Category: Communication Media & Internet

The FCC Responds to Comcast’s Negative Option

FCC ComcastOn Tuesday, October 11, the Federal Communications Commission (“FCC” or “Commission”) announced the release of an Order and Consent Decree with cable behemoth Comcast Corporation (“Comcast”) in which the company agreed to pay US$2.3M to settle an FCC investigation into whether Comcast employed negative option billing to wrongfully charge for services and equipment customers never authorized.  The settlement also requires Comcast—by some accounts the largest cable company in the country with 22.3M subscribers—to adopt a sweeping, highly detailed five-year compliance plan designed to force the company to obtain customers’ affirmative informed consent prior to adding charges to their bills.  According to the FCC’s press release, the settlement amount is the largest civil penalty the agency has ever assessed against a cable operator.

What is Negative Option Billing and How Does the FCC Regulate It?

“Negative option billing” is a practice similar to “cramming” in the telecommunications context, wherein a company places unauthorized charges on a consumer’s bill, requiring subscribers to pay for services or equipment they did not affirmatively request.  In addition to the obvious nuisance of unknowingly paying for unauthorized services and equipment, the FCC’s action is also aimed at protecting consumers from “spend[ing] significant time and effort in seeking redress for any unwanted service or equipment, which is often manifested in long telephone wait times, unreturned phone calls from customer service, unmet promises of refunds, and hours of effort wasted while pursuing corrections.”  For these and other consumer protection reasons, negative option billing is illegal; it violates both Section 623(f) of the Communications Act of 1934, as amended (the Act), and Section 76.981(a) of the Commission’s rules.  Specifically, 47 U.S.C. § 543(f) explicitly prohibits negative billing options, noting also that a failure to refuse an offer is not the equivalent of accepting the offer.

As the FCC clarified in a 2011 Declaratory Ruling, while a customer does not have to know and recite specific names of equipment or service in the course of ordering those products, the cable operator must have “adequately explained and identified” the products in order for a subscriber to “knowingly accept[] the offered services and equipment by affirmative statements or actions.”

Section 76.981(b) explains that the negative billing option does not prevent a cable operator from making certain changes without consumer consent, such as modifying the mix of channels offered in a certain tier, or increasing the rate of a particular tier (unless more substantive changes are made, such as adding a tier, which then increases the price of service).

The FCC appears to have found only one violation of the negative option billing prohibition previously, and in that context, the Commission used its discretion to refrain from imposing a penalty.  More than 20 years ago, in 1995, the Commission acted on a complaint and investigated Monmouth Cablevision for allegations that the company—which had previously rented remote controls to their subscribers—violated FCC rules when it removed the leasing fee on subscriber bills and instead included a $5 sale price for the remotes. In that case, the Commission explained that, while “in a literal sense, this is the same equipment that the customer previously rented, we cannot find that these customers affirmatively requested to purchase these remotes rather than renting them.”  The Commission went on to explain that “changing the way in which existing service and equipment is offered, e.g., from leasing to selling,” did, in fact, violate the Commission’s negative option billing prohibition.  However, due to the “de minimis difference between the $ 5.00 purchase price and the total rental price” and because of the “large number of regulatory requirements that became effective on September 1, 1993, and the associated compliance difficulties,” the then Cable Services Bureau chose not to impose a penalty.  Because state governments have concurrent jurisdiction over negative billing practices, cable companies have faced court action for these and similar allegations for decades.

The FCC Investigation

Based on “numerous” consumer complaints, the FCC’s Enforcement Bureau opened an investigation in December of 2014 into whether Comcast engaged in negative option billing.  In the course of its investigation, the FCC determined that customers were billed for “unordered services or products, such as premium channels, set-top boxes, or digital video recorders (DVRs).”  Beyond not authorizing these products, in some cases the FCC claims that subscribers specifically declined additional services or upgrades, only to be billed anyway.  In fact, the Order—which is part of the settlement but generally not subject to the non-government party’s review prior to release—details numerous complainants that claim to have been given the runaround by Comcast customer service representatives, with one customer (Subscriber A) claiming that, after three hours on the phone and multiple transfers, she was ultimately transferred to a fax machine.  Another complainant (Subscriber B) asserted that he determined Comcast had wrongfully billed him for approximately 18 months for an extra cable box he never ordered, and that he spent another year calling to request (unsuccessfully) that the company remove the charge.

