Potomac Law Tech & Telecom Weekly

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July 20, 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 next FCC Open Meeting is August 6, 2020, at 10:30 am ET. The Tentative Agenda contains five items, described here . For more information, contact Stephanie Joyce .

On July 16, the FCC adopted new rules to provide a “safe harbor” from liability related to blocking robocalls, continuing its implementation of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act. Under the first safe harbor, companies that block calls based on reasonable analytics will enjoy a safe harbor. For IP calls, analytics must be based in part on information provided by the STIR/SHAKEN call authentication framework. For non-IP based calls, this safe harbor is available for blocked calls based on another available call authentication framework that satisfies the TRACED Act. Under the second safe harbor, companies can block call traffic from established “bad actor” voice providers that pass illegal calls to other providers. To avoid blocking of legitimate calls, the FCC requires that providers provide a single point of contact to address inadvertent call blocking. The FCC also re-emphasizes that emergency calls, such as 911 calls, should never be blocked. The News Release describing the rules is here . For more information, contact Douglas Bonner .

Compliance Alerts

The FCC entered into a consent decree with Caesars Entertainment Corporation (Caesars) stemming from the unauthorized transfers of control and assignments of private wireless radio licenses in connection with Caesars’ Chapter 11 bankruptcy in 2017. The FCC cited at least 40 instances of pro forma transactions that Caesars should have reported during its reorganization, and 5 substantial transfers of control that required Commission approval after the bankruptcy-related transactions were completed. Caesars agreed to enter into a compliance plan, which includes the filing of reports for 3 years and payment of a $127,000 civil penalty. A copy of the consent decree can be found here . Contact Katherine Barker Marshall for more information about approval of transactions involving FCC licensees. (DA 20-567).

The Universal Service Administrative Company (USAC) is expanding its use of Multifactor Authentication to the E-rate Productivity Center (EPC) and Billed Entity Applicant Reimbursement (BEAR) forms starting on July 27, 2020. Users of the EPC and filers seeking to file BEARs will be required to log in to USAC’s One Portal, which will generate a one-time approval code for log-in each time the user accesses the system. Additional guidance can be found here . Contact Katherine Barker Marshall for more information.

Privacy

The European Court of Justice (CJEU) has invalidated the “Privacy Shield” upon which thousands of U.S. companies rely to receive personal data from the European Union. The CJEU also generally uphold the “Standard Contractual Clauses” mechanism but stated that their validity can be subject to a case-by-case review. The Schrems II decision, available here , takes effect immediately. Companies that participated in the Privacy Shield must reassess the legal basis for the data transfers while still continuing to adhere to the commitments made when entering the Privacy Shield. For more information, please contact William Baker .

In the Courts

On July 15, 2020, the General Court of the European Union (EGC) held that the European Commission erred in ruling that the Republic of Ireland improperly granted tax relief to Apple worth approximately 13 billion euro. In the decision, available here , the EGC concluded that Ireland had not granted any “selective advantage” to Apple by declining to impose taxes on Apple’s intellectual property and trade income obtained outside the Americas. The controversy over Apple’s European tax burden has waged since 1991. For more information, contact Stephanie Joyce .

Cybersecurity

Last Friday, the FCC released a Declaratory Ruling and Second FNPRM ( FCC 20-99 ) in the Supply Chain docket. The order further implements the Secure and Trusted Communications Networks Act of 2019 , by affirming the agency’s prior ruling that prohibits spending Universal Service funds on equipment from companies found to be a threat to national security (Huawei and ZTE). The bulk of the item seeks comment on how the FCC should implement additional provisions of the Act, such as developing a list of specific telecommunications equipment that cannot be purchased with federal subsidies. Draft Rules appear at the end of the order. Comments are due 21 days after Federal Register publication. For more information, contact Stephanie Joyce .

Tribal Nations

The FCC’s existing ex parte rules have no exemptions for presentations to or from federally recognized Tribal Nations. This means that in permit-but-disclose proceedings (such as public rulemakings), written presentations and summaries of verbal presentations must be filed in the record. Recognizing that the federal government has a “unique” trust relationship with Indian Tribes, the FCC is proposing a new exemption for government-to-government consultations with federally recognized Tribal Nations. Under this exemption, Commission staff and “authorized representatives of Tribal governments” could consult on a government-to-government basis without having to disclose the meetings in an ex parte filing. The FCC is also proposing that during the “Sunshine” period in a permit-but-disclose proceeding, Tribal governments could continue consulting with the FCC. Comments on these proposals will be due 30 days after Federal Register publication. See the NPRM here . For more information, contact Douglas Bonner .

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