Archives: Mobile Marketing

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Two New Developments in Website Accessibility Cases: Nation’s First Website Accessibility Trial Verdict Is Far From a Winn for Retailers, and Hobby Lobby Is Dealt a Blow in California Decision

As numerous retailers know firsthand, website accessibility has become a hotbed for litigation in recent years. Despite plaintiffs filing scores of website accessibility claims against retailers each year, very few of these cases make it past pleadings, and there has been little to no guidance from the courts. This changed on June 13, 2017, in … Continue Reading

FTC Report Highlights Privacy Concerns and Best Practices for Cross-Device Tracking

On January 23, 2017, the FTC released a Staff Report (the Report) on cross-device tracking, a commonly used practice that allows companies to associate multiple internet-based devices with the same consumer in order to track behavior across devices. The Report follows the FTC’s Workshop on cross-device tracking, and alerts companies engaged in cross-device tracking of certain best … Continue Reading

New FCC Rules on CPNI Will Impact ISP’s and Businesses Who Rely on Internet Tracking Data

By now, most people know that in its recent Open Internet Order adopted on February 26, 2015, the FCC reclassified internet access services as common carrier “telecommunications services” subject to FCC jurisdiction under the Telecommunications Act of 1996.  The Order imposes a new regulatory framework on internet providers and, among many other things, augurs a … Continue Reading

California Passes New Data Breach Laws: Requirement to Offer Identity Theft Protection at No Cost, New Duties Imposed on “Maintainers” of Personal Information, and Sale of Social Security Numbers Banned

California added new provisions to its data breach law on October 1 by signing Bill AB 1710 into law. The amendment to California’s Civil Code (1) requires entities that experience a data breach to provide identity theft prevention and mitigation services at no cost for 12 months if the notifying entity is the “source” of … Continue Reading

FTC Clarifies COPPA “Verifiable Parental Consent” Requirements

The Federal Trade Commission (FTC) modified guidelines it issues to developers who make apps specifically for children. App developers have taken advantage of the soaring lucrative app market aimed at a younger audience that not only enjoys the fast-paced adrenaline rush of modern technology, but actually relies on technology for educational development, as more school … Continue Reading


On April 7, the Digital Advertising Alliance (DAA) announced the release of its Ad Marker Implementation Guidelines for Mobile (Ad Marker Guidelines) at the Interactive Advertising Bureau’s (IAB) Mobile Marketplace conference. The DAA is a consortium of national advertising and marketing trade groups that acts as an industry self-regulatory body. While the DAA traditionally focused … Continue Reading

New TCPA Rules Require Prior Express Written Consent for Mobile Marketing

As of October 16, 2013, the new rules under the Telephone Consumer Protection Act (TCPA) of 1991 went into effect.  The newly adopted rules derive from a report and order issued by the Federal Communications Commission (FCC) on February 15, 2012 intended to “maximize consistency” with the Federal Trade Commission’s (“FTC”) Telemarketing Sales Rule which … Continue Reading

AB 370 Amends CalOPPA To Require Transparency Regarding Consumers’ “Do Not Track” Requests to Websites, Online Services And Mobile Applications

The California legislature has been considering a raft of privacy bills this year, only a couple of which have made it through to the governor for signature.  California Bill AB 370 has garnered the most attention.  It was signed into law by Governor Brown on September 27, 2013 and is set to become effective on … Continue Reading

Industry Steps Up to Establish Guidelines for Mobile Web Environment

Industry members and privacy groups have been on the clock to work out a voluntary standard for notifying users on how their data is collected and used on mobile devices, following prodding by the White House and the Federal Trade Commission. Recently, the Digital Advertising Alliance (“DAA”) followed the Network Advertizing Initiative (“NAI”) in unveiling … Continue Reading

California AG Sues Delta for Failure to Post a Mobile App Privacy Policy

December 12, 2012 by Matthew Fischer On December 6, California Attorney General Kamala Harris initiated the first enforcement action under California’s Online Privacy Protection Act (CalOPPA) in San Francisco Superior Court. The complaint filed against Delta Air Lines Inc. asserts that the airline’s operation of its mobile app called “Fly Delta” violates both CalOPPA and … Continue Reading

Non-Lawyers’ Guide to TCPA Compliance

A number of lawsuits have been filed (wild understatement – truly hundreds) in recent years under the Telephone Consumer Protection Act (TCPA), a federal law that regulates certain forms of direct marketing.  While the law was originally passed in the early nineties (well before the advent of cell phones), many lawsuits have been filed in recent … Continue Reading

