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Legal Experts Expect Data Security Litigation to Face Challenges of Standing

Current precedent is unclear in data security litigation, say experts.

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Photo of Heather Elliott, professor at the University of Alabama School of Law

WASHINGTON, February 9, 2023 – Data security litigation, such as in robocall cases, is facing an increasingly steep burden to establish standing, the capacity to bring a lawsuit to court, said a panel of law experts on Wednesday.

Article III, which grants power to the judiciary branch, states that federal courts can only hear “cases or controversies,” which requires the plaintiff to have a legal right to sue. Standing requires that the plaintiff have a “concrete and particularized” injury.

For those lawsuits that represent the interests of a large number of people, standing becomes more complicated and data security is right at the forefront, said Aaron Weiss of Carlton Fields law firm at the Federal Communications Bar Association event.

Recent court decisions have relied heavily on an appeal to historical antecedent, said Heather Elliott, professor at the University of Alabama School of Law.

A 2016 Supreme Court decision – in which the plaintiff, Thomas Robins, accused “people search engine,” Spokeo, of sharing incorrect information about him – overruled the Ninth Circuit decision on the basis that the plaintiff could not prove that the injury was concrete.

Telephone Consumer Protection Act

The Federal Communications Commission has regulatory authority under the Telephone Consumer Protection Act to prohibit using automatic telephone dialing systems to call residential or cellular telephone lines without consent.

In 2018, John Salcedo brought a class action lawsuit against Alex Hanna, alleging that Hanna had violated TCPA by sending an unconsented automized text. The Eleventh Circuit determined that there was no concrete injury. Its verdict stated that “on text messaging generally… the judgement of Congress is ambivalent at best.”

On a similar case in 2021, however, the Fifth Circuit held that a single text message was the invasion of privacy that Congress intended to ban under the TCPA and delegated authority to the FCC to implement the law.

To further complicate the matter, state courts are under different jurisdiction and may rule separately from its circuit, said Weiss.

“It is very clear that the lower courts are super confused,” added Elliott.

The FCC is currently taking steps to combat telephone scammers. It ruled in November that straight-to-voicemail robocalls are calls under the TCPA and will be subject to the law’s consumer protections. According to the TCPA, read the commission’s ruling, the recipient of an automatic dialing system, artificial voice, or prerecorded message must provide affirmative consent prior to receiving it.

Major questions doctrine

The FCC, however, is itself facing uncertain regulatory authority. In June, the Supreme Court held that in “extraordinary cases” a federal agency, such as the FCC, must point to “clear congressional authorization” for the authority it claims.

Under the major questions doctrine, the Supreme Court can reject federal agency claims of regulatory authority when the issue is of “vast economic and political significance” and when Congress has not clearly endowed the agency with authority over the issue.

Representative Cathy McMorris Rodgers, R-Wash., is concerned with the legislative power that federal agencies have. “Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats,” she wrote in a letter to FCC Chairwoman Jessica Rosenworcel in October.

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Robocall

FCC’s Proposed Rules on Robotexts Will Limit Wireless Providers’ Effectiveness: Industry

The ruling would prevent providers from accessing emergency and government services, they say.

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Photo of Gregory Romano of AT&T

WASHINGTON, August 18, 2023 – Commenters argue that proposed Federal Communications Commission rules that seek to provide voice consumers more control over robocalls and robotexts would have harmful consequences by limiting their ability to communicate with service providers. 

The FCC released a notice of proposed rulemaking in June that would strengthen the consumers’ ability to revoke consent to receive robocalls and robotexts. It would ensure consumers can easily revoke consent to receive robocalls, require that callers honor do-not –call requests within 24 hours and allow wireless consumers the option to stop robocalls and robotexts from their own wireless provider.  

ACA International, a trade group for the debt collection industry, in conjunction with the Credit Union National Association recommended that the FCC codify reasonable limits on the methods of revocation of consent for robocalls and texts.  

The law, as currently written, would “ensure that revocation of consent does not require the use of specific words or burdensome methods” and codify a 2015 ruling that consumers who have provided consent may revoke it through any reasonable means. ACA International and CUNA asked the FCC to acknowledge the realities of revocation processes. 

“Automated processes cannot be programmed to recognize a virtually infinite combination of words and phrases that could reasonably be interpreted as a clear expression of consumers desire to stop further communications,” it said. The FCC should specify “reasonable means that callers can prescribe, such as a limited set of keyworks that are common synonyms of STOP, which is the universally recognized method to prevent further text messages.” 

Cable industry wants guidance on ‘reasonable methods’

Steven Morris, vice president at NCTA, the Internet and Television Association, added his support that the FCC should provide additional guidance on what it defines as “reasonable methods” of revoking consent and allow callers 72 hours to process opt-out requests. It also suggested that the FCC adopt its proposal to permit one-time texts seeking clarification on the scope of an opt-out request. 

“The FCC’s proposal that consumers be able to revoke consent using ‘any telephone number or email address at which the consumer can reasonably expect to reach the caller’ would also be incredibly complex and likely impossible to effectively administer,” NCTA said. 

Wireless trade association CTIA’s manager of regulatory Affairs Courtney Tolerico said in comments that the proposal severely limits providers ability to send important, service-related communications to subscribers and incentives providers to apply opt-outs unnecessarily broadly, further limiting these beneficial communications and “downgrading the wireless customer experience.” 

It claimed that “even if the FCC had such authority, doing so in the absence of demonstrated consumer harm would be arbitrary and capricious,” saying that the agency does not have reason to enforce laws that would hamper wireless carrier’s ability to serve customers. 

