NBC Universal could once again be facing class-action privacy lawsuit for allegedly sharing web users' data with Meta Platforms, a federal judge indicated Wednesday.

U.S. District Court Judge Paul Englemayer in New York previously dismissed the privacy case. But in an opinion issued Wednesday, Englemayer said he will reverse course, provided the matter comes before him again.

The legal battle dates to 2022, when Missouri resident Sherhonda Golden claimed in a class-action complaint that NBC violated the federal Video Privacy Protection Act (VPPA) by sharing her video-viewing data with Facebook, via the Meta Pixel analytics tool.

Congress passed that law in 1988, after a Maryland store disclosed the video rental history of Supreme Court nominee Robert Bork to a newspaper. The statute prohibits video rental companies from disclosing personally identifiable information about the viewing history of video renters, purchasers and subscribers without their permission.

NBC urged Englemayer to dismiss the case, arguing that Golden wasn't a “subscriber” to Today.com.

But Golden countered that she had subscribed to a Today.com email newsletter, which included links to online videos.

In late September, Engelmayer accepted NBC's argument and dismissed the complaint. Golden appealed that decision to the 2nd Circuit Court of Appeals, but hasn't yet made any substantive arguments to that court.

Soon after Engelmayer dismissed Golden's complaint, the 2nd Circuit ruled in a separate video privacy lawsuit that the term “subscriber” should be interpreted broadly.

“The VPPA is no dinosaur statute,” Circuit Judge Beth Robinson wrote in that case, in an opinion joined by Judges Reena Raggi and Eunice Lee.

“Congress deployed broad language in defining the term 'consumer,' showing it did not intend for the VPPA to gather dust next to our VHS tapes,” the judges added. “Our modern means of consuming content may be different, but the VPPA’s privacy protections remain as robust today as they were in 1988.”

That appellate ruling means that Golden should have been considered a subscriber to NBC, and that her class-action complaint warranted further proceedings, Englemayer essentially said Wednesday.

Golden “alleged that she used her Today.com digital subscription to view videos through its website and mobile application while concurrently logged into her Facebook account, which caused her personal viewing information to be transmitted to NBCU's third-party business partners,” Englemayer wrote.

The complaint “has thus plausibly pled that she is a 'subscriber of goods and services,'" he added.

He said that if the 2nd Circuit sends the case back to him for reconsideration, he will withdraw his earlier decision that granted NBC's dismissal motion. The opinion leaves open the opportunity for NBC to argue that the case should be dismissed for other reasons.

The early morning line on Cyber Week shopping is that sales are topping last year’s, Salesforce reports. 

Thanksgiving produced a 6% increase in global online sales YoY to $33.6 billion.

In the U.S., sales grew by 8% to $8.1 billion, showing that promotional emails may be doing their job. 

As for today -- Black Friday -- global sales should hit $71.5 billion and U.S. sales $17.7 billion as shoppers take advantage of holiday discounts, Salesforce projects. 

“Back in the spring of 2024, nearly two thirds of consumers reported that they were waiting for Cyber Week deals to make splurge purchases,” says Caila Schwartz, director of consumer insights, Salesforce: “The sales and order growth over the last few days implies that these shoppers stayed true to their word. This could be the strongest Cyber Week we’ve ever seen.”

A majority of U.S. consumers will shop online between 9 a.m. and 3 p.m. EST. This period will account for 42% of all online Black Friday sales. 

On Thursday, mobile drove 72% of global online orders -- a 3% increase YoY -- and 80% of all online traffic, a 1% hike YoY.

Social media drove 13% of mobile traffic and 11% of ecommerce visitor volume.

Mobile wallet usage increased 41% globally YoY and 40% in the U.S. on Thanksgiving.

On another front, early data showed that 20% holiday purchases are being influenced by AI and agents.

Inflation seems somewhat tamed, with average global selling prices rising by only 2% YoY on Thanksgiving, one of the smallest increases since 2022.

