The FCC has proposed to exclude so-called “Twilight Towers” from routine historic preservation review under Section 106 of the National Historic Preservation Act (“NHPA”) and its regulations. Section 106 requires a federal agency to engage in a consultation process, which involves identification of a project’s adverse effects on historic and cultural properties and engagement with various interested parties, such as state or tribal historic preservation officers, the project sponsor, and other interested stakeholders, to address such effects. Twilight Towers are towers that were built between March 16, 2001 and March 7, 2005 (“Twilight Period”) that either did not complete Section 106 review or have no documentation of Section 106 review. The Commission inadvertently created the Twilight Period by adopting an exemption from historical review for towers built before 2001 and requiring historical review for towers built after 2005, but failing to clarify the Commission’s historical review rules and procedures for the Twilight Period.
The FCC said its action “constitutes another step towards promoting the deployment of wireless infrastructure.” According to industry groups, there are more than 4,000 Twilight Towers, including towers located in rural areas where providers depend on infrastructure sharing to reduce deployment costs. Under existing regulations, wireless licensees cannot collocate on Twilight Towers unless each collocation completes Section 106 review or the underlying tower goes through an individual post-construction review process. These reviews add significant time, cost, and complication to wireless deployments, and have dis-incentivized licensees from collocating on Twilight Towers and eliminating these towers as sources of improved wireless coverage for over a decade.
According to the Constitution of Mexico, the protection of personal data is a fundamental right of all Mexican citizens. Under federal law, individuals also have a right to access, change, oppose, or suppress their personal data. Although all private companies process data, some are not sufficiently familiar with Mexico’s data privacy principles and regulations, and many may not have an up-to-date assessment of their own risk of a data breach. In addition, they may not be aware that the Mexican Supreme Court’s recent shift in perspective regarding personal injury cases may herald a change in the way data privacy breaches are handled in the future.
What would you advise private companies in Mexico do now to ensure they have strong and compliant data privacy protocols in place?
Typically what I would recommend they do first is take an assessment and inventory of what kind of data they process — whether it’s consumer data, big data, or just business-to-business data.
I’d say the second step would be to see how they process that information and for what purposes they use the information. Processing is what they do with the information. For instance, whether they simply hold the information in order to have contact information for the client to collect receivables or enforce contracts, or if they send marketing communications of their own products and services to the customer database.
Or, if they want to take it one step further, if they sell the data to third parties or strategic partners so they can jointly market the product to customers. We want to understand what the uses are for this data.
The evolution of a new neighbouring right for press publishers is currently the subject of wide and heated debate. The European Commission proposed such a right in Article 11 of its proposal for a new directive on copyright in the Digital Single Market (Draft Copyright Directive – COM(2016) 593 final). The European Parliament’s first approach to this proposed right has been rather skeptical. The Legal Affairs (JURI) committee’s initial report merely proposed a statutory presumption of representation of authors of literary works contained in press publications and the publishers’ legal capacity to sue in their own name when defending the rights of such authors. JURI’s position however changed somewhat when Axel Voss took over the role as rapporteur from Therese Comodini Cachia.
Most recently, we have now seen a leaked draft of a paper analysing the effect such a neighbouring right is likely to have if enacted. The Joint Research Centre (JRC) of the European Commission is authoring a paper headed “Online News Aggregation and Neighbouring Rights for News Publishers”. Although currently only a draft the message is however quite clear. JRC reaches the conclusion that “law can create a right but market forces have valued this right at a zero price”.
2018 will be another dramatic year for TMT. Our job is to help TMT businesses to chart a course through by bringing together the insights of over 800 lawyers who focus on the sector across six continents. That is why we have asked some of our top thinkers globally to provide a snapshot of their vision for the coming year. A single publication cannot analyze every issue in detail – we do that elsewhere. But we hope this will help you to plot some key features on the map of the future.
As the year draws to a close, our global TMT Sector team are looking ahead to 2018.
Where now for convergence – well advanced in TMT and rapidly advancing into other sectors? What is the next stage of development for disruptive technologies like AI, blockchain and 3D printing? Can business successfully navigate concerns about privacy to really make the most of big data? Will traditional media businesses successfully adapt, or is the future really all about OTT? Can infrastructure and spectrum provide the capacity essential to the next phase of digitalisation? How will politics and regulation adapt? What types of deal will all of this generate?
We’ve brought together the thoughts of some of members of the team from Tokyo and Beijing via London and Brussels to Washington DC and Silicon Valley. You can read them in TMT Horizons 2018 accessible here.
In his keynote address at the 6th Annual Winnik Forum, Don Stockdale, the FCC’s new Wireless Bureau Chief, described the primary issues he faces as promoting innovation, making more spectrum available for commercial use, and expanding the deployment of wireless networks. Don began his appointment in June 2017, but has extensive experience as an economist and attorney in both the private and public sectors, with over 15 years of experience at the FCC alone.
Don indicated that the biggest challenges facing the telecom industry today are:
- How the FCC has evolved from being regulator of monopolies under the Communications Act of 1934 to a Commission dedicated to encouraging innovation and competition, especially in wireline and wireless communications; and
- What the Commission has been doing and should be doing to encourage wireless innovation and the deployment of 5G.
