Last week, in remarks at an industry conference, Republican FCC Commissioner Nathan Simington proposed that the FCC consider requiring electronic device manufacturers to “take reasonable steps” to protect device security, including requiring them to issue software or firmware updates to patch security flaws and ensure that devices are designed to be easily patched.

His remarks came just a few weeks after the FCC effectively banned certain Chinese equipment and video surveillance devices from the U.S. market, showcasing an increasing appetite by the agency to use its authority over electronic equipment to regulate the market and safeguard national security interests.  For our previous report on that development, click here.  This new understanding of the purpose of the FCC’s equipment authorization rules is noteworthy.  The FCC previously relied on this authority solely to address technical matters associated with radiofrequency (RF) energy, such as prevention of interference and human safety.

According to Commissioner Simington, the FCC has the authority to impose such requirements under its Title III “power to protect signal security,” which provides the agency with “expansive authority to regulate RF emitting devices to make sure they don’t cause harmful interference.”  Commissioner Simington noted that millions of wireless devices are not secure largely because device manufacturers have not been incentivized to ensure their security.

According to Commissioner Simington, insecure RF devices pose not only data and privacy threats, but also the potential to cause harmful interference by significantly disrupting the operation of other, connected devices and services (e.g., rendering nearby Wi-Fi networks inoperable through a deauthentication attack with a single device or hijacking mobile phone basebands to attack wireless networks).  He went on to note that “[a]ny vulnerability in a phone operating system, in a smart thermostat firmware, in a 5G base station, is a threat to the security of our wireless networks from harmful interference.”

Given the complexity and associated challenges raised by his proposal, Commissioner Simington called on public and private stakeholders to engage with him to develop a “bipartisan, pro-innovation approach” that protects the public from insecure RF devices “while also making sure that industry is not bogged down with perpetual legal obligations to long-abandoned product lines.”

If you have any questions concerning the material discussed here, please contact the members of our Communications and Media practice.

Photo of Yaron Dori Yaron Dori

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Artificial Intelligence and the Internet of Things;
  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Section 230 and digital safety considerations;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The FTC Act and related agency guidance and regulations;
  • State privacy laws, such as the California Consumer Privacy Act (CCPA) and California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act;
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Digital advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

Photo of Matthew DelNero Matthew DelNero

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy…

Matt DelNero provides expert regulatory counsel to companies of all sizes in the telecommunications, technology and media sectors. As a former senior official with the FCC and longtime private practitioner, Matt helps clients achieve their goals and navigate complex regulatory and public policy challenges.

Matt serves as co-chair of Covington’s Technology & Communications Regulation (“TechComm”) Practice Group and co-chair of the firm’s Diversity, Equity, & Inclusion initiative.

Matt advises clients on the full range of issues impacting telecommunications, technology and media providers today, including:

  • Structuring and securing FCC and other regulatory approvals for media and telecommunications transactions.
  • Obtaining approval for foreign investment in broadcasters and telecommunications providers.
  • Broadband funding under federal and state programs, including under the FCC’s Universal Service Fund (USF) and NTIA’s Broadband Equity, Access, and Deployment (BEAD) Program.
  • Representing broadcasters, media networks, and other content owners and producers on both existing and proposed FCC regulations and policies.
  • FCC enforcement actions and inquiries.
  • Online video accessibility, including under the Communications and Video Accessibility Act (CVAA) and Americans with Disabilities Act (ADA).
  • Equipment authorizations for IoT and other devices.
  • Spectrum policy and auctions, including for 5G.
  • Privacy and data protection, with a focus on telecommunications and broadband providers.

Matt also maintains an active pro bono practice representing LGBTQ+ and other asylum seekers, as well as veterans petitioning for discharge upgrades—including discharges under ‘Don’t Ask, Don’t Tell’ and predecessor policies that targeted LGBTQ+ servicemembers.

Prior to rejoining Covington in January 2017, Matt served as Chief of the FCC’s Wireline Competition Bureau. He played a leading role in development of policies around net neutrality, broadband privacy, and broadband deployment and affordability under the federal Universal Service Fund (USF).

Chambers USA ranks Matt within “Band 1” in his field and reports that he is a “go-to attorney for complex matters before the FCC and other federal agencies, drawing on impressive former government experience.” It also quotes clients who praise him as “an outstanding regulatory lawyer…[who] understands the intersection between what’s important for the client’s operations and how the law impacts those operations.”

