2016 Hill Agenda May Feature FCC Reauthorization, Broadcast Exclusivity, Spectrum, Counsels Predict

Quinalty wouldn't commit to inclusion of Senate Commerce Committee Chairman John Thune’s Mobile Now spectrum package on the Commerce Committee’s Dec. 9 markup agenda. “We will” mark up Mobile Now next week if possible but “very soon” if not, and he is “pretty confident” of it by sometime in January, Quinalty said of the pending markup, also expected to include a vote on the renomination of Commissioner Jessica Rosenworcel. Thune, a South Dakota Republican, circulated at least two Mobile Now drafts in November and initially had scheduled a November markup for the bill.

Thune and other senators have also “expressed an interest in exploring legislation” following up on a broadcast exclusivity letter sent by Thune, Senate Commerce Committee ranking member Bill Nelson, D-Fla., Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and ranking member Patrick Leahy, D-Vt., to FCC Chairman Tom Wheeler urging him not to kill the broadcast exclusivity rules, Quinalty said. That’s “an area where we may move to consider legislation next year,” some measure that’s “narrow and targeted” but “ripe for discussion,” he said. Wheeler’s response said the exclusivity rules would be considered as part of the FCC’s retransmission consent proceeding (see 1511240061).

Quinalty also committed to FCC reauthorization legislation, an unreleased draft of which this year involved much of the FCC process overhaul provisions found in other bills. “That’s something we hope to take up next year and work on next year,” Quinalty said, saying the measure may involve parts of FCC process overhaul legislation from Sen. Dean Heller, R-Nev. The House recently approved by voice vote the companion FCC Process Reform Act. Thune had produced a draft by June but Nelson staffers were seen as reluctant to negotiate on net neutrality and FCC reauthorization simultaneously, which Nelson himself told us this fall. Thune’s office doesn’t see FCC reauthorization as “punitive or partisan,” Quinalty said. “It’s actually the oldest expired reauthorization in our entire jurisdiction.” The agency hasn’t been reauthorized by Congress since 1990.

Net Neutrality Negotiation

Quinalty and John Branscome, senior communications counsel working for Nelson, said Thune and Nelson’s offices still want a net neutrality compromise bill, negotiating that’s extended through the past year. “Our bosses probably think we’re closer than we’ve ever been,” Branscome said. They're “working hard,” agreed Quinalty, on “rules to protect the open Internet” codified in legislation. “A Title X, as Sen. Nelson puts it.” The senators are fairly “optimistic,” Quinalty said.

No equivalent negotiation has taken off in the House, despite entreaties at the year’s start from Commerce Committee Republicans to Democrats. House Commerce Committee ranking member Frank Pallone, D-N.J., is open to legislation but he supports the order, his counsel David Goldman said. “The politics in the House right now is we have to watch and see what happens in the court.” One “happy” outcome would be if the U.S. Court of Appeals for the D.C. Circuit, which holds oral argument in the net neutrality challenge Friday, upholds the order, Goldman said: “We think that’d be a great result.” Branscome said legislation would have to fully protect consumers and FCC authority and called the Title X approach “a way to sort of move beyond the rhetoric of Title II that has dominated so much of this debate on the Hill.” Branscome also expressed interest in the court challenge, saying some of “us” will be there during oral argument. “Betting on how the D.C. Circuit is going to rule is a sucker’s bet,” said David Redl, counsel to House Communications Subcommittee Chairman Greg Walden, R-Ore., and House Commerce Committee Chairman Fred Upton, R-Mich. Walden told us this week he’s open to appropriations riders to curb the net neutrality order, while Thune actively pressured appropriators to avoid such riders due to his legislative negotiations (see 1512020056).

T-Mobile’s recent Binge On offering is a great example highlighting FCC uncertainty, Redl said. He questioned ambiguity House Republicans see in FCC enforcement and the net neutrality order’s “Mother, may I” dynamic, as he framed it. “And we saw the FCC chairman come out and say ‘yes you may for now,’” Redl said of Binge On. “That’s a problem for my bosses. … We’ve said this is one of our biggest concerns with Title II.” T-Mobile should not have to “make that determination” of whether such a program is permissible, Redl said: “They shouldn’t have to wonder is this going to be OK now? Is this going to be OK in 2017, when perhaps we have a new chairman?”

Thune’s office is starting to hear private conversations “where companies have some innovative pro-consumer ideas that they’re unwilling to bring to market” due to possible political and “regulatory backlash,” Quinalty said. “Some of these ideas may end up flourishing in Europe.” Redl also questioned some fines the FCC has proposed, “big enough to bankrupt” companies and issued when the authority to do so is in question. The size compels settlements, “something less than the crazy amount that they put" in the notice of apparent liability, Redl said. “This is a big concern for my bosses.”

Nelson believes in strong and fair enforcement, Branscome said. Pallone sees a virtue in FCC and FTC complementary enforcement of privacy violations, Goldman said. Redl hopes Wheeler kicks off his privacy rule commitment next year with a notice of inquiry rather than enforcement actions. “We would expect them to do a proper rulemaking,” Redl said. He also questioned the FCC Downloadable Security Technical Advisory Committee (DSTAC), created by last year’s satellite-TV reauthorization, for potentially examining a broader swathe of video issues under Communications Act Section 629. “From our perspective, having worked on all that text, the statute is clear on what it instructs the DSTAC to do,” Redl said. “From our perspective. that wasn’t the job of the DSTAC.” It’s “not the appropriate venue” to raise the issues beyond downloadable security, he said.

'Same Direction' on Spectrum

Spectrum legislation is a part of what Redl said was a staffer focus on “working on policies that transcend the open Internet debate.” The House Communications Subcommittee approved broadband deployment and federal spectrum legislation Wednesday (see 1512020051).

“It’s safe to say both committees are going in the same direction,” Quinalty said of Senate efforts involving Mobile Now, which contains similar spectrum and broadband deployment proposals. Lawmakers have yet to decide whether Mobile Now may incorporate some of the House proposals or whether both chambers could advance their separate efforts and then see about “combining them at some point in a conference-esque setting,” Quinalty said. He lauded the “novel” proposals in the Mobile Now drafts and said staffers are assessing “which of those can get broad consensus support throughout the committee” and among stakeholders and administration. NTIA’s intervention last month was one key reason Senate Commerce postponed consideration of Mobile Now (see 1511160060). Quinalty referred to the Department of Defense as a “major stakeholder” in negotiations. Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, “has an unlicensed bill that I think contains some good ideas that we might be able to work with them on,” Quinalty said.

Branscome cautioned of “tension” between licensed and unlicensed users and said Nelson wants to ensure that nothing “inadvertently compromises” progress in the private sector regarding spectrum or any spectrum provisions in the recent budget deal. Infrastructure proposals are also crucial, Branscome added, saying dig once makes “infinite sense.”

“We certainly have heard from a number of federal agencies when it comes to repurposing or opening up federal bands,” Quinalty said. “Money is a concern. It’s not the only concern. With the Department of Defense, it’s often operational issues as well.” Goldman and Redl cited problems with how the Congressional Budget Office scores spectrum legislation. Pallone doesn’t want to be “hamstrung by that” and sees value in advancing spectrum legislation beyond when lawmakers are “trying to find a way to pay for things,” Goldman said.