Stevens Mark Up — Results

A tie on NN, which translates as a procedural loss (Stevens, as chair, got to break the tie and reject the NN amendment) but a political win. A surprise win on Low Power FM. A surprise minor win on media ownership. No changes on Section 1004, broadcast flag, munibroadband, or white spaces.

Despite the telcos advancing the ball forward, the 11-11 vote has made it very uncertain the bill the will advance to a full floor vote. You can bet the telcos will mount a full court press during the July 4 recess, so intensifying public input remains critical to killing the bill.

Details below.

So after two days of mark up, here’s what happened.

Broadcast flag: Sunnunu withdrew an amendment to eliminate this, promising to try to do so on the floor if it comes to a floor vote.

White spaces: No amendments. I’m not sure if DeMint withdrew his amendment or if it got voted down. The provision remains unchanged.

Munibroadband: The good rewrite survives unchanged.

Sec. 1004: Remains unchanged. No one proposed amendments to get rid of it. In a press conference, the majority staff explained that they did not intend this Section to apply to the Communications Act generally, only to the contents of the Stevens bill. They maintained they wanted exclusive jurisdiction because of the DC Circuit’s “expertise” (read: the DC Cir. can be counted on to support the telcos).

The problem is that the plain language of the Section makes the change apply to the entire Communications Act of 1934, as amended. In perpetuity. But even under the more restrictive vision of the majority staff, this provision is a phenomenally bad idea. If nothing else, this bill is about giving the FCC national authority over a bunch of stuff we used to let local people handle. So no only do all local folks have to deal with the FCC in DC, but, if unhappy, they need to get a DC lawyer and challenge the FCC decision in DC.

And the people pushing this come from Alaska and Hawaii? (Inouye voted for the final bill.) Good grief! I guess Alaskans love to travel. Hope everyone else does too (I live in the DC metro area, so at least I don’t have to worry about air fare).

LOW POWER FM In the silver lining department, McCain attached his bill removing the restrictions on the low power FM radio service as an amendment. For those unfamiliar with low power FM radio (or “LPFM”), I refer you to my good friends at the Prometheus Radio Project. Briefly, LPFM came about in 1999-2000 when the FCC relaxed old radio interference rules to open opportunities for low power stations to operate as non-commercial community based radio stations. The NAB got legislation passed in 2000 to cut the number of potential stations back from several thousand to several hundred (and only in the least densely populated areas). Still, the service has been a resounding success. For years, the LPFM community has tried to get Congress to reverse the bad legislation. While this amendment may get stripped out (and certainly does not compensate for the rest of the bill), I gotta applaud the forward motion.

Media Ownership: Y’all remember media consolidation? This used to be a blog about media consolidation . . . .
As I recently reported, the FCC has resumed its inquiry into whether or not to relax the existing limits on media consolidation. Also as explained, FCC Chairman Kevin Martin refused to commit to further public comment on any specific rules changes he wants to make as a result of the general inquiry, transforming the process into a blank check for any changes without an opportunity to respond to specifc proposals.

By voice vote, the Commerce Committee adopted an amendment that would require the FCC to subject any specific rules changes to another round of public comment. “Voice vote” amounts to unanimous approval by the Committee.

Ths amounts to a stunning bipartisan rebuke for Martin’s strategy of trying to hold a trump card of cutting short public debate. Even if the Stevens Bill doesn’t pass, or the amendment ultimately gets stripped out, it sends a strong signal by the relevant Committee that it will not tolerate the kind of political games playing and public outcry that happened when Powell refused to subject specific rules proposals to public comment in 2003.

Network Neutrality The amendment proferred was not even the full Snowe-Dorgan absolutely no tiering proposal, but a scaled down version that would have prohibitted any kind of discrimination. Tiering could still have been permitted, but would need to be offered to third parties on a non-discriminatory basis.

Even this proved too much for the wholly-owned subsidiaries of the telcos on the Committee. The two hour debate resounded as if tiering itself would be prohibitted, not merely offered on a non-discriminatory basis.

In the end, the NN amendment tied at 11-11. Procedurally, this allowed Senator Stevens, as Chair, to break the tie in favor of rejecting the amendment. The Ds all voted for the amendment. Snowe was the only R to vote for the amendment. All other Rs opposed. On the vote on the entire bill itself, the bill passed 15-7, with Snowe shifting back to R land and three Ds (Inouye, )

While a procedural defeat, the close call injected new momentum into the NN debate as thoroughly as the House floor vote tilted momentum the other way. As anyone who remembers School House Rock, it’s supposed to be hard to pass a law — all that fear of central government and federalism the Republicans used to believe in before they got control of Congress (and will probably start believing in again next January). In the Senate, you need not merely a majority, but 60 votes to avoid a filibuster.

The fact that the Dems held together and the one R came over to the NN side has folks thinking that NN has serious friends in the Senate. Mind you, just last month, when the House voted as predicted against NN, the pundits swore the momentum had swung the other way and that the public interest folks maintaining that the Senate would not roll over so easily were just deluding themselves. But such is the nature of talking heads and momentum in DC. The 11-11 vote has spooked the Telcos and once again made NN the issue that will break the telecom reform bill.

After the vote, Sen Wyden (who was first in the Senate to sponsor a a net neutrality bill) promised to filibuster any telecom bill that did not contain adequate net neutrality provision. Stevens has said he does not (yet) have the 60 votes needed to cut off a filibuster, and that the Senate leadership will not bring the bill to a floor vote unless they have the 60 votes needed to cut off debate.

So we roll into the July 4 recess with Senators waiting to hear from consituents on this issue. You can bet ehy will get an earful from the telco and cable lobbyists. And you can also bet that the tech industry remains too clueless to organize effectively on this. So if Senators are going to hear from the pro-NN side, it will have to come from citizens interested in celebrating July 4 by exercising their First Amendment right to petition their government for redress of grievances.

Hopefully, that’s you.

Stay tuned . . . .