The top verticals in terms of growth worldwide? They were:

• Home dining, art, and décor — 39%
• Makeup — 22%
• Health & beauty — 21%

The U.S. results were slightly different:

• Home appliances, dining, furniture — 20%
• General footwear & handbags — 18%
• Food & beverages — 14%

The average U.S. discount rates? They are in:

• All health & beauty (including makeup, skincare, and haircare — 38%
• General apparel — 33%
• Home appliances, dining, furniture — 30%

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Mobile shopping hit highs on Thanksgiving Day, reaching 59.5% of all online sales -- representing $3.6 billion in online spending via mobile, up 10.5% year-over-year (YoY), according to data released Friday.

Marketers looking to buy additional media might want to look at mobile purchases, which has become easier to do.

Overall, online sales peaked in the final hours of Thanksgiving Day between 8 PM and 10 PM as the day's holiday festivities wound down.  

Adobe Analytics measured the impact of marketing investments this season. For affiliates and partners -- which includes social-media influencers -- the share of traffic to retail sites came in at 19.3%, growing 7.8% YoY.

On Thanksgiving, Adobe’s data showed influencers converting shoppers defined as individuals making a purchase after seeing influencer content were eight times more than social media overall. 

Consumers overall spent $6.1 billion online Thanksgiving Day 2024 -- up 8.8% year-over-year (YoY).

Adobe Analytics released the data Friday based on ecommerce transactions of more than 1 trillion visits to U.S. retail sites, 100 million SKUs and 18 product categories.

The data shows the increase was driven by discounts across the board. In toys, for instance, discounts peaked at 27.2%.

Shoppers also took advantage of 26.5% discounts in electronics, 22.6% in apparel, 19.2% in appliances, 19.1% in sporting goods and 16.3% in furniture.

Captify tracked clicks at retail stores the week before Black Friday to get a sense of where consumers would shop. Walmart experienced the biggest increase in searches among major brands for Black Friday sales, up 38% YoY.

Kohl’s had the next-highest increase at more than 30% YoY, followed by Target with 14%, Best Buy at 12%, JC Penney at 9% and Amazon at 5%.

Overall, searches for early Black Friday deals from October 1 through November 20 have totaled 87,300. 

That has not been the case in the past month. Captify U.S. data shows Target took the lead on retail sites for brand searches including the term “Black Friday.”

Target drove 57% of the searches compared with 2023 data, while Best Buy drove 31%, followed by Amazon at 25%, and Walmart at 10%. Kohl's did not show any change in search traffic. 

Target results was boosted by deep cuts that came on Sunday, as well as early doorbusters and deals at Best Buy that attracted shopper interest, according to the data. 

Categories also varied. These changes in search represent the difference in searches for the category compared with the week before Black Friday last year -- November 11, 2023 through November 17, 2023.

The Tools & Home improvement category jumped 73% compared with YoY data. Apps & Games at 40% followed, Health & Household at 33%, Kitchen & Dining at 26%, Camera & Photo at 21%, Office product at 15%, Art Crafts & Sewing at 14%, Beauty & Personal Care at 13%, Patio Lawn & Garden at 6% and Electronics at 3%.

The programmatic ecosystem is far from secure, judging by a new study from Pixalate: The Programmatic Ad Seller Misrepresentation Report: Web Traffic. 

Of all ad traffic containing the SupplyChain Object (SCO), 11% failed Pixalate’s SCO verification in Q3 because of unauthorized sellers. 

Moreover, “5% of all desktop and mobile web open programmatic ad impressions are sold by unauthorized ‘direct’ sellers,” the study states,

And, 94% of invalid traffic (IVT), including ad fraud, involved an unauthorized direct seller. 

What all this means is that the digital advertising ecosystem is vulnerable to unauthorized selling despite ads.txt, the tool meant to enable buyers to check whether sellers are authorized by the publisher. 

The findings prove a “critical need for stricter enforcement of ads.txt and SCO verification checks,” the study argues. 

And, they challenge the industry assumption that ads.txt has "secured" digital advertising, it continues. 

In addition to the 11% that failed, 63% of the traffic was verified and 25% suffered other verification failure.  

Pixalate's data science team analyzed 9 billion open programmatic ad impressions containing the OpenRTB SCO during Q3 2024, the study says.  

