• Coblentz Recognized in BTI Consulting Group’s Brand Elite 2017

    Coblentz is recognized by BTI Consulting Group’s report, BTI Brand Elite 2017: Client Perceptions of the Best-Branded Law Firms. BTI Brand Elite 2017 includes the 426 law firms with a definitive impact in key areas, including achieving recommendations to peers without prompting, likeliness to be an industry leader over the long term, delivering new and valuable services other firms don’t, and continuously improving the client experience. BTI’s research is based solely on in-depth interviews with 633 corporate counsel at the world’s largest and most influential companies.

    Coblentz was also named as a Client Service Leader by BTI Client Service A-Team 2017, where corporate counsel ranked Coblentz in the top firms nationally for client service excellence.

    Categories: News
  • The Drone Privacy and Transparency Act of 2017: Overdue or Over-reaching?

    Authored by Scott Hall

    On March 15, 2017, Senator Edward Markey (D-Mass.) and Representative Peter Welch (D-Vt.) introduced federal legislation entitled the Drone Privacy and Transparency Act of 2017.1  The proposed legislation seeks to address growing concerns regarding personal privacy violations anticipated by (or, perhaps, already resulting from) the continuing increase of unmanned aircraft systems (“UAS” or “drones”) in the nation’s skies.  To that end, the proposed legislation would require every person or entity seeking to use a drone for commercial purposes to provide certain information about where, when, and for what purposes the drone will be flown, and whether it will collect, sell, or otherwise use personal information about any individuals.  The legislation would also require the FAA to publicly disclose this information on the Internet.  Additionally, the legislation would ban any use of drones by law enforcement personnel without a warrant.

    The proposed legislation  purports to be a necessary response to the threat of “invasive and pervasive” drone surveillance that is predicted to occur as commercial drone use in the U.S. continues to expand.2  However, while certain privacy concerns based on the ever-increasing use and rapidly evolving technological capabilities of drones may be warranted, the proposed legislation appears to be both underinclusive and overbroad in its attempt to address potential violations of personal privacy.  For example, if enacted, the bill would impose additional pre-authorization requirements on anyone seeking approval to operate a drone, and would also require public disclosure of the time and location of planned drone operations, as well as details regarding the specific technical capabilities of the drone – regardless of the drone’s actual or intended operation.  But, the bill does not specifically prohibit any particular type of drone operation or method of data collection as long as the required pre-authorization and disclosure requirements have been satisfied.  Moreover, the bill explicitly does not apply to “model aircraft” (i.e., drones flown for hobby purposes), which are generally understood to be outside the Federal Aviation Administration’s scope of authority.  Yet, hobby drones are just as capable of violating personal privacy as drones used for commercial purposes.  In fact, hobby drones are frequently involved in national news stories regarding privacy violations (such as drones hovering near bedroom windows or over backyard pools), and have likely contributed more to the current public sentiment of fear and distrust underlying the proposed legislation than commercial drones.

    Additionally, the proposed legislation would have the federal government wade into – and most likely preempt – areas of law typically left to the states, such as privacy, trespass, and state and local police power.  In recent years, many states and localities have enacted drone-specific laws aimed at protecting privacy.  Several states have also passed laws regulating law enforcement use of drones.  The proposed federal legislation would likely preempt many of these state and local laws.  Therefore, before granting such broad federal power over drone regulation, more thought should be given to whether, and in what contexts, states are better suited to decide what drone operations should or should not be permitted in their jurisdiction and how their local law enforcement agencies should be permitted to conduct their work (within constitutional limits).  Indeed, given that hobby drones are generally not subject to FAA regulation, state drone legislation has become increasingly important.  Thus, the potential preemption of state laws that may occur as a result of vesting the federal government with broad authority over issues like privacy and state police power may impair the ability of state and local governments to effectively address drone concerns specific to their locale.

    In light of the many valuable current and anticipated applications of drone technology – which the bill explicitly recognizes – the preferred course of action may be to avoid forcing a federal “one-size-fits-all” privacy law on drones.  Rather, it may be better for the federal government to continue to work cooperatively with states to define respective areas of state and federal responsibility over drones and to target particularized unlawful or undesirable conduct for specific regulation, while avoiding imposing more burdensome pre-authorization requirements on all drone operators, which could discourage or inhibit beneficial drone use and innovation.

    I. The Proposed Legislation

    The Drone Privacy And Transparency Act proposes three main methods to safeguard personal privacy threatened by drones: (1) required pre-authorization information statements about the intended use of the drone, including potential data collection and use; (2) public disclosure of information relating to the ownership, operation and capabilities of each drone authorized to operate in the national airspace; and (3) prohibition on law enforcement use of drones without a warrant, as well as required statements and policies to minimize collection of data outside the necessary scope of an investigation or warrant.

