House Democrats Wary of Lack of Dialogue in GOP Telecom Overhaul Effort

“No, no, no, net neutrality,” Eshoo said of Republicans’ telecom rewrite initiative. “They definitely wanted to bring it up, but they made net neutrality their top priority. No one has met with me to chat with me from the other side yet about any kind of rewrite yet.”

House Commerce Committee ranking member Frank Pallone, D-N.J., has the same concern. He has been top Democrat on Commerce since January. Communications Subcommittee Chairman Greg Walden, R-Ore., and Commerce Committee Chairman Fred Upton, R-Mich., announced the initiative in December 2013 and continued referring to the effort throughout this year.

“Updating the Communications Act is a major priority for both Chairman Upton and Chairman Walden,” Pallone told us in a statement. “So far this year, I have been able to work with the Republicans on a number of major issues across the committee. An update to the existing communications laws should not be an exception. But to get this done right, any effort must be truly bipartisan from the start.”

Dialogue between GOP and Democratic staffers was reduced this Congress on all big-ticket initiatives like the proposed Communications Act overhaul, said a telecom lawyer. The overhaul was a regular item of discussion last year. In October, Republican staffers brought in industry stakeholders for listening sessions with Democratic staffers, one instance of bipartisan outreach. In 2014, Upton and Walden collected hundreds of responses in feedback from stakeholders about overhauling the Communications Act, and GOP aides have argued that Republicans reached out to Democrats in this process. Democrats aren't trying to reach out to Republicans anymore due to partisan distrust, said a telecom industry lobbyist.

“Scant and sketchy, that’s how I would describe it,” said Rep. Bobby Rush, D-Ill., of the initiative and bipartisan outreach. “Absolutely very little dialogue, if at all. That’s the way [Republicans’] modus operandi has been during this session. They want to speak to bipartisanship but they don’t want to have [any] bipartisan input. … They want to make the point in the public but in private they don’t want to engage in it at all.”

Less Partisan?

Some Commerce Committee Republicans disagreed. “Walden and Upton want it to be less partisan and with Anna and Pallone and the new leadership team, Diana DeGette [D-Colo.], my understanding is that they’re trying to be more cooperative, so I would say it’s less partisan,” said Rep. Joe Barton, R-Texas, a former Commerce Committee chairman who tried unsuccessfully to lead a telecom rewrite in 2005 and 2006.

“We didn’t get" Sustainable Growth Rate, a healthcare legislative issue, "done being more partisan,” said Commerce Trade Subcommittee Chairman Michael Burgess, R-Texas. Commerce Oversight Subcommittee Chairman Tim Murphy, R-Pa., framed bipartisanship as “the only way to get things done,” an issue his staffers always think about: “Do you want to do a press release attacking someone or do you want to do a press release saying you fixed it?” Barton, considering their remarks, said that both Burgess and Murphy “think we’re being less partisan.” Neither Murphy nor Burgess is on the Communications Subcommittee, but Murphy has investigated the FCC with Walden and Upton.

Walden recently told us he’s now tackling the update in piecemeal fashion, title by title through the act through smaller bills, and Upton said net neutrality has hurt the committee’s ability to pursue the update. A telecom lobbyist said settling on the piecemeal approach may be about making a virtue out of a necessity. Historically, Commerce Committee lawmakers prided themselves on the potential for bipartisan compromise and consensus but that may be waning as Democrats attack GOP FCC process measures they say would hurt the agency and what they consider a partisan FCC reauthorization draft bill from Walden. FCC reauthorization is part of the Communications Act overhaul, reflecting Title I, Walden has said. Senate Commerce Committee Republicans have indicated a desire for an overhaul but have yet to take action, following the House’s lead.

“That’s harder to do, takes more time,” Barton said of the piecemeal approach, citing the committee and floor time required. With one comprehensive rewrite bill, “you only need to send one bill to the Senate,” Barton said. "It’s just more efficient but that doesn’t mean it’s better. … I take Walden and Upton at their word that they want to do it.”

