Yesterday, the FCC issued a $2.25 million Forfeiture Order against TV Max Inc. (and its affiliates and subsidiaries) for “willfully and repeatedly” violating Section 325 of the Communications Act.  The fine reflects the amount proposed in the FCC’s June 2013 Notice of Apparent Liability.  In a post-Aereo world, the FCC seems to be taking retransmission violations more seriously than ever.  In addition, following a trend in recent large enforcement orders, the FCC took the position that each day TV Max acted in contravention of Section 325 constituted a separate violation of the Commission’s rules.  This approach allowed the Commission to conclude that the statutory maximum exposure exceeded $16 million, thereby clearing room for the Commission’s $2.25 million fine.  The Commission’s discussion also provides some interesting insights into its view of permissible rebroadcasts absent retransmission consent agreements. 
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With class action cases proliferating, the Federal Communications Commission (“FCC”) continues to receive petitions seeking guidance on the applicability of its rules to various calling or texting scenarios. In the latest example, the FCC issued a Public Notice seeking comment on a Petition for Declaratory Ruling filed by TextMe, Inc. (“TextMe”). TextMe provides a free

Since 1992, the Federal Communications Commission (“FCC”) has been required to report to the U.S. Congress on the state of video competition. These reports are not often the most compelling reads available. With the rise of “over the top” online video distribution providers (“OVD”), this year’s report could be more interesting than usual.

The dilemma for over the OVDs is not new. If you are a non-facilities based content provider, possibly now and certainly in the future, the customer’s costs of using your services is the sum of whatever consideration you exact from them, plus the cost of their broadband service, which in some cases is based on usage. To use your content service, the customer has to pay another provider just to reach your service. That other provider (and potentially your competition) owns and controls the very delivery mechanism you must rely on for your services and has no obligation to you to ensure or even facilitate delivery of your content in a manner in which the end user would deem beneficial.

So, if your online content service business relies on the provision of internet services by a network and customer-relationship-owning provider, it is well past the time when you should have focused some effort on insuring that your access to your customer’s broadband service is sufficient for delivery of quality services and affordable by the customer. Not easy to be sure — maybe you are going to have to build networks; maybe you will enter into agreements with the facilities-based providers to give your content some measure of priority or quality when delivered to the end user, or maybe you will turn to Congress and the regulators to seek a legal and regulatory framework that requires certain facilities be made available to you. Regardless of which path is taken, the FCC’s Video Competition proceeding has something that may be important.
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 In a move that appears aimed to maximize options for new Chairman Tom Wheeler when he assumes office, the FCC turned its attention again to its rules to address unauthorized charges on telephone bills, known colloquially as "cramming."  The FCC is asking parties to refresh the record in its docket considering rules for landline and mobile carriers to address cramming.  Parties are asked to address recent filings by state commissions seeking additional rules, particularly with respect to the extent to which cramming is a problem on wireless bills.  

The FCC has an inconsistent history in addressing cramming — it still does not have any required verification rules for placing charges on telephone bills, for example.  Yet the FCC has taken occasional enforcement actions, proposing significant fines or settling cases for significant amounts.  This public notice provides an opportunity for the FCC to clarify, for carriers and third-party providers alike, the extent of a service provider’s duties with respect to charges billed on telephone invoices.


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David Darwin co-authored this post.

Last Friday, the FCC clarified several aspects of the complex closed-captioning regulations adopted last year applicable to service and content providers using Internet protocol (IP) to deliver video programming and to certain devices used by consumers watch video programming. In January 2012, the FCC had issued a Report and Order for the implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA).  Among other things, the CVAA and the Commission’s implementing regulations established closed captioning obligations for providers using IP to deliver video programming, as well as for certain consumer devices on which consumers watch video programming.  On June 14, 2013 the FCC released an Order on Reconsideration (Recon Order) and Further Notice of Proposed Rulemaking (FNPRM) modifying and clarifying the Report and Order, granting some waivers and denying others, which should create some additional certainty for programming providers and distributors as well as device manufacturers regarding how to comply with the regulations.  The Recon Order and FNPRM follow three petitions for reconsideration, brought by the Consumer Electronics Association, TVGuardian, and a number of consumer groups.


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Jameson Dempsey co-authored this post.
In a ruling that FCC Commissioner Ajit Pai described as “a win for consumers and for innovative companies alike,” the FCC granted a petition for declaratory ruling filed by SoundBite Communications, Inc., finding that one-time text messages confirming a consumer’s request not to receive any future text messages do not violate the Telephone Consumer Protection Act of 1991 (“TCPA”).  The Order represents a significant victory for mobile marketing firms like SoundBite and companies conducting mobile marketing, which have been inundated  with actual and threatened class action lawsuits over such confirmatory messages.

Although the ruling is an important victory, the FCC’s rationale for permitting the messages is relatively narrow and not all confirmatory messages will be permitted.  Moreover, the FCC’s ruling in effect imposes a requirement that confirmatory texts be sent within five minutes of the consumer’s opt-out request.  Companies engaging in mobile marketing should review their practices carefully before sending additional confirmatory text messages in reliance on the FCC’s ruling.
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Mobile marketing, sweepstakes and services, including location-based services, are governed by an alphabet soup of statutes and regulations: TCPA, COPPA, CAN-SPAM, CPNI, etc. To complicate compliance even further, numerous class action lawsuits in state and federal courts have addressed issues and nuances that the Federal Communications Commission, Federal Trade Commission, and state regulatory agencies or

Mobile marketing, sweepstakes and services, including location-based services, are governed by an alphabet soup of statutes and regulations: TCPA, COPPA, CAN-SPAM, CPNI, etc. To complicate compliance even further, numerous class action lawsuits in state and federal courts have addressed issues and nuances that the Federal Communications Commission, Federal Trade Commission, and state regulatory agencies or

In FCC v. Fox Television Stations, Inc., the US Supreme Court reversed FCC indecency fines against two TV broadcast networks.   The decision has garnered a lot of attention in the broadcast industry and conventional media (and rightly so).   News stories describe the decision as a clear victory for broadcasters.  Many commentators also noted the apparently shaky ground of the 1978 Pacifica decision finding George Carlin’s “Filthy Words” monologue indecent.   (Including this decidedly non-legal discussion.) These are topics of great interest to the broadcast industry.

For all its significance in the broadcast world, the decision is equally significant for non-broadcasters.  In Fox Television, the Supreme Court sets a high bar for FCC enforcement of general obligations under the Communications Act, not just the FCC’s indecency standard.  As a result, Fox Television will constrain the FCC’s enforcement abilities in several prominent areas of common carrier regulation as well.  Most significantly, we believe that Fox Television limits the FCC’s ability to impose fines for violations of Section 201(b)’s prohibition on unjust and unreasonable practices.  Unless the FCC has provided fair notice to common carriers of the conduct required under Section 201(b), it may not impose sanctions in the enforcement context.


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