    A. Pre-Authorization Data Collection Statements

    First, the bill proposes to implement additional procedures for anyone seeking authorization to operate a drone for non-hobby use.  Specifically, the bill would prohibit the FAA from approving, issuing or awarding any license, certificate or other grant of authority to operate a drone in the national airspace unless the person seeking such authorization or approval provides a “data collection statement” detailing, among other things: (1) the identity of individuals or entities that will use the drone, (2) the specific locations and time period in which the drone will operate, and (3) what types of information or data about individuals or groups will be collected by the drone, including (a) how such data will be used or sold, (b) how information unrelated to the specified use will be minimized, (c) how long any such data will be retained, and (d) how such data will be destroyed.  The data collection statement must also identify the possible impact of the drone on individual privacy, the specific steps that will be taken to mitigate any such impact, and contact information for reporting complaints and/or requesting information related to the collection of personally identifiable data.  The bill would allow individuals whose data has been collected to request and obtain such data, as well as to challenge the accuracy of that data and/or challenge the denial of access to the data.3

    B. Public Disclosure Of Authorized Drone Operations

    Second, the bill seeks to promote transparency of drone data collection by requiring the FAA to make publicly available, on the Internet, the names and contact information for each owner and operator of an authorized drone, the tail/identification number for each authorized drone, a description of the technical capabilities of each authorized drone (including cameras, thermal imaging, mobile phone interception, facial recognition, license plate reader, etc.), information detailing where, when and for what purpose each authorized drone will be operated, and the applicable data collection statement, data minimization statement, and applicable license, approval or grant of authority for each authorized drone.  The bill would also require public disclosure of any data security breach with respect to information collected by a drone.

    C. Restrictions On Law Enforcement Use Of Drones

    Third, the bill seeks to address concerns over law enforcement use of drones by prohibiting a governmental entity (including any federal or state agency) from using drones for law enforcement or intelligence purposes without a warrant.  Moreover, the bill would prohibit the FAA from authorizing any drone operation by a law enforcement agency (or its contractor or subcontractor) unless the agency submits a “data minimization statement.”  The data minimization statement must detail the specific policies adopted by that agency to minimize the collection by a drone of information that is unrelated to the investigation of a crime under a warrant, as well as to require the destruction of information no longer relevant to such an investigation or an ongoing criminal proceeding.  The bill would also require law enforcement agencies to describe their audit and oversight procedures with respect to ensuring that the agency’s drone operation is compliant with the submitted data collection statement and data minimization statement.

    II. Balancing Privacy Rights Against The Benefits Of Drone

    The proposed legislation purports to apply to every person or entity that currently uses, or that seeks to use, drones for any non-hobby purpose.  Thus, the effects of the legislation would be significant given the substantial increase in the use of drones by businesses across numerous industries over the past few years.  Of course, because of the variety of technology that can be employed by drones to conduct surveillance, including cameras for photographs or video recording, thermal imaging, GPS trackers, license-plate readers, facial recognition software and more, public concern over potential violations of privacy and misuse of personal information is certainly valid.  However, careful consideration is warranted before passing the proposed legislation given that its actual application is likely to have far-reaching effects that go beyond merely protecting privacy to potentially stifling desirable drone operation and innovation.

    In fact, the bill’s prohibition on any license, approval or other authorization to operate a drone absent compliance with the required data collection statement constitutes a sharp departure from the FAA’s recent direction of reducing regulatory hurdles to drone operation.  Just last summer, for example, the FAA adopted uniform rules for the operation of small drones (14 C.F.R. Part 107), which allow for the operation of drones for commercial or non-hobby purposes without a specific certificate of authorization or waiver from the FAA, as long as drone operators abide by certain rules and restrictions, including operating only during daylight hours, abiding by certain speed and weight limits, and having an operator with a remote pilot certificate.  This recent relaxing of formal regulatory approval for commercial drone operation has been widely applauded by the drone industry.  The proposed privacy legislation may therefore be seen as a step backwards for the industry, which, despite recent progress, still suffers from heavy regulation and uncertainty.  Indeed, many blame the current regulatory restrictions on drones as the reason many drone companies have chosen to conduct research or operations in foreign countries that do not have such restrictions.4  Thus, while privacy concerns relating to drones need to be addressed, the proposed legislation’s focus on pre-authorization procedures and public disclosures, rather than specific misconduct, may adversely impact drone operations that raise no serious privacy concerns.

