Congress Counts Handful of 2015 Telecom Victories, but Much Still Far From Finish Line

The few telecom priorities signed into law in 2015 included those in the two-year budget deal -- provisions requiring the federal government to clear 30 MHz of spectrum by 2024, add flexibility to the Spectrum Relocation Fund and compel studies. That deal eased restrictions for robocalls to cellphones for government debt collectors, an administration request that spurred opposition from Hill Democrats. The FY 2016 omnibus funding bill included language to grandfather broadcaster joint sales agreements for the next decade and included funding for the FCC’s headquarters move. Other measures signed into law include the Emergency Information Improvement Act (S-1090), the E-Warranty Act (S-1359) and legislation to postpone the positive train control implementation deadline.

But Republican lawmakers began the year talking about a bicameral goal to overhaul the Communications Act, which House leaders had set up with stakeholder feedback to white papers all throughout 2014. They talked about advancing possible bipartisan net neutrality legislation to codify rules and avoid Communications Act Title II reclassification of broadband. They talked about wanting to reauthorize the FCC for the first time since 1990 and overhaul the agency’s processes. Senate Commerce Committee Chairman John Thune, R-S.D., in January promised a continued focus on video policy overhaul, citing his broadcast a la carte proposal from the previous year known as Local Choice. Little action followed.

“Net neutrality kind of derailed a lot of that,” Thune told us recently about his first year as chairman and the lack of action on a telecom rewrite or video legislation. “But we’re making some headway on the spectrum bill. We’ll get that done next year. And then we’ll see where we go from there. We’re still in discussions on some net neutrality rules. Of course, the court’s action on that bears pretty heavily on what might ultimately happen legislatively, but we feel like there’s still an opening there and hope we can get to a place where we can actually do something that takes it out of the courts.”

House lawmakers cleared the FCC Process Reform Act this fall by voice vote, but it hasn't advanced in the Senate. Both the House, in a 411-0 vote in February, and the Senate, by unanimous consent in June, approved the FCC Consolidated Reporting Act, but that measure isn't signed into law. Commerce Committee lawmakers ended the year focused on proposals to ease broadband deployment and clear more spectrum, but none of those packages cleared committee in either chamber.

'Easy To Be Negative'

The record inspired some disappointment from those in the telecom space, but others saw encouraging signs. An NTCA spokeswoman pointed to the more than 170 lawmakers pressing the FCC this year on USF overhaul, a key lobbying priority for the group.

“It’s always easy to be negative,” said Telecommunications Industry Association Senior Vice President-Government Affairs James Reid, who was chief of staff to ex-Sen. Jay Rockefeller, D-W.Va. “You always try to start the year big” and then see “what you can achieve.” But for TIA members, “2015 was a good policy year,” on par with productivity in similar past years, said Reid. His members find “heartening” the increased focus on broadband connectivity and additional spectrum for the private sector, he said. There was “probably less a focus on media issues” in 2015 than in years past, possibly due to lawmakers feeling “worn down” by battles among broadcasters and programmers and cable operators and with less of an ability to find legislative consensus, he said. Lawmakers “always prefer legislating,” Reid said of the congressional pivot to spectrum and broadband deployment. “I think they stuck to areas where they can legislate.”

“Local Choice, going into the new year, we had high hopes that would be reintroduced,” said ITTA Vice President-Legislative Affairs Paul Raak, describing disappointment in lack of video policy activity in 2015. “One of the areas where we had hoped to see improvement was video.”

“A lot of the party divisions really took a toll,” said Multicultural Media, Telecom and Internet Council Vice President Nicol Turner-Lee, calling 2015 “a roller coaster” where each party was on its “own separate ride.” She called the abandonment of a telecom rewrite “pretty disheartening” and said that might have provided answers to many unresolved policy questions. “The net neutrality issue clearly was on the mind of members of Congress this year,” with a lot of attention on “preserving perspectives” rather than reviewing through the broader ecosystem, she said, mentioning congressional focus “on whether the FCC was doing a good job.”

“It's disappointing that for all the talk of bipartisan agreement on various telecom issues, precious little made it over the finish line this year,” said Information Technology and Innovation Foundation telecom policy analyst Doug Brake. “In no small part, the blame falls on net neutrality and the FCC's controversial decision to resort to Title II. Had the FCC chosen a bipartisan route, there would have been more oxygen for other issues.”

Congress “didn’t do much,” said Free Press Policy Director Matt Wood, criticizing lawmaker “grandstanding” on net neutrality and dismissing the GOP attempt to legislate on net neutrality this year. “The current chairmen of these committees like cavalier talk about blasting away the bedrock nondiscrimination and consumer protection principles in Title II -- even as broadband competition dwindles, prices rise, and unreasonable terms like Comcast’s indefensible data caps proliferate,” Wood said. “I often wonder if members who rail against red herrings like the evils of rate regulation and so-called utility style rules do the same song and dance when they’re at home.” He said measure to grandfather JSAs was “an embarrassment” and lawmakers on both sides of the aisle seemed to “care more about broadcasters' bottom lines than they do about quality journalism and diversity of viewpoint.”

