After multiple enforcement actions totaling hundreds of thousands of dollars in penalties against importers and retailers of LED signs last year, it appears that the message has not been fully received. To the contrary, the FCC is back at it in enforcing its equipment marketing rules against importers and retailers of LED signs in 2019. In a recent Enforcement Advisory, the FCC again warned companies marketing noncompliant LED displays that they may be subject to costly investigations and significant monetary penalties. As we previously reported, these warnings should put all importers and retailers of LED signs – many of whom may not know FCC rules apply to them – on notice that their products should be authorized, properly labeled, and contain the required user disclosures before being marketed in the United States. The FCC often uses Enforcement Advisories to set the stage for future enforcement action and the agency appears poised to move forward with another wave of enforcement actions in the coming months. It is therefore critical that companies assess their equipment marketing compliance procedures now to avoid Commission enforcement later.
Imported Radio Frequency (RF) devices must be compliant with the Federal Communications Commission’s (FCC or Commission) equipment authorization rules, but importers can look forward to some relief in their paperwork next year. These entities will receive a 6-month and possibly longer break from filing FCC Form 740 (Form 740) documentation with Customs and Border Protection (CBP) or the FCC. Today, the FCC published a Suspension Order in the Federal Register announcing it will temporarily waive the filing requirements associated with Form 740 on imported RF devices, effective July 1, 2016 through December 31, 2016. Continue Reading FCC Form 740 Importation Filings for Radio Frequency Devices Will Be Temporarily Suspended Late Next Year
A recently adopted Consent Decree entered into between the Enforcement Bureau (“Bureau”) and Wal-Mart.com USA leaves no doubt that retailers are advised to be aware of their regulatory responsibilities for the electronics they offer for sale, whether on their physical shelves or on their website. Those responsibilities essentially require retailers to be the pro-active policemen of their suppliers’ compliance with the Commission’s equipment authorization rules. In return for selling wireless microphones without equipment authorization manufactured by ne vendor and for failing to provide a consumer alert regarding conditions of operation at the point of sale for these devices as required in the Federal Communications Commission’s (FCC’s) rules, the on-line retailer agreed to pay $120,000 and submitted to a three-year compliance plan regarding the offering for sale of all radio frequency devices within the United States. Continue Reading Wal-Mart.com USA Consent Decree Reminder of Retailers’ Responsibilities for the Radiofrequency Devices They Sell
Steve Augustino contributed to this blog post.
In recent years, the FCC has conducted a number of investigations and initiated several enforcement matters against unauthorized marketing and use of cellphone jammers, GPS blockers, and similar equipment. To date, the agency has limited itself mostly to citations without monetary penalties, as well as enforcement advisories at irregular intervals. Eight recent orders, while they don’t break with that pattern, and a new consumer alert and tip line indicate clearly that the Commission is ratcheting up its efforts in this area. It would not be surprising if the Commission soon finds reason to issue substantial forfeitures for illegal operation, especially if facts are present demonstrating that 9-1-1 or other emergency communications have been interfered with or if it finds a large corporation utilizing the unauthorized devices.
The House Energy and Commerce Committee, Subcommittee on Commerce, Trade and Consumer Protection, will hold a hearing today on the "Calling Card Consumer Protection Act of 2009" (HR 3993). The bill would require prepaid calling card providers and their distributors to disclose all applicable rates and other terms and conditions to consumers. The FTC would be empowered to enforce the requirements, including against common carrier prepaid card providers.
Rep. Engel (D-NY) introduced the bill on November 3, 2009. This is the first hearing on the bill.
Scheduled witnesses today will be:
- Lois Greisman, Director, Division of Marketing Practices, Federal Trade Commission
- Sally Greenberg, Executive Director, National Consumers League
- Patricia Acampora, Commissioner, New York State Public Service Commission, National Association of Regulatory Utility Commissioners
- Alie Kabba, Executive Director, United African Organization
- Scott Ramminger, President, American Wholesale Marketers Association
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