Congress Adopts New Cable Operator Advertising and Billing Requirements Affecting Both Video and Broadband Internet Offerings
As part of the 2019 year-end congressional appropriations wrap-up free-for-all, Congress adopted a new Section 642 of the Communications Act that significantly changes how a cable operator advertises and bills video subscribers. The law applies to both stand-alone video programming packages and the video portion of bundled plans that combine video programming with broadband Internet service.
Ninth Circuit Holds that "Diet" Soda Name Is Not False or Misleading
With the arrival of 2020, many people have begun their New Year's resolutions to get healthier and lose weight. Is "diet" soda the secret to weight loss success? Not according to the Ninth Circuit, which held last week that it is not reasonable to believe that drinking "diet" soda will help in efforts to lose weight and affirmed dismissal of a false advertising lawsuit.
Adding Fuel to the Fire: Company's Hidden Fee Sparks FTC Suit
On December 20, 2019, the Federal Trade Commission (FTC) sued FleetCor Technologies, Inc., a fuel card marketer, and Ronald Clark, its CEO, in the Northern District of Georgia. The FTC lawsuit alleges that FleetCor charged customers hundreds of millions of dollars in hidden fees, making its promises about helping customers save on fuel costs false. The Defendants market various payment cards, including fuel cards, to companies in the trucking and commercial fleet industry. While the FTC interprets its authority to cover businesses, as it chose to do here, it does not often do so. The FTC's vote to authorize the filing of the complaint was 4-1, with Commissioner Wilson voting no, and Commissioner Philips voting yes, but dissenting on the inclusion of Clarke as an individual defendant. In its complaint, the FTC cited numerous actions of the CEO that allegedly showed his awareness of FleetCor's deceptive practices. FleetCor issued its own press release in response to the FTC's suit denying the allegations.
Statutory Dreams or Equitable Nightmares: A Trifecta of Cases Before the Supreme Court Threatens the FTC's Enforcement Authority
In recent days, the ghost of cases past returned to haunt the FTC and possibly compromise its ability to obtain equitable monetary relief under Section 13(b) of the FTC Act. Three cases now pending Supreme Court review have the potential to significantly threaten the FTC's enforcement authority: Liu v. SEC; FTC v. AMG Capital Management, LLC; and FTC v. Credit Bureau Center, LLC. Given the unique posture of each case in comparison to the other two, the Court has the opportunity, at the least, to provide guidance and, at most, to directly decide whether Section 13(b) allows for such relief.
An Even Quicker Method to Challenge Advertisements? NAD Announces Fast-Track Process Workshop to Kick Off the New Year
On December 19, 2019, the National Advertising Division (NAD) closed out the year with an announcement of its plans to "develop a fast-track process to more efficiently handle certain types of online and social media advertising claims." These claims include insufficient disclosures, such as influencer posts that fail to disclose an influencer's material connection with a sponsor; general claims that are in violation of NAD and/or Federal Trade Commission guidance, such as unending sales; and claims that are simply untrue. As part of the program's rollout, NAD will host an exclusive fast-track process workshop in New York on January 23, 2020. The announcement follows the NAD Annual Conference this quarter, where the Division said that it expected to see an uptick in challenges concerning consumer reviews.