Photo of Steve Augustino

Email
(202) 342-8612
Bio

Last week, we told you that President Trump signed bipartisan legislation establishing minimum security requirements for Internet of Things (“IoT”) devices used by the federal government. The Act is the first of its kind at the federal level, aimed at protecting the security of IoT devices and services in the marketplace. The Act governs federal purchases of IoT devices and services but is intended to leverage the purchasing power of the federal government to affect the broader IoT market indirectly.  Thus, without (yet) setting standards for all IoT devices and services, the legislation nevertheless is significant whether or not a company sells its product to the government.

Continue Reading NIST Wastes No Time in Implementing the IoT Cybersecurity Act of 2020

For the second time this year, the TCPA came before the Supreme Court via teleconference oral argument in Facebook, Inc. v. Duguid, et al, Case No. 19-511 (2020). The Supreme Court’s disposition of Facebook’s petition is expected to resolve a widening Circuit split over what qualifies as an automatic telephone dialing system (“ATDS”) under the TCPA, 47 U.S.C. § 227, et seq., and thus determine much of the scope of the TCPA’s calling restrictions.

Continue Reading Supreme Court Hears Oral Argument Over the TCPA’s Definition of an Autodialer

On December 4, 2020, President Trump signed bipartisan legislation establishing minimum security requirements for Internet of Things (“IoT”) devices used by the federal government. The legislation, H.R. 1668, passed the House in September and the Senate in November.

The Internet of Things Cybersecurity Improvement Act of 2020 draws upon work that the National Institute of Standards and Technology (“NIST”) has been doing to address cybersecurity for IoT devices. Referencing work done over the Summer on IoT Device Cybersecurity, the Act directs NIST to issue standards for the “appropriate use and management” of IoT devices owned or controlled by federal agencies. NIST, which already was working on the federal profile of IoT uses, is directed to issue these guideline by March 4, 2021. Within 6 months of that date, the Office of Management and Budget is to review agency information security policies and principles based upon NIST’s guidelines. And, adding a hammer to the incentives, federal government acquisition standards are to be revised to implement these standards. In other words, federal contractors will be required to adhere to the NIST standards in IoT devices sold to the federal government.


Continue Reading President Signs IoT Cybersecurity Act of 2020

In the latest episode of Full Spectrum’s Inside the TCPA series, Partner Steve Augustino and Associate Chris Laughlin discuss a series of FCC orders that require implementation of a call authentication framework called STIR/SHAKEN. They cover the FCC’s anti-robocall program, the specifics of STIR/SHAKEN, its implementation requirements and deadlines, and other implications for service providers,

The upcoming election will bring changes to the FCC, regardless of which party wins the White House. In this episode of Kelley Drye’s Full Spectrum, Partners John Heitmann and Steve Augustino are joined by Dana Wood, co-chair of Kelley Drye’s Government Relations and Public Policy (GRPP) practice, for a discussion of the potential organizational

In this edition of Full Spectrum’s recurring series on FCC enforcement, Partner Steve Augustino and Special Counsel Brad Currier feature a “decision of the month” illustrating key FCC enforcement trends. For September, they cover the proposed fine against BarrierFree, where the FCC took a hard look at broadband reporting requirements and the continuing violation theory.

It has been more than two years since the D.C. Circuit found the Federal Communications Commission’s (the “FCC”) discussion of predictive dialers and other equipment alleged to be an automatic telephone dialing system (“ATDS,” or “autodialer”) to “offer no meaningful guidance” on the question. In the absence of an FCC ruling on the remand, multiple courts of appeals have addressed the statute’s definition. In the most recent case, Allan v. Pennsylvania Higher Education Assistance Agency, the Sixth Circuit adopted (in a split decision) a broad definition of an autodialer. Construing the term ATDS to include both devices that “generate[] and dial[] random or sequential numbers,” and “that dial from a stored list of numbers,” the Sixth Circuit has aligned itself with the Second and Ninth Circuits in a growing circuit split, with the Third, Seventh and Eleventh Circuits adopting a narrower interpretation. At this point, all eyes are on the Supreme Court, which accepted a case addressing the ATDS definition for next term.¹ The FCC, meanwhile, is not likely to address the core ATDS definition until after the Supreme Court ruling.

Continue Reading Sixth Circuit Holds That Stored-Number Systems Meet the TCPA’s Definition of an Autodialer, Deepening Circuit Split to be Addressed by the Supreme Court Next Term

On July 9, 2020, the Supreme Court granted Facebook’s petition for certiorari in a case with potentially broad implications for both class action litigation and business communications with their current and potential customers. The Supreme Court’s disposition of Facebook’s petition may settle the complex question of what qualifies as an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

The TCPA prohibits telemarketing calls to be placed using an ATDS without the requisite level of prior consent. Thus, the definition of what technology qualifies as an ATDS is often a fundamental, threshold question upon which TCPA litigation turns. Prior to 2015, the FCC had offered various, sometimes vague, interpretations of the term.  In 2015, the FCC offered an expansive definition, which was set aside in March 2018 in the ACA International decision. While the issue has been before the FCC on remand for over two years now, courts nevertheless engaged in their own analysis of the statute, resulting in a broadening Circuit split on how the law is interpreted and applied and divergent outcomes based on the court in which the case is filed. Now the Supreme Court is poised (potentially) to resolve that dispute.


Continue Reading Supreme Court to Weigh-in on the Definition of an Autodialer Under TCPA