Lawmakers Anticipate Another Stab at Telecom Act Overhaul in 2017

“I don’t think it’s going to happen any time soon now, do you?” remarked Sen. Deb Fischer, R-Neb., saying there’s “always, always” update talk.

House Communications Subcommittee Chairman Greg Walden, R-Ore., sought to kick-start an overhaul in December 2013, soliciting hundreds of stakeholder responses throughout 2014 about what the changes should be, and says it should be resumed. “That body of work is still there,” said Walden, who faces a term limit this year as subcommittee chairman and may vie for full Commerce Committee leadership, with an eye toward a telecom rewrite if chairman in 2017 (see 1607220053). “I just think it’ll have a different focus next time. Because in the middle of it, you had net neutrality kind of blow things up.”

Several members of Congress from both parties began publicly referring to a renewed focus on a Telecom Act rewrite in June and July, after the U.S. Court of Appeals for the D.C. Circuit upheld the FCC net neutrality order. Senate Commerce Committee Chairman John Thune, R-S.D., told reporters of the merits of returning to such a bipartisan effort. During a July FCC oversight hearing, Rep. John Shimkus, R-Ill., another contender for 2017 Commerce Committee leadership, and House Majority Whip Steve Scalise, R-La., mentioned wanting to launch a telecom rewrite, prompting agreement from Rep. John Yarmuth, D-Ky. Senior Democrats such as Senate Commerce Committee ranking member Bill Nelson, D-Fla., and House Commerce Committee ranking member Frank Pallone, D-N.J., haven't trumpeted such a goal, but some rank-and-file Democrats say they desire a rewrite. Rep. Bobby Rush, D-Ill., who viewed bipartisan outreach as “scant and sketchy” under Walden’s effort, said in July he was considering starting a Rewrite the Act Coalition to begin bipartisan discussions.

“We need to start now and not later,” Rush told us in a statement. “The most important step in this process is to convene all interested parties. When Congress reconvenes after recess I intend to call a meeting with various stakeholders to gauge their interest and see how we can move forward. I envision it will consist of planning sessions on various topics of the Telecom Act with a diverse group of interested parties.”

“I’ve long believed that Congress has a responsibility to ensure the laws it writes are up to date, and I’m willing to discuss a bipartisan update of the Communications Act so long as it keeps in place the critical consumer protections included in net neutrality,” said Pallone.

Eyes on Elections

Major unknowns that lawmakers identify are congressional and White House control. Democrats are seen having a good chance of retaking majority control of the Senate and gaining more power in the House, if not unseating the Republican majority there. Democratic presidential nominee Hillary Clinton leads GOP nominee Donald Trump in their battle for the White House, according to recent polls.

“A lot’s going to depend on the presidential election,” said Rep. Joe Barton, R-Texas, a former Commerce Committee chairman who tried to overhaul the act in 2005 and 2006 and is eyeing a return to the top committee perch. “From my perspective, it’s easier if Mr. Trump wins. I would hope if Mrs. Clinton wins, she’d be open to it. It will need to be bipartisan and it obviously depends, too, on House and Senate leadership, chairmanship of the [Commerce] Committee, the subcommittee chairmanship, so there’s a lot of puzzle pieces to put in place. But it is something that I think needs to be addressed.”

“If we had a new administration, it might start it off. ... It’s like a new day,” said Rep. Doris Matsui, D-Calif. “A lot has been done, but there’s a lot more to go, you know. … We haven’t done too much since [the 2014 effort]. I think most people honestly aren’t thinking about it right now. … So I think it’s going to be the next Congress, the next administration, [it] is going to be sort of like a new day.” Matsui said that "if you look at the things we’re doing," people are starting to think the coming Congress "may be the time."

“We need to start talking about it, getting started,” said Fischer. “Hopefully, Republicans are going to be in the majority because there is interest on our side to get it done. We’ll put forth proposals, maybe, and see what happens. It’d be nice, wouldn’t it?” She cited both her own and Thune’s interest in overhauling the foundational telecom law but explained her pessimism by pointing to the number of years the issue has been talked about without action: “When I was first selected to chair the Transportation and Telecommunications Committee in the Nebraska legislature, it was 2007, and I remember in Nebraska, you stand up in the floor and nominate yourself to the position. And I remember saying, you know, a rewrite is probably coming and after all, it’s been 11 years, we need to get it done. So my first couple years, I was kind of worried it was going to happen. And then after that, I thought OK, we can do this, we’re up to speed. ... Then, it never happened.”

Motivating Factors

The video policy debates of the past year and those to come may energize the efforts, some lawmakers said. In the current Congress, political gridlock is preventing lawmakers from clearing some measures even with broad bipartisan support.

