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Global Media and Communications Watch

The International Legal Blog for the Tech, Media and Telecoms Industry

Posted in Cybersecurity, Data Protection & Privacy

Upcoming privacy and cybersecurity events – October

Please join us for our October 2020 events

October 21-23
Mark Brennan will be leading a panel at the virtual Fall Academy 2020 Privacy + Security Forum, where he will be joined by other seasoned experts for deep-dive sessions with practical takeaways.

October 22
Bret Cohen will be part of the recording for “We Love You, You’re Perfect, Now Change: Stories of Data Protection in M&A”, an IAPP installment where speakers will discuss privacy, security, and risk. The recording will be made available online.

October 23
Tim Tobin and Bret Cohen will be joined by Jared Bomberg, Senior Counsel, U.S. Senate Committee on Commerce, Science and Transportation, and Olivia Trusty, Policy Director, U.S. Senate Committee on Commerce, Science & Transportation, during the Prospects for Privacy Legislation session at the Privacy + Security Forum.

October 28
Tim Tobin will be speaking at the PrivacyConnect Finance & Insurance Industry Expert Panel, where they will discuss the latest privacy topics and trends within the Finance & Insurance industry.

October 29
Scott Loughlin will be speaking at the PrivacyConnect Healthcare & Pharmaceuticals Industry Expert Panel, where they will discuss the latest privacy topics and trends within the Healthcare & Pharmaceuticals industry.

Posted in Spectrum, Telecoms & Broadband Trey Hanbury

Partner Trey Hanbury interviews T-Mobile’s Steve Sharkey

Hogan Lovells partner Trey Hanbury enjoyed a lively and frank conversation with Steve Sharkey, Vice President of Government Affairs, Engineering and Technology Policy at T-Mobile as part of the 2020 INCOMPAS Show. The interview covered T-Mobile’s running start on 5G broadband deployment following the company’s merger with Sprint, insight into T-Mobile’s plans for meeting its commitments under the merger agreement, and the outlook for 5G deployment in the US. INCOMPAS has made the entire interview available on video, and we offer a few highlights of the conversation here.


T-Mobile is now a U.S. leader in 5G

Sharkey said that T-Mobile is now likely the global leader in 5G deployment, as the first to deploy a standalone network that does not rely on LTE as a base layer. T-Mobile is building its 5G network with a layer cake of spectrum. T-Mobile’s 600 MHz spectrum holdings represent the base layer with 5G broadband coverage for more than 250 million people and across more than 1.3 million square miles in the United States. The next layer is the 2.5 GHz spectrum acquired in the Sprint merger, which boosts the speed and capacity of the network. Millimeter wave spectrum represents the third layer and offers greatly enhanced capacity in more densely populated areas of the country.

To maintain its leadership, Sharkey said T-Mobile will continue to rely on its technological expertise, history of prioritizing strong infrastructure, and fast rollout of 5G services. Sharkey also emphasized the importance of T-Mobile’s customer-service philosophy. He noted that T-Mobile is now the second largest carrier in the US, which he credited not only to the Sprint merger, but also to organic growth driven by T-Mobile’s success at continually identifying and addressing customer pain points.

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Posted in Internet of Things, Policy & Regulation

Webinar – IoT in the EU: Lessons from COVID-19, and next steps for liability and regulation

Connected products remain in focus during 2020. Now more than ever before, they bring new opportunities to our homes, work, travel, and health care.

Date: 15 September 3:30-4:15 BST

In this webinar our leading cross-border products law team discuss the following:

  • How IoT products have been helping tackle the COVID-19 crisis: a call out from a number of jurisdictions.
  • Some areas of IoT law and regulation that need further development – as highlighted by the COVID-19 crisis.
  • A quick catch-up on product liability developments in the European Union and the relevance to IoT.
  • Getting new IoT products on the European Union market: quick overview of developing product safety and regulation in this space.
  • An update on the European Commission’s antitrust inquiry into IoT consumer-related products and services within the EU, and its implications for affected IoT companies.