The Settlement

The Order and Consent Decree are striking in terms of the level of transparency exhibited throughout.  Unlike most FCC settlements, in which facts and legal arguments are closely guarded and held confidential, this Order reads more like a Notice of Apparent Liability for Forfeiture, where the FCC explains the underlying facts and legal theories in substantially more detail.  Especially noteworthy here, is that unlike majority of the other settlements released by the FCC’s Enforcement Bureau since Travis LeBlanc took the helm, neither the Order nor the Consent Decree include a statement admitting liability.  Rather than an admission of liability by Comcast, the Consent Decree includes a lengthy discussion of the perspectives of both Comcast and the Commission.  Besides arguing that most of the services were authorized and that unauthorized services inadvertently added to consumer bills were removed, Comcast—represented by FCC regular and first Enforcement Bureau Chief David Solomon—argued that the Commission itself “has cautioned against an expansive application of the Negative Option Billing Laws, stating that a broad reading of the rule could lead to harmful consequences.”  Moreover, Comcast asserted that “the Negative Option Billing Laws are not per se prohibitions, but instead are targeted only at affirmatively deceptive conduct on the part of cable operators, and Commission enforcement requires a demonstrated pattern of violation,” rather than an erroneous charge “occasioned by employee error” that does not involve deceit or intent.  For its part, the Commission asserted that it believes “the Customer Complaints and other facts adduced during the Investigation are evidence of violations of Section 623(f) of the Act and Section 76.981 of the Commission’s Rules.”

Moreover, the settlement requires that Comcast be required to comply with the terms of the Order and Consent Decree for an uncharacteristically long term—i.e., five years instead of the three years the Bureau has normally insisted upon.

In addition to the US$2.3M civil penalty, Comcast must implement a highly detailed compliance plan.  Although in many instances, Comcast is given until July 2017 to create and implement requisite processes, the level of detail applied to the cable company’s alleged transgressions is similar to that found in certain cramming and slamming settlements.  In those instances, however, the Commission is usually acting against less sophisticated targets with decidedly fewer resources that cannot retain compliance personnel with the expertise to design, develop, and implement their own expansive compliance plans.  Among other things, and as explained in five pages of detail in the Consent Decree, the company is required to:

obtain customers’ affirmative informed consent prior to charging them for new services or equipment; send customers an order confirmation, separate from any other bill, that clearly and conspicuously describes newly added services and equipment and their associated charges; offer mechanisms to customers that, at no cost, enable them to block the addition of new services or equipment to their accounts; implement a detailed program for redressing disputed charges in a standardized and expedient fashion; limit adverse actions (such as referring an account to collections or suspending service) while a disputed charge is being investigated; designate a senior corporate manager as a compliance officer; and implement a training program to ensure customer service personnel resolve customer complaints about unauthorized charges.

Going forward, it appears that the Commission will have a substantial amount of insight into the way the company conducts its business vis-à-vis its customer service responsibilities, in the form of annual reports and extended document retention requirements.

Lessons from the Settlement

Over the past two and a half years, it has become more apparent that the FCC is willing to apply old rules in new ways, and to continue to be an aggressive enforcer of the rules in general, but particularly when it comes to protecting consumers.  Although the Commission has issued Enforcement Advisories in the past, alerting companies that it is on the lookout for noncompliance in certain areas, this US$2M+ action is proof that regulatees should not wait for FCC warnings before ensuring they are compliant with the rules.  Companies should take heed and adopt a proactive approach to understanding the rules applicable to them based on their business operations.

ARTICLE BY Koyulyn K. Miller of Squire Patton Boggs (US) LLP

© Copyright 2016 Squire Patton Boggs (US) LLP

Teenagers And D.C. Circuit Agree: Internet Service Is A Utility – Will Bankruptcy Courts Follow?

Mobile devices, wireless communication technology and internet web concept: business laptop or office notebook, tablet computer PC and modern black glossy touchscreen smartphones with colorful application interfaces isolated on white background

The topic of net neutrality has continued to be at the forefront of public discourse over recent years.  This is the result of the FCC’s repeated attempts to impose regulations designed to protect consumers while at the same time telecom companies seek to control their product and the services they provide without what they contend is burdensome regulation. This summer, in U.S. Telecommunication Association v. FCC, the D.C. Circuit Court of Appeals dealt a blow to the telecom industry when it upheld a FCC declaration that broadband internet is a telecommunication service—essentially a public utility.  Many speculate that this decision will have a broad impact (good and bad) on internet service providers in both the short and long term.  A less considered aspect of the D.C. Circuit’s ruling is how it will be applied in the bankruptcy context.

Section 366 of the Bankruptcy Code establishes safeguards for debtors when it comes to their use of public utilities.  Under Section 366, essential utility providers are prohibited from discontinuing service upon the filing of a bankruptcy petition.  Instead, the debtor is required to provide adequate assurance of payment within short order, and if the debtor complies, the utility provider must continue service.  The Bankruptcy Code does not define what a “utility” is, but the legislative history provides some insight, noting that section 366 “is intended to cover utilities that have some special position with respect to the debtor, such as an electric company, gas supplier, or telephone company that is a monopoly in the area so that the debtor cannot easily obtain comparable service from another utility.”

