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Global Media and Communications Watch

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

Posted in Data Protection & Privacy Eduardo UstaranLilly Taranto

Making COVID-19 Apps Data Protection Compliant

The role of COVID-19 contact tracing apps in the exit strategy of the current lockdown that is gripping much of the world is increasingly becoming a focus of attention. While that role is being hotly debated, it is very likely that those apps in combination with other measures will be deployed across many countries. Until now and despite the calls by influential bodies such as the European Data Protection Supervisor for a coordinated approach to the development of single COVID-19 mobile app involving the World Health Organization, different countries have adopted their own strategies.

However, in the European Union and in an attempt to adopt a harmonised approach, the European Commission and the European Data Protection Board (EDPB) have both issued guidelines on the development of COVID-19 apps aimed at ensuring compliance with EU data protection law in a consistent way.

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

Second Circuit Panel Sides with Ninth Circuit on What Qualifies as an Autodialer

A recent decision by the U.S. Court of Appeals for the Second Circuit in Duran v. La Boom Disco, Inc. has interrupted the emerging consensus around the definition of “autodialer” in the Telephone Consumer Protection Act (TCPA). On April 7, 2020, a Second Circuit panel joined a Ninth Circuit panel in adopting a broad reading of the statutory definition of “automatic telephone dialing system” (ATDS), commonly referred to as an autodialer. The Duran decision also rejected the reasoning in opinions issued by panels in the Seventh and Eleventh Circuits earlier this year, which deepens the split between the Courts of Appeals and increases the pressure on the Federal Communications Commission, Congress, and even the U.S. Supreme Court to provide clarity on what constitutes an autodialer under the TCPA.

Background

Duran, the plaintiff, alleged that La Boom Disco sent him hundreds of text messages without his consent using an autodialer. La Boom acknowledged that it sent the messages but claimed that the systems it used to send the messages were not autodialers because, among other things, they required too much human intervention and were not automatic. The U.S. District Court for the Eastern District of New York heard the case and agreed with La Boom that the technology systems at issue were not autodialers.

The Duran Opinion

On appeal, the Second Circuit panel considered the question of what qualifies a dialing system as an autodialer. The TCPA defines an “’automatic telephone dialing system” as “equipment which has the capacity─(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The district court found that LaBoom’s dialing systems met the first requirement of the definition but failed to satisfy the second element because they lacked the capacity to dial numbers automatically. Reviewing the court’s conclusions de novo, the Second Circuit panel disagreed and vacated the judgment.

The La Boom court reasoned that equipment can qualify as an ATDS if it: (1) makes calls from stored lists, even lists initially generated by humans; or (2) makes calls to numbers produced using a random- or sequential-number-generator. In adopting this interpretation, the Second Circuit departed from recent decisions by an Eleventh Circuit panel in Glasser v. Hilton Grand Vacations Company, LLC and a Seventh Circuit panel in Gadelhak v. AT&T Services, Inc. Both of those decisions concluded that an autodialer must use a random or sequential number generator to either store or produce numbers and that systems that rely on stored calling lists do not qualify as autodialers. The Second Circuit panel rejected that interpretation and reasoned that the inclusion of the federal-debts exemption in the TCPA supports a broader reading of autodialer. To service its debts, the government necessarily must call a human-generated list of phone numbers. If the definition of autodialer did not cover such activity, the panel concluded, the federal-debts exemption would make little sense. Thus, the term autodialer must include equipment that dials from stored lists. The panel also reasoned that an interpretation of ATDS that did not cover dialing from a stored list would render the word “stored” superfluous under the statute.

Addressing the second element of the autodialer definition, the La Boom court said that human intervention must involve more than “clicking send.” Sufficient human intervention must involve “the actual or constructive inputting of numbers to make an individual telephone call or to send an individual text message.” According to the court, the action involved in the case was more akin to initiating a process than actually dialing or inputting numbers. In so holding, the La Boom court sought to distinguish the D.C. Circuit’s opinion in ACA International v. FCC, which foreclosed any reading of ATDS that would encompass a conventional smartphone.

The Duran decision deepens the split between the Courts of Appeals, with the Second and Ninth Circuit panels adopting a broad reading and the Seventh and Eleventh Circuit panels choosing a more measured approach. The split increases the pressure on the Federal Communications Commission, Congress, and even the U.S. Supreme Court to provide clarity on what qualifies as an autodialer under the TCPA.

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Our TCPA Working Group brings together more than 25 attorneys in our litigation, communications, commercial, and privacy practice areas. We provide regular TCPA counseling to clients from a broad range of industries, including technology, healthcare, communications, transportation, and financial services. We have secured dismissals and nominal settlements for clients in TCPA actions and have worked with the FCC to clarify rules addressing a number of key TCPA issues. We also have significant experience in TCPA appeals.

