Tech priorities for new Congress: From old to new

What tech policy is likely to take center stage this year? At the State of the Net conference, legislators and others hint at Net neutrality, wireless spectrum, and universal service.

Larry Downes
Larry Downes is an author and project director at the Georgetown Center for Business and Public Policy. His new book, with Paul Nunes, is “Big Bang Disruption: Strategy in the Age of Devastating Innovation.” Previous books include the best-selling “Unleashing the Killer App: Digital Strategies for Market Dominance.”
Larry Downes
6 min read

WASHINGTON--The new Congress has only just started, but its Internet and technology agenda is quickly filling up. Top on the list for Republicans will be efforts to undo the Federal Communication Commission's late-December "Open Internet" Order. After that, expect bipartisan action on efforts to slake the voracious appetite for wireless spectrum of mobile Internet users and possible reform of the $8 billion Universal Service Fund.

That was the message heard today by attendees at the State of the Net conference here, organized by the advisory committee to the Congressional Internet Caucus. Members of Congress, senior staffers, administration officials, and federal regulators converged (once a sprinkling of sleet was cleared off Washington streets) for the annual conclave, now in its seventh year.

Other items already in the docket for the new Congress include data privacy, patent reform, and new Internet antipiracy enforcement powers for customs agents. But these items are much less likely to generate new legislation. A possible consumer privacy "bill of rights," along with patent reform, for example, have become perennial topics for federal hand-wringing, always discussed but never acted on.

"Congressional hurricane" on Net neutrality
The day got off to a bold start, as Congresswoman Martha Blackburn (R-Tenn.) issued a "wake-up call" to conservative members of Congress to take seriously the threat that overzealous lawmaking could jeopardize the fast-growing digital economy.

Rep. Marsha Blackburn (R-Tenn.) says it's time to block Net neutrality regulations and rein in government. Declan McCullagh/CNET

Blackburn is one of a large number of Republican (and a small number of Democratic) legislators angered by both the content and process leading to the FCC's "Open Internet" decision (PDF), which imposes new Net neutrality limits on broadband providers.

Blackburn predicted that the new rules, which have yet to take effect, "won't be around too long." The FCC thought that it was filling a "regulatory vacuum," Blackburn said. "But they'll be met with a Congressional hurricane."

In the first days of the new session, Blackburn introduced the Internet Freedom Act, a short bill that would bar the FCC from any regulation of "the Internet or IP-enabled services."

Before the Internet Freedom Act is taken up, the House Energy and Commerce Committee has promised to introduce a "Resolution of Disapproval" under the Congressional Review Act. Under this 1996 law, a simple majority of Congress can vote to nullify new rules issued by federal agencies within 60 days of their publication.

If passed, the resolution would undo the Net neutrality order, while the Internet Freedom Act would stop any future FCC efforts to exercise authority over the Internet.

But both the resolution and the proposed law would have to pass not only in the Republican House but also in the Senate, where Democrats still hold a majority. And both are subject to possible veto by President Obama.

Republicans and Democrats today assigned high probability for passage of the resolution, but staffers disagreed on the likelihood of a veto. President Obama praised the FCC rulemaking in December. But given dissatisfaction from both Net neutrality advocates and opponents with the final draft, the president may not wish to spend dwindling political capital on a veto fight with Congress.

Washington lawyers seen preparing multiple legal challenges
There was also widespread agreement that perhaps multiple legal challenges to the rules are likely. After an April court decision overturned FCC efforts to sanction Comcast for violations of its earlier Open Internet policy statements, it was widely believed that the agency could not sustain new rulemaking without additional authority from Congress.

Although new authorizing legislation was circulated just before the midterm elections, it was never introduced. A handful of other Net neutrality bills floating around Congress died at the end of the session.

Instead, the FCC claimed authority for new rules on a teetering foundation of existing powers based largely on Section 706 of the 1996 Communications Act (PDF). But Section 706, which directs the FCC to "encourage the deployment" of advanced telecommunications technology, calls on the agency to remove regulatory barriers. And the Comcast decision explicitly rejected the FCC's Section 706 argument, a rationale to which the Open Internet order made only minor tweaks.

