Emerging Technologies Washington Update - December 2019 #2

This Week: USMCA maintains provision similar to Section 230 liability protections; Senate Commerce Committee advances bills on 5G, robocalls; FCC votes on 5.9 GHz proposal; Senate Democrats renew call to pass Net Neutrality legislation.

Week in Review

With just a handful of legislative days remaining before government spending authority expires on December 20, House and Senate Appropriations Committee leaders met this morning to continue to discuss a path forward for FY20 appropriations. The Senate spent most of the week on pending nominations, including Stephen Hahn’s nomination to serve as FDA commissioner and John Sullivan’s nomination to be the next US Ambassador to Russia. Today, Senate Republicans met with US Trade Representative Robert Lighthizer to discuss the recently agreed upon US-Mexico-Canada trade agreement (USMCA).

Bicameral Armed Services Committee leadership announced on Monday night that they reached an agreement on the FY20 National Defense Authorization Act (NDAA) conference report. The House passed the compromise package on Wednesday, 377-48. The Senate is expected to follow suit.

The House adopted the TV View Protection Act by voice vote Tuesday, legislation that would reauthorize the STELAR satellite television law set to expire at the end of the year. There is no Senate companion yet; bicameral committee leaders are discussing a short-term extension into next year while the Senate committees of jurisdiction continue to work on legislation. Today, the House votes on H.R. 3, the drug pricing legislation championed by Speaker Nancy Pelosi (D-CA).

Reps. Ted Yoho (R-FL), Denny Heck (D-WA), and Tom Graves (R-GA) announced in recent days that they will not seek reelection in 2020. Rep. Duncan Hunter (R-CA) also confirmed he will resign after the holidays after pleading guilty to campaign finance violations.

On Tuesday, Attorney General Bill Barr told state attorneys general that the Department of Justice has “started thinking critically” about Section 230 of the Communications Decency Act and plans to hold a public workshop on the subject. Barr’s comments coincided with Speaker Pelosi’s renewed criticism of the provision as similar protections were included in USMCA (see below for additional details), as well as the recently approved US-Japan trade deal. That agreement did not require congressional approval and Tokyo formally approved it last week.

Looking Ahead

Bicameral Appropriations Committee leadership and the Administration continue to negotiate a deal on FY20 appropriations as the current continuing resolution prepares to lapse at the end of next week. The Senate may also bring up compromise robocalls legislation that passed the House last week 417-3, though Senator Rand Paul (R-KY) has indicated he will object to an effort to move it by unanimous consent. On Tuesday, Paul Ray, the President’s nominee to serve as Administrator of the Office of Information and Regulatory Affairs, will testify before the Senate Homeland Security and Governmental Affairs Committee.

House Energy and Commerce Consumer Protection Subcommittee Chairwoman Jan Schakowsky (D-IL) is expected to release draft online privacy legislation next week. Bipartisan negotiations have not yet yielded agreement on controversial issues like preemption and a private right of action. Ranking Member Cathy McMorris Rodgers (R-WA) said that while she will not endorse the draft, it will help solicit feedback to inform ongoing discussions.

Looking to next year, the Senate is expected to take up the USMCA trade agreement in January, likely following an impeachment trial.

USMCA Maintains Provision Similar to Section 230 Liability Provisions

Negotiators from the United States, Mexico, and Canada announced a deal this week on a new trade agreement (USMCA) that includes a provision providing liability protections similar to those included in Section 230 of the Communications Decency Act. The language remains despite a last ditch effort by House Speaker Nancy Pelosi (D-CA) to lobby the Trump administration to remove the provision. Pelosi said the decision was a “disappointment,” but that as House Democrats and the White House closed in on a deal, she didn’t have the leverage to push for removing the language that she had earlier in the process. In announcing support for USMCA on Tuesday, Pelosi went on to again call Section 230 “a gift,” echoing sentiments she expressed earlier this year when she said the provision could be “in jeopardy.” 

House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) and Ranking Member Greg Walden (R-OR) also wrote to US Trade Representative Robert Lighthizer earlier this year expressing concerns about the provision in USMCA and other pending trade agreements. They later invited Lighthizer to testify during a hearing on Section 230; he declined the invitation.   

Senate Commerce Committee Advances Bills on 5G, Robocalls

Senate Commerce Committee Chairman Roger Wicker (R-MS) convened a markup on Wednesday during which the Committee passed 13 bills. Now subject to approval from the entire Senate, these bills touch on a myriad of issues ranging from 5G to robocalls. Three bills are of specific importance to the emerging technology space: The Data Analytics Robocall Technology Act (DART Act), the Drone Advisory Committee for the 21st Century Act, and the 5G Spectrum Act.

First, the DART Act is meant to help address concerns regarding the growing issue of robocalls. The bill prompts the FCC to conduct a pilot program for one year that will allow telephone service providers to block suspected unlawful, automated calls. The pilot must begin within 18 months of enactment and, if successful, will lead to a permanent program. Second, the Drone Advisory Committee for the 21st Century Act calls on the FAA to include in the DAC’s membership direct representation from county and tribal governments, as well as the agriculture, forestry, and rangeland sectors, and to include public participation in the nominating process. Last, if enacted, the 5G Spectrum Act will direct the FCC to create a C-band auction for 5G. The bill was highly contentious, with the vote splitting down party lines. Democrats claim it will create windfalls for foreign satellite companies, rather than invest in rural communities that lack broadband access. Republicans argue that this bill is critical if America wants to compete in the race against China for 5G dominance.

FCC Votes on 5.9 GHz Proposal

This morning, the Federal Communications Commission adopted a Notice of Proposed Rulemaking in which it seeks comment on permitting Wi-Fi and cellular vehicle-to-everything technology (C-V2X) to operate in the 5.9GHz band. For more than two decades, the band has been reserved for use by dedicated short-range communications (DSRC) as part of the Intelligent Transportation System (ITS). The proposal would allocate the 75 MHz of spectrum available in the band for the following uses: 45 MHz of spectrum for Wi-Fi, 20 MHz for C-V2X, and the remaining 10 MHz to C-V2X or DSRC, which is the currently approved use in the band. The Notice of Proposed Rulemaking was unanimously adopted. Comments will be due 30 days after publication in the Federal Register.

Senate Democrats Renew Call to Pass Net Neutrality Legislation

Senate Republicans on Tuesday dismissed an attempt by Democrats to bring their Save the Internet Act up for a floor vote. That bill, which would bring back Obama-era net neutrality rules, cleared the House in April and has since languished in the Senate. Leading the charge, Senator Ed Markey (D-MA), joined by Senators Maria Cantwell (D-WA) and Ron Wyden (D-OR), pushed for a vote, but Senate Commerce, Science, and Transportation Committee Chairman Wicker (R-MS) blocked it, just as he did last June. Wicker said that he and Senator Kyrsten Sinema (D-AZ) have formed a bipartisan working group aimed at codifying some open internet protections, but have not agreed upon which ones.

The Senate passed a Congressional Review Act (CRA) resolution last year aimed at codifying the 2015 Open Internet Order, but a similar measure failed to pass the then-Republican controlled House.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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