    III. Balancing Federal And State Responsibility Over Drones

    The proposed legislation would also raise new preemption issues and fresh ambiguity about the proper role of state and local governments in regulating drones.  Indeed, the bill is in direct conflict with statements currently maintained on the FAA’s website regarding the proper role of state and local regulation of drones, which identify privacy and law enforcement operations, among other issues, as generally not being subject to federal regulation.5  Consistent with this position, the small drone rules adopted by the FAA last summer explicitly avoided privacy issues and warned drone operators that “state and local authorities may enact privacy-related laws specific to UAS operations.”6  To the extent the proposed legislation is viewed as a decision by Congress to legislate privacy issues for drones at the federal level, this departure from the previous federal-state division of authority could have wide-ranging impacts, particularly given that many states have already passed laws regulating various aspects of drone operation.

    Although states differ in their approaches to privacy protection, several states have recently passed or revised laws to protect personal privacy against drone misuse.  Some states, for example, have passed laws prohibiting the use of drones to commit voyeurism, stalking, or other surveillance in violation of an individual’s reasonable expectation of privacy.  Other states, including California, have attempted to protect privacy by prohibiting, as trespass, the capture of images, sounds, or other data of a personal nature by drones over private property.  Still other states prohibit surveillance or capture of images or data in specific locations, such as schools, prisons, or at public events.  At least one state (Oklahoma) has even recently proposed legislation that would permit property owners to shoot down or otherwise destroy drones flying over their property or “where a reasonable expectation of privacy exists.”  Thus, although there is still much work to be done to ensure a comprehensive legal framework sufficient to safeguard personal privacy against all potential drone intrusions, this area appears to be one in which states are actively involved and uniquely positioned to address the specific concerns and needs of their locale.  It is therefore questionable whether a broad, federal privacy law that might preempt such state and local laws is the preferred course of action.

    Additionally, many states have already passed laws regulating the use of drones by law enforcement personnel.  The proposed legislation, however, purports to apply to all federal and state law enforcement agencies and imposes a blanket prohibition on any drone use not authorized by a warrant.  While it makes sense to require a warrant to use certain drone technology, such as thermal imaging, facial recognition software, or GPS tracking, there is less justification for prohibiting use of drones by law enforcement personnel for simple aerial monitoring or the capture of images or video available to any member of the public.  In fact, the U.S. Supreme Court has specifically held that any place that could theoretically be viewed by a member of the public, including from an aircraft, can also be observed by a government agency without constituting a violation of the Fourth Amendment.7  Of course, the Court left open the question of when any specific instance of observation might constitute a violation of privacy, but suggested that it should be addressed on a case by case basis, as opposed to the uniform ban contemplated by the proposed legislation.  To be sure, misuse of drones by law enforcement is certainly cause for concern.  But state and local governments have typically been given authority to regulate their own police power within constitutional limits, and nothing suggests that this should change merely because the methods of surveillance continue to change.

    IV. Protecting Against Privacy Violations By Hobby Drones

    Notably, the proposed legislation explicitly does not apply to “model aircraft,” which includes small drones that are flown strictly for
    obby or recreation purposes, as opposed to commercial use.  Thus, although the legislation would monitor and disclose the collection, sale or other commercial use of personal information by drone operators, it does not cover activity such as stalking, voyeurism, or other surveillance in which drone operators collect private images, video, or other data for their own personal use.  While large-scale collection and commercial exploitation of personal data is certainly one type of privacy harm that could be committed by drones, the instances of drones “peeping” in bedroom windows, hovering over swimming pools, or personally stalking or harassing individuals also constitute serious privacy concerns that are more likely to be committed by hobby drone users not covered by the proposed legislation.

    It may therefore be preferable to allow state and local governments to continue to enact privacy-related legislation focused on specific unlawful or undesirable conduct that applies to both commercial and non-commercial drone operation.  At the same time, certain existing federal and state laws that already regulate the maintenance and disclosure of personally identifiable information could be updated to explicitly apply to personal data collected by drone technology.  This combination of federal and state protection to prohibit particularized, objectionable drone conduct, while also regulating the maintenance, use and disclosure of personal data, could be far more effective – and much less burdensome on those seeking to use drones for purposes other than data collection – than to require all drone operators to comply with burdensome pre-authorization and public disclosure requirements.

    V. Other Issues

    A few other issues in the proposed legislation are worth noting:

    The bill specifically excepts from its coverage drones “operated for news-gathering activities protected by the First Amendment.”  Although this is an important exception in principle, the ambiguity regarding what drone operation might properly be covered by this provision will undoubtedly raise difficulties in application.

    The bill also makes any operation of a drone in violation of the statutory provisions unlawful, and vests enforcement power principally with Federal Trade Commission.  It also permits civil actions by states (subject to notice to and coordination with the FTC) against violators that are deemed to have threatened or harmed the interests of residents of the state.

