The FCC Enforcement Bureau should change tactics to avoid the risk of targets making an end run around its processes by taking advantage of recent U.S. Supreme Court decisions to drag the agency into litigation, said former FCC General Counsel Tom Johnson in a white paper sponsored by CTIA and published Monday by Wiley, where he's a partner.
With the U.S. Bankruptcy Court for New Jersey having issued an order Tuesday authorizing and approving Rite Aid’s settlement with the FTC, Rite Aid and the commission asked the U.S. District Court for Eastern Pennsylvania in Philadelphia to lift their stay and enter their stipulated order for permanent injunction and other relief (see 2401050021), said their joint motion Wednesday (docket 2:23-cv-05023). The settlement with the FTC bars Rite Aid from using facial recognition technology for surveillance purposes in its stores for five years. The agency had alleged that Rite Aid failed to implement reasonable procedures and prevent harm to consumers in its use of facial recognition technology to combat theft in hundreds of its stores.
The personal finance mobile app, FloatMe, and co-founders Joshua Sanchez and Ryan Cleary agreed to pay the FTC $3 million to settle allegations that they promise consumers short-term cash advances if they enroll in a $1.99 monthly membership plan, but then they fail to deliver on those promises (see 2401020026), said their stipulated order Monday (docket 5:24-cv-00001) in U.S. District Court for Western Texas in San Antonio. FloatMe, Sanchez and Cleary also agreed to a permanent injunction barring further misconduct, said the stipulation. The injunction prohibits the company from “misrepresenting, expressly or by implication,” the amount of funds that will be available to a consumer and when those funds will be available, it said. The defendants "neither admit nor deny any of the allegations” in the FTC’s Jan. 2 complaint, said the stipulated order.
Qualcomm promotes Chief Financial Officer Akash Palkhiwala to expanded role of CFO and chief operating officer ... Former FTC Consumer Protection Bureau Director Jessica Rich, ex-Kelley Drye, joins Consumer Product Safety Commission as general counsel, succeeding Austin Schlick, who is promoted to executive director … Bureau of Industry and Security hires Microsoft’s Elizabeth Cannon as first executive director-Office of Information and Communications Technology and Services … Sinclair moves Diana Wilkin to vice president-general manager, West Palm Beach, Florida, market ... Fox promotes Jeff Collins to president-advertising sales, marketing and brand partnerships, succeeding Marianne Gambelli, retiring … LG Ad Solutions, connected TV and cross-screen advertising platform, names GumGum’s Angela Barnett head-corporate communications ... WWE parent company TKO Group Holdings adds Uptake Technologies founder Brad Keywell and actor and part WWE owner Dwayne Johnson to its board, expanding it to 13 members ... DoubleVerify, software platform for digital media measurement, hires Onfido’s Alex Valle, also former Criteo and ex-Google, as new chief product officer, succeeding Jack Smith, moving into newly created role of chief innovation officer ... Infoblox, cloud networking and security services company, taps Lyft’s Amy Farrow as senior vice president-chief information officer.
A recent 5th U.S. Circuit Appeals Court ruling relied on the same line of cases that Amazon and other defendants cited in support of their motions to dismiss the FTC’s case alleging violation of the Restore Online Shoppers’ Confidence Act, said defendants’ filing (docket 2:23-cv-00932) Monday in U.S. District Court for Western Washington in Seattle. In their notice of supplemental authority relating to their motions to dismiss the FTC's amended complaint, the defendants cited the 5th Circuit’s Jan. 8 ruling in Commodity Futures Trading Commission v. EOX Holdings, in which the court reversed a civil-liability finding in favor of the plaintiff because “the Defendants lacked fair notice of the CFTC’s unprecedented interpretation” of a CFTC rule, said the notice. In that case, the CFTC argued that the rule’s “‘controlling plain language’ provided ‘fair notice’ to the public,” the notice said. The 5th Circuit reversed a lower court's ruling, holding that the rule was “at best ambiguous” and “did not give fair notice to the Defendants absent further guidance from the FTC.” The EOX case is relevant to arguments in Amazon’s motion that “fair notice” standards apply only “if a court ‘must defer to an agency interpretation of a statute or regulation’ ... or the agency itself is acting as the adjudicator,” the notice said. The FTC alleges Amazon used “manipulative, coercive, or deceptive user-interface designs,” or dark patterns, to trick consumers into enrolling in automatically renewing Prime subscriptions, it said. The company “knowingly complicated” the Prime cancellation process, said the complaint.
Following last week’s oral argument in two Chevron cases before the U.S. Supreme Court (see 2401170074), the future of the doctrine appears in doubt.
Numerous class actions challenging the “secret collection and monetization” of cellphone geolocation data have survived motions to dismiss and Norma Egan’s should as well, said the plaintiff's opposition Friday (docket 1:23-cv-11651) in U.S. District Court for Massachusetts in Boston to X-Mode Social's motion to dismiss her first amended privacy complaint.
Here are Communications Litigation Today's top stories from last week, in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.
The U.S. Supreme Court’s conservative majority appeared receptive to industry arguments that the court should overturn, or at least narrow, the Chevron doctrine, which gives agencies like the FCC and FTC deference in interpreting laws that Congress passes. The court heard oral argument Wednesday for more than 3.5 hours in two cases challenging Chevron deference, Loper Bright Enterprises v. Raimondo and Relentless v. Commerce. Both concern fishing regulations and don’t touch directly on communications regulation.
Unhappy with the FTC’s “scrutiny of its privacy practices,” Meta alleges various theories why the entire agency is unconstitutional, but its latest arguments show that its claims “have no support,” said the FTC’s reply brief Wednesday (docket 1:23-cv-03562) in U.S. District Court for the District of Columbia in support of its Dec. 13 motion to dismiss Meta’s claims.