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Global Media and Communications Watch

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

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

Posted in Data Protection & Privacy Katie McMullanEduardo Ustaran

Getting Customer Communications Right in Times of Coronavirus

Across the world, large retail stores and small businesses alike are shutting their doors. International flights and sporting events, conferences and concerts (and everything in between) are being cancelled. With all of the cancellations, postponements, and alternative arrangements that are required as a result of this global crisis, plus the special desire of all retail, travel, and other consumer-facing businesses to stay in touch with their customers, many organisations face the critical challenge of getting to grips with the legal rules that apply to those unsolicited communications and interactions.

Privacy and data protection laws everywhere regulate the ability of organisations to communicate with individuals for both service-related and promotional purposes. Direct marketing in particular is strictly regulated in many jurisdictions by a myriad of rules and exemptions that determine the conditions under which existing and prospective customers can be contacted for promotional purposes. In the EU, the e-Privacy Directive establishes specific rules for different channels of communication such as e-mail, SMS, and telephone calls that either require an opt-in or opt-out approach. The GDPR provides an absolute right to object to all types of direct marketing communications.

Continue Reading

Posted in Data Protection & Privacy, Internet, Policy & Regulation Ewa KacperekWeronika Wolosiuk

A summary of polish legislation and of the guidelines of authorities concerning covid-19 in the context of data protection

To meet your questions and concerns related to maintaining the principles of personal data protection in the face of the global COVID-19 pandemic, we have prepared a short guide to the key legal regulations and guidelines of authorities that you should keep in mind not only when conducting business and professional activity but also in everyday life.

1.         COVID-19 Act
Decisions, orders, recommendations and guidelines addressed to legal entities and entrepreneurs
The Act of 2 March 2020 on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and emergencies caused by them (hereinafter the “COVID-19 Act”) makes it possible to issue: (i) orders by the Prime Minister in the form of decisions which have immediate effect upon their delivery or announcement to legal entities, organizational units without legal personality and entrepreneurs; (ii) decisions by the Chief Sanitary Inspector or the state voivodship sanitary inspector acting under the authority of the Chief Sanitary Inspector, imposing on legal entities, natural persons and organizational units without legal personality, including employers, among others, the obligation to take specific preventive or control measures and deliver specific information, as well as (iii) recommendations and (iv) guidelines issued by the Chief Sanitary Inspector.

In the context of data protection it means that legal entities, entrepreneurs and organizational units, in particular employers, may be subject to specific obligations, the performance of which may require the collection or disclosure of personal data, especially, health data, which should not be collected and disclosed when there is no epidemic threat, for instance, taking a measurement of the employee’s body temperature.

We also note that works on the amendments to COVID-19 Act are underway. We will keep you posted on any key changes to this Act.

Continue Reading

Posted in Policy & Regulation, Technology Tony LinGeorge John

CSSMA Highlights WRC Advocacy, Earth Station Service Industry

At a recent Commercial Smallsat Spectrum Management Association (CSSMA) meeting, small satellite (smallsat) operators, earth station service providers, Federal agency spectrum managers, and other attendees discussed strategies to effectively influence global spectrum policy through the World Radiocommunication Conference (WRC) and opportunities in the growing earth-station-as-a-service industry. The meeting was part of CSSMA’s ongoing efforts to help develop the smallsat industry by facilitating spectrum coordination and harnessing the industry’s collective voice on pertinent regulatory and policy matters.

The meeting took place in Silicon Valley, California, following the annual SmallSat Symposium. More than thirty-five CSSMA members attended the meeting, along with participants from U.S. regulatory agencies including the Department of Commerce, the Federal Communications Commission (FCC), the National Aeronautics and Space Administration, the National Oceanic and Atmospheric Administration, and the National Telecommunications and Information Administration (NTIA), as well as the International Telecommunications Union (ITU).

WRC Proceedings

Multiple sessions focused on the ITU’s process for developing international spectrum policy through the WRC, which occurs approximately every four years. Three panels offered an overview of the history, structure, and operating practices of the ITU, a report on outcomes from WRC-19 in Sharm-el-Sheik, Egypt, and a discussion of issues being teed up for WRC-23.

The panelists identified three WRC-19 outcomes as being particularly impactful for commercial smallsat systems:

  • Agenda Item 1.2 – Establishing new power limits for earth stations operating in 399.9-400.05 MHz and 401-403 MHz with a ten-year exception that applies to grandfathered operators.
  • Agenda Item 1.13 – Establishing new global allocations for international mobile telecommunications, or terrestrial 5G services, which implicate several bands having space and science applications, including the Ka-band frequencies (24.25-27.5 GHz).
  • Agenda Item 7 – Establishing deployment milestones for non-geostationary satellite orbit Mobile-Satellite Service, Fixed-Satellite Service, and Broadcasting-Satellite Service systems. Previously, a constellation was considered to be in use as long as one satellite was in use. Now, there are build-out requirements. Failure to meet the requirements can lead to the reduction of a constellation’s size.

