WEEKLY RECAP

Cox Throttles, AT&T Flip-Flops, MacBook Finds Itself

If you’re tired of picking on Comcast for the way it throttles back peer-to-peer traffic, you can now direct your angry gaze to Cox Communications. Cox does the same thing, according to researchers at the Max Planck institute.

In fact, it’s one of three ISPs they caught engaging in P2P management. The second is Comcast and the third is StarHub in Singapore. At least Cox is somewhat transparent about it — its user policies do say that it will manage network traffic for the good of the whole.

What’s more interesting is that the study found both Cox and Comcast managing P2P traffic during all hours of the day, not just during peak usage times. Imagine driving around a small town at 3 a.m. and coming to an intersection with a cop standing in the middle directing traffic. You’re the only car on the road, but he’s still telling you to stop and waving everyone else through, even though there is no one else. It’s kind of like that.


Listen to the podcast (14:04 minutes).


Hotspot Tease

A while back, iPhone users in Starbucks coffee shops were momentarily treated to free AT&T WiFi. All they had to do was type in their phone numbers to prove they were legit AT&T customers, and there you go, free WiFi on the iPhone. And it was good.

Then, all of a sudden, it disappeared. At the time, it probably seemed like a mass hallucination brought on by a collective caffeine overdose — people went back to business as usual. Days later, though, a small note was added to the page on AT&T’s Web site where customers go to choose an iPhone service plan. It said all iPhone plans allowed access to AT&T hotspots — that’s 17,000 hotspots in the U.S. alone.

But then, just as iPhone users were about to go ahead and get happy, the note was pulled from the site — leaving everyone wondering whether it was a mistake or some sort of tease about the shape of things to come. Who knows — maybe AT&T is really lousy at keeping secrets, or maybe Apple is using its partner to leak out tidbits of interesting information in order to generate a little more buzz — as if the iPhone needed any help.

MacBook, Rescue Thyself

Here’s a crime story with a satisfying end: As a thief was toying around on a MacBook he lifted a few weeks earlier, the victim — who happened to be an Apple store employee — signed onto another computer and used Apple’s Back to My Mac feature to activate the stolen MacBook’s camera.

She then used Apple’s PhotoBooth software to take his picture as he busied himself with her computer. The guy turned out to be easily identifiable — a friend recognized him as someone who had attended a party at the victim’s house, which he evidently decided to turn into a crime scene.

The owner of the purloined MacBook took the photos to the police and gave them the thief’s name. Two men were arrested, and the police recovered a bunch of other property they had stolen from the woman’s home, along with her MacBook.

For the uninitiated, Back to My Mac is part of Apple’s .Mac service. At a cost of about a hundred bucks a year, it lets owners connect remotely to their Macs, as long as they’re running the Leopard operating system.

Apply Direct Pressure

Billionaire investor Carl Icahn is applying CPR to Microsoft’s takeover bid for Yahoo, and he’s giving the deal a real chest-thumping.

Icahn intends to lead a proxy fight at Yahoo’s July 3rd annual shareholders meeting to replace its 10 directors with his own slate of Microsoft-friendly nominees. The stellar cast includes another famous billionaire — basketball team owner-slash-HDNet Chair Mark Cuban.

Unlike the coy mixed signals that characterized the tentative negotiations between Microsoft and Yahoo, Icahn’s signaling is loud and clear.

In a letter to Yahoo Chairman Roy Bostock, Icahn said, “It is irresponsible to hide behind management’s more-than-overly-optimistic financial forecasts.”

Stay tuned to find out if the dead bid comes back to life — and if Microsoft CEO Steve Ballmer and Icahn do the monkey dance together.

CBS’ New Skin

CBS is shedding its old media skin and getting serious about the Internet ad market. The media giant has purchased Cnet, a network of technology-oriented Web sites, in an effort to expand its Internet presence.

CBS will pony up $1.8 billion for the firm. Both companies have moved to increase their shares of the online advertising market in recent weeks.

Cnet announced a new content, advertising and search-marketing partnership with Yahoo, while CBS unveiled its Local Ad Network, which lets CBS TV stations syndicate local news widgets to bloggers and social media Web sites.

Gunning for IBM

HP is buying EDS for a whopping $13.9 billion in a bid to wrest a piece of the tech services outsourcing market from IBM. Under the terms of the deal, EDS investors will receive $25 for each share they own — a 25 percent premium on the stock price the day before the acquisition was announced.

