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Tech Law Journal Daily E-Mail Alert
May 10, 2001, 8:00 AM ET, Alert No. 184.
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Commerce Committee Passes Bell Relief Bill
The House Commerce Committee approved HR 1542, a bill to provide regulatory relief to the Baby Bells. The Committee often passes legislation by unanimous voice vote. However, this bill was adopted after an eight and one half hour debate by a roll call vote of 32 to 23. The bill is also known as "Tauzin Dingell," for its lead sponsors, Rep. Billy Tauzin (R-LA) and Rep. John Dingell (D-MI), the Chairman and ranking Democrat on the Committee. Tauzin and Dingell had the votes to pass the bill from the outset. Opponents of the bill used the debate to demonstrate the extent of opposition to the bill, and to attempt (unsuccessfully) to amend the bill to increase the DSL buildout requirements imposed upon the Bells, raise the bits per second rate in the definition of high speech data service, impose reporting requirements on the Bells, give the FCC more authority to enforce the provisions of the bill, and extend the existing line sharing rule to cover fiber. Early in the meeting, Rep. Tauzin offered an amendment in the nature of a substitute, also know as the "manager's amendment," to the version of the bill reported by the Telecom Subcommittee, also known as the "subcommittee print." The committee approved several amendments to this manager's amendment. However, all significant amendments that were opposed by Tauzin and Dingell were either rejected, withdrawn or ruled out of order.
Arguments. Supporters of the bill stated that it will incent the Baby Bells to deploy broadband Internet access services, particularly DSL service. Supporters also argued that the bill will increase the Bells' ability to compete with broadband cable service providers. See, prepared statements of Tauzin and Dingell. Opponents argued that the bill would end competition in local phone markets, revert the Bells to monopoly status, kill off many of the CLECs, and reduce innovation and investment in new technologies and companies. The meeting lasted from 10:00 AM until 6:30 PM, with breaks for two floor votes and one fire alarm.
Rep. Ed Markey (D-MA), an outspoken opponent of HR 1542, added his usual color to the debate. He stated that this bill adds "two new genres for the readers of telecommunications law." He said that it adds "science fiction", referring to the bill's attempt to distinguish between packet switched voice and data traffic. "The Bell Empire is striking back," said Markey. He also said that the bill adds "mystery". That is, "Will competition survive?" He also said of the bill: "It's undigital, it's unnecessary, it's unfair."
Rep. Chip Pickering (R-MS), a young Baptist from Mississippi, and another leader of the opposition, asserted that he is "a lonely prophet in the wilderness." This prompted Tauzin to interject that "Prophets generally have very short lives."
Analysis of Vote on HR 1542
The votes on amendments and final passage did not break down on party or ideological lines. Although, there was some correlation between party and vote, with Republicans more likely than Democrats to support the bill. See, roll call votes. However, several other factors were predictors of votes -- prior record of support for the Internet, gender, region, and seniority. Techies, women, westerners and junior members tended to oppose the bill.
Members from districts with new technology companies, or who have been advocates of the Internet, tended to oppose the bill. For example, Reps. Eshoo (Silicon Valley), Davis (Northern Virginia), and Markey (suburban Boston) all represent tech heavy districts, and were leaders of the opposition to the bill. The one notable exception was Rep. Rick Boucher (D-VA), a Co-chair of the Internet Caucus, who supported the bill, and voted for the Tauzin Dingell position on every vote in subcommittee and full committee.
Another good predictor of support for the bill was gender. Of the eight women on the Committee, six voted no (Eshoo, Wilson, DeGette, Harman, Capps, and McCarthy), only one voted yes (Bono), and one was absent (Cubin).
