Emerging Technologies Washington Update

April 2, 2020

Pardon Our Dust

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This week: Coronavirus response, AB 5 litigation moves through courts, FCC to take up 6 GHz order at April 23 meeting, FTC to hold data portability workshop.

Coronavirus Response

The Latest

Shortly after it passed the House last Friday, the President signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law. Federal agencies, under tight deadlines, are beginning to roll out guidance and other procedures for businesses and individuals to access the financial assistance available under the new law. Notably, important information for the Paycheck Protection Program, which will provide up to $349 billion in loans to small businesses and eligible nonprofits, as well as self-employed individuals and independent contractors, is available as follows: 

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

  • The President has approved disaster declarations for states and territories nationwide to make funding available to state, local, and tribal governments and certain nonprofits to respond to the pandemic. He also signed several Presidential Memoranda to provide federal support for Governors’ use of the National Guard in several of the hardest hit states.
  • The Internal Revenue Service (IRS) launched the Employer Retention Credit, 50% of up to $10,000 in wages paid by an eligible employer whose business has been financially impacted by COVID-19.
  • The Treasury Department and IRS published FAQs to help small and midsize businesses navigate paid sick and family leave tax credits.
  • The Department of Labor (DOL) announced a temporary rule implementing new paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act.
  • The Food and Drug Administration (FDA) has issued several Emergency Use Authorizations to expand access to certain drugs and medical equipment.
  • The Centers for Medicare and Medicaid (CMS) issued temporary waivers and new rules to provide the healthcare system with additional flexibility to respond to the pandemic.

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

What’s Next

Congress is not scheduled to return to Washington until the week of April 20. In the meantime, congressional leaders are already discussing the parameters for a fourth phase of coronavirus response legislation, which is expected to focus on stimulating the economy and providing additional relief to individuals and certain sectors. House Democrats have floated including infrastructure investment in that legislation; President Trump also endorsed incorporating $2 trillion for infrastructure this week.

Relevant Resources 

AB 5 Litigation Moves Through Courts

In litigation challenging AB 5, the California worker classification law enacted last year to codify the Dynamex decision, the United States Court of Appeals for the 9th Circuit on Monday denied a request by the Teamsters to stay the preliminary injunction of the law issued by District Court Judge Roger Benitez January 16. 

The injunction prohibits enforcement of AB 5 against drivers for motor carriers. In another challenge filed by Uber, Postmates, and two individuals, District Court Judge Dolly Gee denied a preliminary injunction, and the State has now moved to dismiss the case. A hearing on this motion is scheduled for May 22.

FCC to Take Up 6 GHz Order at April 23 Meeting

On April 1, Federal Communications Commission (FCC) Chairman Pai put forward a proposed Order to his fellow commissioners that would make the entirety of the 6 GHz band available for low-power indoor Wi-Fi use. The Order purportedly will adopt power limits and other techniques to mitigate its impact on licensed fixed services.

In addition, the Commission will seek comment on a Further Notice of Proposed Rulemaking that proposes usage by very low-power devices to operate across the 6 GHz band to support a range of wearable and virtual-reality type devices.  According to a statement released by Commissioner Mike O’Rielly, the Further Notice will be completed by the end of the year.

FTC to Hold Data Portability Workshop

The Federal Trade Commission (FTC) announced this week it is planning to hold a data portability public workshop on September 22 “to examine the potential benefits of challenges to consumers and competition raised by data portability.” The topic has been the subject of increased scrutiny since the European Union implemented its General Data Protection Regulation (GDPR) and California its California Consumer Privacy Act (CCPA), both of which have data portability requirements. While proponents argue that data portability gives consumers more control over their data and promotes competition by allowing new entrants to access data they might not otherwise have, it also presents challenges related to security and privacy of others’ data.

At the same time, the FTC is seeking public comment on issues including how companies are currently implementing data portability; the benefits and costs of data portability; the extent to which data portability has increased or decreased competition; who should be responsible for the security of personal data in transit between businesses; and lessons learned and best practices from implementation of GDPR and CCPA data portability requirements. Comments are due by August 21.