During a recent media roundtable, telecom and tech law firm Hogan Lovells offered up insights from several of its experts on what to expect in terms of policy in the next four years, and how the parties may approach issues differently depending on control of the White House and Congress.
Communications and traditional telecom/tech policy issues are increasingly relevant across industries, products and services; spectrum issues are expected to become more heated fights; but in general, bipartisan support for increasing broadband deployment in unserved and rural areas is expected to continue. (Read Part One covering those issues here.)
Data and privacy protection legislation is another likely issue to come up.
“Despite all the uncertainty over the election, we fully expect to see the continued drumbeat of calls for comprehensive federal data protection legislation, and in the absence of such legislation, continued activity at the state level that would seek to regulate companies across a variety of industry sectors,” said Mark Brennan, partner with Hogan Lovells who focuses on consumer protection, data and privacy issues. He noted that California’s Consumer Protection Act in 2018 was a major trigger for other state bills and for introduction of federal legislation that has yet to coalesce.
Over the past couple of years, he said, “we’ve seen more clear identification of the data protection issues where the parties agree, and the issues where there continues to be a gap.” Namely, gaps around the role of states in oversight and enforcement, or the Federal Trade Commission as an exclusive enforcer; whether to account for per-person or per-act violations and the extent to which any federal standards can or should preempt states’.
California voters appear to have passed another privacy-related issue on the ballot Tuesday, although the vote counts are not final. That action, and a Washington State bill that also concerns data privacy, could trigger Congress to move toward action on a federal bill, Brennan said.
“Regardless of how the the elections turn out, it really a question of which actors, federal versus state, will be most involved, and we’ll probably have a mix of both,” Brennan said.
He also expects to see continued activity around consumer protection-styled bills that affect the tech/telecom space, related to issues such as protecting consumers in online environments, online safety, protection against the spread of misinformation, terms of service issues and arbitration clauses. That will ultimately include Section 230 of the Communications Act, which both parties want to review but for very different reasons. Consumer protection and data privacy is also ostensibly part of the increasing interest in scrutiny of tech companies, Brennan said, but in a recent related hearing, Republicans largely focused on tech in terms of content moderation and perception of bias and not much on privacy.
A Supreme Court case set for December could also give a clearer interpretation of the definition of “auto dialer” that will have implications for telecom, and the Federal Communications Commission is expected to continue to be active in fighting robocalls.
Ari Fitzgerald, partner with Hogan Lovells’ global communications regulatory practice who focuses on spectrum issues, said that it’s possible that a Biden administration could attempt to bring back Obama-era net neutrality to classify broadband as a Title II common carrier service and regulate it accordingly. He noted that the pendulum-swings on net neutrality are varying depending on who is in the White House and that legislation which establishes some basic rules of the road, that can stick from one administration to the next, might be helpful to businesses.
Hogan Lovells partner Trey Hanbury noted that in the area of data protection, there are looking questions — perhaps more for a Democratic administration than a Republican one — about the use of artificial intelligence and large-scale data integration for law enforcement and homeland security. Until recently, he pointed out, data sources such as license plate readers, witness interviews, arrest warrants, DMV records and the like were all in separate silos, but companies are starting to aggregate them. However, he said there are still significant questions about privacy notices and consent when it comes to aggregate data, how it is assembled, how people might correct it and their rights to do so, as well as questions around biases in such data and its interpretation.
“There’s nothing to address that today, no agency that addresses that,” Hanbury said, even though those large databases are already being assembled. Will they be scrutinized early in their development, he wondered, or “Are we just going to continue to go on until there’s some kind of event or watershed inquiry that really raises it to public attention?”
Regardless of whether or how regulation may catch up with tech realities, Brennan said, a stronger emphasis on privacy has to become part of company cultures. “Privacy concerns are not a checklist at this point, they are something that will continue to be an executive C-suite issue for companies,” he said. “If you don’t convince people on that front, you’re the one who is going to be playing catch-up.”
And then there’s the question of who is likely to run the Federal Communications Commission in a second Trump term or a Biden presidency.
Fitzgerald pegged GOP FCC Commissioner Brendan Carr as likely to succeed current Chairman Ajit Pai in a second Trump term. If Biden gets to appoint a new FCC commissioner, Fitzgerald said that it’s his personal opinion that it’s time that the agency had a woman at the helm (the FCC has yet to have a permanent chair who is a woman, although former Commissioner Mignon Clyburn served as acting chair for a period). He named Clyburn as one possibility to take the helm and Democratic Commissioner Jessica Rosenworcel as another, or possibly Anna Gomez, a partner at telecom law specialist Wiley Rein who is also a veteran of the FCC.
While in the past, the leadership post at the FCC might have been seen as a “consolation prize” for people who had aspirations at the Commerce Department or elsewhere, Hanbury said, the chairmanship is increasingly high-profile because of the major issues it is handling: Section 230 review, spectrum assignments and interference issues, as well as distributing funding for network build-outs. “These are politically potent measures, and the FCC is at the heart of them. So whoever’s in charge, I think it’s going to be a big post,” Hanbury said.