Federal Judge Certifies Massive TCPA Unsolicited Text Class Action

There has been a tremendous amount of media attention in recent days on the class certification decision in Agne v. Papa John’s International, Inc., Case No. 2:10-cv-01139.  The facts are relatively straightforward and sadly not uncommon (the decision is available here: PapaJohn’sClassCert[1]).  Plaintiff Agne (2 other plaintiffs were subsequently added but the Court did not consider … Continue Reading

Even More Doing in the World of Robocalls

I wanted to draw folks attention to a recent decision from a federal district court in West Virginia.  The case, Mey v. Pinnacle Security, LLC, 2012 WL 4009718, is significant because it grants summary judgment in favor of a defendant in a TCPA robocall class action.  The reasoning is very interesting; basically, the Court says that … Continue Reading

Consent Under the TCPA: Does Consent Attach to the Mobile Subscriber or the Number?

Consent – in various iterations – continues to be a crucial issue with most TCPA claims.  The FCC recently issued pronouncements that express consent – in writing – had to be obtained before marketing to mobile phones.  Now comes as an interesting federal appellate decision from the 7th Circuit regarding whether consent is transferable.  In … Continue Reading

FTC Announces Preliminary Agenda for Workshop about Advertising Disclosures in Online and Mobile Media

On May 30th, the FTC will host a one day public workshop to consider the need for new guidance for for online advertisers about making disclosures.  As loyal readers of this blog know, the disclosure obligations created by the FTC’s Revised Guides (and from other sources) are complicated by the size of the “third screen” … Continue Reading

Lots of Unsolicited Texting, Twitter Spam in the News Lately

Couple of interesting articles and news stories of late about the proliferation of unsolicited text messaging and Twitter’s efforts to curb spam.  Regarding the former, expect the recent media attention to result in an uptick in the number of Telephone Consumer Protection Act (TCPA) class actions filed.  An interesting aspect of the NY Times story … Continue Reading

FCC to Issue New Rules for Direct Marketing Via Autodialers

While the “official” rules have not been released, the Federal Communications Commission (FCC) recently approved new rules to clarify the requirements for automatically dialed or prerecorded calls (so-called “robocalls”) and automated text messages. As I noted in this Law360 article about the new regulations, the requirements of direct marketing are a heavily regulated and often confusing … Continue Reading

Supreme Court Weights in on Direct Marketing Cases Brought Under TCPA

The United States Supreme Court recently decided Mims v. Arrow Financial, Case No. 10-1195.  The specific issue concerned whether state or federal courts (or both) have subject matter jurisdiction over cases brought under the Telephone Consumer Protection Act (TCPA), a fairly obscure law that regulates calls, texts and faxes.  The TCPA provides for statutory damages of … Continue Reading

Recent Borders’ Bankruptcy Highlights Crucial Disclosure Issues Regarding the Collection and Use of Consumers’ Personal Information

The recent bankruptcy of the Borders bookstore chain raises several interesting and often overlooked issues regarding the importance of “clear and conspicuous” disclosures in corporate privacy policies.  With the increasing importance and “valuation” of consumer information, companies need to consider proactively how they will disclose the terms and conditions that will apply to the personal … Continue Reading

The (Potential) Downside(s) of Mobile Marketing

The benefits of mobile marketing are undeniable.  Among other things, SMS and MMS campaigns create a personalized interaction between brand and consumer and foster brand loyalty.  However, with great opportunity comes great peril.  As you likely know if you are reading this blog, mobile marketing is regulated by federal law – the Telephone Consumer Protection … Continue Reading

Looking forward to speaking at Bridge Conference in D.C. this week

It seems that I will not be able to escape the heat as 100 degree temps are forecast for both Chicago and D.C. this week.  Regardless, am looking forward to presenting at the 2011 Bridge to Integrated Marketing & Fundraising Conference.  My co-presenter (and friend) Cyndi Greenglass and I will be speaking about privacy issues … Continue Reading

Companies Need to be Extremely Vigilant About Mobile Marketing and Services: Many Novel TCPA Class Claims Filed Recently Against Group Texting Services (and others)

A particular fascination – some might say obsession – of mine is direct marketing litigation under the Telephone Consumer Protection Act, particularly some of the novel ways plaintiffs’ lawyers attempt to extend the reach of the law. The TCPA was originally passed in 1991 to curb the abusive practices of some telemarketers; since that time, … Continue Reading