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Global Media and Communications Watch

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

Posted in M&A, Technology Mark ParsonsTommy Liu

How to navigate data protection and cybersecurity issues in M&As in Asia-Pacific

In recent years, the Asia-Pacific (APAC) region has been a core hub of merger and acquisition (M&A) activity, emerging relatively unscathed from the COVID-19 pandemic which has otherwise taken a toll on investment activity in 2020. Despite global economic headwinds and growing geopolitical uncertainties, signs of recovery in APAC deal-making have begun to merge as ambitious investors in the region look for both shelter and new opportunities in a time of unprecedented challenges. As we move at a breakneck pace into the digital era, data becomes more of a critical component than ever in M&A transactions, both within the technology sector – where data can be an acquisition target’s most valuable asset – and outside it, as businesses across a wide range of sectors push forward with technology transformation initiatives and leverage technology to drive competitive advantage.

Click here to read more.

Posted in Policy & Regulation

Webinar: A bipartisan view of the 2020 election and its impact on U.S. / UK relations

Joe Biden has been elected as the 46th President of the United States.

A new presidency – coupled with a new relationship between the UK and the EU – presents the potential for a material change in U.S. domestic policy and relations with the UK.

How will these changes affect you and your business?

Join Hogan Lovells for a webinar on Wednesday 18 November 2020, as we share bipartisan views of the 2020 election results and what their influence could mean.

You will be able to submit questions during the webinar, but we also welcome them in advance. Please submit any questions for our speakers to louise.bray@hoganlovells.com 

Please note: The Chatham House Rule applies, and this event is closed to the press. 

Register today

When: 18 November, 10am-11am ET/2pm-3pm GMT

Moderator: Kelly Ann Shaw, Partner, Hogan Lovells

Speakers:

Posted in Policy & Regulation

A bipartisan view of the 2020 election and its impact on U.S. / EU relations

We invite you to join our webinar on the eve of the U.S. Presidential election.

Democratic nominee for President, Joe Biden, and Republican incumbent, President Donald Trump, are preparing foreign policy platforms in the final months of the 2020 election cycle. What are the major points of tension between the Republican and Democratic candidates? Should either party be elected? What would the U.S. policy towards Europe look like under each administration? Will U.S. trade and economic policies towards Europe see significant changes? How will U.S.-Europe relations change?

Join President Donald Trump’s former top G7 and trade adviser Kelly Ann Shaw, Senator Norm Coleman, Ivan Zapien and Prof. Jorrit Rijpma in this informative panel discussion on Monday 2
November at 15.00 CET/14.00 GMT as they share bipartisan views of the 2020 election and its impact on foreign policy.

You will be able to submit questions during the webinar, but we also welcome them in advance. Please submit any questions for our speakers to sandra.buitendam@hoganlovells.com

Click here to register for this webinar

With the U.S. election quickly approaching, anticipate the potential impacts, analyze the insights, and understand the implications of the evolving politcal landscape and its outcomes for global businesses and industry, by visiting our U.S. Election 2020 Topic Centre.

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.