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Early this week, the Federal Communications Commission (FCC) announced it had fined the largest U.S. wireless carriers for sharing access to customers’ geolocation information without consent and without taking reasonable measures to protect against unauthorized disclosure. These Forfeiture Orders follow the issuance of Notices of Apparent Liability for Forfeiture and Admonishment by former Chairman Ajit Pai in 2020, and subsequent agency investigation by the agency’s Privacy and Data Protection Task Force.

The orders buttress FCC Chairwoman Jessica Rosenworcel’s consumer protection agenda, which includes launching the Privacy and Data Protection Task Force last year. The FCC has been increasing its regulatory oversight under the task force, which it described as “an FCC staff working group focused on coordinating across the agency on the rulemaking, enforcement, and public awareness needs in the privacy and data protection sectors, including data breaches (such as those involving telecommunications providers) and vulnerabilities involving third-party vendors that service regulated communications providers.”Continue Reading FCC Fines Major Wireless Carriers $200 Million for Sharing Customer Geolocation Data

Last month, the Supreme Court of Maryland delivered a pivotal ruling defining the scope of the Maryland Telephone Solicitations Act (MTSA), holding that the act extended to inbound calls initiated by consumers who engaged with merchant advertisements. The Maryland Supreme Court also confirmed that the Maryland Public Service Commission can enforce the MTSA against covered entities.

The case, In the Matter of Smart Energy Holdings, LLC D/B/A SmartEnergy, originated in response to customer complaints to the Public Service Commission’s Consumer Affairs Division (CAD) alleging that their bills were excessive and that they were unable to cancel their service with SmartEnergy, a provider of 100% green energy. After proceedings before an administrative law judge, the Public Service Commission held:Continue Reading The Power of Customer Calls: Maryland Supreme Court Upholds Public Service Commission’s Interpretation of the Maryland Telephone Solicitations Act

In late January, the Federal Trade Commission (FTC) and Justice Department (DOJ) announced a collaborative effort to update their instructions regarding preservation of electronic communications to targets of pre-litigation information requests in antitrust investigations. The agencies’ new instruction makes clear that targets must preserve ephemeral messages and threatens civil or criminal sanctions for failure to do so.

A number of popular messaging platforms—both text and email—allow users to send messages that are erased and permanently disappear either immediately or shortly after the recipient reads the message. SnapChat and Slack are common examples of apps that give users the option of ephemeral messaging. Some of these apps use end-to-end encryption to prevent third-party providers from accessing the communications. For example, Signal and Proton Mail are prevalent messaging and email platforms used for their ephemeral messaging capabilities.Continue Reading The FTC’s and DOJ’s New Magic Act: Vanished Messages Will Reappear in Discovery

As we recently previewed, the Federal Communications Commission (FCC) published its Proposed Rule that would codify its updated guidance on the Telephone Consumer Protection Act (TCPA). The TCPA regulates calls and text messages sent using automated technology and is frequently litigated. Below are the major proposed rule changes on which the FCC seeks comment.Continue Reading FCC Releases Proposed Rule for Codifying Updates to the TCPA

At the tail end of 2022, the Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking (NPRM) seeking comment on proposals to streamline the processing of satellite and Earth station applications under Part 25 of its rules. FCC Chairwoman Jessica Rosenworcel explained that “the new space age needs new rules,” given the growing space economy, and that the public and private sectors will need to collaborate better.

Innovations in the space industry, from low Earth orbit (LEO) constellations to developments in in-space servicing and manufacturing (ISAM), have led to an influx of satellite and gateway Earth station applications in recent years. The impact? Greater demand on the agency’s resources and longer and less predictable wait times for its review and grant of applications. In fact, the rapid rise in the number of satellites being launched, coupled with the novelty and complexity of many of the new systems and spacecraft, caused Rosenworcel to announce plans to create a Space Bureau at the agency.Continue Reading FCC Planning New Rules to Streamline Satellites and Earth Station Applications

Just weeks after President Biden and Chinese leader Xi Jinping met face-to-face to restore dialogue between the two countries, the Federal Communications Commission adopted new rules that could limit national security threats posed by Chinese-made communications and electronic devices. The FCC said last week it adopted the new rules “to further secure our communications networks and supply chains from equipment that poses an unacceptable risk to national security.”

The rules will prohibit market access of certain equipment in the United States by banning the authorization of items the FCC believes pose national security concerns. The agency said it will do this by expanding the devices, communications equipment, and entities placed on its “Covered List” and require those seeking equipment authorization to state that they are not putting those items into the market.Continue Reading U.S.-China Relationship: Assessing the Risk of Marketing Electronics Made Outside the United States

For those embroiled in Telephone Consumer Protection Act (TCPA) class action litigation, the sum of the damages may not necessarily equal the whole.

In Wakefield v. ViSalus, Inc., the plaintiff and certified nationwide class obtained a jury verdict that defendant made 1,850,440 prerecorded message calls without the then-heightened prior express consent to make such calls. Because the TCPA’s minimum statutory damages are $500 per unlawful prerecorded message call, the damages award was a whopping $925,220,000.

After trial, ViSalus challenged, among other things, the damages award as unconstitutionally excessive. Specifically, ViSalus did not argue that the TCPA’s $500 per violation statutory penalty is unconstitutional in a vacuum, but, rather, that the “aggregate award” is so “severe and oppressive” that it violated ViSalus’s due process rights. Last Thursday, the Ninth Circuit agreed.Continue Reading Ninth Circuit Rules That TCPA Aggregated Statutory Damages Might Be Unconstitutionally Punitive

Last week, courts issued two new Florida Telephone Solicitation Act (FTSA) decisions. We’ve been covering the sprawl of FTSA cases filed since the statute was amended to allow for a private cause of action in July 2021. Both of last week’s decisions were on motions to dismiss.

First, on September 13, 2022, the Middle District of Florida gave FTSA defendants their first win in Davis v. Coast Dental Services, LLC. There, the plaintiff, using a form complaint that her attorneys often use in other FTSA cases, alleged that the defendant used a “computer software system that automatically selected and dialed” her telephone and sent a single marketing message to her (from a ten-digit phone number) about its dental services without her prior express written consent.Continue Reading FTSA Dismissal Decisions Update: One Win, One New Loss