    Notably, the bill also creates a private cause of action for any person injured by an act in violation of the statute and allows both injunctive relief and monetary damages, including the greater of actual monetary loss or $1,000 per violation.  As discussed above, because the proposed legislation focuses on compliance with pre-authorization and public disclosure requirements – as opposed to any actual misuse of personal information – it is questionable whether this private right of action would be effective in terms of safeguarding privacy, or whether it would become simply another statute under which individuals seek monetary damages based solely on an individual’s or entity’s failure to comply with regulatory requirements.

    VI. Conclusion

    Given the current technological landscape, protection of personal privacy and personally identifiable information has never been more important.  But there are already various federal and state laws that govern how personal information may be collected, used and disclosed.  Drones merely present a new method by which personal information and data may be collected.  However, not all drones are, or will be, operated for the purpose of collecting personal information.  Many individuals and businesses seek to operate drones to perform tasks related to precision agriculture, aerial photography, infrastructure monitoring, product delivery, search and rescue, disaster response, and many other beneficial services that do not involve the collection of individuals’ personal data or personally identifiable information.  Rather than imposing additional regulatory hurdles on all drone users, it may be preferable to focus on regulating specific conduct or data collection and disclosure practices by those seeking to engage in such conduct.  This may be most effectively accomplished by having the federal government share – rather than usurp – authority over drone privacy-related regulation.  Caution should therefore be taken before enacting the proposed legislation, which would potentially nullify a substantial amount of state legislation already addressing drone impacts on personal privacy.

    Ultimately, the proposed legislation, at least in its current form, may never become law.  In fact, similar legislation was introduced in 2015 without success.  However, the proposed legislation highlights important issues of privacy that should be considered and discussed as drone use and capabilities expand.  The difficult task is finding the right balance between safeguarding individuals’ reasonable expectations of privacy while still fostering innovation and expansion of the many beneficial current and anticipated uses of drones.  To the extent the bill’s purpose is to put the conversation regarding drones and privacy issues front and center, that mission will hopefully be accomplished.  The public should be informed and aware of potential privacy concerns caused by drones and participate in legislative processes aimed at addressing those concerns.  However, with regard to privacy protection, at least some of that legislation may be best handled at the state and local level.  In any event, with the drone industry expected to continue its rapid growth for the foreseeable future, it is likely that public discussion and debate about drones and privacy has only just begun.

    1. A copy of the proposed legislation is available at: https://www.markey.senate.gov/imo/media/doc/2017-03-14-DronePrivacy-Bill-text.pdf

    2. The proposed legislation references estimates indicating that commercial drone sales may reach 2.7 million annually by 2020.

    3. Although the bill only purports to require data collection statements for any drone approval or authorization as of the date of the enactment of bill, it nonetheless requires the FAA to publicly disclose information required in the data collection statement for every drone authorized to operate in the national airspace, including those operating pursuant to licenses or grants of authority awarded before the date of enactment.  (See Sec. 339(a), (b)(1).)  Thus, as a practical matter, the provisions of the bill would apply to all drones authorized to operate in the national airspace, whether approved before or after passage of the proposed legislation.

    4. Although the proposed legislation does not discuss how its requirements would interact with the current regulatory framework, including the FAA’s small drone rules, the legislation purports to require compliance with its provisions for any certificate, license, “or other grant of authority” to operate a drone – including authority granted prior to enactment of the law – which presumably encompasses any authorization bestowed by Part 107, as well as the remote pilot certificate required for operation under that section.

    5. December 7, 2015 Fact Sheet: State and Local Regulation of Unmanned Aircraft Systems (UAS).

    6. The FAA’s decision not to address privacy issues in its small drone rules caused an uproar among many groups who hoped to see privacy regulation addressed by the FAA’s drone rules.  In fact, following release of the FAA’s rule last year, the Electronic Privacy Information Center (“EPIC”) sued the FAA for failing to address privacy issues in its rules.

    7. See Florida v. Riley, 488 U.S. 445, 455 (1989).

  • Wading Through the Flood of New Housing Legislation

    Having trouble keeping up with the seemingly endless torrent of new housing laws?  You are not alone.  Here is our summary of the key pending State and San Francisco legislation aimed at increasing housing/affordable housing production:

    Proposed State Legislation

    SB 35 (Wiener)

    State Senator Scott Wiener has introduced amendments to SB 35 that would create a streamlined, ministerial (i.e., not triggering CEQA) approval process for certain infill projects in localities that fall short on regional housing needs assessment (RHNA) production goals.  We summarize the legislation and next steps in “Wiener’s Streamlined Infill Housing Approvals Legislation Continues to Move Forward.”