Bankruptcy courts have not strictly interpreted the monopoly reference in the legislative history and have continued to hold that telephone service is a utility even after the industry has been deregulated.  In the context of cable television, rather than looking to the monopoly requirement, the Fifth Circuit Court of Appeals in Darby v. Time Warner, 470 F.3d 573, 574 (5th Cir. 2006), held that the relevant analysis was whether the provider stands in a “special positon with respect to the [debtor] such that it is a utility within the meaning of the statute.”  There the Fifth Circuit held that cable television providers did not stand in a special position with respect to the debtor and further that cable television service was not a necessity and therefore not a utility under Section 366.

We have no doubt that individual debtors will begin to test whether they can claim internet service is a utility, relying principally on the D.C. Circuit’s ruling.  However, based on the Fifth Circuit’s analysis, it is entirely conceivable that bankruptcy courts will be reluctant to extend utility status to broadband internet service providers in individual bankruptcies, as it is difficult to find that internet service is a necessity.  However, in the corporate chapter 11 context, one can easily envision a scenario where broadband internet service is necessary for a debtor to continue operating its business, for example, in the e-commerce arena or simply to connect its internal computer systems.  In these circumstances, courts have already allowed debtors to consider internet service a utility under Section 366.  The D.C. Circuit’s recent opinion in U.S. Telecommunication Association v. FCC will now provide further support for commercial debtors to claim that internet service is a utility in the event that a provider dissents.

Written by Peter R. Morrison of Squire Patton Boggs Law Firm.

September 2016 – gTLD Sunrise Periods Now Open

gTLD Sunrise PeriodsAs first reported in December 2013, the first new generic top-level domains (gTLDs, the group of letters after the “dot” in a domain name) have launched their “Sunrise” registration periods. As of August 31, 2016 ICANN lists gTLD Sunrise periods open for the following new gTLDs:

gTLDs
.shopping
.games
.kerryhotels
.able
.quest
.xn-w4r85el8fhu5dnra
.doctor
.blog

ICANN maintains an up-to-date list of all open Sunrise periods here. This list also provides the closing date of the Sunrise period.  We will endeavor to provide information regarding new gTLD launches via this monthly newsletter, but please refer to the list on ICANN’s website for the most up-to-date information – as the list of approved/launched domains can change daily.

Because new gTLD options will be coming on the market over the next year, brand owners should review the list of new gTLDs (a full list can be found here) to identify those that are of interest.

Employee’s Disparaging and Misleading Tweets May Be Protected Under NLRA: Holy Guacamole!

Guacamole, Food, disparaging social mediaRetail employers dismayed by employees publicly airing workplace grievances in disparaging social media posts must think twice before taking disciplinary action.  On August 18, 2016, the National Labor Relations Board (“NLRB”) confirmed the finding by Administrative Law Judge Susan A. Flynn that Chipotle’s social media policy forbidding employees from posting “incomplete” or “inaccurate” information, or from making “disparaging, false, or misleading statements” on Twitter, Facebook and other social media sites violates Section 8(a)(1) of the National Relations Labor Act (“the Act”).

Chipotle discovered that an employee responded to a customer’s tweet thanking Chipotle for a free food offer, by tweeting back: “@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really?”  Then, attaching a news article describing how hourly workers at Chipotle were required to work on snow days while certain high-level employees were not, the employee tweeted his displeasure, specifically referencing Chipotle’s Communications Director: “Snow day for ‘top performers’ Chris Arnold?”  Informed by his manager that Chipotle considered his tweets to be in violation of Chipotle’s social media policy, the employee removed them at Chipotle’s request.  Then, several weeks later, Chipotle fired the employee after he circulated a petition about employees not receiving required breaks.

Finding the provision in Chipotle’s policy prohibiting employees from spreading “incomplete” or “inaccurate” information to be unlawful, Judge Flynn opined that: “An employer may not prohibit employee postings that are merely false or misleading. Rather, in order to lose the [NLRA]’s protection, more than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive.” Judge Flynn also found the policy provision prohibiting “disparaging” statements to be unlawful, explaining that it “could easily encompass statements protected by Section 7 [of the NLRA]” including “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”   Although Chipotle’s social media policy contained a disclaimer that the policy “does not restrict any activity that is protected by the National Relations Labor Act, whistleblower laws, or any other privacy rights,” Judge Flynn concluded that this “sentence does not serve to cure the unlawfulness of the foregoing provisions.”

The NLRB adopted Judge Flynn’s decision that Chipotle was wrong, not only for firing the employee, but for attempting to limit his commentary on social media by its unlawfully termed social media policy.  While agreeing with Judge Flynn’s reasons for finding the social media policy unlawful, the NLRB disagreed with Judge Flynn’s finding that Chipotle violated the NLRA by asking the employee to delete the tweets.  In particular, while Judge Flynn opined that the employee engaged in “concerted activity” even though he did not consult with other employees before posting his tweets because “concerted activities include individual activity where individual employees seek to initiate or to induce … group action,”  the NLRB disagreed, asserting, with no true explanation, that it did not find the employee’s conduct to be concerted.  Agreeing that Chipotle violated the NLRA by terminating the employee after he engaged in protected concerted activity by circulating a petition regarding the Company’s break policy, the NLRB required Chipotle to, among other things, post signs acknowledging that its social media policy was illegal, and to re-instate the employee with back pay.

