Q&A with Nancy Victory and Mike Senkowski: The Global Pandemic is Accelerating Change in the Telecoms and Tech Sectors

In the second interview of our series of Q&As with Access Partnership’s advisory board members, DLA Piper’s Partners and Co-Chairs of Telecom Practice, Nancy Victory and Mike Senkowski, share their views on how the global pandemic has changed in many aspects the telecom and tech sectors, for operators, customers and future services.

Q&A with Nancy Victory and Mike Senkowski: The Global Pandemic is Accelerating Change in the Telecoms and Tech Sectors

Tell me a bit about yourself, what it is you do and what drove you to join the advisory board?

Nancy: I’m a global and US co-chair for the telecom group at DLA Piper. I’ve been in private practice for most of my career, working in the telecom sector with a big emphasis on wireless, satellite and transactional work. I’ve probably worked on almost every major transaction in the telecom sector over the last couple of decades. I’ve also concentrated on new uses of spectrum and new technologies. My work has been broad, I’ve worked on broadcast, submarine cable, and satellite. My sweet spot has, however, definitely been wireless and new spectrum uses, as well as new technologies and transactions. I did take a break from the private sector and ran the National Telecommunications and Information Administration in the US government. That was very interesting as we were not only the manager of the federal government’s use of spectrum, but also the US government liaison with ICANN. In addition, we were the policy advisor to the President of the United States on all telecommunications matters. That was a really fascinating three years, getting to understand how government policy works from the inside, but also being able to influence policy and make a difference. That’s a little bit about me. The other thing I should mention if you didn’t know, I’m married to one of your other board members – Mike Senkowski – and we practice together.  He’s my co-chair for the global and US telecom practice at DLA Piper.

Mike: Obviously, Nancy and I see a lot of each other! My responsibilities for the firm include building out and expanding what the organisation is doing, not just with respect to the telecom sector in the US, but also globally.  DLA Piper has over 4,200 lawyers in over 40 countries around the world. It’s one of the world’s largest law firms and also employs engineers. On our team, we have two engineers who are specialised in spectrum issues and are former government spectrum management people – similar to Access Partnership. We’ve known Access Partnership for many years, probably well over a decade. There are a lot of overlapping and complementary issues where the two of us have teamed together.

What are the most pressing issues in tech for 2020-21?

Nancy: A couple come to mind. One is 5G – it will be transformational in a number of ways. It’s going to cause more people to move more tasks to wireless use, from wireline. From a consumer standpoint, people view wireless and wireline products as interchangeable and this will increasingly become the case. We’re thus going to see a lot more competition in the marketplace between wired and wireless broadband providers. I think that the Coronavirus pandemic will also help spur the trend toward wireless use because most offices utilized wired products. We’re going to see more users wanting to work from home or at least a place that’s not their office. 5G is going to be very transformational in that respect. We’re also going to see it enabling more in terms of smart cities, and many types of uses that we haven’t imagined yet. In that respect, I think it’s going to be very transformational.

From a practical standpoint, it’s expensive to build out these 5G networks, so we may see more government subsidy programmes to enable it, particularly in rural areas. We may also see more network sharing among wireless providers – to the extent such arrangements are permitted – in order to make the expense of the 5G build out more feasible. From a policy standpoint, due to Coronavirus, government subsidy programmes are likely to focus more on ensuring not only the ubiquity of 5G networks, but also the affordability of communications services for the economically challenged. In the United States and around the world, there will be more emphasis on universal service programmes, like lifeline and other such programmes.

We’re also going to see a continuous trend to more data and information services, and away from voice. This is interesting because in many jurisdictions, information services are more lightly regulated than the traditional telephony services.  To the extent that information/data services supplant traditional services, the question is whether we going to see jurisdictions imposing even more regulation on information services so that governments can continue their oversight.

Those are just a couple of the issues we’re likely to see over the next year. I think we will also continue to witness a lot of changes in the satellite industry.  There are many new and different small sat applicants, along with a large number of satellite networks that already have been launched.  We’re going to see some rebalancing within the satellite industry – with winners and losers. It will be interesting to see what happens.

