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Rafael Reyneri is an associate in the firm’s Washington, DC, office. He is a member of the Communications and Media and Data Privacy and Cybersecurity practice groups. Before joining the firm, he clerked for Judge Andre Davis on the U.S. Court of Appeals for the Fourth Circuit and Judge Margo Brodie on the U.S. District Court for the Eastern District of New York. Prior to law school, he was a Legislative Assistant for Congressman Jared Polis.

On December 30, 2020, the Federal Communications Commission (“FCC”) released a Report and Order (“Order”) that imposed certain new restrictions on nonmarketing prerecorded calls to residential lines.  The action was in response to Congress’s mandate in the TRACED Act that the FCC reevaluate certain exemptions the agency previously granted regarding the consent requirements for prerecorded calls under the Telephone Consumer Protection Act (“TCPA”).


Continue Reading FCC Imposes New Requirements on Nonmarketing Prerecorded Calls to Residential Lines

Last week, the Federal Communications Commission (FCC) issued a notice of proposed rulemaking (NPRM) seeking comment on a proposal to review and potentially revise a number of existing exemptions that the FCC has adopted with respect to certain Telephone Consumer Protection Act (TCPA) requirements.  The FCC’s review could end up narrowing or eliminating some of these longstanding exemptions, imposing consent requirements or other obligations that today are not required for certain kinds of calls and texts.

Continue Reading FCC Reevaluating Certain TCPA Compliance Exemptions

Today, the Supreme Court issued its decision in Barr v. American Association of Political Consultants, which addressed the constitutionality of the Telephone Consumer Protection Act (TCPA).  Although the Court splintered in its reasoning—producing four separate opinions—the justices nevertheless coalesced around two core conclusions: (1) the TCPA’s exception for government debt collection calls is unconstitutional, and (2) the exception can be severed from the rest of the TCPA.  Six justices determined that the TCPA’s government-debt exception violates the First Amendment, and seven justices concluded that the exception is severable from the rest of the statute.  The end result is that the government-debt exception is invalid but the rest of the TCPA—including its general prohibition on automated calls and text messages to mobile numbers—remains intact.  The narrow scope of this ruling suggests that it may have limited practical effect for most parties.

Continue Reading Supreme Court Invalidates TCPA Government-Debt Exception

Earlier this week, the Federal Communications Commission’s (FCC’s) Consumer and Government Affairs Bureau released a Declaratory Ruling clarifying the agency’s interpretation of the “Automatic Telephone Dialing System” (an “autodialer” or “ATDS”) definition in the Telephone Consumer Protection (TCPA).  The Ruling clarified that, in the context of a call or text message platform, the definition does not turn on whether the platform is used by others to transmit a large volume of calls or text messages; instead, the relevant inquiry is whether, in this context, the platform is capable of transmitting calls or text messages without a user manually dialing each such call or text message.

Continue Reading FCC Issues Two TCPA Declaratory Rulings, One Clarifying Autodialer Definition

Yesterday, the Supreme Court granted certiorari in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, No. 17-1705.  The case began when Carlton & Harris sued PDR Network for alleged violations of the commercial fax provisions of the Telephone Consumer Protection Act (“TCPA”).  The Fourth Circuit ruled in Carlton & Harris’s favor, relying on an interpretation of the TCPA issued by the Federal Communications Commission (“FCC”).  The Supreme Court granted PDR Network’s petition to review that ruling, but limited its review to a single question: whether federal courts are bound to accept a federal agency’s interpretation of a statute such as the TCPA without considering the validity of that interpretation.  The case has important implications for administrative law that are not limited to the TCPA or to the FCC.
Continue Reading Supreme Court to Hear Case Regarding Deference to Federal Agencies on Statutory Interpretation

CTIA, the U.S. wireless industry’s trade association, recently announced the creation of a cybersecurity certification program for Internet of Things (IoT) devices that connect to the internet via LTE or Wi-Fi.  The program permits device makers to submit such IoT devices for testing by CTIA-authorized labs in order to obtain a certification of compliance with respect to cybersecurity.

Continue Reading IoT Update: U.S. Wireless Industry Establishes IoT Security Certification Program

Earlier this week, the National Telecommunications and Information Administration (NTIA), the executive branch agency responsible for telecommunications and information policy, released a Notice of Inquiry requesting that any interested party—including the private sector, technical experts, academics, and civil society—help the agency determine its international internet policy priorities. In particular, NTIA is seeking comments and recommendations regarding four topics: (1) the free flow of information and jurisdiction, (2) the multistakeholder approach to Internet governance, (3) privacy and security, and (4) emerging technologies and trends.

Continue Reading IoT Update: NTIA Requests Comments Regarding International Internet Policy

The House Energy and Commerce Committee’s Subcommittee on Digital Commerce and Consumer Protection held a hearing this week to discuss the State of Modern Application, Research, and Trends of IoT Act (SMART IoT Act). This proposed legislation would direct the Secretary of Commerce to conduct a comprehensive study of the IoT industry and Federal agencies with jurisdiction over the IoT industry, as well as all IoT regulations and policies implemented by those agencies. The SMART IoT Act would also require the Secretary of Commerce to produce a report to Congress within one year of the bill’s enactment, detailing the results of the study and recommendations for enabling the secure growth of IoT.  Although this legislation has not yet been formally introduced, the Subcommittee on Digital Commerce and Consumer Protection has published the bill’s full text as well as a summary.

Three witnesses testified:

  • Tim Day, Senior Vice President, Chamber Technology Engagement Center, U.S. Chamber of Commerce;
  • Michelle Richardson, Deputy Director, Freedom, Security, and Technology Project, Center for Democracy and Technology; and
  • Dipti Vachani, Vice President, Internet of Things Group, General Manager, Platform Management and Customer Engineering, Intel Corporation

At the hearing, the SMART IoT Act drew broad support from all of the witnesses as well as from members on both sides of the aisle. However, there were differing opinions regarding the focus of the study called for by the SMART IoT Act, as well as the next steps that Congress should take with respect to IoT.
Continue Reading IoT Update: Congress Hears Testimony on IoT Legislation

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