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4/5. The House Commerce Committee's (HCC)
Subcommittee on Telecommunications and the Internet amended and approved
HR __ [PDF], the "Communications Opportunity, Promotion, and Enhancement
Act of 2006", or COPE Act. The Subcommittee approved many amendments. Many amended were
offered, but rejected or withdrawn. Many of the withdrawn amendments, particularly
those related to consumer protection issues, were withdrawn under commitments
from the manager to work with the sponsor on appropriate language. Finally, one
approved amendment may be removed at the full Committee mark up. The following
is an amendment by amendment summary of the mark up.
1. Manager's Amendment to Title I. Rep. Upton began the April 5
meeting by calling up the base bill. He then offered and explained his
manager's amendment, which the Subcommittee approved by voice vote.
This amendment makes seven changes to the base bill. First, it provides
further provisions on when a national franchise must return to a local
franchise. Second, it addresses eligibility for a national franchise. It
provides that if a cable operator and an ILEC are both providing cable service
in a franchise area prior to enactment, both are eligible for a national
franchise when the local franchise of either is no longer in effect.
Third, it
addresses public, educational, and government (PEG) channels. It allows the FCC
to determine the number of PEG channels a holder of a national franchise must
carry not only in areas where there is no other cable operator, but also in
areas where there are other cable operators but none have been required to carry
PEG channels.
Fourth, it strengthens the anti-discrimination enforcement
language. Fifth, it strikes the language in the base bill that excludes from
gross revenues the charges for managing the public rights of way (ROWs). Sixth,
it adds reporting, record keeping, and auditing requirements.
Finally, the manager's amendment modifies the definition of "cable service".
It provides that this means:
"(A)(i) the one-way transmission to subscribers of (I) video programming, or
(II) other programming service; and
(ii) subscriber interaction, if any, which is required for the selection or use
of such video programming or other programming service; or
(B) the transmission to subscribers of video programming provided throught
wireline faclities located at least in part in the public rights-of-way, without
regard to delivery technology, including Internet protocol technology".
The managers amendment excepts from the term "cable service" the provision of
"solely interactive on-demand services", "any video programming provided by a
provider of commercial radio service provider", and "any information service".
It was approved by voice vote. However, some members of the Subcommittee were
still not satisfied with this definition.
2. Definition of
Cable Service. Rep. Anna Eshoo (D-CA)
offered an amendment to the manager's amendment to Title I pertaining to the definition of
cable service. She argued that it is not inclusive enough, and raised the matter of AT&T.
Rep. Upton argued that the amendment is unnecessary, and overreaches. He said
that "I believe that AT&T is already captured" by the bill, and that Rep.
Eshoo's amendment "could lead to the regulation of interactive computer
services". Such services are largely unregulated as information services, but
could be subjected to the regulatory regime that applies to cable services, he
argued.
Rep. Dingell and Rep. Eshoo raised the matter of a April 3, 2006, letter
written by Ed Whitacre to Rep. Dingell in which he asserted, among other things
that "AT&T's IP-enabled video service will not be a ``cable service´´ ...".
 Rep. Barton
(at left) said that Whitacre's letter was "silly". He said that under
current law, AT&T is offering a cable service. Moreover, he said that the bill,
as amended by the manager's amendment makes clear that AT&T's service is a cable
service. Rep. Barton also took this occasion to condemn AT&T's related petition
pending with the FCC.
The Eshoo amendment failed on a roll call vote of 13-17, which broke down
along party lines. All Republicans who voted, cast votes against this amendment.
Two Democrats, Rep. Bobby Rush (D-IL)
and Rep. Charles Gonzalez (D-TX), also
voted against this amendment. Rep. Rush is a cosponsor of the base bill, and voted
with the Republican sponsors on several votes. Rep. Gonzalez represents a
district in San Antonio, Texas, that is home to many employees of SBC. He too
voted with the Republican sponsors on several votes. SBC is a major beneficiary
of Title I of the bill.
