RTP's Fourth Branch Podcast

In January 2017, the Federal Trade Commission (FTC) filed an antitrust complaint against Qualcomm in the Northern District of California. The FTC alleged that Qualcomm had unlawfully monopolized the market for certain semiconductors important in smartphone technology. Among other things, the FTC claimed that Qualcomm had maintained its market position by requiring chip customers to license their chips separately (known as the “no license, no chips” policy) and had refused to license its standard-essential patents (SEPs) to competitors.

Judge Lucy Koh held a bench trial in January 2019 and issued a decision in favor of the FTC in May 2019. In a lengthy opinion, the court determined that Qualcomm’s “no license, no chips” policy violated antitrust law and that Qualcomm had a separate antitrust duty to deal with its competitors. Judge Koh then issued an injunction that, among other things, prohibited Qualcomm from conditioning the supply of chips on a customer’s patent-license status and required Qualcomm to negotiate and make available licenses on FRAND terms.

Qualcomm appealed to the Ninth Circuit. In August 2019, the Ninth Circuit issued an order partially staying Judge Koh’s injunction. According to the Ninth Circuit, “Qualcomm has shown, at a minimum, the presence of serious questions on the merits” of the district court’s opinion. Additionally, the Ninth Circuit needs to decide whether the district court’s “order and injunction represent a trailblazing application of the antitrust laws, or instead an improper excursion beyond the outer limits of the Sherman Act.”

While these issues alone would be interesting, this case is even more intriguing because the Department of Justice (DOJ) has intervened in the case – in favor of Qualcomm. The DOJ filed an amicus brief in favor of the stay of injunction, as well as an amicus brief on the merits. The Ninth Circuit has also granted DOJ’s request for five minutes of oral argument time. Oral argument in the Ninth Circuit is set for February 13, 2020.

This episode will recap the district court’s decision, discuss the arguments likely to be made on appeal, and explore the bigger issues this case brings up for antitrust policy.

Featuring:
- Hon. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
- Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law

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For the past 50 years, the National Environmental Policy Act (NEPA) has required that the federal government assess the potential environmental impact of any major development projects involving the federal government.

Proponents of NEPA argue that changes to the NEPA review process would threaten sensitive wildlife habitats and roll back protections against climate change. Others argue, however, that the current NEPA process unnecessarily delays critical infrastructure projects, such as the building of highways, roads, pipelines, and telecommunications networks, without any material benefit in return.

In this episode, Professors David Adelman and James Coleman will discuss the recently proposed changes to the NEPA process and examine the potential effects.

Featuring:
- David Adelman, Harry Reasoner Regents Chair in Law, The University of Texas at Austin School of Law
- James Coleman, Associate Professor of Law, Southern Methodist University Dedman School of Law

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The state of California and the Canadian province of Quebec have agreed to link their cap-and-trade systems for carbon emissions – these systems require polluters to pay for a permit when they emit greenhouse gases.

Now the federal government is suing California. The lawsuit alleges that this agreement violates the Constitution, which says states can’t make international treaties or enter into compacts with foreign powers without the consent of Congress. And it also alleges that California’s agreement discriminates against foreign commerce and interferes with the federal government’s exclusive authority over foreign affairs.

The lawsuit raises important issues about federal and state power that are as old as America but have rarely been tested in Court. Listen to expert law professors talk about how the Courts might look at these provocative and urgent questions and the challenge of climate regulation.

Featuring:
-James W. Coleman, Associate Professor of Law, Southern Methodist University Dedman School of
Law
-Sharmila L. Murthy, Associate Professor of Law, Suffolk University Law School

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The Education Department’s Office for Civil Rights (OCR) is expected to issue in the coming weeks its long-awaited new rules for colleges and other educational institutions to follow in handling allegations of campus sexual harassment and assault. A highly controversial draft of the new rules has almost completed a notice-and-comment process launched in September 2017 by Secretary of Education Betsy DeVos. She said that the Obama Administration's OCR's decrees on such matters, and the processes used by virtually all universities, were stacked against accused students, almost all of them male, and often harmed accusers as well.

Spurred by judicial decisions and other evidence showing that innocent young men have been railroaded out of college with life-changing, often ruinous consequences, OCR issued its more than 30,000 words of proposed rules and comments in November 2018. The proposals would require numerous procedural safeguards, narrow the definition of sexual harassment, and limit university liability for off-campus events. Dozens of advocacy groups and universities, as well as tens of thousands of individuals, filed more than 120,000 formal comments over the next two months.

The vast majority were denunciations of the proposed rules by feminist and victims' rights groups, Democratic legislators and state attorneys general, and universities. The schools have financial and other incentives, including fear of campus activists’ wrath, to oppose more than minimal procedural protections for accused students. They argue that OCR’s proposals – especially those requiring live hearings with cross-examination – would be so traumatic for accusers that most would choose not to report sexual misconduct.

But civil liberties advocates, some law professors at Harvard and elsewhere – including a few prominent feminists -- and families of accused students filed strong responses. They argue that the universities’ pattern of presuming guilt and ignoring evidence of innocence is so entrenched that only federal action could bring a modicum of fairness. These commenters cite over 160 federal and state judicial decisions in recent years finding campus rules and bureaucrats alike biased against accused students.

