The aftermath of the election has a lot of people guessing at what it means for a litany of issues, including those of interest to Public Knowledge and our friends. Many of them will not go away, although at the same time it is impossible to predict whether any concrete legislative action will take place.
PK has fought for many years on behalf of consumers to preserve an open Internet and make it more accessible, and will continue to do so. Post-election, Network Neutrality still enjoys strong bipartisan support in the U.S. Senate, although support for it has dropped in the House of Representatives. Essentially any progress on this critical issue now completely falls into the hands of Federal Communications Commission (FCC) Chairman Julius Genachowski. While the telephone and cable lobby have argued that the Chairman’s Third Way proposal would create “uncertainty” in the market place, the only certainty that remains is “outraged” House Republicans will grill the new Chairman regardless of what he does.
This is the same group that will have conveniently forgotten that there was a consensus bill in September that even AT&T and other industry players were willing to back, but for some reason that was not good enough for the GOP. Why bother solving critical telecommunication policy issues when you can add another item to the made up “government takeover” list.
This showdown unfortunately stands in the way of advancing the deployment of broadband services through the conversion of the Universal Service Fund (USF) from supporting regular dial-up service to broadband. The FCC must complete the Third Way proceeding to put the new USF on a solid legal foundation. Any legislative help on this front likely ended with the defeat of Chairman Rick Boucher as he was a driving force behind providing a legislative framework for USF reform.
The one broadband policy item that will see substantive action in Congress next year is freeing up more spectrum for wireless broadband. This issue enjoys strong support from across the political “spectrum” with the exception of Senator Tom Coburn. All kidding aside, expect comprehensive spectrum legislation to come up next Congress given that a strong bipartisan framework has been established this year. PK will work hard to ensure that any spectrum policy change that increases spectrum availability in the wireless broadband market promotes competition and is not a hand over to the dominant market players.
The Appropriations Process
In addition to the normal legislative process, which is designed to grind anything objectionable to a halt, there is one vehicle the American public must watch closely that could also bear on Internet policy. That vehicle is the appropriations process (or will it be called the misappropriations process?), normally used to allocate money to agencies and programs, but occasionally used to influence policy.
The new House leadership has made it clear they intend to exert their anti-open Internet views, but if they are to be successful, they will need to do it through the appropriations process because the spending bills must be passed in order for the government to function.
As a matter of precedent, the appropriations process begins in the House, and it is at point where the public must be most engaged with their representatives to prevent bad things from happening. There are rules to prohibit legislating policy issues on must-pass appropriations bills, but enforcement of these rules can be overridden by a majority vote of the House.
Knowing full well that holding the operation of the federal government hostage to policy stances that would not survive a veto from President Obama is the only way to enact policy changes, the anti-open Internet legislators will likely focus all of their efforts here. In fact, Rep. John Culberson (R-TX), who serves on the Appropriations Committee has already attempted to use the appropriations process to cripple the FCC’s authority to protect broadband consumers, he just did not have the votes this year to waive the rules. Look for more attempts next year. However, such legislative language would have to pass the Senate as well and survive a House-Senate conference, which is a less certain outcome.
The fight to ensure that copyright law is balanced between rights holders and users does not split cleanly along partisan lines because the Intellectual Property (IP) maximalists, largely in the big media and entertainment companies, are able to influence both Republicans and Democrats equally. In that vein, our effort to protect the public interest from the unintended consequences of overreaching and misguided IP enforcement will remain the same with one major exception. The cause for balanced copyright has lost a champion with the defeat of Communications, Technology, and the Internet Subcommittee Chairman Rick Boucher (D-VA). He will be missed greatly by PK and by those who care about innovation and fair use.
As for the new House of Representatives, we do not know how the House will deal with intellectual property legislation yet. When Republicans previously controlled the House, they established a subcommittee to deal with IP issues in the Judiciary Committee. Democratic Committee Chairman John Conyers (D-MI) eventually abolished the subcommittee, keeping all IP matters for the full committee.
As for the legislative calendar next year (speaking of unintended consequences), the one bill that is likely to be taken up on the copyright front is S. 3804, the Combating Online Infringement and Counterfeits Act (COICA), which was introduced Sept 20 by Senate Judiciary Committee Chairman Patrick Leahy (D-VT). The bill would empower the Department of Justice (DoJ) to go after websites (international and domestic) that it deems infringing of copyright with a few Internet breaking tools. If the website is hosted on U.S. soil, the government can shut down the domain. If it is hosted overseas, the government can require the facilitators of Internet traffic to block the Domain Name System requests of users. In order to do this, the DoJ would go to a judge and gain authorization to take down a website and if the host of that website disagrees, they can petition the government (isn’t that guilty until proven innocent?).
As you may guess, the legislation is seriously flawed and has severe consequences for free speech, cyber security, and even the inner technical workings of the Internet. Public Knowledge will continue to educate policy makers about the unintended harms of COICA now and through the new Congressional session. We remain hopeful that legislators will use the next two years to conduct an extensive review and solicit input from a diverse group of stakeholders through hearings. Some, such as the U.S. Chamber of Commerce, think it would be better simply to cram the bill through the lame duck session. However, Internet technicians and cyber security experts have raised major objections to the bill which should be considered.
Also in the IP space, PK and others believe that the Anti-Counterfeiting Trade Agreement (ACTA), should undergo a review by Congress and the public given its impacts on U.S. law and our economy. It is not too far-fetched to believe that the new Members of Congress coming to Washington D.C. have a very strong interest in exerting their prerogative as Congress given that ACTA will directly impact jobs. It also does not help that the U.S. position has been to shroud the agreement in secrecy.