IoT Update: Council of the European Union adopts the European Electronic Communications Code and BEREC Regulation

On 4 December 2018, the Council of the European Union (the “Council”) formally approved a major reform of the European telecom regulatory framework, the European Electronic Communications Code (the “EECC”). The Council also approved an associated regulation on the Body of European Regulators for Electronic Communications (“BEREC Regulation”). Continue Reading

IoT Update: The UK Government’s Response to Centre for Data Ethics and Innovation Consultation

On 20 November 2018, the UK government published its response (the “Response”) to the June 2018 consultation (the “Consultation”) regarding the proposed new Centre for Data Ethics and Innovation (“DEI”). First announced in the UK Chancellor’s Autumn 2017 Budget, the DEI will identify measures needed to strengthen the way data and AI are used and regulated, advising on addressing potential gaps in regulation and outlining best practices in the area. The DEI is described as being the first of its kind globally, and represents an opportunity for the UK to take the lead the debate on how data is regulated. Continue Reading

AI Update: FCC Hosts Inaugural Forum on Artificial Intelligence

On November 30, 2018, the Federal Communications Commission (“FCC”) hosted a forum to discuss artificial intelligence (“AI”) and machine learning. Chairman Ajit Pai moderated the forum’s two main panels “What Is AI and Where Is It Taking Us?” and “Applications of AI and Machine Learning in the Here and Now,” which invited academics, industry professionals, and government affairs specialists to weigh in on the evolving AI ecosystem.

Chairman Pai made clear in his opening remarks that the purpose of the forum was not to initiate AI regulation at the FCC. He stated: “It’s important to note that this event is about discussion and demonstration. It is not about the FCC dipping its toes in the regulatory waters. These are emerging technologies. And when dealing with emerging technologies, I believe that one of the foundational principles for government should be regulatory humility.” This sentiment of sharing information about new AI issues and best practices was lauded by many of the panelists as the correct approach in the sphere. They explained that to create “AI regulation” would be a particularly challenging endeavor because AI has so many different applications across all different sectors.

Although the Chairman is not looking to AI regulation at the FCC, he does see an important role for the agency to play: facilitating the deployment of 5G. The promise of 5G to advances in AI became a consistent theme among the Chairman, the panelists, and Commissioners Carr and Rosenworcel. The Commissioners delivered remarks at the forum as well. Continue Reading

AI Update: Considerations for Patenting Artificial Intelligence in Europe and the United States

On November 1, the European Patent Office’s (EPO) updated Guidelines for Examination went into effect. Of note, the Guidelines include a new subsection on “artificial intelligence and machine learning.” This is the latest milestone in a recent world-wide wave of interest in patenting in the field of artificial intelligence. However, the legal framework for patenting such inventions is uncertain, evolving, and not uniform across the globe. This post addresses the current state of artificial intelligence patenting in Europe and the United States in particular, and offers key takeaways that practitioners should consider when drafting and prosecuting patent applications in this field.

Background on Artificial Intelligence and Machine Learning

For context, artificial intelligence (“AI”) may be summarized as the simulation of intelligent human behavior by machines. A subcategory of AI, machine learning (“ML”), refers to ability of systems to learn from data and improve from experience automatically—in other words, without being explicitly programmed. In practice, the beneficial results delivered by AI and ML are rooted in algorithms and mathematical models. These features, however, have generally been excluded from patentability in both Europe and in the United States. While AI and ML hold promise as the next breakthrough technology, this legal precedent raises concerns about the ability to secure and maintain patents in this field. Continue Reading

House Moves to Get “SMART” on the IoT Industry

Congress is working to better understand the growing Internet of Things (“IoT”) industry—and soon may be asking industry stakeholders for input.  On Wednesday, November 28, the U.S. House of Representatives unanimously passed legislation designed to provide Congress with greater insights into the inner workings of the IoT industry and to promote collaboration between IoT industry participants and the federal government.

The bill (H.R. 6032 (115)), known as the State of Modern Application, Research and Trends of IoT Act, or the “SMART IoT” Act, directs the U.S. Department of Commerce to conduct a study on the state of the “internet-connected device industry” in the United States.  Among other items, the bill requires the Commerce Department to undertake a survey of the IoT industry, and specifically calls on the Department to conduct outreach to IoT industry participants.  The results of the study would be compiled into a report to Congress that includes recommendations for growing the U.S. economy “through the secure advancement of internet-connected devices.”

