Potomac Law Tech & Telecom Weekly

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June 29, 2020

Welcome to the Tech & Telecom Weekly, an e-newsletter keeping you apprised of the latest developments in the telecommunications and high-tech industries.

FCC Policy

The FCC is seeking comment on a joint petition filed by CTIA-The Wireless Association and USTelecom asking the Commission to streamline its review of pro forma transfer of control and assignment applications. Specifically, the petition asks the Commission remove existing prior approval requirements for all pro forma transactions across all licenses, and permit parties for file 30-day post-closing notifications, or, in the alternative, the Commission automatically approve all such transactions. Comments are due July 24, 2020 , with reply comments due August 10, 2020 , in WT Docket No. 20-186, and RM-11860. A copy of the Public Notice can be found here (DA 20-661) . For more information, contact Katherine Barker Marshall .

The next FCC Open Meeting is scheduled for July 16, 2020 , at 10:30 am ET. The tentative agenda, available here , lists seven items, including a Third Report and Order in the Robocalls docket (CG No. 17-59) that establishes a safe harbor for carriers that block calls from known bad actors or in reliance on STIR/SHAKEN. For more information, contact Stephanie Joyce .

Compliance Alerts

The Universal Service Administrative Company (USAC) announced that it will hold its July Lifeline Program Webinar on July 8, 2020 , from 3:00 to 4:00 pm ET. During the webinar, participants will have the opportunity to ask questions about the Lifeline Program and will receive updates on the Program, including guidance on compliance filings and how to use the National Verifier and National Lifeline Accountability Databases. Interested participants can register here . For more information, contact Katherine Barker Marshall.

The proposed federal Universal Service Fund (USF) contribution rate for the third quarter of 2020 is 26.5%. The rate will go into effect July 1, 2020 , unless the FCC adopts a different number by June 26, 2020. Federal USF is assessed on telecommunications, interconnected Voice over Internet Protocol (VoIP), and conference calling services. A copy of the Public Notice announcing the 3Q20 rate can be found here . For more information, contact Katherine Barker Marshall.

Cybersecurity

On June 25, 2020, Congressional Democrats introduced a bill to ban federal law enforcement from using facial recognition technology. The proposed Facial Recognition and Biometric Technology Moratorium Act of 2020, which follows IBM’s decision to pull out of the market and Amazon’s one-year moratorium on selling its own such technology to law enforcement, would prohibit federal entities from using facial recognition and other biometric technologies and would prohibit federal money from being spent on such systems. It would, however, allow states and municipalities to enact their own laws on the subject. The text of the bill is here . For more information, contact Eliza Hall.

In the Courts

Due to the disruption caused by COVID-19, many companies are looking for relief from contractual obligations by invoking force majeure clauses. In Pacific Collective, LLC v. ExxonMobil Oil Corp., No. 20-STCV-13294 (LA Cty. Sup. Ct.), a California real estate developer has invoked a force majeure provision to require ExxonMobil to delay the closing date on a property purchase and to prevent ExxonMobil from shopping the property to others. Although the force majeure provision does not expressly include a pandemic as a trigger, Pacific Collective has alleged that the government lockdowns rendered performance impossible. For more information, contact Chuck Lobsenz .

In the Courts (cont'd)

The Federal Circuit ruled last week that Dish Network LLC and Sirius XM Radio Inc. still have a chance to recover attorneys’ fees in their defense of a patent infringement case filed by Dragon Intellectual Property LLC over playback technology. In a precedential decision issued in April 2020, the Federal Circuit held that Dish Network and Sirius XM are “prevailing parties,” because the case was dismissed as moot when the Patent Trial and Appeal Board invalidated Dragon’s patent. On June 24, 2020, the Federal Circuit denied Dragon’s petition for an en banc or panel rehearing, remanding to the Delaware District Court to decide if the case is “exceptional” such that an award of fees is warranted. For more information, contact Susan Metcalfe .

Rural Broadband

The FCC’s Rural Broadband Auctions Task Force has released the list of 5,392,520 “unserved” locations that are eligible for bidding in the Rural Digital Opportunity Fund Phase I reverse auction. The eligible locations survived an expedited challenge process in which parties could attempt to show that adequate broadband coverage — defined as 25/3 Mbps — was already deployed in a particular location. A challenge from Frontier Communications, which asserted adequate coverage for 16,987 census blocks, was denied for lacking sufficient evidence. The Public Notice, available here , shows the number of eligible locations in each U.S. state. As we reported on June 22 , short-form applications to bid in this reverse auction will be accepted July 1 to 15, 2020 . For more information, contact Stephanie Joyce.

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