Emerging Technologies Washington Update

January 17, 2019

Pardon Our Dust

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Week in Review

Both the House and Senate were in session this week as the partial government shutdown remains in effect. Senate Democrats continued to block action on a Middle East policy bill, but a privileged motion offered by Minority Leader Schumer (D-NY) to disapprove the Trump administration’s decision to lift certain Russia sanctions moved forward with bipartisan support. Senate Republicans are attending the conference’s retreat today at Nationals Park.

House Democrats continue to bring up and pass spending bills to reopen the government that to date have failed to move the needle in the Senate, where Majority Leader McConnell (R-KY) has said he will not bring up any spending bills that the President will veto because they do not include $5 billion to build a border wall.

Meanwhile, Speaker Pelosi (D-CA) wrote to President Trump this week suggesting that due to security concerns generated by the shutdown, the State of the Union address scheduled for January 29 be postponed or delivered in writing. Today, the President responded with a letter to Pelosi cancelling a congressional trip to Brussels, Egypt, and Afghanistan and suggesting that time would be better spent in Washington.

The Senate Judiciary Committee convened for this first time this Congress under the new leadership of Chairman Graham (R-SC) to hold confirmation hearings for William Barr, the President’s nominee to succeed former Attorney General Jeff Sessions. See below for more details on the hearings. The Environment and Public Works Committee also held a confirmation hearing for Andrew Wheeler, who the President nominated to replace former Environmental Protection Agency Administrator Scott Pruitt. Wheeler has been leading the EPA in an acting capacity since former Pruitt resigned.

Looking Ahead

The House and the Senate are both amending plans to recess next week around Martin Luther King Day amid the ongoing shutdown and are scheduled to spend at least part of the week in Washington. Senate Democrats will hold their retreat at the end of the month.

Gregory Guice Joins MWC Federal Public Affairs Team

McGuireWoods Consulting announced this week that Gregory Guice has joined McGuireWoods Consulting as a senior vice president on the firm’s federal public affairs team and senior counsel with McGuireWoods LLP.
Guice adds significant depth to McGuireWoods Consulting’s capabilities in telecommunications, data privacy and emerging technologies. He joins MWC from Akin Gump Strauss Hauer & Feld, where he served as senior counsel focusing on legislative and regulatory matters in the telecommunications and information technology sectors. He has significant experience handling matters related to the Telephone Consumer Protection Act, cybersecurity, autonomous vehicles, universal service, broadband connectivity and affordability, spectrum issues, artificial intelligence, and competition policy, among others.

Prior to joining Akin Gump, Guice served as director of the Office of Legislative Affairs for the Federal Communications Commission (FCC), as well as counsel to the Subcommittee on Communications, Technology and the Internet for the House Energy and Commerce Committee, and as a regulatory attorney in the Wireline Competition Bureau and Wireless Telecommunications Bureau. An experienced lobbyist and attorney, Guice offers clients a unique perspective on matters before the U.S. Congress, FCC, Federal Trade Commission, National Telecommunications and Information Administration, Rural Utilities Service, and Department of Transportation. Read more here.

Senate Commerce Committee Shuffles Subcommittee Leadership and Jurisdiction

The Senate Commerce, Science, and Transportation Committee met yesterday for the first time under the new leadership of Chairman Wicker (R-MS) and Ranking Member Cantwell (D-CA) to adopt rules for the 116th Congress. The Chairman detailed the Committee’s restructured slate of subcommittees:

  • Senator John Thune (R-SD), who chaired the full Committee in the last Congress but relinquished his gavel to join Republican leadership, will chair the Subcommittee on Communications, Technology, Innovation, and the Internet. His successor, Chairman Wicker (R-MS), chaired the Subcommittee in the last Congress. Thune will continue to focus on 5G and broadband deployment in his new role.
  • Senator Ted Cruz (R-TX) will helm the newly organized Subcommittee on Aviation and Space, which merges the jurisdiction of the former Subcommittee on Aviation Operations, Safety, and Security and Subcommittee on Space, Science, and Competitiveness). Senator Blunt (R-MO) chaired the Aviation Subcommittee in the last Congress. The Subcommittee is likely to focus on a NASA reauthorization.
  • Senator Fischer (R-NE) will continue to chair the Subcommittee on Transportation and Safety, formerly the Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security.
  • Senator Moran (R-KS) keeps the gavel on the Subcommittee on Manufacturing, Trade, and Consumer Protection, formerly the Subcommittee on formerly Consumer Protection, Product Safety, Insurance, and Data Security.
  • Senator Sullivan (R-AK) chairs the new Subcommittee on Security, which will focus on issues at the intersection of economic and national security, including drone security and cybersecurity.
  • Senator Gardner (R-CO) chairs the Subcommittee on Science, Oceans, Fisheries, and Weather. Senator Sullivan chaired the Subcommittee on Oceans, Atmosphere, and Coast Guard in the last Congress.

