Congress Likely to Take on FCC Oversight, Retrans Hearings Upon Return

The House Commerce Committee will attempt to move a rural call completion bill and the Anti-Spoofing Act (HR-2669) through committee in September, a GOP committee aide told us. Senate Commerce is also hoping to initiate hotline consideration for the FCC Reauthorization Act (S-2664) and the American Innovation and Competitiveness Act (S-3084) while working to end the Democratic holds on the Mobile Now spectrum bill (S-2555), a telecom industry lobbyist said. Industry officials say the Senate Homeland Security Permanent Subcommittee on Investigation began reaching out this month on its expected fall retransmission consent hearing.

These are some of the many items Congress faces, a full plate for its return after Labor Day, with questions about what telecom and media policy objectives lawmakers can achieve in the handful of legislative days in September and the possible lame-duck session following November elections. They have been gone for a seven-week recess since mid-July. None of the actions has been scheduled, but tentative planning is underway. Congress won't be in session in October.

One possible high-profile hearing next month could be a look at retrans and programming costs. Spokespeople for the Senate Permanent Subcommittee on Investigation leadership wouldn’t confirm whether such a hearing is in the works but subcommittee ranking member Claire McCaskill, D-Mo., told reporters in June that a follow-up hearing to PSI’s initial pay-TV inquiry was likely poised for fall (see 1606230061). The focus would be “the content part of this, the programming costs, the retransmission costs” and involve “the investigation into content and programming cost and how that is getting passed on to the consumer and people who are being force-fed sports when they don’t want it and what that’s costing consumers,” she said then. PSI previously issued a news release saying its pay-TV investigation would conclude in September.

Industry officials told us PSI is preparing for this next hearing now, an effort driven by McCaskill staffers, and may bring in officials after Labor Day. The effort involves over-the-top and how to access content over the internet without a standard pay-TV subscription, one industry official said. A broadcast lobbyist said the outreach includes the programmer side.

Kelsey Smith Act

Capitol Hill staffers and industry lobbyists also wonder about such legislation as the Kelsey Smith Act (HR-4889/S-2770), what could happen on the FCC renomination front, the imminent Sept. 30 government funding expiration deadline and the slate of possible final hearings that may fall.

The Kelsey Smith Act faltered in both chambers earlier this year but few backers have said the effort to pass the bill is over. “I hope so,” House Communications Subcommittee Chairman Greg Walden, R-Ore., told us in July of the prospects of the measure coming back for a House floor vote this year. “There are ongoing discussions about all of that and where it might lead. I certainly hope so. I think there’s a way to get this done that sort of takes the state rights’ piece but extends the safety elements of this nationwide, but we’re not there yet.” Some Democrats and Republicans opposed HR-4889 over what they called insufficient privacy protections when GOP leadership brought the measure for a failed floor vote of 229-158 in May under suspension of the rules, which requires a two-thirds vote for approval. “We had a majority on the floor but we didn’t have the two-thirds,” Walden said. “There are discussions going on.”

Senators’ attempt for compromise fell short, too. The Senate Commerce Committee originally planned to mark up S-2770 in June but yanked the measure due to concerns raised by the Kelsey Smith family and what was seen as need for further vetting by law enforcement (see 1606280072).

Sen. Pat Roberts, R-Kan., the sponsor in the Senate, is still working with Sen. Richard Blumenthal, D-Conn., and others “to find a way forward with the Kelsey Smith Act in the Senate,” a spokeswoman told us Monday. “We aren’t sure about timing or any specifics as far as during the next work period goes.” Roberts isn't a member of Commerce but Blumenthal is. The Kelsey Smith Foundation, run by the Smith family, didn’t comment.

Senate Stall

Other unfinished business involves the stall on the Senate floor emanating from a fight over an FCC commissioner renomination. Industry lobbyists widely believe little movement will happen on this front during September, saying any action would occur during the lame-duck session at year’s end.

Minority Leader Harry Reid, D-Nev., is stopping the Commerce Committee’s Mobile Now and likely soon the FCC Reauthorization Act measures -- bills that lack precise House companions and with prospects seen as increasingly slim (see 1607010047) -- on the floor due to the GOP holds preventing reconfirmation of Commissioner Jessica Rosenworcel, a Democrat. She will have to leave the commission if Congress doesn't act this session. Senate Commerce Committee Chairman John Thune, R-S.D., told us he suspects Rosenworcel will be reconfirmed eventually, possibly in a year-end package of nominees (see 1604210066). Senate Democrats already consider Rosenworcel to have been informally paired with GOP Commissioner Mike O’Rielly, who was reconfirmed at the end of last Congress after a private Senate leadership deal. The term for Commissioner Ajit Pai expired in June, but the White House hasn't renominated Pai, a Republican, for another. Pai would be able to serve a year into the next Congress absent any administration or congressional action.

No one sees the FY 2017 telecom and media appropriations riders coming into play until later this year or next when appropriators may struggle to cobble together an omnibus funding package (see 1606210062). Both bicameral media policy riders address FCC topics now changed by recent circumstances. One rider would clarify the FCC can't crack down on broadcaster joint sales agreements through the transaction review process. But it addresses 2014 limits that were vacated this summer by the 3rd U.S. Circuit Court of Appeals, since restored as part of an FCC media ownership order being approved 3-2 (see 1608110058). That order would prevent any transaction review crackdown of JSAs until a 2025 unwinding deadline. The other rider would force further study of the FCC’s set-top box NPRM before implementation, but Wheeler is now pressing a modified set-top proposal this month following widespread criticism (see 1608180062).

Observers widely believe Congress will pass a short-term continuing resolution to fund the government by the Sept. 30 deadline, but the timing for a CR is under ongoing debate. A CR would preserve current FY 2016 funding levels for the FCC, FTC and other agencies.

Rep. Bobby Rush, D-Ill., told us earlier this month that starting in the September work period, he plans to convene a meeting with “various stakeholders” on how to best rewrite the 1996 Telecom Act (see 1608080022). Several lawmakers said there may be room to resume an overhaul effort next Congress.