Important Changes at the FCC Bring New Challenges for Advertisers

April 6, 2015

At last week’s Advertising Law & Public Policy Conference, dozens of knowledgeable and informative speakers addressed a variety of important legal, legislative, and regulatory topics for advertisers. One of our speakers, FCC Commissioner Michael O’Rielly, addressed the increasingly significant role the FCC plays in the daily functioning of the advertising community.

According to Commissioner O’Rielly, the convergence of technology – particularly mobile technology – has created a new place for advertisers at the FCC. As the FCC oversees the mobile space, the role of advertising in communications media has become more important to the agency. This is a change from the past when advertisers were largely unregulated by the FCC and received scrutiny almost solely from the FTC on unfairness and deception issues. Now, advertisers and others may be susceptible to FCC regulation without a clear roadmap as to what is/is not permitted or expected.

The FCC’s recent foray into broadband regulation with new net neutrality rules demonstrates that it intends to be an extremely active player in the way that messages are communicated and received online. Privacy regulation, oversight of data security and breaches, and enforcement of various FCC rules and regulations will be the new reality for advertisers. The broadband rules will be subject to court challenge and possible legislative intervention, but as Commissioner O’Rielly pointed out, court decisions could be years away and the passage of legislation is still far from certain. So, advertisers will need to proceed as if the rules are in effect, at least until there is a stay issued by the courts or some other limit on their application.

This enhanced FCC participation may result in concurrent jurisdiction between the FCC and the FTC in some areas. In other ways, FTC regulation may be preempted and the FCC may emerge as the more dominant regulatory authority operating under very different regulatory standards. The exact lines of demarcation between the two agencies is very unclear at this point, so as Commissioner O’Rielly warned, marketers must be vigilant in keeping track of what is being done at the FCC.

Furthermore, the FCC is showing itself to be far more aggressive in regard to privacy, data security, and data breach issues. FCC regulators are not nearly as familiar with the business of advertising as are regulators at the FTC, since there has been a far longer history regarding FTC jurisdiction in our area.  It’s incumbent on advertisers to educate the FCC members and staff about our business, including challenges, opportunities and limitations that advertisers face.

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