Federal Communications Commission

In an order adopted at Thursday’s Open Meeting, the Federal Communications Commission acted on 23 petitions or other requests for clarification regarding the application of the Telephone Consumer Protection Act, a federal law that restricts telemarketing  and certain other types of calls.  The FCC has issued a news release describing yesterday’s order as an effort to “clos[e] loopholes and strengthen[] consumer protections already on the books.”  The text of the order is expected to be released in the coming days.
Continue Reading FCC Ruling Tightens TCPA Restrictions; Dissenters Warn of Increased Class-Action Abuse

The FCC has announced its agenda and panelists for its public workshop on protecting the privacy of consumers who use broadband Internet access services, which will be held on April 28.

FCC Chairman Tom Wheeler will give opening remarks and Matt Blaze, Associate Professor of Computer and Information Science at the University of Pennsylvania, will

Following Mark Zuckerberg’s opening keynote at Mobile World Congress on Monday, Federal Communications Commission (“FCC”) Chairman Tom Wheeler took the stage yesterday.  As Wheeler’s first public appearance at an industry event since the FCC’s landmark vote last week to enforce net neutrality, the keynote was expected to be closely followed by global counterparts, and InsidePrivacy had a front-row seat from Barcelona.

Wheeler’s conversation with Director General of the GSMA Anne Bouverot covered a range of topics, including net neutrality, spectrum auctions, and more widely, the role of regulation as it relates to investment and innovation.  Of primary interest, of course, was the topic of regulation as it pertains to Open Internet rules.  On this subject, Wheeler began by reframing the notion that last week’s 3-2 vote was a close one, stating, “We had 50% more votes than they did, is the way I look at it.”  This year’s Mobile World Congress, therefore, was a victory lap as some have termed it — or sales pitch — allowing Wheeler to explain and defend the FCC’s new net neutrality rules.
Continue Reading FCC Chairman Speaks at Industry Event for First Time Since Net Neutrality Vote

Last week AT&T filed a Reply in support of its Motion to Dismiss challenging the Federal Trade Commission’s (FTC’s) attempt to exercise jurisdiction over the company pursuant to Section 5 of the FTC Act.

As we previously reported, the FTC filed a complaint against AT&T alleging that the company misled consumers by reducing the data speeds for its unlimited mobile data plan customers (i.e., the alleged “throttling program”).  AT&T filed a Motion to Dismiss the complaint in January, arguing that the FTC lacked jurisdiction over the company because its “status” as a common carrier places it squarely within the common carrier exemption to Section 5 of the FTC Act.  The FTC responded that the common carrier exception is a narrow, “activity-based” exception that excludes an entity “only to the degree it is engaged in common carrier activities and not because of its general ‘status’ as a common carrier.”
Continue Reading AT&T: FTC Lacks Jurisdiction Even Under “Activity-Based” Interpretation of the Common Carrier Exemption

Last week the Federal Trade Commission (FTC) opposed a Motion to Dismiss filed by AT&T that challenged the FTC’s attempt to exercise jurisdiction over the company in connection with certain of its mobile broadband service activities.

As we previously reported, the FTC filed a complaint against AT&T in late 2014 alleging that AT&T engaged in unfair and deceptive conduct in violation of Section 5 of the FTC Act when it “throttled” mobile broadband subscribers who were “grandfathered” into the company’s unlimited mobile data plan.  AT&T filed a Motion to Dismiss the complaint in January, arguing that its overall status as a common carrier subject to the Communications Act exempts it from Section 5 of the FTC Act.  The FTC, in turn, last week responded to AT&T by arguing that AT&T’s “status-based” position did not exclude it from the FTC’s jurisdiction on the theory that “the common carrier exemption applies only to the extent AT&T engages in common carrier services.”

Continue Reading FTC Says Common Carrier Exemption to Section 5 Jurisdiction is Activity-Based, Not Status-Based

Last month a federal court found Dish Network liable for calls that were alleged by the Federal Trade Commission (“FTC”) to violate various provisions of the FTC’s Telemarketing Sales Rule (“TSR”).  Specifically, the FTC’s 2009 complaint asserted that Dish Network initiated, or caused a telemarketer to initiate, calls to numbers on the National Do Not Call (“DNC”) Registry and to consumers who previously declined to receive such calls whose numbers were on Dish Network’s entity-specific do-not-call list or were marked “DNC” by a telemarketing vendor.  The FTC also alleged that, in violation of the “abandoned-call” provision of the TSR, Dish Network abandoned or caused telemarketers to abandon phone calls.  In its complaint, the FTC seeks monetary civil penalties from Dish Network for every violation of the TSR, for which the court is entitled to award up to $16,000 for each violation.  At issue are tens of millions of calls, making the potential level of damages to be awarded at the trial stage staggering.
Continue Reading Court Finds FTC Entitled to Partial Summary Judgment Against Dish Network for Telemarketing Violations

The FCC recently agreed to grant limited waivers for violations of its “opt out notice” rule for solicited faxes (i.e., faxes sent with the recipient’s prior express invitation or permission).  That rule requires that senders of faxes include opt-out notices on fax transmissions that contain advertisements or promotions.  The FCC initially promulgated its opt-out notice

Earlier this week, the FTC notified Verizon by letter that it has closed its investigation into whether Verizon violated Section 5 of the FTC Act by failing to secure certain routers supplied to the company’s broadband subscribers.  The FTC’s investigation centered on Verizon’s practice of supplying routers that incorporated an outdated default security setting, an encryption standard known as Wired Equivalent Privacy (“WEP”).  According to the FTC, flaws in WEP were identified by researchers in 2004, but Verizon continued until recently to ship some WEP router models.  According to the FTC, this left some Verizon subscribers vulnerable to hackers.

In its letter, the FTC explained that the following factors led it to close its investigation:

  • Verizon’s overall data-security practices related to its routers.
  • Verizon’s efforts to mitigate the risk that subscribers using WEP-model routers would be vulnerable to hackers, including:
  1. by removing the WEP model routers from distribution centers and setting them to Wi-Fi Protected Access 2 (“WPA2”), ensuring that future distributed routers would be set by default to WPA2;
  2. by implementing an outreach campaign to subscribers currently using WEP or no encryption, and requesting that those subscribers change their security settings to WPA2; and
  3. offering upgrades to WPA2-compatible units for subscribers in possession of older, incompatible routers.
    Continue Reading FTC Closes Investigation After Verizon Fixes Encryption Problems With FiOS and DSL Routers

By Caleb Skeath

At a recent IAPP privacy event, officials from the FTC and CFPB offered insight into their respective agencies’ future enforcement plans, as well as the shifting landscape of privacy enforcement actions.  Although such enforcement actions have historically been the domain of the FTC, the FCC recently entered the privacy enforcement arena, announcing a $10 million fine against two telecommunications carriers on October 24 for failing to protect customer data.  While the FTC has broad authority under Section 5 to police unfair and deceptive acts and practices, the FCC relied on its authority under Section 201(b) to prohibit “unjust or unreasonable” practices to support its recent enforcement action.  The FCC also announced on October 28 that it joined the Global Privacy Enforcement Network, an organization dedicated to fostering cross-border cooperation among privacy authorities. Prior to the FCC’s joining the Network, the FTC was the only U.S. member.

Continue Reading Officials Comment on the Future of FTC, FCC, and CFPB Privacy Enforcement Authority