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IoT Update: Navigating the Course of Spectrum for Connected and Automated Vehicle Technologies

The Federal Communications Commission (“FCC”) has a key role to play in driving the development of connected and automated vehicles (“CAV”) technology. As we explained in a recent CAV IoT Update, the FCC has been studying the risks associated with specific CAV technologies that could provide unique channels for potential cyberattacks. This post examines the debate over spectrum allocation for CAV technologies.

Why the FCC Matters to Connected and Autonomous Vehicle Technology

The FCC makes critical decisions about what portions of the radio spectrum will be available for various fifth-generation (“5G”) and other new wireless services, including CAV technologies. Those decisions are part of the FCC’s authority to administer spectrum for use by states, local governments, commercial businesses, and consumers. While the FCC at one time had designated a specific band of spectrum, the 5.9 GHz band for vehicle-to-vehicle (“V2V”) communications, a debate recently was reignited over the future of that band and the best way of enabling spectrum for CAV technologies and for the broader range of next-generation technologies that will be available with deployment of 5G. Although the 5.9 GHz band is not the only portion of the spectrum that enables CAV technologies, it has attracted significant interest from, and debate among, automakers, wireless providers, chip manufacturers, WiFi advocates and others. These stakeholders are debating whether having one band dedicated to CAV is the most efficient and effective means of meeting demands in this country for spectrum access—demands that the recent Presidential Memorandum on national spectrum policy described as “never . . . greater than today, with the advent of autonomous vehicles and precision agriculture, the expansion of commercial space operations, and the burgeoning Internet of Things.”

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IoT Update: The European Commission consults on building trust in Connected and Automated Mobility

The European Commission (the “Commission”) has launched an Open Public Consultation for building trust in Connected and Automated Mobility (the “CAM Consultation”) on the main challenges linked to the deployment of connected and automated mobility services in Europe and how trust should be built in such services. This CAM Consultation, which largely takes the form of an electronic multiple choice survey, is aimed at gathering input from the general public and relevant stakeholders – such as car manufacturers, connectivity providers, service providers, telecom providers, end-users and public authorities including municipalities, the health community and civil society organisations.

The CAM Consultation follows on from the Commission’s Communication on Connected and Automated Mobility (CAM) (the “Communication”) released in May 2018, which put forward a strategy to make Europe a “world leader in the deployment of connected and automated mobility”. Additional details on the CAM Consultation can be accessed here. Continue Reading

Supreme Court to Hear Case Regarding Deference to Federal Agencies on Statutory Interpretation

Yesterday, the Supreme Court granted certiorari in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, No. 17-1705.  The case began when Carlton & Harris sued PDR Network for alleged violations of the commercial fax provisions of the Telephone Consumer Protection Act (“TCPA”).  The Fourth Circuit ruled in Carlton & Harris’s favor, relying on an interpretation of the TCPA issued by the Federal Communications Commission (“FCC”).  The Supreme Court granted PDR Network’s petition to review that ruling, but limited its review to a single question: whether federal courts are bound to accept a federal agency’s interpretation of a statute such as the TCPA without considering the validity of that interpretation.  The case has important implications for administrative law that are not limited to the TCPA or to the FCC. Continue Reading

IoT Update: Who’s at the Wheel? Connected and Automated Vehicles Stakeholders Weigh In from the Mcity Congress

Last week, Covington dispatched a team of connected and automated vehicles (“CAV”) practitioners to participate in the Mcity Congress, in Ann Arbor, Michigan.  Lawyers from our Technology and IP Transactions, Public Policy, Product Safety and Liability, and Insurance practice groups presented a series of observations and insights around mitigating liability in the CAV industry, and we saw first-hand what’s happening at the cutting edge of CAV technology. Continue Reading

The CMA’s Paper on Pricing Algorithms, Collusion and Personalised Pricing

On 8 October 2018, the UK Competition and Markets Authority (“CMA”) published a Working Paper on the ‘use of pricing algorithms to facilitate collusion and personalized pricing’ (the “Paper”). It follows a number of other initiatives from competition authorities regarding algorithms, including the recent German Monopolies Commission’s proposals regarding pricing algorithms, which was the subject of a Covington Competition Blog post. The CMA’s analysis reflects input from algorithm providers, other competition authorities, and the results of the CMA’s findings from pilot tests. The Paper is economic rather than legal in focus, and assesses the extent to which various algorithm models have the potential to affect competition.

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