Region was also a predictor of support for the bill. Westerners were more likely than members as a whole to oppose the bill. Of the seven Californians, five voted no (Eshoo, Cox, Waxman, Capps, and Harman), and two voted yes (Bono and Radanovich). The mountain state representatives -- Shadegg (AZ), DeGette (CO), and Wilson (NM) -- all voted no. The upper midwest representatives -- Luther (MN) and Barrett (WI) -- voted no. Also, representatives from districts with widely dispersed populations (including many beyond the 15,000 foot range of DSL service) tended to oppose the bill. Notably, Stupak (upper Michigan), Strickland (Appalachian Ohio), and Largent (who represents Tulsa, but seeks to become governor of Oklahoma) were vocal opponents of the bill. Also, Shadegg, Wilson, and DeGette (who represent urban Phoenix, Albuquerque, and Denver) are from states with many citizens who live in sparsely populated areas. Also, if the vote is broken down by the territories of the original Regional Bell Operating Companies, representatives from PacBell and US West tended to oppose the bill, while representatives from SBC, Ameritech, BellSouth, Bell Atlantic, and Nynex tended to support the bill.
Seniority on the Committee also correlated positively with support for the bill. For example, the seven Republicans with the most seniority all supported the bill. There are 31 Republicans on the Committee. Of the Republicans from the top half in seniority, 13 voted yes, 2 voted no, and 1 was absent. Of the bottom half in seniority, 8 voted yes, 6 voted no, and 1 was absent. These junior members include all members appointed to the committee since 1998, when Wilson got a seat following her special election. On the Democratic side, the telling statistic is that 8 of the 9 most junior members voted no.
Party membership was also a predictor of a member's vote. The Republicans split 21 in favor, 8 against, and 2 absent. The Democrats split 11 in favor and 15 against.
5/9. The FCC released its Memorandum Opinion and Order on Reconsideration [PDF] In the Matter of Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Services (CMRS). The FCC denied the petition for reconsideration filed by the Association of Communications Enterprises (ASCENT) of the Fourth Report and Order in this proceeding. The FCC reaffirmed that facilities-based CMRS providers are not required to interconnect with resellers' switches. The MOO was adopted on May 1, and released on May 9. (See, CC Docket No. 94-54.)
Amendments to HR 1542
Build Out Requirements. The Committee spent much of the meeting debating language that would mandate deployment of broadband service. While the underlying premise of the bill is that the regulatory relief which it offers to the Bells will incent them to deploy DSL service, even its sponsors conceded that the bill also needs to actually require the Bells to deploy DSL service. The debate was over whether to adopt a modest amendment [PDF] offered by Rep. Tom Sawyer (D-OH) and Rep. Bobby Rush (D-IL), and backed by Tauzin and Dingell, or a more stringent amendment [PDF] offered by Rep. Bart Stupak (D-MI). The Sawyer amendment sets year by year requirements for the deployment of DSLAMs in central offices (COs). The Stupak amendment would have measured deployment beyond that what has already been deployed. Stupak argued that the levels set by the Sawyer amendment for the next few years have already been met by most Bells, and hence, impose no real requirement. The Stupak amendment also would have measured buildout based upon all local loops of up to 150,000 feet, while the Sawyer amendment would cover only those of up to 15,000 feet. Stupak argued that most customers in urban areas are within 15,000 feet of their COs, but that in rural districts, such as his, many customers are far beyond 15,000 feet. The bill, as amended by the Sawyer amendment, would impose no obligation to deploy DSL service to customers who are beyond 15,000 feet from their COs. The committee rejected the Stupak amendment by a vote of 17 to 37, and then approved the Sawyer amendment by a voice vote.
Line Sharing. The Committee narrowly rejected, by a vote of 27 to 27, an amendment [PDF] offered by Rep. Bill Luther (D-MN) that would have extended the line sharing requirement to include fiber and remote terminals. The Tauzin manager's amendment contained language providing for line sharing, but only over copper lines. Tauzin said that "this strikes at the heart of the bill." Dingell derided it as a "killer amendment".
Definition of High Speed. The Committee also rejected, by a vote of 18 to 33, an amendment [PDF] offered by Rep. Tom Davis (R-VA) that would have defined "high speed data service" as at least 1.5 million bits per second downstream, and at least 128 thousand bps upstream. Tauzin's manager's amendment defined it as only 384 thousand bps in one direction (presumably downstream). Harman and Largent cosponsored the amendment. Rep. Markey spoke in support: "They are promising us a superhighway, but we are only going to get a bike path." He added that the Bells will charge monopoly prices for it.
