As the world moves toward the rollout of fifth-generation, or 5G, wireless technology, the numbers of devices operating in many locations have grown exponentially. The Federal Communications Commission manages the commercial use of the radiofrequency spectrum – those invisible airways on which consumer and commercial wireless devices and networks operate. More wireless devices demand more use of the radio spectrum, leading the FCC to consider how to manage the spectrum more efficiently.

To that end, for the first time in two decades the agency may consider whether and how it may regulate receivers, which is the part of a wireless system that takes in transmissions of communications (e.g., voice, data). Poorly performing receivers make for inefficient spectrum use, limiting the FCC’s ability to cram more users into existing spectrum bands (a finite resource).

Late last year, the design of receivers made national news as the airline industry publicized concerns with possible interference to aircraft altimeters. An FCC decision to auction spectrum on an adjacent band to cellular carriers created concern that some altimeters could suffer performance degradation because these devices “listened” in to the adjacent band. The issue prompted the involvement of various parts of the Biden administration to step in and work out a short-term solution (for now) to modify the rollout of 5G services near airports.

Continue Reading Managing Wireless Technologies from Both Ends: FCC Considers Receiver Regulation

Last month, love was not all lost for the owner of Tinder and OKCupid when a Texas federal district court in FTC v. Match Group, Inc. granted in part the online dating service provider’s motion to dismiss. Specifically, the court agreed with Match that the FTC could not seek equitable monetary relief under Section 13(b) of the FTC Act and barred two claims based on Match’s immunity under the Communications Decency Act (CDA).

To set the scene, here is a recap of the legal landscape. In recent history, the FTC under Section 13(b) brought “proper cases” directly in federal courts without needing to conduct administrative proceedings. The agency also pursued permanent injunctions and equitable monetary relief.

In the past few years, courts have become increasingly less enamored with the FTC’s interpretation of its authority under Section 13(b). The first blow was FTC v. Shire Viropharma, Inc., in which the Third Circuit concluded that under Section 13(b), the FTC cannot base claims on “long-past conduct” alone, but must affirmatively plead facts that a defendant “is violating” or “is about to violate” the law, i.e., that there is “existing or impending conduct.”

Continue Reading FTC v. Match Group, Inc.: Court Gets Cold Feet on the Standard Set Forth in Shire

There have been scores of Florida Telephone Solicitation Act (FTSA) class actions filed since July 1, 2021, when the statute was amended to provide for a private right of action; the Florida legislature thinks that number may be more than 100. As might be expected, there are a number of motions to dismiss pending in FTSA litigations. Many make arguments regarding the constitutionality of the statute and/or that the law is preempted by its federal counterpart (the Telephone Consumer Protection Act (TCPA)). A couple of defendants also have argued lack of standing, i.e., that the receipt of one or two allegedly unsolicited, autodialed text messages does not constitute a sufficiently concrete injury to confer standing on the plaintiff.

Continue Reading First Florida Telephone Solicitation Act Dismissal Decision Issues, and It Has Virtually Nothing to Do with the Statute

Yesterday, the FCC modified its building inside wiring rules governing service provider access to apartment, condominium, and office buildings, otherwise known as multi-tenant environments or multiple dwelling unit buildings (MTEs). Note that in particular circumstances these rules can also apply to private real estate developments, trailer parks, and planned community developments located on private land.

Some background: Starting in 1993 FCC wiring rules have prohibited certain exclusive agreements between telecommunications providers and mul­tichannel video programming distributors and MTE building owners that grant the provider exclusive access to and rights to provide service to an MTE. Underpinning those rules is an FCC policy that exclusive access and service contracts harm competition and consumers by limiting service choice in MTE buildings.

Nonetheless, the rules had always made compromises that opened loopholes creating avenues to de facto exclusivity, and those loopholes were widely and creatively exploited. Over time, those loopholes have gradually been closed, and here the FCC takes its latest step to advance that closure.

Continue Reading FCC Acts to Prohibit Exclusive Service and Wiring Arrangements in Office, Condominium, and Apartment Buildings

Last weekend, New York Governor Andrew Cuomo declared a state of emergency in the State due to the coronavirus outbreak. That’s scary enough. But there is an equally scary and somewhat odd consequence of New York’s declared state of emergency: the recently enacted New York Nuisance Call Act kicks in automatically. As a practical matter,

As part of the 2019 year-end congressional appropriations wrap-up free-for-all, Congress adopted a new Section 642 of the Communications Act that significantly changes how a cable operator advertises and bills video subscribers. The law applies to both stand-alone video programming packages and the video portion of bundled plans that combine video programming with broadband Internet service.

Under the law, cable operators must change their billing practices as follows by June 20, 2020.

Continue Reading Congress Adopts New Cable Operator Advertising and Billing Requirements Affecting Both Video and Broadband Internet Offerings