Prior Express Consent

News & Analysis as of

The FCC Speaks Up and Cracks Down on TCPA Rules

For the first time since October 2013, the Federal Communications Commission (“FCC”) has issued new rules clarifying the Telephone Consumer Protection Act (“TCPA”). On June 18, 2015, the FCC held a public hearing to debate...more

Facial Recognition Technology: Social Media and Beyond, an Emerging Concern

This week, a major self-regulatory initiative intended to address privacy concerns associated with facial recognition technology hit a significant stumbling block. Nine consumer advocacy groups withdrew from the National...more

FCC Finds Fault in User Agreement and Issues Stern Guidance for Telemarketing Calls

June is proving to be a very active month for the US Federal Communications Commission (FCC) in construing the Telephone Consumer Protection Act, including what sorts of consumer interactions are sufficient to meet the...more

FCC Approves TCPA Clarifications that Increase Potential for Liability

The Federal Communications Commission, in a divided vote, approved an order clarifying several long-simmering Telephone Consumer Protection Act (TCPA) issues. While the order has not been officially released, the...more

One step closer to European privacy regulation? Five unsettled issues

EU Justice and Home Affairs ministers this week reached a general approach on the General Data Protection Regulation at their Council meeting. This means that, more than three years after the Commission’s initial...more

FCC Signals Enforcement of TCPA "Prior Express Written Consent" Rules

In a letter published on June 11, 2015, the Federal Communications Commission's (FCC) Enforcement Bureau expressed "serious concern" about PayPal's use of a website user agreement to obtain prior express written consent to...more

FCC Warns that Unilateral PayPal User Agreement Changes May Violate the TCPA

In advance of the FCC’s highly anticipated June 18 meeting, during which it is likely to vote on an omnibus order disposing of a wide range of pending petitions for declaratory ruling, the FCC’s Enforcement Bureau took an...more

TCPA FCC Petitions Tracker

Kelley Drye’s Communications Practice Group presents this comprehensive tracker of active Telephone Consumer Protection Act (“TCPA”) petitions before the Federal Communications Commission (“FCC”). With the recent increase in...more

Please Hold, Someone Will Be With You Shortly: FCC Action on Pending TCPA Petitions Expected Soon

Following on the heels of FCC Commissioner Michael O’Rielly’s stinging comments imploring the agency to address a backlog of petitions requesting clarification of its Telephone Consumer Protection Act (TCPA) regulations, FCC...more

FCC’s TCPA “Fact Sheet” Provides Little Hope for Relief Sought by Businesses

For several years, numerous businesses and industry groups have petitioned the Federal Communications Commission (“FCC”) to provide clarity to the Commission’s prior interpretations of the Telephone Consumer Protection Act...more

Nomi FTC Settlement Highlights Risks of Publicizing Company Privacy Policies

A closely divided Federal Trade Commission (“FTC” or the “Commission”) has signaled support for the agency’s recent focus on mobile device privacy. On April 23, 2015, the five-member Commission voted 3-2 to accept a proposed...more

What The Nomi Case Could Mean For Retail Tracking

In law school, everybody learns the adage that hard cases make bad law. When it comes to the Federal Trade Commission, a better aphorism might be, “easy cases make new law.” The FTC’s recent settlement with Nomi Technologies...more

Federal Court Denies Certification, Declines To Infer A Lack of Consent From A Lack Of Documentary Evidence Of Consent

The Middle District of Florida recently denied class certification because the plaintiff failed to prove that consent (or more to the point, an alleged lack of consent) could be established on a classwide basis. In doing so,...more

Florida Passes Drone Surveillance Bill To Protect Personal Privacy

On April 28, 2015, the Florida State Legislature passed SB 766, or better known as the Freedom from Unwarranted Surveillance Act, which permits commercial drone use, but bans the use of drones for the surveillance of private...more

FCC Cites Three Companies For Its Unwanted Robocalls

On May 4, 2015, the Federal Communications Commission (FCC) cited three companies, Call-Em-All LLC (Call-Em-All), Ifonoclast Inc. (Ifonoclast) and M.J. Ross Group Inc. (M.J. Ross) (Ifonoclast and M.J. Ross conduct business as...more

Texas Supreme Court Holds Plaintiffs Must Prove Lack of Consent in Trespass Suits

Potentially making it more difficult for plaintiffs to prevail on trespass claims in Texas, the Supreme Court of Texas held for the first time that a plaintiff bears the burden of proving the lack of consent in a suit for...more

Diversified Consultants, Inc. Successfully Strikes Fail-Safe Class Definitions In Putative TCPA Class Action

Kenneth Boyer filed a putative class action against Diversified Consultants, Inc. (“DCI”) and LiveVox, Inc., in the United States District Court, Eastern District of Michigan, alleging that DCI, through LiveVox, initiated...more

Obama For America Obtains Denial Of Class Certification In Putative TCPA Class Action

Lori Shamblin filed a putative class action against Obama For America, alleging that she had received two unsolicited telephone calls to her cellular phone that were made with an auto-dialer and used pre-recorded messages, in...more

Last Week to File for Retroactive Waiver of FCC Rule Requiring Opt-Out Notice on All Fax Advertisements

Any company that communicates by fax should strongly consider whether to request a retroactive waiver from the Federal Communications Commission (“FCC”) rule requiring that opt-out notice be included on all fax ads, including...more

Federal Order Addresses California Restrictions on When Wireless Providers Can Produce Documents Responsive to Subpoenas

A recent order from the U.S. District Court for the Northern District of Illinois affirms that California Public Utilities Code § 2891 applies to wireless telecommunications providers. The argument in that case focused on the...more

BakerHostetler Partner Alan Friel Talks Big Data and Data Collection [Video]

Alan Friel, Partner with BakerHostetler's Privacy and Data Protection team, talks about compliance programs for companies, consumer data collection, misrepresentation, and data security deficiencies....more

Can You Lawfully Prohibit Secret Recordings in the Workplace?

It is a safe bet that most if not all of your employees own a mobile or smart phone. It is also a safe bet that those phones have the capability of capturing pictures, taking video and recording conversations. ...more

Jury awards plaintiff $12,000 for Dish Network’s TCPA violations

On April 2, 2015, Ohio U.S. Magistrate Judge Stephanie K. Bowman ruled for the plaintiff, Benjamin Maraan, in his Telephone Consumer Protection Act (TCPA) case against Dish Network LLC (Dish). Maraan was awarded $12,000 for...more

What’s the Purpose of the Emergency Purpose Statutory Exemption?

As we’ve noted in the past, there are a number of TPCA petitions for declaratory ruling or requests for interpretation of the TCPA statute or FCC rules on a range of issues relating to the definition of an autodialer, seeking...more

The TCPA: Deep Dive: Details, Class Actions, Regulations, and Defense Strategies [Video]

In Part One of our complimentary, two-part webinar on the TCPA, we covered the basics. Join us for the second hour-long segment, as we get into the weeds of the TCPA. Part Two will cover: Exemptions/Details · What is an...more

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