This Changes Nothing; This Changes Everything

Submitted on November 11, 2016

You’re reading the Benton Foundation’s Weekly Round-up, a recap of the biggest (or most overlooked) telecommunications stories of the week. The round-up is delivered via e-mail each Friday; to get your own copy, subscribe at www.benton.org/user/register

Robbie's Round-Up for the Week of November 7-11, 2016

Expecting, perhaps, a wave of new Members of Congress, we had an eye on the elections of Members of key Congressional committees with jurisdiction over telecommunications. We found, again, however, that most Members will be returning for another 2 or 6 years. But, this time, to an entirely different political landscape.

Stymied by the threat of Presidential veto for the last few years, Republicans in Congress have a pent up agenda. Network neutrality, Federal Communications Commission process reform, and maybe even a Telecommunications Act rewrite are all on the table. Here’s a look at what well could be the telecommunications agenda in the 115th Congress -- and who’s in charge of that agenda. [Reminder: We outlined a comparison of tech plans between Hillary Clinton and Donald Trump in our article, Clinton Puts Forth a Tech Plan. Trump Doesn’t.]

Leadership Positions
At Headlines, we keep a close eye on two key Congressional committees because of their jurisdiction over many telecommunications issues and oversight of the Federal Communications Commission: 1) the Senate Commerce Committee and 2) the House Commerce Committee's Communications and Technology Subcommittee.

Sen John Thune (R-SD) will remain at the helm of the Senate Commerce Committee. According to an article by Amir Nasr in Morning Consult, Sen Thune will favor legislation to improve broadband deployment in rural and low-income areas.

On the House side, current full Commerce Committee Chairman Fred Upton (R-MI) will hit his term-limit under Republican rules, having served six years as committee leader. Reps Greg Walden (R-OR), John Shimkus (R-IL), and former Chairman Joe Barton (R-TX) are all vying for the chairmanship.

Chairman Walden also serves as the Republican Congressional Committee Chair and was praised by House Speaker Paul Ryan (R-WI) for minimizing the seats lost in the House in the 2016 election. As Chair of the Congressional Committee, Rep Walden raised money and strategized to help keep as many seats as possible. John Eggerton wrote in Broadcasting&Cable, “Walden's success could boost his chances of getting the chairmanship of the House Commerce Committee.” Mary Ellen McIntire for Morning Consult noted, “Regardless of whether Walden is chairman of the full Commerce Committee or remains a subcommittee chairman, he will likely continue to lead the committee’s tech efforts. They include rural broadband deployment, reducing phone scams through robocalls, and next-generation 911.”

As for Democratic lawmakers, there are no shakeups expected in either chamber. Sen Bill Nelson (D-FL) will remain as the Ranking Member on the Senate Commerce Committee. The committee also includes telecom policy stalwarts Sens Brian Schatz (D-HI), Maria Cantwell (D-WA), Amy Klobuchar (D-MN), Richaerd Blumenthal (D-CT), Ed Markey (D-MA), and Cory Booker (D-NJ).

Rep Frank Pallone (D-NJ) is expected to continue on as the Ranking Member of the House Commerce Committee, and Rep Anna Eshoo (D-CA) will retain the top Democratic spot on the Communications Subcommittee.

A New Tech Agenda?
Chairman John Thune (R-SD) and Chairman Greg Walden (R-OR) are expected to continue to be the “Internet Gurus” of the Congressional GOP. Here’s how the GOP-controlled Senate and House may proceed on telecommunications policy.

Communications Act Update
In a speech at the American Enterprise Institute in January of 2015, Sen Thune outlined his agenda as the then-new Chairman of the Senate Commerce Committee. One of his priorities was updating the 1996 Telecommunications Act, saying, “Updating the Communications Act is no small undertaking, but it would be a dereliction of duty if Congress did not at least try to modernize the law.” At the time, the Federal Communications Commission was fashioning network neutrality rules that relied on classifying broadband Internet access service as a telecommunications services under Title II of the Communications Act, the law which governs telephone regulation. “With the FCC poised to reclassify broadband due to a lack of clear statutory authority, we can readily see the consequences of [the obsolescence of the Telecommunications Act of 1996] and the need for action,” Chairman Thune said.

Chairman Thune then guided through the Senate a series of bills which collectively are referred to as The Communications Act Update of 2016. These bills were passed by the House in September 2016, right around the first Presidential debate for the 2016 election (How long ago that now seems). Covering the issue in September, I wrote, “Overall, it seems that [The Communications Act Update of 2016] represents tweaks to the Telecommunications Act of 1996, rather than a major update of our communications laws. A conversation about a rewrite may be looming after the November elections.” If Chairman Thune and GOP leaders are serious about a full telecom law update, they may have no better opportunity than now with control of both houses and the White House.

Net Neutrality
Sam Gustin wrote in Vice:

“Net neutrality can’t be torpedoed overnight. The FCC rules prohibiting online fast lanes and discriminatory broadband practices are now US policy, and they can’t be dismantled at the whim of an authoritarian president. But a Trump-backed, Republican-led FCC could simply stop enforcing the net neutrality policy, rendering it essentially toothless….In order to fully kill the FCC’s net neutrality protections, Trump will most likely have to work with GOP lawmakers like Sen John Thune...to re-write the Communications Act to strip out the FCC’s Title II authority regulating the nation’s largest broadband companies as 'common carriers.' Or the Republican-led Congress could simply remove funding for the FCC’s ability to enforce the net neutrality policy through language in the next must-pass budget bill, which would certainly be signed by Trump.”

