Tonia Klausner

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ThinkstockPhotos-503916682-webOn July 10, 2015, the Federal Communications Commission (FCC) released its long-anticipated Declaratory Ruling and Order1 addressing twenty-one petitions and requests seeking clarification of, and relief from, various provisions of the Telephone Consumer Protection Act (TCPA) and the FCC’s implementing regulations.2 The order provides some much-needed clarity in certain areas, but commentators have generally concluded that the order has broadened the reach of the TCPA and inserted uncertainty in other areas, making calling or texting consumers an increasingly risky business practice.
Continue Reading FCC Issues Omnibus TCPA Declaratory Ruling and Order Addressing Numerous Issues Regarding Calling and Texting Consumers

Online interest-based advertising, sometimes called behavioral advertising, is big business. Advertisers—and the technology companies that make this business possible—use information collected from a particular computer or device, over time and across others’ websites, to predict preferences and target and display advertising that is most likely to interest the user.

With encouragement from the Federal Trade Commission,1 online advertising industry organizations adopted a set of “Self-Regulatory Principles for Online Behavioral Advertising (OBA Principles),”2 which apply to members of those organizations: the ad networks, advertising agencies, service providers, and web publishers that engage in or facilitate the collection of online user data across websites for purposes of interest-based advertising. The Better Business Bureau (BBB) enforces the OBA Principles through its Online Interest-Based Advertising Accountability Program (Accountability Program). Recent action by the BBB reflects its commitment to vigorously enforce the OBA Principles.
Continue Reading Better Business Bureau Keeps Promise of Vigorous Enforcement of Online Interest-Based Advertising Accountability Program

During the past decade, there has been an explosion in class action litigation under the Telephone Consumer Protection Act (TCPA),1 a well-intended statute meant to address abusive telemarketing practices. As of late, many of these suits are based on calls or text messages to cell phones. The TCPA prohibits non-emergency calls (interpreted by the FCC to include text messages) to a cell phone made using an “automatic telephone dialing system” without the prior express consent of the called party.2 A perceived ambiguity in what type of equipment qualifies as an “automatic telephone dialing system” has fueled these litigation fires and has led to hundreds of cases being filed against companies that do not use telemarketing equipment but communicate with their users or facilitate their users’ communications via text message. An end to the litigation explosion in this area may be just around the corner as federal appellate courts consider the issue.
Continue Reading Appellate Courts to Address What Constitutes an “Automatic Telephone Dialing System” Under the TCPA

On March 27, 2014, the Federal Communications Commission (FCC) addressed an outstanding petition1 seeking guidance for compliance with the “prior express consent” requirement of the Telephone Consumer Protection Act (TCPA) for informational text messages.2 In a declaratory ruling, the FCC provided clarification of this requirement, and specifically addressed whether an intermediary may provide such consent. The FCC agreed with group texting service GroupMe, Inc. that, consistent with the TCPA, intermediaries may convey consent provided by others to receive informational text messages.3 However, the FCC made clear that companies ultimately remain liable where intermediaries fail to obtain the required consent. The ruling demonstrates a current trend at the FCC to allow businesses communicating with consumers by text message some flexibility while navigating the TCPA’s increasingly complex requirements.
Continue Reading FCC Clarifies That Consent May Be Provided by Intermediary for Informational Text Messages

Congress enacted the Telephone Consumer Protection Act (TCPA)1 on December 20, 1991, to address certain telephone and facsimile marketing practices that Congress found to be an invasion of consumer privacy. In general, and among other things, the TCPA prohibits unsolicited fax advertisements and automated or prerecorded calls (interpreted to include text messages) to cellular telephones or other devices for which the consumer would bear the cost of the call.2 Congress vested the Federal Communications Commission (FCC) with authority to issue regulations implementing the TCPA. Pursuant to that authority, the FCC has issued a series of detailed and complex rules and regulations interpreting and implementing the statute’s requirements.
Continue Reading TCPA Update: Recent Decisions and Significant Upcoming Change to TCPA Rules

New Self-Regulatory Guidance Joins Other Privacy and Transparency-Related Considerations for Participants in the Mobile Ecosystem

On July 24, 2013, the Digital Advertising Alliance (DAA), comprised of the largest media and marketing trade associations in the U.S., released new guidance regarding mobile and other devices (Mobile Guidance).1 The Mobile Guidance explains how the DAA’s existing Self-Regulatory Principles for Online Behavioral Advertising (OBA Principles)2 and Self-Regulatory Principles for Multi-Site Data (MSD Principles)3 (together, the DAA Principles) apply to companies operating in the mobile ecosystem. It sets forth specific requirements for the collection and use of precise location information, as well as two new categories of data: “cross-app data” and “personal directory data.”
Continue Reading Digital Advertising Alliance Releases Guidance on the Application of Its Self-Regulatory Principles to the Mobile Environment