So How About That New Congress?

So how about that mid-term election? Of course, even before the dust settled, folks have scrambled to opine what changes and what happens next.

Unsurprisingly, most of the guesswork in media and telecom focuses on what we know right now – we know how Burns and Allen used to vote. We know (at least somewhat) about the priorities of likely House Commerce Chair Dingell, likely (unless he takes something else) House Telecom Subcom Chair Markey, Likely Senate Commerce Chair Inouye (who may or may not reconstitute the Telecom Subcommittee), and likely leaders Harry Reid and Nancy Pelosi (and other existing shakers and movers).

But guessing how the new Congress will tackle these issues presents a lot more complicated guessing – particularly without knowing who serves on what Committees.

My guesses, and what activists need to do to drive the agenda, below. . . .

The Ds picked up a big margin in the House and a slim margin in the Senate. That gives the Ds the power to structure the Committees in both houses.

What We Can Guess Now: The Little Picture
Lets do the micro first. Conrad Burns and George Allen are gone. Burns and Allen both opposed network neutrality and generally supported deregulating telecom, cable and media companies. Burns in particular was a true friend to the large broadcasters. He opposed low-power FM, supported deregulating big media companies, and generally did his best to advance the agenda of the folks I oppose.

On the flip side, Allen and Burns did support white spaces. But even so, for folks who support media and telecom reform that limits rather then enhances corporate power, their departure makes life a heck of a lot easier.

Looking to the Committee Chairs and leadership – Inouye supported overturning the FCC’s dereg in 2003-04. Inouye has also supported net neutrality, opening up the broadcast “white spaces” to unlicensed use, and protecting local franchising. While I would not call Inouye or Reid enthusiastic champions for issues I care about the way Dorgan and Feingold have been, I do think they will support positive reform on both media and telecom. They are likely to allow legislation in favor of network neutrality, low power FM, and limiting further media consolidation proposed by other members. Whether they will make such legislation a priority remains to be seen.

There is also a question of whether Inouye will reconstitute the Telecom Subcommittee in the Senate. When Stevens took over as chair, he dissolved the Telecom Subcom – primarily because McCain would have chaired it based on Seniority and dissolving it let Stevens control the Telecom agenda. Inouye could reconstitute the Subcom (which would create an entirely new level to hold hearings and push legislation) or might keep the existing structure.

Switching to the House side, the first question is whether Markey will take over as Chair of the Telecom Subcom. When you come to champions for my issues: munibroadband, spectrum reform, limits on media ownership, net neutrality, and generally standing up for citizens against corporate interests, they don’t come any better than Ed Markey. The man has fought tirelessly from the minority to protect citizens from corporate power. He has shown fine strategic sense in choosing when to reach across the aisle to Rs, when to go for the compromise, and when to take a stand.

But Markey has other interests. He may choose a different Committee or Subcommittee. From my perspective, that would be awful.

Dingell will likely chair the Commerce Committee. Dingell is strong on network neutrality. In fact, in a recent press conference, he has hinted he intends to return to the issue and get good net neutrality language passed. On low power FM, media ownership, and other issues, however, he remains a notorious fence sitter. In 2000, he was the one who proposed the “compromise” under which Congress required the FCC to maintain the “third adjacent” protection that cut the number of possible LPFM licenses from several thousand to several hundred. While he has shown solicitude toward the broadcasters and telephone companies (he pushed to deregulate telephone broadband back in 2000-02) in the past, that has changed in recent years to some degree as the impacts of consolidation make themselves felt. Where will he come out now that he again holds the gavel as Chair?

Some of the answer may come from the House leadership as a whole. Pelosi has supported limits on media ownership and network neutrality. That makes it hard for Dingell to propose something equivalent to the Tauzin-Dingell deregulation bill from 2000. And, as I will discuss below, the universe has changed a lot in the last few years in ways that significantly impact how people look at these things.