Right now, HP’s strength — or at least its brand identity — is its line of PCs. Yet based on the company’s actions over the past year or so, it is clear it has been moving toward this goal for some time. HP decided to expand its service and product portfolio for a number of reasons.

For starters, a recession does not bode well for its line of desktops, laptops, printers and related computer hardware. Services, by contrast, tend to be multi-year contracts that can buttress a company’s earnings during off cycles. The most immediate gains, though, would be the cross-sell opportunities and cost savings resulting from a merger of the two companies.

Although the acquisition will solidify the gains HP has made in tech services, it is unlikely to get it past the No. 2 slot — at least in the mid term. The numbers alone suggest HP has its work cut out for it, if overtaking IBM is indeed its ultimate goal. IBM registered $48 billion in business service revenues last year. The combined earnings of HP and EDS in this sector are about $10 billion off that mark.

Anti-Trust Me

Some House Democrats are digging up a 94-year-old antitrust law to help push along a new Net neutrality bill.

The Internet Freedom and Nondiscrimination Act of 2008 carves out new territory by leveraging the provisions of the Clayton Antitrust Act of 1914, which prohibits charging different prices to different buyers for the same products.

Given that potential penalties from antitrust cases can run the gamut from heavy fines to the forced breakup of companies, the bill could give neutrality some real teeth. It would require that ISPs interconnect with other network access providers on a reasonable and nondiscriminatory basis, and that they take a similar approach to ensure that all content, applications and Web services are treated equally.

The legislation came just days after the House Energy Committee heard a debate on another neutrality-related bill. The Internet Freedom and Preservation Act would direct the FCC to find ways to force neutrality onto broadband providers, while also requiring them to maintain basic network standards on privacy, pornography and other matters.

Big, Angry Texas

It took a Dallas newspaper and a job search site to convince Texas that it was in fact the home of an Amazon warehouse, and now Texas is one big, red, angry state.

Its department of taxation is suing Amazon, alleging the e-tailer owes it sales taxes going back to 2000, when it opened a distribution center in the Dallas area.

Why is the distribution center pivotal to the case? In 1992, the U.S. Supreme Court ruled that states could collect sales tax from a company not headquartered there — if the company had a physical presence in the state.

The warehouse — a physical presence in Texas since 2000 — went unnoticed until the enterprising folks at the Dallas Morning News took a look at Amazon’s Web site, which lists Dallas as the location of one of its fulfillment centers and even includes job listings for the site.

When Aliens Attack

Dell has developed a reputation for selling basic computers that don’t cost very much. That started to change when it bought Alienware, which is well-known for selling very expensive gaming computers with unique designs and loads of power.

But Dell also has a line called “XPS” — and XPS computers have become more and more advanced as the line has matured. So now Dell is apparently worried that Alienware and XPS are going after the same market and cannibalizing each other.

I think we can all relate to that — who doesn’t worry about getting eaten by aliens?

Dell is getting ready to significantly cut down the XPS line and steer buyers toward Alienware instead, according to The Wall Street Journal. Dell piped up to deny the report — sort of.

It said that XPS gaming systems will remain part of its portfolio, but that it will indeed start pushing Alienware harder.

Open Sesame

Maybe Verizon Wireless is actually serious about openness. The company became the first U.S. wireless carrier to join the LiMo Foundation, a consortium that’s developing a Linux-based software stack for mobile phones.

The move was widely portrayed as a snub of Google, which has butted heads with Verizon over openness since before the Great Spectrum Auction of 2008.

You might recall that Google forced the whole mobile-network-openness debate in the first place by Jedi mind-tricking the FCC into requiring an open network for the coveted C block of wireless spectrum it was auctioning off.

Then it went and formed the Open Handset Alliance, which is developing the Android mobile platform that is also based on Linux. Google then entered a bid for the block that was just big enough to trigger the requirement for open networks, but was outbid by our friend Verizon, which pledged to accept any device and any application on its C block network.

Google has since criticized Verizon for backsliding on its commitment to openness — so what does Verizon do? It joins the other Linux phone club, saying it’s actually more open than OHA. Take that, Android!

Look, Don’t Touch

In the year since the iPhone made its debut, competing phone makers have been busy kicking their own smartphone projects into high gear. A lot have focused on building touch-screen phones, but not Research In Motion.

The BlackBerry Bold is the first new BlackBerry design in a year, and it has a QWERTY keypad. That means the screen is smaller, but it does display at a very high rate of resolution — 480 by 320 pixels showing 65,000 colors.

It also has something the iPhone does not — 3G capabilities. But Apple is expected to come along with a 3G iPhone any day now. The Bold will be available later this summer.

