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.
As originally published in Law360
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.
As originally published in Law360
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
By Stephen J. Matzura and Marty Stern
The FCC has adopted new rules governing accessibility of emergency information in TV programming for blind or visually impaired individuals. The rules require emergency information on TV to be available in audio format on mobile devices when subscription television providers permit consumers to access televised programming using mobile apps.
Under the FCC’s current rules adopted in a 2013 Report and Order pursuant to the Twenty-First Century Communications and Video Accessibility Act, emergency information that interrupts regular TV programming must be accompanied by an aural tone and be available on a secondary audio stream. The new rules require these secondary audio streams to be available “on tablets, smartphones, laptops, and similar devices when subscription television providers, such as cable and satellite operators, permit consumers to access programming over their networks using an app on these devices.” According to the FCC, this will allow blind or visually impaired individuals who hear the aural tones on TV to switch to a secondary audio stream on such devices.
The new rules also require TV equipment that receives or plays back programming (e.g., set-top boxes) to have an activation mechanism that allows blind or visually impaired users to easily switch to a secondary audio stream to hear the emergency information. In partial dissents, Commissioners Pai and O’Rielly disagree that the FCC has authority under the CVAA to require mechanisms on set top boxes and similar devices to activate the secondary audio stream.
The FCC also adopted a Second Further Notice of Proposed Rulemaking to solicit comments on a number of issues, including coordination of multiple on-screen announcements, whether school-related information should be made available on the audio streams, and potential requirements for multichannel video programming distributors.
What Does It Mean for Your Business?
K&L Gates will present a webinar on May 12 discussing the EU’s Digital Single Market strategy, which was released last week by the European Commission. The webinar is at 15:00 BST / 16:00 CEST / 10:00 EDT. Register here to get log-in instructions.
The objective of this strategy is to tear down the regulatory obstacles to doing business online, and it will pose potential major challenges as well as opportunities for almost every company doing business in the EU. According to the European Commission the reforms could add €415bn per year to the European economy. The strategy is built on three pillars:
- better access for consumers and businesses to digital goods and services across Europe;
- creating the right conditions and a level playing field for digital networks and innovative services to flourish;
- maximising the growth potential of the digital economy.
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.
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.
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