In one of the most significant antitrust cases in recent years, AT&T won the right to merge with Time Warner when Judge Richard Leon ruled in their favor yesterday.
AT&T and Time Warner announced their merger in October 2016. The merging parties touted the synergies that they could achieve by combining AT&T’s distributional power with Time Warner’s unique content.
After an extensive review of the merger, the U.S. Department of Justice (DOJ) filed a complaint to block the deal in the District Court of the District of Columbia on 20 November 2017. The trial began on 19 March 2018 and continued for the next six weeks.
In opposing the transaction, the DOJ primarily relied on the theory that AT&T would use Time Warner’s “must have” content as leverage to extract higher affiliate fees from rival distributors, thereby harming competition in the content distribution market. This is somewhat different from the traditional “foreclosure” analysis in vertical deals, which focuses on the extent to which the acquirers’ competitors cannot compete effectively without access to the target’s product. The DOJ also argued that AT&T would act to deter new, virtual distributors by restricting their access to popular Time Warner content. Finally, the DOJ contended that the merged entity could restrict the use of HBO as a promotional tool by other distributors. This “vertical” theory of harm is not new, but the U.S. antitrust enforcement agencies had not challenged a merger on this theory in 40 years before this complaint was filed.
In rejecting the government’s theories of harm, Judge Leon found that the government ultimately “failed to meet its burden to establish that the proposed transaction is likely to lessen competition substantially.” Below are some key takeaways from the opinion.
This edition features a total of 14 articles which capture various significant TMT developments in Greater China. These developments cover an extraordinary breadth of topics and demonstrate a strong increase in the nuance and complexity of TMT law and practice in the region.
Cybersecurity in China remains a hot topic. The Cyber Security Law is already in place but the question is how this law is going to be interpreted and implemented. In this edition, we will look at various draft/trial measures which provide further insight on key topics such as critical information infrastructure and security review of network products. We will also look at closely related topics concerning data localisation and cryptography.
There is no doubt that China offers huge potential for technology businesses. The Huawei v. Samsung case is an excellent example of how China has become a new arena for global patent and FRAND disputes. The market is also opening up for areas such as cloud service providers and, more generally, the sharing economy. An important part to these developments is IP and e-commerce, and we will look at how China is establishing new laws and regulations (and courts) to brace itself for these challenges.
Turning to Hong Kong, the Securities and Futures Commission remains very much on the forefront in leading market discussions on cybersecurity standards and online advisory platforms in Hong Kong. We will take you through the details of those discussions, as well as the Hong Kong government’s recent proposal to launch a statutory “do-not-call” register to put a tighter control on person-to-person telemarketing calls (cold calls or otherwise). We are pleased to present you this edition, which we hope will help you navigate through all these new developments.
Click here to view the brief in full.
In the most recent program part of the Internet of Things Webinar (IoT) Series, speakers Lisa Ellman, Gretchen West, and Matt Clark held a close lens to the exciting topic of unmanned aircraft systems (UAS) or so-call “drones.”
As one of the most evolving subjects in the IoT space, audience members were given an insightful and comprehensive look at the significant legal and regulatory issues surrounding the use of commercial drones.
The speakers leveraged their diverse industry knowledge and experience to touch on key points, including:
- The opportunities and benefits of commercial drones
- How businesses can successfully navigate rapidly evolving UAS legal and policy frameworks
- Drone security issues and what to expect from the federal government
- What’s next of the UAS legislative, regulatory, and policy fronts
To hear more on this topic, please access the full webinar recording using this link
The Supreme Court handed down its much anticipated judgment in Cartier International AG v British Telecommunications Plc today. The Judges held unanimously that rights-holders should bear the costs of implementing website-blocking injunctions. In doing so, the Supreme Court reversed the Court of Appeal majority judgment. Although the case concerned blocking sites selling counterfeits, the judgment is not limited to online trade mark infringement. It will also apply in cases where ISPs (who are not caching or hosting) are required to block access to infringing copyright content.
The background to the case is that in 2014 Arnold J ordered the five major UK ISPs to block a number of websites that were advertising and selling counterfeit goods. He also held that the ISPs should bear the costs of the implementation of the blocking order. According to Arnold J, with one possible exception, it was the first occasion on which an application for a website-blocking order had been made in Europe in order to combat trade mark infringement. See our earlier blog on the first instance decision here. The ISPs appealed, both in relation to the blocking order and in relation to the costs. The Court of Appeal dismissed the appeals. The ISPs then appealed to the Supreme Court on the point of whether they should be required to bear the costs of implementing the blocking order.
Today, the Supreme Court unanimously reversed the Court of Appeal’s judgment, to make rights-holders responsible for paying the costs of complying with blocking injunctions incurred by ISPs who act as mere conduits, and who are therefore legally innocent.
In the third instalment of the 2018 Internet of Things Webinar (IoT) Series, Yarmela Pavlovic, Paul Otto, Elisabethann Wright, and Fabien Roy hosted an educational webinar focusing on the evolving world of connected medical devices.
Fabien described the regulatory framework applicable to digital health technologies regulated as medical devices in the EU. He explained the criteria which must be met by products to be considered as medical devices and in particular when a health app becomes a medical device. The discussion included a review of the criteria laid down in MEDDEV 2.1/6 concerning the classification of software as medical devices. Fabien also highlighted the changes resulting from the application of the new Medical Devices Regulation (MDR) in May 2020 and the consequences of this new Regulation for the classification and regulation of digital technologies as medical devices in the EU. Finally, Fabien underlined that it is crucial for manufacturers to take appropriate steps to transition to the MDR as soon as possible.
