Lucia Is Likely To Have Little Impact On Waning FCC Adjudications

By Paul Werner and Imad Matini on July 17, 2018 Posted in FCC

During its most recent Term, the Supreme Court held in Lucia v. SEC that the administrative law judges (“ALJs”) that preside over adjudications at the Securities and Exchange Commission (“SEC”) are “Officers of the United States” who must be appointed pursuant to the Appointments Clause of the Constitution. 138 S.Ct. 2044, 2055 (2018). This holding necessarily calls into question the validity of the appointments of ALJs across diverse federal administrative agencies and their rulings. In light of this anticipated fall out, the Trump Administration moved swiftly to issue an Executive Order retooling the hiring process for ALJs. But whether the Court’s holding in Lucia will impact adjudications before the Federal Communications Commission (“Commission”) remains to be seen. Continue Reading

FCC Seeks “Large Step” Toward Advancing Broadband Infrastructure Goals With Draft One-Touch Make-Ready Order

By Dave Thomas, Paul Werner, Aaron George, Ray Rutngamlug and Abraham Shanedling on July 16, 2018 Posted in FCC

Promoting infrastructure investment and broadband deployment has been a top priority for Chairman Ajit Pai’s FCC. On July 12, 2018, the Chairman took a significant stride in advancing his agenda by releasing a draft report and order that would enact, among other things, a “one-touch make-ready” (OTMR) process for most third-party communications-provider attachments to utility poles. Continue Reading

Back To The Future: FCC Returns To Light Touch Regulation Of The Internet

By Aaron George, Paul Werner and Imad Matini on June 13, 2018 Posted in FCC

This week, the Federal Communications Commission’s (“FCC’s”) Restoring Internet Freedom Order took effect, rolling back the public-utility style regulation of Internet service providers (“ISPs”) pursuant to title II of the Communications Act, imposed during the prior administration by the FCC’s 2015 Open Internet Order (“2015 Order”). The agency’s return to a light touch regulatory approach has sparked public debate since FCC Chairman Ajit Pai proposed it more than a year ago. And while the FCC’s action is already the subject of several judicial challenges consolidated in the D.C. Circuit, a number of states have also sought to impose their own state-specific net neutrality legislation. But it remains to be seen whether individual states can impose net neutrality obligations on ISPs, particularly in light of the FCC’s invocation of its preemption authority in the Restoring Internet Freedom Order. Continue Reading

Once Bitten, Twice Shy: FCC Revisits Its Telemarketing Regulations In Light Of The DC Circuit’s Decision Striking Down Core Requirements

By Brian Weimer, Paul Werner and Hannah Wigger on June 1, 2018 Posted in FCC

On March 16, 2018, the United States Court of Appeals for the District of Columbia Circuit issued its long awaited decision in ACA International v. FCC, in which a group of petitioners across a spectrum of industries sought review of various aspects of the Federal Communications Commission’s (FCC’s) 2015 Omnibus Declaration Ruling and Order (2015 Order). The controversial 2015 Omnibus Order adopted further regulations to implement the Telephone Consumer Protection Act (TCPA) – which was enacted more than twenty-five years ago to address certain issues with automated telemarketing calls. Continue Reading

FCC Sets Sights on China

By Brian Weimer, Drew Svor and Eamon Tierney on May 7, 2018 Posted in FCC

As yet another example of the U.S. government’s ongoing concerns about the potential vulnerability of U.S. telecommunications networks and supply chains, the FCC recently released a Notice of Proposed Rulemaking (NPRM) proposing to prohibit the use of funds disbursed from the Universal Services Fund (USF) to purchase equipment or services from any providers posing a national security threat to the U.S. The USF distributes funds and subsidies to companies who provide service to unserved and underserved locations and low-income consumers. The NPRM dovetails with recent governmental actions targeting perceived Chinese threats to U.S. telecommunications infrastructure, including the passage of the National Defense Authorization Act (NDAA) for Fiscal Year 2018 (which prohibits the Department of Defense from using the equipment or services of certain Chinese telecommunications companies), the Committee on Foreign Investment in the United States’ (CFIUS) blocking of chipmaker Broadcom’s hostile takeover bid for Qualcomm, and the Department of Commerce’s denial of export privileges against a Chinese telecommunications manufacturer for seven years. It also precedes a recent report by the Wall Street Journal on May 2, 2018 detailing the possibility of executive action by the Trump administration to restrict Chinese companies’ ability to sell telecommunications equipment in the U.S. Chinese companies have already taken action as a result of this increased focus on Chinese telecommunications equipment, including one firm’s request for a stay of a U.S. order banning American companies from selling to the firm. Continue Reading

