Consumer Issues, Privacy & Data Security – Page 4

FCC Hits Companies in Latest Wi-Fi Blocking Inquiries, Proposing $718,000 Penalty, Fueling Further Controversy

Nov 04 2015

On the heels of a consent decree with a services provider imposing a $750,000 penalty for its Wi-Fi management practices at convention center venues, the FCC slammed another services provider earlier this week for allegedly blocking Wi-Fi access at the Baltimore Convention Center. In a Commission-level Notice of Apparent Liability (“NAL”), the FCC proposed a $718,000 penalty against M.C. Dean, Inc. for allegedly blocking access to third-party Wi-Fi hotspots during at least 26 days in November and December 2014 at the venue, “apparently” in violation of Section 333 of the Communications Act.

Sixth Circuit Finds No TCPA Liability For Debt Collection Calls Made To Phone Number Provided After Inception of Credit Relationship

Sep 03 2015

By Joseph C. Wylie and Molly K. McGinley

In Hill v. Homeward Residential, Inc., the Sixth Circuit recently held that a plaintiff could not recover under the Telephone Consumer Protection Act for autodialed calls made to a wireless phone number that the plaintiff provided to the creditor. In so holding, the Court clarified that a consumer is deemed to have provided express consent to be contacted regarding a debt, so long as the consumer provides his or her wireless phone number “in connection with a debt he owes,” even if the phone number is not provided at the time the debt is created or the credit relationship is initiated.

The plaintiff in Hill obtained a mortgage but did not provide his cell phone number to the mortgage provider when the mortgage was first entered into. After his mortgage was sold, he voluntarily provided his cell phone number to the new mortgage company on a number of occasions, both orally and in writing. The successor mortgage provider proceeded to contact him at that number on hundreds of occasions, many of which involved use of a device that the plaintiff contended was an automated telephone dialing system under the TCPA.

The trial court denied summary judgment and allowed the case to proceed to trial on two disputed issues of material fact: whether the device in question was an ATDS, and whether the plaintiff had consented to be called via ATDS on his cell phone. The jury returned a general verdict in the defendant’s favor, and the plaintiff appealed.

FCC Confirms Fax to Email Subject to TCPA, Releases Additional Fax Rulings

Sep 01 2015

On August 28, 2015, the Federal Communications Commission, through its Consumer & Governmental Affairs Bureau, issued three separate rulings on petitions relating to its fax rules under the Telephone Consumer Protection Act.

In a declaratory ruling, CGAB clarified that:

faxes sent and received over telephone lines are subject to TCPA regulation even if those faxes are “converted to and delivered to a consumer as an electronic mail attachment.”
“the consumer to whom the content of a fax or efax is directed,” and not the company hosting the fax servers that receive the faxes over a telephone line and re-send the faxes to the subscriber of the service, is the recipient of the fax under the TCPA.
the act of sending a previously-faxed document by email is not subject to TCPA regulation.

CGAB also declined to provide “safe harbor” fax opt-out language, noting that the TCPA rules and orders already set forth the required content for opt-out notices. Finally, CGAB declined to issue a blanket rule as to whether “third parties, including fax broadcasters, who are retained to accept opt-out requests” are subject to TCPA liability, and instead noted that the question of whether a third party has sufficient involvement in the sending of faxes to create liability is an individualized inquiry.

Company Agrees to $750,000 Penalty to Resolve FCC Inquiry into Wi-Fi Network Management Practices at Convention Center Venues

Aug 20 2015

By Stephen J. Matzura and Marty Stern

The FCC’s Enforcement Bureau entered into a consent decree with a company (Smart City Holdings, LLC and two of its subsidiaries) to end an investigation into whether the company’s use of enabling technologies for managing and protecting Wi-Fi networks unlawfully blocked personal Wi-Fi access at several convention center venues in Ohio, Indiana, Florida, and Arizona, where the company provides managed network services.

According to the Bureau, the investigation focused on whether the company’s use of certain network management equipment which automatically deauthenticated personal mobile “hotspots,” used to access the Internet via users’ wireless data plans, complies with Section 333 of the Communications Act, which prohibits willful or malicious interference with the radio communications of any licensed or authorized station.

