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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry

Mark Brennan

Posts by Mark Brennan
Posted in Policy & Regulation, Telecoms & Broadband Photo of Mark BrennanPhoto of Arpan Sura

Second Circuit Panel Sides with Ninth Circuit on What Qualifies as an Autodialer

A recent decision by the U.S. Court of Appeals for the Second Circuit in Duran v. La Boom Disco, Inc. has interrupted the emerging consensus around the definition of “autodialer” in the Telephone Consumer Protection Act (TCPA). On April 7, 2020, a Second Circuit panel joined a Ninth Circuit panel in adopting a broad reading of the statutory definition of “automatic telephone dialing system” (ATDS), commonly referred to as an autodialer.

Posted in Telecoms & Broadband Photo of Mark BrennanPhoto of Arpan Sura

FCC Confirms that Certain COVID-19 Communications Fall Within the TCPA’s “Emergency Purposes” Exception

Hospitals, health care providers, health officials, and other government officials may use automated calls and text messages to communicate information about COVID-19 when “necessary to protect the health and safety of citizens,” without violating the TCPA.  The FCC released the Declaratory Ruling on its own motion, without being prompted to do so by a regulated party.

Posted in Policy & Regulation, Telecoms & Broadband Photo of Mark BrennanPhoto of Arpan SuraPhoto of John Castle

Seventh Circuit Joins Third and Eleventh Circuits in “Autodialer” Circuit Split

The U.S. Courts of Appeal increasingly agree on how to interpret the definition of “automatic telephone dialing system” (“ATDS” or “autodialer”) in the Telephone Consumer Protection Act (“TCPA”). The Seventh Circuit held that an “autodialer” must use “a random or sequential number generator” to either store or produce numbers.

Posted in Policy & Regulation, Telecoms & Broadband Photo of Mark BrennanPhoto of Arpan Sura

Eleventh Cir. Rejects Broad Reading of “Autodialer”

The key issue is how to interpret ambiguous language in the Telephone Consumer Protection Act’s (TCPA) definition of “automatic telephone dialing system.” The Eleventh Circuit panel’s decision in Glasser rejects that trend, joins the D.C. Circuit in adopting a much narrower view of the TCPA’s scope, and establishes a clear circuit split with the Ninth Circuit.

Posted in Data Protection & Privacy, Telecoms & Broadband Photo of Mark BrennanPhoto of Arpan SuraPhoto of Kathryn Marshall Ali

Webinar | New TRACED Act and Robocall Year in Review: What you need to know

It was a very busy year on the robocall front, and on 30 December 2019, President Trump signed into law the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act (S. 151), which the House and Senate passed by wide, bipartisan margins earlier this year. The TRACED Act is the most significant robocall legislation in years. It requires the Federal Communications Commission (FCC) to take steps to improve call verification, reduce the number of illegal robocalls, and enhance the federal government’s Telephone Consumer Protection Act (TCPA) enforcement efforts. Among

Posted in Policy & Regulation, Telecoms & Broadband Photo of Mark BrennanPhoto of Arpan SuraPhoto of John Castle

Congress Passes Bipartisan Robocall Legislation

On December 19, 2019, the U.S. Senate unanimously passed the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act (S. 151), which the House of Representatives passed in a 417-3 vote earlier this month.  With the Senate’s passage of the reconciled bill, the bipartisan legislation now heads to President Trump’s desk for his review. The Pallone-Thune TRACED Act requires the Federal Communications Commission (FCC) to take steps to improve call verification, reduce the number of illegal robocalls, and enhance the federal government’s Telephone Consumer Protection Act (TCPA) enforcement efforts. 

Posted in Policy & Regulation Photo of Mark BrennanPhoto of Arpan SuraPhoto of John Castle

California Enacts Another CCPA – Robocall Legislation

On October 2, 2019, California Governor Gavin Newsom signed the Consumer Call Protection Act of 2019 to address the rise in deceptive robocalls and protect California consumers from fraudulent calls. The law requires telecommunications service providers to implement Secure Telephony Identity Revisited (STIR) and Secure Handling of Asserted information using toKENs (SHAKEN) protocols by January 1, 2021.  These protocols are designed to attest to the authenticity of caller identification data and provide service providers with information to help ensure that calls are not spoofed.  

