Karl Herchenroeder

Increasing resources for antitrust enforcers is one potential area for Senate Judiciary Committee compromise, ranking member Chuck Grassley, R-Iowa, told us Wednesday. It’s something Senate Antitrust Subcommittee Chair Amy Klobuchar, D-Minn., has pushed for along with comprehensive antitrust legislation (see 2102040053). Klobuchar will lead the subcommittee’s first hearing this session Thursday (see 2103040033).

Senate Intelligence Committee Chairman Mark Warner, D-Va., is drafting a mandatory cyber breach reporting bill with Sens. Susan Collins, R-Maine, and John Cornyn, R-Texas, they told us this week. Ranking member Marco Rubio, R-Fla., also expressed interest. He said there’s a future for such legislation, after the Russia-linked SolarWinds hack (see 2102230064).

Congress should make Medicare reimbursement for telehealth services permanent, said House Health Subcommittee Chair Anna Eshoo, D-Calif., during a hearing Tuesday. She cited the benefit of such waivers signed by the Centers for Medicare & Medicaid Services during the pandemic. Expansion should continue but can’t replace all in-person visits, said ranking member Brett Guthrie, R-Ky. He noted broadband is a limiting factor, and he will work to address infrastructure limitations. Telehealth has been important for rural communities, said House Commerce Committee ranking member Cathy McMorris Rodgers, R-Wash. She's especially interested in telehealth advantages for mental health services, given the rise in anxiety and suicide during the pandemic. First consider a number of items, said Commerce Committee Chair Frank Pallone, D-N.J.: the value of telehealth care, ways to strengthen program integrity, and methods to ensure equitable access to telehealth. Utilization data can help ensure underserved populations have access, he said. Permanent repeal of rural and site exclusions would give certainty, testified American Medical Association board member Jack Resneck. Stanford Health Care Chief of Staff Megan Mahoney agreed, supporting anything that expands access to care and removes geographic barriers. Research is needed on effectiveness and outcomes, said Purchaser Business Group on Health CEO Elizabeth Mitchell: Telehealth isn't necessarily duplicative but supplementary to in-person care. Some telemedicine offerings are more cost-effective than others, and services should be expanded there, said Ateev Mehrotra, Harvard Medical School associate professor-health care policy.

Cyber notification requirements are a legislative priority, said House Homeland Security Committee Chairman Bennie Thompson, D-Miss., and ranking member John Katko, R-N.Y., Friday during a virtual hearing on the SolarWinds breach. They echoed interest from Senate Intelligence Committee Chairman Mark Warner, D-Va., Sen. Susan Collins, R-Maine, and Sen. John Cornyn, R-Texas, at a hearing earlier in the week (see 2102230064).

There won’t be legislative announcements from leadership at Thursday’s hearing on tech antitrust, House Antitrust Subcommittee Chair David Cicilline, D-R.I., told us Wednesday. But he expects the conversation to further define specific proposals. Legislative proposals could touch on interoperability, explicit prohibitions on favoring products and services, and nondiscrimination, he said. The hearing focus will be on the power of dominant firms to exclude competitors and favor products and services to make it difficult for entrants to compete, he added.

SolarWinds CEO Sudhakar Ramakrishna will testify Friday about the company’s recent breach, the House Oversight and Homeland Security committees announced Monday (see 2102180043). Microsoft President Brad Smith, FireEye CEO Kevin Mandia and ex-SolarWinds CEO Kevin Thompson will also testify. The vulnerability that enabled the breach exists in “every company, so what happened to us can happen to any software developer in the world,” Ramakrishna told a Center for Strategic and International Studies event Monday. The attacker was able to inject malware into Orion software code in a narrow way that went undetectable, so SolarWinds delivered and signed it, he said: “The ability for our bill systems to identify that did not exist.” Ramakrishna “came to know” about the breach around Dec. 13-14, when he wasn’t officially an employee, he said. He noted the attackers used older software releases as test beds. He said SolarWinds is working with third parties to understand the breadth, depth of the sophistication and patience of the attackers. SolarWinds is working with the Cybersecurity and Infrastructure Security Agency and the National Institute of Standards and Technology on potential generalized best practices, he said. He suggested the U.S. government should have one agency for companies to inform and brief about incidents, because having multiple points of contact results in wasted time and effort.

Apple threatens online advertising through its anticipated policy requiring developers to gain consent for tracking users across platforms and sites, Facebook Chief Privacy Officer-Policy Erin Egan said Friday. Privacy claims shouldn’t be used to oppose ads, which is the basis for a free internet, she told a Media Institute virtual forum.

The FTC’s indefinite suspension of granting early termination (ET) will “have a real-world impact,” and the policy justification isn’t sufficient, Commissioner Noah Phillips told us Monday. An aide for Commissioner Christine Wilson also criticized the suspension Monday. Acting Chair Rebecca Kelly Slaughter announced last week the FTC and DOJ would temporarily suspend ETs for Hart-Scott-Rodino (HSR) merger and acquisition reviews (see 2102040025).

Amazon will pay about $62 million to settle allegations that it deceived Amazon Flex drivers about promised tips 2016-19, the FTC announced with a 4-0 vote Tuesday. The company allegedly withheld about $62 million from drivers and started delivering all promised tips only when it learned of an agency investigation in 2019. Amazon stopped paying drivers the “promised rate of $18-25 per hour plus the full amount of customer tips" and started giving them "a lower hourly rate,” the agency alleged. The platform didn’t tell drivers about the change, despite promises they would earn 100% of tips, the agency said: “Amazon used the customer tips to make up the difference between the new lower hourly rate and the promised rate.” Acting Chair Rebecca Kelly Slaughter and Commissioner Noah Phillips were pleased that drivers will get “every dollar” back, saying agency authority can be improved: “Congress can give us direct penalty authority to deter deception aimed at workers in the internet-enabled gig economy and rulemaking authority under the Administrative Procedure Act to address systemic and unfair practices that harm those workers.” The threat of civil penalties will deter wrongdoing, they said. Commissioner Rohit Chopra said he agrees with them that “preying on workers justifies punitive measures far beyond the restitution provided here, and I believe the FTC should act now to deploy dormant authorities to trigger civil penalties and other relief in cases like this one.” Amazon fielded hundreds of complaints after the change “as drivers became suspicious when their overall earnings decreased,” the FTC said. Complainants received Amazon responses falsely claiming they were still making 100% of tips, the agency said. Amazon returned to paying drivers the full amount in August 2019, the agency said. The company is barred from making such changes again without receiving the driver’s informed consent. "While we disagree that the historical way we reported pay to drivers was unclear, we added additional clarity in 2019 and are pleased to put this matter behind us," a company spokesperson said. "Amazon Flex delivery partners play an important role in serving customers every day, which is why they earn among the best in the industry at over $25 per hour on average.”

The Senate Homeland Security Committee is investigating the SolarWinds cyberattack and exploring a potential hearing, Chairman Gary Peters, D-Mich., told us: “We’re going to do an investigation, look into that and look at a potential hearing.” Microsoft, Google, FireEye and several federal agencies were potentially exposed in the Russia-linked attack (see 2101190067).