Last month, the Committee on Foreign Investment in the United States (“CFIUS”) released its annual report to Congress for 2015 (the “2015 Annual Report”) and its cumulative table summarizing foreign investment activity from 2014 through 2016 (the “Cumulative Summary Table”). These documents reflect a substantial increase in the number of CFIUS filings in recent years and an increase in the percentage of CFIUS Notices that have been subject to an investigation process. The Report also reflects a new focus at CFIUS on the national security risks associated with data breaches affecting U.S. citizens’ personal information. Continue Reading
As the Rolling Stones famously sing, “You can’t always get what you want.” And in the ever treacherous world of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., the Second Circuit has ruled that means a party to contract cannot unilaterally revoke consent to receive automated calls. Continue Reading
Two recent judgements against Dish Network LLC (“Dish”) for violations of the Telephone Consumer Protection Act (TCPA) and similar state and federal laws demonstrate the significant liability companies may face based on the actions of their third-party contractors. Dish has been ordered to pay a total of approximately $341 million in two separate federal court actions related to TCPA violations committed by its marketing service providers. Both cases underscore the importance of maintaining strong vendor oversight in the highly regulated telemarketing industry. Continue Reading
Under new Chairman Ajit Pai’s leadership, the Federal Communications Commission (the “Commission”) is taking its first steps toward reforming its rules interpreting the Telephone Consumer Protection Act (“TCPA”). On Wednesday, May 17, the Commission published a Notice of Proposed Rulemaking (“NPRM”) for a proposed rule that would allow all voice service providers – including wireless providers and VoIP providers – to block illegal robocalls before they reach consumers. Comments on the NPRM are due by July 3, 2017, and Reply Comments are due by July 31, 2017. Continue Reading
At the end of March, new FCC Chairman Ajit Pai branded April “Infrastructure Month.” He paired this declaration with the announcement of a comprehensive agenda aimed at tackling a host of infrastructure-related challenges seen as critical to the deployment of high-speed broadband Internet access and bridging the digital divide. The FCC implemented the first steps of the Chairman’s infrastructure agenda yesterday, adopting proposed rulemakings intended to decrease regulatory barriers confronted by wireline and wireless providers seeking to deploy and operate broadband networks. Continue Reading
On April 13, 2017, the Texas Public Utilities Commission will hear oral arguments on the issue whether companies with certificates of public convenience and necessity from the Commission may place their facilities in local rights-of-way and provide wireline backhaul and Distributed Antenna Systems (DAS) service without additional local authority or the obligation to pay fees. DAS providers say “yes” while local governments contend that such companies must negotiate separate license agreements and fees with individual cities to access their rights of way. The Commission will be considering the recommendation of two Texas administrative law judges to side with the companies.
Last Thursday, in a vote split along party lines, the Federal Communications Commission (“FCC”) approved a new regulatory regime staking its claim to privacy regulation of both fixed and mobile Internet service providers (“ISPs”) like Comcast, Verizon, and AT&T. The FCC’s rules follow its decision in the Open Internet Order, released last year and analyzed here, to classify broadband Internet access service as a common-carrier telecommunications service. The FCC’s new rules are intended to give consumers control over the ways in which ISPs use and share their customers’ private information. While the FCC has yet to release its Report and Order, the FCC’s Fact Sheet and statements by the commissioners indicate that the new privacy rules in many respects track the proposed rules the FCC put forward earlier this year, which seek to make the FCC the “toughest” privacy regulator in the Internet ecosystem by imposing on ISPs significantly more onerous and restrictive requirements for use and collection of consumer data than the Federal Trade Commission (“FTC”) imposes on its non-ISP competitors.
On September 30, 2016, the FCC adopted an order designed to liberalize and streamline the foreign ownership review process for broadcast licensees (the “Broadcast Liberalization Order”). Section 310(b) of the Communications Act caps at 25 percent the amount of indirect foreign investment permissible in a U.S. broadcast, common carrier, or aeronautical fixed or en route radio licensee without obtaining FCC approval. Prior to 2013, the long-standing presumption among FCC practitioners was that the FCC simply would not allow indirect foreign ownership of a U.S. broadcast licensee in excess of the 25% benchmark in the Communications Act, even though the Act expressly contemplated such investments so long as they were blessed by the FCC. The Commission issued an Order in 2013 clarifying that the 25% foreign investment mark served only as a trigger requiring the FCC to review applications on a case-by-case basis, not an automatic bar to such investment. Foreign investment in broadcast licensees above 25% required prior express consent, based on an evaluation of public interest and national security considerations. Also in 2013, the FCC streamlined the process for reviewing foreign ownership amounts in excess of 25% for common carrier and aeronautical radio licensees. The recent Broadcast Liberalization Order largely extended these same rules and procedures to broadcast licensees, with certain exceptions and modifications.
The Federal Communications Commission (“FCC”) asserted broad regulatory authority over the Internet and broadband Internet service providers when it reclassified Internet access service as a “common carrier” service under Title II of the Communications Act of 1934 in its 2015 Net Neutrality Order (discussed in detail here). One of the many important questions left unanswered by the FCC’s reclassification decision was whether and to what extent the Federal Trade Commission (“FTC”) retained authority under Section 5 of the FTC Act to prohibit deceptive or unfair acts and practices by Internet service providers, in light of Section 5’s exemption of “common carriers” subject to the Communications Act.
The FCC’s February 2015 meeting yielded two significant and controversial orders premised on the agency’s authority under Section 706 of the Communications Act: its much-publicized Open Internet Order (discussed here), and its less-publicized order preempting state statutes setting limits on municipal broadband providers, including by restricting their geographic extension of service (“Municipal Broadband Order”). In June 2016, the U.S. Court of Appeals for the D.C. Circuit gave the FCC a boost when it upheld the FCC’s net neutrality rules as a valid exercise of its authority under Title II of the Communications Act as well as Section 706. Yesterday, in State of Tennessee v. FCC, Nos. 15-3291/3555, the U.S. Court of Appeals for the Sixth Circuit reversed the FCC’s assertion of sweeping preemption authority under Section 706 and remanded its Municipal Broadband Order.