Ask and Receive

One of the earliest promises of Internet search is that you could ask a question and get the answer. Here we are, years later, and you still can’t really do that.

A new company, Powerset, has a search engine that uses natural language logic to bring that ideal a little closer to reality. The engine behind Powerset’s search was developed at Xerox’s PARC R-and-D lab, and Powerset licensed it last year.

The company has released a proof-of-concept that searches only Wikipedia and Freebase, but it’s already raising some eyebrows. Danny Sullivan, editor-in-chief of Search Engine Land, found it “interesting that it actually comprehends the words that it reads.”

We couldn’t get it to offer a good explanation of the meaning of life, but I’m sure they’re working on it.

Also in this week’s podcast: Microsoft launches a telescope; gamer skills help science; more Americans ditching landlines.

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Why the Real Estate Industry Should Embrace the Cloud

The increased adoption of cloud computing over the past decade has enabled businesses across industries to meet their growing technology needs while efficiently gaining access to exciting new tools.

However, not every industry has kept up with the evolution of cloud technologies brought forth by digital transformation. A prime example is the real estate industry. Overall, the real estate sector has been slow to digitize operations and move to the cloud; leaving agents, brokers and their clients underserved.

Cloud computing can cover a lot of ground, with both infrastructure-as-a-service and software-as-a service availability. There is great potential for the real estate industry’s future in both areas.

When properly implemented, cloud computing accelerates the innovation and digitization of real estate services, bringing new apps and tools to the market more quickly. This also adds even more value to the buying and selling experience for agents, brokers and consumers alike.

While the cloud offers much potential for the real estate industry, it is important for companies to have an informed idea of what they want to accomplish before moving some or all their IT functions to the cloud. Don’t just jump on the cloud bandwagon; instead, determine what goals you want to achieve by moving to the cloud and develop a plan for an orderly transition.

If a company’s cloud infrastructure ends up looking exactly like its previous on-premises setup, it’s probably not taking advantage of all the benefits the cloud can offer. Real estate companies moving to the cloud need to think strategically about adding value through the transition.

With that caveat, there are tremendous benefits for real estate companies that move to the cloud.

More Data, More Power

A seemingly immense obstacle real estate companies face is the daunting task of implementing cloud-supportive infrastructure. But the truth is that real estate companies don’t have to plan, build, or operate their own data centers.

Instead, the cloud infrastructure providers can set up and maintain the infrastructure while real estate companies focus on what they do best: selling properties, serving customers, and equipping agents and brokers with the best tools to help them do their jobs.

Cloud infrastructure also offers real estate companies the computing power to run modern tools like data analytics and artificial intelligence. These technologies can help real estate companies find new customers, identify people likely to be interested in buying or selling their homes, and match customers to the best real estate agents to service their needs.

Real estate organizations often have access to huge amounts of market and customer data. However, the sheer volume of data makes it difficult to capitalize on. With cloud computing, real estate companies can gain access to the massive computing power needed to crunch the data, while paying only for the time they use that infrastructure.

Mobility and Disaster Recovery Solutions

Another benefit of storing data in the cloud is that it’s accessible from various devices, which is a boon for the growing mobile workforce. Agents, brokers, and home buyers and sellers are increasingly using smartphones and tablets to get work done remotely. The cloud is much more flexible, accessible, and secure than being tethered to a physical hard drive or on-premises server.

Furthermore, companies that transition to the cloud don’t have to build and maintain a remote disaster recovery site, which can be labor-intensive and time-consuming. Instead, critical data in the cloud automatically fails over to a secondary site in the event of a disaster. All that is required to access data in the cloud — anytime, from multiple devices, anywhere — is a solid internet connection.

Budget-Conscious Security

Major cloud infrastructure providers have a security track record that most real estate companies can’t compete with. They have huge teams of security professionals and the best available security technologies, policies, procedures, and controls to protect the information on their servers and data centers 24/7 with little or no human intervention.

Cloud security measures also support regulatory compliance and establish authentication rules for users and devices. This high level of data security is particularly important in the real estate industry, with customers sharing banking and other personal data during what’s often the largest financial transaction of their lives.

Customers want their real estate transactions to be as secure as possible, and cloud infrastructure providers offer that higher level of protection.

Creating an Open Ecosystem

On the software-as-a-service side, the cloud is the perfect way to host multiple apps and software tools that improve agents and broker productivity. One way to approach this is through the development of a real estate app store that includes a range of software, including CRM tools, lead generation software, open house apps and productivity tools, with everything hosted in the cloud.

