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On Issue of First Impression, Fifth Circuit Applies CAFA in Mass-Tort Cases to Deny Remand

WLF Legal Pulse - Thu, 01/25/2018 - 11:06am
Featured Expert Contributor—Civil Justice/Class Actions By Frank Cruz-Alvarez, a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, with Erica E. McCabe, an Associate in the firm’s Kansas City, MO office. On January 9, 2018, the U.S. Court of Appeals for the Fifth Circuit, in the consolidated interlocutory appeals of Warren …

Continue reading On Issue of First Impression, Fifth Circuit Applies CAFA in Mass-Tort Cases to Deny Remand

Categories: Latest News

This is Not a Drill: An Examination of Emergency Alert Systems

U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation will convene a hearing titled, “This is Not a Drill: An Examination of Emergency Alert Systems,” at 10:00 a.m. on Thursday, Jan. 25, 2018. The hearing will examine the policy concerns surrounding the use and effectiveness of Emergency Alert Systems including Wireless Emergency Alerts, as well as recent system failures, including but not limited to the mistaken missile alert in Hawaii. Additionally, at the request of Sen. Brian Schatz (D-Hawaii), ranking member of the Subcommittee on Communications, Technology, Innovation, and the Internet, the committee intends to hold a future field hearing in Hawaii to focus specifically on the missile system alert failure that occurred Saturday, Jan. 13, 2018. 

Witnesses:

  • Ms. Lisa M. Fowlkes, Bureau Chief, Public Safety and Homeland Security Bureau, Federal Communications Commission
  • Mr. Scott Bergmann, Senior Vice President, CTIA – The Wireless Association
  • Mr. Sam Matheny, Executive Vice President and Chief Technology Officer, National Association of Broadcasters

*Witness list subject to change

Hearing Details:

Thursday, January 25, 2018
10:00 a.m.

This hearing will take place in Russell Senate Office Building, Room 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

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Good morning and welcome to today’s hearing on our country’s emergency alert systems. 

I hope to hear from our panel this morning about what’s working, what’s not, and what we can do better to prevent false alerts like we saw with the Hawaii ballistic missile warning earlier this month.

Ensuring state and local governments have the proper tools and safeguards in place to properly alert the public of an impending emergency is absolutely critical. 

False alerts not only create unnecessary panic, they undermine the integrity of the emergency alert system, leading to public distrust and confusion.  

What happened in Hawaii is inexcusable and must be addressed to ensure an incident like that never happens again.  

It is essential that Americans have an emergency alert system that they can trust, and overwhelmingly by and large I believe they do.  

There is much that is working well with the emergency alert system; in fact, it’s arguably a model public-private program, operating as envisioned by this Committee through the WARN Act. 

Industry partners, including those represented here today, have been investing to improve the system and are working collaboratively with government and public safety officials to carry out the mission. 

We certainly do not want to overlook these successes, but as recent events have shown, there are problems that must be addressed.    

Today’s hearing will be the first of two hearings on emergency alert systems. 

In the near future, we will hold a field hearing in Hawaii to further address the January 13 ballistic missile false alarm and to follow up on the issues discussed today.

Since the early days of the Cold War, the United States has been building and improving an emergency alert system to warn our citizens, first from the risks of a Soviet attack and later expanded to include natural disasters like fires, floods, tornados, and tsunamis.  

We have continued to build on this lifesaving system to include AMBER Alerts, which seek the public’s assistance when a child is in danger. 

Soon, we will also have Blue Alerts, which can be issued when there is an imminent and credible threat to a law enforcement officer.

From the beginning, our emergency alert systems have harnessed the immense resources of commercial communications systems—broadcast television, and radio in the beginning, and eventually cable and satellite TV and mobile phone networks—to reach the American public as quickly and effectively as possible.

Here is how the system works – or should work. 

Our alert system relies on federal, state, and local officials authorized by the Federal Emergency Management Agency or FEMA to decide when an alert is appropriate, and what it should communicate.

These alerts are then sent to FEMA. 

When FEMA receives an alert, it validates that it is from an authorized entity before forwarding it to the broadcasters, mobile phone service providers, and others who in turn send the alert out on televisions, radios, and mobile phones in the affected area. 

The Federal Communications Commission regulates the interface between those sending the messages and the communications companies that deliver the messages to us.

Ensuring that people get the information they need, and that alerts are credible and make sense to the recipients is an ongoing process, but it is fundamental that messages must be credible. 