Posted in Policy & Regulation, Telecoms & Broadband Michele FarquharAri FitzgeraldTrey HanburyArpan Sura

Executive Order Creates Committee to Replace “Team Telecom” Review of Foreign Telecom Investments

Recent developments have positioned the Executive Branch to exert greater influence over the U.S. telecommunications sector. On April 4, 2020, President Donald Trump issued an Executive Order creating a new process for Executive Branch review of telecommunications-related applications and licenses involving foreign participation. The new procedures replace the review currently performed by an informal, multiagency group known as “Team Telecom.” But the mandate includes several novel features that expand the reach and scope of national security review beyond what Team Telecom could accomplish.

The Executive Order authorizes the newly formed Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (Committee) to conduct a national security and law enforcement review of any applications and licenses that pose risks to national security and law enforcement interests of the United States.  Federal Communications Commission (FCC) Chairman Ajit Pai and Commissioner Michael O’Rielly praised the Executive Order, and Commissioner Brendan Carr urged the Committee to investigate every carrier owned by the Chinese government that now connects to networks in the United States.

The focus on China, coupled with the ability to review existing licenses, will make China Telecom and China Unicom, two Chinese-controlled holders of FCC authorizations to provide international telecommunications services, more vulnerable. In fact, on April 9, the Department of Justice announced that Executive Branch agencies with national security expertise unanimously recommended that the FCC revoke and terminate China Telecom’s authority to provide international telecommunications services in the U.S.

The focus on China may also put small rural carriers with Huawei equipment in their networks in the Committee’s crosshairs, even though they do not have foreign investors and have not engaged in transactions that bring them within the traditional Team Telecom review process. The Committee might claim authority to condition their licenses on the removal of Huawei equipment, possibly at the small rural carriers’ expense.

The Executive Order also addresses longstanding industry concerns about Team Telecom by providing structure and increased transparency to a review process that has previously been criticized as opaque and one-sided. Clearly defined membership and timelines, written analysis, and standardized questions and mitigation measures should give telecommunications providers and their non-U.S. investors more clarity and predictability. The new procedures and timelines, however, give the Executive Branch agencies a great deal of discretion to determine when they have received all of the information they need to make an assessment. They also still permit a lengthy and potentially burdensome review.

The FCC will likely move quickly to adopt rules to implement the Executive Order, most likely by releasing a public notice seeking comment on how best to implement the Executive Order in an extant proceeding initiated in 2016 to reform the Team Telecom process. Continue Reading

Posted in Internet Michelle KisloffPaul OttoAdam Cooke

COVID-19 and IT Service Provider Contracts: A Checklist for Force Majeure Events

The COVID-19, and the various restrictions that have been implemented in response to it, are causing extraordinary business disruptions. Many organizations have had to modify their operational controls and accommodate a shift to remote working (among other adjustments). One key impact of COVID-19 involves an organization’s relationships with its IT service providers, which often play important roles in securing their data and systems. Under current conditions, some service providers may face challenges in performing this work, especially for engagements that require significant personnel resources or that require personnel to be on-site. Potential non-performance has significant consequences for service providers and their clients alike.

To prepare for these challenges, entities that have contracts with service providers (and service providers themselves) should carefully review their existing agreements and any force majeure-type provisions in particular. Although force majeure provisions in existing contracts may not specifically contemplate a global pandemic such as COVID-19, these provisions are often broadly-worded and based on events beyond a party’s control and may excuse non-performance under the contract or allocate risks and costs differently when such an event occurs.

To read our COVID-19 service provider risk mitigation checklist, click here.

Visit the Hogan Lovells’ COVID-19 Topic Center for resources and guidance on responding to the crisis

Posted in Advertising, Data Protection & Privacy, Technology

Webinar Invitation — AdTech and Privacy: Managing Risk in a Complex and Evolving Digital Economy

Join Hogan Lovells and Ankura to learn about the impact of the GDPR and CCPA on cookies and similar AdTech tracking technologies. James Denvil from Hogan Lovells’ Privacy and Cybersecurity practice by senior directors from Ankura to share best practices and their perspectives.

Program topics will include:

  • Cookies and Similar Tracking Technologies Defined
    • How cookies and similar tracking technologies support and enhance digital services, including advertising
    • Types of cookies (are your cookies strictly necessary or for marketing purposes?)
    • Ways in which consumers’ digital activities are shared throughout the digital advertising ecosystem
  • Tracking Technology Legal and Regulatory Challenges
    • How cookies have evolved from being “totally anonymized” trackers to “profiling tools” in the eyes of regulators and others
    • Key legal and regulatory challenges to deploying cookies and similar technologies for digital advertising
    • Industry and “homegrown” solutions to address the regulatory challenges
  • AdTech Data Privacy Best Practices in a GDPR and CCPA World
    • Best practices for cookie risk governance
  • The Future of Cookies
    • Potential changes in the digital advertising ecosystem with the supposed death of third party cookies

Date:
Wednesday, April 15, 2020

Time:
12:00 p.m. – 1:00 p.m. EDT

To register, please click here.

