Earlier this week, the United States Supreme Court denied requests by the Trump Administration and telecommunications industry players to vacate a prior decision by the D.C. Circuit Court of Appeals upholding the Federal Communications Commission’s (“FCC’s”) 2015 Open Internet Order, which adopted a suite of Net Neutrality regulations. As a result, the D.C. Circuit’s earlier decision remains standing while challenges to the FCC’s 2018 Restoring Internet Freedom Order, which repealed the earlier Net Neutrality regulations, proceed before the D.C. Circuit. Continue Reading
- On October 10, 2018, the Committee on Foreign Investment in the United States put into effect the first mandatory filing requirement ever imposed by CFIUS. The Department of Treasury’s summary of the Pilot Program is available here.
- Effective November 10, 2018, CFIUS will require reviews of critical technology investments – including certain non-controlling investments – from any country.
- A failure to file notice or a new short form declaration to CFIUS may result in a civil monetary penalty up to the value of the transaction.
- The requirements will not apply to any transaction that is completed prior to November 10, 2018 or any transaction for which the material terms were established prior to October 11, 2018.
On August 13, 2018, President Trump signed FIRRMA into law. FIRRMA is a transformational expansion of the authority of the Committee on Foreign Investment in the United States (CFIUS) to review certain transactions that previously eluded the Committee’s jurisdiction (discussed in our blog, here). Congress left many critical aspects of the FIRRMA framework to be addressed through regulations promulgated by the Department of Treasury. Although we do not expect final rules to be forthcoming until late 2019 or early 2020, Congress empowered the Department of Treasury to “test-drive” parts of FIRRMA through Pilot Programs. Those programs can be implemented simply, taking effect 30 days after publication of the program requirements in the Federal Register. The adoption and implementation of the Pilot Program for critical technologies represents the Department of Treasury’s first attempt to implement substantive parts of FIRRMA prior to issuing formal regulations. Continue Reading
On September 4, 2018, the Federal Communications Commission issued a new rule requiring foreign media outlets to submit reports to the FCC disclosing their relationships with foreign principals. The notice was issued pursuant to the 2019 National Defense Authorization Act. Continue Reading
This week, you have likely heard about FIRRMA, the Foreign Investment Risk Review Modernization Act, the law that will expand CFIUS. We have written about a number of aspects of the new law as it was being made, including the following:
- Expanding CFIUS Jurisdiction
- A CFIUS Focus on Emerging Technology
- Effects on Chinese Investment
- Enhancement of Export Controls
- Potentially CFIUS-Exempt Countries
In this alert, we provide a quick overview of the major points of that law. Continue Reading
Two federal agencies – the Centers for Medicare and Medicaid Services (“CMS”) and the Federal Communications Commission (“FCC”) – announced separate initiatives last week that stand to increase patient access to telehealth services. Continue Reading
On June 25, 2018, the Department of Commerce (“Commerce”) released an advance notice of rulemaking through the National Oceanic and Atmospheric Administration (“NOAA”). As an initial step before Commerce drafts proposed regulations and issues a Notice of Proposed Rulemaking, the notice seeks input from stakeholders on key issues relating to potential revisions to the regulations currently governing how NOAA administers licensing for commercial remote sensing space systems. The last update to the relevant regulations was in 2006 and significant technological developments, new business models, and increased foreign competition require regulatory updates in order to facilitate continued growth and U.S. leadership in this industry. Continue Reading
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
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
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
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