The panelists offered insight to help companies navigate the WRC process, which involves four years of meetings at the ITU working party level leading up to WRC-23. Panelists emphasized that companies should understand the relationship among agenda items, resolutions, and the various working parties so that they can engage more effectively in policy negotiations. CSSMA members from Kepler and Hiber also discussed their efforts at WRC-19 to push agenda items on spectrum allocations, intersatellite links, and ITU filing notification procedures for WRC-23.

To participate in working party meetings, companies must contact the head of their national delegation for each working party. For the smallsat industry, the relevant working parties are 7B and 7C for science services and 4A and 4C for satellite services. Companies can also work through their national “spokesperson.” For the commercial sector, the spokesperson is the FCC. On the federal side, NTIA is the spokesperson.  The FCC and NTIA have a significant influence on developing U.S. spectrum policy positions in coordination with the State Department.

Earth-Stations-as-a-Service

Participants enjoyed a three-part conversation about the earth-station-as-a-service industry. The companies represented on the panels reflected diverse business models and experience in the industry, but the panelists appeared to agree on several important areas of opportunity for the sector. Incorporation of new technologies, including optical communications and intersatellite links, into the market was a topic of discussion during all three panels. Innovation around operations and process was another recurring theme. Panelists were particularly interested in scalability, geographic diversification, automation, and interoperability. Related to these questions of operational efficiency, there was a thoughtful discussion on striking a balance between standardization and customization, particularly as businesses seek to grow.

During the final session, the discussion turned to regulatory hurdles to obtaining necessary approvals and the importance of spectrum coordination. Panelists emphasized the importance of engaging regulators early and working to educate them about the product and the mission. The desired uses often are not contemplated by the service rules, so an ongoing dialogue is key to success. By creating more opportunities for businesses to expose regulators to their work, CSSMA can be a valuable resource for earth-station-as-a-service companies and other smallsat providers.

Posted in Technology, Telecoms & Broadband Peter WattsCaitlin Weeks

Connection vs Contagion – A digital world amplifies risk and opportunity when the going gets tough

As COVID-19 erupts with unprecedented speed and scale and immediate health concerns hold centre stage, concern grows about economic fallout threatening millions of livelihoods.

This crisis will be different

The coming economic crisis will be very different from any that has come before.

One reason is the nature of the trigger – impacting both production and consumption, disproportionately affecting activities involving physical human contact and generating real fear.

But the coming months will also highlight ways in which underlying changes since the crisis of 2008/9 have created new areas of risk, both for individual businesses and for the economy as a whole.

Continue Reading

Posted in Data Protection & Privacy, Policy & Regulation

Brexit and Data Protection: Boom for data centre operators in Continental Europe?

Data centre operators in Europe could benefit from Brexit and have already been preparing for years for precisely this scenario, including by expanding such data centre capacities in Continental Europe.

The United Kingdom (UK) finally left the EU on 31 January 2020. The withdrawal agreement provides for the UK to continue to be treated largely as an EU member state until the end of the transition period on 31 December 2020, while both sides work out the future rules for cooperation. For the period after this, current prime Minister Boris Johnson announced on 3 February in a written statement:

“The UK will in future develop separate and independent policies in areas such as […] and data protection, maintaining high standards as we do so.” 

Brexit also affects the subject of data protection. To date, the General Data Protection Regulation (GDPR) has applied in the UK. As of 31 December 2020, the UK will become a third country within the meaning of the GDPR. Based on existing agreements, data exchange with the UK would then only be possible if the latter raises its data protection standards to a level that corresponds to that of the EU and the Commission issues an adequacy decision.

However, Prime Minister Johnson announced in no uncertain terms that the GDPR – just like all other EU regulations – will be done away with and replaced by a British provision. There is therefore a real danger that the standards of the GDPR will not be met. In this case, companies that process personal data in the UK will have to take action. For data centre operators domiciled in Continental Europe, on the other hand, this creates opportunities.

Migrate data to Europe?

Data centre operators in Europe could benefit from this situation and have already been preparing for years for precisely this scenario, including by expanding such data centre capacities in Continental Europe. Personal data that is at present physically stored in data centres in the UK will possibly have to be migrated back to the European Union. In particular, the data centre hubs in Frankfurt am Main and Amsterdam could benefit from this development. In view of the already limited available capacities in the existing data centres at present, this could entail further investments in new data centres and corresponding (energy) infrastructure. In addition, it can be expected that the number of data centre transactions will increase further in the future.