The message from the NLRB to retail employers is that, barring malicious misstatements, speech concerning terms and conditions of employment is often protected activity, even for employees who want to criticize their employers on Twitter and other social media websites.  To avoid Chipotle’s fate, ensure that your social media policies are up to date and provide for the increasing protections afforded to employee social media activity by the NLRB.

ARTICLE BY John M. O’Connor of Epstein Becker & Green, P.C.
©2016 Epstein Becker & Green, P.C. All rights reserved.

Espionage and Export Controls: iPhone Hack Highlights New World of Warfare

iPhone HackLast week, researchers at Citizen Lab uncovered sophisticated new spyware that allowed hackers to take complete control of anyone’s iPhone, turning the phone into a pocket-spy to intercept communications, track movements and harvest personal data. The malicious software, codenamed “Pegasus,” is believed to have been developed by the NSO Group, an Israeli company (whose majority shareholder is a San Francisco based private equity firm) that describes itself as a “leader in cyber warfare” and sells its software — with a price tag of $1 million – primarily to foreign governments. The software apparently took advantage of three previously unknown security flaws in Apple’s iOS software, and was described by experts as “the most sophisticated” ever seen on the market. Apple quickly released a patch of its software, iOS 9.3.5, and urged users to download it immediately.

Citizen Lab learned about Pegasus from Ahmed Mansoor, a UAE human rights activist, who received text messages baiting him to click on a link to discover “new secrets about the torture” of Emirati prisoners. Mr. Mansoor had been prey to hackers before, so he contacted Citizen Lab. When researchers tested the link, they discovered software had been remotely implanted onto the phone, and brought in Lookout, a mobile security firm, to reverse-engineer the spyware. Citizen Lab later identified the same software as having been used to track a Mexican journalist whose writings have criticized Mexico’s President. Citizen Lab and Lookout also determined that Pegasus could have been used across Turkey, Israel, Thailand, Qatar, Kenya, Uzbekistan, Mozambique, Morocco, Yemen, Hungary, Saudi Arabia, Nigeria, and Bahrain, based on domains registered by NSO.

NSO Group, the architect of Pegasus, claims to  provide “authorized governments with technology that helps them combat terror and crime,” insisting that its products are only used in lawful ways., NSO spokesperson Zamir Dahbash told reporters that the company “fully complies with strict export control laws and regulations.” The Citizen Lab researcher who disassembled the malicious program, however, compared it to “defusing a bomb.” All of which raises the question – what laws or regulations govern the export of cyber-weapons by an Israeli firm (likely controlled by U.S. investors) to foreign governments around the world?

Cyber weapons are becoming increasingly interchangeable with traditional weapons. Governments (or terrorists) no longer need bombs or missiles to inflict large-scale destruction, such as taking down a power grid, since such attacks can now be conducted from anywhere there is a computer. Do export controls – which have long been used as foreign policy and national security tools, and which would regulate the transfer of traditional weapons – play any real role in regulating the transfer of weapons of cyber-surveillance or destruction? In fact, the legal framework underlying current export controls has not caught up (and maybe never will) to the capabilities of technological tools used in cyberwarfare. Proposals to regulate malware have been met with resistance from the technology industry because malware technology is often dual-use and the practical implications of requiring licenses would impede technological innovation and business activities in drastic ways.

The Wassenaar Arrangement

The Wassenaar Arrangement (WA) was established in 1996 as a multilateral nonproliferation regime to promote regional security and stability through greater transparency and responsibility in the transfer of arms and sensitive technologies. The United States is a member. Israel is not, but has aligned its export controls with Wassennaar lists.

In December 2013, the list of export controlled technologies under WA was amended to include commercial surveillance software, largely to curb human rights abuses by repressive governments’ use of spyware on citizens. Earlier this year, the Department of Commerce issued recommendations that the definition of “intrusion software” in the WA be modified to encompass the concept of “authorization” so that malware such as Pegasus, in which the user does not truly understand the nature of the consequences, would be controlled. Those proposals have not been implemented.

U.S. Export Controls of Malware

In 2015, following data breaches at the Officer of Personnel Management and several private companies, the Department of Commerce published proposed rules to harmonize concepts embedded in the WA into the U.S. regulatory framework for export controls. One critical proposal was a definition of “intrusion software” to require a license for the export and use of malware tools. But the definition covered much more than malware. Cybersecurity experts were alarmed by the rule’s over-inclusive and vague language. The rules would have impeded critical business activities, stifled international research and cross-border exchanges of technology, and hindered response to cyber threats.

