We previously reported on the FCC’s 2016 Privacy Order, “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services” impacting Internet service providers’ data privacy practices and obligations and the corresponding timeline for compliance. Intervening events, however, have made the rules imposed by the 2016 Privacy Order moot. On June 26, 2017, the FCC adopted a new order providing guidance on reinstating the pre-2016 Privacy Order regulations. This order was issued pursuant to a joint resolution of Congress under the Congressional Review Act, signed by the President on April 3, 2017, disapproving the FCC’s 2016 Privacy Order. As a result, the 2016 Privacy Order has “no force or effect.” FCC Chairman, Ajit Pai, stated that the purpose of the new order is to “simply make clear that the privacy rules that were in effect prior to 2016 are once again effective.”
On December 2, 2016, the Federal Communications Commission (“FCC”) published its Report and Order entitled “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services” (the “Order”) as a final rule in the Federal Register, adopting rules applicable to Internet service providers (“ISPs”) intended to protect the privacy of broadband consumers. Despite the publication of the rules in the Federal Register, uncertainty remains regarding when ISPs must be in compliance with some of these newly established privacy obligations. Although the rules are effective January 3, 2017, the FCC has made exceptions to the January 3, 2017 effective date for provisions which have not yet been approved by the Office of Management and Budget (“OMB”). This includes many of the operative provisions of the new rules regarding ISPs’ data collection and use. Once such provisions are approved by the OMB, notice will be published in the Federal Register announcing their approval and corresponding effective dates.
Despite the uncertainty regarding the effective dates of many sections, the publication of the Order puts ISPs on notice of the new rules, and ISPs should begin revising their practices so that they are able to meet the earliest possible effective dates. Here is what ISPs need to know regarding compliance with the new rules:
On January 23, 2015, Senior Attorney Lesley Fair at the Federal Trade Commission (“FTC”) posted on the Agency’s business blog clarifying how the Children’s Online Privacy Protection Act (“COPPA”) applies to schools. COPPA seeks to protect the privacy of children by allowing parents to control what personal information about their children under the age of thirteen may be collected by “operators” of websites or online services, including apps, that are either directed to children or that knowingly collect personally identifiable information from children. Subject to certain regulatory exceptions, the entities covered by COPPA must notify parents and obtain consent before collecting, using, or disclosing any personal information from children under thirteen.
Last Thursday the Federal Communications Commission (FCC) issued an order confirming that companies must include opt-out instructions on all fax ads, even for recipients who previously agreed to receive a fax from the company. The order clarifies that solicited fax ads, like unsolicited ads, must also comply with the rules set forth in the FCC’s 2006 Junk Fax Prevention Order. All fax ads must contain an opt-out notice that (1) is clear and conspicuous and on the first page of the ad, (2) states that the recipient may make a request to the sender not to send any future ads, and (3) contains a domestic phone and fax number so that the recipient has a contact for opt-out purposes.
Effective September 1, 2009, companies subject to FTC jurisdiction will not be able to make interstate prerecorded telemarketing calls to EBR consumers absent the prior express written agreement of the consumer. Effective December 1, 2008, any company that continues to make such calls must comply with new restrictions that will continue even after September 1, 2009 when prior express written consent of the consumer is mandatory.