In addition, the analysis includes “a set of SCO verification checks as defined by Pixalate, utilizing IAB Tech Lab’s ads.txt/app-ads.txt standards, along with SCO data from the OpenRTB bid stream.”

Google on Wednesday urged a federal appellate court to reverse a finding that the Play Store policies violated antitrust law, and to vacate an injunction that would require the company to revamp its app marketplace.

“This case involves an extraordinary attempt by a lone competitor to use the federal judiciary to restructure the day-to-day operations of Google’s app store, Google Play, and to unilaterally reshape markets with consequences for millions of non-parties,” Google writes in an appellate brief filed with the 9th Circuit Court of Appeals.

“If not reversed, the injunction and the flawed liability ruling underlying it will directly undercut Google’s efforts to compete against Apple and the iPhone,” Google adds.

The company's argument comes in a battle dating to 2020, when Forniter developer Epic Games brought antitrust suits against both Google and Apple. Epic sued soon after both Google and Apple removed Fornite from their mobile app marketplaces for allegedly attempting to bypass Google and Apple commissions on in-app purchases. (Both Google and Apple charge a commission on purchases made in apps that have been downloaded from Google Play or the App store.)

Epic's suit against Apple went to trial in 2021, and largely resulted in a defeat for Epic. U.S. District Court Judge Yvonne Gonzalez Rogers in the Northern District of California, who presided over the non-jury trial, ruled that Epic failed to prove the bulk of its claims. Rogers said in her ruling that Google and Apple compete to distribute apps.

Nearly two years later, Epic's suit against Google went to trial. In that matter, a jury found that Google created or maintained an illegal monopoly in two “markets” -- Android app distribution, and Android in-app billing. The jury also found that Google wrongly tied company's ability to distribute through the Play store to Google's payment system.

Last month, U.S. District Court Judge James Donato in San Francisco, who presided over the Google trial, issued a sweeping injunction that requires Google Play to host other companies' app stores, and give those companies access to Google's library of apps. The injunction also prohibits Google from forcing developers to use its billing system for Play Store apps, among other provisions.

The injunction is currently stayed.

Google is now asking the 9th Circuit to reverse jury's verdict and to permanently vacate the injunction.

Among other arguments, Google says the jury's verdict should be thrown out because it's inconsistent with Rogers' ruling in Epic's suit against Apple.

Donato wrongly “allowed Epic to argue that Google and Apple do not compete in app distribution and in-app billing markets, even though Epic already fully litigated and lost that issue in its case against Apple,” Google argues.

The company adds that Rogers' ruling should have precluded Epic from pursuing a “litigation do-over.”

Google also says the injunction should be set aside for numerous reasons, including that it's too broad.

“At the request of Epic -- a single, self-interested competitor -- the court adopted a sweeping, nationwide injunction fundamentally altering Google’s relationships with Play’s users, developers, and other partners throughout the United States,” Google argues.

The 9th Circuit is expected to hear arguments in the case on February 3.

Tech firm PubMatic has formed a partnership with Intuit’s SMB MediaLabs, a media network, that will provide B2B advertisers with the ability to offer business owners “relevant products and services that best fit their needs,” says Dave Raggio, vice president of Intuit SMB MediaLabs.

Launched in July 2023, Intuit’s SMB MediaLabs is a media network that focus on small and medium-sized businesses. It leverages 36 million identifiers through Intuit QuickBooks, while keeping the underlying customer data secure on Intuit’s platform, it says.

The new arrangement provides buyers and publishers with premium, brand-safe inventory across CTV, video and mobile. In addition, SMB MediaLabs advertisers will be able to connect to these data segments directly via PubMatic’s self-service Convert platform.

This will unlock “permissioned self-service capabilities” for customers, says Raggio.

“Our partnership with Intuit SMB MediaLabs is an incredible opportunity to bolster PubMatic’s support of the B2B market,” says Tim Rogers, vice president of commerce media at PubMatic. “We will connect marketers to small and medium businesses wherever they engage with the open internet across PubMatic’s premium omnichannel inventory.”

