Communications Act Overhaul Set to Enter Phase of Bipartisan Outreach

"We haven’t had a conversation about it,” subcommittee ranking member Anna Eshoo, D-Calif., told us at the Capitol just before recess. “I anticipate that we will.” She cited casual moments during hearings, where she and Walden may touch on issues that need addressing, but nothing beyond that. “There’s nothing formal that’s been taken up,” said Eshoo, who’s vying to lead House Commerce Committee Democrats next Congress. “But I know that the chairman, Greg Walden, is a lovely man and a worthy partner in the subcommittee. He announced that he believes that it’s appropriate to open it up. The question to me was do I think we should? My response is, if we're going to, if we're going to, we should know why, not just because someone said let’s just open it up.”

Walden and House Commerce Committee Chairman Fred Upton, R-Mich., laid out a schedule for hearings and white papers this year and legislation next year. They have released five white papers seeking stakeholder comment on topics from USF to interconnection to spectrum, each attracting scores of responses. Senate Commerce Committee ranking member John Thune, R-S.D., also wants an overhaul. Hill veterans warned early on that any initiative must be notably bipartisan if it’s to succeed, and suggest such congressional bipartisan possibility exists in telecom, despite major difficulty moving any legislation that size in a partisan, gridlocked Congress (CD Feb 11 p3).

"We don’t think it’s prudent for us to start doing internal discussions yet,” said a Republican committee staffer, speaking on behalf of the majority. “We're rapidly getting to that point.”

Expect bipartisan outreach to stakeholders soon, the staffer said. Stakeholder groups will come in this fall, with Hill offices of both parties invited to listen and ask questions, he said. A Democratic staffer affirmed having heard before the August recess that outreach would happen in the fall. Upton and Walden wanted committee staffers to spend this Congress listening, the Republican staffer said. “That’s what drove our white paper process.” He emphasized the goal of gathering information impartially, with careful white paper drafting to that end.

Democrats Doubtful?

Democratic legislative staffers remain dubious about any Communications Act overhaul and are waiting and seeing, said the Democratic staffer in August. “People on our side aren’t holding our breath.” There’s considerable process skepticism among Democrats, he said, pointing to this year’s Satellite Television Extension and Localism Act reauthorization process -- in which Republicans met privately and wrote the legislation -- and the difficulties of advancing the House Commerce Committee’s modest bill. From the beginning, staffers questioned whether the Communications Act update initiative was meant to drive fundraising before the November midterm elections, he said, despite noting that Republican staff seems genuinely committed. Walden, chair of the National Republican Congressional Committee, has rebuffed accusations of a fundraising motive.

Any Communications Act overhaul “should be” bipartisan in nature if it’s to advance, Eshoo said. “It has to be. If you want to be successful. … It has to be done professionally. We've got to sit down and, I think together, develop a road map as to what is it we want to accomplish. Do we want to put the word Internet in 34 times instead of four times? I don’t know.” No bipartisan legislative staff discussions have taken place “that I know of,” Eshoo confirmed.

The proposed overhaul lacks shape, and is still just “a huge vacuous thing” that’s a “nebulous promise,” with only white papers released, which at least are “not really horrendous” and relatively even-handed, the Democratic staffer said. He considered the politicized battles on net neutrality and the broader political environment and doubted, even with a possible Republican Senate after November, that such a large vehicle as a Communications Act overhaul could advance: “It would honestly shock me.” A different Democratic staffer who also seemed skeptical confirmed in mid-September that Republican staffers have not begun any discussion with Democrats. He said he just hopes any overhaul does not start with net neutrality, a source of severe partisan divide and an issue seen as a major factor derailing a 2006 Communications Act overhaul attempt.

Rep. Mike Doyle, D-Pa., raised concerns in July, asking Walden “to engage our side in meaningful discussion so we can put forward a bipartisan discussion” on the initiative and citing “some concern” over no outreach (CD July 25 p16). Eshoo recalled Doyle’s stand: “It was somewhat of a surprise to the majority that he said that,” she said. “They didn’t get it.” Spokespeople for several Democratic members, including committee ranking member Henry Waxman, D-Calif., did not comment. Waxman had blasted committee leadership for process flaws in July, such as not allowing for proper airing of legislative issues.

