FCC Slams Door on Higher Pole Attachment Rates

After kicking open a door to potential annual pole attachment rental increases in the hundreds of millions of dollars when it adopted its February 2015 Net Neutrality order, the Federal Communications Commission yesterday released an order unanimously granting a four-year-old petition for reconsideration.  A number of cable, broadband, and telecommunications industry players filed the petition to eliminate pole-attachment rate disparities and complexities between “rural” and “urban” areas and between and among various defined classes of electronic communication providers.  Yesterday’s ruling eliminates remaining loopholes that could have dramatically raised cable operator pole rentals and electric-utility windfalls resulting from the FCC’s February 2015 Net Neutrality order (which we analyzed here) that defined “Broadband Internet Access Service” as a “telecommunications service.” Continue Reading

FCC Warns Broadband Internet Service Providers Of Coming Expanded Title II Privacy Regulation

On May 20, 2015, the Federal Communications Commission (“FCC”) released an Enforcement Advisory[1] notifying providers that the agency’s recent Open Internet Order “applies the core customer privacy protections of Section 222 of the Communications Act” – which requires that providers “shall only use, disclose, or permit access to individually identifiable customer proprietary network information” in the provision of services[2] – to broadband Internet access providers.  Accordingly, as of June 12, 2015, and absent a judicial stay order, broadband providers will be subject to expanded requirements aimed at protecting consumer privacy and restricting the use of customer data.  Continue Reading

Not So Small After All: CallFire Uses Common Carrier Defense to Defeat Rinky Dink TCPA Class Action Case

Last month, in Rinky Dink, Inc. v. Electronic Merchant Systems, et al., No 13-cv-01347, 2015 WL 778065 (W.D. Wash. Feb. 24, 2015), online voice and text provider CallFire became one of the first (if not the first) TCPA defendants to avoid liability for pre-recorded calls through the common carrier defense. Continue Reading

Cyberspace Oddity: The FCC Regulates Internet Services as Common Carrier Telecommunications Services, “Protecting and Promoting the Open Internet”

The FCC voted yesterday 3-2 along party lines to promulgate new rules necessary to protect the “Open Internet.”  At the core of the Commission’s action lies its decision to reclassify Internet services as a “telecommunications” instead of “information” services and regulate the services under Title II of the Communications Act of 1934.  This reclassification, led by FCC Chairman Tom Wheeler, expands the FCC’s regulation of fixed wireline and mobile broadband Internet services as “common carriers.”  This move is grounded in the notion that control of the Internet is too important not to be regulated, and it marks a dramatic reversal in the way Internet services have historically been regulated.  The FCC has not yet released the Order, but the FCC’s statement, remarks made by the Commissioners, and the Fact Sheet distributed by the Chairman’s office on February 4th reveal what appear to be the core elements of the Commission’s action. Continue Reading

Hold the Phone: Judge Holds Dish Network on the Line for Tens of Millions of Calls, but Leaves Silver Lining for TCPA Defendants

On December 12, 2014, Judge Sue E. Myerscough issued an epic 238-page order granting in part and denying in part cross summary judgment motions filed in United States of America, et al. v. Dish Network, L.L.C. (“Dish Network”). United States v. Dish Network, L.L.C., No. 09-3073, 2014 WL 7013223 (C.D. Ill. Dec. 12, 2014). Despite finding that Dish was liable for over 50 million phone calls, there was a silver lining for both Dish and future TCPA defendants.

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Headin’ Down the Copperhead Road – the FCC Proposes New Rules for Legacy Infrastructure

Although it could be said that the FCC’s recent focus has been firmly fixed on the future, in particular IP-based communications (see, e.g., high-visibility proceedings involving the Open Internet, possible merger conditions in the Time Warner Cable-Comcast merger, the ongoing TDM to IP transitions, and the $44 billion (and counting) of bidding in the AWS-3 auction), in November the FCC proposed regulations to ensure that the transition to this IP-based world does not betray core values of the Communications Act:  public safety, consumer protection, and competition.[1]

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Turnin’ Havana to Atlanta: The White House Opens Doors for U.S. Telecommunications Investment in Cuba and Latin America

Cuba Map

Historic changes in relations between the United States and Cuba (that touch nerves in Hip-Hop and on Capitol Hill) and new U.S. sanctions against Venezuela may provide increased opportunities for U.S. business generally, and electronic communications technologies and infrastructure providers in particular.  This week’s Cuba and Venezuela headlines, combined with recent and historic shifts in telecommunications and broadcasting markets in Mexico, on which we reported here, herald historic changes in Latin American electronic communications and infrastructure markets.

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The FCC Takes a Seat at the Cyber-Regulation Table

The FCC recently slid up its chair to the fiscal feast that is cyber security and data breach regulation and took a hefty piece of the pie.  In late October the FCC announced that it charged a record $10 million fine against two telecommunication companies after the telecoms reportedly posted the private information of nearly 300,000 people in a manner making the people eligible for identity theft. Taking a cue from the Federal Trade Commission (“FTC”), the FCC action was not based on any new set of concrete regulations or laws established to give organizations a minimum bar for data protection, but rather on existing FCC powers established under the Communications Act of 1934. The action serves as good warning not only to communications providers that the FCC will be examining data breaches and, more expressly, data storage issues, but also that in the absence of clear cybersecurity regulations, federal agencies will take an expansive view of their existing authority to address cybersecurity-related incidents involving companies subject to their jurisdiction.

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The Eleventh Circuit Reaffirms FCC’s Authority To Coordinate National TCPA Policy And Ensure Uniformity Of Enforcement in Mais v. Gulf Coast Collection Bureau

Courts that have confronted the application of the “prior express consent” requirement of the Telephone Consumer Protection Act, see 47 U.S.C. § 227 – a.k.a., the TCPA – have in the main taken their cues from and adhered to the policy set by the Federal Communications Commission (“FCC”) – the federal agency charged with implementing the statute.  Recently, however, two federal district courts departed from the FCC’s guidance and injected new uncertainty into TCPA enforcement and confusion over the process for review of TCPA interpretations.  In Mais v. Gulf Coast Collection Bureau, Inc., and Zyburo v. NCSPlus, Inc., the Southern District of Florida and the Southern District of New York respectively overrode jurisdictional challenges to adopt statutory constructions in conflict with settled FCC policy that the voluntary provision of a telephone number constituted sufficient prior express consent under the TCPA for contacting consumers through prerecorded calls.[1]  These courts declined to follow a 2008 declaratory ruling from the FCC holding that “prior express consent” is manifest where a consumer provided a telephone number as part of a transaction.[2]  Both decisions pose substantial challenges to the FCC’s authority and ability to coordinate national communications policy under the statute that it is charged with administering with the predictable result of creating a cloud of uncertainty for those who must comply with the TCPA across multiple jurisdictions.

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