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Tuesday, July 25, 2017, 4:08 PM

Does GDPR Apply to You?

Posted by: Bruce Buchanan
By Ted Claypoole


10 Months To Go


The EU’s General Data Protection Regulation goes into effect on May 25, 2018. GDPR replaces the EU Data Protection Directive. GDPR can apply to US-based businesses even if they do not have offices or employees in the EU. It can also reach activities conducted outside the EU.
The Directive did not regulate US businesses unless the collection or processing occurred within the EU (e.g., if a US-based company had a data center in the EU). Now GDPR clearly has stronger extraterritorial reach than its predecessor.

Businesses collecting and using personal data should know their GDPR obligations. Violators of GDPR face steep penalties. Regulators can fine a company up to 20,000,000 euros or 4% of worldwide annual turnover, whichever is higher.

Follow our three-question flowchart to see if GDPR applies to your company.

Thursday, July 6, 2017, 4:18 PM

Canadian Government Suspends Implementation of Private Right of Action Under CASL

Posted by: Bruce Buchanan
By Doug Bonner & Taylor Ey


Our previous alert regarding changes to Canada’s Anti-Spam Legislation (“CASL”) previewed two important changes that were to come into effect as of July 1, 2017:


  • The end of the transition period under CASL, during which companies could rely on implied consent for sending “commercial electronic messages” in certain instances; and
  • A private right of action for violations of CASL
On June 2, 2017, the Government of Canada suspended the implementation of the private right of action provision.  The private right of action will not come into effect unless and until the government takes further action to implement it.  According to its press release on June 7, 2017, the Canadian Government will ask a parliamentary committee to review the private right of action provision, and hopes to strike a balance between consumer protection and legitimate business marketing activity, that is, protecting Canadians from spam while allowing entities such as businesses, charities and non-profits to communicate with Canadians electronically. 


The government’s action does not impact the termination of the transition period, which will become effective on July 1, 2017. 

FCC Slams Serial Robocaller With $120 Million Proposed Fine for "Spoofing" Numbers

Posted by: Bruce Buchanan
By Rebecca Jacobs, Marty Stern & Doug Bonner

We all get them.  Repeated marketing calls to our mobile and home phones with the incoming phone number altered to make it appear that it’s a local call, when in fact, the call is from a robo-scammer using IP technology to “spoof” the phone number.  As it turns out, there’s a federal law that makes such spoofing illegal, the Truth in Caller ID Act of 2009 (“TICIDA”), and in its first enforcement action under TICIDA, the FCC hit an alleged serial robocaller, Adrian Abramovich and his companies (together, Abramovich) with a whopping $120 million Notice of Apparent Liability for allegedly originating nearly 100 million such calls.


The Commission also issued a Citation and Order  to Abramovich for alleged violations of the Telephone Consumer Protection Act (“TCPA”) for making unauthorized prerecorded telemarketing calls to emergency phone lines, wireless phones and residential phones without obtaining the required prior express written consent from the called party.  While TICIDA allows the Commission to directly fine first-time violators through its NAL authority, which it did here, in TCPA FCC enforcement actions involving entities and individuals that do not hold Commission authorizations, the Commission must first issue a citation, and then can only proceed with a fine if the recipient repeats the violation.  That still leaves Abramovich open to potentially monumental TCPA class action exposure.   The Citation and Order also notified Abromovich that he had violated the federal wire fraud statute by transmitting or causing to be transmitted, by means of wire, misleading or false statements with the intent to perpetrate a fraud.


According to the Commission, Abramovich ran a scheme where his spoofed calls appeared to originate from local numbers and offered, via a pre-recorded message, holiday vacations and cruises claiming to be associated with well-known American travel and hospitality companies.  The pre-recorded messages would prompt customers to “press 1” to secure their reservation.  Once a customer pressed “1”, the customer was transferred to a call center where live operators pushed vacation packages typically involving timeshare presentations, that were not affiliated with the well-known brands used in the recorded messages.  The Commission characterized Abramovich’s schemes as “one of the largest – and most dangerous – illegal robocalling campaigns the Commission has ever investigated.”  According to the Commission, in addition to defrauding consumers, the robocalling campaign also caused disruptions to an emergency medical paging service, which provides paging services for emergency room doctors, nurses, emergency medical technicians, and other first responders.


While significant in absolute terms, the $120 million proposed fine, according to the Commission, was significantly below the penalty that could have been proposed in the NAL.   Rather than fine the statutory maximum of $11,052 for each spoofing violation, or three times that amount for each day of a continuing violation, the Commission calculated the base forfeiture amount at $1,000 per unlawful spoofed call, since this was the first time the Commission used its TICIDA forfeiture authority.


Mr. Abromovitz now has an opportunity to respond to both the NAL and Citation.  Stopping illegal robocalling has been a key priority for Chairman Pai, and no doubt the Commission is expecting that the threat of huge monetary forfeiture penalties against the industry will provide a powerful incentive for roboscammers to look for other ways to make a buck.  Given the Commission’s struggle with fashioning tools to go after serial robocallers that do not have the effect of increasing TCPA exposure for established companies engaging in legitimate customer communications, we do not expect the Commission to back down from its proposed penalty, and expect this to be the start of a new enforcement initiative using TICIDA and its direct penalty provisions.

Monday, July 3, 2017, 5:57 PM

Second Circuit: You Agreed to be Called When They Loaned You the Money, So Now Live With It

Posted by: Rebecca Jacobs
By: Rebecca Jacobs, Marty Stern and Doug Bonner


In a case of first impression, the Second Circuit recently ruled that the TCPA does not permit a consumer to unilaterally revoke bargained-for consent to be contacted by autodialer and pre-recorded voice calls on a mobile number provided in an auto lease agreement. The court found that such bargained-for consent, was outside the scope of the FCC’s 2015 TCPA Declaratory Ruling, which required that consent can be revoked at any time by any reasonable means, finding that the ruling only applies to "gratuitous" consent provided by the consumer, not consent that is part of a bargained-for agreement. Click here to read the full alert.

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