    AB 915 (Ting)

    On March 15, Assemblymember Phil Ting introduced new amendments to the State Density Bonus law.  The amendments would require a local jurisdiction to impose local inclusionary housing requirements on density bonus units, unless it adopts an exemption by ordinance.  As discussed below, local legislation proposed by Supervisors Safai, Breed and Tang would impose inclusionary housing requirements on density bonus units in the form of  an “in-lieu” inclusionary housing fee.  We discuss this new State legislation in “Ting Legislation Seeks to Pave the Way for Fees on Density Bonus Units.”

    Proposed San Francisco Legislation

    Competing Inclusionary Housing Ordinances (Safai/Breed/Tang and Peskin/Kim)

    Board of Supervisors members have introduced two competing inclusionary housing ordinances.  The Safai/Breed/Tang ordinance comes closer to reflecting the City Controller’s recommendations and would also substantially increase the percentage of inclusionary housing units that are targeted for middle-income earners.  By contrast, the Peskin/Kim ordinance would maintain inclusionary housing percentages and income level distributions that are closer to existing requirements.  Both ordinances would add new complexity to the existing scheme by distinguishing between requirements for ownership and rental units and changing, among other things, income level distribution requirements, the basis for fee rate calculations, and unit mix requirements, with an emphasis on larger, family-focused units.  The Safai/Breed/Tang ordinance would apply the new unit mix requirements project-wide, with certain exceptions.  It would also extend the “in-lieu” inclusionary housing fee to density bonus units.  Read our analysis, including a comparison chart of the two ordinances, in “Competing Inclusionary Housing Proposals Introduced at the Board of Supervisors.”

    Affordable Housing Bonus Program (Tang)

    Supervisor Tang introduced an ordinance that would consolidate existing and add new density bonus programs to local law to encourage the production of affordable housing.  The Affordable Housing Bonus Program (AHBP) renames the existing 100 Percent Affordable Housing Program and adds three new components:  1) the HOME-SF Program, 2) the Analyzed State Density Bonus Program (ASDBP), and 3) the Individually Requested Bonus Program (IRBP).

    The HOME-SF Program would provide development incentives, including up to two additional floors, in certain zoning districts.  To qualify, projects would need to include at least 30% affordable units on site.  Projects would generally be required to meet the minimum affordable housing percentages under the inclusionary housing ordinance, and provide additional units affordable to middle income households to achieve the 30% total.  The ASDBP would implement the current State Density Bonus law, but only within certain zoning districts.  It would allow up to a 35% density bonus for projects that include 12% or more inclusionary housing units, as well as incentives, concessions and waivers selected from a menu prepared by the Planning Department and its consultants.  Projects with 30% or more affordable units are eligible for priority processing.  The IRBP, which would apply in more zoning districts, would provide modified incentives and density bonuses to qualifying projects that do not meet the criteria for the ASDBP.  We summarize this legislation in “Affordable Housing Bonus Program Takes Shape in San Francisco.”

    The Bottom Line 

    What does this mean for market-rate residential projects?  It’s all about the definitions and qualifying criteria, which vary by legislation.  The local ordinances add complexity to an already complicated scheme, and more than ever, the calculation of benefits vs. exactions is site-specific.  It remains to be seen whether what is finally adopted provides sufficient incentive and certainty to produce more density and higher levels of affordability.

    If the Wiener legislation passes, certain projects would qualify for expedited processing and would not be subject to CEQA review.  Under the competing inclusionary housing ordinances, local affordable housing requirements may change, and could increase or decrease from existing requirements.  Depending on the nature of the development project (where it is located, if it is 100% affordable, and if not, how many affordable units are proposed and at what income level, etc.), the project may qualify for one of four density bonus programs in the Tang ordinance, as well as priority processing.  The Ting legislation would require local jurisdictions to impose inclusionary housing requirements on density bonus units, as proposed by the Safai/Breed/Tang ordinance (the “in-lieu” fee discussed above), unless the density bonus units are specifically exempted by local ordinance.

    Stay tuned, we will continue to track the legislation as it proceeds…

  • Wiener’s Streamlined Infill Housing Approvals Legislation Continues to Move Forward

    We reported in December that State Senator Scott Wiener marked his first day in state office by introducing legislation (SB 35) to address barriers to housing production. Senator Wiener has introduced amendments to SB 35 that would create a streamlined, ministerial (i.e., not triggering CEQA) approval process for certain infill projects in localities that (1) fall short on regional housing needs assessment (RHNA) production goals, or (2) fail to provide annual housing production reports to the State for two consecutive years before the infill project’s application. SB 35 has been passed by the Senate Transportation and Housing Committee, and is now before the Governance and Finance Committee for further consideration.

