Rhode Island Wants to be the First State to Offer 5G; Releases RFI

iStock_000006131068MediumThe state of Rhode Island plans to be the first state to test and launch next generation 5G networks, seeking to make 5G available to all of its communities.  This past week, Governor Gina Raimondo announced a joint effort by the Public Utilities Commission, Division of Public Utilities and Carriers, and the Office of Innovation to pilot a large-scale 5G network deployment with real world testbeds to attract new high-tech businesses while lowering the cost of deployment and operation.  Citing size, population density, and regulatory flexibility, the State sees Rhode Island as “an ideal place to rollout 5G wireless” and seeks informational proposals from qualified firms and vendors in response to a Request for Information (RFI) on implementing 5G and next generation broadband infrastructure statewide.  While the state will not award funding to any respondents, the state does intend to use the information acquired in its collaboration with municipalities to develop the blueprints for three network imperatives: 5G wireless, Civic Internet of Things and an extensive fiber network. Continue Reading

FCC Announces MOU with Canadian Counterpart to Combat Robocalls, Issues Enforcement Advisory on Automated Texts

Heading into the holiday season, the FCC shows no signs of slowing down in its consumer-focused initiatives, in particular those related to the Telephone Consumer Protection Act (TCPA).  Earlier this month, for instance, the Commission sponsored a Twitter town hall to clarify TCPA restrictions, and announced that on December 14th, it will host a webinar for consumers entitled “How to Deal with Robocalls.”  This post addresses two recent FCC notices designed to enhance its enforcement of the TCPA.

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FCC Denies TCPA Exemption for “Mortgage Servicing Calls”

On November 15, 2016, the Consumer and Governmental Affairs Bureau (CGB) released an order denying a request by the Mortgage Bankers Association (MBA) for an exemption of the prior-express-consent requirement of the TCPA for “mortgage servicing calls” to wireless phone numbers, such as calls to inform borrowers of their options should they become delinquent or default on their mortgages.  MBA argued that the exemption was “necessary to ensure that the TCPA does not restrict mandated, timely communications with residential mortgage borrowers that are required by other federal and state laws or regulations.”

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Decrypting the Broadband Privacy Order

On October 27, 2016, the Federal Communications Commission adopted a Report and Order that imposes a comprehensive set of privacy and data security regulations for broadband providers and replaces the existing privacy and data security rules for all other telecommunications service providers.  The rules represent a significant departure from the Commission’s existing privacy and data security framework.  In this episode of Kelley Drye’s Full Spectrum podcast, Kelley Drye associates Avonne Bell, Jenny Wainwright and Ross Slutsky give an overview of the new rules with respect to notice, choice, and data security, and offer key takeaways for companies impacted by the rules. To listen to this episode, please click here.

The Presidential, Senate and House Elections, Results and Policy Implications

Designed to serve as a comprehensive review of Tuesday’s elections, our guide analyzes the 2016 results and looks ahead to the 115th Congress with an in-depth review of upcoming changes to the House and Senate. The presentation further reviews key policy issues facing the President and the Congress, including tax, trade, healthcare, transportation and infrastructure, regulatory reform, communications & technology and food & agriculture. We also take a look at potential Supreme Court nominees and the 2018 Senate races.

Implications for FTC Jurisdiction from Ninth Circuit Decision

In late August, the Ninth Circuit ruled that AT&T was exempt from Federal Trade Commission oversight by virtue of its status as a common carrier, and dismissed an FTC case against AT&T over its practice of “throttling” customers’ mobile data usage. The FTC filed a request for en banc review by the full panel of the Ninth Circuit in mid-October. If the ruling stands, it could dramatically alter the jurisdictional boundaries between the FTC and FCC. In this podcast episode, paralegal Matt Weinmann interviews partner John Heitmann on the decision and its possible implications. To listen to this episode, please click here.

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Client Advisory: The FCC’s Broadband Privacy Order

On Wednesday, November 2, 2016, the Federal Communications Commission (FCC) released the text of its long-awaited Broadband Privacy Order, which it adopted on October 27, 2016. For an overview of the Order, you may read our client advisory here.