Questions:

  • Questions can be sent in advance and we will address if possible during our session.

Hogan Lovells speakers:

To register for this webinar, please click here.

Posted in Internet of Things, Policy & Regulation, Technology

UK Government calls for feedback on regulation of IoT device security

Following the UK Government’s announcement in January 2020 that it would be moving forwards with regulation on consumer IoT device security, the Government has now published its legislative proposals and is seeking feedback from interested parties by 6 September 2020.

The Government’s proposals impose new requirements on manufacturers for the manufacture and sale of consumer smart devices, and also introduce the appointment of a new designated body to oversee compliance and enforcement.

What do you need to know?

The proposed legislation sets out three baseline security requirements, which are derived from and align with several of the key provisions in the recently launched standard ETSI EN 303 645:

  1. A ban on default passwords: universal default usernames and passwords installed by manufacturers (such as “admin” or “123456”) are to be banned. Passwords should be ‘unique per device’ or user defined and should not revert to a factory setting.
  2. The implementation of a robust method of vulnerability reporting: manufacturers should prepare a clear and transparent vulnerability disclosure policy, publish contact information for the reporting of flaws or vulnerabilities with IoT device security, and provide a high-level indication of expected timescales for responses. This should be supplemented by a defined and coordinated process across all levels of the supply chain for the reporting of and response to such issues.
  3. Transparency of software updates: the minimum length of time during which IoT devices will be supported by security updates should be provided to consumers in an accessible, clear and transparent manner, and disclosed at or before the point of sale.

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Posted in Policy & Regulation, Technology Penny ThorntonOliver Wilson

UK regulator publishes consultation on video-sharing platform regulation

On Friday 16 July 2020, the UK communications regulator, Ofcom, published a consultation on video-sharing platform regulation, calling for views by 24 September 2020. The UK government intends to introduce a new statutory framework this Autumn to implement the revised Audio-Visual Media Services Directive, including new obligations on UK-established video-sharing platforms (which the consultation says might include platforms such as TikTok and Twitch). This is an interim regime for the regulation of UK video-sharing platforms until the new online harms framework comes into force. Ofcom is seeking views now from platforms, experts, users and other organisations in order to help shape its approach to regulating video-sharing platforms, both in relation to the legislation expected to come into force in the Autumn and the subsequent guidance on the services which should fall within scope.


Services in Scope

The government intends to define video-sharing platforms (VSPs) in accordance with the Audio-Visual Media Services Directive (AVMSD). The AVMSD defines VSPs as services where “the principal purpose of the service…or an essential functionality of the service is devoted to providing programmes and/or user-generated videos to the general public, for which the VSP provider does not have editorial responsibility…”. However, the consultation says Ofcom will issue guidance for services in the Autumn to help them understand a) whether they fall within the definition and b) whether they fall under UK jurisdiction. The consultation lists six potential VSPs which are likely to fall under UK jurisdiction: Twitch, TikTok, LiveLeak, Imgur, Vimeo and Snapchat. YouTube, on the other hand, is said to be likely to fall under Irish jurisdiction, as it is headquartered there.

The revised AVMSD also introduces new requirements for On Demand Programme Services (which are the on-demand services currently regulated under the AVMSD) and changes the relevant definitions. Consequently, the Government recognises that this a potentially complex area, where companies will require further guidance to help them determine which category their services fall into.

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Posted in Internet of Things Raphael Fleischer

Consumer IoT – European Commission initiates inquiry into the consumer Internet of Things sector

The European Commission (“Commission”) has launched an antitrust sector inquiry into the Internet of Things (“IoT”) sector for consumer-related products and services within the European Union. The Commission is looking to develop a better understanding of how this fast-moving sector works and some of the potential issues that may arise from a competition law perspective. The regulator intends imminently to send requests for information to a range of players in this sector and already plans to publish a preliminary report on its findings in the spring of 2021. As such, the inquiry offers companies in the IoT sector an opportunity to steer the Commission’s approach to competition in this area.