Reporting Requirements. Rep. Anna Eshoo (D-CA) offered an amendment [PDF] that would have required the Bells to submit certain data regarding the quality of their service to the FCC. She described it as a consumer protection provision. Tauzin and Dingell opposed it, and it went down to defeat, 18 to 27.
The main defenders of the bill throughout the day were Tauzin and Dingell, but they received frequent support from Green, Stearns, Sawyer, Rush and others. Upton made all of the procedural objections to various proposed amendments to the bill. The most vocal opponents were Markey, Largent, Wilson, Davis, and Stupak, with support from McCarthy, DeGette, and Harman. Rep. Chris Cox (R-CA), who is an opponent of the bill, is now embroiled in partisan and ideological maneuvering over President Bush's effort to put him on the U.S. Court of Appeals for the 9th Circuit. He voted against the bill, but was not active in the debate.
Ken Johnson, spokesman for Chairman Tauzin, stated that "we will pass it out of the House", but that the "bill's chances are much more problematic in the Senate." The Judiciary Committee has also asked to be given jurisdiction over the bill. Johnson said that Speaker Hastert is unlikely to do this.
Related Issues
Enforcement. Rep. Fred Upton (R-MI) introduced HR 1765 on May 8. It would enhance the FCC's authority to enforce the Telecom Act of 1996, by increasing penalties, and lengthening the statute of limitations on certain forefeiture actions against phone companies. This bill was not offered as an amendment to HR 1542. Tauzin stated that the Committee would hold a hearing on the bill, but that there would be no attempt to move the bill through committee or to the floor. Rather, it would be offered as an amendment to HR 1542 on the floor. HR 1765, asserted Tauzin, is not germane to HR 1542; and, he will ask the Rules Committee to waive the germaneness rule. Davis offered an amendment to HR 1542 that would have given the FCC enforcement authority for violation of its provisions. It was rejected on a voice vote.
Open Access. The markup of HR 1542 was also used a forum to discuss and debate several other Internet and telecommunications issues that are not addressed in HR 1542. Rep. Rick Boucher (D-VA) spoke in favor of mandating open access. Tauzin stated that this is "a very appropriate subject matter for hearings of our committee." Boucher offered no amendment.
Nondiscrimination. Boucher did offer an amendment [PDF] that would require that volume discounts by phone companies to ISPs be offered on a nondiscriminatory basis. Tauzin promised to work with Rep. Boucher on this issue, and Boucher then withdrew his amendment.
Right of Way Fees. Wilson offered, but withdrew, an amendment [PDF] that would require the Bureau of Land Management, and other government agencies, when granting rights of way, to charge on the basis of either footage or cost of management, rather than on the basis of the capacity or content of the line. Tauzin expressed support for the idea. He said that right of way fees based upon content amount to an "Internet tax."
5/9. The FTC published a notice in the Federal Register that it is amending the Antitrust Improvements Act Notification and Report Form and the accompanying Instructions for Certain Mergers and Acquisitions which must be completed and submitted by persons required to report mergers or acquisitions pursuant to 7A of the Clayton Act. The interim rule takes effect on July 1, 2001. However, the FTC requests comments, by June 8, 2001, regarding the effective date. See, Federal Register, May 9, 2001, Vol. 66, No. 90, at Pages 23561 - 23587.
More News
5/9. The Recording Industry Association of America. (RIAA) published a report [PDF] titled 2000 Yearend Piracy Statistics. See also, RIAA release.
5/9. The Electronics Industry Alliance (EIA) wrapped up its three day conference in Washington DC. See, EIA conference web site and agenda.
5/9. The U.S. Court of Appeals (DC Cir) heard oral argument in Qwest v. FCC, Appeal No. 00-1376.
People & Appointments
5/9. Deborah Lathen announced her resignation as Chief of the Cable Services Bureau at the FCC, effective May 18, 2001.
5/9. Troup Coronado was named Assistant Vice President for Federal Relations in BellSouth's Washington DC Governmental Affairs office. Previously, he was Director of Government Relations with Sinclair Broadcast Group. He has also worked for Sen. Orrin Hatch (R-UT). See, release.
