Emerging Technologies Washington Update

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This week: Coronavirus response; FCC approves 5G upgrade order on party lines; Senate Republicans urge FCC to act on Section 230 Executive Order.

Coronavirus Response

The Latest

Last Friday, the President signed into law the bipartisan Paycheck Protection Program Flexibility Act (the Act), extending the covered period of expenses for which Paycheck Protection Program (PPP) loans will be forgiven from eight weeks to 24 weeks or December 31, whichever comes first. In a statement, the President said he signed the Act without delay to protect jobs, but urged Congress to pass the bill again “through traditional in-person voting,” questioning the constitutionality of the new House proxy voting system.

In order to comply with the new law, the Treasury Department and Small Business Administration (SBA) published a new PPP interim final rule to revise the first program interim final rule by changing key provisions, such as the loan maturity, deferral of loan payments, and forgiveness provisions. It also makes conforming amendments to the use of PPP loan proceeds for consistency with amendments made in the new law. Several of these amendments are retroactive to the date of enactment of the CARES Act, as required by section 3(d) of the Act. SBA also updated its summary of cumulative PPP data as of June 10.

Elsewhere, the Federal Reserve announced it expanded the Main Street Lending Program to permit more small- and medium-sized businesses to receive support. Specifically, the Fed lowered the minimum loan size for certain loans from $500,000 to $250,000; increased the maximum loan size for all facilities; increased the term of each loan option from four to five years; extended the repayment period for all loans by delaying principal payments for two years, rather than one; and raised the Reserve Bank’s participation to 95% for all loans. The Fed also published new or updated term sheets for the Main Street New Loan Facility, the Main Street Priority Loan Facility, and the Main Street Expanded Loan Facility.

On Capitol Hill, the Senate resumed regular legislative business and committees continued to hold hearings on various aspects of the pandemic response. This week, Senate committees held hearings on the federal government’s procurement and distribution strategies, combating fraud, unemployment insurance, wildfire management challenges, the disproportionate impact on environmental justice communities, the impacts on transportation workers, supporting charitable giving, CARES Act implementation, going back to school safely, supporting essential workers, the impact on renters, the Economic Injury Disaster Loan program, unique challenges facing seniors, stimulus payments, the impact on elections, and the Indian Health Service response, among other topics.

In the Executive Branch, the White House and federal agencies continue to take steps to respond to the outbreak, including, but not limited to:

Vice President Pence met with governors to discuss reopening with a focus on reopening schools, camps, and universities.
The Department of Health and Human Services (HHS) announced at least $15 billion in additional distributions from the CARES Act Provider Relief Fund to eligible Medicaid and Children’s Health Insurance Program (CHIP) providers and $10 billion in additional distributions to safety net hospitals.
The Food and Drug Administration (FDA) reissued Emergency Use Authorizations (EUAs) revising which types of respirators can be decontaminated for reuse.
The Department of Labor (DOL) announced three Dislocated Worker Grant awards totaling nearly $17 million to help address the workforce-related impacts of the COVID-19 public health emergency. DOL also published FAQs regarding the use of masks in the workplace.
The Department of Agriculture (USDA) announced a nationwide extension of a waiver to allow local partners to continue to serve free meals to all children, regardless of location, for the remainder of the summer.
The Department of Housing and Urban Development (HUD) announced it allocated the remaining $2.96 billion in CARES Act Emergency Solutions Grants funding to support homeless Americans and individuals at risk of becoming homeless due to COVID-19.

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

What’s Next

Senate Republicans continue to work on their proposal for a Phase 4 response and relief package. Senator John Cornyn (R-TX) said this week that he and other Republican leaders will unveil a proposal next month to provide broad employer liability protection as businesses reopen. The proposal is expected to provide a safe harbor for companies that follow government guidelines of their choosing—federal, state, or local—in good faith.

House Majority Leader Steny Hoyer (D-MD) announced this week that pending committee action on the Justice in Policing Act, the House is now expected to meet on June 25 and 26 and from June 29-July 2.

