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Focus on Regulation

Three Trends that May Change the Way You Think About the “Internet of Things” – Lessons from the Winnik Forum

New charging technology and more sophisticated power use are among the major new trends remaking the face of the Internet of Things, according to Aryeh Fishman, Associated General Counsel of Edison Electric.  Fishman’s remarks came as leading experts in telecommunications law and policy and industry executives gathered at the Hogan Lovells 2014 Winnik International Telecomms and Internet Forum in Washington, D.C.  During a panel moderated by Hogan Lovells partner Peter Watts (London) and counsel Praveen Goyal (Washington D.C.), business executives at the forefront of the “Internet of Things” highlighted the changing nature of customers and the impact of new technologies on their respective industries.

1. Managing Power.  Both Fishman and Chris Burton, who serves as Associate General Counsel, Baltimore Gas and Electric, remarked on the changing sophistication and demands of customers of electrical power.  Fishman noted that many customers now generate their own electricity and sell power to utilities and others are willing to pay higher costs for power from sustainable energy sources.  Burton commented that these preferences are contributing to changes in the industry including the development of Smartgrid communications systems, which allow customers to have sophisticated real-time energy monitoring programs and greater control over energy usage.  Continue Reading

President Announces Executive Actions on Immigration Reform

On November 20, 2014, President Obama announced a series of executive actions to reform parts of the U.S. immigration system, including providing temporary protection from deportation for nearly five million people. We note that none of these measures have immediate effect and they all require implementation by the relevant agency(ies), with expected timeframes in some cases of up to six months.

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Extension of Iran Sanctions Negotiations

On 24 November 2014, the P5+1 countries (China, France, Germany, the Russian Federation, the United Kingdom, and the United States) agreed with Iran to continue negotiations regarding Iran’s nuclear-related activities and to extend the Joint Plan of Action (JPOA) that suspended a limited number of economic sanctions against Iran. The JPOA originally went into effect for a six-month period beginning 20 January 2014, and was initially scheduled to expire 20 July 2014. The JPOA commitments were extended until 24 November 2014, but the parties have not yet reached a final agreement. The parties have agreed to extend the negotiations until 1 July 2015, with the expectation that a consensus on terms should be reached by 1 March 2015. The parties expect to reconvene discussions in December 2014.

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Industry Recommends Market Solutions for Privacy, Cybersecurity, and Law Enforcement Access Challenges for the Internet of Things

The Internet of Things raises new concerns about privacy, security and law enforcement access.  Rather than develop new rules for new devices, industry experts convened during the 2014 Winnik International Telecoms & Internet Forum recommended allowing the market to try solve these challenges before the government steps in.

In May 2014, the President’s Council of Advisors on Science and Technology (“PCAST”) released a report on big data as an accompaniment to the big data review being conducted by the White House.  As moderator Mark Brennan of Hogan Lovells noted, the report offers a practical framing of privacy issues in light of current technologies and provides insight into the future trajectory of privacy and big data issues.  Jules Polonetsky, Executive Director and Co-Chair at the Future of Privacy Forum, called the report “remarkably sane,” stating that it considered in earnest both the potential benefits and the potential harms of big data.  Michael Brown, Vice President of Security Product Management and Research at Blackberry, indicated that one of the key takeaways from the report is that rigid application of the Fair Information Practice Principles (“FIPPs,” the legacy guidelines that underscore certain data collection and use policy frameworks) could stifle many of the benefits that big data has to offer.  Continue Reading

NIH Proposes Significant Expansions and Modifications to Requirements for Clinical Trial Registration and Results Disclosure on the ClinicalTrials.gov Data Bank

On Friday the National Institutes of Health (NIH) published an extensive proposed rule, intended to clarify and expand the requirements for submission of clinical trial registration and results information to the ClinicalTrials.gov data bank.  See 79 Fed. Reg. 69,566 (Nov. 21, 2014).  The rulemaking proposes to add a new Part 11 to Title 42 of the CFR to implement the statutory requirements set forth in section 402(j) of the Public Health Service Act (PHSA).  Section 402(j) had been added to the statute by the Food and Drug Administration Amendments Act of 2007 (FDAAA).

