SHVIA, Indecency, Seen as Top Priorities as Congress Returns
Reauthorization of the Satellite Home View Improvement Act (SHVIA) was described by Hill sources as the only “must pass” legislation as Congress returns from its Aug. recess after Labor Day. But congressional action to raise broadcast indecency fines also seemed likely. SHVIA is winding through the House and Senate, and both bodies have passed indecency fine legislation. Other issues, such as VoIP and spectrum relocation, were considered in flux. The Senate could take up controversial copyright reform legislation. Hill staff and lobbyists caution, however, that a focus on intelligence reform in the wake of the 9/11 Commission could crowd out other legislative initiatives.
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With few appropriations bills completed, the remaining months of the 108th Congress will likely focus on spending. But congressional sources said that appropriations could be a vehicle for leftover bills, such as spectrum trust fund legislation (HR-1320) or E-911 funding (S-1250), which has passed the House but languished in the Senate. One congressional source also speculated that portions of SHVIA legislation could be passed using appropriations legislation if efforts to reconcile the bill run short of time. Congress has passed only one of 13 spending bills (Defense Dept. passed Aug. 5). While the House has only 3 bills remaining for floor consideration (VA/HUD, Labor/HHS and Transportation/Treasury), most spending bills haven’t gotten subcommittee or committee approval in the Senate. Congress has targeted Oct. 1 for final adjournment, but many have speculated additional time or a lame-duck session will be needed, and an omnibus appropriations bill must pass to complete the session.
House Commerce Committee member sources said staff will likely focus on consolidating Commerce and Judiciary Committee versions of SHVIA. The House Judiciary version of the bill, passed in July, addresses compulsory licenses and raises royalty rates for some content that DBS uses. The Commerce Committee bill would end EchoStar’s 2-dish practice and give DBS more leeway to deliver “significantly viewed stations” to their subscribers. Sources said there would likely be a “mini-conference” between members and staff of both committees to sort out the details and merge the 2 bills.
The Senate will likely have to go through the same process on SHVIA, but at least one member of the Senate Judiciary Committee (ranking Democrat Leahy [Vt.]) has begun questioning whether the Commerce Committee version (S-2644) usurps Judiciary’s jurisdiction. Specifically, Leahy questions whether allowing DBS to broadcast into digitally unserved “white areas” would be an unauthorized extension of the compulsory license for DBS. While the House and Senate Judiciary Committee bills have many similarities, the Senate Commerce Committee version contains provisions that the House isn’t likely to approve. Most notably, the Senate Commerce SHVIA bill includes language that would allow DBS providers to deliver HDTV to consumers unserved by broadcasters. There’s little support for that provision in the House, a source there said. But sources speculated that SHVIA’s main goal could be accomplished through the appropriations process. They said only the compulsory license address in the Judiciary Committee versions of the bill must be renewed. The fight over such details as when to phase out EchoStar’s 2-dish system could be waged next year rather than in Oct., a congressional source said.
The House and Senate will likely resolve differences on broadcast indecency fines through a conference on Defense Dept. authorization legislation (S-2400). The Senate approved raising maximum fines tenfold in an amendment to the DoD authorization. But the amendment also included a provision, pushed by Sen. Dorgan (D-N.D.), that would limit media ownership, and an amendment from Senate Commerce Committee ranking Democrat Hollings (S.C.) that would allow the FCC to enforce restrictions on violent content. House leadership strenuously opposes the media ownership provisions and they're expected to be removed in conference, sources said. The Hollings amendment is also likely to be taken out, as several senators have said they didn’t believe the courts would uphold the law.
Differences between the House and Senate approaches to fines for indecency also remain. While the House version would raise FCC fines to $500,000, the Senate brings fines up to $275,000. Also, the House version would require the FCC to start a license review after a station’s 3rd indecency fine, to fine on-air talent. The Senate version has neither provision.