Satellite TV law reauthorization, an occasion of must-pass legislation with deadlines typically every five years, “always takes a while,” Walden said, expecting an uptick of activity over time as the next Dec. 31, 2019, expiration deadline approaches. “So there are issues attendant to that that people, having been through that last time, I know that opens the door to a bunch of issues. And we’ll see where this set-top box decision-making process leads. And the marketplace continues to change, despite what the FCC may say.”

“I’m hoping so,” Rep. Yvette Clarke, D-N.Y., said of a possible 2017 rewrite effort. “I think, ironically enough, the set-top box proposed rule sort of gave everyone a lens into the fact that we’re really talking about technology that’s quickly fading fast. If we don’t begin to open our eyes to the evolving landscape here, we’re going to be behind the times in terms of how all of these entities in the ecosystem itself [are] regulated. I think it makes a lot of sense. I don’t determine that. My side of the aisle doesn’t determine that. But I think it’s worth having a conversation about. … I’m going to start speaking to some ears and see what comes back.”

Senate Commerce’s focus for this year will stay on clearing the Mobile Now spectrum bill (S-2555) and the FCC Reauthorization Act (S-2644) through the Senate floor, a Republican committee staffer said. But if those measures remain stalled, they would still be the priority next Congress and could be confidence-building measures for a broader look at such FCC-related issues, the staffer said.

“Everybody knows that it’s needed,” said Rep. Ben Ray Lujan, D-N.M. “There needs to be a serious conversation and a process that’s moving to be able to update the act given all the changes in technology and our ability to communicate with one another. But especially as we are rolling out 5G and there’s a more robust conversation about the Internet of Things.” Lujan opposed any delay or need to wait until next year: “We shouldn’t wait,” he told us. “We should start now. There was a commitment to get this started this Congress. I’m not certain what derailed it. But as you said, there’s six months left in this Congress. We shouldn’t have to wait. We can start those conversations, and then it should be a priority in the next Congress.”

The calculus for any effort’s prospects struck some as far too hard to guess. “It’s hard to know, I couldn’t predict it,” said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, not opposed to an overhaul. “But I’m always for legislating. … Nature abhors a vacuum, and to those people on the left and the right who don’t like the administrative actions of this or that agency, there’s a very simple solution and it’s called exercising our constitutional prerogatives and legislating.”

“I have no idea,” Sen. Claire McCaskill, D-Mo., said of a telecom rewrite’s prospects next Congress. Other senators including Nelson and Sen. Ed Markey, D-Mass., declined to weigh in.

'Exciting Opportunity'

The right committee leadership could make the difference, said Yarmuth, lauding Walden and Commerce Committee Chairman Fred Upton, R-Mich., who face term limits in their positions. “It wouldn’t be easy,” Yarmuth told us. “But the world’s changing so fast in that field. Nothing makes sense that’s on the books before even 15 years ago.” Of factors that could propel an effort, “the chairmen” is what Yarmuth points to: “Either of the subcommittee or the full committee. I even mentioned that to Fred probably a year or so ago. I said if you sponsor that bill, I’ll co-sponsor it with you. … I think either Fred or Greg Walden, one of them, if they did it…”

Shimkus touted his experience in shepherding through the Toxic Substances Control Act, explaining why he could succeed at advancing a Telecom Act rewrite as Commerce Committee chair next Congress. “As we’ve done in TSCA, which took five and a half years, you have hearings, you gather information, you bring stakeholders in, and you work through the process,” Shimkus said. “It’s actually an exciting opportunity. If I was chairman, I wouldn’t be micromanaging the subcommittee. You want to empower your subcommittee chairman to go for it."

“The whole communications world has changed,” Shimkus added of the need for an overhaul. He said there “are some things that we’ll always be concerned about, spectrum use and allocation and stuff like that, consumer protection issues” in addition to need to retool the overall statute. The “basic argument is basically sound, regardless” of which party wins the Senate, he said. Other lawmakers also emphasized technology changes. “It may make a lot of sense given sort of the evolution and the convergence between broadcast, between digital, and all of the new platforms that are emerging right now, [over the top], the whole nine [yards], that I don’t think we anticipated when the telecom bill was actually passed in ‘96,” said Clarke.

House Communications Subcommittee ranking member Anna Eshoo, D-Calif., repeatedly said this Congress she’s open to an overhaul but said there was never any direct bipartisan dialogue about one. She still emphasizes her desire for a framework and set of principles if any overhaul effort were to happen.

“There has to be that,” Eshoo said in a recent interview, questioning the push this summer for a rewrite from Rush and other Democrats. “Maybe this all of a sudden coming-out-of-the-box is because [Rush] has his own ideas about what he wants to advance under the rubric of rewrite. I think that you really have to have the set of principles. That has to be agreed to. And then within the confines of those principles, you pursue certain policies. The entire Telecommunications Act does not have to be rewritten. If you don’t have anything else to talk about in telecommunications, you ask that question.” Eshoo warned of the need for deeper understanding given the complexity of the task: “You can have Congress jump into the ocean -- they better know how to swim.”