Eshoo pointed to November’s midterm elections, where Republicans emerged with majorities in the House and Senate, as a possible turning point. The White House, under a Democratic president at least through the end of 2016, likely would need to sign any bigger telecom overhaul. “The best-laid plans can be set aside by other things that come up around here,” Eshoo said. “That’s not fault or blame." Walden reached out to meet with Eshoo in December before the last Congress adjourned. "I thought the meeting was going to be about a rewrite," she said. "But it was about net neutrality, that that would be the first effort of the new Congress in the new year.”

In January, Walden, Upton and Senate Commerce Committee Chairman John Thune, R-S.D., circulated a draft bill that would codify net neutrality rules while limiting FCC ability to rely on Title II of the Communications Act for broadband or the authority of Telecom Act Section 706.

“Their effort was not very well thought out at all,” Eshoo said. “It’s a march to folly to discount over 4 million Americans [the number who commented to the FCC, many backing net neutrality]. I understand being on a great high when you win. It’s the most marvelous feeling. I’ve experienced it. And now the other side experienced it, and there’s very few things that give you that kind of sense of we can do anything. And I think maybe they got wrapped up in that because around here, regardless of who is in the majority, it’s never easy to get big things done. And so while I disagree with them on the issue, as an observer, if I pull back and look from the outside the window, looking in, I don’t think so far whatever their strategy was, that it’s working.” Hill Republicans have repeatedly said they want to negotiate with Democrats on the draft bill. “That’s what they say, but their bill doesn’t say that,” Eshoo countered. “They say that they’re for correcting these things that happened in the past, but that’s not what the bill says.”

Political Complications

Circumstances aren't conducive to any overhaul measures passing, said two telecom industry lobbyists. One pointed to the various presidential candidates, several in the Senate, and a lack of consensus on many major telecom issues. He acknowledged the groundwork laid last year but suspects the Title II reclassification of broadband in the FCC February net neutrality order killed the chances of the rewrite. Industry sees the calendar and knows that no meaningful overhaul will advance now, despite optimism among some stakeholders a year ago, the other lobbyist said, describing a sense of missed opportunities this Congress, especially with legislators like Walden and Eshoo in place. The lobbyists acknowledged groundwork from this Congress may factor into efforts in the next, though one observed that any white papers and responses would need serious updating by then.

“We have to know what we’re doing, what are the goals, what’s broken that we need to fix that’s in it,” said Eshoo, who has consistently said she’s open to an overhaul. “To just go at something without having a plan and principles that will guide you is very easy to -- this could be an important effort. To have the important effort turn into chaos, or it wouldn’t be relevant. I’m not saying it can’t be done. I’m just saying that no one has sat down to talk to me about it.”

Future committee dynamics may be at play, said the two telecom lobbyists. Walden is rumored to be vying for the top Republican spot on the Commerce Committee once Upton leaves after 2016 due to term limits. The more senior Rep. John Shimkus, R-Ill., is another rumored candidate, and Walden could be touting the Communications Act overhaul to help his profile in advance of a Commerce Committee leadership battle, both lobbyists said, one guessing it would be a factor amid other more important ones in GOP leadership and the geography of lawmakers. Shimkus “is very interested in leading the full committee after Chairman Upton’s term expires,” his spokesman confirmed. The other lobbyist believes Walden is the likely choice to lead Commerce Republicans due to his fundraising role as chairman of the National Republican Congressional Committee. That lobbyist anticipated that Shimkus and House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., will likely fight to lead on the Communications Subcommittee, with Blackburn the likelier to choice to replace Walden.

Walden is focused on FCC reauthorization and agency process overhaul, which he sees as part of the act’s update. He will hold a hearing Friday that will consider measures from subcommittee Democrats, with a markup of Democratic and Republican measures expected next week. “I always want to come up with things that are bipartisan, so we’ll work hard to see if we can come up with a bipartisan package,” Eshoo said.