In doing so, this creates an open ecosystem, where agents and brokers have a choice of software tools to use, including some apps developed in-house and others from third-party partners. The cloud enables an open ecosystem in which agents and brokers simply decide which apps they want to use from a menu of options available. This provides flexibility while also empowering personal choice and customized solutions for home buying and selling and beyond.

Convenience Is the New Normal

The Covid-19 pandemic has forced real estate companies to conduct more business remotely, with documents shared online. Some firms have been moving a greater number of transaction steps to the virtual realm, using cloud-based services to host and gather documents and collect signatures.

While some customers will continue to demand face-to-face contact with agents and brokers, a significant number will embrace the convenience of a mostly online, cloud-based approach.

The industry is already seeing great benefits from cloud computing. Expect many more advantages to reveal themselves as the industry continues to digitize its operations.

Too often, we see that the failure to innovate today equates to playing catch-up tomorrow. The benefits of cloud technologies for real estate services professionals are clear, and the obstacles of price and infrastructure are entirely surmountable.

Business and information technology leaders in this industry must look beyond outdated legacy systems and begin embracing the cloud — now.

Rizwan Akhtar is executive vice president, chief technology officer of business technology, at Realogy. Akhtar holds an M.S. in Computer Science from the University of South Asia and an MBA from the University of Phoenix.

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Marketers: Beware Florida’s Mini-TCPA

If you do electronic marketing of any kind, you’ve been a captive audience to the ever-changing requirements of the federal Telephone Consumer Protection Act, known familiarly as the “TCPA.” But now, the state of Florida has amended its Telemarketing Act, creating what is being called the “Mini-TCPA.” Florida’s new law changes electronic and telemarketing in significant ways — even if you’re not in Florida.

Years of litigation over the federal TCPA has taught most companies to understand the different forms of consent, how to distinguish sales calls from informational calls, what kinds of call could legally gather information from consumers without straying into highly restricted “sales calls,” and what in the world constitutes an automated telephone dialing system (ATDS).

Now, just as we thought the law was settled — or at least settling — the new Florida state law overturns the apple cart. Many of our prior understandings are out the window. Telemarketing practices will have to change substantially, and the costs of violating the Florida law will be substantial.

Law Applies Even if You Don’t Do Business in Florida

The new statute covers any call made to any device with a Florida area code no matter where the receiving phone is located, and calls made to a person who happens to be in Florida at the time they receive a covered call.

In either case, the calling company will be considered to be “doing business in Florida” and therefore subject to the Mini-TCPA. That’s true even if the calling company has no way to know that these seemingly non-Floridian numbers in fact have some relationship to Florida.

In either scenario, there is a “rebuttable presumption” that the calls are covered by the Florida statute. “Rebuttable presumption” means as a practical matter that government regulators or class action plaintiffs can make you spend lots of money in attorney’s fees trying to prove that the calls weren’t covered.

For economic reasons, many businesses will end up making the business decision to settle these cases rather than litigating the law’s application to them.

Role of the ‘Private Right of Action’

The big danger presented by this statute is the claims that may be made by private parties, not government enforcement actions. That’s because the new Mini-TCPA contains a “private right of action.” Any consumer can sue you claiming you violated the statute. Those suits can be class actions, real or threatened.

Although the statute appears to limit recoverable damages to a maximum of only $500 per violation, that figure is a red herring for a couple of reasons. Plaintiffs tend to claim that each individual call to their phone is a separate violation. One consumer’s calls can quickly become multiple violations and therefore multiples of $500.

In addition, under some circumstances, the law trebles damages. The Mini-TCPA provides for triple the damages and attorney’s fees if the violation was intentional. Since marketing and informational calls are both generally the result of a pre-planned marketing campaign, every call is going to be asserted to be intentional.

Moreover, general Florida consumer law allows recovery of attorney’s fees and, potentially, statutory additional punitive damages.

The ATDS Rabbit Trail

All the noise generated by litigation around the federal TCPA about automated telephone dialing systems may have given businesses the impression that if you avoid using particular kinds of ATDS, you can be sure of avoiding liability. But here again, Florida’s new law changes the game.

Instead of diving into the controversy over what constitutes a covered ATDS machine, Florida simplifies the issue — and expands the danger zone. The new statute focuses its attention simply on “automated systems.” The definition of “automated system” under the Mini-TCPA is much broader than the federal TCPA’s.

As defined by the Mini-TCPA, it encompasses any system that does any one of three things: it either selects the persons to be called, or it dials calls, or it plays recorded messages. It’s hard to imagine a telephonic machine (including the one in your pocket) that isn’t potentially covered by this definition.