At the same time, however, this could also mean that data of British service providers that has been hosted up to now in Continental Europe will be migrated back to the UK.

Adapt existing agreements

If a transfer of personal data back to Continental Europe is not an option, companies should critically examine their existing data processing agreements and prepare for the completion of Brexit.

Companies should ensure that, in the event that the UK leaves the EU without a corresponding adequacy decision, they continue to be GDPR-compliant. Specifically, they should ensure that the EU standard contractual clause is agreed with British processors.

Conclusion

Brexit presents possibilities and opportunities for data centre operators in Continental Europe. However, much depends now on how the reform of data protection in the UK will turn out. Companies should in any case check which of their agreements require action from the point of view of data protection.

Posted in Policy & Regulation

Gearing up for enhanced consumer protection: the impact of the EU’s new rules

On 7 January 2020, Directive (EU) 2019/2161 (the “Directive”) came into force, setting into motion a swathe of measures aimed at modernizing the existing consumer protection rules, bolstering the level of protection available to consumers and providing an enhanced level of transparency in the face of ever-growing digital complexity.

Part of the EU’s ‘New Deal for Consumers’, the Directive amends four key pieces of EU consumer protection legislation. Member States must implement the Directive within national regulations by 28 November 2021. The deadline for the actual application of the measures is 28 May 2022.

What do you need to know?

Significant penalties for infringements

Fines for breaches of consumer protection law can be now levied at a maximum level of at least 4 percent of the trader’s annual turnover in the relevant Member State. Member States may elect to impose higher fines for particularly egregious infringements.

Private enforcement by individual consumers

Consumers are to be provided with direct rights to individual remedies where they have been harmed by unfair commercial practices.

Big implications for online sales

Several provisions are aimed at fostering increased transparency for online transactions:

  1. Personalized pricing: an obligation on traders to inform consumers where the price offered has been personalized based on automated decision-making and profiling of consumer behavior.
  2. Fake reviews: a prohibition on the manipulation of reviews (i.e., publishing only positive reviews) and a prohibition on traders procuring the submission of fake reviews.
  3. Ticket touts: a prohibition on traders reselling event tickets that have been acquired through the use of automated ‘bots’.
  4. Search results: an obligation to inform consumers about the parameters determining the ranking of offers within search results and to disclose where payment has been made for higher rankings.

Protection for consumers contracting for digital services in exchange for personal data

Contracts where no price is paid by the consumer, but where personal data is provided, are now caught by existing consumer protection legislation. Consumers that have entered into such contracts may now for example take advantage of a 14-day cooling off period.

What does this mean for you?

If you are a trader with consumers within the EU, then you will need to ensure compliance with the new rules irrespective of where you are based.

  • Check your consumer-facing terms. Are they compliant with the new rules?
  • Check your website wording. Does it fit with the new rules?
  • Does your business collect data? Consider the implications of how that is monetized.
  • Do you do personalized pricing or pay for higher rankings in search results, or are you at risk of fake reviews? Consider if the new rules apply to you.

The clock is ticking to 2022 – in order to avoid the possibility of significant fines, make use of the next two years to ensure your business is compliant with the new regime.

The authors are part of a leading and internationally acclaimed network within Hogan Lovells that can support you and your products anywhere in the world. The Hogan Lovells Global Products Law practice is internationally renowned for their work in product liability, litigation, safety and compliance for universally recognised brands in every industry sector.

Posted in Policy & Regulation, Telecoms & Broadband Mark BrennanArpan SuraJohn Castle

Seventh Circuit Joins Third and Eleventh Circuits in “Autodialer” Circuit Split

Slowly but surely, the U.S. Courts of Appeal increasingly agree on how to interpret the definition of “automatic telephone dialing system” (“ATDS” or “autodialer”) in the Telephone Consumer Protection Act (“TCPA”). On February 19, 2020, a unanimous Seventh Circuit panel refused to revise a putative class action in Gadelhak v. AT&T Services, Inc. after concluding that the dialing system used by AT&T did not qualify as an autodialer. Like the Eleventh Circuit in Glasser v. Hilton Grand Vacations Company, LLC and Third Circuit in Dominguez v. Yahoo, Inc., the Seventh Circuit held that an “autodialer” must use “a random or sequential number generator” to either store or produce numbers. Because the system used by AT&T simply pulled numbers from a database, the court found that the system was not an autodialer and the texts did not violate the TCPA. Continue Reading