Thursday, May 10
Deadline to submit reply comments in response to the FCC's request for comments [PDF] on five reports that it has received regarding the potential for ultra-wideband (UWB) transmission systems to cause harmful interference to other radio operations. UWB devices, which use very narrow pulses with very wide bandwidths, have potential applications in both radar and communications technologies.
9:00 AM. The House Judiciary Committee will hold a hearing on HR 718, the Unsolicited Commercial Electronic Mail Act of 2001, and HR 1017, the Anti-Spamming Act of 2001. Location: Room 2141, Rayburn Building.
9:30 AM. The Federal Communications Commission will hold a meeting. Location: Commission Meeting Room, 445 12th Street, SW, Washington DC. The agenda includes:
  Universal Service. The FCC will consider a Fourteenth Report and Order and Twenty-First Order on Reconsideration in CC Docket No. 96-45 and a Report and Order in CC Docket No. 00-256 concerning a proposal to reform federal high-cost universal service support mechanisms for rural carriers.
  Removed from Agenda. Cross-Ownership of Broadcast Stations and Newspapers. The FCC will consider a NPRM proposing to modify, eliminate, or retain its rule that prohibits common ownership of broadcast stations and newspapers within the same geographic area. (MM Docket No. 96-197)
  Spread Spectrum Devices. The FCC will consider a Further NPRM proposing changes to remove unnecessary regulatory barriers to the introduction of new wireless devices using spread spectrum and other digital technologies. The FCC will also review the staff's denial of an application for equipment certification filed by Wi-LAN, Inc. (ET Docket No. 99-231.)
9:30 AM. The Senate Banking Committee will hold a hearing on several nominations, and a vote on several others. A hearing will be held on the nominations of John Robson (President of the Export-Import Bank), James Jochum (Asst. Sec. of Commerce for Export Administration), and Peter Fisher (Undersecretary of the Treasury for Domestic Finance). Votes will be held on the nominations of Grant Aldonas (Undersecretary of Commerce for International Trade), Kenneth Juster (Undersecretary of Commerce for Export Administration), Maria Cino (Asst. Sec. of Commerce and Director General of the U.S. and Foreign Commercial Service), and Robert Glenn Hubbard (Council of Economic Advisers). Location: Room 538, Dirksen Building.
10:00 AM. The Senate Judiciary Committee will hold an executive business meeting. The agenda may include a vote on the nomination of Charles James to be Assistant Attorney General in charge of the Antitrust Division. Location: Room 226, Dirksen Building.
11:00 AM. The House Judiciary Committee's Subcommittee on the Courts, the Internet, and Intellectual Property will hold a hearing titled "Patents: Improving Quality and Curing Defects." Location: Room 2141, Rayburn Building. 
FCC Commissioner Harold Furchtgott-Roth will be luncheon keynote speaker for the Federal Asian Pacific American Council Conference Congressional Seminar. Location: Russell Senate Office Building, Caucus Room, Washington DC.
Friday, May 11
Deadline to file reply comments with the FCC in response to its Notice of Inquiry (NOI) regarding cable open access. (See, In the Matter of Nondiscrimination in the Distribution of Interactive Television Services Over Cable, CS Docket No. 01-7.) The deadline had been April 20, but was extended. The FCC's electronic filing system contains 27 original comments.
Deadline to file comments with the FCC in response to its request for comments regarding the cable ownership limits imposed upon AT&T by the FCC in its AT&T Time Warner merger review proceeding, in light of the March 2, 2001, opinion of the U.S. Court of Appeals in Time Warner v. FCC, 249 F.3d 1126 (D.C. Cir. 2001). (CS Docket No. 99-251.) See, FCC notice.
12:30 PM. The Federal Communications Bar Association will host a lunch. The speaker will be Rep. Fred Upton (R-MI). Location: Capitol Hill Hyatt, 400 New Jersey Ave., NW, Washington DC.
12:30 PM. William Gates, Sr., a founder of the Seattle based law firm of Preston Gates, and a Co-Chair of the Bill and Melinda Gates Foundation, will speak at a National Press Club luncheon. Location: Ballroom, National Press Club, 529 14th St. NW, 13th Floor, Washington DC.
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