Messages sent in error like the Hawaii ballistic missile alert run the risk of undermining the entire alert system by reducing peoples’ confidence in alerts. 

While we do not want to prevent authorized officials from communicating alerts to the public when they see fit, we must ensure that such officials are better trained. 

There are additional improvements we can undertake as well. 

For example, there is no question that the National Weather Service’s watch and warning system saves lives, but it can also be enhanced. 

That is why I included provisions in the Weather Research and Forecasting Innovation Act of 2017, which became law last spring, that require the National Weather Service to use the latest behavioral science and stakeholder feedback to improve its watch and warning system. 

We should make sure that lessons learned from one incident inform and improve future alerts. 

The FCC is also taking to steps to make improvements to the alert system through the use of better geo-targeting of messages, which is being considered at its current proceeding. 

That is, targeting messages to those who need to receive them and not sending them to those who don’t. 

This helps avoid “alert fatigue,” and also addresses the concerns expressed by some local officials during the California wild fires last year that an overly-broad alert could result in traffic jams with those unnecessarily leaving their homes, and hindering the evacuation of those who truly needed to leave.

As we’ll hear today, the goal of providing timely emergency information to our communities is also advanced by private citizens, like those amateur or “Ham” radio operators who have helped keep people connected after tragedies like Hurricanes Harvey, Irma, and Maria.

Today, I am pleased to welcome Ms. Lisa Fowlkes [like “folks”], Chief of the FCC’s Public Safety and Homeland Security Bureau; Mr. Scott Bergmann, Senior Vice President of Regulatory Affairs at CTIA—The Wireless Association; Mr. Sam Matheny[muh-THEE-knee], Executive Vice President and Chief Technology Officer of the National Association of Broadcasters; and Mike Lisenco [luh-SENK-oh], a representative of the Amateur Radio Relay League. 

Thank you all for being here and I look forward to today’s discussion. 

I now recognize the Ranking Member for any opening remarks he may have. 

<p>Good morning and welcome to

Good morning and welcome to today’s hearing on our country’s emergency alert systems.

I hope to hear from our panel this morning about what’s working, what’s not, and what we can do better to prevent false alerts like we saw with the Hawaii ballistic missile warning earlier this month.

Ensuring state and local governments have the proper tools and safeguards in place to properly alert the public of an impending emergency is absolutely critical. 

False alerts not only create unnecessary panic, they undermine the integrity of the emergency alert system, leading to public distrust and confusion. 

What happened in Hawaii is inexcusable and must be addressed to ensure an incident like that never happens again.  

It is essential that Americans have an emergency alert system that they can trust, and overwhelmingly by and large I believe they do.  

There is much that is working well with the emergency alert system; in fact, it’s arguably a model public-private program, operating as envisioned by this Committee through the WARN Act. 

Industry partners, including those represented here today, have been investing to improve the system and are working collaboratively with government and public safety officials to carry out the mission. 

We certainly do not want to overlook these successes, but as recent events have shown, there are problems that must be addressed.    

Today’s hearing will be the first of two hearings on emergency alert systems. 

In the near future, we will hold a field hearing in Hawaii to further address the January 13 ballistic missile false alarm and to follow up on the issues discussed today.

Since the early days of the Cold War, the United States has been building and improving an emergency alert system to warn our citizens, first from the risks of a Soviet attack and later expanded to include natural disasters like fires, floods, tornados, and tsunamis.  

We have continued to build on this lifesaving system to include AMBER Alerts, which seek the public’s assistance when a child is in danger. 

Soon, we will also have Blue Alerts, which can be issued when there is an imminent and credible threat to a law enforcement officer.

From the beginning, our emergency alert systems have harnessed the immense resources of commercial communications systems—broadcast television, and radio in the beginning, and eventually cable and satellite TV and mobile phone networks—to reach the American public as quickly and effectively as possible.

Here is how the system works – or should work. 

Our alert system relies on federal, state, and local officials authorized by the Federal Emergency Management Agency or FEMA to decide when an alert is appropriate, and what it should communicate.

These alerts are then sent to FEMA. 

When FEMA receives an alert, it validates that it is from an authorized entity before forwarding it to the broadcasters, mobile phone service providers, and others who in turn send the alert out on televisions, radios, and mobile phones in the affected area. 

The Federal Communications Commission regulates the interface between those sending the messages and the communications companies that deliver the messages to us.

Ensuring that people get the information they need, and that alerts are credible and make sense to the recipients is an ongoing process, but it is fundamental that messages must be credible. 

