Legislative Activity

White House Reportedly Working On Online Privacy Bill

The Obama administration is reportedly drafting legislation aimed at bolstering online privacy safeguards for consumers. According to trade press reports, the administration’s bill is expected to build on the Consumer Privacy Bill of Rights, released by the White House last year. The bill will reportedly define privacy rights and convene Internet companies and consumer advocates to establish industry codes of conduct. While the legislation has not been finalized, the White House is reportedly in the process of attempting to build congressional support for the proposal. The White House’s renewed effort on privacy comes at a time when European Union officials have been calling on the U.S. government and U.S. Internet companies to strengthen baseline privacy laws. Recent disclosures of the National Security Agency’s surveillance practices also have increased pressure on the U.S. government to adopt stronger data protection and privacy laws. The issue is not a top legislative priority on Capitol Hill, however, and the Internet industry continues to push for self-regulation.

Senate Commerce Committee Meeting Postponed

Given the commencement of last week’s government shutdown, the Senate Committee on Commerce, Science and Transportation postponed an executive session scheduled for last Thursday, October 3, to consider the nomination of Michael O’Rielly to serve as a commissioner of the Federal Communications Commission (FCC), in addition to several other nominations. At the time of publication, the committee has not yet announced when it will reschedule the executive session.

Regulatory Activity

FCC Closed Due To Government Shutdown; Filing Deadlines Postponed

Last Tuesday, October 1, the FCC announced that it would be closed during the government shutdown, except for emergency duties, and that its online systems would be unavailable until further notice. As a result, filing deadlines during the government shutdown have been postponed. The FCC released a public notice explaining that any materials that otherwise would be required to be filed with the FCC during the government shutdown will be due on the business day following the day of return to normal government operations.

FCC Announces Tentative Agenda For October Open Meeting

Just ahead of the government shutdown, the FCC released a tentative agenda for its open meeting scheduled for October 22. The agenda includes the following items:

  1. Rural Call Completion: The FCC will consider a Report and Order and Further Notice of Proposed Rulemaking to address problems associated with completion of long distance calls to rural areas;
  2. Promoting Interoperability in the Lower 700 MHz Band: The FCC will consider a Report and Order that implements an industry solution to provide interoperable service in the lower 700 MHz band; and
  3. Implementing the Public Safety Broadband Provisions of the Middle Class Tax Relief and Job Creation Act of 2012: The FCC will consider a Report and Order adopting technical rules for the 700 MHz broadband spectrum licensed to the First Responder Network Authority.

New TCPA Requirements Take Effect

New requirements under the Telephone Consumer Protection Act (TCPA) take effect on October 16. Under the new rules, companies must obtain “prior express written consent” before making a telemarketing call to a wireless number (either consumer or business) using an automated dialing system or an artificial or prerecorded voice. Similar consent must be obtained before calling a residential landline phone using an artificial or prerecorded voice to deliver a telemarketing message. The term “prior express written consent” is specifically defined in the FCC’s new rules as a written agreement, signed by the person receiving the call or text, with a “clear and conspicuous disclosure” that specifically authorizes the seller to send telemarketing communications using an automatic telephone dialing system or an artificial or prerecorded voice. Also, the disclosure must specifically note that the person is not required to sign the agreement as a condition of purchasing any property, goods, or services.

Federal Court Provides Important TCPA Clarification

The TCPA contains various regulations related to outbound calls, including most calls using an autodialer to a wireless number. An autodialer is defined as equipment with certain “capacity,” but the question of whether “capacity” means “future ability” or “present ability” to perform certain functions has been hotly contested in courts and at the FCC. A recent federal court decision held that “capacity” means present ability: “[A] system must have a present capacity, at the time the calls were being made, to store or produce and call numbers from a number generator.” The court noted that while a defendant can be liable if it has an autodialer (even if it is not using that autodialer), “it cannot be held liable if substantial modification or alteration of the system would be required to achieve that capability.” See Hunt v. 21st Mortgage Corporation, Case 2:12-CV-2697-WMA (N.D. Alabama Sept. 17, 2013).