This week, the Federal Communications Commission’s (“FCC’s”) Restoring Internet Freedom Order took effect, rolling back the public-utility style regulation of Internet service providers (“ISPs”) pursuant to title II of the Communications Act, imposed during the prior administration by the FCC’s 2015 Open Internet Order (“2015 Order”). The agency’s return to a light touch regulatory approach has sparked public debate since FCC Chairman Ajit Pai proposed it more than a year ago. And while the FCC’s action is already the subject of several judicial challenges consolidated in the D.C. Circuit, a number of states have also sought to impose their own state-specific net neutrality legislation. But it remains to be seen whether individual states can impose net neutrality obligations on ISPs, particularly in light of the FCC’s invocation of its preemption authority in the Restoring Internet Freedom Order.
Continue Reading Back To The Future: FCC Returns To Light Touch Regulation Of The Internet
Once Bitten, Twice Shy: FCC Revisits Its Telemarketing Regulations In Light Of The DC Circuit’s Decision Striking Down Core Requirements
On March 16, 2018, the United States Court of Appeals for the District of Columbia Circuit issued its long awaited decision in ACA International v. FCC, in which a group of petitioners across a spectrum of industries sought review of various aspects of the Federal Communications Commission’s (FCC’s) 2015 Omnibus Declaration Ruling and Order (2015 Order). The controversial 2015 Omnibus Order adopted further regulations to implement the Telephone Consumer Protection Act (TCPA) – which was enacted more than twenty-five years ago to address certain issues with automated telemarketing calls.
Continue Reading Once Bitten, Twice Shy: FCC Revisits Its Telemarketing Regulations In Light Of The DC Circuit’s Decision Striking Down Core Requirements
You Can’t Always Get What You Want—Second Circuit Affirms Parties Can Bargain Away TCPA Right To Revoke Consent To Automated Calls
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 You Can’t Always Get What You Want—Second Circuit Affirms Parties Can Bargain Away TCPA Right To Revoke Consent To Automated Calls
Ninth Circuit Removes FTC From The Beat: Agency Lacks Authority To Police Common Carriers Engaged In Non-Common Carrier Activities
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.
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Sixth Circuit Rejects FCC’s Effort To Preempt State Regulation Of Municipal Broadband Providers
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.
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Patient Zero – Public Knowledge Seeks FCC Review of A New “Zero Rated” Service
Consumer advocacy group Public Knowledge recently filed a petition with the Federal Communications Commission (“FCC”) challenging a multi-system operator’s (“MSO”) online video service as violative of conditions imposed as part of a 2011 merger and the agency’s Open Internet rules. The service allows the MSO’s customers to stream its licensed video content to computers, tablets, and mobile devices without incurring additional data usage charges. The MSO maintains the content of this service does not touch the public Internet – and thus is not subject to the Open Internet rules – because it is delivered on the same private, managed network as its cable services.
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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.
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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 Cyberspace Oddity: The FCC Regulates Internet Services as Common Carrier Telecommunications Services, “Protecting and Promoting the Open Internet”
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.
Continue Reading The Eleventh Circuit Reaffirms FCC’s Authority To Coordinate National TCPA Policy And Ensure Uniformity Of Enforcement in Mais v. Gulf Coast Collection Bureau
Ninth Circuit Thinks Inside the Bun, Applies Traditional Agency Principles To Dismiss Putative TCPA Class Action Claims Against Taco Bell Corp.
In Thomas v. Taco Bell Corp., No. 12-56458 (9th Cir. July 2, 2014) the Ninth Circuit Court of Appeals recently held that Taco Bell, one defendant in a putative class action lawsuit alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, could not be held vicariously liable for text messages that it did not send or authorize without proof of an agency relationship. The unpublished decision is one of the first by an appellate court to address the issue of vicarious liability following the Federal Communications Commission’s (“FCC’s”) 2013 declaratory ruling in Dish Network.
Continue Reading Ninth Circuit Thinks Inside the Bun, Applies Traditional Agency Principles To Dismiss Putative TCPA Class Action Claims Against Taco Bell Corp.