    What Qualifies Under SB 35?

    Under the current version of SB 35, certain multifamily and accessory dwelling unit projects would qualify for a streamlined, ministerial approval process if they meet various criteria, including being within a locality reporting RHNA housing production shortfalls or failing to provide annual housing production reports.

    The percentage of affordable units and required affordability levels vary depending on the type of RHNA housing production shortfall reported by the locality. If the shortfall is for households earning below 80% of area median income (AMI), then the majority of project units must be affordable to those households. If the shortfall is for “above moderate-income households” (i.e., households earning above 120% AMI under the current RHNA schedule), then 10% of project units must be affordable to households earning below 80% AMI. Shortfalls for moderate-income households (i.e., households earning between 81% and 120% AMI) aren’t addressed in the current version of SB 35.

    If a local inclusionary housing ordinance requires a greater percentage of units to be affordable to households earning below 80% AMI (more than 10% of project units in the “above moderate-income households” shortfall scenario, or more than 50% of project units in the “below 80% of AMI” shortfall scenario), that local ordinance would set the floor for the required percentage of affordable units needed for SB 35 streamlining eligibility.

    Very generally, the remaining criteria require an eligible project to be:

    1. located on a qualifying urban infill site zoned for residential or residential mixed use development with at least two-thirds of the square footage designated for residential use;
    2. consistent with objective zoning and design review standards, including the State Density Bonus Law;
    3. outside of certain sensitive areas (e.g., coastal zone) and certain high-risk areas (e.g., floodways); and
    4. not located on a site with an existing historic resource or certain existing housing (e.g., rent controlled units or units occupied by tenants within the past 10 years) that would be demolished.

    In addition, a qualifying project must be subject to certain enforceable prevailing wage requirements. If the project includes subsidized units, those units must remain subsidized for 45 or 55 years, for ownership and rental units, respectively.

  • Affordable Housing Bonus Program Takes Shape in San Francisco

    The State Density Bonus law has been in effect for almost 40 years, but it has required a prolonged housing crisis to push San Francisco to adopt a local implementing ordinance.  Last year the Board of Supervisors adopted the 100 Percent Affordable Housing Program for affordable housing projects, but was unable to agree on a program for market-rate projects.  Supervisor Katy Tang has now introduced legislation that would consolidate existing and add new density bonus programs to local law.

    The Affordable Housing Bonus Program (AHBP) renames the existing 100 Percent Affordable Housing Program and adds three new components: 1) the HOME-SF Program; 2) the Analyzed State Density Bonus Program (ADSBP), and 3) the Individually Requested Bonus Program (IRBP).

    HOME-SF Program

    The HOME-SF Program seeks to increase affordable housing production, especially housing affordable to middle income households.  It provides incentives to sponsors of housing projects that set aside at least 30% of on-site units as affordable, including the minimum percentage and income range required under the inclusionary ordinance, and reaching the 30% threshold by providing units affordable to middle income households (defined here for ownership as an average of 120% of Area Median Income (AMI), equally distributed at 90%, 120% and 140% of AMI, and for rental as an average of 80%, equally distributed at 55%, 80% and 110% of AMI).  The legislation limits the zoning districts to which the HOME-SF Program applies, and among other things, excludes the RH-1 and RH-2 Zoning Districts.  It is not available where a project would demolish, remove or convert residential units, or is seeking a density bonus under one of the three other programs.

    Eligible projects must establish that the project will not result in certain specific environmental impacts, will provide a unit mix that includes a higher percentage of larger units designed to accommodate families, and will include certain ground floor active uses. A qualifying project would be eligible for certain incentives, including up to 20 additional feet of height that may be used for up to two additional stories, and an additional height of up to 5 feet at the ground floor in certain cases.  Projects under this program would require conditional use approval, with some specified limits on the Planning Commission’s ability to modify the project.

    Analyzed State Density Bonus Program (ADSBP)

    The ADSBP is based on the State Density Bonus Program, and offers a specific menu of incentives, concessions and waivers analyzed by the Planning Department and its consultants. Like the HOME-SF Program, the legislation limits the zoning districts to which the ADSBP applies. Among other things, it excludes the RH-1 and RH-2 Zoning Districts, and is not available where a project would demolish, remove or convert residential units, or is seeking a density bonus under one of the three other programs. The project sponsor must establish that the project will not result in certain specific environmental impacts, and that it meets other criteria.

    A qualifying ADSBP project that provides 12% or more of its units as on-site affordable units would be eligible for a density bonus of up to 35%, and various other concessions and incentives. In some cases, a height increase of up to two stories would also be permitted. Projects with 30% or more affordable units would also be eligible for priority processing.