Messages sent in error like the Hawaii ballistic missile alert run the risk of undermining the entire alert system by reducing peoples’ confidence in alerts. 

While we do not want to prevent authorized officials from communicating alerts to the public when they see fit, we must ensure that such officials are better trained. 

There are additional improvements we can undertake as well. 

For example, there is no question that the National Weather Service’s watch and warning system saves lives, but it can also be enhanced. 

That is why I included provisions in the Weather Research and Forecasting Innovation Act of 2017, which became law last spring, that require the National Weather Service to use the latest behavioral science and stakeholder feedback to improve its watch and warning system. 

We should make sure that lessons learned from one incident inform and improve future alerts. 

The FCC is also taking to steps to make improvements to the alert system through the use of better geo-targeting of messages, which is being considered at its current proceeding. 

That is, targeting messages to those who need to receive them and not sending them to those who don’t. 

This helps avoid “alert fatigue,” and also addresses the concerns expressed by some local officials during the California wild fires last year that an overly-broad alert could result in traffic jams with those unnecessarily leaving their homes, and hindering the evacuation of those who truly needed to leave.

As we’ll hear today, the goal of providing timely emergency information to our communities is also advanced by private citizens, like those amateur or “Ham” radio operators who have helped keep people connected after tragedies like Hurricanes Harvey, Irma, and Maria.

Today, I am pleased to welcome Ms. Lisa Fowlkes, Chief of the FCC’s Public Safety and Homeland Security Bureau; Mr. Scott Bergmann, Senior Vice President of Regulatory Affairs at CTIA—The Wireless Association; Mr. Sam Matheny, Executive Vice President and Chief Technology Officer of the National Association of Broadcasters; and Mike Lisenco, a representative of the Amateur Radio Relay League. 

Thank you all for being here and I look forward to today’s discussion. 

I now recognize the Ranking Member for any opening remarks he may have.

Ranking Member Bill Nelson Opening Statement

All of us rely on the emergency alert system.  It keeps us safe - protecting us during storms and other natural disasters and helping the most vulnerable when children are abducted.  I appreciate the work of the FCC, the broadcasters, and the wireless industry to make distribution of those alerts a priority.  

But for that system to be effective, the alerts that go out must be reliable and credible. Americans are conditioned to trust and believe in the critical information passed along through an emergency alert.  When those tones sound, or phones let out their unique buzz, the citizens of this nation sit up, take notice and act.

For 38 terrifying, confusing minutes, the people of Hawaii were told to prepare for the worst through an official emergency alert.  Fortunately, it was a false alarm.  But in this case, the emergency alert system failed the people of Hawaii.

If you were told a ballistic missile was headed toward you – and your loved ones – what would go through your mind?

Regrettably, Senator Schatz knows the answer to that question in a very real and personal way.  He was there.  He received the alert.  

And it’s because of that personal connection to this situation – and the leadership that he has shown in its aftermath – that I intend to yield my remaining time to Senator Schatz.

But before I do, I want to make one further comment.  When disasters occur, Americans rely not only on emergency alerts but also the nation’s 9-1-1 system.  But our 9-1-1 infrastructure is aging, and frankly has been left behind in the digital revolution. 

Congress must make modernizing 9-1-1 a national priority, which is why I have worked with Senator Klobuchar to introduce the Next Generation 9-1-1 Act of 2017.  

And I hope we can work on a bipartisan basis to give states and localities the resources they need to upgrade their 9-1-1 systems.

Food and Drug Administration (FDA) Food Safety Modernization Act (FSMA)

Office of Advocacy - Wed, 01/24/2018 - 2:08pm

On January 24, 2018, the U.S. Food and Drug Administration (FDA) issued five guidance documents to help importers and food producers meet key food safety provisions mandated by the FDA Food Safety Modernization Act (FSMA).

Categories: Latest News, SBA Advocate

“Big Coffee” Wins Another One in the Food Court

WLF Legal Pulse - Wed, 01/24/2018 - 1:32pm
Food Court Follies—A WLF Legal Pulse Feature Without Jerry Seinfeld’s litigious (and fictional) attorney Jackie Chiles on the case, Siera Strumlauf and her co-plaintiffs did not stand a chance in California’s Food Court (the Northern District of California) in her “latte fraud” lawsuit. Judge Yvonne Gonzalez Rogers granted Starbucks’ motion for summary judgment in Strumlauf, …

Continue reading “Big Coffee” Wins Another One in the Food Court

Categories: Latest News

Driving Automotive Innovation and Federal Policies

U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, will convene a filed hearing titled, “Driving Automotive Innovation and Federal Policies,” at 10:00 a.m. on Wednesday, January 24, 2018, at the Washington Convention Center. The Senate field hearing will examine self-driving and other auto technologies as well as issues on the horizon for lawmakers and regulators. Days after the hearing, the convention center will open its doors for an industry-wide auto showcase event. 