“On the plus side, I’d credit both sides of the Hill with making some progress in advancing useful spectrum legislation, even though no bills were enacted,” said Free State Foundation President Randolph May. “Because of progress made this year, the stage is set for Congress to do that on a bipartisan basis in 2016. On the minus side, it is disappointing that the Senate didn’t pass the permanent in Internet tax ban, but at least it extended the moratorium.”

TIA’s Reid said Congress accomplished a lot, pointing to actions beyond pure telecom measures, such as the R&D provisions in the year-end tax package, ITS provisions in the highway bill that have implications for connected vehicles and the enactment of “fast track” trade legislation to help advance the Trans-Pacific Partnership and its telecom provisions. The 30 MHz in the budget deal was “not inconsequential” and something to discount, he argued. “In the grand scheme of policy making, 2015 goes down as a pretty good year for the communications sector,” he said.

A Busy 2016?

Senate Commerce “got really very busy with the transportation space,” Thune said of his chamber’s 2015 dynamics. “And we’ve done a few things, I mean, smaller items -- the Consumer Online Review Act.” That measure, S-2044, passed the full Senate in December. He also pointed to the JSA rider included “in the omni” funding bill.

Senate Commerce Committee ranking member Bill Nelson, D-Fla., and his staffers negotiated with Thune without consensus on some of these telecom measures, including more than a year of talk on net neutrality legislation and also months of debate on a draft FCC reauthorization bill from Thune, which incorporates certain FCC process overhaul provisions.

These issues are “thorny,” Nelson said in an interview about the struggle to find middle ground. But he expressed satisfaction with the overall Commerce Committee record. “John Thune has been a very good friend and legislative partner to try to work through any issue in a bipartisan way,” Nelson said, citing examples of collaboration outside the telecom space. “Another example: how Thune and I continue to work on Internet neutrality. … In a year that we’ve never seen such contentiousness, partisanship, lack of respect and lack of being ladies and gentlemen, on the Commerce Committee it’s been exactly the opposite. Respect, bipartisanship, total respect for your fellow human beings on the committee, and it’s worked that way, as well as the staff working together.”

Thune anticipates ongoing attention to priority issues that didn’t advance this year, he told us. He has led efforts to negotiate a spectrum and broadband package known as Mobile Now, which he hopes to mark up as soon as January, after original plans for November markup. Free Press’ Wood was dubious of that effort: “The spectrum legislation moving ahead now is not a total disaster, but from what little I’ve seen of the details it continues to place too high a priority on clearing and auctioning -- all while AT&T and Verizon posture and threaten to not even participate in the incentive auction, when the mood strikes them -- while de-emphasizing the kind of shared and unlicensed uses that drive economic growth and technological leaps forward,” Wood said.

“I still have hopes that we can get to FCC reauth, and maybe something on net neutrality, for sure something on spectrum,” Thune said. “It will be busy next year. It’s not that we haven’t been active -- we’ve been very active, as you know. We’ve had a number of hearings on those subjects and a few small legislative victories, but hopefully there will be more to come next year.”

Window of Opportunity

Others agreed 2016 may still feature Hill action. “There’s a window of opportunity to move things” from late January through the Easter recess, TIA’s Reid said. For a package of spectrum and broadband deployment measures to move on the Senate floor, “it would really need to be ready to go” by early February, he said, which would mean resolving the ongoing negotiations with the Department of Defense on national security concerns and others on unlicensed provisions by then. If resolved, “then you have a window,” although movement for anything becomes harder closer to the election, Reid said.

“We’re optimistic that we can continue to push for more video hearings and ultimately legislation on video reform,” Raak said of 2016. Overhaul is “needed in the video marketplace” and there’s “certainly bipartisan” backing for it, he added, mentioning the collaboration between House Communications Subcommittee ranking member Anna Eshoo, D-Calif., and House GOP Whip Steve Scalise, R-La.

“Looking at the bigger picture, in 2016 I’d like to see the Senate Commerce Committee conduct some hearings or roundtables, and solicit some comments, to prepare the ground for updating the Communications Act in 2017,” May said, noting House lawmakers are “further along” due to 2014 groundwork laid by House Commerce Committee Chairman Fred Upton, R-Mich., and Communications Subcommittee Chairman Greg Walden, R-Ore. “I understand that conditions won’t be ripe in 2016 to actually get the job done, but I’d like to see more preparatory work accomplished.”

“You can’t really do a rewrite until you know how the court is going to rule,” Reid said, referring to the industry challenge to the FCC’s net neutrality order before the U.S. Court of Appeals for the D.C. Circuit. “It depends on what the court decides to do.”

“At least reopen the debate,” said MMTC’s Turner-Lee of the telecom rewrite, hopeful of a resumed dialogue to set the stage for 2017. She sees the first quarter as critical for addressing “low-hanging fruit” like spectrum and broadband measures. “I want to say that I’m optimistic, but I can’t really say that,” she said. She hopes Congress will do a better job of considering media ownership concerns this year, citing the December resumption of a House media ownership hearing that had lasted under 15 minutes. In the telecom space, “our issues are going to ride with the general wave of party politics,” she said, fearing the polarization of the White House race. “Without big leverage, I think we will see similar activity to what we saw in 2015.”

Nelson expressed willingness to negotiate. “You’ve got to have two to tango, and Thune and I have been trying to tango to get something done in a bipartisan way,” Nelson told us.