What fate awaits telecom reform this fall?

[Tech Daily]

With Congress now in adjournment until November, the best hope for resuscitating the most ambitious update of the nation's communications laws in a decade will come during a post-election session. Senate Commerce Committee Chairman Ted Stevens, R-Alaska, is still pushing hard to build support. "I just would never bet against Ted Stevens in the closing weeks of a session," an industry source said. "If there's anybody who knows the process and can work the process it would be him. I think it's premature for people to be eulogizing the communications bill."

Obstacles Both Procedural And Electoral

The House passed a telecom measure, H.R. 5252, in the summer, and Senate Commerce soon followed suit. Key provisions of Stevens' version would ease the entry of AT&T, Verizon Communications and other Bells into video programming and expand the multibillion-dollar universal service program to include subsidies for broadband in rural and impoverished areas. The measure has been on hold for several weeks, in large part because of a dispute over whether it should mandate network neutrality, or equal treatment for high-speed Internet content.

The odds for moving the bill now do not appear to be in Stevens' favor. The veteran lawmaker has failed to reach the 60-vote threshold needed for invoking "cloture" to limit debate, which would blunt any maneuvers designed to impede his measure.

Without those votes, Democrats would have an assortment of delaying tactics at their disposal, including time-consuming debate, repetitive quorum calls or endless amendments. Senate Majority Leader Bill Frist, R-Tenn., has indicated that he will not bring the bill to the floor unless the Alaskan can assure a supermajority.

Assuming the threshold is reached, the measure still faces a delay. Stevens, whose office did not return telephone calls for this article, must wait 30 hours to get the measure on the floor.

But an even bigger obstacle looms: the election results. The staunchest Republicans concede that the legislation's chances are dim if the Democrats retake one or both chambers of Congress, or make substantial gains without taking control. "All bets are off" during the lame-duck session under those scenarios, a Democratic Senate Commerce aide said. "I think that obviously makes it problematic because they'll want to put their own stamp on legislation -- across the board," an industry source added.

If the Democrats register only modest election gains, they could still muck up Stevens' plans by employing various tactics, such as interfering with the naming of conferees. "If the minority wanted to frustrate him, especially in the Senate where minority rights are pretty strong, there's still a variety of opportunities for them to do it," another source said.

House Democrats have yet to decide how the party would approach telecom matters if they regain control. "Whether we decide to do a comprehensive telecom bill in the next Congress is a discussion we haven't even started yet," said Rep. Rick Boucher, D-Va. He did note that "Democratic initiatives" in the House-passed proposal would be retained in any fresh legislation.

The Floor Fights To Come?

Assuming the measure reaches the floor, more hurdles await in the form of regulatory-minded amendments that the chairman and his supporters would oppose. During committee consideration in June, Sens. Olympia Snowe, R-Maine, and Byron Dorgan, D-N.D., sought unsuccessfully to bar broadband operators from potentially blocking or degrading content.

Democratic Sens. John Kerry of Massachusetts and Barbara Boxer of California also failed in their bid to require Bell companies and other cable television competitors to build out their video systems within entire communities. They and other members on and off the committee could seek to add dozens of amendments, though deals are sometimes struck beforehand to limit them.

Another option for Stevens is to attach all or part of his telecom language to an appropriations measure or other vehicle. But that path has its own roadblocks because spending bills are supposed to be free of legislative "riders." Telecom language could trigger a "point of order" -- a claim by a member that a Senate rule has been violated, sources said. If the House passes an appropriations bill containing telecom language, sources said Stevens would be in the clear, though he might not be able to control which amendments get offered.

Either way, some consider the option impractical. "You're not going to be able to just do that on the backside of an appropriations bill," another Democratic Senate Commerce aide said. Even Stevens recently discounted the idea, telling reporters that his bill would be considered "on its own merits." Nevertheless, some observers think that given his reputation as a hard-nosed appropriator, he may pursue that avenue.

Stevens may be lowering expectations. During a September hearing, he blamed controversy over the bill's largely hands-off approach to Internet regulation for delaying consideration. Critics said tough neutrality safeguards are needed to prevent companies such as Time Warner, AT&T and Verizon from acting as Internet content gatekeepers. The senator and his supporters argue that such restrictions are baseless and would hamper the ability of companies to deliver bandwidth-heavy applications, including video, to customers.

Meanwhile, the Bell companies that have lobbied fiercely for a bill may be losing their incentive after garnering franchise relief in several key states: California, Indiana, Kansas, New Jersey, South Carolina, Texas and Virginia. Bell representatives continue to insist that nationwide relief is preferable to a hodgepodge of state regulations. But sources said the Bells are privately signaling they may not back federal legislation next year because of their statewide victories.

"I don't know whether that's a strategy designed to maximize their ability to get it passed this year or whether they really mean that," Boucher theorized. "The reason they might mean it is because they're having great success in getting franchise relief at the state level."

Other Hurdles And Headaches

Stevens has additional worries. Rural telephone carriers, a key constituency for him and colleagues representing rural states, are worried about efforts to cap the universal service fund, which aims to guarantee communications services to all Americans. Stevens' apparently contradictory statements on where he stands are fueling those concerns.

Meanwhile, state utility regulators, consumer advocates and watchdog groups are worried about provisions that would pre-empt state regulation of the wireless phone industry. The language was added late in committee debate, and critics complain that the panel never vetted the issue. Stevens' version of the bill has even elicited steady criticism from its only co-sponsor, Sen. Daniel Inouye of Hawaii, who is Commerce's top Democrat.

The legislation's current fate is not what Stevens expected. The House language sailed through the lower chamber in June by a 321-101 vote, and for months, Stevens insisted that comprehensive telecom legislation would be enacted this year. But by September the outlook was bleak and even the chairman was publicly acknowledging that the process stalled.

Even so, critics such as Public Knowledge spokesman Art Brodsky remain leery about betting against Stevens. "It's not over till it's over, and it's never over," he quipped.

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