Tag: telecom law

SUPERBOWL CIPA SUNDAY: Does Samsung’s Website Chat Feature Violate CIPA?

Happy CIPA and Super Bowl Sunday TCPA World!

So, Samsung is under the spotlight with a new CIPA case brought by a self-proclaimed “tester.” You know like Rosa Parks?? Back to that in a bit.

The California Invasion of Privacy Act (“CIPA”) prohibits both wiretapping and eavesdropping of electronic communications without the consent of all parties to the communication. The Plaintiff’s bar is zoning in to CIPA with the Javier ruling.

If you recall, Javier found that “[T]hough written in terms of wiretapping, Section 631(a) applies to Internet communications. It makes liable anyone who ‘reads, or attempts to read, or to learn the contents’ of a communication ‘without the consent of all parties to the communication.’ Javier v. Assurance IQ, LLC, 2022 WL 1744107, at *1 (9th Cir. 2022).

Here, Plaintiff Garcia claims that Defendant both wiretaps the conversations of all website visitors and allows a third party to eavesdrop on the conversations in real time during transmission. Garcia v. Samsung Electronics America, Inc.

To enable the wiretapping, Plaintiff claims that Defendant has covertly embedded software code that functions as a device and contrivance into its website that automatically intercepts, records and creates transcripts of all conversations using the website chat feature.

To enable the eavesdropping, Defendant allows at least one independent third-party vendor to secretly intercept (during transmission and in real time), eavesdrop upon, and store transcripts of Defendant’s chat communications with unsuspecting website visitors – even when such conversations are private and deeply personal.

But Plaintiff currently proceeds in an individual action but if Samsung does not take appropriate steps to fully remedy the harm caused by its wrongful conduct, then Garcia will file an amended Complaint on behalf of a class of similarly aggrieved consumers.

Now back to Civil Rights.

According to this Complaint, Garcia is like Rosa Parks, you know, the civil rights activist. Why?

Well, because “Civil rights icon Rosa Parks was acting as a “tester” when she initiated the Montgomery Bus Boycott in 1955, as she voluntarily subjected herself to an illegal practice to obtain standing to challenge the practice in Court.”

Because Wiretapping and civil rights are similar right??

Disgusted.

The Plaintiff’s bar has no problem muddying the waters to appeal to the courts.

Do better.

CIPA is some dangerous stuff. Websites use chat features to engage with consumers all the time. It seems like it is easier to communicate via chat or text than to sit on a call waiting for an agent – assuming you get an agent. But maybe not?

Stay safe out there TCPA World!

Til next time Countess!! back to the game, GO EAGLES!!! #Phillyproud

Article By Jenniffer Cabrera of Troutman Firm

For more communications, media, and internet legal news, click here to visit the National Law Review.

© 2023 Troutman Firm

What’s New in 5G – February 2023

The next-generation of wireless technologies – known as 5G – is expected to revolutionize business and consumer connectivity, offering network speeds that are up to 100 times faster than 4G LTE, reducing latency to nearly zero, and allowing networks to handle 100 times the number of connected devices, enabling the “Internet of Things.”  Leading policymakers – federal regulators and legislators – are making it a top priority to ensure that the wireless industry has the tools it needs to maintain U.S. leadership in commercial 5G deployments.  This blog provides monthly updates on FCC actions and Congressional efforts to win the race to 5G.

Regulatory Actions and Initiatives

Spectrum

  • The FCC grants relief to a 600 MHz licensee serving Tribal Nations, giving it more time to complete and deploy its wireless network.

    • On January 4, 2023, the FCC’s Wireless Telecommunications Bureau (“WTB”) released an Order granting a third request by Pine Cellular Phones, Inc. (“Pine Cellular”) to extend its construction deadline for one of its 600 MHz licenses by one year from January 9, 2023 to January 9, 2024.  In 2019, Pine Cellular was a winning bidder in the Broadcast Incentive Auction (Auction No. 1002) of two 600 MHz licenses.  After the licenses were awarded, the FCC prohibited the use of funding from the Universal Service Fund for equipment and services deemed to pose a national security risk.  Pine Cellular planned to rely on that now-prohibited equipment to meet its construction requirement, but it has since been unable to acquire and install compliant equipment due, in part, to global supply chain issues.  The WTB granted Pine Cellular’s request because it recognized that the only way for Pine Cellular to fulfill its construction requirement is to remove and replace all prohibited equipment in its network and that termination of the license would not facilitate the provision of wireless broadband service, particularly to the Choctaw Nation, which is covered by Pine Cellular’s license.

  • The FCC grants additional licenses for spectrum in the 2.5 GHz band for commercial wireless services.

    • The WTB released a Public Notice on January 5, 2023, announcing the grant of four additional licenses for spectrum in the 2.5 GHz band, the auction for which concluded on August 29, 2022.  A list of the licenses, sorted by licensee, is available here.  And list of the same licenses, sorted by market, is available here.

  • The FCC takes further action to enable commercial operations through spectrum sharing in the 3.5 GHz band.

    • On January 10, 2023, the WTB and Office of Engineering and Technology (“OET”) released a Public Notice approving the new Environmental Sensing Capability (“ESC”) sensor deployment and coverage plans of Federated Wireless in the 3.5 GHz band.  Federated Wireless is now authorized to operate its ESC sensors to protect federal incumbents in Alaska and must, among other things, operate in conjunction with at least one Spectrum Access System (“SAS”), which manages non-federal access to the 3.5 GHz band, that has been approved for commercial deployment.

    • In addition, the WTB and OET released a Public Notice on January 12, 2023, certifying that the SAS operated by RED Technologies SAS (“RED”) has satisfied the FCC’s testing requirements and been approved to begin its initial commercial deployment (“ICD”), subject to certain conditions.  After RED operates its ICD, it is required to submit a report, and assuming that the report is satisfactory, RED will then receive authorization to operate for a five-year term.

