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The Federal Communications Commission recently released a Declaratory Ruling in response to a cable television system operator’s request for clarification as to pending consumer class action litigation in California.  The class action claim was that cable operator billings for set-top boxes and remote controls were in violation of FCC negative-option billing rules, unless and until each customer shall individually, “affirmatively request by name” any such specific goods or services prior to being charged for them.  The FCC’s declaratory ruling rejects such absolutist literalism and provides a more substantive rule in accordance with practical experience:  The Cable Act negative option rules of Section 623(f) and FCC Rule Section 76.981 “are satisfied if, during the exchange of information between the cable operator and consumer regarding cable services, equipment, and prices, the consumer knowingly accepts the offered services and equipment by affirmative statements or actions.”  The FCC explains that in a typical customer/service rep interaction, “A simple ‘yes’ or ‘I agree’ should suffice” if the particular services and equipment in question has been clearly described.  The FCC further concluded that “Where state or local laws regarding the negative option billing provision conflict with federal regulations, federal regulations prevail” (Declaratory Ruling, FCC DA11-391, ¶¶10, 13; March 1, 2011). 

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