NSO Group has been described by researchers as “incredibly committed to stealth, and  reportedly has close partnerships with other Israeli surveillance firms that seek to sell spyware, suggesting an inevitable increase in cyber mayhem. As malware becomes more sophisticated, widespread, and threatening, the need for strictly tailored export controls is not going to go away.

Regulating software is challenging at least in part, because there is no workable legal definition of what constitutes a cyber weapon. Because malware is largely dual-use, the only way to determine whether particular software constitutes a cyber weapon is retroactively. If software has been used as a weapon, it is considered a cyber weapon. But that definition arrives far too late to control the dissemination of the code. Moreover, controlling  components of that software would likely be over-inclusive, since the same code that can exploit flaws to break in to devices can also have benign uses, such as detecting vulnerabilities to help manufacturers like Apple learn what needs patching. Another challenge is that requiring  export licenses can take months, which, in the fast-moving tech world is as good as denial.

The revelation of the Pegasus iPhone spyware highlights questions that have perplexed national security and export control experts in recent years. As the use and sophistication of malware continue their explosive growth, not only must individuals and governments face the  chilling realities of cyber warfare, but regulators must quickly understand the technological issues, address the risks, and work with the cyber security and technological communities to find a path forward.

ARTICLE BY Fatema K. Merchant & Laura E. Jehl  of Sheppard, Mullin, Richter & Hampton LLP
Copyright © 2016, Sheppard Mullin Richter & Hampton LLP.

China’s Quantum Cryptography: Tales from (Quantum) Crypt

China Quantum CryptographyThe dream of hack-proof communication just got a little closer to reality. On August 16, 2016, China launched the world’s first “quantum satellite,” a project the Chinese government hopes will enable it to build a communication system incapable of being hacked. Such a system, if perfected, would allow for encrypted communications between any two devices with absolute certainty that the encryption could not be broken, and with a built-in mechanism for alerting the sender/receiver if someone tried.If you are interested in truly understanding the mechanics of quantum cryptography, I would highly recommend the article “How Quantum Cryptography Works.” For the purpose of this post, a very basic explanation is as follows:

In order to encrypt a two way communication, the sending party (who we will call “Alice”) typically encodes a message using a key and sends the message to the receiving party (who we will call “Bob”), who then decrypts the message using the same key. Since modern technology makes it possible to engineer almost unbreakable keys, the best way for an eavesdropper (who we will call “Eve”) to access the message is to find the key itself, which is vulnerable because it also needs to be communicated between Alice and Bob, but can’t itself be encrypted, or else Bob won’t be able to use it.

Quantum cryptography would allow Bob and Alice to use a new key for every message AND guarantee that if Eve tries to intercept the key, they will know. Quantum entanglement is a physical phenomenon that can cause certain particles to become “entangled” such that a change in one will elicit a predictable change in the other, no matter how far apart the entangled particles are, and without any measurable (by current scientific standards) communication between them. If Alice and Bob share entangled particles, Alice can transmit the information for a new key to Bob for every communication by altering the directional spin of her particles, which in turn will alter the spin of Bob’s particles. A complicated process of measuring particle spin and cross-checking information between Alice and Bob (more fully explained in the article linked to above) is then used to generate the key.

Since so far as science is currently aware there is nothing “communicated” between the entangled particles, there is nothing for Eve to intercept unless she can actually access Bob’s particles. Meanwhile, Heisenberg’s uncertainty principle states that anytime the spin of one of these particles is measured, the very act of measuring it changes the spin of that particle. This means that if Eve does manage to physically access Bob’s entangled particles and measures them to try and get Alice’s key before passing the particles back to Bob, Bob will know the particles were intercepted because the key he thinks he got from Alice won’t work to unlock Alice’s message after he and Alice cross-check their information, since Eve’s measuring of Bob’s particles caused the spin of those particles to change. Furthermore, since Eve is not able to cross-check her information with Alice, even if she is able to listen to Bob and Alice cross-checking their information, Eve will not be able to use her information to formulate the correct key to decode Alice’s message.

The ability to send completely secure messages between any two points has myriad applications for data security. From a commercial standpoint, it could mean the ability for enterprises to remote access data without fear of interception. It could also mean an increase in the security of customer information (especially information that is legally required to be protected, such as personally identifiable information) and a corresponding decrease in the risk of a security breach that might result in damage to a company’s brand, increased compliance costs, or potential litigation awards and expenses. For consumers, it could mean the ability to communicate private information securely in an age where so many online transactions require the sending of sensitive information over the internet.