On 16 July 2020, the Commission announced that it has launched an antitrust sector inquiry into the consumer IoT sector – a sector offering consumer-related products and services that allow users to control their surroundings through the internet – for example, through a voice assistant or a mobile device. A sector inquiry, based on Article 17 of Regulation 1/2003, is an investigation into a sector(s) of the economy that the Commission carries out when it has reason to believe that the sector in question is potentially not functioning properly from a competition law perspective. The IoT review follows other sector inquiries conducted in recent years by the Commission (in financial services, energy, pharmaceuticals and, most recently, in e-commerce).

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Posted in Policy & Regulation, Telecoms & Broadband Mark BrennanArpan Sura

U.S. Supreme Court Finds TCPA’s Federal-Debts Exemption Unconstitutional; Leaves Rest of TCPA Intact

On June 6, 2020, the U.S. Supreme Court issued its decision in Barr v. American Association of Political Consultants, Inc., et al., settling an issue that has lingered over litigation under the Telephone Consumer Protection Act (TCPA) for the past several years. In a badly fractured opinion featuring multiple concurrences and dissents, a majority of the Court held that the TCPA’s federal-debts exemption, which immunizes from liability “calls made solely to collect a debt owed to or guaranteed by the United States,” was a content-based law that violated the First Amendment.  Instead of striking down the TCPA’s autodialer restriction in its entirety, as the respondents requested, the Court’s majority severed the federal-debts exemption from the remainder of the TCPA.  As a result, the TCPA’s autodialer restriction lives to see another day.

Procedural History

The TCPA was enacted in 1991 to restrict telemarketing activities and the use of automated dialing systems and artificial or prerecorded messages, often referred to as robocalls. As originally enacted, the TCPA prohibited almost all robocalls to cell phones placed without prior express consent.  The 2015 Bipartisan Budget Act, however, exempted from the prior express consent requirement calls made solely for the purpose of collecting a debt owed to or guaranteed by the United States (the federal-debts exemption). In 2016, American Association of Political Consultants, Inc. (AAPC) filed a lawsuit alleging that, in light of the new federal-debts exemption, the TCPA’s continuing ban on all other calls to cell phones violated the First Amendment. AAPC sought a declaratory judgment that the entire provision banning calls to cell phones was an impermissible content-based restriction on speech and an injunction preventing enforcement.

In 2018, a North Carolina federal court denied AAPC’s request for declaratory and injunctive relief. The district court agreed that the cell phone call ban with the federal-debts exemption was a content-based speech restriction subject to strict scrutiny, but it determined that the provision survived strict scrutiny because of the government’s compelling interest in collecting debt. The Fourth Circuit vacated the district court’s judgment in 2019, concluding that the cell phone ban as amended to include the federal-debts exemption could not survive strict scrutiny. Rather than invalidating the entire cell phone call ban as AAPC sought, the Fourth Circuit concluded that the federal-debts exemption was severable from the rest of the provision.

The Decision

In a fractured decision, the Court struck down (by a 6-3 vote) the federal-debts exemption under the First Amendment, holding that the exemption was a content-based restriction on speech that could not survive strict scrutiny. The Court also determined (by a 7-2 vote) that severing the federal-debts exemption from the remainder of the TCPA was the appropriate remedy.

In the controlling plurality opinion, Justice Kavanaugh concluded that the law was a content-based speech restriction because it “favors speech made for collecting government debt over political and other speech.” He also agreed with the government’s concession that “it ha[d] not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech.” On the issue of severability, Justice Kavanaugh first noted that AAPC’s broader initial argument for holding the entire robocall restriction unconstitutional was unpersuasive. Then, applying general severability principles, he concluded that the Communications Act’s severability clause and the presumption of severability required severing the federal-debts exemption.

Key Takeaways

As Many Questions As Answers. The Court’s opinion raises new issues that could factor into future TCPA litigation, including:

  • How might courts address content-based speech restrictions that differentiate between speakers, as opposed to the restrictions at issue in AAPC, which the Court found were message-based?
  • What justifications for content-based speech restrictions are sufficient to satisfy strict scrutiny?