Drama at the European Parliament: whoever thought the dispute within the Committee on Legal Affairs (JURI) around the adoption of a new regulation dealing with online transmissions by broadcasters and retransmissions (COM(2016) 594 final) could not become more exciting when JURI voted on its final report at the end of November, was wrong. The rapporteur Tiemo Wölken made a last attempt for new negotiations on the final report prior to the first reading in the EP – and failed. Now, the EP is “ready to start talks with EU governments on new rules for online TV and radio” (press release).
After a long debate and several postponements, on 21 November 2017, JURI finally agreed on a report that significantly differed from the draft regulation that the Commission originally suggested (see our blog post). The report was handed over to the Parliament as the basis for the trilogue negotiations. However, MEP Wölken, who did not support the final recommendation by JURI, took the last option that remained in order to change the report: he relied on Article 69c of the Rules of Procedure of the EP that enables the parliament to reopen the negotiations on the report. Over the last few days, both sides tried to mobilize the supporters of their view on the matter. Finally, the plenary voted with 344 votes against and 265 in favour for MEP Wölken’s request (with 36 abstentions) thereby approving JURI’s report and position.
The vote now paves the way for the adoption of the report by the Parliament and negotiations with the Council and the Commission. Thus, the beginning of 2018 promises to be exciting as well!
I’m currently watching a wonderful new show called “The Marvelous Mrs. Maisel,” on Amazon Prime. It’s a comedy about a recent divorcee in Manhattan in the early 1960s who decides to become a stand-up comedian. As I’m watching the show my thoughts drift to the magnitude of difference between the fictitious Midge Maisel watching Bob Newhart on her 1960s-era television and my present day Sunday night viewing experience.
During his remarks at the Winnik Forum, International Bureau Chief Tom Sullivan reflected on the challenges and opportunities of his role as the United States’ top communications diplomat. “Everyone wants to know what the FCC is doing,” he said. This interest affords the United States, and the FCC, significant opportunities to exert influence on the most pressing issues at the international level.
According to Sullivan, however, actually convincing other countries to collaborate—or even agree—on priorities, is no easy task. When relating recent successes sharing best practices with developing countries, Sullivan said the hard and long hours his team invested to earn the trust of other stakeholders represent a threshold requirement for successfully tackling controversial issues. Sullivan said he considers the current FCC’s efforts to make emergency communications and cybersecurity to be the agency’s foremost priorities. He also said he remained optimistic about the FCC’s ability to implement its ambitious plans over the next few years.
As to other key areas of focus, Sullivan said achieving international consensus on spectrum allocations and assignments, especially with Canada and Mexico, remained a key priority. The FCC’s spectrum-related efforts will soon take center stage as countries work to harmonize spectrum bands for next-generation wireless services and as national administrations prepare for the next World Radiocommunication Conference in 2019.
Last month we hosted our annual ‘Intellectual Values’ seminar in London which this year focused on the ‘connected world’. Sarah Turner, an IP partner in our Tech Hub, gave a talk on the steps companies can take to improve their cybersecurity. The potential damage resulting from a cybersecurity attack is ever increasing as the world becomes more and more connected. Sarah encouraged companies to respond now to the threat by taking the following ten steps:
Step one: Acceptance
Delay is the enemy of protection. Nobody is safe as rogue players target all types of business for their money, personal data and intellectual property. Accept that you will experience a cybersecurity incident at some point and start to put appropriate policies and measures in place now. Luckily, most cyber attacks are relatively basic and it is reasonably easy to put good, simple protections in place.
Step two: Understand your vulnerabilities
You should consider whether any of your businesses are operating in particularly vulnerable sectors (such as healthcare or financial services) or jurisdictions and what assets the “bad actors” are likely to be targeting. Competitors, suppliers, cyber criminals, nation states and politically active hackers may all pose a threat. Unfortunately, most cyber attacks will involve a company insider in some way. Their actions are not always malicious (an employee may unwittingly click on a link in a phishing email thereby permitting access to the business’ networks) but the importance of the human factor within the business cannot be ignored when considering cybersecurity.
On 29 November 2017, the European Court of Justice (CJEU) handed down a decision on a video recording service that stores TV programmes online in a cloud (C-265/16 – VCAST). According to the Court, the cloud recording service has a dual function that enables its users to create reproductions on the one hand but also makes copyright protected works publicly available on the other. The means by which the TV program is communicated to the public differs from the means of the original transmission. Therefore, the transmission constitutes a communication to the public and the business model of a cloud recording service without the right holders consent is unlawful.
Linear TV that can only be watched at a specific time of the day is increasingly substituted by new business models that allow consumers to watch any programs whenever the consumers would like to. One of those business models is currently involved in a litigation in Italy: the cloud recording service of the British operator VCAST Limited. The cloud recorder enables its users to watch terrestrial “free to air” TV programmes by Italian broadcasters – and to store the content in a cloud instead of the private servers of the customers. VCAST did not obtain the right holders consent. By means of the cloud recorder, the Italian TV could also be watched outside of Italy.
The Italian Broadcaster RTI SpA claimed copyright infringement and sued VCAST. However, VCAST relied on the Italian private copying exception based on EU law. The Tribunale di Torino had doubts about the application of this provision on the cloud recording service and therefore submitted two questions that basically deal with the issue whether the cloud recording service is lawful in the light of Art. 5(2) lit. b of the InfoSoc Directive 2001/29.