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Oct 24, 2019

Emerging Technologies Washington Update

This Week: FAA Drone Advisory Committee accepts recommendations, creates new taskings; House Antitrust Subcommittee resumes hearings on online platforms and market power; Senators introduce bipartisan data portability legislation; House passes bill to create new small claims court for online content copyright infringement.

Week in Review

With the current continuing resolution set to expire on November 21, Senate Majority Leader McConnell (R-KY) took procedural steps this week to bring packages of FY21 appropriations measures to the floor. The House has passed almost all of its bills, though notably has not acted on its Homeland Security measure. Elsewhere, the Senate Commerce, Science, and Transportation Committee held a hearing yesterday on reauthorizing the Satellite Television Extension and Localism Act (STELAR), which expires at the end of the year. Lawmakers have not offered reauthorization legislation in either chamber.

The House Homeland Security Committee advanced two bills related to drones this week, one that would establish an official within the Department of Homeland Security (DHS) tasked with coordinating federal unmanned aircraft systems (UAS) countermeasures policy development and deployment of the technology. The coordinator will also be the primary point of contact for federal, state, local, and tribal law enforcement and the private sector, particularly with regard to instances in which counter UAS technology may impact lawful private sector UAS operations. The Senate Homeland Security Committee advanced a companion bill earlier this year. The House committee also approved legislation introduced last week that would prohibit DHS from purchasing or operating foreign-made UAS. A group of bipartisan senators introduced legislation recently that would apply the same prohibition to all federal agencies. The House wrapped its work on Wednesday in honor of the late Rep. Elijah Cummings (D-MD), who lies in state today ahead of his funeral tomorrow in Baltimore.

President Trump said last Friday that he will nominate Deputy Secretary Dan Brouillette to replace Secretary of Energy Rick Perry, who is stepping down. On Tuesday, the White House announced a new executive order creating the President’s Council of Advisors on Science and Technology (PCAST), a new body that will advise the President on matters related to science, technology, education, and innovation policy.

Looking Ahead

Appropriations leadership will focus on FY21 spending measures, and potentially another continuing resolution, over the coming weeks to avert a government shutdown on November 21. With the three committees of jurisdiction having advanced House Democratic leadership’s prescription drug pricing bill - The Lower Drug Costs Now Act - Majority Leader Hoyer (D-MD) will prioritize bringing the legislation to the floor. The vote will slip until next month, however, as lawmakers await a full Congressional Budget Office (CBO) score. National Defense Authorization Act (NDAA) conferees also continue to negotiate a final package and are contemplating putting forth a pared down bill including provisions that must be enacted by the end of the year.

FAA Drone Advisory Committee Accepts Recommendations, Creates New Taskings

The FAA’s Drone Advisory Committee (DAC) met late last week. Three subgroups presented recommendations on three taskings initiated at the last meeting pertaining to voluntary early equipage of remote identification technologies, unmanned aircraft system (UAS) security, and improving the Part 107 process for waivers for certain types of commercial operations, including those beyond the visual line of sight (BVLOS), at night, and over people (OOP). The DAC accepted all of the subgroups’ recommendations.

The DAC developed three new taskings related to 1) updating and improving facility maps, 2) evaluating challenges posed by BVLOS operations, and 3) seeking industry feedback on the FAA’s concept of operations (ConOps) for unmanned traffic management (UTM). The DAC was to be asked to provide feedback on the second version of the FAA’s UTM ConOps (ConOps 2.0), but the updated document is not yet available. In the meantime, the DAC will rely on ConOps 1.0, but will receive 2.0 if it is approved for release within the 90 day tasking period.

The FAA also reiterated that it expects to publish its notice of proposed rulemaking (NPRM) for remote identification of drones for public comment before the end of the year. The White House Office of Management and Budget (OMB) is currently reviewing the NPRM. In the meantime, the FAA said it has been working on a remote ID implementation plan.

House Antitrust Subcommittee Resumes Hearings on Online Platforms and Market Power

Last Friday, the House Judiciary Subcommittee on Antitrust held the third in a series of hearings on “Online Platforms and Market Power,” this one focused on “The Role of Data and Privacy in Competition”. The hearing primarily focused on the role data plays in creating and maintaining imbalances and how that impacts competition. 

During his opening remarks, Judiciary Committee Chairman Nadler (D-NY) noted that ongoing technological transformations have upended the balance of power across the economy, leading Congress to study and understand how these imbalances impact Americans, and whether new and growing inequalities are compatible with the nation’s democratic values. Subcommittee Chairman Cicilline (D-RI) noted the responsibility Congress has to determine whether current laws and enforcement are keeping up with the digital markets of today. Subcommittee Ranking Member Sensenbrenner (R-WI) struck a different tone during his opening remarks by cautioning Congress to not overreach and apply antitrust laws in a manner that punish success and stifle innovation.

During the hearing, Cicilline observed that competition and privacy can complement each other, but they can also be at odds and asked how antitrust enforcement authorities and policymakers should strike a balance. Jason Furman, Professor of the Practice of Economic Policy, Harvard Kennedy School and former Chairman of the Council of Economic Advisers during the Obama Administration, said that this balance must be struck on a case-by-case basis and expressed support for establishing a regulator with the objective of ensuring both. In response to a question from Rep. Scanlon (D-PA), Furman also said Congress should explore implementing data portability requirements.

Democratic FTC Commissioner Rohit Chopra told lawmakers that there is increased evidence that behavioral advertising explodes individuals to increased risks, including manipulation. He also urged Congress to vigorously use the tools it has at its disposal to examine antitrust enforcement and to examine how markets could be impacted by enforcement decisions.

Senators Introduce Bipartisan Data Portability Legislation

On Tuesday, Senators Warner (D-VA), Hawley (R-MO), and Blumenthal (D-CT) introduced the Augmenting Compatibility and Competition by Enabling Switching Services (ACCESS) Act. “By making it easier for social media users to easily move their data or to continue to communicate with their friends after switching platforms, startups will be able to compete on equal terms with the biggest social media companies. And empowering trusted custodial companies to step in on behalf of users to better manage their accounts across different platforms will help balance the playing field between consumers and companies,” said Senator Warner.

The bill requires “large communication platform providers,” defined as consumer-facing communications and information services providers with over 100 million monthly active users in the United States to operate transparent, third-party accessible interfaces to allow users to transfer their data, either directly to the user or to a competing communications provider at the direction of the user.

Warner and Hawley have partnered on legislation related to consumer data in the past, including the DASHBOARD Act, which would require certain online platforms to disclose how they monetize consumer data, and the Do Not Track Act, which would allow users to opt-out of non-essential data collection under a program similar to the Do Not Call list.

House Passes Bill to Create New Small Claims Court for Online Content Copyright Infringement

On October 22nd, the House voted 410-6 for a new law, the Copyright Alternative in Small-Claims Enforcement Act of 2019 (“CASE Act”), that would establish an alternative copyright claims mechanism, the “Copyright Claims Board” (CCB), for claimants to pursue infringement and counterclaims to infringement in copyright cases. The bill sets out in detail the technical procedures the Board would follow as well as the process potential litigants would need to follow in filing their claims. The CCB is established in the U.S. Copyright Office and its role is to adjudicate the specific claims before them without making new rules or precedent for the agency. The CCB would have authority to award actual or statutory damages in the cases before it as well as to order the infringing entity to cease its infringing of the specific copyright. The cap on damages for any single claim is $30,000. The legislation leaves in place the protections provided under existing Copyright Law for online services. A companion bill has been introduced in the Senate and reported out of the Senate Judiciary Committee. It awaits a floor vote in that chamber. 


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