Welcome to the Tech & Telecom Weekly, an e-newsletter keeping you apprised of the latest developments in the telecommunications and high-tech industries.

FCC Policy

On July 23, 2020, the FCC issued a $2.8M Forfeiture Order available here against HobbyKing for marketing and selling drones containing unauthorized audio/video (A/V) transmitters. The transmitters use spectrum that is also used by federal agencies, including the Federal Aviation Administration, thus causing risk of interference. The Order resolves an investigation that began in 2016. In addition to imposing a fine of $2,861,128, the Order “warn[s] HobbyKing that continued failure to comply with the equipment marketing requirements is likely to be met with additional sanctions.” For more information, contact Stephanie Joyce.

The next FCC Open Meeting is August 6, 2020, at 10:30 am ET. The Tentative Agenda contains five items, described here. For more information, contact Stephanie Joyce.

Broadband News

In accordance with the Broadband Deployment Accuracy and Technological Availability (DATA) Act, the FCC has adopted new rules to enhance its collection and mapping of broadband availability, in accordance with the Broadband Deployment Accuracy and Technological Availability (DATA) Act. The new rules implement the primary provisions of the Broadband DATA Act, which includes submission of standardized broadband availability maps by mobile and fixed broadband providers. The FCC also seeks further comment on proposals for stakeholders to challenge the availability data submitted by providers, and reforms to the FCC’s current Form 477 data-gathering. The Order and Further Notice of Proposed Rulemaking can be found here. (WC Docket Nos. 19-195, 11-10; FCC 20-94) For more information, contact Katherine Barker Marshall.

Compliance Alerts

The FCC Form 499-Q is due August 3, 2020, for all filers that are not considered to be de minimis for Universal Service contribution purposes. The filing encompasses historical revenues from the 2nd quarter of 2020, and projected revenues for the 4th quarter of 2020. The filing must be completed in the Universal Service Administrative Company’s portal found here. Contact Katherine Barker Marshall if you have any questions about the filing or Universal Service Fund requirements.

The FCC has added requirements to its Enhanced 911 rules for wireless carriers. Beginning January 6, 2022, wireless carriers are required to transmit dispatchable location information with 911 calls when technically feasible. The Order also augments current timeless for deployment of coordinate-based vertical location (z-axis) technology, which is used to provide accurate location information in multi-story buildings. Under the current requirements, national wireless carriers must meet z-axis location technology requirements in the top 25 markets by April 2021, and in the top 50 markets by April 2023. Now they are required to deploy z-axis location technology nationwide by April 2025, though non-national wireless carriers received an extra year to comply in their service areas. A copy of the Order can be found here (PS Docket No. 07-114; FCC 20-98). For more information, contact Katherine Barker Marshall.

In the Courts

The COVID-19 pandemic has been a boon to grocery delivery startup Instacart Inc., which turned its first profits in April after eight years. It also appears to have spawned unfair competition by Cornershop Technologies, Inc., according to this complaint filed recently in the Eastern District of Texas. Instacart claims Cornershop illegally accessed and “scraped” its platform, copying “thousands of copyrighted and licensed images, along with product descriptions, pricing data, and other information.” According to Instacart, Cornershop “has carried out its illegal enterprise with striking audacity,” blatantly advertising “for engineering positions in Texas with job duties including ‘scrap[ing]…catalogs.’” Latin America-based Cornershop entered U.S. markets in May, in partnership with Uber, Inc., whose pending acquisition of Cornershop still faces regulatory hurdles. Cornershop has not yet filed a response to the claims. For more information, contact Susan Metcalfe.
On July 22, 2020, Slack Technologies, Inc. sued Microsoft Corp. at the European Commission for alleged, anticompetitive tying of the Teams application to the Office suite of software products. Jonathan Prince, Slack VP of Communications and Policy, said of the suit, “Slack threatens Microsoft’s hold on business email, the cornerstone of Office, which means Slack threatens Microsoft’s lock on enterprise software.” Read the Slack press release here.

Legislative Affairs

The House Antitrust Subcommittee will hold a hearing on July 29, 2020, 12:00pm ET, titled Online Platforms and Market Power, Part 6: Examining the Dominance of Amazon, Apple, Facebook and Google. Reportedly, the CEOs of each company will testify. In addition, according to a letter from Rep. Jim Jordan, Ranking Member of the House Judiciary Committee, Twitter CEO Jack Dorsey has also been invited. The hearing will be livestreamed here.

Three congressional hearings will be held tomorrow, July 28, 2020, at 10:00 am ET:

  • The Senate Communications Subcommittee will convene a hearing titled The Pact Act and Section 230: The Impact of the Law That Helped Create the Internet and an Examination of Proposed Reforms for Today’s Online World. Scheduled to testify are the Honorable Christopher Cox, Director of NetChoice, Olivier Sylvain, Professor of Law at Fordham University, Jeff Kosseff, Assistant Professor, U.S. Naval Academy, and Elizabeth Banker, Deputy General Counsel of the Internet Association. The hearing will be livestreamed here.
  • The House Subcommittee on Investigations and Oversight, together with the House Subcommittee on Research and Technology, will convene a hearing titled The Role of Technology in Countering Trafficking in Persons. Scheduled to testify are Anjana Ragan, CTO of Polaris, Matthew Daggett of the Lincoln Laboratory at MIT, and Emily Kennedy, President and Co-Founder of Marinus Analytics. Information about livestreaming is available here.
  • The Senate Subcommittee on Intellectual Property will convene a hearing titled How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?. Two panels of witnesses are scheduled to testify, including Grammy Award-winning artist Yolanda Adams. The hearing will be livestreamed here.

Privacy

July is proving to be a pivotal month in privacy law. As we reported last week, the European Court of Justice invalidated the EU-US Privacy shield in response to an individual’s claim against Facebook after his data was transferred from Facebook Ireland to Facebook Inc. in the United States. The ruling leaves the “Standard Contractual Clauses”, SCCs, as the primary, and arguably only, defensible path forward for U.S. and EU companies to share personal data.

In addition, the California Attorney General began enforcement of the CCPA, California’s groundbreaking privacy law, by sending notices to alleged non-compliant businesses. The near-universal expectation is that enforcement will increase significantly as California returns to work after the initial COVID-19 lockdown. These enforcement actions could have significant impacts for businesses who face civil penalties that can range from $2,500 for a non-intentional CCPA violation to $7,500 for an intentional violation. Read AG Becerra’s press release here.

Finally, the federal district court of Maine has rejected an early challenge to Maine’s internet privacy law (available here. That law requires internet service providers to get customers’ opt-in before it may track their internet usage. ISPs challenged the law on First Amendment grounds while the ACLU, EFF, and others defended the law. The Court found that the Maine law regulates “commercial speech,” meaning speech “related solely to the economic interests of the speaker and its audience,” and held that it is a legal and a valid exercise of the state’s regulatory powers even though it regulates speech. ACA Connects v. Frey, No. 20-cv-00055 (D. Me. July 7, 2020).
For more information about any of these items, contact Gregory Ewing.
Note: This publication is distributed with the understanding that the author, publisher and distributor of this publication and/or any linked publication are not rendering legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.

Media Contact

Marlene Laro
mlaro@potomaclaw.com
703.517.6449

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