Grandfathered Relief for Federal Debt Collectors. The Court specifically clarified that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate.”

Autodialer Issue Remains Unresolved. The Court did not weigh in on a critical unsettled TCPA issue:  what constitutes an “automatic telephone dialing system” under the statute?

Next Steps

The Court may have another TCPA case on the horizon: Facebook v. Duguid, on petition for certiorari before the Supreme Court from the Ninth Circuit, raises the question of what types of technology qualify as an “automatic telephone dialing system” under the TCPA.

In the meantime, companies should continue to ensure that their activities comply with the TCPA’s requirements, and companies that previously benefitted from the federal-debts exemption will need to develop new procedures to ensure compliance.

Posted in Intellectual Property, Internet Brendan C. Quinn

U.S. Supreme Court rejects categorical rule that generic term plus “.com” results in a generic composite

The United States Supreme Court holds that adding a top-level domain, like “.com”, to an otherwise generic term does not automatically result in a generic composite, and that a genericness determination must consider the significance of the term to consumers. The case is U.S. Patent & Trademark Office v. Booking.com B.V., U.S., No. 19-46 (2020).


Booking.com – an online travel company that provides hotel and other reservation services – filed four trademark applications for the mark “Booking.com” with different visual features. The United States Patent and Trademark Office (the “PTO”) and Trademark Trial and Appeal Board denied registration on the basis that “booking” is generic for travel reservations and “.com” merely signifies a commercial website.

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Posted in Policy & Regulation

Webinar: How to effectively do business with UK government

Doing business with governments – winning opportunities, negotiating successfully, and delivering profitability – is an art and a science. At a time of unprecedented government intervention, it has never been more important to ensure effective engagement, whether to win new contracts or secure investments, grants, or loans. You know how to succeed in the United States. In this webinar, we want to equip you to navigate the UK government environment by:

  • Highlighting similarities and differences between the UK and U.S. regulatory, procurement, and political systems.
  • Giving you insights into how the UK government thinks and behaves.
  • Helping you understand the tools available to you to succeed.

Led by lawyers from both our UK and U.S. offices, we will cover:

  • The legal and policy environment.
  • How to gather intelligence and build credibility within UK government.
  • How to stick by the rules and win.
  • How to negotiate with UK government at speed and under pressure.
  • Lessons learned from complex projects.

We would be delighted if you could join this interactive session focused on helping in-house counsel in U.S. businesses navigate the intricate network of UK government institutions, policies, and processes crucial for doing business successfully.

To register, please click here.

Date: 1 July 2020

Time : 10:30 a.m. – 11:30 a.m. EDT | 3:30 p.m. – 4:30 p.m. BST

Moderator: Michael J. Vernick, Head of the Government Contracts practice, Washington, D.C.

Speakers

Posted in Data Protection & Privacy Elisabethann Wright

Belgian DPA Issues Guidance on Temperature Measurements in the Context of COVID-19

In the context of their return-to-work policies companies are seeking solutions to detect individuals with fever at the entrance of their premises with the aim of preventing further contamination within the buildings. This can be achieved by means of conventional thermometers, digital fever scanners directed at the forehead of the person, or sophisticated thermal camera systems. The Belgian Data Protection Authority has issued a guidance in which it adopts a strict position regarding the implications of temperature screenings for individuals’ data privacy rights. More specifically, it provides that the simple act of taking a temperature falls within the scope of the GDPR even if the temperature measurement itself has not been recorded. The guidance also provides that in light of Article 4, paragraph 2 of the GDPR, measuring temperature by means of an advanced digital process is subject to the requirements of the Regulation.

On 5 June 2020, the Belgian Data Protection Authority (DPA) issued a guidance regarding temperature screenings within the context of the return-to-work policies developed by companies following the COVID-19 pandemic. In the guidance, the Belgian DPA addresses, among others, the privacy concerns arising from different methods of temperature screening.

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