“Yes FCC, we meet again old friends” was the message comedian John Oliver had for the FCC on his show Last Week Tonight, when he devoted nearly 20 minutes to an in-depth criticism of “robocalls” and the FCC’s approach to regulating such calls. (Oliver had previously taken aim at the FCC in multiple segments about net neutrality – which included comparing then-FCC Chairman Tom Wheeler to a dingo – and he allegedly crashed the FCC’s comment system after encouraging his viewers to submit pro-net neutrality comments in the proceeding that led to the decision to revert back to light-touch regulation of broadband Internet access service.) He ended the March 10th segment by announcing that he was going to “autodial” each FCC Commissioner every 90 minutes with a satirical pre-recorded message urging them to take action to stop robocalls.

The irony of John Oliver making robocalls in order to protest robocalls is rather funny. But, it raises the question – are these calls legal? The fact that the calls appear to be lawful – and would be legal regardless of the action Oliver called for in the program – highlights that there is an important distinction between illegal calls and unwanted calls. In the end, Oliver’s segment demonstrates some of the problems with modern efforts to apply the Telephone Consumer Protection Act (“TCPA”), a statute that was adopted well before the proliferation of cell phones in America, and seems to deter many legitimate calls while not sufficiently stopping scam calls.

Continue Reading John Oliver Robocalls the FCC: Is it Legal?

[Spencer Elg co-wrote this post]

The current and future definition of what qualifies as an automatic telephone dialing system (“ATDS” or “autodialer”) remains a hotly debated and evaluated issue for every company placing calls and texts, or designing dialer technology, as well as the litigants and jurists already mired in litigation under the Telephone Consumer Protection Act (“TCPA”). Last year, the D.C. Circuit struck down the FCC’s ATDS definition in ACA International v. FCC, Case No. 15-1211 (D.C. Cir. 2018). Courts since have diverged in approaches on interpreting the ATDS term.  See, e.g., prior discussions of Marks and Dominguez. All eyes thus remain fixed on the FCC for clarification.

In this post, we revisit the relevant details of the Court’s decision in ACA International, and prior statements of FCC Chairman Ajit Pai concerning the ATDS definition to assess how history may be a guide to how the FCC approaches this issue.

Continue Reading Taking Stock of the TCPA in 2019: What is an “Autodialer”?

With speculation running rampant that Chairman Pai intends to bring a remand order from ACA International v. FCC in January 2019, the FCC took a related step to reduce misdirected calls.  At the December Open Meeting, the FCC approved a Second Report and Order (“R&O”) to create a single, nationwide database for reporting number reassignments that will allow callers to verify whether a phone number was permanently disconnected before calling the number. The item is meant to reduce “wrong number” calls to mobile phones, i.e., where a caller has a legitimate reason for trying to reach a consumer but doesn’t realize that the number they have has been reassigned to someone else. The new rule would help eliminate a scenario where the new holder of the number receives an unwanted call and the prior holder never receives the call intended for them. The R&O is part of a broader effort by the FCC to address and stem the volume of unwanted phone calls in the United States.

Continue Reading In a Prelude to its TCPA Ruling, the FCC Votes to Create a Database to Identify Reassigned Numbers

Full Spectrum’s “Inside the TCPA” podcast series offers a deeper focus on TCPA issues and petitions pending before the FCC. Each episode tackles a single TCPA topic or petition that is in the news or affecting cases around the country. In this episode, partner Steve Augustino and associate Jenny Wainwright discuss efforts by the FCC and private industry to limit the number of illegal calls that reach consumers’ phones. In particular, they give an overview of a 2017 FCC order that authorized carriers to block certain types of calls, discuss the basics of private industry call blocking and call labeling services, and review suggestions from both industry and consumer groups on how to address this issue going forward. Click here to listen to this episode and click here to subscribe on iTunes.