Photo of Jennifer Johnson Jennifer Johnson

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as Co-Chair of Covington’s Technology Industry Group and its global and multi-disciplinary Artificial Intelligence (AI) and Internet of Things (IoT) Groups. She represents and advises technology companies, content distributors…

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as Co-Chair of Covington’s Technology Industry Group and its global and multi-disciplinary Artificial Intelligence (AI) and Internet of Things (IoT) Groups. She represents and advises technology companies, content distributors, television companies, trade associations, and other entities on a wide range of media and technology matters. Jennifer has almost three decades of experience advising clients in the communications, media and technology sectors, and has held leadership roles in these practices for almost twenty years. On technology issues, she collaborates with Covington’s global, multi-disciplinary team to assist companies navigating the complex statutory and regulatory constructs surrounding this evolving area, including product counseling and technology transactions related to connected and autonomous vehicles, internet connected devices, artificial intelligence, smart ecosystems, and other IoT products and services. Jennifer serves on the Board of Editors of The Journal of Robotics, Artificial Intelligence & Law.

Jennifer assists clients in developing and pursuing strategic business and policy objectives before the Federal Communications Commission (FCC) and Congress and through transactions and other business arrangements. She regularly advises clients on FCC regulatory matters and advocates frequently before the FCC. Jennifer has extensive experience negotiating content acquisition and distribution agreements for media and technology companies, including program distribution agreements, network affiliation and other program rights agreements, and agreements providing for the aggregation and distribution of content on over-the-top app-based platforms. She also assists investment clients in structuring, evaluating, and pursuing potential investments in media and technology companies.

Photo of Gerard J. Waldron Gerard J. Waldron

Gerry Waldron represents communications, media, and technology clients before the Federal Communications Commission and Congress, and in commercial transactions. Gerry served as chair of the firm’s Communications and Media Practice Group from 1998 to 2008. Prior to joining Covington, Gerry served as the…

Gerry Waldron represents communications, media, and technology clients before the Federal Communications Commission and Congress, and in commercial transactions. Gerry served as chair of the firm’s Communications and Media Practice Group from 1998 to 2008. Prior to joining Covington, Gerry served as the senior counsel on the House Subcommittee on Telecommunications. During his work for Congress, he was deeply involved in the drafting of the 1993 Spectrum Auction legislation, the 1992 Cable Act, the Telephone Consumer Protection Act (TCPA), CALEA, and key provisions that became part of the 1996 Telecommunications Act.

Gerry’s practice includes working closely on strategic and regulatory issues with leading IT companies, high-quality content providers in the broadcasting and sports industries, telephone and cable companies on FCC proceedings, spectrum entrepreneurs, purchasers of telecommunications services, and companies across an array of industries facing privacy, TCPA and online content, gaming, and online gambling and sports betting-related issues.

Gerry has testified on communications and Internet issues before the FCC, U.S. House of Representatives Energy & Commerce Committee, the House Judiciary Committee, the Maryland Public Utility Commission, and the Nevada Gaming Commission.

Photo of Jocelyn Jezierny Jocelyn Jezierny

Jocelyn Jezierny is an associate in Covington’s Technology and Communications Regulation practice group, where she counsels clients on a broad range of matters in the technology, media, and communications industries.

In particular, Jocelyn advises clients on a wide range of issues before the…

Jocelyn Jezierny is an associate in Covington’s Technology and Communications Regulation practice group, where she counsels clients on a broad range of matters in the technology, media, and communications industries.

In particular, Jocelyn advises clients on a wide range of issues before the Federal Communications Commission (“FCC”) and state public utility commissions, including licensing matters, transaction approvals, and rulemaking proceedings. Jocelyn assists telecommunications and media clients in responding to investigations before both the FCC and the Federal Trade Commission (“FTC”) and in participating in proceedings before an Administrative Law Judge. Jocelyn has significant experience in matters involving foreign investment in FCC-regulated companies.

Jocelyn also advises on regulatory and legal considerations related to emerging technologies such as Artificial Intelligence (“AI”) and the Internet of Things (“IoT”).

Jocelyn maintains an active pro bono practice in which she advises on a variety of issues, including assisting U.S. military veterans in seeking upgrades to their medical benefits and advising small media organizations and independent journalists on a variety of legal and regulatory matters.

Prior to joining Covington, Jocelyn was an Attorney-Advisor in the FCC’s International Bureau (now the Office of International Affairs), where she worked on matters pertaining to the licensing of foreign-owned U.S. telecommunications services providers. Jocelyn has developed significant experience in working for and with federal agencies.

Photo of Trevor Bernardo Trevor Bernardo

Trevor Bernardo is an associate in Covington’s Washington, DC office. As a member of the White Collar Defense and Investigations Practice Group, Trevor represents corporations in multi-jurisdictional internal and government investigations. His practice focuses on advising clients on the Foreign Corrupt Practices Act…

Trevor Bernardo is an associate in Covington’s Washington, DC office. As a member of the White Collar Defense and Investigations Practice Group, Trevor represents corporations in multi-jurisdictional internal and government investigations. His practice focuses on advising clients on the Foreign Corrupt Practices Act (“FCPA”) and other bribery-related enforcement matters and risk assessments. He also maintains an active pro bono practice. Before joining Covington, Trevor worked on various state and federal campaigns across the country.