Federal & State Regulatory

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.


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With the Illinois Supreme Court’s recent decision in Rosenbach v. Six Flags Entertainment Corp., the floodgates have opened for class actions in Illinois against businesses that collect biometric information from employees or customers.  In Rosenbach, the Illinois Supreme Court decided that alleged procedural violations of Illinois’s Biometric Information Privacy Act (“BIPA”) are enough,

Last week, five advertising and marketing trade associations jointly filed comments with the California Attorney General seeking clarification on provisions within the California Consumer Privacy Act (CCPA).

While expressing “strong support” for the CCPA’s intent, and noting the online ad industry’s longstanding consumer privacy efforts like the DAA’s YourAdChoices Program, the group proposed the

In the Data Business? You May Be Obligated to Register in Vermont by Thursday

Data brokers have until this Thursday to register with the Vermont Secretary of State as part of a new data broker oversight law that became effective January 1st.

Approved unanimously by the Vermont Senate last May, the Vermont Data Broker Regulation, Act 171 of 2018, requires data brokers to register annually, pay an annual filing fee of $100, and maintain minimum data security standards, but the law does not prevent data brokers from collecting or selling consumer data.

What Qualifies as a “Data Broker”?

The law only applies to “data broker[s],” defined as a “business, or unit or units of a business, separately or together, that knowingly collects and sells or licenses to third parties the brokered personal information of a consumer with whom the business does not have a direct relationship.”
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On January 10, 2019, Massachusetts Governor Charlie Baker signed into law the Massachusetts’s Data Breach Notification Act, which amends Massachusetts data breach reporting laws. The new law, available here, amends the timing and content of individual and regulator data breach notifications, and provides for credit monitoring services when social security numbers may have been

The California Food, Drug, and Medical Device Task Force announced a settlement this week with Goop, the lifestyle brand founded by Gwyneth Paltrow, which we’ve written about here and here. The complaint alleges that Goop made false and misleading representations regarding the effects or attributes of three products—the Jade Egg, Rose Quartz Egg, and

Yesterday, the California legislature passed SB-327, a bill intended to regulate the security of internet-connected devices.  Unlike the California Consumer Privacy Act (CCPA), SB-327 is significantly more narrow.  As enacted, the bill is a “lighter” version of what was first introduced and amended in 2017 (which, at that time, would have included certain

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.
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Kelley Drye introduces a new Full Spectrum series, “Inside the TCPA,” which will offer a deeper focus on TCPA issues and petitions pending before the FCC. Each episode will tackle a single TCPA topic or petition that is in the news or affecting cases around the country. In this inaugural episode, partner Steve Augustino discusses

FTC Commissioner Terrell McSweeny is scheduled to resign effective April 28 and may leave with acting Chairman Maureen Ohlhausen as the sole commissioner. Law360  published an article by partner John Villafranco and professor Stephen Calkins that discusses whether the FTC can take formal action by a 1-0 vote and when does a commission cease being