Witnesses: 

To be announced

Hearing Details: 

Wednesday, January 24, 2018
10:00 a.m.
Full committee
Walter E. Washington Convention Center
801 Mt Vernon Pl NW
West Salon Room
Washington, DC 20001

The hearing is open to credentialed media and the public. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

Committee Announces Hearing to Examine Aquaculture

WASHINGTON – U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation will convene a hearing titled, “Growing the Future: Opportunities to Support Domestic Seafood Through Aquaculture,” at 10:00 a.m. on Tuesday, Jan. 30, 2018. The hearing will examine the current state of aquaculture in the United States, future opportunities for offshore, coastal, and inland communities, and the potential impact on the economy.  

Witnesses:

  • Dr. Kelly Lucas, Director of the Marine Aquaculture Center, University of Southern Mississippi
  • Mr. Mark Luecke, Managing Director and CEO, Prairie AquaTech
  • Mr. Donald Kent, President and CEO, Hubbs-SeaWorld Research Institute
  • Mr. Barton Seaver, Chef and Author

*Witness list subject to change

Hearing Details:

Tuesday, January 30, 2018
10:00 a.m.

This hearing will take place in Russell Senate Office Building, Room 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

Ranking Member Bill Nelson Opening Statement

Thank you, Mr. Chairman, for holding this hearing. 

I am very hopeful about the prospect of self-driving cars, and I appreciate the efforts of the chairman to arrange this event at the Washington Auto Show.  

I am particularly excited about Florida’s role in the development of autonomous technology and I am pleased to have the president of Florida Polytechnic University, Dr. Randy Avent, testify today.  

The university is working in partnership with the Florida Department of Transportation to develop and operate a 42 million dollar, 475-acre autonomous vehicle testing facility in Polk County known as Suntrax.  I would like to extend my congratulations to Florida Polytechnic for this achievement. I am confident this world-class facility will play a vital role in the ongoing research to improve autonomous technology and ultimately provide for the safe and efficient deployment of self-driving cars. 

Autonomous technology is advancing rapidly. Just two weeks ago, at the Consumer Electronics Show in Las Vegas, Nevada, General Motors announced a plan to put fully autonomous vehicles – without driver controls – on public roads as early as 2019. 

General Motors is not alone. Countless other automakers, technology companies, and suppliers are rolling out innovations that have the potential to completely transform our sense of mobility and, most importantly, save lives. 

In addition, autonomous vehicles may bring significant environmental benefits through reduced emissions, increased efficiency and productivity, and improved transportation opportunities for underserved communities, seniors, and people with disabilities. 

While the potential benefits of self-driving vehicles are numerous, it is crucial that Congress and the federal government exercise responsible oversight to ensure the safe development and deployment of these emerging technologies. 

The AV START Act, which was passed unanimously by this committee last October, is an important step in the right direction. 

The bill enhances safety by requiring autonomous vehicle manufacturers to submit safety evaluation reports to the Department of Transportation demonstrating how they address system safety, crashworthiness, and cybersecurity, among others. 

Additionally, the AV START Act reinforces the traditional, existing roles played by the federal, state, and local governments pertaining to vehicle regulation. 

I fully intend to continue working with Chairman Thune and Senator Peters to get this piece of legislation to the president’s desk.

Thank you, Mr. Chairman, and I look forward to hearing from our witnesses. 

Surface Transportation Security: Addressing Current and Emerging Threats

U.S. Sen. Deb Fischer (R-Neb.), chairman of the Senate Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security, will convene a hearing titled, “Surface Transportation Security: Addressing Current and Emerging Threats,” at 2:30 p.m. on Tuesday, January 23, 2018. The hearing will examine efforts to enhance surface transportation security including passenger and freight rail, mass transit, highways, and ports.

Witnesses:

  • The Honorable David Pekoske, Administrator, Transportation Security Administration
  • Mr. John Kelly, Acting Inspector General, Department of Homeland Security

Hearing Details:

Tuesday, January 23, 2018
2:30 p.m.
Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security

This hearing will take place in Russell Senate Office Building, Room 253. Witness testimony, opening statements, and a live video of the hearing will be available on www.commerce.senate.gov.

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