Citing “ongoing public interest in the transparency of information concerning clinical trials”, NIH has proposed—among other things—to extend the requirement for disclosure of results information to encompass applicable clinical trials of drugs, biological products, and devices that are not approved, licensed, or cleared by FDA.  This proposal, if finalized, would mark a substantial departure from current requirements.  Currently, a responsible party must submit results information only for applicable clinical trials of products that are approved, licensed, or cleared by FDA. Continue Reading

AWS-3 Auction Revenue Surpasses $16 Billion

After four days and fifteen rounds of bidding, bidding for paired spectrum in the AWS-3 spectrum auction (Auction 97) remained very strong today.  Total revenue accelerated past its $10+ billion reserve price this morning and closed the day in excess of $16 billion.  The current revenue level ensures that Auction 97 will fully cover the remaining funds for the First Responder Network Authority (FirstNet), even assuming the most expensive possible costs for clearing the band and the largest possible discounts for Designated Entities.   The robust revenues should silence critics, who had claimed that FirstNet funding goals would not be met, and will reduce revenue requirements for the upcoming 600 MHz Incentive Auction.  Although bidding for the paired blocks appears to be extremely competitive, bidding for the 15 MHz of unpaired uplink spectrum remains well short of the reserve price.  Bids are increasing for the unpaired blocks, but only slowly.  Continue Reading

U.S.-India Agreement Promises to Pave the Way to Implementation of the WTO “Bali Agreement” on Trade Facilitation

The U.S. and India have reached an agreement that promises to pave the way toward global implementation of the WTO Trade Facilitation Agreement (TFA). The breakthrough agreement between India and the U.S. should now make it possible for member countries to begin implementing the requirements of the agreement, providing potentially significant financial benefits to businesses trading goods around the world as local customs procedures are streamlined. The target date for ratification of the agreement is 31 July 2015. Upon ratification by two-thirds of the membership, the agreement will enter into force for all WTO states. Member state will then begin the process of adopting conforming legislation.

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Flakeboard and SierraPine Pay Civil Penalties and Disgorgement of Profits to Settle DOJ’s Charges of Unlawful Gun Jumping

The antitrust agencies remain vigilant in prohibiting “gun jumping” — the unlawful coordination of parties to a transaction during the pre-HSR clearance and pre-closing time periods. On 7 November 2014, the U.S. Department of Justice (DOJ) announced a settlement under which parties to an abandoned transaction agreed to pay a total of nearly US$5 million in fines — US$3.8 million in civil penalties to settle claims of unlawful gun-jumping under the HSR Act and an additional US$1.15 million from the purchaser in disgorgement of illegally obtained profits in violation of Section One of the Sherman Act. The parties also agreed to implement antitrust compliance programs and not to share certain information or reach certain agreements during pre-closing periods with other parties to acquisition agreements in which they may become involved.

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WTO Rules Against United States on Revised Country of Origin Labeling

In a recently issued decision, a World Trade Organization (WTO) compliance Panel (Panel) ruled in favor of Canada and Mexico in a dispute over the United States’ country of origin labeling (COOL) requirements as they apply to cattle and hog muscle cuts. Although it found that the United States has a right to require country of origin labels for meat products, the Panel concluded that the U.S. Department of Agriculture’s (USDA’s) revised COOL regulations failed to bring the United States into compliance with earlier Panel and Appellate Body findings that the COOL requirements treat Canadian and Mexican livestock less favorably than domestic livestock in violation of WTO rules.

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Winnik Forum: U.S. Federal Communications Commission’s Chief Engineer Explains that Flexible Use Spectrum Policy Will Readily Accommodate the Internet of Things

During the 2014 Winnik Forum, Julius Knapp, Chief of the U.S. Federal Communications Commission’s (“FCC”) Office of Engineering and Technology, rejected proposals to dedicate spectrum bands exclusively to Internet of Things applications.  According to Knapp, the FCC’s current “flexible use” rules for licensed and unlicensed spectrum can accommodate varied and yet-to-be-imagined applications, “negat[ing] the need for a dedicated Internet of Things allocation.”  According to Knapp, the FCC does not “expect right now that there’s going to be an [Internet of Things] band.” Continue Reading