The assumption of power, perhaps more than the rules themselves, has upset Republican and even some Democratic members of Congress. Sen. Kay Bailey Hutchison (R-Texas), the ranking Republican on the Senate Committee on Commerce, Science and Transportation, moved to cut off FCC funding to implement the new rules the day the order was published. The FCC "showed little fidelity to its authorizing statute," according to Brian Hendricks, the Republicans' senior lawyer on the committee.

Neil Fried, senior counsel to the House Energy and Commerce Committee, agreed. Drawing out a discussion previewed earlier this month at CES, Fried reiterated that the FCC granted itself "untethered" authority in the Net neutrality order. On the FCC's view, said Fried, the agency can now regulate anything, so long as it can conjure up some connection to broadband adoption.

But Roger Sherman, lead counsel for the Democratic minority on the Committee, termed the fuss over the FCC's actions "much ado about nothing." Sherman agreed that the Resolution of Disapproval will "sail through the House." But, he said, "We know--we're fairly confident--that President Obama will veto this."

Assuming that he does, the fate of the rules may rest with court challenges, which could come soon after the rules are published. Verizon, which has been critical of the new rules, has refused to rule out the possibility of litigation.

Hopeful signs on spectrum and Universal Service reform
In stark contrast to disagreements over Net neutrality, there is something close to consensus on the need for Congressional action on a looming spectrum crisis and reform of the Universal Service Fund, a fee paid by telephone consumers and used by the FCC to provide service to poor and rural customers.

On spectrum reform, House and Senate staffers today promised bipartisan action in the next six months. This could include authorizing the FCC to conduct "voluntary incentive auctions" that would allow television broadcasters to sell some or all of their remaining frequency allocations and share the proceeds with the government.

Reallocating spectrum currently stockpiled by federal agencies and departments will also be considered, as well as looking at new ways to make use of upper bands above 5 gigahertz. Funding development of an interoperable network for emergency first responders, a goal since September 11, 2001, may also be back on the table.

And both parties, as well as the FCC, would like to see major reforms to the Universal Service Fund, in what has unfortunately become an annual topic of debate. Simplifying the subsidies for high-cost rural telephones and repurposing the plan to provide broadband Internet access to Americans who cannot otherwise afford it are objectives high on everyone's agenda.

But the size and complexity of the fund, as well as the political realities of changing the subsidies, have so far proven hurdles too high for either Congress or the FCC to overcome. The USF has also been dogged by fraudulent use, especially in a program to provide computing equipment and Internet access to schools and libraries.

And the spectrum reallocation process could be slowed by the FCC's failure to develop a comprehensive inventory of existing licenses ordered in June by President Obama. In a letter last week to FCC Chairman Julius Genachowski, Sen. Olympia Snowe (R-Maine) criticized the agency's failure to complete the inventory and its "overemphasis" of the voluntary auctions. (An FCC official confirmed at CES that the agency has not made measurable progress on the inventory.)

And the rest
The specifics on Net neutrality and other communications-related proposals quickly turned abstract in later discussions on possible new laws affecting privacy, cybersecurity, cloud computing, wiretapping, and enforcement of trademark and copyright laws on the Internet. Although a number of proposals--and in some cases, draft legislation--were discussed, in most cases, these were continuations of conversations that went nowhere in the last Congress.

An Internet antipiracy bill was blocked in the last Congress and continues to cause controversy. In the case of privacy, as CNET's Declan McCullagh reminded the audience, debate about whether the combination of existing legislative and industry self-regulation is sufficient has waxed and waned for at least 10 years.

In the absence of meaningful agreement on what privacy goals the government actually wants to pursue, legislative proposals have been too weak to progress.

Given the outrage over Net neutrality and a growing sense of crisis over spectrum, none of the participants in today's meetings predicted specific action on any of these issues.

At least not for this Congress.