More troubling (or liberating, depending on your point of view) are the challenges quantum cryptography poses for law enforcement and national security. Agencies such as the CIA, FBI, and NSA currently depend on access to third party data networks, such as e-mail clients and telecommunication companies, for a large part of their data collection and monitoring activities. Under the “third-party doctrine” when Alice sends a message to Bob, if a copy of that message is kept by the medium they use to communicate (e.g. by Alice’s e-mail client), a government agency can request a copy of that information directly from Alice’s e-mail client without needing to get a warrant, and without telling Alice or Bob about the request. Quantum cryptography could allow Alice to send an encrypted message to Bob such that, even if a government agency gets a copy of the message itself from Alice’s e-mail client, they will not be able to decrypt it without help from either Alice or Bob.

Quantum cryptography still has a long way to go before it lives up to its promise, and there will almost certainly be bumps along the way. Yet, if the Chinese satellite launch does kick start the quantum cryptography revolution, commercial enterprises, consumers, governments, hackers, and lawyers alike will need to find ways to respond to the new challenges it creates.

ARTICLE BY Adam Waks of Proskauer Rose LLP
© 2016 Proskauer Rose LLP.

LinkedIn: A Lawyer’s New Best Friend

Linkedin LawyersWhile there are plenty of books written about social media, I’ve found that most attorneys have little time to invest in such trivial pursuits. I’m sure you’ve rolled your eyes a few times when perusing Facebook or Twitter and reading some of the material on those sites. Many of these negative opinions stem from reality, whereas others come from a disappointing lack of knowledge as to the sites’ benefits.

In order to effectively utilize social media, it’s important to recognize what you want social media to do for you. Are you looking to grow originations, develop a cult-like following, or brand yourself to get speaking engagements? By answering this question first, you can focus on investing your time in the most effective social media forums.

There are literally hundreds of social media channels to choose from. Being selective and focused on the right one will help you get results more quickly. For most attorneys, developing your brand in the business community is most important. In addition, you’re most likely to get results from a social media channel that allows you to be proactive in developing new contacts and ultimately new business. In my experience, the best and fastest way to get results using social media is through LinkedIn.

Over the past 10 years, LinkedIn has become the number one resource for helping brand and generate new business for service-based professionals. In many ways it’s better than Google because it’s a business networking platform rather than a general search platform. The ability to search and target people and organizations is unlimited.

LinkedIn is a fantastic brand-building tool that allows you to literally post your resume online. LinkedIn also helps you leverage your best contacts to make inside connections. Done properly, this can create a massive universe of followers, possible connections, and, most importantly, a cast of personal advocates willing to make quality introductions on your behalf.

Imagine being able to look at your client’s list of friends, vendors and associates prior to asking for a referral. You can search through LinkedIn’s 50 million users to find the best inside connections for you.

While there are hundreds of different tools on LinkedIn, I want to give you the top three keys to effectively using LinkedIn. As with anything that’s worthwhile, it’s imperative that you try to have an open mind and invest a few hours exploring the site to see where the value is for you.

The first key to effectively using LinkedIn is to create a complete profile that best represents your expertise and experience in your field of practice. The second key is to develop your LinkedIn universe by adding the right contacts. The third key is to leverage those contacts and turn them into quality introductions. These three keys should initially take only a few hours to implement, and then as little as an hour a week to start producing results.

The First Key: Writing a LinkedIn Profile That Represents You Beautifully

In order to be effective on LinkedIn, you must have a professionally written and completed profile. Think of your LinkedIn page as your online resume and personal website. If the information online is incorrect, incomplete or poorly written, it might stop someone from reaching out to you.

Imagine you’re looking online for a remodeler for your home. The first site that comes up on Google looks fantastic. You click through to see some of the remodeling work the company has done, and the site says, “Sorry, cannot open this page.” So you try another one. The same message comes up. If you’re like me, you’re done at that point. You just move on to the next search result. This is exactly what happens on LinkedIn without a skillfully written and finished profile.

Here are three tips to ensure your LinkedIn profile makes you look your best to potential clients and strategic partners:

Tip #1: Use a recent professional photograph on your LinkedIn page.

Most people are visual and want to see whom they’re going to be speaking with. As important as content is on a website, you’ve never seen an exceptional one without images to back it up. Use the photo from your website if it’s good, or get a headshot taken right away. It’s not hard to do and it can make all the difference when someone is checking out your profile. This may seem obvious, but don’t post a cutesy picture with your kids, pet, or Halloween costume.

Tip #2: Have a professionally written background/summary.

Since your LinkedIn profile will be someone’s first impression of you, failure to capture the reader’s attention can move the reader quickly away. Personally, I like to see a summary written in the third person. It has the appearance of someone else boasting about your successes and best qualities without seeming egotistical.

If possible, keep your profile to three solid paragraphs. I enjoy reading profiles that read a little like a story. The first paragraph pulls you in. The second gets you familiar with the character. The third wraps things up and motivates you to take action. It might make sense to look up some other attorneys in your practice area to see what they’ve written. This will help you identify the best profile style for you.