PubMatic cites a forecast published by eMarketers that the digital B2B ad spend will top $18.3 billion in the U.S. this year. In addition, it shows that nearly 90% of businesses are SMBs. 

T-Mobile on Monday urged a federal appeals court to vacate a $90 million fine imposed by the Federal Communications Commission for sharing wireless customers' location data.

The fine is “arbitrary and capricious” and violates “fundamental principles of fair notice,” the company writes in an appellate brief filed with the D.C. Circuit Court of Appeals.

Among other arguments, T-Mobile contends that the FCC hadn't previously said all location data should be treated as “customary proprietary network information,” and therefore subject to confidentiality rules. Instead, according to T-Mobile, the FCC only required carriers to keep location data confidential when it was directly tied to voice services -- essentially meaning that the data would reveal customers' locations when they were talking on the telephone.

The location data at the center of the fine came from “location-based services” connected to non-voice services -- such as the Life Alert program, which sends medical help to people, or roadside assistance company AAA -- T-Mobile says.

“The FCC cannot impose massive penalties on past conduct based on a newly announced interpretation” of confidentiality requirements, T-Mobile wrote.

T-Mobile also argues the fine violated its right to a trial by jury, arguing that a jury trial would “prevent the FCC from improperly acting as rule-maker, investigator, prosecutor, judge, and jury.”

The carrier's argument comes in response to the Federal Communications Commission's April order, issued by a 3-2 vote, fining the carrier -- as well as Verizon and AT&T -- for selling access to customers geolocation data to aggregators that resold the information to outside companies. (The FCC fined AT&T $57 million and Verizon $47 million. T-Mobile's $92 million fine included a $12 million fine for Sprint, which merged with T-Mobile in 2020. AT&T and Verizon are also challenging the fines, and made arguments similar to T-Mobile's.)

FCC Commissioner Brendan Carr -- recently tapped by president-elect Donald Trump to lead the agency -- dissented from the decision to fine the carriers. He argued in a written dissent that the Federal Trade Commission was the appropriate agency to police the privacy practices at issue.

Carr also agreed with the carriers that the location data at the center of the fines hadn't previously been subject to confidentiality rules.

“Today’s FCC orders rest on a newfound definition of customer proprietary network information ... that finds no support in the Communications Act or FCC precedent,” he stated in April. “And without providing advance notice of the new legal duties expected of carriers (to the extent we could adopt those new duties at all), the FCC retroactively announces eye-popping forfeitures totaling nearly $200,000,000. These actions are inconsistent with the law and basic fairness.”

The FCC initially proposed the fines in 2020 -- around two years after it emerged that a Missouri sheriff used geolocation data provided by Securus Technology to track other law enforcement officers, without court orders. Securus obtained the location data from the phone carriers. Around one year later, Vice Media's Motherboard detailed how a journalist was able to pay a “bounty hunter” $300 to track a phone's location to a neighborhood in Queens.

The major U.S. carriers have said they no longer sell location data.

T-Mobile’s holiday campaign is facing some unexpected complications from the ad industry’s self-regulating body.

Last week, the Better Business Bureau’s (BBB) National Advertiser Division (NAD) issued a decision asking T-Mobile to drop or modify its recent ad starring Snoop Dogg and Patrick Mahomes. The 30-second broadcast ad debuted across major networks earlier this month.

At issue in The “Top Three Plays of the Day” adis its  characterization of T-Mobile’s holiday promotional deal promising a free iPhone16 Pro and 20% off monthly service costs compared to its competitors in the wireless space.

Competing wireless brand AT&T brought the challenge through the NAD’s fast-track SWIFT process for single-issue advertising cases. The NAD cited  the line: “Now at T-Mobile.com get the new iPhone 16 Pro ON US and families can save 20% every month versus the other big guys.”

In issuing its ruling, NAD said it determined the ad “reasonably conveys the message that consumers who choose T-Mobile will receive both a free iPhone 16 Pro and save 20% versus AT&T and Verizon,” and that this message wasn’t properly qualified by on-screen disclosures. NAD recommended T-Mobile either discontinue the ad or modify it to provide adequate disclosure about the material conditions related to each offer.