    Individually Requested Bonus Program (IRBP)

    Finally, the IRBP is available to projects that generally comply with State Density Bonus law, but are not consistent with the pre-vetted menu of concessions, incentives and waivers offered in the ADSBP, and therefore require individualized analysis. The criteria are similar to the ADSBP, except that it applies to a broader range of zoning districts (generally only RH-1 and RH-2 are excluded, except where the Code would allow 5 or more units on sites within those districts).

    Qualifying projects are eligible for density bonuses up to 35%, as well as other concessions and incentives proposed by the City or the Developer that are appropriate for the project and will result in identifiable, actual cost reductions. In some cases, waivers from development standards may also be granted.

    Amendments to the legislation were adopted at the March 13 Board of Supervisors Land Use and Transportation Committee hearing, and the legislation has been continued to allow time for additional public review.

  • Ting Legislation Seeks to Pave the Way for Fees on Density Bonus Units

    Assemblymember Phil Ting (D – San Francisco) introduced new amendments to the State Density Bonus law on March 15, 2017 that would specifically require local jurisdictions to impose their local inclusionary housing requirements on density bonus units, unless the jurisdiction expressly exempts them by ordinance.

    As mentioned in our recent inclusionary housing legislation blog post, local legislation proposed by Supervisors Safai, Breed and Tang would require that an “in-lieu” inclusionary housing fee be paid for any density bonus units, as recommended by the City Controller. As we previously reported, that requirement would be additive, meaning that millions of dollars of additional fees could be due for market rate housing projects with otherwise required inclusionary housing units provided on-site. As currently drafted, AB 915 authorizes the general approach in Supervisors Safai, Breed and Tang’s density bonus fee proposal and could open up the door to other options for satisfying local inclusionary housing requirements vis-à-vis the density bonus units (e.g., off-site and on-site).

    This legislation joins the larger debate about the appropriate level of incentives necessary to encourage developers to participate in a local density bonus program. As discussed in a prior post, fees on density bonus units is one of the major issues expected to be discussed when the Board considers the competing inclusionary ordinances in the coming months.

  • Influencer Marketing: Best Practices for Advertisers & Agencies

    Auhored by Lindsay Gehman

    Influencer marketing saw explosive growth in 2016, with 86% of marketers having used the tactic, 94% of whom found it effective. In 2016, most marketers spent between $25,000 to $50,000 per influencer marketing program, which amounts are expected to double in 2017, with overall budgets increasing as well. Influencer marketing is a type of marketing that focuses on using key subject matter experts (or influencers) to drive a brand’s message to the larger market in a more personalized, authentic way. An influencer is anyone who has a sizable network of people who follow and engage with them, usually over social media channels such as Facebook, Twitter, Instagram, Snapchat or YouTube.

    While the reach and impact of influencer marketing is without question, the Federal Trade Commission (FTC) and other governmental and industry organizations are closely scrutinizing influencer marketing campaigns for indications of deceptive marketing practices, which could have financial and reputational repercussions for advertisers and agencies alike. The FTC publishes Guides Concerning the Use of Endorsements and Testimonials in Advertising (Guides), which are designed to reflect the principle that endorsements must be honest and not misleading. Generally speaking, the Guides provide that (i) an endorsement must reflect the honest opinion of the influencer and (ii) if a connection exists between an influencer and an advertiser that consumers would not expect and such connection would affect how consumers evaluate the endorsement, that connection should be disclosed.

    Odds are, if you’re an advertiser or agency, you’ve probably already incorporated influencer marketing as part of the your overall marketing strategy or offering. If not, you probably should. Either way, understanding FTC guidelines and recent decisions and adopting appropriate policies and best practices are crucial. A best practices checklist for how disclosures should be made, and what advertisers and advertising agencies can do to ensure compliance, are set forth below.

    Best Practices

    Advertisers and agencies must ensure that influencer disclosures are “clear and conspicuous.” Below is a best practices checklist for disclosures:

    • Use clear, plain and unambiguous language so that consumers understand the disclosure.
    • Place the disclosure at the beginning of the post (or “above the fold”) and as close as possible to the ads to which it relates.
    • Ensure that the size, color and graphic treatment of the disclosure are easy to read in relation to the other parts of the post.
    • Ensure that the disclosure is clear and visible on all devices, including mobile.
    • Ensure that the disclosure is appropriate for the platform and complies with any applicable terms of use. For character-restricted platforms (such as Twitter), a hashtag such as #ad or #sponsored may be appropriate. For video platforms (such as YouTube), the disclosure needs to remain on screen long enough to be noticed and read (in other words, a disclosure in the description box alone is not enough).
    • Repeat disclosure as necessary on lengthy websites and/or in connection with repeated claims.
    • Ensure that the disclosure remains intact when ads are republished or reposted.

