Posted on November 8, 2011 by Mark Brennan

FCC Proposes $2.96 Million Forfeiture for TCPA Violations

The Federal Communications Commission (FCC) has released a Notice of Apparent Liability for Forfeiture (NAL) against Travel Club Marketing, Inc. (Travel Club) in the amount of $2.96 Million for apparent violations of the Telephone Consumer Protection Act (TCPA) and related FCC rules regarding the delivery of prerecorded messages, as well as its Caller ID rules.  This enforcement action serves as a reminder to companies placing autodialed calls or delivering prerecorded messages to ensure that such calls and messages comply with the TCPA and the FCC's rules.

In the NAL, the FCC found that Travel Club had apparently violated the TCPA and the FCC’s TCPA rules by delivering 144 unsolicited, prerecorded messages to 113 cellular telephone numbers.  Under the TCPA and the FCC’s implementing rules, the delivery of prerecorded messages to wireless telephone numbers is prohibited (absent an emergency) unless the caller has obtained “prior express consent” from the called party.  The FCC also found that Travel Club apparently violated the TCPA and related FCC rules by delivering 41 unsolicited, prerecorded advertising messages to the residential telephone lines (e.g., landlines) of 29 consumers.  The calls did not qualify for any of the exemptions to the TCPA restriction against the delivery of prerecorded calls to residential telephone lines.  

In addition, the FCC found in the NAL that Travel Club apparently violated section 64.1601(e) of the FCC’s rules, which requires that telemarketers transmit certain Caller ID information, including information that enables consumers to make do-not-call requests during regular business hours.

The FCC imposed the maximum penalty of $16,000 per call for each of Travel Club’s 185 apparent violations, for a total proposed forfeiture of $2,960,000.  Although the FCC has previously considered $4,500 per message to be an appropriate base amount for delivering an unsolicited, prerecorded message, it noted that it was imposing the maximum penalty because of the number of Travel Club’s “apparent willful, repeated violations” and its “apparent deceptive and evasive conduct.” 

Again, companies should ensure that their calling practices comply with the TCPA and the FCC’s rules, as well as FTC and state requirements.  Otherwise, they risk not only class action litigation, but also potential regulatory enforcement fines that are imposed on a per-call basis.
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Posted on March 16, 2010 by Mark Brennan

FCC Releases National Broadband Plan, Promotes Consumer Control Over Personal Information

The Federal Communications Commission released its long-awaited National Broadband Plan today, providing an aggressive roadmap for advancing affordable broadband deployment and adoption; stimulating economic growth; and boosting the nation's capabilities in education, healthcare, homeland security, and other areas.  The Plan also appears to confirm that the FCC is looking to take an expanded role in privacy-related consumer protection issues.

In the Plan, the FCC discusses a number of broadband privacy and data security issues focused on the protection of and consumer control over personal information.  For example, the FCC states 

 

[t]he collection, aggregation and analysis of personal information are common threads among, and enablers of, many application-related innovations...

 

and the Plan notes the value of services such as customized suggestions for movie rentals or books and more targeted and relevant advertising.  It cautions, however

 

many users are increasingly concerned about their lack of control over sensitive personal data.

 

The FCC then remarks:  

 

Innovation will suffer if a lack of trust exists between users and the entities with which they interact over the Internet.  Policies therefore must reflect consumers’ desire to protect sensitive data and to control dissemination and use of what has become essentially their “digital identity.”  Ensuring customer control of personal data and digital profiles can help address privacy concerns and foster innovation.

The FCC also makes several broadband privacy and data security recommendations in the Plan, including:

  • Encouraging Congress and the Federal Trade Commission (as well as the FCC) to clarify the relationship between users and their online profiles, including disclosure and consent requirements and data collection, sharing, storage, safeguarding, and accountability responsibilities;
  • Suggesting that Congress consider helping spur the development of trusted "identity providers" that can help consumers maximize the privacy and security of their data;
  • Having the FTC and FCC jointly develop principles to require that customers provide informed consent before broadband service providers share certain information with third parties (including account and usage information and other personally identifiable information); and
  • Prompting the federal government to put additional resources into combating identity theft and fraud and enhancing consumer online security.

In addition, the Plan includes several privacy and data security recommendations in the smart grid and cybersecurity areas, including a recommendation that states require utilities to "provide consumers access to, and control of, their own digital energy information, including real-time information from smart meters and historical consumption, price and bill data over the Internet."  If states fail to do so within 18 months, the Plan recommends that Congress consider national legislation.

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Posted on January 14, 2010 by Mark Brennan

FCC Seeks Comment on Numerous Broadband Privacy Issues

The Federal Communications Commission released a Public Notice this week seeking further comment on numerous privacy issues as part of its National Broadband Plan proceeding.  Based on questions raised in a recent Center for Democracy & Technology filing, some of the broad issues that the Notice seeks comment on include:

  • Consumer expectations of privacy, and how to meet those expectations as new technologies are deployed;
  • Building Privacy by Design;
  • Concerns surrounding the collection, use, and storage of transactional data; and
  • The regulation of third-party applications.

The FCC, which is working to complete the Plan and submit it to Congress by March 17, has thus far not focused extensively on how to protect consumer privacy and personal information in the broadband ecosystem.  This Notice, however, indicates that the FCC may be planning to highlight a number of privacy-related consumer protection issues in the Plan.  Moreover, depending in part on the comments received in response to the Notice, it could also open the door to future privacy and data protection proceedings at the FCC.

Comments are due on January 22, 2010, just over a week after the Commission issued the Notice.

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