Chips on Their Shoulders: CFIUS Intervenes in Broadcom’s Hostile Takeover Bid for Qualcomm

By Drew Svor, Brian Weimer and Reid Whitten on March 8, 2018 Posted in FCC

CFIUS takes an unprecedented step to fend off a potential foreign acquisition
The threat that China will eclipse the U.S. in telecommunications infrastructure and technology is central to U.S. national security
Five key takeaways from the most recent CFIUS action

Since late 2017, Singapore-based semiconductor company Broadcom has been pursuing a $117 billion hostile takeover bid for Qualcomm, its U.S.-based rival whose chips are omnipresent in U.S. telecommunications infrastructure, including consumer devices like smartphones and tablets. As part of its hostile bid, Broadcom nominated its own slate of six directors who were to be voted on at Qualcomm’s annual stockholders meeting, originally scheduled for March 6^th. However, earlier this week the Committee on Foreign Investment in the United States (CFIUS) announced that it “issued an interim order to Qualcomm directing it to postpone its annual stockholders meeting and election of directors by 30 days. This measure will afford CFIUS the ability to investigate fully Broadcom’s proposed acquisition of Qualcomm.” Continue Reading

FCC Proposes Expedited Treatment For New Technologies

By Brian Weimer and Drew Svor on February 28, 2018 Posted in FCC

“Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road” – Stewart Brand

Last week, the FCC released a Notice of Proposed Rulemaking (NPRM) proposing guidelines and procedures designed to “breathe life” into Section 7 of the Communications Act. A somewhat obscure part – or, as Chairman Ajit Pai prefers, the “neglected stepchild” – of the Communications Act, Section 7 requires the FCC to make a public interest determination on proposals for new technologies or services within one year. Although a one-year timeframe may seem like quite a lengthy period for regulatory approval, it represents an increase to warp speed for an FCC that sometimes can take many years to approve challenging new technologies.

Tracking Trends in CFIUS Review Process Based on Recently Released 2015 Annual Report

By Brian Weimer on October 13, 2017 Posted in FCC

Last month, the Committee on Foreign Investment in the United States (“CFIUS”) released its annual report to Congress for 2015 (the “2015 Annual Report”) and its cumulative table summarizing foreign investment activity from 2014 through 2016 (the “Cumulative Summary Table”). These documents reflect a substantial increase in the number of CFIUS filings in recent years and an increase in the percentage of CFIUS Notices that have been subject to an investigation process. The Report also reflects a new focus at CFIUS on the national security risks associated with data breaches affecting U.S. citizens’ personal information. Continue Reading

You Can’t Always Get What You Want—Second Circuit Affirms Parties Can Bargain Away TCPA Right To Revoke Consent To Automated Calls

By Paul Werner and David Poell on July 12, 2017 Posted in Uncategorized

As the Rolling Stones famously sing, “You can’t always get what you want.” And in the ever treacherous world of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., the Second Circuit has ruled that means a party to contract cannot unilaterally revoke consent to receive automated calls. Continue Reading

Dish Network to Dish Out $341M for TCPA Violations

By Genevieve Perez on June 30, 2017 Posted in FCC

Two recent judgements against Dish Network LLC (“Dish”) for violations of the Telephone Consumer Protection Act (TCPA) and similar state and federal laws demonstrate the significant liability companies may face based on the actions of their third-party contractors. Dish has been ordered to pay a total of approximately $341 million in two separate federal court actions related to TCPA violations committed by its marketing service providers. Both cases underscore the importance of maintaining strong vendor oversight in the highly regulated telemarketing industry. Continue Reading

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