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The Regulatory Week in Review: October 28, 2016

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  • 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.
  • 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.”
  • 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.


  • 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.