Last week, the acting chief of the Federal Communications Commission’s (“FCC” or “Commission”) Enforcement Bureau (“Bureau”), Travis LeBlanc, hinted that the Bureau is exploring the FCC’s authority to use enforcement tools to reach back beyond the FCC’s one-year statute of limitations for forfeitures. This revelation is consistent with the increased emphasis on enforcement that our firm has noted over the past year (see, e.g., Recent FCC Actions Signal Increased Enforcement and Reduced Leniency and There’s a New Sheriff in Town: FCC Enforcement Bureau Serves Up a New Brand of Justice).
Per the Communications Act, the FCC must propose a forfeiture for violations of its rules within one year of the alleged violation. The FCC has long taken the position that this statute of limitations applies only to forfeitures and not to other types of FCC actions. In the past, the FCC has generally only applied non-monetary sanctions beyond the one-year statute of limitations.
However, in speaking at the Federal Communications Bar Association’s 10th Annual Privacy & Data Security Symposium on March 25th, LeBlanc indicated that the Bureau was exploring the FCC’s authority to use other enforcement tools that could also reach back more than one year. This may be of particular concern to broadband Internet access service providers who now find themselves subject to many of the FCC’s Title II provisions and implementing rules for common carriers.
With the FCC’s reclassification of broadband Internet access service or “BIAS” as a “telecommunications service,” the Commission will likely take on more responsibility for regulating all aspects of a BIAS offering. For example, LeBlanc discussed the application of Section 222 of the Communications Act, which requires common carriers to protect their customers’ proprietary information. In its order reclassifying BIAS as a Title II common carrier service, the FCC extended this requirement to BIAS providers. And, unsurprisingly, at a data security symposium, LeBlanc emphasized the FCC’s intent to ensure that broadband providers maintain strong data security practices.
LeBlanc also discussed the FCC’s plans to review broadband providers’ advertisements more carefully. The Federal Trade Commission (“FTC”) typically reviews advertisements to make sure they do not mislead consumers (pursuant to Section 5 of the FTC Act). However, in its Order reclassifying broadband Internet access services, the FCC clarified and enhanced its transparency rules for broadband offerings by, among other things, requiring that a provider’s advertisements are accurate and consistent with the service performance and terms offered by the provider.
If you have any questions regarding your company’s compliance with FCC rules or would like more information on the potential impact of the FCC’s reclassification of broadband Internet access providers on your company, please contact Jonathan Marashlian: email@example.com – 703-714-1313; Jackie Hankins: firstname.lastname@example.org – 703-714-1314; or Linda McReynolds: email@example.com – 703-714-1318.