Posted in Data Protection & Privacy, Policy & Regulation, Privacy and Security Litigation, Telecoms & Broadband Photo of Mark BrennanPhoto of Adam CookePhoto of Alicia PallerPhoto of Joseph J. Cavanaugh

Ill-Suited: Private Rights of Action and Privacy Claims

“For years, the plaintiffs’ bar has conjured multibillion-dollar class action lawsuits out of largely intangible privacy harms. This wave of litigation is increasingly driven by federal and state statutes that include private rights of action and allow for excessive statutory damages. Given the willingness of some courts to let cases proceed despite a lack of allegations or evidence of concrete harm, this litigation trend shows no sign of abating.” The U.S. Chamber of Commerce Institute for Legal Reform has published “Ill-Suited: Private Rights of Action and Privacy Claims,” a white

Posted in Policy & Regulation Photo of Mark BrennanPhoto of Arpan Sura

U.S. Supreme Court Sidesteps Important TCPA Deference Issues

The Court was expected to provide greater clarity about the extent to which litigants can challenge the Federal Communications Commission’s (FCC) Telephone Consumer Protection Act (TCPA) interpretations in private litigation. Instead of deciding that issue, however, the Court vacated the Fourth Circuit’s ruling and remanded the case for further development.

Posted in Policy & Regulation Photo of Timothy TobinPhoto of Mark Brennan

New Nevada Privacy Law With “Sale” Opt-Out Right Will Take Effect Before the CCPA

Nevada has a new privacy law. On May 29, Nevada Governor Steve Sisolak signed Senate Bill 220 (SB-220) into law, making Nevada the first state to join California in granting consumers the right to opt out of the sale of their personal information. The act, which amends an existing online privacy notice law, is significantly narrower than the California Consumer Privacy Act (CCPA). It applies only to online activities, defines “consumer” and “sale” in a much more limited manner than the CCPA, and includes broad exceptions for financial institutions subject

Posted in Artificial Intelligence, Data Protection & Privacy Photo of Mark BrennanPhoto of Bret CohenPhoto of Filippo Raso

NIST Seeking Input on AI Technical Standards by May 31, 2019

On May 1, 2019, the National institute of Standards and Technology (NIST) announced a Request for Information (RFI) in the Federal Register regarding ongoing efforts to develop technical standards for artificial intelligence (AI) technologies and the identification of priority areas for federal involvement in AI standards-related activities. Responses to the RFI are due by May 31, 2019. The RFI comes in response to President Trump’s Executive Order to Maintain American Leadership in Artificial Intelligence, which among other actions directs NIST to develop a plan to guide the federal government’s engagement

Posted in Policy & Regulation Photo of Mark BrennanPhoto of Julian Flamant

CCPA Amendments Advance through California Assembly

A number of legislative proposals seeking to amend the California Consumer Privacy Act (CCPA) are moving forward following an April 23 hearing before the California Assembly’s Committee on Privacy and Consumer Protection in which the bills were approved. The bills will now advance to the Assembly’s Appropriations Committee before being voted on by the full Assembly and potentially advancing to the California Senate for consideration.

Posted in Policy & Regulation, Technology Photo of Mark BrennanPhoto of Bret Cohen

Consumer Horizons 2019

The Consumer industry is evolving at lightning speed, and the way consumer companies operate is shifting. From issues in supply chain to the digitalization of the consumer experience, companies are rapidly changing to keep up with consumer demands. Last year businesses in the consumer industry saw a wave of unprecedented disruption and transformation, and 2019 promises challenges of similar or greater magnitude. In this year’s edition of Consumer Horizons, the Hogan Lovells global Consumer team identifies trends that will impact food and beverages companies, fashion and luxury goods producers, retailers, consumer

Posted in Policy & Regulation Photo of Mark BrennanPhoto of Julian Flamant

Efforts to Expand CCPA’s Private Right of Action Remain in Question

The California legislature is considering significant amendments to the California Consumer Privacy Act (CCPA) ahead of the law’s January 1, 2020 implementation date. Of particular note has been the potential for CCPA amendments to expand the private right of action beyond violations of businesses’ duty to implement and maintain reasonable security procedures to instead cover violations of any CCPA right. Recent developments in the California Assembly and Senate may preview whether California businesses and consumers should expect an expanded private right of action: On April 10, The CCPA amendments bill

Posted in Internet, Policy & Regulation, Telecoms & Broadband Photo of Winston MaxwellPhoto of Mark BrennanPhoto of Arpan Sura

