Communications Act Updates Must Surpass Partisanship, Commerce Committee Counsels Say

House Republicans now expect the Communications Act review to take up much of 2014. “Is it realistic and will it take shape? I think it’s too early to tell,” said House Commerce Committee Majority Chief Counsel David Redl during a Practising Law Institute event in Washington Thursday. “No one has been using the word ‘rewrite’ from our side.” House Commerce Committee Chairman Fred Upton, R-Mich., and Communications Subcommittee Chairman Greg Walden, R-Ore., announced their intentions to update the law Tuesday, inspiring mixed reactions (CD Dec 5 p1). The top Republicans have framed it as a comprehensive review and update, Redl said. He called rewriting the act from scratch a “Herculean undertaking,” so the House is “taking a little more incremental look at how to update this law.” Walden and Upton have said they want to introduce legislation in 2015.

Walden, speaking on a press call Thursday hours after Redl spoke, did call the update a “rewrite.” He said the Satellite Television Extension and Localism Act, which expires at the end of 2014, is “obviously” not where any stakeholders “get to rewrite the entire Telecommunications Act,” saying those broader updates should be “reserved” for the subcommittee’s other efforts. Walden referred to net neutrality as “one of the big questions” the review will likely touch on and said the Internet should be “free of over-management by the government.” Redl said the concept of universal service was a big part of the 1996 act and that he would be surprised if it were not going to be given “a hard look” in this review. The biggest challenges will be fighting congressional “inertia” and “getting people comfortable with where our bosses want to go,” Redl said.

"This is, we recognize, a big undertaking,” Walden said. “It’s something that needs to be done.”

"I think we can get something done,” said House Commerce Committee Democratic Chief Counsel Shawn Chang of a targeted approach in conducting a comprehensive review. Universal service “remains sound” as part of the Communications Act, he said. It will be hard to get anything done from a partisan approach, however, he cautioned.

Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., sees “core values” of communications policy in public safety and universal service relevant in any updates, said Committee Democratic Senior Counsel John Branscome. “A rewrite means different things to different people,” he said. Senate Commerce had convened roundtables in recent years to “get at what potentially could be done” but “it was very difficult to reach a consensus.” Branscome cited other legislative updates Rockefeller has pursued, such as extending statutory licenses to online video distributors, as a recent Rockefeller bill proposes.

Walden disputed any idea that campaign fundraising, with an eye toward 2014 midterm elections, may have motivated the push to update the Communications Act. “Are you serious?” Walden said. “You can file that one away in the trash can.” He described a desire to welcome input from all stakeholders and said industry will try to “jockey” for different priorities. He would not comment on whether retransmission consent should be killed or not and thinks privacy concerns are a better fit for this review than in STELA reauthorization. He expects the process to start “early next year,” he said. “There'll be time in there to get this up and running."

The “elephant in the room” is that “none of us work in Judiciary,” Redl said on the panel of Commerce Committee staffers. The House and Senate Judiciary committees handle copyright and would be part of any updates to STELA. The Democratic and Republican committee counsels differed to varying degrees when discussing FirstNet, the Universal Service Fund and E-rate, how broadband should be regulated and how they judge certain potential FCC actions. Senate Commerce Committee Republican Policy Director David Quinalty pointed to concerns of ranking member John Thune, R-S.D., on FCC Chairman Tom Wheeler’s “activist” views on transaction reviews and merger conditions. “If [net neutrality is] struck down, from a consumer perspective, nothing much will change,” he added, expressing a different view than Branscome, who said Rockefeller wants the court to uphold that the FCC has authority over broadband.

Former top government communications officials, meanwhile, lamented congressional rancor Wednesday night at an event hosted by the Progressive Policy Institute. Bill Kennard, FCC chairman in the late 1990s, said everything is harder and more politicized now compared to when Congress passed the 1996 law. “These issues are becoming increasingly partisan,” Kennard said, citing net neutrality, Internet taxation and cybersecurity. The 1996 act was influenced by “the failure of legacy regulation” more than anything else and “really about the analog phone network” -- “the wrong battle to be fighting at the time,” Kennard judged.

Larry Irving, a former NTIA administrator, compared the Silicon Valley of the late 1990s to today and pointed to the rise of “moneyed stakeholders” in the policy fights. “Now they have their Republican lobbyists and their Democratic lobbyists,” Irving said. “It lends to the increased toxicity. … Telecom, until very recently, was nonpartisan across the board.” He pointed to the 1992 Cable Act and past unions between lawmakers on different sides of the political aisle, like Ed Markey and Chip Pickering, who were both in the House at that time. “That couldn’t happen today,” Irving said. “And I don’t think that’s a good thing."

Michael Powell, CEO of NCTA and formerly FCC chairman during the early 2000s, warned the other officials not to confuse the dysfunction of Congress with the much healthier and happier “greater community of thinking” around the Internet. The communications updates in the 1990s and 2000s included a lot of “techno-euphoria and ambiguity” and a time of “regulatory complexity.”