Little 2020 Progress Seen for Post-STELA Media Policymaking, Despite Lawmakers' Interest

Lobbyists and others we spoke with doubt Hill lawmakers will have enough will in the new year to legislate on media items, given larger political dynamics and perceptions that enactment of HR-1865’s STELA language took away the main vehicle for moving on matters like retransmission consent. Lawmakers drew HR-1865’s STELA text from the House Commerce Committee’s Television Viewer Protection Act (HR-5035) and a modified version of the House Judiciary Committee's Satellite Television Community Protection and Promotion Act (HR-5140), which together make major parts of the law permanent. The law includes a permanent, scaled-down version of STELA's distant-signal compulsory license.

“This sets the stage for maybe modernizing” the “entire video/television landscape” beginning in early 2020 on a scale that’s “more comprehensive” than Congress was able to achieve via the STELA renewal process, Senate Commerce Committee Chairman Roger Wicker, R-Miss., told reporters shortly before the winter recess. “No one is entirely happy” with the final language but on balance it’s “a fair piece of legislation” and “most people can live with it.”

“I think we should start” thinking about how to proceed on the media legislative revamp over the recess, while momentum remains from the STELA process, Wicker said. “There’s hardly anybody who thinks this is the way the [media] landscape should look for the next decade or two.” He proposed a wider-scale 2020 media policy revamp in November in an unsuccessful bid (see 1911130055) to persuade reluctant Senate Commerce members to back advancing his Satellite Television Access Reauthorization Act (S-2789). That bill would have reauthorized all of STELA through the end of 2024 and didn’t address other matters (see 1911060043).

House Communications Subcommittee Chairman Mike Doyle, D-Pa., told us he’s also eyeing ways to tackle broader media policy issues, as he outlined during an end-of-year House Commerce news conference. “I’ve met with” House Communications Democrats “and asked them to submit to me the things they’d like to see the subcommittee work on in 2020,” including media consolidation and diversity, Doyle said. “When we get back in January … we’ll start to think about what the schedule’s going to look like.”

'Realistic' Expectations

Senate Commerce ranking member Maria Cantwell, D-Wash., and Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, told us they would like the committee to devote more time in 2020 to media policy, given their dissatisfaction with the relative lack of attention those items received during the STELA recertification process. “It’s a changing marketplace,” Cantwell said. “We need to ensure the laws are protecting consumers and ensuring there’s enough competition.”

“I think it’s realistic” for Senate Commerce to pursue a post-STELA look at media issues, but it’s “not realistic” to expect legislation on that matter or others to advance “until we’re done” with the chamber’s to-be-scheduled Trump impeachment trial process, Schatz said. “I think there’s an opportunity to legislate” on many communications policy matters, but “we have to have the will” to do it and it’s not clear that's possible. He cited “diversity in media ownership” as a top focus if Senate Commerce decides to hold related policy hearings. Schatz noted diversity concerns during a June STELA-related hearing (see 1906050083).

Rep. Anna Eshoo, D-Calif., told us she’s among those seeking to address additional media items in 2020, though noting the STELA renewal text incorporated amended language from her Truth-in-Billing, Remedies and User Empowerment over Fees (True Fees) Act (HR-1220). That bill’s language will let customers end contracts with providers without early termination fees if the provider increases prices. The STELA text also lets small MVPDs collectively negotiate for retrans using a qualified buying group.

“I certainly hope” House Commerce will take up other media legislation in the new year, including the Modern Television Act (HR-3994), Eshoo said. That bill would repeal parts of the 1992 Cable Act, including retrans rules (see 1907290053). Eshoo and House Minority Whip Steve Scalise, R-La., unsuccessfully pushed to attach HR-3994 to a STELA renewal package. “I think we have the capacity to have” a broader discussion that wasn’t possible during the recertification debate, Eshoo said. Doyle confirmed Eshoo submitted her House Communications legislative priorities.

House Commerce ranking member Greg Walden, R-Ore., said he’s “always open” to talking about media issues, noting “we always have an obligation to look at legacy regulations that are unfair to the incumbent.” Broadcasters achieved a big win with the STELA language because Congress didn’t push for “some big legislative effort” to use it to address retrans rules, he said. “When you look at the revenues that broadcasters make on retransmission consent agreements, that’s a huge underpinning of their cash flow now, which allows them to do everything they do in the community.” If “I were a broadcaster, I’d be pretty happy” with the new STELA text, Walden said.

'Anyone's Guess'

“I think there’s appetite to get further reforms through” in 2020 given the interest shown by Wicker and some Democrats, but it requires a viable legislative vehicle, said Public Knowledge Senior Policy Counsel Jenna Leventoff. “It’s anyone’s guess” what avenues will be available to legislate because STELA has long been the “most obvious vehicle” for advancing other media issues. PK believes the renewal language is a “huge win for consumers” because of the addition of the HR-1220 text, permanent extension of the good-faith negotiations rules and other provisions, Leventoff said. “There’s something for everyone,” contrary to some observers’ view that the narrowed distant-signal license meant broadcasters benefited most from the final measure.

R Street Institute Tech Policy Manager Tom Struble doesn’t “realistically expect much of anything” legislative to get through Congress in 2020, especially while the impeachment trial process grips the Senate. “I’d be very surprised if they can pass” a media policy bill given both rancor over impeachment and the 2020 presidential campaign cycle, he said. “Getting something done and engaging in the debate are two very different things,” a media lobbyist said. It’s “going to be difficult to get a post office named after George Washington through Congress” during an election year. “You’ve got bipartisan” interest, particularly from Eshoo and Scalise, but “I don’t think there’ll be a change in law” on retrans any time soon, the media lobbyist said.

There's “a decent prospect” for lawmakers to get part of the way toward a comprehensive bill because broadcasters, cable companies and other media stakeholders “have things they want that can only be done through Congress,” Struble said. He noted broadcasters may want lawmakers to address the FCC’s authority on media ownership rules following the 3rd U.S. Circuit Court of Appeal's fall Prometheus IV decision (see 1909230067). Other stakeholders also “have a lot of issues they still want” lawmakers to include in any post-STELA legislation, many of which are tackled in HR-3994, Struble said.

Officials will continue to be interested in seeing whether AT&T's DirecTV will be able or willing to comply with part of the STELA renewal text that requires satellite providers using the distant-signal license to serve all 210 designated market areas (see 1911180014), Struble said. Lawmakers repeatedly raised concerns amid the STELA debate about the 12 markets where DirecTV provides limited or no access to locally broadcast networks' stations. AT&T says the markets have access to local stations' terrestrial signals.

Others contend broadcasters’ ability to persuade lawmakers to narrow the distant-signal license’s scope likely means they would be able to forestall any near-term attempt to address retrans or other media issues not favorable to the industry. There was already “no way” either chamber could advance further media legislation “in the middle of an election year,” but the broadcasters' lobbying win makes that even tougher, one communications sector lobbyist told us. The term “‘video marketplace’ is code for looking at” a retrans revamp, something that's not on broadcasters' legislative wish list.