Days before tomorrow’s Federal Trade Commission (FTC) Workshop on Mobile Disclosures, the FCC weighed in with a pair of releases on privacy and security issues raised by mobile devices.  In the first item released on Friday, the FCC is seeking to refresh its record regarding the privacy and data security practices of mobile wireless service providers in light of recent disclosures concerning software developed by CarrierIQ.  The FCC’s Public Notice seeks to update the record in a five-year-old rulemaking proceeding addressing carrier obligations in connection with devices that function on their networks.  In the second item released, the FCC released its staff report on location-based services (LBS).  Consistent with the approach of the Administration and the FTC (as was discussed at our 4th Annual Privacy Seminar), the FCC focused on ways carriers can protect information from misuse or mishandling, transparency in carrier disclosures and maximizing consumer choice in the use of LBS.

Collectively, the releases demonstrate that the FCC will continue to work cooperatively with the FTC and the Administration (including the NTIA) to address privacy issues in the mobile market. The FCC appears to believe it has sufficient statutory authority to act on mobile and device privacy, with its emphasis being on its jurisdiction over carrier practices in connection with both services and devices.

Josh Guyan contributed to this post.
 


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On February 16, 2012, Kelley Drye & Warren LLP hosted the seminar and audiocast, “Privacy in 2012: What to Watch Regarding COPPA, Mobile Apps, and Evolving Law Enforcement and Public Policy Trends.” The seminar highlighted regulatory and legislative developments in privacy and information security during the past year, with an emphasis on children’s online privacy

According to FierceWireless and other news sources, the wireless industry announced this morning an agreement with the FCC and consumer groups to provide free text alerts to consumers before they exceed their plan limits on voice minutes, text messages, data usage or international roaming.  The press release is available on the CTIA website here.  A good

Once again, USAC and the federal Universal Service Fund are driving fundamental classification questions regarding telecom services.  In the latest example, USAC has requested the FCC’s guidance on how to treat text messaging services for universal service purposes.  Several parties have tried before to have the FCC opine on the classification of text messaging services, with no luck so far.  Only time will tell whether USAC’s request will spur FCC action where others have failed.


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This order stands in stark contrast to the nominal CPNI settlements, odd refund provisions and low-ball forfeiture penalties we’ve discussed in this blog.  Today, the FCC announced an eye-popping $25 million settlement with Verizon Wireless in its investigation of Verizon’s unauthorized billing of wireless data charges.  The so-called "mystery fees" investigation stemmed from allegations that Verizon

As consumers increasingly rely on mobile phones, marketers naturally are following.  Text messaging, in particular, has proven to be a popular marketing method.  It is not surprising, therefore, that we are seeing in increase in litigation over the obligations of senders and mobile carriers with respect to text messaging campaigns. 

The latest example of this trend

While the FCC has taken an interest in mobile marketing by carriers — most notably with investigations of carrier early termination fees and proceedings examining wireless consumer "bill shock" — it also is helpful to remember that the mobile content providers are subject to enforcement for deceptive marketing practices.  Our colleagues at the Ad Law Access

On Friday, June 19, 2009, the Ninth Circuit Court of Appeals reversed a district court decision involving a mobile marketing campaign. A key issue in the case is whether text messages are subject to the Telephone Consumer Protection Act (the "TCPA"), a law that was drafted before the advent of text messaging. Although the Ninth Circuit remanded the case so that the district court could develop more facts, the decision underscores the importance of ensuring that marketers get express consent before sending text messages to consumers. 

Background on the Case

Laci Satterfield became a registered user of Nextones in order to receive a free ring tone. During the registration process, Ms. Satterfield checked a box which read, in part: "I would like to receive promotions from Nextones affiliates and brands." On January 18, 2006, Ms. Satterfield received a text message from Simon & Schuster advertising a novel by Stephen King. Shortly thereafter, Ms. Satterfield filed a class action lawsuit alleging that Simon & Schuster’s text message campaign violated the TCPA.

In June 2007, the Federal Court for the Northern District of California granted summary judgment to Simon & Schuster holding that the company did not violate the TCPA. Specifically, the court determined that the text message campaign did not violate the TCPA’s prohibition against using an automatic telephone dialing system (an "ATDS") because the device used to send the messages did not fall within the statutory definition of an ATDS. Moreover, the court found that Ms. Satterfield had agreed to receive text messages when she registered for Nextones.

Ninth Circuit Opinion

On Friday, June 19, 2009, the Ninth Circuit Court of Appeals reversed the district court decision and remanded the case for further proceedings. The Ninth Circuit held that the district court had erred because (1) the text message was a "call" within the meaning of the TCPA, (2) there was a disputed issue of material fact as to whether the system Simon & Schuster used was an ATDS, and that (3) Ms. Satterfield did not consent to receive messages from Simon & Schuster because Simon & Schuster is not an affiliate or brand of Nextones.

The TCPA applies to certain types of "calls." Simon & Schuster had argued that the sending of text messages did not constitute a "call" under the TCPA. Although the district court did not rule on that point, the Ninth Circuit disagreed with Simon & Schuster’s argument. The term "call" is not defined by the TCPA. However, the Federal Communications Commission has noted that the statute


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