Category: Compliance Updates & Enforcement

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FCC Requires Audio Alerts on Mobile Devices for TV Emergency Information
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Webinar Update: European Commission Strategy on the Digital Single Market
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Webinar May 12: Update on EU’s Digital Single Market Strategy
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Last Week to File for Retroactive Waiver of FCC Rule Requiring Opt-Out Notice on All Fax Advertisements
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Open Internet Order Published — Triggers Appeal Deadline, June 12, 2015 Effective Date
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E-LABEL Act Exempts Wireless Devices from Physical Label Requirements
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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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FCC Regulatory Fees for 2011 Due by September 14th

FCC Requires Audio Alerts on Mobile Devices for TV Emergency Information

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.

Webinar Update: European Commission Strategy on the Digital Single Market

We recently held a webinar on the highly anticipated EU’s Digital Single Market Strategy, which was released on May 6th by the European Commission.

To listen to the webinar recording and view the presentation slides, please click here.

The objective of the 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:

  1. better access for consumers and businesses to digital goods and services across Europe;
  2. creating the right conditions and a level playing field for digital networks and innovative services to flourish;
  3. maximising the growth potential of the digital economy.

In this webinar, Ignasi Guardans, Brussels Partner and former member of the European Parliament, presented the strategy as a whole, with a focus on some of its most challenging aspects in areas such as media law and copyright reform in the European Union.

Etienne Drouard, Paris Partner and former public officer at the CNIL (French Data Protection Authority), presented the announced changes in the legal framework of e-commerce, data management and privacy.

Annette Mutschler-Siebert, Berlin Partner, presented the measures related to e-government, e-procurement and how they will impact businesses.

Webinar May 12: Update on EU’s Digital Single Market Strategy

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:

  1. better access for consumers and businesses to digital goods and services across Europe;
  2. creating the right conditions and a level playing field for digital networks and innovative services to flourish;
  3. maximising the growth potential of the digital economy.

For more information click here to view the European Commission’s press release.
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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.

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