.

The article reviews the FCC’s net neutrality order and the challenges it faces in court and on Capitol Hill, discusses the recent FCC and Department of Justice approvals of the Comcast/NBCU transaction, and a number of additional issues getting significant focus in 2011. These include retransmission consent battles between broadcasters and cable/DBS providers and the FCC’s expected rulemaking proceeding on this issue, the Commission’s implementation of new communications accessibility requirements under the new 21st Century Communications and Video Accessibility Act, and continued efforts to reform the Universal Service Fund and make it broadband-centric.

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