T-Mobile expressed disappointment with the decision in its advertiser statement, the NAD reported in a release announcing the decision, and plans to appeal the decision to the National Advertising Review Board (NARB).

“As we said in our campaign, T-Mobile customers get best in class benefits and savings, like a free iPhone 16 Pro on Go5G Next, and families can save 20% every month on their plan with streaming services compared to similar plans and streaming from AT&T and Verizon,” T-Mobile told Marketing Daily. “We’re appealing the NAD’s decision as we clearly laid out how customers can make the most of these savings and benefits and decide what’s best for them.”

The decision follows a similar ruling this past August  filed by T-Mobile against AT&T, through the SWIFT process. The NAD asked AT&T to discontinue or modify its advertising claim that “Supplemental Coverage from Space (SCS) is currently available to AT&T consumers.”

Successful ad targeting requires a multichannel approach across that can personalize the reach consumers all sizes of computers, from mobile to desktop to the devices that stream live or on-demand content in our living rooms or bedrooms.  

For Apple, a low-cost TV streaming stick that makes it easy to bring content, apps, and smart-home features with a simple path to install or build upgrades for more households is the missing piece. The device is something Mark Gurman, chief correspondent at Bloomberg, wrote about in his Sunday piece.

Apple CEO Tim Cook has spent years in discussions with incoming U.S. President Donald Trump, which I find interesting. He developed a personal relationship through phone calls, dinners and meetings during the first Trump administration, people familiar with the interactions told The Wall Street Journal.

Each meeting consisted of one challenge in search of a resolution. It seems that methodical process Cook is known for would benefit Apple’s challenge with search-giant Google in terms of paying the company millions to use its engine if he took that same approach.

Apple creates some of the most elaborate and entertaining content for the Apple TV app, but AI Intelligence, Apple’s artificial intelligence engine and agents, would give it the opportunity to leave behind its multibillion-dollar partnership with Google Search and increase the success of first-party data targeting across its devices.

Apple paid Google’s parent company Alphabet about 18 billion in 2023. Google pays Apple to maintain its status as the default search engine on Apple devices, but if the U.S. Department of Justice has its way, the industry may see an end to that payment very soon.

“Instead of a full set, the tech giant should create the building blocks for an Apple living room setup,” Gurman wrote. “That starts with making an HDMI streaming stick that can rival the Google Chromecast and Amazon Fire TV Stick.”

He wrote that the devices sell for under $50 and are capable enough to run full operating systems.

“If Apple offered a cheap and quick way to access tvOS, the App Store and services on any TV, it could quickly create a foothold and increase its services revenue,” he wrote, and I agree, but Apple would also gain the ability to more accurately personalize and target ads.

AI Intelligence would not only allow Apple to find its own way to support a stronger search engine, improve on its voice assistant Siri, but also create closer ties with television and ad targeting.

The advertising industry has high hopes for streaming and connected TV (CTV) in 2025. Ron Gutman, CEO of Wurl, expected to see more digital technologies employed on CTV in 2025 that will drive viewers to watch and interact with content and ads in new ways.

“For streamers and publishers, AI will bring more personalized recommendations and interactive content experiences to CTV like we’ve seen drive success on other platforms such as web and mobile,” Gutman said. “For CTV advertisers, deep contextual data will provide greater insight into viewer emotions and how people react to content, allowing for more precise ad placement and messaging.”

And if Apple wants to expand further into Europe, free ad-supported streaming TV (FAST) will continue to find its way across Europe with markets in the U.K., Germany, Spain, Italy and France leading the way.

“During the past year, we saw major platforms and broadcasters launch new FAST initiatives, from Titan OS and Virgin Media TV to BBC, ITV, Channel 4 and Channel 5 with the launch of Freely,” said Keith Bedford, GM of EMEA at Wurl. “As we head into the new year, content will be key. We’ll hopefully see more high-profile and quality content being brought to FAST that will help drive Europe’s FAST market growth.”

Content like sports will serve as a huge opportunity for the growth of ad-supported streaming in 2025. As studios and sports broadcasters struggle to tie in major upfront deals and connect with younger audiences, new models for revenue and content discovery will be required, he said.