The Republican-led FCC’s effort to get out of the business of regulating broadband providers’ consumer practices took a step forward on Monday.  In an appeal that has been proceeding in parallel with the FCC’s “Restoring Internet Freedom” reclassification proceeding, the U.S. Court of Appeals for the Ninth Circuit issued an opinion giving the Federal Trade Commission (FTC) broad authority over practices not classified by the FCC as telecommunications services.  Specifically, the Ninth Circuit, sitting en banc, issued its long-awaited opinion in Federal Trade Commission v. AT&T Mobility, holding that the “common carrier exemption” in Section 5 of the FTC Act is “activity based,” exempting only common carrier activities of common carriers (i.e., the offering of telecommunications services), and not all activities of companies that provide common carrier services (i.e., rejecting a “status-based” exemption).  The case will now be remanded to the district court that originally heard the case.  Coupled with the FCC’s reclassification of Broadband Internet Access Services (BIAS) in the net neutrality/restoring internet freedom proceeding, the opinion repositions the FTC as top cop on the Open Internet and broadband privacy beats.

Continue Reading Support for FTC Jurisdiction Over Broadband:  Ninth Circuit En Banc Rules  Common Carrier Exemption is “Activity,” and not “Status-based,” Reversing Earlier AT&T Victory

As the second session begins, the 115th Congress will pick up where it left off on some key telecommunications and technology issues. In this episode of Kelley Drye’s Full Spectrum podcast, Partner John Heitmann and Jennifer McCadney, Special Counsel in Kelley Drye’s Government Relations and Public Policy group, examine the current status of these issues and the implications for what is likely to occur in the coming months. The three categories of legislation they cover are (1) Mobile, 5G and Spectrum, (2) Rural Broadband Access, and (3) Internet, Privacy, Cybersecurity and Data Security. To listen to this episode, please click here.

Last week, the Federal Communications Commission (FCC), in a 3-2 vote, approved an order allowing “television broadcasters to use the ‘Next Generation’ broadcast television (Next Gen TV) transmission standard, also called ‘ATSC 3.0.’”  Described in the Order “as the world’s first Internet Protocol (IP)-based broadcast transmission platform,” the Next Gen TV standard is expected to allow broadcasters to provide more targeted advertisements to individual viewers.  Some had expressed concerns over the collection of the demographic and consumer data necessary for Next Gen TV targeted advertising, and applicable privacy safeguards for the new standard.  At this stage though, the FCC majority took a wait and see approach to privacy concerns.

Continue Reading Will Your TV Watch You? FCC Green Lights Targeted Advertising in Next Gen TV Broadcasting Standard

On November 1, 2017 the House Antitrust Law Subcommittee held a hearing to discuss the role of federal agencies in preserving an open Internet.

The core question discussed at the hearing was whether current antitrust law is sufficient to ensure net neutrality absent FCC rules. The panelists—including FTC Acting Chairman Maureen Ohlhausen and Commissioner Terrell McSweeney; former FCC Commissioner Robert McDowell; and Michael Romano, NTCA Senior Vice President of Industry Affairs and Business Development—and committee members were generally divided down party lines, with Republicans arguing that FCC rules were both unnecessary and counterproductive and Democrats arguing that rules were necessary to ensure an open Internet, free expression, and innovation.   Continue Reading House Antitrust Subcommittee Explores the Role of Antitrust Law in Net Neutrality

On July 18, 2017, the National Telecommunications and Information Administration (“NTIA”) hosted a virtual meeting of its multistakeholder process to address Internet of Things (“IoT”) patching and security upgrades.  The July 18th meeting represents the fourth gathering of multistakeholders in this process.

During the July 18th meeting, four working groups presented: (1) the Communicating Upgradability and Improving Transparency working group; (2) the Incentives, Barriers, and Adoption working group; (3) the Standards working group; and (4) the Technical Capabilities and Patching Expectations working group.

Continue Reading NTIA Holds Virtual Meeting of Multistakeholder Process on Internet of Things Security Upgradability and Patching

Below is Kelley Drye’s preview of the items under consideration at the Federal Communication Commission’s (FCC’s) upcoming monthly Open Meeting, to be held on July 13, 2017.  Consistent with the trend since he took over the Commission, Chairman Ajit Pai continues to schedule a large number of items.  Indeed, for the sixth month in a row, the Commission has six or more items on its agenda.  This month, the agenda consists of eight items, two Notices of Proposed Rulemaking, two Notices of Inquiry, two Reports and Orders, and one Order on Reconsideration.

Each agenda item is summarized below.  Note: these brief summaries are based on draft items, which may differ from the final items released following the Open Meeting.  Please check with Kelley Drye after the meeting for more information on the items below.

Continue Reading What to Expect at the FCC’s July 2017 Open Meeting