Since the announcement on 6 June that the Council and European Parliament had reached agreement on the draft Directive establishing the Electronic Communications Code (the “Code”), the communications and competition communities have been on tenterhooks to see what the final version of the text contains.
The draft Code has been in the pipeline for almost two years and is part of the Commission’s Digital Single Market Policy. It is designed to set EU-wide common rules and objectives on how the telecoms industry should be regulated. The Commission’s aim has been to update the rules, taking account of technological developments, and to create the regulatory framework to enable the roll-out of 5G and new generation technologies in the context of the EU’s ambitious 2025 connectivity targets.
The audience from around the globe at the IBA’s 29th Annual Communications and Competition Conference in Milan this week was – while waiting with baited breath for the final text – cautiously optimistic.
In addition to provisions on the availability and predictability of access to the spectrum licences required for the deployment of 5G networks, the Code also focuses on creating a predictable investment environment, including through the provision of “regulatory holidays” where certain conditions are met.
The Federal Communications Commission is proposing to bring a $2.8 million penalty against HobbyKing for marketing drone-attachable audio/video (AV) transmitters that operate on unauthorized frequencies.
For marketers and retailers of unmanned aircraft systems (“UAS”) and attachable devices, this penalty signals that the FCC is cracking down on the makers and marketers of noncompliant UAS and UAS-attachable devices. This penalty also serves as a reminder to operators, who are required to have an FCC license to operate a drone, even if it only operates on amateur frequencies.
According the FCC’s Notice of Apparent Liability, HobbyKing purported to offer UAS-attachable AV devices that operate on amateur radio frequencies (which do not require FCC certification). On closer inspection, though, those devices also operated on additional frequencies, including some that require certification. Moreover, as the notice states, some of the devices also apparently operated at power levels in excess of what is permitted for amateur equipment.
HobbyKing argued that it did not market its devices to customers based in the U.S. The FCC was not persuaded, however, finding that HobbyKing had a record of sales in the U.S. and did not place limitations on shipping to the U.S. The Commission was also not persuaded by Hobby King’s argument that the burden was on the customers to comply with local laws, stating that the burden of device compliance falls on the makers and marketers of the devices.
“Getting to Data Nirvana” is our four-step approach to help you integrate your legal, regulatory and compliance work streams into your organisation’s overall data strategy.
The job of the legal and compliance teams is to make sure that their company’s data projects do not breach applicable laws.
Their task is not easy because the number of laws regulating the processing of data – particularly personal data – are increasing multiplying worldwide.
However, a focus solely on data compliance can prevent broader thinking about data strategy, and how legal and regulatory teams can contribute to value creation.
Hogan Lovells’ “Getting to data nirvana” guide helps open the door to broader thinking about data strategy, by showing how regulatory, contract, IP, competition and litigation strategy can be proactively engineered to create data value.
View the first guide: “Understanding data value and ownership“.
Take advantage of the far-reaching changes brought about by the GDPR with our European Privacy Tool, which offers realistic, practical and workable insights as well as templates, helping to ensure that you are successful in meeting the applicable regulatory requirements.
How big is the Internet of Things (IoT)? It’s likely that there will be tens of billions of connected devices in use by 2020. As this massive network of “things” keeps expanding, so do the number of questions about IoT-related product safety and liability issues.
When we’re thinking about the standard of safety for IoT products, we need to look to the General Product Safety Directive (GPSD) and to other relevant product safety laws at both an EU and member state level.
In the event that a defective IoT product causes damage, the Product Liability Directive (PLD) is the key legislation that addresses product liability concerns. But advances in technology are outpacing the decades-old PLD. An evaluation now under way, however, should soon clarify some of the ambiguity arising from the evolving technology landscape, including new and more relevant definitions for defects, products, and producers.
In this hoganlovells.com interview, Valerie Kenyon, a partner focusing on product liability and safety in the Hogan Lovells London office, discusses the changes in and challenges to the EU’s regulatory regime as the IoT continues to shape perceptions about product safety and liability.
Why are we so interested in IoT safety and liability?
Kenyon: IoT devices have become part of our everyday lives. They’re in the hands and the homes of every conceivable demographic — not just adults or the tech savvy, but also children, the elderly, and vulnerable users. So it’s important that there are modern and clear rules around the safety and compliance of these devices, and that businesses in the IoT space are aware of these rules and the risks and liabilities they may face.
In the EU product regulatory landscape, IoT products fall within the scope of the GPSD. Let’s spend some time looking at the way the GPSD applies to connected devices.
If you’ve got any worries about the GDPR – Europe’s new data privacy regime – then we’re here to help with our recently recorded webcast, explaining why there’s no need to panic.
It’s a great discussion, with our industry-leading panel looking offering lots of helpful tips and practical examples of how you can prepare for the GDPR, even after the 25th May deadline – and make sure you don’t fall foul of regulators.
Watch it now by clicking here.
Free access to our European Privacy Toolkit
Hogan Lovells has launched an interactive European Privacy Toolkit to help those who are worried about fulfilling their obligations – which you can access for free.
The digital tool combines the insight of our industry-leading lawyers with interactive technology to offer you a one-stop data protection solution.