Regulatory and Litigation Developments for Advertisers and Marketers
Craig Gilley provides a broad range of services for regulated communications entities, as well as information technology, education technology, investment, and private equity companies. Craig's primary practice involves counseling cable operators, broadband providers, internet service providers, video programmers, satellite providers, and wireless/wireline telecommunications providers on a broad range of legal, regulatory, operational, and transactional issues. He also regularly provides transactional, operational, compliance, and strategic advice to information and educational technology firms. Craig also represents investment and private equity companies, providing transactional and compliance support to ensure that both their acquisitions and ongoing investments fully comply with regulatory requirements.
On May 19, 2025, President Trump signed into law the Take It Down Act. The new law imposes strict takedown obligations and creates new civil and criminal liabilities for individuals and platforms that distribute nonconsensual intimate images (NCII).
The Act makes it a federal crime for individual posters to knowingly share or threaten to share…
The Fifth Circuit on April 17 vacated a $57 million FCC forfeiture against AT&T, ruling the agency violated the company’s Seventh Amendment right to a jury trial under the Supreme Court’s 2024 decision in SEC v. Jarkesy. This decision reinforces that federal agencies imposing fines, forfeitures, and other monetary penalties must afford targets access to an Article III decision maker and a jury trial in order to perfect the penalty.Continue Reading Fifth Circuit Decision Vacating FCC Fine Against AT&T Makes It More Difficult for Federal Agencies to Impose Monetary Penalties for Violations of Agency Rules
On April 7, the Federal Communications Commission (FCC) granted a limited waiver delaying by an additional year the effective date of certain parts of the new Telephone Consumer Protection Act (TCPA) rule. Specifically, the waiver delays the effective date for the requirement that a caller treat a single reasonable revocation as revocation from all future robocalls from that party on unrelated matters, and to accept that single revocation as applying to all its business units and entities, which the agency treats as the same “party.”
The FCC’s announcement indicated that it applies only to the scope of revocation issues. The bad news for businesses sending texts and making calls? Businesses must still prepare to comply with the rest of the robocall/robotext consent requirements by April 11, 2025. The good news is that companies now have an additional year to implement systems that communicate revocations across different business units within the same company.Continue Reading FCC Approves Narrow Delay of New TCPA Revocation Rule
On Wednesday, the Supreme Court heard oral arguments in Federal Communications Commission v. Consumers’ Research (consolidated with SHLB Coalition v. Consumers’ Research), a case about the role of executive administrative agencies and congressional delegations of power to those agencies that could revitalize the long-dormant nondelegation doctrine.
This case has broad implications for administrative law generally, but for agencies that are empowered to assess fees or that delegate to private entities in particular. Notably, similar arguments about the doctrine were used to challenge some of the FTC’s more aggressive efforts under Lina Khan, former chair of the Federal Trade Commission (FTC) . An affirmance would invite more aggressive challenges to all sorts of agency actions where arguably Congress’s delegation is unclear or goes too far.Continue Reading Supreme Court Hears Oral Argument in Nondelegation Case Implicating the Powers of Administrative Agencies
In January the Eleventh Circuit vacated the Federal Communication Commission’s (FCC) one-to-one consent rule, finding that the agency exceeded its statutory authority under the Telephone Consumer Protection Act (TCPA). The latest development is that on February 19, 2025, the National Consumers League and some small business owners filed a motion to intervene in the case…
The Federal Communications Commission (FCC) under new chair Brendan Carr has issued an enforcement advisory addressing complaints that radio stations are coercing musical artists to perform for free at station events by threatening to reduce their airplay if they refuse.
The advisory warns that arrangements requiring performers to play at broadcast station events in exchange for airplay, particularly when coupled with threats of reduced airplay for non-compliance, could violate the FCC’s payola rules. These rules prohibit broadcasters from making programming decisions based on receiving anything of value without on-air disclosure of such consideration. A band’s coerced free performance could constitute such consideration and, if not disclosed during subsequent airplay, would violate payola policies.
The FCC characterized these practices as “covert manipulation of radio airplay,” noting that “[w]hen payola causes stations to broadcast programming based on their financial interests at the expense of community responsiveness, the practice is inconsistent with localism.” While commercial stations can negotiate increased airplay in exchange for event appearances, any agreement for free performances must be disclosed to listeners each time the artist’s songs are played.Continue Reading FCC Enforcement Advisory Issued Regarding Payola and the Sponsorship Identification Requirements
The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) agreed this week to cooperate and coordinate consumer protection efforts in enforcing the FCC’s reinstated “net neutrality” rules. The agencies stated in a Memorandum of Understanding that they will share legal, technical, and investigative expertise and experience in enforcing the rules.
The reinstated rules, adopted on April 25, formally reclassify internet service providers’ broadband services as “Telecommunications Services” under Title II of the Communications Act, rather than as a less-regulated Title I “Information service.” With this change in status, the FCC also reinstates specific proscriptive rules against blocking, throttling, or engaging in paid preference for certain network traffic, and re-adopts a “general conduct” standard barring unreasonable interference with consumers or providers that provide content and services.Continue Reading FCC and FTC to Cooperate in Enforcing Reinstated Net Neutrality Rules
On March 14, the Federal Communications Commission (FCC) adopted new rules that require cable television operators and satellite video providers to specify the aggregate monthly all-in price for video programming services on customer bills, any advertising, and all promotional materials in a “clear, easy-to-understand, and accurate single line-item.”
The price must include all charges for broadcast stations, sports programming, and any other programming. Other line items such as taxes, administrative fees, equipment fees, franchise fees, and fees for public, educational, and governmental (PEG) channels are not required to be part of the all-in price.Continue Reading FCC Adopts Video Service All-In Pricing Rules
Last week, the Federal Communication Commission’s (FCC) issued a Notice of Apparent Liability for Forfeiture proposing a $20 million forfeiture, essentially a fine, against two telecommunications service providers for failing to properly authenticate customers’ identity before providing online access to Customer Proprietary Network Information (CPNI). CPNI includes sensitive data, such as called phone numbers, the length and time of calls, and service features. FCC rules mandate that companies handling such information use “reasonable measures” to guard access to CPNI.
Because it would be easy for third parties to impersonate customers and gain access to their CPNI, FCC rules prohibit the use of readily available biographical information or account information. “Readily available biographical information” includes “information drawn from the customer’s life history and includes such things as the customer’s social security number . . . mother’s maiden name; home address; or date of birth.” Account information is “information that is specifically connected to the customer’s service relationship with the carrier, including such things as an account number or any component thereof, the telephone number associated with the account, or the bill’s amount.” FCC rules thus requires service providers to authenticate customer identity without the use of the above information and then require a password.Continue Reading FCC Proposes $20 Million Forfeiture Against Telecommunications Service Providers for Failing to Protect User Data