Tip #3: Develop a strong list of skills that best represents your expertise.

If you take a few minutes and search some of your colleagues and competitors, you can quickly begin to formulate such a list. For example, an estate planning attorney would want to have the words “wills,” “trusts” and “estate planning” listed among his or her skills, thus enabling people searching for an estate planner to more easily find the attorney.

Once your skills are posted, people in your network will then have the ability to endorse you. Essentially, when you have a skill that someone agrees with, they’ll endorse you for that skill. While this might seem like “fluff,” it’s an important factor that people use to determine who are experts and who are not. For example, if you had to choose between two referred doctors, one who has hundreds of positive endorsements on LinkedIn and one who has none, which would you choose? While this might seem insignificant, in the competitive legal environment everything counts.

Read Part 2 here: LinkedIn for Lawyers – Strengthening Your Circle by Establishing the Very Best Connections Part 2

Read Part 3 here: Effectively Using LinkedIn for Lawyers: Going Beyond Connecting and Turning LinkedIn Relationships into Better Introductions Part 3

ARTICLE BY Steve Fretzin of Sales Results, Inc.

Copyright @ 2016 Sales Results, Inc.

Why You Need Law Firm Data Breach Response Plan

Law Firm Data BreachHacking was once again prominently in the news when it was announced right before the Democratic National Convention that Democratic Party emails had been compromised. This comes after an incident earlier this year when it was announced that hackers broke into the computer networks at a number of well-known law firms, including Cravath Swaine & Moore LLP and Weil Gotshal & Manges LLP, which represent Wall Street banks and Fortune 500 companies.

Sadly, we have grown accustomed to, and possibly numb, from the almost weekly announcements that major corporations, organizations and government agencies have been victims of cyberattacks. The potential vulnerability of law firms is raising concerns among their clients, who are conducting their own assessments of the firms they hire.

Law Firms in the Crosshairs 

Law firms now recognize that cybercriminals are constantly looking for easy targets and sources of potentially valuable data that can be used to steal identities. Since law firms act as warehouses of extremely sensitive client and employee data, they are prime targets for cyberattacks. In the new, highly connected reality we operate in, law firms must consider the risks these cyberthreats pose and take the data protection steps necessary to reduce those risks. Otherwise, the oversight may prove costly.

It should be noted that, historically, most data breaches experienced by law firms are related to the loss or theft of a laptop, thumb drive, smartphone, tablet or other mobile device that contains sensitive client information. Such theft can be an open door for cybercriminals to gain easy access to a firm’s corporate network and steal confidential information. All that said, cybercriminals are much more savvy than ever before and have developed means of hacking into protected networks without using a piece of the organization’s hardware.

For example, according to a March 19 article in the Wall Street Journal, in February of this year, “a posting appeared on an underground Russian website called DarkMoney.cc, in which the person offered to sell his phishing services to other would-be cyberthieves and identified specific law firms as potential targets. In phishing attacks, criminals send emails to employees, masked as legitimate messages, in an effort to learn sensitive information like passwords or account information. As a result, security firm Flashpoint issued alerts to law firms in January and February about the threats and has acquired a copy of a phishing email that is aimed at law firms, according to a person familiar with the alerts.”

Communicating a Data Breach 

Since no one can fully prevent the risk of a data breach, it’s important to have a crisis communication plan in place to inform stakeholders in case one occurs, and the media should they cover the story. The goal of the plan should be to address the situation as quickly as possible and restore trust with stakeholders. Tactics should include:

  • Identify a spokesperson for the firm.

  • Prepare written statements for employees, clients and media.

  • Craft message points for any media interviews.

  • Call key clients to inform them personally of the breach.

  • Post a statement on the firm’s website where it can be found easily.

As for the media, law firms should avoid the instinct to take a “head in the sand” approach. The conversation in the media, especially over social media, will take place whether you participate or not. It’s important to be honest and direct when telling your story. This will allow the law firm to better control the narrative.

The risk of your law firm’s computer network being hacked can never be completely eliminated. As the threats continue to increase, it’s critical to create a crisis communications plan to mitigate the fallout and reduce the likelihood that it will have a long-term negative impact on your firm’s reputation or bottom line.

ARTICLE BY Carlos Arcos of Jaffe

© Copyright 2008-2016, Jaffe Associates

5 Ways to Use Email Drip Campaigns to Convert Leads [INFOGRAPHIC]

Is everyone who calls your law firm ready to hire you right away? If someone downloads a free report from your website, does that mean they are ready to commit to hiring you? Not likely. In fact, research shows that more than half of leads are not ready to buy at the time of first contact, which is why you need to nurture those leads along a specific path to becoming a client using email drip campaigns.