Whatever the final rules may say, they are sure to be challenged both in court and in Congress as inconsistent with Title IX, the Constitution, or both.

Featuring:
- KC Johnson, Professor of History, Brooklyn College and the CUNY Graduate Center
- Stuart Taylor, Freelance Journalist and Author
- [Moderator] Linda Chavez, Chairman, Center for Equal Opportunity

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The Trump Administration recently released its final rule defining “waters of the United States” under the Clean Water Act. This rule, called the “Navigable Waters Protection Rule” is the replacement for the repealed 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define “waters of the United States” in a way that passes legal muster. Criticism has long-focused on the alleged overreach by the agencies, the vagueness of the definition, and a disrespect for the state role in addressing clean water as envisioned by Congress. However, many critics of the new EPA and Corps’ rule argue that it is too narrow and not properly based on science. Please join us as our experts discuss the history of the “waters of the United States” definition, explain the new rule and what waters would be regulated, and provide their insight and perspective on the impact of this major new rule.

Featuring:
- Daren Bakst, Senior Research Fellow in Agricultural Policy, The Heritage Foundation
- Tony Francois, Senior Attorney, Pacific Legal Foundation
- John Paul Woodley, Principal, Advantus Strategies, LLC

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In December 2019, the Department of Justice, the U.S. Patent & Trademark Office, and the National Institute of Standards issued a joint policy statement on the legal remedies that should be available for infringement of a valid patent on standardized technologies, known in patent law as standard-essential patents (SEP). The 2019 DOJ-USPTO-NIST policy statement replaces a 2013 policy statement on SEP remedies by the DOJ and USPTO that had been construed by some government officials and courts as asserting that a patent owner seeking or receiving an injunction for infringement of its SEP could violate the antitrust laws. The 2019 policy statement reaffirms that there are no special rules for owners of SEPs in receiving injunctions for ongoing infringement of their valid patents, and that when licensing negotiations fail, the full range of legal remedies for all patent owners should be available for owners of SEPs.

The 2019 policy statement is a significant development in the ongoing policy and legal disputes over the scope of patent rights on standardized technologies used throughout the world in smartphones, computers, and even coffee machines and automobiles. This teleforum will discuss what the 2019 policy statement means for innovators of groundbreaking, foundational technologies, for implementers of these technologies in products, and for consumers.

Featuring:
- David Jones, Executive Director, High Tech Inventors Alliance
- Kristen Osenga, Professor of Law, University of Richmond School of Law
- Brad Watts, Majority Chief Counsel and Staff Director, United States Senate Committee on the Judiciary, Subcommittee on Intellectual Property
- [Moderator] Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University

Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.

Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based. Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome. This live podcast will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record. It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation. It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicting considerations that an agency must take into account.

Featuring:
- Susan Dudley, Director, GW Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
- Brian F. Mannix, Research Professor, Regulatory Studies Center, George Washington University

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

In this episode, Ashley Baker and Neil Chilson discuss the implications for data security under recently-enacted privacy laws. Although data privacy regulations may shield your data from companies that seek to use it for commercial purposes, certain legal requirements found in these regulations can leave your sensitive information vulnerable to bad actors. Strict data privacy rules such as California’s CCPA and the European Union’s GDPR may be exploited by hackers and others who wish to gain access to someone’s personal information. Baker and Chilson discuss data security considerations for privacy laws, the importance of defining and addressing consumer harms, and why lawmakers should prioritize cybersecurity over data privacy.

Featuring
- Ashley Baker, Director of Public Policy, The Committee for Justice
- Neil Chilson, Senior Research Fellow for Technology and Innovation at the Charles Koch Institute

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Related links:
Explainer Episode 9 – Biometric Information Privacy Act https://regproject.org/explainer-ep-9/

Explainer Episode 6 – Regulating Biometric Access Technologies https://regproject.org/explainer-ep-6/

This podcast features audio from a recent event held at the University of California, Berkeley, featuring the insights of Richard Epstein and Daniel Farber. Epstein and Farber go to the philosophical roots of administrative law in order to get to the heart of present-day debates.

Featuring:
- Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Daniel Farber, Sho Sato Professor of Law, Co-Director, Center for Law, Energy &, California-Berkeley Law

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Amazon Web Services, Inc. (Amazon) has claimed in a lawsuit in the United States Court of Federal Claims that unlawful intervention by President Donald Trump deprived it of a $10 billion decade-long contract with the Department of Defense (DoD) for a cloud computing system known as the Joint Enterprise Defense Infrastructure (JEDI). Long considered the favorite, Amazon nevertheless lost the award to Microsoft Corp. in a competitive bidding process that Amazon claims was arbitrary and capricious and tainted by President Trump’s open feud with Amazon company founder Jeffrey Bezos.

Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.

Featuring:
- Alexander Major, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
- Franklin Turner, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
- Moderator: Daniel Kelly, Partner, Government Contracts & Export Controls Practice Group, McCarter & English LLP

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.