Mike: We have a global pandemic and this creates the potential for change in many aspects of the telecom and tech sectors, both for operators, customers and future services. As a firm, we are monitoring what’s happening around the world to telecom and tech companies with respect to the supply chain, employment, service disruptions and service opportunities. We also are reviewing and trying to anticipate what’s happening regulatory-wise.  In the US, for example we are looking at the opportunities created by stimulus funding, additional government funding and customer interest in expanded services. On the flip side, we are looking at what the potential is for regulatory requirements to ensure connectivity for all consumers.

I think the coronavirus also triggers fundamental questions of what happens to the shared economy. For example, ridesharing, B2B and shared workspaces. I think there are profound implications for what the assumptions underpinning the future of the shared economy will be and what this will mean. What will create legal and regulatory questions and issues for clients? What are the things that firms like AP and DLA should be looking at going forward as potential areas to be of assistance? There are some rather profound things happening, and their implications won’t be clear until we know how this is ending or not ending with respect to the global pandemic.

With the exponential growth in data-driven technologies such as AI, 5G and IoT that we have seen over the last couple of years, how important is it that organisations and governments make the right decisions when it comes to adopting these technologies?

Nancy: The main thing is ensuring that enough spectrum is available so that these technologies can develop. The availability of spectrum is what will foster innovation. The other thing is to make sure that government is not picking winners and losers, and therefore crowding out potential innovation. So the key is to make the spectrum available, and let the entrepreneurs and creative types come up with the new ideas.

Mike: We’ve seen during the pandemic how we use video conferencing more often. Four months ago, I’d say I only had one or two video conferencing sessions a year. Since the pandemic, we have them every day. That requires bandwidth and a strong, reliable connection – and not just in the cities, but in all parts of the country and around the globe, connecting people and giving them the capability to do business. In the US context, it is interesting that telecoms have been able to handle the capacity required. The ease of connectivity and the quality of connectivity is becoming more and more important. The ability of the customer to get on and be able to talk and effectively use video conferencing becomes more important.  And, this capability is not just for business people, but for everyone.  Think of students engaged in distance learning and families and friends catching up with each other while sheltering in place.

With regard to regulation – what are some of the key obstacles when finding a good balance between innovation and protecting citizens?

Mike: With regulation, there are several drivers. One is making broadband available for all – through stimulus money or regulatory obligations to do so. That’s one bucket. The second bucket, which is less pandemic-related, is ensuring cybersecurity for networks. Particularly if you look at objects (IoT, drones and autonomous vehicles), a lot of the issues that are causing regulatory delays or slowdowns on their introduction or growth are tied to questions governments are asking regarding whether they are secure, what could go wrong, and if they could be hijacked by terrorists. The foundational issue for the growth of a lot of important new services is a very solid solution to cybersecurity concerns and national security concerns. Government needs to be more confidence that there are no issues or that they have been adequately addressed. This is another bucket of issues.

We’re also finding that globally there’s an expansive reading of the definition of electronic communication services – what is it, where is it, who regulates it if it’s regulated, where is the service actually being delivered? There are lots of jurisdictional decisions that service providers must address. Who pays taxes and where do you pay the tax? Where are you regulated? If regulated, where do you have to pay the authorisation? These are not business considerations, they are regulatory and legal considerations. These types of requirements should be simplified – road maps are needed and maybe, on the policy side, coming up with crystal clear ground rules.  These are things that will be important going forward. Otherwise, useful services will be caught up in regulatory label confusion. Those are the major issues.

We also have 5G and everything associated with 5G rollout – whether it’s supply chain issues (with the US government generating concerns about the Chinese, Huawei and ZTE), or spectrum or how you re-purpose spectrum that’s already in the hands of others. There’s a whole set of spectrum issues. You also have the question of infrastructure deployment: how do you facilitate the deployment of the small cell technologies in a way that is acceptable to the local residents or local authorities. 5G is its own special suite of issues.

Enterprises and organisations could have a greater ability to use telecoms in customised ways. CBRS, for example, allows for campus-type communications that can be controlled by an enterprise user that is not a network service provider. Also, network slicing and 5G provide the ability to use frequencies for very localized or specialized offerings, such as capabilities suited for enterprise customer operations and tailored customisation. There is also the issue of how to enable multiple vendors to work on the same network in a way that it doesn’t require prior coordination regarding privacy. Finally, there is the potential for expanded enterprise customer opportunities. Do companies want to assume responsibility for their own specialized operations? We expect that there will be companies who emerge in this new era and take advantage of 5G and other spectrum opportunities and then look at that as a way of going further – not just to provide bulk volume discount wireless services, but very specialised enterprise services.

