Congress Likely to Advance STELA Reauthorization in Bigger Fiscal Package

STELA expires Dec. 31, leaving few legislative days to reauthorize it during the lame-duck session. Congress doesn't return until after the November midterm elections. Both the Senate and House versions of the legislation include limits on broadcaster sharing agreements and repeal of the integration ban, provisions far closer in substance than they once were.

Lawmakers will ram a proposal through Congress attached to a spending bill, lobbyists said. One media industry lobbyist told us she strongly suspects House lawmakers will put their House-approved STELA reauthorization bill or a similar reauthorization proposal onto the continuing resolution or the omnibus spending bills, and another communications industry lobbyist pointed to the same two legislative vehicles. A broadcast industry lobbyist agreed STELA reauthorization will end up attached to a fiscal vehicle but is not sure it would be the House version. The communications lobbyist sees two paths -- either two Senate Democrats resolve a fight over the integration ban and advance the Senate measure by unanimous consent, or the two chambers resolve STELA legislation differences in informal conferencing and advance a bill through the omnibus or continuing resolution.

Senate and House staffers have not begun any formal sit-down to hash out STELA but have communicated, at least once apparently, shortly into recess, the broadcast lobbyist said. But he does not believe they’ve delved into the substance of reconciling legislative texts. Senate and House committee spokespeople would not confirm any details about informal STELA reauthorization negotiations. A Republican Senate staffer told us last month there’s no need to wait for Senate passage of a STELA bill to start negotiations with House staffers.

Rockefeller-Markey Dialogue?

Last month’s failed Senate hotline generated significant buzz among industry lobbyists and observers amazed at the sharpness of the conflict between two key veteran Democratic lawmakers. Sen. Ed Markey, D-Mass., objected to Sept. 18 STELA reauthorization unanimous consent effort due to its repeal of the integration ban. He had offered and withdrawn an amendment modifying that bipartisan provision during a Senate Commerce Committee markup the previous day. Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., had pledged to Markey that he would work with him on the provision before any proposal reached the Senate floor and then proceeded to pursue a unanimous consent vote less than 24 hours later. On the day of the hotline attempt, Rockefeller sharply derided Markey in comments to us.

Rockefeller and Markey’s offices are now trying to work out some compromise, one Democratic Senate staffer confirmed to us this week. Lobbyists could not say such dialogue is happening, although one said she would be surprised if it weren’t. It’s possible the Senate will still approve its measure, the staffer said, although he suspects the odds are higher that there’s eventually a relatively clean STELA reauthorization that winds up attached to the continuing resolution or the tax extenders package. The cable industry had heavily lobbied all offices on the integration ban, the Senate staffer said. If Rockefeller and Markey come to an agreement, the broadcast lobbyist believes the Senate will try to hotline the proposal again for a unanimous consent vote during the lame-duck session.

Senate Commerce had also considered pursuing a unanimous consent attempt without the integration ban repeal. There was “some staff-level discussion” about that avenue on Sept. 18, which would have sidestepped Markey’s hold, a committee aide told us. But the “decision was made to not run such a hotline because we believed it would draw opposition from members who were otherwise supportive of the Commerce and Judiciary reported package -- not to mention the fact that less than 24 hours earlier, the Commerce Committee reported the [Satellite Television Access and Viewer Rights Act (S-2799)] bill with the set-top box provision and no senators sought to force a vote on that provision,” she said.

Senate Commerce Committee ranking member John Thune, R-S.D., “did not need to put a hold on a stripped-down version,” given the decision not to hotline the alternative STELA reauthorization proposal, the aide said. Thune and Rockefeller together wrote that bill. Industry lobbyists told us Thune is the driver behind the integration ban repeal, a priority NCTA strongly backs.

“Everything is trying to work it out with Thune,” Rockefeller told us at the Capitol last month when asked about why none of his online video distributor proposals ended up in STELA reauthorization.

Consumer Advocate Concerns

Consumers Union, Free Press, Public Knowledge and TiVo oppose the integration ban repeal. TVFreedom, a broadcaster coalition including NAB, “remains committed to fighting for legislative proposals that will free pay-TV subscribers from the estimated $7 billion they now pay annually in excessive equipment rental fees,” its spokesman told us, praising Markey’s advocacy for consumers.

“That would be a shame” and “really unfortunate” if lawmakers tried to “sneak” the integration ban repeal past consumers by attaching it to the continuing resolution or another major vehicle in the lame-duck session, Public Knowledge Vice President-Government Affairs Chris Lewis said. “We’re making our case to members’ offices.” It’s now “a full Senate issue,” he said, hopeful that STELA reauthorization will not default to the legislation that the House approved.

One media industry lobbyist and the Democratic Senate staffer chalked up the Markey-Rockefeller fight to confusion. Perhaps Rockefeller was simply trying to show political politeness to Markey during the markup session, which Markey misunderstood, one lobbyist said. Another lobbyist said Rockefeller must have felt there was an agreement that Markey had missed. One lobbyist said the Senate version of this provision is more moderate than what passed in the House, attributing that shift to perhaps the influence of Rockefeller. The communications industry lobbyist suspects the most likely scenario is the Senate and House simply try to reconcile their bills, which have similar integration ban provisions -- the Senate version would repeal it in two years versus the House version repealing it immediately. Lobbyists were sympathetic to Markey, suspecting his stand was one of principles and judging him an eloquent advocate during the markup. The question is how far Markey will push his objections.

In the House, Communications Subcommittee ranking member Anna Eshoo, D-Calif., had initially voiced integration ban repeal concerns. She ultimately assented to the House STELA reauthorization that included it. Her office declined comment.

Not all lobbyists believe the STELA reauthorization will be for five years, as all Senate and House bills outline currently. One media industry lobbyist argued that if this Senate fight continues, STELA reauthorization may end up clean and only renewed for one to two years. He pointed to Thune’s never-offered amendment for shorter STELA reauthorization. This scenario would be ultimately worse for broadcasters, exposing them to video law overhaul in a much more dramatic fashion once that shorter renewal ends, the lobbyist argued. Another lobbyist scoffed and insisted it will absolutely be a five-year reauthorization. But the Senate Democratic staffer confirmed that there’s a rumor circulating that a clean STELA reauthorization would be cut down to a two-year reauthorization, ensuring that the next chairman of Commerce would have committee leadership reins when its expiration comes. Chairman Rockefeller is retiring at the end of this session of Congress. That shorter reauthorization would be “unfortunate for the satellite industry,” Lewis said, saying Public Knowledge would be “fine” with indefinite reauthorization.

Markey’s STELA reauthorization hotline hold was the only one representing “substantive concerns," but there were others, the Senate committee aide confirmed. The other holds were from offices “simply seeking to review the bill before clearing it,” the aide said.