    The FTC holds advertisers responsible for ensuring that influencers comply with the FTC’s guidelines. While the FTC has not yet held agencies or influencers themselves directly responsible for compliance, agencies and influencers may be held contractually liable through indemnification or other provisions vis-à-vis the advertiser. As such, advertisers and agencies are highly encouraged to take appropriate steps to ensure that the influencers engaged by them or on their behalf are in compliance. Below is a best practices checklist for what advertisers and agencies should do with respect to the influencers they engage:

    • Adopt a written social media policy for all influencers they engage with.
    • Train, instruct and contractually require influencers to make proper disclosures regarding their relationship to the advertiser and/or its products.
    • Monitor influencers to ensure they are making the proper disclosures, both before, during and after posting.
    • Terminate influencers who fail to make the proper disclosures and/or require them to take down or edit the applicable posts.

    Click here to download a PDF of this checklist.

    For further information and assistance, including with respect to drafting social media policies and/or influencer agreements, contact Lindsay Gehman at lgehman@coblentzlaw.com.

  • Copyrights 101 for the Fashion Business

    Whether big or small, all apparel companies are using (or mis-using?) social media or not sufficiently protecting their creative work. Join attorneys Karen Frank and Lindsay Gehman to discuss intellectual property, social media and privacy issues for apparel businesses.

    Tue, April 11, 2017
    6:00 PM – 8:00 PM

    Click here for ticket information.

    What You’ll Learn:

    • How to protect your work: Copyright? Trademark? Patent?
    • Legal Issues an apparel company should know about when using social media
    • What’s fair in use of other people’s content on your website or app
    • What you need to know if you collect customers’ private information

    Presented in partnership with SFMade.

    Categories: Events
  • Competing Inclusionary Housing Proposals Introduced at the Board of Supervisors

    Is the City another step closer to sorting out inclusionary housing requirements and implementation of Proposition C?  Board of Supervisors members have introduced two competing ordinances that seek to call the question regarding the City’s inclusionary housing priorities and requirements.

    Very generally, the legislation introduced by Supervisors Safai, Breed and Tang comes closer to reflecting the City Controller’s recommendations regarding inclusionary housing percentages, summarized in our February blog post. It would also substantially increase the percentage of inclusionary units that are targeted for middle-income earners. By contrast, the legislation proposed by Supervisors Peskin and Kim would maintain inclusionary housing percentages and income level distributions that are closer to existing requirements.

    As shown in our side by side summary chart, both ordinances would add new complexity to inclusionary housing requirements. For example, they would:

    • Distinguish between requirements for ownership and rental units;
    • Require rental units to remain rental for at least 30 years or meet higher requirements;
    • Change income level distribution requirements;
    • Revise the basis for the fee rate calculation; and
    • Introduce new unit mix requirements, with an emphasis on larger, family-focused units.

    Notably, the Safai/Breed/Tang legislation would apply the new unit mix requirements project-wide — not just to the inclusionary housing units — with certain exceptions.

    The Peskin/Kim legislation would generally retain existing grandfathering protections for pipeline projects, and projects over 120 feet in height would generally be subject to a 30% requirement for off-site or fee compliance, as compared to the existing 33% requirement. The Safai/Breed/Tang legislation would generally retain existing grandfathering protections for pipeline projects complying with the on-site option but would generally eliminate such protections for off-site and fee compliance, although the proposed percentages are generally equivalent to or lower than existing grandfathering protections. There is an exception: existing protections for projects with an Environmental Evaluation (EE) application on file prior to January 1, 2013 would be retained in all instances.

    One key issue is how inclusionary housing requirements should interact with State Density Bonus law. The Safai/Breed/Tang legislation would require that an “in-lieu” inclusionary housing fee be paid for any density bonus units, as recommended by the City Controller. As we previously reported, that requirement would be additive, meaning that millions of dollars of additional fees could be due for market rate housing projects with otherwise required inclusionary housing units provided on-site. The Peskin/Kim legislation does not currently specify that the fee would apply to density bonus units, but it proposes to increase the on-site inclusionary percentage by 5% for buildings over 300 feet — even though the City Controller reported that he found no evidence to support a higher requirement for high-rise projects.

    The legislation is currently on hold under the Board’s 30 day rule, and is expected to be debated at the Land Use and Transportation Committee in the coming months. In the meantime, the Planning Commission is scheduled to hold an informational hearing on the legislation on March 16, 2017. Planning Department staff has produced a detailed analysis of the legislation, including exhibits that detail how the ordinances would impact fees and inclusionary percentages.