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May 7, 2020

Emerging Technologies Washington Update

This week: Coronavirus response; House Democrats unveil plan for all Americans to access affordable broadband; Senate Commerce Republicans offer COVID-19 Consumer Data Protection Act; California attorney general and city attorneys file suit alleging worker misclassification under AB5.

Coronavirus Response

The Latest

The Senate returned to Washington this week for legislative business and several committees convened hearings on the COVID-19 pandemic. On Wednesday, the Senate Commerce, Science, and Transportation Committee heard from aviation stakeholders and a public health expert during a hearing on the impact of the COVID-19 pandemic on the aviation industry and the Senate Homeland Security and Governmental Affairs Committee held a virtual roundtable on how new information on COVID-19 should drive policy. This morning, the Senate Health, Education, Labor, and Pensions Committee held a hearing on new tests for COVID-19 during which National Institutes of Health Director Dr. Francis Collins and Dr. Gary Disbrow, Acting Director of the Biomedical Advanced Research And Development Authority, testified. Even though the House remains in recess, members of the House Appropriations Subcommittee on Labor, Health and Human Services, and Education also held a hearing Wednesday on the COVID-19 response.

Timing for the next phase of coronavirus relief legislation remains in flux as House leaders have not yet confirmed when the chamber will reconvene in Washington, though Speaker Pelosi (D-CA) has indicated a desire to return next week. In the meantime, lawmakers on both sides of the aisle continue to monitor implementation of the Small Business Administration (SBA) Paycheck Protection Program (PPP), with some suggesting changes in eligibility and transparency requirements should be included in Phase 4 legislation. Senate Small Business Committee Ranking Member Cardin (D-MD) also predicted this week that the program will require additional funding.

The Treasury Department updated its PPP FAQs several times this week and published a new interim final rule on nondiscrimination and additional eligibility criteria. SBA also updated PPP Round 2 data on a daily basis. The Treasury also updated FAQs on the Coronavirus Relief Fund for state and local governments and with the Interior Department, announced a path to begin making $4.8 billion in Coronavirus Relief Fund dollars available to Native American tribes. Elsewhere, the Federal Reserve, Federal Deposit Insurance Corporation (FDIC), and Comptroller of the Currency announced an interim final rule to modify the agencies’ Liquidity Coverage Ration rule to support banking organizations’ participation in the Money Market Mutual Fund Liquidity Facility and the Paycheck Protection Program Liquidity Facility.

Elsewhere, the President and federal agencies continue to take other steps to respond to the outbreak, including, but not limited to:

  • The Department of Labor (DOL) released its unemployment insurance weekly claims report for the week ending May 2 showing the advance figure for seasonally adjusted initial claims was 3,169,000, a decrease of 677,000 from the previous week’s revised level. DOL also announced that Dislocated Worker Grant funding made available to states and territories to employ workers temporarily to respond to the public health emergency can be used for contact tracing and announced additional guidance regarding 100% federal reimbursement of certain state Short-Term Compensation payments pursuant to the CARES Act.
  • The Internal Revenue Service (IRS) updated guidance to provide information on returning Economic Impact Payments and clarified that someone who has died does not qualify and therefore any such payment should be returned.
  • The Food and Drug Administration (FDA) published guidance for medical device manufacturers for reporting permanent discontinuance of or manufacturing interruptions for critical devices during the pandemic.
  • The Department of Defense (DOD) announced it is using thermal imaging to detect COVID-19 and screen for elevated body temperatures among personnel entering military facilities. DOD also announced a $126 million contract with 3M for increased production of 26 million N95 medical-grade masks per month beginning in October.
  • A Federal Trade Commission (FTC) summary of COVID-19 complaints shows the agency has received nearly 35,000 reports totaling $23.3 million in total fraud loss.
  • The Federal Emergency Management Agency published a fact sheet on federal support to expand national testing capabilities.

A complete overview of both congressional and Administrative response efforts is available here and updated daily.

What’s Next

Tomorrow, the House Energy and Commerce Committee will hold a teleconference forum on COVID-19 testing, contact tracing, and surveillance. The Senate will be in session next week and a number of committees will hold hearings on various aspects of the COVID-19 response. On Tuesday, the Health, Education, Labor, and Pensions Committee will hold a hearing on “Safely Getting Back to Work and Back to School” and the Judiciary Committee will hold a hearing to examine liability during the pandemic. The Commerce, Science, and Transportation Committee will convene a hearing on the state of broadband during the pandemic.

Relevant Resources

In Other News

House Democrats Unveil Plan for All Americans to Access Affordable Broadband

On April 30, House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) and House Majority Whip and House Democratic Rural Broadband Task Force Chairman James E. Clyburn (D-SC), along with 10 members of the Rural Broadband Task Force and Energy and Commerce Committee, announced the House Democratic Plan to Connect All Americans to Affordable Broadband Internet. 

The plan would invest $86 billion over five years in expanding broadband access, especially in underserved communities, and is an expanded version of the broadband provisions in the House Democrats’ Moving America Forward Framework.

 Among other things, the thirteen-point plan includes measures to:

  • Offer low-interest financing for broadband deployment
  • Increase competition and reduce costs by requiring  providers who use federal  funding to offer at least one affordable option
  • Promote the creation of mobile hotspots
  • Establish an Office of Internet Connectivity and Growth within the National Telecommunications and Information Administration (NTIA) to coordinate broadband deployment efforts across agencies

It remains unclear whether Republicans would support including a broadband provision in the next coronavirus relief bill that Congress considers as Phase 4 relief legislation.

Senate Commerce Republicans Offer COVID-19 Consumer Data Protection Act

Today, Senate Commerce Committee Chairman Wicker (R-MS) and Senators Thune (R-SD), Moran (R-KS), Blackburn (R-TN), and Fischer (R-NE) introduced the COVID-19 Consumer Data Protection Act. The bill will require companies under the jurisdiction of the Federal Trade Commission (FTC) to obtain affirmative express consent from individuals to collect, process, or transfer their personal health, geolocation, or proximity information for the purposes of tracking the spread of COVID-19. Additionally, the legislation would direct companies to disclose to consumers at the point of collection how their data will be handled, to whom it will be transferred, and how long it will be retained.

The Senators first announced plans to introduce the bill on April 30. Without a private right of action - a Democratic priority that to date has contributed to an impasse in negotiations around a federal privacy bill - it is unlikely to secure Democratic support.

California Attorney General and City Attorneys File Suit Alleging Worker Misclassification Under AB5

On Tuesday, California Attorney General Xavier Becerra and the City Attorneys of Los Angeles, San Diego, and San Francisco filed a lawsuit against Uber and Lyft alleging the companies have misclassified drivers as independent contractors in violation of Assembly Bill 5 (AB5 or California Labor Code section 2750.3). The suit claims that drivers misclassified as independent contractors are deprived of certain benefits such as workplace protections, access to paid sick leave, and disability and unemployment insurance.

Attorney General Becerra implied in a statement that the current coronavirus pandemic underscores the consequences of the alleged misclassification as those who are unable to drive due to illness or because they have lost their jobs “quickly realize what they’re missing.” The complaint “seeks restitution for workers, a permanent halt to the unlawful misclassification of drivers, and civil penalties that could reach hundreds of millions of dollars.”


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