Mini-TCPA Goes Beyond Classic Telemarketing

Many businesses’ response to warnings about the applicability of the TCPA to their operations was “we don’t do telemarketing.” That’s because a distinction between telemarketing calls and informational calls has been enshrined in telemarketing regulation since the enactment of the TCPA law. Telemarketing calls were the bad ones; informational calls were the good ones. Later generations of FCC regulations, rules, and orders focus on this difference.

Again, Florida’s Mini-TCPA breaks new ground. While the new Florida statute regulates “telephonic sales calls” made for the traditional TCPA and telemarketing purposes, it appears that the new statute goes further. It now seems to include calls marketing products and services that were in the grey area of TCPA coverage. For example, extensions of credit.

“Non-commercial” calls are going to be exempt from coverage by the Mini-TCPA, but only if the caller has some level of licensure or certification e.g., IRS Section 501(c) and Florida state registration.

However, some authorities say that the statute also covers calls made for ultimate purpose of obtaining information for later use in sales. If this is the case, any calls used to harvest consumers’ personal information for later use in sales will require the called party’s prior express written consent under this statue.

Much of this sits squarely in a grey area. Litigation and additional legislation will certainly affect what the law will actually say. The true application to your individual marketing strategy is going to be hard to predict. Seeking legal counsel is going to be crucial to making wise decisions in this area.

Establishig Consent

If the TCPA taught us any clear lesson, it was that to make (almost) any call “legal” all you needed to do was get the called party’s consent.

What constitutes the appropriate level of consent under TCPA depends on various factors: kinds of calls, call technologies, kind of phone called, who was making the call, etc. For that reason, determining what level of consent is required for any given call under TCPA can require a complicated and troublesome analysis.

The new Florida law simplifies all of this: it mandates that the only acceptable consent for all covered calls is prior express written consent. It then carefully defines what prior express written consent must look like, with several required qualifying elements:

The consent must be in writing, bear the signature of the called party, “clearly authorize” a call using an automated system, include the authorization to call a particular number specified by the calling party, and inform the called party of certain enumerated rights.

In addition, the call must provide to consumers identifying information about the calling party. The new statute also requires that the calling party must maintain records of calls made and the consent obtained.

Sleeper Provisions

The Mini-TCPA, like the federal TCPA, is long and convoluted. There’s too much in the law to cover all the provisions in this short article. So here are some other provisions that may be worth a look:

  • Limitations on call frequency and timing;
  • the way information mining calls will be treated;
  • the liability of a company for the violations of its third-party contractors;
  • the requirements for callers to transmit identifying information; and
  • potential criminal penalties for certain activity.

There is good news, nonetheless: the Mini-TCPA law provides a long list of types of calls which are exempt from coverage by the new statute. However, the exemptions are many and complicated. Many provisions provide an exemption from liability under the statute, then take the exemption away with exceptions to the exemptions.

Competent legal counsel is a must before deciding that a company’s telemarketing is exempt from the statute.

A Final Thought

It’s easy to think that the real threat of this statute is actual litigation. It’s not. It’s the Hobson’s choice presented when your company receives a claim from either government or a private party.

When you receive a claim under the statute, if you weigh the costs of fighting it or settling it, you will quickly come to an ugly realization. Every claim can cost you upwards of $1500, plus attorney’s fees for the claimant, on top of paying your own attorney, plus trebled damages, and other possible damages.

It will almost always turn out that the potential out-of-pocket cost to fight even a bogus claim is going to be much larger than the settlement demands from a plaintiff. Given the possible downsides of litigation, good counsel may well urge you to settle any claim as quickly and as cheaply as possible. If you consider the economics when determining how to respond to a claim, this makes sense.

All of that puts a higher premium on prevention. Talk to your lawyer about how this statute might apply to you, what your exposure is, and how you might bullet-proof your marketing strategy.

The only sure way to win at these claims it to prevent them from being filed.

This article is provided for informational purposes and does not constitute legal advice. The purpose is merely to make the reader aware of some issues that must be addressed by legal counsel. This article cannot substitute for the advice of competent legal counsel addressing the reader’s specific situation.

Brad Elbein is a partner in the Atlanta office of Culhane Meadows, PLLC and is co-chair of the Government, Regulatory and Compliance Practice Group. Brad guides clients through matters involving telemarketing, electronic marketing, advertising, consumer laws (FTC Act, FDCPA, FRCA, TILA, and more), and defense of consumer law claims by government and by consumers.

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