Federal Communications Commission

Representative Marsha Blackburn (R-TN) has introduced a bill, the “Balancing the Rights of Web Surfers Equally and Responsibly Act of 2017” (“BROWSER Act,” H.R. 2520) that would  create new online privacy requirements.  The BROWSER Act would require both ISPs and edge providers (essentially any service provided over the Internet) to provide users with notice of their privacy policies, obtain opt-in consent for sensitive data, and opt-out consent for non-sensitive data.  In its current form, the BROWSER Act would define sensitive data more broadly than in existing FTC guidelines—mirroring the since-repealed privacy rules that the FCC adopted last year for ISPs, but applying those standards to ISPs and edge providers alike.

The BROWSER Act defines “sensitive user information” to include financial information, health information, children’s data, social security numbers, precise geo-location information, contents of communications, and, most notably, web browsing or app usage histories.  ISPs and edge providers must obtain “opt-in approval” from users prior to using, disclosing, or permitting access to such sensitive information.  For “non-sensitive user information,” the BROWSER Act requires opt-out consent.  And companies may not condition the provision of services, or otherwise refuse services, based on the waiver of privacy rights under the BROWSER Act.
Continue Reading New Republican Privacy Bill Would Expand Scope of “Sensitive” Data

The Ninth Circuit announced today that the full court will rehear the case in which the three-judge panel opinion had dismissed the FTC’s lawsuit against AT&T for allegedly violating Section 5 of the FTC Act due to past “throttling” practices around unlimited data plans.  According to the panel opinion, the FTC lacked jurisdiction over AT&T’s

In a widely anticipated step, FCC Chairman Ajit Pai has released a draft Notice of Proposed Rulemaking (“NPRM”) on the legal framework that governs broadband providers and related net neutrality questions.

Most notably from a privacy perspective, the draft NPRM proposes to find that broadband Internet access service is an “information service” under the Communications Act, reversing the 2015 “telecommunications service” classification that had brought broadband providers under the statutory privacy requirements of Title II of that Act.

The draft NPRM states that the 2015 reclassification “stripped FTC authority over Internet service providers,” in light of the common carrier exemption in Section 5 of the FTC Act.  By reversing the FCC’s prior finding that broadband is a common carrier service, the draft NPRM proposes to “return jurisdiction over Internet service providers’ privacy practices to the FTC, with its decades of experience and expertise in this area.”
Continue Reading FCC Chairman Pai Proposes New Regulatory Framework for Broadband ISPs, Seeks Comment on Net Neutrality Rules

On April 24th, the Electronic Privacy Information Center (“EPIC”) and a coalition of 37 other civil society groups sent a letter urging the Federal Communications Commission (“FCC”) to act on an August 2015 petition to repeal the FCC’s data retention mandate under 47 C.F.R. §42.6 (“Retention of Telephone Toll Records”).

The mandate requires communications carriers that “offer[] or bill[] toll telephone service” to retain the following customer billing records for a period of 18 months: (1) the “name, address, and telephone number of the caller,” (2) the “telephone number called,” and (3) the “date, time, and length of the call.”  Carriers are required to retain such information regardless of whether they are billing their own toll service customers or billing customers for another carrier.
Continue Reading Advocacy Groups Urge FCC to End Data Retention Mandate

Senators Ed Markey (D-MA) and Richard Blumenthal (D-CT) reintroduced a pair of bills today relating to the cybersecurity of cars and aircraft, which would impose affirmative security, disclosure, and consent requirements on manufacturers and air carriers.  The Security and Privacy in Your Car (“SPY Car”) Act and Cybersecurity Standards for Aircraft to Improve Resilience (“Cyber AIR”) Act were each introduced but not enacted in a previous session of Congress.  In a joint press release, the Senators noted that the legislation was designed to “implement and improve cybersecurity standards for cars and aircraft.”

The SPY Car Act

The SPY Car Act would require cars manufactured for sale in the U.S. to comply with “reasonable measures to protect against hacking attacks,” including measures to isolate critical software systems from non-critical systems, evaluate security vulnerabilities, and “immediately detect, report, and stop attempts to intercept driving data or control the vehicle.”  It would also require “driving data” collected by cars to be “reasonably secured to prevent unauthorized access,” including while such data is in transit to other locations or subsequently stored elsewhere.  Violations of these cybersecurity requirements are subject to civil penalties of up to $5,000 per violation.
Continue Reading Senators Reintroduce Cybersecurity Legislation for Cars and Planes

Yesterday, the FCC released an Enforcement Advisory to remind political campaigns about their obligations under the Telephone Consumer Protection Act (“TCPA”).  The Advisory did not set forth any new rules for calls and texts; rather, it confirmed existing rules and reminded political campaigns that they are subject to them.

The Advisory first confirmed that prerecorded or autodialed calls to mobile phones are prohibited, except in cases of emergencies, federal debt collection, or with the prior express consent of the recipient.  The Advisory then summarized the requirements for prerecorded or autodialed calls to landline phones, including identification and line seizure requirements. 
Continue Reading FCC Releases TCPA Enforcement Advisory Directed to Political Campaigns

In one of the first decisions evaluating Telephone Consumer Protection Act (TCPA) claims under the FCC’s recent omnibus TCPA order, the Northern District of California dismissed a putative class action lawsuit alleging that AOL violated the TCPA when users of its Instant Messenger service (AIM) sent text messages to incorrect recipients.  After the court dismissed

Last week, the Federal Communications Commission (FCC) released the text of its long-awaited order addressing certain aspects of the Telephone Consumer Protection Act (TCPA) and related FCC rules.  The order addressed a total of 21 petitions seeking “clarification or other actions” regarding the TCPA, principally in connection with automated calls and text messages.

Although the order purports only to “clarify” existing FCC precedent, there is widespread debate over whether the order imposed new requirements on entities that transmit automated calls and text messages.  The order already has been appealed by one party and other appeals are expected.  Nevertheless, because the FCC claims the order only clarifies existing precedent, its provisions became effective when the order was released on July 10, 2015.

The order focuses on ten key areas, which are summarized after the jump.
Continue Reading Ten Key Takeaways From Last Week’s TCPA Order

In a consent decree adopted yesterday by the Federal Communications Commission, two telecommunications carriers — TerraCom, Inc., and YourTel America, Inc. — agreed to pay a $3.5 million civil penalty and adhere to a three-year compliance program to settle allegations that the carriers violated the federal Communications Act by failing to adequately protect “proprietary information” the carriers collected from consumers applying for federally subsidized phone service under the Lifeline program.  The consent decree reiterates the FCC’s interpretation of Sections 201 and 222 of the federal Communications Act — first articulated in a October 2014 decision proposing to fine TerraCom and YourTel $10 million — broadening telecommunications carriers’ privacy and data security obligations.  The consent decree also settles allegations that YourTel failed to de-enroll certain subscribers after being instructed to do so by the Universal Service Administrative Company, which administers Lifeline.
Continue Reading Carriers Agree to $3.5 Million FCC Fine For Alleged Privacy Violations