Communications law firms remain busy two months-plus into the COVID-19 pandemic. Transactional work slowed, but the FCC has stayed busy. With states starting to reopen, lawyers said in interviews this month they expect a normally busy summer. Some expect an inevitable slowdown after the November election, especially if there's a change in leadership in Washington.
California might enforce its privacy law three months before final regulations by Attorney General Xavier Becerra (D), said privacy attorney Christina Gagnier on a Carlton Fields webinar Thursday. The AG hasn't announced timing for California Consumer Privacy Act rules, but “it’s been communicated that the regulations might not be out until October,” even though Becerra hasn’t budged on starting enforcement July 1, she said. COVID-19 has moved many things back but it’s also brought “a heightened awareness of privacy,” Gagnier said. “The AG’s office is basically balancing those two things.” The final rules probably won't deviate much from proposed regulations as revised a few months ago (see 2004020043), unless the legislature this summer passes major changes like what’s proposed in AB-3119 by Assemblymember Buffy Wicks (D), the lawyer said. Wiley heard the same, attorney Joan Stewart emailed us. "While the AG hasn’t provided guidance yet on how enforcement would work in a world without implementing regulations -- we anticipate that initially enforcement could be focused on the requirements of the statute, rather than compliance specifics tied to the regulations." Expect the AG to "go after businesses that have made no effort to comply rather than businesses that have made a good faith effort but fell short." The International Association of Privacy Professionals blogged Monday about the possible delay to CCPA rules. "For regulations to become effective July 1, they must be filed with the Office of Administrative Law by May 31," but they haven't been submitted, IAPP said. If the AG doesn't meet that deadline, "their effective date will likely slip until Oct. 1." Becerra is "committed to enforcing the law starting July 1," a spokesperson emailed. "We encourage businesses to be particularly mindful of data security in this time of emergency."
A November ballot vote on California consumer privacy might be inevitable despite lukewarm reception from groups that typically back such measures. Industry hasn’t formally opposed the proposed California Privacy Rights Act (CPRA) and legislative intervention is no sure thing, we were told last week. “That there is no campaign against this initiative” by businesses is “almost as telling” as “no privacy group coming out to support it,” said Corbin and Kaiser lobbying firm CEO Samantha Corbin.
Chief Justice John Roberts said the Telephone Consumer Protection Act is a popular law the Supreme Court doesn’t want to undermine, as it heard argument in a case Wednesday with broad implications for the statute (see 2001130044). Other justices said similar, and experts don't expect the entire regime to be overturned. The court heard the case via teleconference, with justices calling in remotely because of COVID-19. Barr v. American Association of Political Consultants involves an AAPC challenge of a 4th U.S. Circuit Court of Appeals ruling, which declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the TCPA.
The state's attorney general isn’t backing off plans to enforce the California Consumer Privacy Act starting July 1 despite a push by business groups to delay it by six months amid COVID-19. Lawyers are advising businesses to expect enforcement that day. The public health crisis must delay some things but shouldn't postpone this, said California Senate Judiciary Committee Chair Hannah-Beth Jackson (D) in an interview.
Axinn announces Koren Wong-Ervin, ex-Qualcomm, as partner-antitrust ... Wiley names to new COVID-19 group Task Force and Resource Center: Privacy, Cyber and Data Governance Chair Kathleen Kirby, and from that practice Megan Brown, Jon Burd, Matthew Gardner, Duane Pozza and Antonio Reynolds; Telecom, Media and Technology co-Chairs David Gross and Kirby, and from that practice Scott Delacourt, Anna Gomez, Jennifer Hindin and Joshua Turner; and Wiley's Signal Group-Strategic Communications and Digital Solutions Chair John Procter and from that group Blake Androff and Robert Bole.
The 9th U.S. Circuit Court of Appeals' ruling for Google and its YouTube subsidiary in Prager University's lawsuit (see 2002260046) leaves open the broader issue of how courts will treat online platforms as speakers, Wiley lawyers Megan Brown, Boyd Garriott and Jeremy Broggi blogged Wednesday for the Washington Legal Foundation. The Supreme Court's Manhattan Community Access v. Halleck decision left the door open to the court finding sufficient state action in future First Amendment cases, they said. With doctrine unsettled, some platforms are focusing on self-regulation, they said. They said the Communications Decency Act's Section 230 immunity could go away in the face of bipartisan criticism and DOJ saying it's looking at ways of paring it back.
FCC staffers expect to handle more meetings over the phone and fewer in person over the next weeks due to the coronavirus. The FCC hasn't made a decision yet, but industry and agency officials said in interviews this week the March 31 commissioners’ meeting may not be in-person. Chairman Ajit Pai spoke to the Free State Foundation conference Tuesday via video and Commissioner Brendan Carr canceled an appearance. Commissioner Mike O’Rielly spoke. See that news: 2003100047 and 2003100061.
The potential anticompetitive impact of trademarking domain names created by adding a generic top-level domain (gTLD) such as .com to an otherwise generic terms like "booking" is at issue in a case before the U.S. Supreme Court. The Patent and Trademark Office, backed by the Electronic Frontier Foundation, seeks a per se rule barring such domain names from being protected. Intellectual property scholars and lawyers and online companies disagree, although some also note anti-competition concerns. Case documents in PTO v. Booking.com (No. 19-46), which is set for argument March 23 (see 2001310027) are here.
Former FCC Chairman Dick Wiley and David Hilliard, both from Wiley, filed an email to an aide to Chairman Ajit Pai on an upcoming meeting on Aviation Spectrum Resources, Inc.’s request for limited waiver FCC rules to allow use of two 25 kHz channels in the 136.000-136.4875 MHz band for data link communications using FCC-licensed aeronautical en route service stations. The waiver request was unopposed when the FCC sought comment, said a filing in docket 19-180, posted Wednesday. “ASRI tells us that both channels are needed this quarter,” the filing said: “Delay will have a negative effect on implementation of the FAA's major initiative to improve the safety and efficiency of air traffic control.”