Boucher Unconcerned

"I don’t think it’s inappropriate,” said Rick Boucher, former Democratic head of the House Communications Subcommittee, of the Republican committee leadership’s outreach strategy. “There is plenty of time.” He called the Republicans’ process, more leadership-directed than in the rewrite of 1996, “superb” and said “it seems to me they're very much on track,” with ingredients for a faster rewrite than in the 1990s and potentially on track for conclusion in 2016. He is an honorary co-chair of the Internet Innovation Alliance, with members including AT&T. Boucher, now with Sidley Austin, suspects there have been informal conversations all around committee offices.

Lawmakers are “trying to figure out what’s needed” through the white paper process but will face the FCC-created “quagmire” of botched interpretation, said Earl Comstock, an ex-Senate staffer who helped draft the Telecom Act for the Republicans. He criticized the FCC’s mistake in refusing to classify the transmission component of Internet access as a telecom service. Comstock, a former Comptel president now with Eckert Seamans, said linguistic gymnastics would be necessary to map the goals of the old act with the “conceptual morass” that the FCC now treads in and Congress’s desire to avoid appearances of regulating the Internet: “You're basically going to end up writing an alternative Communications Act that just uses different language.” The white papers help “show some kind of action,” Comstock said. “I think they're struggling.”

"When I was a committee staffer engaged in a similar process, there were lots of folks on the outside who probably second-guessed what we were doing,” said Howard Waltzman, a Mayer Brown attorney who helped lead a similar overhaul attempt as chief telecom counsel for the Republicans under Rep. Joe Barton, R-Texas, in 2005 and 2006. “But unless you're on the inside, you don’t have a full appreciation for the dynamics, and, therefore, I have to give full deference to whatever approach the committee is undertaking.”

"There will be a bit of a pause until the new Congress reorganizes next year,” said Robert McDowell, a former Republican FCC commissioner now with Wiley Rein. He expects “a more focused effort on a bipartisan basis” then, he said. “It will get busier and more full of energy.” The update, which McDowell backed alongside Upton and Walden in December, “needs to be bipartisan” and there’s “room for agreement across the ideological spectrum,” said McDowell, pointing to spectrum policy as one such area.

"To actually pass something in 2015-16, they have to lay the groundwork now, which they're doing,” said Guggenheim Partners analyst Paul Gallant. “Both sides need to be part of the process. Not immediately, but probably soon. Because unless it’s bipartisan, it’s not getting through the Senate.”

Comstock expects a process undoubtedly taking years, he said. “If House Republicans haven’t even started talking to their own legislative staff, you're at the very beginning of the process, realistically.”

'Hit the Ground Running'

Eshoo anticipates little action in the November and December lame-duck session, when a Congress that’s “limping along” resumes for few legislative days: “We'll do only what it absolutely thinks it needs to do to maybe keep the doors open."

"The election is really an inflection point for us,” the Republican staffer said, saying much depends on the November midterms. He flagged the retirement of Waxman and Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., raising questions about their replacements. House Republican committee staff communicates with Thune’s, he said. Upton and Walden have told committee staffers to “hit the ground running” on the overhaul starting in the next Congress, he said.

More white papers will be issued this year, the Republican staffer said, the next one likely tackling video issues. Staffers had avoided that area due to STELA reauthorization focus before, he said. In a speech Friday (CD Sept 29 p9), Walden identified “old” broadcast laws as one focus and said the overhaul’s intent includes talking about how to “remove unnecessary government intrusion into broadcasting."

"It’s a heavy legislative lift,” Eshoo said, considering limited outreach so far. “It’s one thing to write a new law. It’s another thing to go back and take a very large law and say, you know, you're going to pick it apart, and throw this and that overboard. There really is a difference. … The latter is harder to do. You have to have a very good case for it. So I don’t find the idea menacing at all. But I think we need to design a road map in the next Congress as to what exactly we're looking to accomplish.”

"You have to have guiding principles, and the guiding principles really, in my view, should be exactly the ones that guided the legislators when they came up with the last Telecom Act in ‘96,” Eshoo said. “And that was to create real competition, it was to serve and protect consumers, overall to grow our economy. You have to have guiding principles, and then you go to the specifics. But if the ship is out in rough waters and doesn’t have any rudder, what’s to happen to that ship? It’s going to go down. It’s not going to make it.” (jhendel@warren-news.com)