  • The FCC revises its framework for making public safety spectrum in the 4.9 GHz band available for commercial wireless services.

    • On January 18, 2023, the FCC released an Order and Further Notice of Proposed Rulemaking establishing rules that provide for a nationwide Band Manager for public safety operations in the 4940-4990 MHz (“4.9 GHz”) band.  The Order replaces the previous framework for the 4.9 GHz band, which allowed states to lease the spectrum to third parties, including commercial entities, through a designated statewide lessor.  The new framework will allow the Band Manager to coordinate all use of the spectrum nationwide, including by making it available for secondary, non-public safety use – such as commercial 5G wireless services – by allowing non-public safety entities to lease unused 4.9 GHz band spectrum.  The Further Notice seeks comment on implementing the new leasing framework and selecting the Band Manager.  Comments and reply comments on the Further Notice will be due 30 days and 60 days, respectively, after publication in the Federal Register.

Other Agency Actions

  • The Federal Aviation Administration proposes requirements to help foster coexistence between 5G operations in the C-band and aircraft relying on radio altimeters.

    • On January 22, 2023, a Notice of Proposed Rulemaking issued by the Federal Aviation Administration (“FAA”) was published in the Federal Register.  The Notice proposes to update the FAA’s existing Airworthiness Directive (“AD”) regarding the coexistence of licensees of spectrum in the 3.7-4.2 GHz band (“C-band”) and radio altimeters.  Specifically, the FAA proposes interference tolerance requirements for radio altimeters and requirements that all aircraft operating under its rules meet power spectral density requirements to operate in the contiguous U.S. after February 2, 2024.  The FAA has determined that radio altimeter tolerant airplanes will not experience unsafe conditions at any airport identified by the FAA as a 5G market.  It has also determined that any 5G C-band provider that maintains the mitigated actions, which are based on the power levels to which Verizon and AT&T previously agreed, will not have an effect on the safety of transport and commuter airplanes with radio altimeters that meet the interference tolerance requirements.  The FAA will assess changes in the agreed-upon power levels.  Comments on the FAA’s proposals are due February 10, 2023.

  • The Department of Defense seeks comment on developing a spectrum roadmap.

    • On January 4, 2023, the Department of Defense (“DoD”) released a Request for Information seeking input to support the development of a Next-Generation Electromagnetic Spectrum Strategic Roadmap, which Congress requested of DoD in a June 2022 letter.  Among other things, DoD requests input on its ability to use commercial systems for its operations and spectrum sharing.  The deadline for providing input is February 10, 2023 at 2:00 pm ET.

5G Networks and Equipment

  • The FCC reminds rip-and-replace funding recipients of their reporting obligations.

    • On January 11, 2023, the FCC’s Wireline Competition Bureau released a Public Notice reminding parties that receive funding from the FCC’s Reimbursement Program to remove and replace equipment that poses a national security risk of their obligation to file their Reimbursement Program spending reports.  The spending reports, which, among other things, must include a detailed accounting of the covered equipment and services that have been removed and replaced, are due by February 10, 2023.

Article By Angela Y. Kung and Christen B’anca Glenn of Mintz

For more data privacy and cybersecurity legal news, click here to visit the National Law Review.

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

911 Network Reliability Deadline Approaching

Earlier this month, the FCC announced that its 2022 911 Reliability Certification System is now open for Covered 911 Service Providers to file annual reliability certifications.  The filings are due on October 17, 2022.  Failure to submit the certification may result in FCC enforcement action.

Background

In 2013, the FCC adopted rules aimed at improving the reliability and redundancy of the nation’s 911 network.  Those rules require Covered 911 Service Providers (“C9SP”) to take steps that promote reliable 911 service with respect to three network elements: circuit auditing, central-office backup power, and diverse network monitoring.  The Commission identified these three network elements as vulnerabilities following a derecho storm in 2012 that significantly impacted 911 service along the eastern seaboard.

Applicability. The rules apply to all C9SPs, which are defined as any entity that provides 911, E911, or NG911 capabilities such as call routing, automatic location information (ALI), automatic number identification (ANI), or the functional equivalent of those capabilities, directly to a public safety answering point (PSAP).

Certification. The rules require C9SPs to certify annually that they have met the FCC’s safe harbor provisions for each of these elements or have taken reasonable alternative measures in lieu of those safe harbor protections.  The certification must be made under penalty of perjury by a corporate officer with supervisory and budgetary authority over network operations.

In 2018 and 2020, the FCC sought comment on changes to the 911 reliability certification rules, but the rules have not yet been updated as a result of those proceedings.

Enforcement Against Noncompliant Providers

Last year, the FCC entered into eight consent decrees with Covered 911 Service Providers that failed to submit their reliability certifications in 2019, 2020, or both.  A Consent Decree typically requires the recipient to admit it violated an FCC rule, pay a fine to the federal government, and implement a Compliance Plan to guard against future rule violations.  These Compliance Plans required the C9SPs to designate a compliance officer, establish new operating procedures, and develop and distribute a compliance manual to all employees.

Additionally, the providers were required to establish and implement a compliance training program, file periodic compliance reports with the FCC detailing the steps the provider has taken to comply with the 911 rules, and report any noncompliance with 911 rules within 15 days of discovering such noncompliance.

Looking Forward

C9SPs have about one month to confirm compliance with the reliability rules and submit a required certification.  Based on the FCC’s enforcement efforts last year, C9SPs would be well-advised to work diligently to meet this upcoming deadline.

Article By Wesley K. Wright and Liam Fulling of Keller and Heckman LLP.

For more communications and telecom legal news, click here to visit the National Law Review.

© 2022 Keller and Heckman LLP