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The Federal Communications Commission (“FCC” or “Commission”) is seeking comments on a Notice of Proposed Rulemaking (NPRM) to refresh its customer proprietary network information (“CPNI”) data breach reporting requirements (the “Rule”).  Adopted earlier this month by a unanimous 4-0 vote of the Commission, the NPRM solicits comments on rule revisions that would expand the scope of notification obligations and accelerate the timeframe to notify customers after a data breach involving telephone call detail records and other CPNI.  The FCC cites “an increasing number of security breaches of customer information” in the telecommunications industry in recent years and the need to “keep pace with today’s challenges” and best practices that have emerged under other federal and state notification standards as reasons to update the Rule.

According to the current Rule, a “breach” means that a person “without authorization or exceeding authorization, has intentionally gained access to, used, or disclosed CPNI.”  As summarized in the NPRM, CPNI includes “phone numbers called by a consumer, the frequency, duration, and timing of such calls, the location of a mobile device when it is in active mode (i.e., able to signal its location to nearby network facilities), and any services purchased by the consumer, such as call waiting.”  (The NPRM does not propose any changes to the definition of CPNI.)…

Continue Reading FCC Seeks Comments on Updates to CPNI Breach Reporting Rule

Following weeks of speculation about a potential role for Columbia Law Professor Tim Wu in the Biden Administration, the White House announced on March 5 that Wu has been named Special Assistant to the President for Technology and Competition Policy. As an official housed in the National Economic Council (“NEC”), Wu will not directly command staff within federal agencies or set the agencies’ enforcement or regulatory agendas. Instead, Wu will most likely focus on coordinating federal agencies’ efforts to identify and address competition issues. Given his history, Wu could seek to have particular influence on the Federal Communications Commission (“FCC”) and Federal Trade Commission (“FTC”) as they shape their Biden Administration agendas.
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Continue Reading Competition Policy Gets a Top Spot in the White House

On the same day that the FCC set a call blocking declaratory ruling for vote at its July 2020 Open Meeting, the FCC’s Consumer and Governmental Affairs Bureau issued rulings in two long-pending petitions for clarification of the requirements of the Telephone Consumer Protection Act (“TCPA”). Although these clarifications do not address the…

The FTC and FCC have taken a number of actions to stem unlawful robocalls generally and, during the COVID-19 pandemic, to stem harmful and deceptive calls that seek to exploit the COVID-19 crisis. Even amid the backdrop of their long-standing commitment, the agencies’ most recent action stands out as an aggressive new approach to unlawful…

Over the past few weeks, my colleagues have discussed some of the considerations for marketing around COVID-19, including claim substantiation and price gouging. In the next few posts, we are going to take a deeper dive into a few topics, beginning with telemarketing. Here are some points to keep in mind:

States of Emergency…

In Glasser v. Hilton Grand Vacations Company, LLC, the Eleventh Circuit addressed a pair of appeals that presented the question of the appropriate definition of an automatic telephone dialing system (“ATDS”) as set forth in the Telephone Consumer Protection Act (“TCPA”).  In answering that question, the Eleventh Circuit expanded upon the Third Circuit’s ruling…

The current and future definition of what qualifies as an automatic telephone dialing system (ATDS or autodialer) remains a hotly debated and evaluated issue for every company placing calls and texts, or designing dialer technology, as well as the litigants and jurists already mired in litigation under the Telephone Consumer Protection Act (TCPA).  Last year, the D.C. Circuit struck down the FCC’s ATDS definition in ACA International v. FCC, Case No. 15-1211 (D.C. Cir. 2019).  Courts since have diverged in approaches on interpreting the ATDS term.  See, e.g., prior discussions of Marks and Dominguez.  All eyes thus remain fixed on the FCC for clarification.

In this post, we revisit the relevant details of the Court’s decision in ACA International, and prior statements of FCC Chairman Ajit Pai concerning the ATDS definition to assess how history may be a guide to how the FCC approaches this issue.…

Continue Reading Taking Stock of the TCPA in 2019: What is an “Autodialer”?

As we enter the dog days of summer, the FCC continues to turn up the heat on equipment marketing enforcement. But while million dollar fines for marketing noncompliant devices capture the spotlight, the FCC also quietly issued a number of equipment marketing actions focused on a single type of device: LED signs. In just the last three months, the FCC has settled over ten investigations involving the marketing of LED signs used in digital billboards for commercial and industrial applications without the required authorizations, labeling, or user manual disclosures. Each action involved an entity that either manufactured or sold (or both) LED signs. The agency’s recent actions should be a shot across the bow to any retailer of LED signs to ensure that their devices are properly tested and authorized prior to sale. Otherwise, these companies may face significant fines and warehouses of unmarketable devices.

Most consumers might not think that LED signs fall within the FCC’s jurisdiction. However, the signs emit radio waves that can interfere with communications services. As a result, the FCC requires most LED signs and other “unintentional” radiators to be tested for compliance with its technical requirements prior to marketing. Importantly, the FCC’s rules prohibit the marketing of such devices unless they have been properly authorized, labeled, and carry the required disclosures. Even with the FCC’s recent efforts at simplification, the rules regarding equipment marketing are complex, requiring close attention to compliance at every step in the supply chain.
Continue Reading Read the Signs: FCC Unleashes Wave of Equipment Marketing Actions Involving LED Signs

On Thursday, February 22, 2018, the Federal Communications Commission (FCC or Commission) published the Restoring Internet Freedom Order (the Order) in the Federal Register.

As we previously discussed, the Order effectively reverses the Commission’s 2015 Open Internet Order, reclassifying broadband Internet access service as a lightly regulated Title I “information service” and eliminating…