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Libbie Canter represents a wide variety of multinational companies on privacy, cyber security, and technology transaction issues, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with global privacy laws. She routinely supports clients on their efforts to launch new products and services involving emerging technologies, and she has assisted dozens of clients with their efforts to prepare for and comply with federal and state privacy laws, including the California Consumer Privacy Act and California Privacy Rights Act.

Libbie represents clients across industries, but she also has deep expertise in advising clients in highly-regulated sectors, including financial services and digital health companies. She counsels these companies — and their technology and advertising partners — on how to address legacy regulatory issues and the cutting edge issues that have emerged with industry innovations and data collaborations.

The Federal Trade Commission will host a workshop on December 4, 2013 in Washington, DC to examine so-called “native advertising.”  This term refers to the practice of blending advertisements with news, entertainment, and other content in digital media and is sometimes also referred to as “sponsored content.”  As an FTC blog post explains, “[w]hatever the name, it’s for sure ads in digital media are starting to look a lot more like the surrounding content.  What are the consumer protection implications now that those lines appear to be blurring?”

According to the Commission, the workshop builds on previous Commission initiatives, such as the Dot Com Disclosures guidance and the Endorsements and Testimonials guidance, to “help ensure that consumers can identify advertisements as advertising wherever they appear.”  The FTC noted a number of questions and topics that may be covered at the workshop, including:

  • What is the origin and purpose of the wall between regular content and advertising, and what challenges do publishers face in maintaining that wall in digital media, including in the mobile environment?
  • In what ways are paid messages integrated into, or presented as, regular content and in what contexts does this integration occur?  How does it differ when paid messages are displayed within mobile apps and on smart phones and other mobile devices?
    Continue Reading FTC Announces Workshop To Examine Native Ads

Yesterday, the U.S. Senate Subcommittee on Consumer Protection, Product Safety and Insurance held a hearing entitled, “Stopping Fraudulent Robocall Scams: Can More Be Done?”   The hearing takes place two weeks after the FTC celebrated the ten-year anniversary of the its implementation of the Do Not Call Registry and on the heels of the FTC’s recent announcement that Mortgage Investors Corporation has agreed to pay $7.5 million (the largest Do Not Call fine the FTC has ever collected) to resolve FTC allegations that it violated provisions of the FTC’s Telemarketing Sales Rule (TSR).  The Federal Communications Commission, which has authority under the Telephone Consumer Protection Act of 1991 (TCPA) to regulate prerecorded and auto-dialed calls, shares jurisdiction with the FTC over so-called robocallers.

Witnesses from both agencies participated in the hearing and highlighted their respective enforcement efforts.    Lois Greisman, Associate Director, Division of Marketing Practices, Bureau of Consumer Protection, FTC, noted that there have been 105 FTC enforcement actions since the Commission began enforcement of the Do Not Call provisions.  Eric Bash, Associate Bureau Chief, Enforcement Bureau, FCC, noted that the FCC has issued more than 500 citations for robocall violations pursuant to its authority under the TCPA.  Mr. Bash’s written testimony describes the FCC’s enforcement authority:

In this day and age of heavy mobile phone use, it may be worth repeating that the FCC’s rules flatly prohibit all autodialed or prerecorded calls to mobile phones made for a non-emergency purpose without the called party’s permission. It does not matter whether the call is to persuade the called party to buy some thing or to support some cause. And, despite common mischaracterizations of the law, it does not matter whether the called party is charged for the call, or whether the content of a message is blasted by text or voice. (The FCC has been clear that “autodialed” text messages fit within the restriction.)

The applicability of the FCC’s rules to text messages has been the source of a significant volume of litigation.

Mr. Bash urged Congress to give the FCC the authority to pursue robocall violators without having to issues citations, expand the statute of limitations from one year to two, extend robocall prohibitions outside of U.S. jurisdiction, and give the FCC authority over third-party spoofing providers. 
Continue Reading FTC, FCC Testify Before Senate On Robocall Fraud

In response to recommendations by the mHealth Task Force, the Federal Communications Commission has launched a new website to serve as a central repository for the FCC’s health care-related work and is searching for a new position to coordinate the agency’s health care technology-related initiatives.   Chairman Genachowski convened the FCC’s first mHealth Summit earlier this year to discuss the “promise of mobile devices to improve health care and lower costs. “   Participants in the summit formed an independent mHealth Task Force, which made a number of policy recommendations to the FCC, including the the appointment of a Director of Health Care Initiatives.  The Commission is now seeking to fill that position, which it says is an important step in the FCC’s ongoing mission to expand access to health care applications through wired and wireless broadband.   The mHealth Task Force report also recommended that the Commission comprehensively reform and modernize the Rural Health Care Program.