EU Data Protection Supervisor Releases Report on Pending Data Protection Reforms

Jul 31 2015

By Marlena Wach

The European Union Data Protection Supervisor, Giovanni Buttarelli, recently released his non-binding recommendations on the draft EU General Data Protection Regulation, which is the subject of a so-called “trilogue” consultative process among officials of the European Commission, European Parliament and Council of Ministers to agree on final language of the regulations. It is largely expected that once finalized, the GDPR will be adopted before year end 2015, which will require approval by both the European Parliament and the Council of Ministers. As reflected in an annex to Mr. Buttarelli’s recommendations, the European Parliament and Council of Ministers have differed in their approach to various aspects of the regulations, particularly as to enforcement and sanctions, necessitating the trilogue discussions.

New TCPA Order Holds Few Bright Spots For Businesses

Jul 14 2015

As originally published in Law360

By Martin L. Stern, Andrew C. Glass, Gregory N. Blase, Joseph C. Wylie and Samuel Castic

On Friday, July 10, 2015, the Federal Communications Commission issued its much-anticipated Declaratory Ruling and Order clarifying numerous aspects of the Telephone Consumer Protection Act. The commission had adopted the order at a particularly contentious June 18, 2015 open meeting (see earlier post), which one commissioner called “a farce” and another described as “a new low … never seen in politics or policymaking.”

In an unusual move, the commission made the order effective on its July 10 release date, rather than following publication in the Federal Register as is typical, providing companies with no opportunity to digest the order and adjust business practices accordingly.

As expected, the order largely brushes aside legitimate business concerns and a sensible approach to TCPA regulation in favor of findings that potentially increase risk for businesses in a variety of circumstances, including the possibility of increased class action litigation. In addition, beyond clarifying that carriers may offer call-blocking technologies to consumers, the order offers little to actually protect consumers from scam telemarketing schemes, including offshore “tele-spammers” that use robocalling or phone-number spoofing technologies.
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Court Awards Individual Plaintiff $229,500 in Damages Under TCPA

Jul 12 2015

By Marty Stern, Joseph C. Wylie II, Molly K. McGinley and Nicole C. Mueller

A recent decision by a New York federal court serves as a stark reminder of the need for companies to adopt and follow robust “do not call” procedures in order to minimize the risk of rapidly escalating statutory damages under the Telephone Consumer Protection Act. The case appears to be the first to rely on the Federal Communications Commission’s recently-announced but at the time, unreleased TCPA declaratory rulings (previously discussed here). (The order has just been released, but as of this writing, the link was down.)

Update: Sixth Circuit Limits Scope of “Unsolicited Advertisement” under the TCPA

Jul 08 2015

By Joseph C. Wylie II, Molly K. McGinley, and Nicole C. Mueller

The Sixth Circuit recently held that a facsimile which lacks commercial components on its face does not constitute an advertisement under the Telephone Consumer Protection Act and ruled that the possibility of remote economic benefit to a defendant is “legally irrelevant” to determining whether the fax violates the TCPA. The Sixth Circuit’s narrow rule stands out among decisions from other courts that have adopted an expansive interpretation of “advertisement” under the TCPA, and demonstrates that the scope of the TCPA is indeed subject to limitations.

In Sandusky Wellness Center, LLC v. Medco Health Solutions, Inc., the defendant, a pharmacy benefits manager, sent two unsolicited faxes to the plaintiff, a chiropractor. The faxes informed plaintiff that medications covered by defendant’s health plans could help lower costs for plaintiff’s patients, and directed plaintiff to a complete list of “plan-preferred medications” on defendant’s website. The faxes, however, did not promote defendant’s services or solicit business from plaintiff. Nor did the faxes contain pricing, ordering or sales information. Notably, defendant did not offer for sale any of the identified medicines, either in the faxes themselves or on defendant’s website.

Connecticut Mandates Identity Theft Services for SSN Data Breaches

Jul 06 2015

By: Holly K. Towle

On June 30, 2015, Connecticut’s governor signed into law an amendment to the state’s data-security-breach-notice statute to mandate “appropriate” identity theft prevention services for breaches involving social security numbers. Identity theft mitigation services are also required “if applicable” (e.g., if identify theft actually occurs). The services must be provided at no cost and for at least 12 months. The statute does not explain which identity theft “prevention” or “mitigation” services are mandated or which are “appropriate.”

Webinar Update: European Commission Strategy on the Digital Single Market

May 19 2015

We recently held a webinar on the highly anticipated EU’s Digital Single Market Strategy, which was released on May 6th by the European Commission.

To listen to the webinar recording and view the presentation slides, please click here.

Catagory:Consumer Issues, Privacy & Data Security