Democrats have not yet finalized ranking members. On the other side of the Capitol, House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) and Ranking Member Greg Walden (R-OR) announced subcommittee leaders:

  • Subcommittee on Communications and Technology: Chairman Doyle (D-PA) and Ranking Member Latta (R-OH)
  • Subcommittee on Consumer Protection and Commerce: Chairman Schakowsky (D-IL) and Ranking Member McMorris Rodgers (R-WA)
  • Subcommittee on Energy: Chairman Rush (D-IL) and Ranking Member Upton (R-MI)
  • Subcommittee on Environment and Climate Change: Chairman Tonko (D-NY) and Ranking Member Shimkus (R-IL)
  • Subcommittee on Health: Chairman Eshoo (D-CA) and Ranking Member Burgess (R-TX)
  • Subcommittee on Oversight and Investigations: Chairman DeGette (D-CO) and Ranking Member Guthrie (R-KY).

Walden also announced that Rep. Gianforte (R-MT) is joining the Committee. Speaker Pelosi (D-CA) previously announced that Reps. Barragan (D-CA), Blunt Rochester (D-DE), Kelly (D-IL), Kuster (D-NH), McEachin (D-VA), O’Halleran (D-AZ), Soto (D-FL), and Veasey (D-TX) would join the roster.

Draft Drone Operations Over People Rule Subject to Yet-to-be-Released Remote Identification Rulemaking

On Monday, the Department of Transportation made public two draft FAA proceedings related to drone operations, including a long-awaited notice of proposed rulemaking (NPRM) to authorize certain commercial operations over people. However, the NPRM makes clear what the commercial drone industry has long understood – that the FAA will not promulgate a final rule until it finalizes a remote identification rulemaking, a proposal for which has yet to be released.

The NPRM would also allow for flights at night. Both types of operations are currently permitted only by waiver under Part 107 and while the FAA has granted over 2,000 nighttime waivers, only two dozen operators have been authorized to fly over people. The draft NPRM proposes three categories for operations over people based on level of risk.

A draft advanced notice of proposed rulemaking (ANPRM) released alongside the draft NPRM seeks public comment on potential rulemaking activity related to safe and secure small drone operations and seeks input on stand-off distance requirements, additional performance-based limitations beyond those mandated by Part 107 (i.e., altitude and airspeed), additional payload restrictions beyond those already in place, and critical system design requirements (i.e., redundancy). The ANPRM also seeks comments on how an unmanned traffic management (UTM) system should be implemented, noting that the FAA is currently working with NASA on a congressionally mandated UTM pilot program that is intended to provide data to inform an implementation plan. Neither draft proceeding has been published for comment.

DOJ Expands Scope of Wire Act to Limit Online Gaming

In a November 2, 2018 opinion released this week, the Department of Justice Office of Legal Counsel (OLC) announced changes to broaden the department’s interpretation of the Wire Act, legislation passed in 1961 to prohibit the operation of certain types of interstate betting businesses in the US. The newly released document reverses a 2011 OLC opinion limiting the ban to online gambling on “sporting events or contests.” Instead, the 2018 opinion extends the prohibition to all forms of interstate gambling, including online gambling and online lotteries.

Shortly after its release, Deputy Attorney General Rod Rosenstein issued a memo setting a 90-day grace period for during which federal prosecutors are advised not to apply the Wire Act to non-sports-related betting or wagering. “This 90-day grace period will allow anyone affected to review the opinion and bring their gambling-related operations into compliance, if necessary,” the DOJ stated in an adjoining press release. In anticipation of varying interpretations of the November 2 opinion, the Department will require any Wire Act charges to be reviewed by the Criminal Division’s Organized Crime and Gang Section.

Senate Judiciary Committee Holds Hearings for U.S. Attorney General Nominee William Barr

This week, the Senate Judiciary Committee held a two-day series of hearings to consider the nomination of William Barr to serve as Attorney General of the United States. Barr previously served in the same capacity under the late President George H.W. Bush. On Tuesday, members of the Committee focused the majority of questions on issues related to government ethics and the Mueller investigation. Lawmakers were especially interested in discussing the intentions and impetus for the unsolicited memo Barr sent to the Department of Justice (DOJ) in June 2018. The following day, members questioned a panel of witnesses on a variety of issues, ranging from criminal justice reform and the public defender system to gun safety and voter suppression/election reform.

Several senators expressed concerns related to antitrust law. Senator Lee (R-UT), Chairman of the Antitrust Subcommittee, asked Barr to comment on whether the scope of antitrust law should be expanded to address issues related to social harms or control company size. Barr emphasized the importance of maintaining a narrow application of antitrust law. He provided a similar response to Senator Hawley (R-MO) when asked whether the DOJ has authority to address alleged biases in content filtering practices by companies such as Facebook and other dominant digital platforms.

Senator Blackburn (R-TN) joined Hawley in criticizing technology companies’ business practices. They argued that the platforms have violated consumer protections and encouraged Barr take a more proactive approach to oversight if confirmed. Barr committed to reviewing these issues and agreed that the Department should be more engaged in oversight and merger reviews. Of note, Senator Marsha Blackburn (R-TN) asked panelists on Wednesday to comment on the DOJ’s role in overseeing big tech platforms and various edge providers with regard to their failure to protect consumer data as well as alleged anticompetitive behavior. She also emphasized that biases in content curation can only be resolved through a multifaceted strategy that includes partnerships with state AGs, as well as strong enforcement by the DOJ Consumer Protection Bureau and Antitrust Division.

The Committee has not yet scheduled a vote on Barr’s nomination, which at this point Senate Minority Leader Schumer (D-NY) opposes because of what he called unsatisfying answers about Barr’s stance on interfering in the Mueller investigation.