Nancy:  A lot of this will come down to privacy. We’ve seen changes in what consumers are comfortable with in terms of sharing information about themselves. For a while, there was a comfort with giving a lot of personal information away. But a rebalancing has occurred of late with people more much focused on protecting their privacy. Government is going to play an increasing role in protecting the privacy and the essential information of individuals. This will be a growing role of government and it’s going to get trickier as we see more IoT and AI applications that require such information in order to be effective and deliver benefits. Yet, there needs to be some protection on the use of consumer information without their permission.

Do you think we will see  nationwide use of privacy legislation on the federal level in the next couple of years?

Nancy: There will be attempts to adopt US privacy legislation. But it’s hard to pass federal legislation, as people with very different viewpoints need to reach a compromise, and that’s difficult. The odds are always against legislation. The question will be: if there are enough enacted state laws that differ, will it compel those members of Congress who are typically against regulation to feel that they have to pass something to avoid a patchwork of different laws applying to nationwide companies? That’s the best impetus for actually accomplishing federal privacy legislation, but it will be driven by how many states pass privacy laws that are burdensome and different.

What is the role that Access Partnership plays when it comes to finding the right ethical and regulatory solutions for these technologies?

Nancy: One of the unique aspects of Access Partnership is its ability to take a global view. Since it is active and has visibility into such a large number of jurisdictions around the globe, Access Partnership is well positioned to be an early identifier of trends, and has the ability to send up a flare or warning sign if those trends are going in a problematic direction. Or, Access Partnership can identify if there’s a particular jurisdiction that seems to be getting out of line – particularly, if it’s an important jurisdiction for global companies or a global providers. Access Partnership’s strength is its global view and its ability to see the broad picture. That’s one of the strengths that I and my team have in private practice – we get to work on a wide variety of issues and look at them from many client perspectives, as opposed to somebody who has a narrower portfolio and just works in one company. At Access Partnership, you magnify what I can see because you’re looking at many jurisdictions at once. You’re able to see the trends and the warning signs for where the industry is going, where regulation is going that could be problematic, and alert your clients about new developments.

Mike: The best way of describing this is why we like teaming with you: because you have coverage of the world. DLA Piper has an impressive footprint of 40+ countries, but because of your model you are able to take on 200 countries (or almost all countries). That coverage is a unique Access Partnership capability.

Another element is a shared perspective and approach. In many respects, Access Partnership operates and looks at issues the same way we do in the US telecom group, and that is not common throughout the world. You have to approach it from the perspective of regulators in policy (which is common in the US). That’s the approach of our group that is composed almost entirely of former government officials, with the concept of interacting regularly with the government and shaping and solving problems or changing the paradigm of regulation. All these concepts are intuitive to us and appear to be intuitive to you. There’s a commonality here in looking at problem solving around the world that bodes well for teaming our complementary skill sets to serve clients.

We also don’t believe you can function in telecoms without engineers and, like us, you have engineers. Going back to my government days when I served in the Federal Communications Commission as the Chief of Staff, the Chairman and every Commissioner had an engineering advisor. I grew up that way. Over time you see some have stopped following that model and it is a terrible mistake. We are in an industry that’s founded on spectrum and engineering issues so it’s very hard to see how you can function effectively without that capability.

Finally, how do you like to spend your free time?

Nancy: That’s a really good question. I’m trying to figure that out because Mike and I have spent the last two years working on the T-Mobile-Sprint merger on behalf of T-Mobile. Now, we are all of a sudden getting some free time on the weekend and have to play catch up on all of the things we should have been doing over the last two years. We have more time to go and enjoy ourselves and remind ourselves what is it that we like to do. I like to play golf, paddle board in the ocean, and walk along the beach. Those are things that we typically like to do together. We’ve also been doing all of those ignored tasks around the house. We’re slowly getting to the end of that list, so soon will be back out golfing a bit more and out on our paddle boards.

Mike: Likewise Nancy, I’m back on the golf course. I like to walk on the beach or play golf. We are sheltering at our home in Florida right now.  But our top priority is getting to spend time with our children and grandchildren.  We stay connected with them through FaceTime and Zoom.  These days we aren’t getting to see them live very often.

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