Top FCC Advisor Defends FCC Consumer Protection Actions
On September 24, 2015, Gigi Sohn, an advisor to FCC Chairman Tom Wheeler, spoke at the Roger Williams School of Law in Rhode Island on the FCC’s role in consumer protection. During her remarks, she asserted that “no FCC has been as committed to consumer protection as the Wheeler FCC” and highlighted some of the Commission’s key consumer protection initiatives during Wheeler’s tenure. These efforts included scrutiny of the Comcast-Time Warner Cable merger (which was ultimately abandoned), ongoing slamming and cramming enforcement actions (led by actions against the four largest carriers for premium SMS texting charges), and increased enforcement of the Commission’s privacy and data breach rules, open internet transparency rules, rules against Wi-Fi blocking and robocalls, and public safety rules. She also referenced the Commission’s July 10, 2015 Declaratory Ruling and Order as an example of pro-consumer activity by the agency. Finally, in response to criticism that the FCC should not play an active role in national consumer protection efforts, Ms. Sohn commented that the Commission is an essential complement to the Federal Trade Commission and the Department of Justice because of its unique industry expertise, ex ante regulatory approach, and authority to investigate proposed mergers under a public interest standard.
FCC Cites Two Companies for TCPA Disclosure Violations
On September 11, 2015, the FCC’s Enforcement Bureau issued citations to two companies for alleged violations of the TCPA and the Commission’s implementing rules. In one of the citations, the Bureau claimed that First National Bank (FNB) violated the TCPA through its Online Banking Services Agreement and its Apple Pay Terms & Conditions, both of which “require[d] consumers to consent to receive marketing texts in order to use” the services. Additionally, FNB allegedly failed to include a “clear and conspicuous disclosure informing the consumer of his or her right to refuse to give such consent” as required by FCC rules. The second citation was against Lyft, Inc., a transportation matchmaking service. The Bureau alleged that Lyft’s Terms of Service Agreement violated the Commission’s rules because although the Agreement contained language that “purport[ed] to recognize the consumer’s right to refuse consent to receive promotional messages as a condition to receiving service,” Bureau staff discovered during its investigation of the company that “exercising the option to decline marketing messages made it impossible to use Lyft’s services.” Both companies had thirty days to respond to the citations or risk incurring additional sanctions, including monetary penalties.