June 22, 2020
Potomac Law Tech & Telecom Weekly
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

The Wireline Competition Bureau is seeking comment as to whether the FCC should assess federal Universal Service Fund contribution obligations and other regulatory fees from one-way (non-interconnected) Voice over Internet Protocol (VoIP) providers. The Bureau first looked at this issue in its 2012 Contributions Reform Further Notice of Proposed Rulemaking but took no action. The deadline for comments is July 13, 2020, with reply comments due July 27, 2020 (WC Docket No. 06-122, GN Docket No. 09-51). A copy of the Public Notice can be found here (DA 20-164). For more information, contact Katherine Barker Marshall .
Compliance Alerts

The proposed federal Universal Service Fund (USF) contribution rate for the third quarter of 2020 is 26.5%. The rate will go into effect July 1, 2020, unless FCC adopts a different number by June 26, 2020. Federal USF is assessed on telecommunications, interconnected Voice over Internet Protocol (VoIP), and conference calling services. A copy of the Public Notice announcing the 3Q20 rate can be found here (DA 20-617). For more information, contact Katherine Barker Marshall .
Cybersecurity

On June 17, 2020, the Department of Justice issued proposals to roll back longstanding legal protections for online platforms. Under Section 230 of the Communications Decency Act of 1996, online platforms are not legally responsible for what third parties post on the platforms. The DOJ’s press release about proposed reforms to Section 230 is here and further detail on the proposed changes is provided by the Attorney General here. For more information, contact Eliza Hall.
In the Courts

In an unusual move, Facebook has filed coordinated, multijurisdictional suits in the Northern District of California and in Madrid, Spain seeking injunctions to prevent the defendants’ automation software from operating on Facebook and Instagram. The N.D. Cal. defendant is a Moroccan developer allegedly behind the data-scraping service Massroot 8, while the defendants in the Spanish suit are MGP25 Cyberint Services and its founder, who are said to provide a bot-based system that Instagram users can use to buy fake ‘likes’ and comments. Facebook’s press release is here . For more information, contact Eliza Hall or Susan Metcalfe .  
IP Protection

As companies look to acquire patent portfolios from inventors, it is wise to consider that those inventors might try to challenge their own patents in order to compete with the acquiring company in the same space. Recently, Becton, Dickinson & Co. purchased HandyLab, including its patent portfolio. HandyLab’s founders, who are the inventors on the patents, then started a new, competing company.
Unsurprisingly, Becton sued the HandyLab founders for infringing the recently purchased patents. In response, HandyLab’s founders have filed four IPRs, most recently IPR202-01095 and IPR202-01091. For more information, contact Greg Ewing.
Legislative Affairs

On June 16, 2020, FCC Chairman Ajit Pai appeared before the U.S. Senate Subcommittee on Financial Services for its oversight hearing on the FCC Spectrum Auctions Program. Chmn. Pai first summarized the FCC’s efforts to ensure residential connectivity during the pandemic. He then focused on developments in spectrum policy, including the recent order allocating the 6 Gigahertz band for unlicensed use and the upcoming auction for the 3.5 Gigahertz band on July 23. The Chairman’s written testimony is available here . For more information, contact Stephanie Joyce .
Privacy

CCPA — On July 1, 2020, California Attorney General Xavier Becerra will begin enforcement of the California Consumer Privacy Act. The CCPA grants California residents certain rights to control their personal data and is the strictest privacy law in the nation. PLG attorneys William Baker , Douglas Bonner , and Greg Ewing have issued a detailed Client Alert on the CCPA and the AG’s implementing rules .
Illinois BIPL

Cases alleging violations of the Illinois Biometric Information Privacy law continue to be costly to businesses. A federal judge in Chicago has blessed a $3.2 million settlement in the class action Jones v. CBC Restaurant Corp. (N.D. Ill.) on claims that Corner Bakery Café broke the law by using a timekeeping system that relied on employee fingerprint scans. For more information about the Illinois biometric law, contact William Baker.
Rural Broadband

Phase I Rural Digital Opportunity Fund — The first stage of the application process for Phase I of the $16 Billion Rural Digital Opportunity Fund reverse auction (Auction 904) is about to begin. Short-Form applications, on FCC Form 183, will be accepted from July 1, 2020 to July 15, 2020. On June 15, 2020, the FCC released instructions and a tutorial for completing the Short-Form application, which are available on the Auction 904 website here. An applicant must submit operational and financial information demonstrating that it can meet the public interest obligations associated with the performance tier and latency combination(s) for which it intends to bid. Eligible areas for bidding are census blocks that are unserved by a service provider with broadband service of at least 25/3 Mbps (based on Form 477 data). On June 9, 2020, the FCC adopted detailed procedures for bidding in the Phase I auction, found in the Public Notice here. Auction bidding is scheduled to begin October 29, 2020. For more information, contact Douglas Bonner.

2.5 GHz Rural Tribal Licenses — The FCC priority filing window for applications for mid-band 2.5 GHz licenses for Tribal Nations closes August 3, 2020. This window provides an exclusive opportunity to secure unassigned eligible mid-band 2.5 GHz spectrum over rural Tribal lands to provide advanced broadband wireless services, including 5G. Eligible areas must be rural Tribal areas, and the applicant must have a “local presence” throughout the Tribal area for which it seeks a license. The spectrum is free for federally recognized Tribes and eligible Tribally owned entities to apply for overlay licenses for unassigned eligible 2.5 GHz spectrum, subject to strict buildout commitments. As of June 17, 2020, approximately 50 Tribal entities have submitted applications for 2.5 GHz unassigned spectrum licenses. The FCC has established a 2.5 GHz Rural Tribal Website, with access to a mapping tool and shape files for Tribal applications, available here. For more information, contact Douglas Bonner.
Telehealth

On June 1, 2020, FDA Commissioner Hahn announced that the agency will increase its scrutiny of unapproved products purporting to diagnose COVID-19. That would include telehealth software that manipulates data or otherwise makes recommendations rather than merely being a data repository. He added that the FDA now may consider approving the use of telehealth to collect data for clinical trials, a remarkable potential change in direction. To read the full announcement, click here. For more information, contact Jur Strobos.
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.
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