Posted in Policy & Regulation

Joint ventures: Key topics surrounding the COVID-19 pandemic

As the COVID-19 outbreak has evolved into a worldwide economic shutdown, businesses are reevaluating their operating plans in order to remain viable. This is particularly true for joint venture (JV) businesses, which are owned and jointly controlled by two or more partners or equity holders.

Through dozens of alerts, articles, and blog posts, we have addressed a multitude of legal and commercial impacts caused by this pandemic, including supply chain challenges, employment considerations, and legislative actions. Our aggregated COVID-19 topic center and resources can be found here.

JVs are uniquely customizable business structures. As we’ve learned by listening to, and working with, our clients over the past few weeks, the COVID-19 issues JVs are facing can be equally unique. The available solutions to these issues are often collaborative and creative. JV partners are navigating daunting liquidity challenges and making mission critical operating decisions as a result of the impact of COVID-19. Each of these decisions presents meaningful risk for disagreement or “deadlock” among the JV partners that can place the existence and direction of the JV in jeopardy.

Below we discuss some of the more impactful themes for JVs and their operations during this global crisis. While the commentary below is necessarily general in nature, ideal solutions to individual JV problems are often bespoke; so please reach out to us any time to discuss your specific issues. We are very happy to leverage our global experience, and there’s a good chance that the issues you are currently facing are ones that we have already had to consider for other JV clients.

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Posted in Internet, Internet of Things, Technology

Webinar: Internet of Things or Internet of Payments?

Making (the Internet of) Things pay?

Will cars, fridges, watches, printers, and other moving and non-moving parts of the Internet of Things know value for money when they see it? At a time when the world is increasingly in need of connecting remotely, devices allowing transacting and paying remotely will be a common feature of the billions of devices that interact.

Please join us our webinar, Internet of Things or Internet of Payments? We will look at the growth of connected devices, why payments are so important to this growth, and where it’s all headed.

When: Thursday 9 April 2020 – 3pm BST, 10am EDT

Speakers:

To register, please click here.

Posted in Policy & Regulation

COVID-19 webinar – Insurance coverage considerations

When: Thursday, 02 April 2020, 15:30 (BST)

One of a series of live webinars to help clients to respond to the impact of the global coronavirus pandemic on their business.

Businesses who suffer losses stemming from the COVID-19 pandemic will want to understand how their insurance arrangements will respond to this crisis. In 30 minutes, our insurance experts will cover how the following classes of insurance are likely to respond and provide general guidance to companies on how to assess and manage their loss with insurance considerations in mind:

  • Business interruption
  • Liability
  • Credit
  • Event cancellation
  • Life, Health & Travel
  • Claims – how to engage with insurers

Our speakers will present their insights and you can ask questions during the webinar.

Hogan Lovells speakers include:

Register here

Register your interest in hearing more about this issue and other key topics here.

Posted in Policy & Regulation, Telecoms & Broadband Trey HanburyArpan Sura

President Trump Signs Bipartisan Broadband Mapping Law

On March 23, 2020, President Trump signed the Broadband Deployment Accuracy and Technological Availability (DATA) Act. The law requires the Federal Communications Commission (FCC) to collect and disseminate more granular data about the availability of broadband service and to establish processes to ensure data accuracy.

The legislation comes in response to commentary about the FCC’s broadband coverage maps and suggestions regarding the Form 477 data collection process used to create those maps. The FCC has taken several steps to address these concerns about the data collection process. The FCC adopted a Further Notice of Proposed Rulemaking in 2017 to gather information about how to increase the quality and accuracy of broadband data and streamline reporting requirements. In August 2019, the FCC initiated a new process, the Digital Opportunity Data Collection, which requires all fixed broadband providers to submit granular maps of the areas where they have broadband-capable networks and offer service. Most recently, on December 4, 2019, the FCC announced that it would terminate its Mobility Fund Phase II (MF-II) proceeding after an investigation into major mobile providers’ compliance with data collection requirements revealed that some of the maps used for MF-II may have reported differences with the  performance experienced by consumers. Controversy surrounding the report increased calls for Congress to act. Continue Reading

Posted in Telecoms & Broadband Mark BrennanArpan Sura

FCC Confirms that Certain COVID-19 Communications Fall Within the TCPA’s “Emergency Purposes” Exception

Health care providers and government officials have more clarity regarding the ability to place certain calls and texts about the novel coronavirus, thanks to recent action by the Federal Communications Commission (FCC).

On March 20, 2020, the FCC released a Declaratory Ruling confirming that the pandemic caused by the novel coronavirus qualifies as an emergency under the Telephone Consumer Protection Act (TCPA), after President Trump pronounced the COVID-19 outbreak a national emergency. As a result, hospitals, health care providers, health officials, and other government officials may use automated calls and text messages to communicate information about COVID-19 when “necessary to protect the health and safety of citizens,” without violating the TCPA.  The FCC released the Declaratory Ruling on its own motion, without being prompted to do so by a regulated party. Continue Reading