On April 15, the House voted in favor of passing the No Rate Regulation of Broadband Internet Access Act (HR 2666), a bill that prevents the FCC from imposing rate regulations on broadband service. But some fear the bill goes far beyond blocking telephone-style rate regulations and guts the FCC’s authority to enforce its Open Internet rules. The Obama Administration released a Statement of Administration Policy on it, concluding that President Obama’s senior advisors would recommend that he veto the bill. Now, with Republicans controlling both chambers of Congress and the White House, it’s fair to say net neutrality will be facing an repeal effort much stronger than HR 2666.

And repeal of net neutrality based on classification of broadband Internet access service as a telecommunications service means more is at stake. Brian Fung pointed out in the Washington Post, “....because the government’s consumer privacy policies draw their power from net neutrality, they are likely to fall as well if conservatives successfully gut the rules.”

FCC Process Reform
The House passed the FCC Process Reform Act of 2015 last November, a bill sponsored by Chairman Walden, with the goal of “improving agency processes and making the commission more transparent, efficient, and accountable.” Republican FCC Commissioners Ajit Pai and Michael O’Rielly have frequently called for FCC process reform. With leadership change expected in January 2017 at the FCC under the new administration, FCC process reform is certainly expected to be on the agenda.

Broadband Expansion and Recent Agendas
The buildout of broadband infrastructure, particularly in rural America, may be a shared agenda for both sides of the aisle in the new administration. Sen Al Franken (D-MN) said that infrastrucutre, beyond roads and bridges to broadband buildouts, may be where President Trump and he can find common ground. "This is something I think we should be doing," he said. "I think I may be more in line with the new President than my Republican colleagues in the Senate and the House." Both Chairman Thune and Chairman Walden are advocates for expanding access to broadband, particularly in rural areas. Chairman Thune sponsored the Rural Health Care Connectivity Act of 2015 (S. 1916), a bill which would permit public and nonprofit skilled nursing facilities (SNF) to apply for support from the Universal Service Fund’s (USF) Rural Health Care Program (RHCP). RHCP provides funding for telecommunications and broadband services used to provide health care in rural communities.

Expanding rural broadband is also a major agenda item for FCC Commissioner Ajit Pai. In September, Commissioner Pai unveiled his “Digital Empowerment Agenda” which called for: 1) Gigabit Opportunity zones (tax incentives for Internet service providers to deploy networks and spur job growth in certain areas), 2) expanding mobile broadband, 3)removing regulatory barriers to broadband deployment, and 4) promoting entrepreneurship and innovation. I wrote at the time, “Surprisingly, just five of the 14 steps outlined in Pai’s proposals are actions the FCC could take. The main venues for changing policy appears to be Congress as well as state and local lawmakers.” We’ll be looking to see if the proposal has gained any traction with GOP leadership.

CURBing Lifeline
As you know, the Benton Foundation has been a strong supporter of the FCC’s Lifeline program. The program helps make telecommunications services more affordable for low-income consumers. Currently, Lifeline provides subscribers a discount on monthly telephone service purchased from participating providers. On March 31, 2016, the FCC approved rules to modernize Lifeline so that low-income can chose to purchase discounted broadband . Discounts will apply to stand-alone broadband, bundled voice-broadband packages - either fixed or mobile - and stand-alone voice service. These modernizations will help ensure that low-income consumers can afford 21st-century broadband and the access it provides to jobs, education and opportunities.

But now, the reach of the Lifeline program may be reduced.

Some context: On April 19, the House Communications Subcommittee marked up the Controlling the Unchecked and Reckless Ballooning of Lifeline Act (or the Lifeline CURB Act (H.R. 4884)). The subcommittee approved the bill by a final vote of 17-11 along party lines, with Republican members of the subcommittee supporting the measure.

The Lifeline CURB Act, authored by Rep. Austin Scott (R-GA), would prohibit the total amount of annual support that may be provided through Lifeline from exceeding $1.5 billion. The bill would also ban use of Lifeline support for: (1) any amount charged to a consumer for the sale, lease, or other provision of a mobile telephone or similar device; or (2) mobile service if the service offering is limited to voice communications service.

The bill passed the subcommittee after lengthy debate as it became a showdown between Republican Representatives seeking to prevent fraud, waste, and abuse and Democratic Representatives who wanted the means-tested program to have sufficient funding to assist vulnerable populations including seniors, veterans, and low-income families.

“All we’re asking for is a dose of fiscal discipline,” said Chairman Walden (R-OR) at the time. “If there’s a budget in place, the FCC will be forced to undergo a more serious examination of the problems plaguing this system.”

“We don’t like where the FCC is headed,” Chairman Thune (R-SD) said. “It seems to me at least that [a cap] was something they should have had when they considered and moved that rule through — that they ought to at least have put a budget in place so they knew what they were going to spend on this new program. Because it is something, I think, that is going to be a consideration for a lot of members of Congress, and hopefully members of Congress on both sides.”

Capping the Lifeline program aligns heavily with the Republican Party's efforts to reign in government spending, so it is possible to imagine the Lifeline CURB Act passing through Congress and getting signed by President Trump.

We'll keep you up-to-date on the 115th Congress in Headlines and through our legislation tracker.
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