What About Trends in the New Congress Generally?
Which prompts me to kick it up to a more macro level. Control of the majority is control of the agenda. You get to hold the hearings you want, raise the issues you want, when you want, and how you want. In 2003-04, a majority of the Republican House would probably have supported legislation passed by the Senate to “legislatively veto” the FCC’s Order deregulating media ownership. But they never got the chance, because the R leadership prevented the bill from ever getting to the floor. Similarly, the R House leadership got to choose when to bring its version of telecom reform for a vote, and to limit debate on the network neutrality amendment to two hours.

So even with a razor thin margin in the Senate, the switch means that Ds, to the extent they have a coherent policy on media and telecom that differs from the Rs, can do a lot more to advance it. Control of both houses also provides for greater oversight of the FCC and (to the extent relevant) the Federal Trade Commission and other executive agencies.

But will they want to take things up? It is one thing to stop bad stuff to protect the status quo, it is another thing to push for change. And what about the new, supposedly “more conservative” Democrats? And is there even a difference between Democrats and Republicans on this stuff?

Does Political Party Matter on Media and Telecom?
Let me tackle the last question first — Is there a difference between Ds and Rs on the media telecom issues I follow? After all, you have Republicans like Snowe and Sensenbrenner who have supported Net Neutrality, Ds like Al Wynn and Bobby Rush who oppose it, and all the public interest folks kept saying in both media and telecom that this issue was “non-partisan.” So what gives?

As usual, labels like “liberal,” “conservative,” and moderate don’t really capture this stuff. While the issues are “non-partisan” in comparison to the usual clearly defined litmus test, there are good reasons why we’ve seen more Ds than Rs support net neutrality and why more Ds than Rs oppose further consolidation in the media. These themes will play out in the next Congress.

1) Rs are intrinsicly pro-deregulation. In 1996, a number of Republicans who now oppose further deregulation of the media supported deregulation — and continued to do so until 2002/2003. Folks like Trent Lott and John McCain believed in 1996 in the power of deregulation to create competition and benefit consumers. So they supported deregulatory things like eliminating price controls on cable and relaxing broadcast ownership limits. These supporters of deregulation brushed aside the concerns of public interest groups as speculation grounded in a fear of the future and a lack of faith in new technology.

Well, ten years later, the world has definitely changed. But do you see the happy competitive world where everyone has access to a bazillion video streams or do you see the unhappy consolidated world where a handful of megacorps controls content, distribution, and pricing? In broadcast media, and to some degree with cable, an increasing number of Rs as well as Ds recognize real problems from consolidation. But when it comes to the “nascent” broadband market, the Rs still cling ideologically to the happy story that deregulation will produce competition and wonderfullness in broadband. They will need to get proven wrong, as they were on broadcasting and cable programming, before they start to change their minds.

As Paul Krugman has observed (and supported by the NYT profile of Senator Elect Jon Tester), the newly elected Senators and Representatives share a basic interest in a return to grassroots/New Deal type populism. They come suspicious of the “deregulate big corporations to create competition and build a better world” story. They do not think of themselves or their constituents as the prosperous Middle Class like Joe Leiberman and Joe Biden. One cannot imagine, for example, Jon Tester supporting a bill to make it harder for individuals to declare bankruptcy while allowing corporations to wipe out pension funds via Chapter 11 refinancing. These new members, no matter what committee they sit on, will want to know how proposed legislation translates immediately into benefits for real people rather than listen to paens of praise for the glories of deregulated markets.

How much that sensibility drives the new Congress remains to be seen, but even veterans with 12 years worth of accumulated agenda can’t afford to ignore it if they want to hold a majority.

2) The K St. Project Rebound As everyone knows, the Rs in the House ruthelessly exploited their majority to monopolize contributions and force lobbying firms to hire Rs only. Republicans enjoyed a huge advantage in fundraising. Particularly this year, as Rs felt their majority slip away, they pressed corporate allies for contributions (although on the flip side, some industries — like media — began to hedge their bets and gave to the Ds when it was clear they would retake the House).

This has produced two interesting unintended effects with the Ds in the majority. First, Ds are far less indebted to corporate largess. For example, according to opensecrets.org, telecom contributions favored Rs over Ds by about 2:1. It is not unreasonable to suppose that some of the enthusiasm of Mr. Dingell and Mr. Conyer for revisiting net neutrality flows from a little desire to remind the Bells what happens when you back the wrong horse.