The practical impact and reach of the rules will not be known for some time, but at this point we can offer a few of our key takeaways from the Order:

  • All carriers must prepare and maintain public-facing privacy notices. The Commission’s new notice rules will require all telecommunications carriers to draft and post public-facing privacy policies that describe their collection, use, and sharing of customer PI. Formerly, this obligation only applied to BIAS providers (through the Commission’s transparency rule). We expect that disclosures in these privacy policies will be a significant area of enforcement, similar to the Commission’s enforcement of annual CPNI certifications.
  • The sensitivity-based consent framework upends the existing CPNI approval framework. The Commission’s adopted rules fundamentally reshape the consent framework for telecommunications carriers, focusing on the sensitivity of the information, rather than on the particular uses and recipients of the information (as the voice CPNI rules did). As a result, all carriers should carefully review and revise their policies, procedures, and systems for obtaining and tracking customer approval.
  • The Order leaves a significant interpretive role for FCC’s Enforcement Bureau with respect to data security. Unlike the existing voice CPNI rules and the Commission’s proposed data security rules, which mandated specific data security compliance practices, the new rules simply require carriers to adopt “reasonable” data security practices. By focusing on the “reasonableness” of carriers’ privacy and data security practices, the Commission leaves significant room for its Enforcement Bureau to interpret whether particular practices are reasonable, in a manner similar to the FTC’s approach to privacy and data security enforcement. For this reason, providers should carefully review the Commission’s “exemplary” data security practices and Enforcement Bureau consent decrees in order to gauge which practices the Commission expects of providers.
  • Now is the time to begin reviewing contracts with vendors. In the Order, the Commission makes clear that carriers will be held responsible for the acts of their agents, vendors, and other third parties with whom they share customer PI. As a result, carriers should take the opportunity now to review contracts with those third parties to determine whether they include specific terms addressing privacy and security. This is particularly important for non-BIAS telecommunications carriers serving enterprise customers, who will be able to take advantage of the Commission’s expanded business customer exemption.
  • Kelley Drye’s Communications and Privacy & Information Security practice groups are well-versed in privacy law at the federal and state level, and stand ready to help interested parties understand the scope of these rules and how to operationalize them. Should you have any questions, please contact any of the attorneys listed in the margin.

FCC Reaches Out to Consumers on TCPA Issues

The Federal Communications Commission (FCC) is increasing its visibility in response to what it has repeatedly cited as its largest source of consumer complaints to the Commission: autodialed and prerecorded calls (which the FCC groups together as so-called “robocalls”).  In addition to pushing for industry-based solutions to unwanted calls to consumers through initiatives such as the “Robocall Strike Force,” the FCC also has begun reaching out to consumers directly to publicize the Commission’s initiatives to enforce the Telephone Consumer Protection Act (TCPA).

Last Thursday, the FCC held an hour-long “town hall” session on Twitter during which FCC staff clarified restrictions on autodialed calls that can be placed to consumers’ home and wireless phone numbers.  Several tweets released during the session also told consumers how they could file complaints if they receive what they believe to be an impermissible call, and encouraged consumers to visit the FCC’s website to learn more about the Commission’s initiatives on this issue.

And yesterday, the FCC announced that the Consumer and Governmental Affairs Bureau will host a webinar for consumers entitled “How to Deal with Robocalls” on Wednesday, December 14, 2016 from 1:00 PM – 2:00 PM.  A detailed agenda for the webinar will be released at a later date, but the FCC indicated in its Public Notice that the event “will explain the FCC’s role in addressing this issue and the steps consumers can take to protect themselves from and/or decrease the amount of robocalls they receive.”

FCC Votes to Impose Aggressive New Privacy Rules on Broadband Providers

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At the Federal Communications Commission’s (“FCC”) Open Meeting on October 27, the Commission voted along party lines (3-2) to impose more stringent rules on broadband Internet service providers (“ISPs”). Chairman Tom Wheeler, along with Commissioners Rosenworcel and Clyburn voted in favor of the item, while Commissioners Pai and O’Rielly voted against it.

The new rules clarify the privacy requirements applicable to broadband ISPs pursuant to Section 222 of the Communications Act. The new rules also apply to voice services and treat call-detail records as “sensitive” in the context of voice services.

According to an FCC press release issued immediately after the meeting, these rules “establish a framework of customer consent required for ISPs to use and share their customers’ personal information that is calibrated to the sensitivity of the information.” The Commission further asserts that this approach is consistent with the existing privacy framework of the Federal Trade Commission (“FTC”).

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The Month in FCC Enforcement: October 2016

With the Presidential election approaching, the Enforcement Bureau seems intent on doubling down on its legacy of aggressive, principle-based enforcement. This installment of Steve Augustino’s FCC Enforcement series features the FCC’s $48 million settlement with T-Mobile over data throttling allegations involving its mobile internet services. He also examines another unusual “admonishment” and other enforcement items from September and October. To listen to this podcast episode, please click here.

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