We have used drip campaigns for years for our clients for one simple reason: they work! Research shows that companies that are good at nurturing leads enjoy 50% more sales at a 33% lower cost than companies that put no effort into lead nurturing.

Since email is a one-to-one communication, it can be personalized for whatever stage your lead is in the buying cycle. It is much more effective than blast email campaigns that don’t take your prospect’s buying journey into account. In fact, personalized emails generate up tosix times higher revenue than non-personalized (blast) emails.

This infographic from Eliv8 provides five different email drip campaign opportunities to help you increase your lead conversion rate:

5 Ways to Use Email Drip Campaigns to Convert Leads

ARTICLE BY Stephen Fairley of The Rainmaker Institute

© The Rainmaker Institute, All Rights Reserved

Telecommunication Leases: Battle Over Subleasing Rights

Telecommunication leases can be a unique animal due to the nature of the tenant’s use and business model. In negotiating these leases, the telecommunication leasesparties can run into difficulties negotiating the subleasing rights. Landlords are typically reluctant to agree to a tenant’s ability to freely assign or transfer. In the context of telecom leases, however, it may be worthwhile to consider why these rights, particularly subleasing, are so valuable to tenants and may even be beneficial to landlords.

The Business Model

Several tower companies act as operators and managers of the telecom infrastructure, in other words the “cell tower”, and are often not wireless carriers themselves. Therefore, for these tenants the ability to freely sublease becomes integral to the success of their business, the value of the tower, and the landlord’s ability to reap the benefits. The reason being is that carriers, both nationally recognized like Verizon and AT&T and smaller companies such as a local radio station, seek to sublease space on the tower for which to locate their telecom, wireless or broadcast equipment for the operation of their business. Unlike the standard sublease, the original tenant typically remains an active party, facilitating the operation and management of the tower as permitted under the lease. In this model, the carrier pays rent to the tenant under the sublease of the lease, and the landlord typically receives a base rent and often times a revenue share of the carrier rent or flat fee per carrier as additional rent from the tenant.

The Valuation of Tower Sites

The most desirable towers, aside from location, are those on which carriers can most efficiently install their equipment and become operable. Carriers don’t want to be held up while the tenant obtains written consent for the sublease from the landlord; when they want to locate, they want to locate immediately.  Time is money! Carriers don’t want to worry if consent cannot be obtained for weeks or more because it got lost in the mail or the landlord is on vacation. Instead, the carrier may look for a different tower to locate on altogether eliminating both the tenant’s and landlord’s ability to benefit. Therefore, these desirable towers often become the most valuable since they sublease to multiple carriers. The benefit to the landlord is sustained lease term and base rent, since most telecom leases allow the tenant a unilateral termination right of some sort, and in addition, larger amount of revenue share payments or flat rate payments.

From a landlord’s perspective, however, landlords want to give careful consideration to the effect of such expansion rights, particularly on roof top towers as this expansion may undercut your ability to further lease other roof top space to other telecom users. Roof top agreements have become beneficial sources of revenue for building owners and a landlord will want to ensure that its roof top agreements provide the ability to manage and preserve these revenue rights, and of course roof top space for building’s tenants and occupants.

Subleasing Language

Does this mean a landlord should agree to free subleasing without conditions? Not necessarily. What it means is landlords should consider the impact that the ease of doing business on their tower will have on its attractiveness to carriers. Instead of requiring “prior written consent”, as an alternative, a landlord could seek “prior notice” or “notice” or even a “deemed consent” concept after “flag” notice and a brief period of time. In this alternative, the carriers are able to locate easily and quickly, yet the landlord is still aware of the additional carrier on the tower. Moreover, the landlord’s awareness of how many carriers are on the tower can be useful when it comes time to renegotiate the lease; with an understanding of the value of the tower based on the amount of subtenants present, the landlord may be able to negotiate a higher rent. With easier subleasing rights, it is important that the lease contain adequate installation and alteration provisions (along with insurance and indemnity provisions) to protect the building and its infrastructure and other tenants and occupants. Moreover, with these more liberal subleasing rights, revenue sharing should be investigated.

Consideration and Potential Benefits for Landlords

Landlord considerations to subleasing:

  • Less restrictions on subleasing is more attractive to the potential carrier/sublessee of the tenant;

  • More carriers increase the value of the tower benefiting the landlord’s ability to receive ongoing base rent, and an increase in revenue share or flat rates per carrier received;

  • “Notice” versus “consent” can be a satisfactory alternative to both parties, and one that still provides the landlord with knowledge of how many carriers are on the tower and ultimately how valuable it may be when negotiating rent in the future.

While each party will inevitably push and pull in different directions on the issue of subleasing, from a landlord’s perspective it may be worthwhile to consider why the tenant may be seeking these rights and how the landlord stands to benefit.

ARTICLE BY Samantha A. O’Malley of Sherin and Lodgen LLP

© 2016 SHERIN AND LODGEN LLP