More importantly, however, the decline in corporate contributions to Ds (and, especially, to the newly elected insurgent Ds) elevated the importance of aggregated individual contributions from folks like Move On. Everyone wants to talk about how Leiberman beeting Lamont proves the weakness of the Netroots. No one is noticing that Moveon and the netroots supported Tester long before anyone else gave him the time of day.

Further, every one of the new Ds understands how hard it is to run against an incumbent and appreciates precisely what is wrong with the mainstream media and right about the Internet. The entire D “50 State Strategy” depends on an open and free internet that facilitates decentralized communications. If the telcos and cable cos can mess that up, the Ds will not stay in the majority for long.

So not only are Ds generally more ideologically disposed to look at regulation and consider the possibility of market failure, these Democrats have a particular motivation to ignore the blandishments of telcos, cable cos, and broadcasters while paying particular heed to the needs and wishes of the “netroots.”

Will this equilibrium continue? Companies roll with the punches, telcos and cable cos have been hiring Ds and, I expect, will be dropping by with PAC checks and explanations of why net neutrality is bad regulation while preempting local governments is good regulation. Which brings me too . . .

What Must Activists Do To Drive The Agenda?

Activists need to sieze the opportunity on this and rush in to educate the new members now, before they even come to DC. A difficult task, surely, as these people are the most popular folks on the planet and there is no lack of folks eager to tell them JustWhatNeedsToBeDoneInWashington, from impeach the President to subsidize the local highway repair project.

Nevertheless, activists need to rise to the challenge. An advantage of grassroots campaigns is that these candidates are much more likely to pay attention to the local organizations that helped push them over the top. Even if you only end up speaking to a soon to be staffer, the new members want to know the priorities of their constituents and how to address them.

And allied organizations should try to coordinate for both messaging and meetings. It is a lot more effective for the local municipal group concerned with local franchising, the local media reform group concerned with ownership, and the local small businesses concerned with net neutrality to all go in together if possible (provided a common thread is found). Go for as diverse a mix as possible. Part of the point is to demonstate that this isn’t a special interest or fringe issue. Getting broadband, keeping it free from corporate interference, and keeping distant companies from controling local media are bread-n-butter issues that impact everyone.

On substance, I strongly recommend an emphasis consonant with “pragmatic populism.” On the spectrum/munibroadband/net neutrality side, this is about bringing in affordable and competitive broadband. In particular, it is imperative that activists rebut the argument the Bells make that net neutrality will spur build out to rural/economically depressed areas. On the media side, it is about the cost to local communities in higher advertising rates, loss of jobs, and loss of reporting on local news.

This is not to the exclusion of the extremely vital First Amendment and free speech issues. Indeed, the new victors understand better than anyone how hard it is to beat incumbents in the current media environment. I’m just saying we need to come fully loaded, ready to argue both.

In addition to the plethora of sources out there (Free Press, Common Cause, etc.), I have written on the following previous Sausage Factory entries may prove useful and informative:

Net Neutrality:
A Network Neutrality Primer
An Examination of the Economics of Whitacre Tiering
Net Neutrality As Campaign Finance Reform
The Tiered Internet and Virtual Redlining
Debunking Some Telco Disinformation

Spectrum:
2004 Spectrum Primer
They Come To Praise Property When They Should Have Buried It.
But Do Spectrum Auctions Really Suck?
FCC Bidding Credits and Digital Inclusion

Munibroadband/Community-based Broadband:
The GAO Makes The Case for Community Broadband
The Incumbent Lion Will Lie Down With the Muni Lamb

Media Ownership:
Outsourcing Big Brother
Cable Market Power For Dummies (link to MAP Whitepaper on Video Programming)
Fighting Big Cable (and Why It Matters)
FCC Spikes Report On Media Consolidation
Meanwhile, Back At The FCC

Low-Power FM:
LPFM Documentary on Hallmark Channel
Low Power FM Order

Extra Credit:
The Sustainable Economics of Open Spectrum and Open Source