Verizon’s general counsel, Christopher Oatway, expressed the same sentiment, claiming that the FCC “provides no basis to conclude that wireless carriers are abusing their subscribers with unwanted calls or texts.” 

The proposal would “undermine the unique relationship between providers and their customer for wireless service, which today is crucial to Americans’ ability both to conduct their everyday lives as well as to access emergency services and government benefits,” said Verizon. It referred to federal programs like lifeline and ACP that promote connectivity, claiming that its communications with its own customers educates on federal benefit programs. 

‘No incentive’ for abuse by wireless providers, says AT&T

Gregory Romano, vice president and deputy general counsel at AT&T added that “there is no incentive for wireless providers to abuse the current wireless carrier exception,” referring to wireless carriers’ ability to contact their own customers. “The marketplace for consumer wireless service is highly competitive. Wireless providers do not want to annoy their customers with too many messages, or the provider is at risk of losing the customer to a competitor, which is clearly not in the provider’s interest.” 

In June, commenters pushed back against FCC proposed rules that would require mobile wireless providers to ban marketers from contacting a consumer multiple times based on one consent, claiming it will harm legitimate communications. 

Proposed rules are in response to the rising number of telemarketing and robocalls, sated the notice of proposed rulemaking.  

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FCC

FCC Proposed Rules Will Harm Legitimate Text Messages, Say Commenters

The rules would ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer.

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Photo from robotext lawsuit

WASHINGTON, June 6, 2023 – Commenters claim that the Federal Communications Commission’s proposed rules that would require mobile wireless providers to ban marketers from contacting a consumer multiple times based on one consent will harm legitimate communications. 

The new rules will set additional protections that would require the terminating provider to block texts after notification from the FCC that the text is illegal, to extend the National Do-Not-Call Registry’s protections to text messages, and to ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer based on one consent. Comments on the proposal were due in May and reply comments on June 6.

“Robocall campaigns often rely on flimsy claims of consent where a consumer interested in job listings, a potential reward, or a mortgage quote, unknowingly and unwillingly ‘consents’ to telemarketing calls from dozens – or hundreds or thousands – of unaffiliated entities about anything and everything,” read the comments from USTelecom trade association.  

Wireless trade association CTIA cited that Medicaid text messages that alert customers to critical health updates may be blocked by the ruling despite the FCC’s acknowledgement that these texts are critical. Many providers are unbending in enforcing robotext policies that mandate agencies must “satisfactorily demonstrate they receive prior express consent from enrollees to contact them.” 

CTIA’s comments claimed that the proposed rules would “do little to enhance existing industry efforts to reduce text spam or protect consumers.” 

Competitive networks trade association INCOMPAS claimed that the current framework is not well suited to allow the industry to universally resolve text messaging issues. “In the absence of standardized, competitively neutral rules, the current dynamics create perverse incentives that allow gamesmanship and arbitrage schemes as well as fraudulent behaviors to thrive.” 

USTelecom commended the FCC for taking these steps and suggested that it expressly ban the practice of obtaining single consumer consent as grounds for delivering calls to multiple receivers by issuing a decisive declaration rather than a rule change. Providing clear guidance will deprive aggressive telemarketers of the plausible deniability they rely on to put calls through, it said. 

The new language proposed in the notice is unnecessary and runs the risk of introducing new ambiguity by not eliminating perceived loopholes through a decisive declaration, read its comments. 

The Retail Industry Leaders Association claimed that the notice would “primarily and negatively impact those who send legitimate text message solicitations, not scam senders and bad actors.” The well-intentioned measures will sweep in legitimate text communications, it claimed, by reducing consumer control and making assumptions on their behalf. 

“Consumers use the DNC list to prevent unwanted telephone call solicitations. They do not expect that the DNC List will prevent normal and desired communications from legitimate businesses like RILA members,” it wrote.

In the event the FCC moves forward with the proposed rules, the RILA urged that the rules include “clear carve-outs or safe harbors” for legitimate solicitations. 

This comes as the FCC considers additional proposed rules that will strengthen consumer consent for robocalls and robotexts by allowing consumers to decide which robocalls and texts they wish to receive.

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Proposed Rules to Limit Unwanted Calls Will Not Protect Consumers, Says CTIA

The proposed rules will not protect consumers and will limit consumer’s ability to receive important messages from carriers.

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Image from DFT Communications

WASHINGTON, June 5, 2023 – Wireless trade association CTIA expressed concerns with provisions in the Federal Communications Commission’s Notice of Proposed Rulemaking released in May that would strengthen consumer consent for robocalls and robotexts by allowing consumers to decide which robocalls and texts they wish to receive.  

The draft proposals will not protect consumers and instead will “limit the ability of consumers to receive important, time-sensitive information about their wireless service,” said CTIA. These time-sensitive messages can include bill reminders, international roaming alerts, and fraud alerts, among others.  

The notice as currently written does not acknowledge any record support, policy reason or benefits that the proposed limitations to the current framework would deliver, read the report by CTIA. 

CTIA urged the FCC to add questions to the notice to clarify the unique relationship between wireless service providers and their consumers and the substantial consumer benefits that have resulted under the current framework. 

The action is a response to the rising number of telemarketing and robocalls, stated the Notice. “We believe the rules the commission adopts here strike an appropriate balance between maximizing consumer privacy protections and avoiding imposing undue burdens on telemarketers,” read the Notice. 

The Notice seeks to revise the current Telephone Consumer Protection Act rules and adopt new ones that would provide consumers with options for avoiding unwanted telephone solicitations. The ruling would include a national do-not-call registry for all telemarketing calls. 

 

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