Next week, congressional committees have another lineup of hearings on coronavirus, including sessions that will focus on the PPP, public education, sub-Saharan Africa, cybercrime and fraud, telehealth, safely resuming Department of Homeland Security (DHS) operations, and racial and ethnic health disparities in COVID-19 and the healthcare system. The Senate Energy and Natural Resources and House Energy and Commerce Committees will each hold a hearing on the impact of COVID-19 on the energy sector. The Senate Banking and House Financial Services Committees will also hold their semiannual hearings on the Monetary Policy Report.

Relevant Resources

In Other News

FCC Approves 5G Upgrade Order on Party Lines

On June 9, the Federal Communications Commission (FCC) adopted a Declaratory Ruling regarding state and local government review of modifications to existing wireless infrastructure (colocation) in an effort to facilitate the deployment of 5G networks. The decision, which is a clarification of rules adopted in 2014, focuses on streamlining the state and local government review process consistent with Congress’ directive in the Spectrum Act of 2012. Specifically, the Declaratory Ruling clarifies when the 60-day clock for local review begins, which was an open issue before this action. In addition, the ruling clarifies how certain aspects of proposed modifications – height increases, equipment cabinet additions, and impact on concealment elements and aesthetic conditions – affect eligibility for streamlined review under section 6409(a). The FCC also clarified that under its environmental and historic preservation rules, applicants do not need to submit environmental assessments based only on potential impacts to historic properties when parties have entered into a memorandum of agreement to mitigate effects on those properties.

Democratic commissioners Rosenworcel and Starks dissented from the decision, suggesting that the Chairman did not provide them sufficient time (three weeks) to review the item for its impact. Commissioner Starks noted that local governments are strained by dealing with the pandemic and that even absent the pandemic, local governments “operate on tight budgets and limited resources.” CTIA – The Wireless Association and the Wireless Infrastructure Association hailed the ruling as being critical to expediting the deployment of next-generation 5G service.

Senate Republicans Urge FCC to Act on Section 230 Executive Order

On Tuesday, Senators Marco Rubio (R-FL), Kevin Cramer (R-ND), Josh Hawley (R-MO), and Kelly Loeffler (R-GA) wrote a letter to FCC Chairman Pai on the agency’s role in executing the President’s recent Executive Order on Preventing Online Censorship. “The unequal treatment of different points of view across social media presents a mounting threat to free speech,” the lawmakers wrote, adding, “This Executive Order is an important step in addressing this form of censorship.”

The Executive Order seeks to address alleged conservative bias by targeting Section 230 of the Communications Decency Act, which absolves publishers from liability for content posted on their platforms, including “good faith” efforts to address or remove objectionable content. The Order directs the Department of Commerce to petition the FCC to regulate the conditions under which a website or app restricts access to content absent good faith. As part of that rulemaking, Commerce is requested to ask the FCC to clarify the conditions under which restricting access to content is deceptive, pretextual, or inconsistent with a platform’s stated policy. The Executive Order also directs the Federal Trade Commission (FTC) to consider taking action under its Section 5 unfair and deceptive practices authority against any online platform for action that is perceived to restrict speech.

The Senators’ letter argues, “While social media companies enjoy their special status under Section 230, it is questionable that they are living up to their obligations when they blur the lines between distributor and publisher by favoring one political point of view over another.”

Elsewhere, Republican FTC Commissioner Christine Wilson posted a series of tweets asserting “tech companies filter the news you’re shown, what ads you get, and what posts you see – but provide no transparency about how they make those decisions.” She went on to say that the President in his Executive Order asked the agency to “consider whether companies covered by Section 230 should be prohibited from restricting speech in ways that contradict their own marketing and representations” and that “this analysis could be undertaken using the FTC’s authority to policy unfair and deceptive conduct.”

Chairman Pai, and possibly other Commissioners, can expect to face questions on the Executive Order during a Senate Commerce Committee hearing later this month.