Prospects for VoIP legislation this session remain alive but slim. Since Senate Commerce Committee passage of Sen. Sununu’s (R-N.H.) VoIP bill (S-2281) in July (CD July 23 p1), industry sources said it was still possible for the bill to move before recess. But industry and congressional sources said an amendment to the bill from Sen. Dorgan (D-N.D.) -- which offered protection for states to collect access charges and universal service fund fees -- put a damper on the bill. Sources said the bill had the support of both Senate Appropriations Chmn. Stevens (R-Alaska) and Senate Commerce Committee Chmn. McCain (R-Ariz.) until Dorgan succeeded with his amendment.
The House Commerce Committee has 2 pieces of VoIP legislation, from Rep. Pickering (R-Miss.) (HR-4129) and from Rep. Stearns (R-Fla.) (HR-4757). There has been some speculation that the committee might try to move a bill this session. An industry source said House Commerce Committee Chmn. Barton (R-Tex.) told supporters in Tex. a bill could be marked up this session. A House Commerce Committee spokesman and a separate House source said no such markup has been scheduled. But an NTCA lobbyist recently said there were concerns that the House Commerce Committee would take up the bill. Committee approval would make it much easier to attach VoIP legislation to an appropriations bill, sources said.
Both the Pickering and Stearns bills would preempt states on VoIP while providing for CALEA surveillance and 911 service. Stearns takes a broader approach, applying the new rules to all IP-based services. Insiders told us that Stearns’ bill would require more deliberation, and is likely to force a delay on the topic until next year, when the committee will consider Telecom Act revisions.
Industry sources said there was a continued push to pass the spectrum trust fund legislation (HR-1320) to use auction proceeds to pay for moving govt. spectrum users to different frequencies. The bill passed the House in June 2003 but stalled in the Senate after Sununu attached a rider in markup to award spectrum to Northpoint. That spectrum has since been awarded through FCC auction, and sources said the Northpoint provision has been replaced with language that would authorize a study of spectrum distribution practices.
The spectrum trust fund bill could also be amended to include both a national Internet alert system as well as funding for E-911 deployment. A Senate E-911 bill (S- 1250), introduced by Senate Communications Subcommittee Chmn. Burns (R-Mont.), has stalled after the House passed a bill in 2003 devoting $100 million annually to further E-911 phase 2 deployment. The Senate bill seeks $500 million. Industry sources said Stevens would likely push to include E-911 and national alert system language in the spectrum trust fund bill. Sources also said such provisions would bring opposition from other senators. Some wireless carriers have been putting more time into promoting the trust fund in recent months.
The Senate Commerce Committee is expected to hold a hearing in coming weeks on the communications implications of the 9/11 Commission Report - the part of the report remaining clearly under its purview since the Govt. Affairs Committee is handling transportation issues raised.
McCain is expected to introduce legislation wrapping together several communications issues, including the DTV transition, which would give public safety access to 700 MHz spectrum. “Chmn. McCain definitely wants to do something because this is such a big part of the 9/11 Commission report,” one source said. “This could pass, if anything does, because it relates back to homeland security.” Barton and Chmn. Upton (R-Mich.) are likely to introduce a House version. Both the House and Senate plan significant floor time on 9/11 Commission-related issues.
Leahy and Senate Judiciary Committee Chmn. Hatch (R- Utah) are in a hurry to move legislation that would impose liability for inducing copyright infringement. A U.S. Copyright Office draft bill, designed to replace Hatch and Leahy’s S-2560, was distributed Thurs. (CD Sept 3 p4), and interested parties are expected to meet today (Tues.) to discuss it. Fair-use advocates believe the draft would invite litigation, and prefer a draft that CEA put forward recently (CD Aug 26 p7). There could be action at a markup scheduled Thurs. Leader Frist (R-Tenn.) is a co- sponsor of S-2560, and has said he'd like a floor vote because piracy threatens the country music industry in Nashville. RIAA Chmn. Mitch Bainwol until last year was Frist’s top aide.
On the flip side of the copyright debate, Barton and House Internet Caucus Co-Chmn. Boucher (D-Va.) may still press for a markup of HR-107, a bill that would amend the Digital Millennium Copyright Act (DMCA) to permit circumvention of copy-protection mechanisms for noninfringing uses. A markup appears less likely than it did this summer, according to House Commerce Committee staff, but Boucher said recent court action on the DMCA showed reform is still needed (CD Sept 2 p5).