Week in Review

IN THE NEWS

• The Federal Communications Commission (FCC) voted 3-2 to pass a set of broadband consumer privacy rules. The FCC’s rules create an opt-in system that requires Internet service providers to obtain consumers’ consent before using and sharing sensitive information, which includes “precise geo-location, financial information, health information, [and] children’s information.” The rules do not require Internet service providers to obtain consent before using non-sensitive information, but give consumers the ability to opt-out of having this information used and shared.

• Acting to implement a provision of the Violence Against Women Reauthorization Act of 2013, the U.S. Department of Housing and Urban Development (HUD) released a final rule that expands housing protections for survivors of domestic violence, sexual assault, and stalking by, among other policies, adopting a model “emergency transfer plan” under which housing providers must allow violence survivors to transfer to a new housing situation under certain circumstances.

• Judge Marcia Crone of the U.S. District Court for the Eastern District of Texas issued an order temporarily blocking the implementation of the U.S. Department of Labor’s so-called blacklisting rule. In the order, Judge Crone asserts that the rule, which requires federal contractors to publicly disclose labor law violations, poses an “imminent and non-speculative threat” to the Associated Builders and Contractors’—the group that requested the temporary stay—First Amendment rights, because the information in the public disclosures “may be used by their competitors and adversaries to gain competitive advantage.”

• Judge Charles Breyer of the U.S. District Court for the Northern District of California approved a settlement—arising out of allegations made by the U.S. Environmental Protection Agency that Volkswagen cheated on diesel emissions tests and allegations by the Federal Trade Commission that the company violated the Federal Trade Commission Act  by deceptively advertising “clean diesel” vehicles—under which Volkswagen will pay up to $10.03 billion to buy back or repair affected vehicles from consumers and almost $5 billion in environmental remediation, making the settlement the largest civil settlement involving an automaker.

• The American Association of Retired Persons (AARP) filed suit against the Equal Employment Opportunity Commission (EEOC), seeking to invalidate several rules addressing “wellness programs”—employer-sponsored programs that aim to improve employees’ health through various health screenings—issued by the EEOC earlier this year. In its complaint, AARP asserted that the EEOC’s rules “allow employers to impose heavy financial penalties on employees who do not participate,” and explained that “[b]ecause most wellness programs involve the collection of medical information through detailed medical questionnaires and biometric testing,” the rules effectively punish employees “for choosing not to divulge medical or genetic information about themselves or their families in the workplace.”

• The U.S. Department of Defense issued an interim final rule amending the procedures for issuance of Department of Defense identification cards. The rule provides guidance addressing changes of gender in records for transgender military retirees and their dependents, following the completion of a gender transition. The Department of Defense asserted that the change is necessary to ensure that all members eligible for Department of Defense benefits are able to receive them, and that such personnel are able to have their gender designation in the Defense Enrollment Eligibility Reporting System correctly “reflect their gender identity.”

• Acting in part as a response to last year’s drinking water crisis in Flint, Michigan, the U.S. Environmental Protection Agency (EPA) released a white paper outlining the regulatory actions EPA is considering taking to “strengthen and modernize” the  Lead and Copper Rule—the rule under which EPA exercises its Safe Drinking Water Act authority to control lead and copper in drinking water—including revising the rule to increase transparency and public education.

• The U.S. Food and Drug Administration (FDA) released a set of draft guidelines on how tobacco manufacturers can comply with rules requiring that they list the ingredients in tobacco products. FDA’s ingredient-listing requirement already applies to cigarettes and smokeless tobacco products, but, by February 8, 2017, tobacco manufacturers will have to ensure that cigars, electronic cigarettes, and other tobacco products are also in compliance.

• U.S. Secretary of Defense Ash Carter ordered the Defense Finance and Accounting Service to stop pursuing collection of excessive enlistment bonuses that were allegedly provided by the California National Guard to recruits during the Iraq and Afghanistan wars to meet its enlistment goals. The move came after several California legislators, including Senators Dianne Feinstein (D-Calif.) and Barbara Boxer (D-Calif.), as well as Representatives Kevin McCarthy (R-Calif.) and Ed Royce (R-Calif.), reportedly urged Secretary Carter to take steps to halt the collection efforts. Secretary Carter stated that the Department of Defense is currently formulating a process to ensure the “fair and equitable treatment of our service members” and aims to resolve all cases by July 2017.

WHAT WE’RE READING THIS WEEK

• In a recent essay, Sam Batkins and Dan Goldbeck of the American Action Forum analyzed Donald Trump’s assertion that his administration would cut regulations by as much as 70%. Batkins and Goldbeck contended that a 10% cut would likely be attainable, particularly given that Trump, assuming he had a cooperating Congress, would aim to largely repeal the Affordable Care Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act. However, the authors argued that a 70% cut, which equates to $600 billion to $800 billion, would pose a far greater challenge, concluding that achieving such a goal would “take a generation, not an administration.”

• Robert L. Stoll, the former Commissioner for Patents at the United States Patent and Trademark Office (USPTO) and current co-chair of the law firm Drinker Biddle & Reath’s Intellectual Property Practice Group, published an essay on The Hill in which he emphasized the importance of patent quality, and asserted that “many of the often repeated criticisms of our patent system harken back to the perceived quality of the issued patent.” Stoll lauded several recent initiatives by the current Director of the USPTO to improve patent quality, including a review in which the USPTO allowed the public to comment on various “quality case studies to assure that the patent corps was applying the rules and regulations uniformly,” but nonetheless offered several suggestions for improving the current patent system.

• An article by Leslie Picker and Cecilia Kang in the New York Time’s DealBook discussed the regulatory scrutiny that will be applied to AT&T’s recently-announced acquisition of Time Warner. The article notes that the deal will “be among the biggest and most important regulatory cases to await the next administration,” and points out that this merger—because it involves a wireless carrier—could invite more scrutiny from the U.S Department of Justice (DOJ) and the Federal Trade Commission (FTC) than previous mergers involving telecommunications companies.