According to the FCC, the Director of Health Care Initiatives will spearhead the following health-related initiatives for the FCC:


Continue Reading FCC Begins Implementing mHealth Task Force Recommendations

The Federal Communications Commission yesterday released a Smartphone Security Checker, a tool designed to help consumers secure their smartphones against mobile security threats.  The tool provides consumers with tips that are customized for four different mobile operating systems.  Many of tips focus on security-related topics.  For instance, the tool recommends that consumers set a

Earlier this week, Google Inc. and Rosetta Stone Inc. settled their dispute over whether the sale of Rosetta Stone’s name to third parties for search-engine advertising constitutes an infringing use of Rosetta Stone’s trademark.  Google’s AdWords advertising platform permits third parties to purchase “sponsored links” that are shown to users whose online searches include certain keywords.  Rosetta Stone filed suit in 2009, alleging both direct and secondary trademark infringement based on Google’s sale of its name as a keyword used for this purpose.  Although the terms of the settlement have not been made public, Rosetta Stone announced that they will work together with Google to “meaningfully collaborate to combat online ads for counterfeit goods and prevent misuse and abuse of trademarks on the Internet.” 

In 2010, the Eastern District of Virginia granted Google summary judgment in the dispute, but the Fourth Circuit vacated that decision earlier this year.  In evaluating the direct infringement claim, the Court focused on the question of whether Google’s actions were likely to cause consumer confusion.  Even though Google itself was not passing off any goods or services as Rosetta Stone’s, the Fourth Circuit  concluded that a reasonable trier of fact could find that Google “intended to create confusion” based on “knowledge that confusion was very likely to result from its use of the marks.”  The court also cited evidence that consumers had in fact purchased counterfeit Rosetta Stone software from sponsored links that they mistakenly believed were authorized by Rosetta Stone.  The Fourth Circuit further held that evidence that Google allowed known infringers and counterfeiters to bid on Rosetta Stone’s marks as keywords was sufficient to withstand summary judgment on the contributory infringement claim.
Continue Reading Google Settles Search Engine Advertising Litigation With Rosetta Stone—But Sponsored Advertising Disputes Will Likely Persist

Cable operators are turning to federal courts of appeal to challenge Federal Communications Commission activity relating to Section 616 of the Communications Act, which — along with the FCC’s implementing rules — prohibits vertically integrated cable operators  from discriminating against unaffiliated cable networks.  

Comcast Appeals Carriage Decision to D.C. Circuit

Comcast has filed a petition for review to the D.C. Circuit in connection with its carriage dispute with the Tennis Channel.  In a decision that marked the first time an independent cable network has prevailed under Section 616 since the statute was passed two decades ago, the Commission concluded earlier this year that Comcast discriminated against Tennis Channel in favor of its wholly-owned networks, Golf Channel and Versus (now re-named the NBC Sports Network), in violation of Section 616.  The Commission ordered Comcast to carry Tennis Channel “on the same distribution tier, reaching the same number of subscribers, as it does Golf Channel and Versus.”  It declined, however, to order Comcast to carry Tennis Channel on a channel position “very close” to Golf Channel and Versus.  Comcast is now appealing the decision, and while the FCC denied a motion filed by Comcast to stay its order, a separate motion to stay is pending before the D.C. Circuit.  Covington represented Tennis Channel in this proceeding.

Second Circuit To Consider Challenge To Program Carriage Rule Changes

Separately, the National Cable & Telecommunications Association and Time Warner Cable, Inc. have filed reply briefs to the Second Circuit Court of Appeals in their consolidated challenge to changes to the FCC made to its implementing rules (known as the “program carriage rules”) in 2011.  The Second Circuit has tentatively scheduled oral argument in the case for the week of October 1. 

Last year, the FCC changed its program carriage rules last year in several respects:


Continue Reading Cable Operators Challenge FCC On Program Carriage Decision And Rule Changes

Last week, the Seventh Circuit found that copyright owners are unlikely to establish that a social bookmarking service is liable for contributory copyright liability, overturning a preliminary injunction granted by the district court.  In an opinion by Judge Richard Posner, the court concluded that merely referring or linking users to an online location containing infringing material is not sufficient to trigger contributory liability. 
Continue Reading Seventh Circuit Reverses Contributory Copyright Liability Ruling

Last week, a federal district court declined to enjoin Aereo’s “Watch Now” streaming service pending the outcome of a full trial in the copyright infringement law suit filed by the major networks and broadcast stations serving the New York DMA against Aereo. The parties sought to enjoin Aereo from streaming their programming for the duration of the trial because, they argued, they were likely to succeed on the merits. The court’s denial of their request for a preliminary injunction means that Aereo is free to continue with it service for the duration of the trial. The decision adds to the confusion around the degree to which broadcast signals may be streamed online and to mobile devices.

In last week’s decision, the court agreed with Aereo that its “Watch Now” streaming service works much like the remote storage DVR (“RS-DVR”) service offered by Cablevision and which the Second Circuit upheld against claims of copyright infringement in a separate decision last year. The RS-DVR service at issue in that case stored programming designated by consumers for recording on servers maintained remotely by Cablevision. Consumers could playback those programs through their home television sets using a remote control and a standard cable box equipped with the RS-DVR software. Key to the finding that the RS-DVR did not infringe upon copyright was the fact that when a consumer selected a program to be recorded to the RS-DVR, a “unique copy” of the program was saved for the consumer on the RS-DVR server. It was that “unique copy” which in turn was played back to the consumer when he or she requested it ― meaning there was no infringing “public performance.”  The Second Circuit’s decision is legally binding in New York, Vermont, and Connecticut.


Continue Reading District Court Declines To Shut Down Video Streaming Service