Study shows complexity and uncertainty of IoT regulation in Europe

A Hogan Lovells study comparing of regulatory requirements in the European Union, United States, and China shows the complexity and uncertainty of the regulatory framework relevant to Internet of Things (IoT) in Europe. The number of telecoms regulatory constraints affecting IoT in the EU is almost twice as high as in the United States and China. Federal Communications Commission (FCC) Chairman Ajit Pai compares the global race to 5G with World Cup football: “When it comes to 5G, we need to keep the playbook fresh and forward leaning.”[1] Outdated regulations

Posted in Data Protection & Privacy, Policy & Regulation Photo of Timothy TobinPhoto of Harriet PearsonPhoto of Mark BrennanPhoto of Bret Cohen

California DoJ Sets March 8 Deadline for CCPA Pre-Rulemaking Comments

The California Department of Justice has announced a March 8, 2019 deadline for submitting written pre-rulemaking comments on the California Consumer Privacy Act (CCPA). The March 8 deadline is an extension from the previously set end-of-February deadline. Pursuant to section 1798.185(a) of the CCPA, the California Attorney General (AG) is obligated to solicit broad public participation and adopt regulations to further the purposes of the CCPA. The CCPA sets out seven specific areas for AG rulemaking: Updating as needed the categories of personal information expressly enumerated in the definition of

Posted in Cybersecurity, Data Protection & Privacy, Licensing, Policy & Regulation, Technology Photo of Winston MaxwellPhoto of Mark BrennanPhoto of Arpan Sura

Hogan Lovells publishes Demystifying the U.S. CLOUD Act

Hogan Lovells has published Demystifying the U.S. CLOUD Act, a detailed analysis of the impact of the Clarifying Lawful Overseas Use of Data Act (CLOUD Act) on non-U.S. businesses and individuals who use cloud storage solutions. Demystifying the U.S. CLOUD Act was written by Hogan Lovells partners Winston Maxwell and Mark Brennan, and senior associate Arpan Sura. The report specifically focuses on language in the CLOUD Act that allows U.S. law enforcement agencies, under certain circumstances, to lawfully demand data stored in foreign countries from entities subject to U.S. jurisdiction.

Posted in Cybersecurity Photo of Mark BrennanPhoto of Bret Cohen

NTIA Seeks Comment on New, Outcome-Based Privacy Approach

Yesterday, the U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA) issued a Request for Comments (RFC) on a new consumer privacy approach that is designed to focus on outcomes instead of prescriptive mandates. The RFC presents an important opportunity for organizations to provide legal and policy input to the administration, and comments are due October 26.The RFC notes that there is a fragmented approach to privacy, both in the U.S. and worldwide, as a “growing number of foreign countries, and some U.S. states, have articulated distinct visions for

Posted in Cybersecurity, Data Protection & Privacy Photo of Mark BrennanPhoto of W. James Denvil

California Consumer Privacy Act: the Challenge Ahead – Data Mapping and the CCPA

This is the third installment in Hogan Lovells’ series on the California Consumer Privacy Act. What personal information do you have about California consumers and households? The California Consumer Privacy Act of 2018 (“CCPA”) provides a series of new compliance obligations and operational challenges for companies doing business in California. A vital first step for any company subject to the CCPA and looking to forge a practical path forward is to inventory the personal information (“PI”) that the company collects, stores, and shares with others. As part of our ongoing

Posted in Telecoms & Broadband Photo of Mark BrennanPhoto of Arpan Sura

Eighth Circuit Finds that Bare “Technical Violations” of the TCPA Do Not Establish Standing

In St. Louis Heart Center v. Nomax, Inc., the Eighth Circuit held that an “alleged failure to provide a technically compliant opt-out notice” in a fax advertisement, without more, does not give a plaintiff Article III standing to bring a Telephone Consumer Protection Act (“TCPA”) claim. The Eighth Circuit’s decision requires that the alleged injury be “traceable” to statutory non-compliance.  In other words, the plaintiff must show a causal connection between the harm she suffered and the defendant’s TCPA violation. By way of background, the TCPA and FCC’s TCPA regulations

Posted in Policy & Regulation, Telecoms & Broadband Photo of Mark Brennan

Bills Introduced to Amend the Telephone Consumer Protection Act

Both Chambers of Congress are considering legislation that would amend the Telephone Consumer Protection Act (“TCPA”).  Introduced in the House by Congressman Pallone (H.R. 6026) and in the Senate (S. 3078) by Senator Markey, the Stopping Bad Robocalls Act adds a new definition, “robocall,” in place of “automated telephone dialing system.”  The new term would include devices that make calls using “numbers stored on a list” (in addition to dialing random or sequential numbers).  The new definition clarifies that robocalls do not include using equipment where “substantial additional human intervention”