3. Cubin Amendment. Rep. Barbara
Cubin (R-WY), who represents the entirety of the sparsely populated state of
Wyoming, offered an amendment that provides that "A cable programming vendor in
which a cable operator has an attributable interest shall not deny a cable
operator with a national franchise under this section access to video
programming solely because such cable operator uses a headend for its cable
system that is also used, under a shared ownership or leasing agreement, as the
headend for another cable system."
Rep. Heather Wilson (R-NM), who
represents the western state of New Mexico, also supported the amendment. It was
approved by voice vote.
4. Build Out Requirement. Rep. Dingell and Rep. Markey offered an
amendment that imposes a build out requirement on national cable franchisees.
For example, this amendment requires, in part, that "Beginning on the date
that is 5 years after the effective data of a cable operator's national
franchise under this section for a franchise area and every 3 years thereafter,
if in the portion of the franchise area where the cable operator is offering
cable service at least 15 percent of the households subscribe to such service,
the franchising authority in the franchise area may require the cable operator
to increase by 20 percent the households in the franchise area to which the
cable operator offers cable service by the beginning of the next 3-year
interval, until the cable operator is capable of providing cable service to all
households in the franchise area."
 Rep. Dingell
(at left) and Rep. Markey called this an anti-redlining amendment. They
argued that service providers with national franchises will only serve rich
people if they are not also required to build out their networks to serve people
in poor neighborhoods.
Rep. Rush represents an urban district on the south side of Chicago, 65.2% of
which is black, and 19.7% of which lives in poverty. See, National Journal's
Almanac of American Politics 2006, at page 561. He said that "I live among these
people", and that build out regulation is not the best way to promote deployment
of new services.
Rep. John Shimkus (R-IL), who
represents a partly rural district in downstate Illinois, argued during this
debate, as he did at other times during the meeting, that the bill should not be
written in a manner that discourages investment in the construction of new
facilities.
Rep. Dingell said with sarcasm that "We have heard that Wall Street won't
like it. And that is terrible."
Rep. Upton argued that many services providers will not go into certain
areas, and particularly areas that include a rural component, if they are
subjected to build out requirements.
Rep. Marsha Blackburn (R-TN) gave the example of how build out requirements
have harmed a company, and its would be customers, because of build out
requirements.
Rep. Barton said that this amendment "really goes to the heart of the bill".
He said, "I believe that markets work." He continued that build out requirement
make sense if there is a single monopoly service provider, but not in a system
based upon competition.
Rep. Gonzalez argued that a build out requirement would be the end of new
start up cable providers. Rep. Markey argued that the Subcommittee should then
approve an amendment that exempts service providers with a market capitalization
of less than $10 Billion from any build out requirement. Rep. Gonzalez responded
that you "are on to something". Rep. Markey suggested that this sort of
exemption might be revisited at the full Committee mark up.
This amendment was rejected on a roll call vote of 11-22.
5. Franchise Fees of National Franchisees.
Rep. Mike Bilirakis (R-FL) offered
an amendment that revises the language of the base bill regarding franchise
fees. It states that "A cable operator authorized under this section to provide
cable service in a franchise area shall pay to the franchising authority in such
franchise area a franchise fee of up to 5 percent (as determined by the
franchising authority) of such cable operator's gross revenues from the
provision of cable service under this section in such franchise area, in
accordance with section 622 and the definition of gross revenues in this
section."
It was approved by voice vote.
6. Annual FCC Reports on Cable Service.
Rep. Bart Stupak (D-MI) offered an
amendment that would require the FCC to prepare annual reports on cable service.
He initially withdrew it, subject to permission to offer it later. He again
offered it later in the day. It was approved by unanimous voice vote.
7. ROW Dispute Resolution. Rep. Dingell offered an amendment regarding
rights of way dispute resolution. Rep. Upton opposed it, arguing that it would
strip the FCC of authority, and enable cities to obstruct FCC enforcement of the
act. It failed on a roll call vote of 14-16.
8. Consumer Protection. Rep. Mike
Doyle (D-PA) offered an amendment regarding consumer protection.
Rep. Chip Pickering (R-MS), who was
presiding at the time, offered to work with Rep. Doyle on this issue. Rep. Doyle
withdrew his amendment.
9. Program Access. Rep. Rick
Boucher (D-VA) offered an amendment that would apply program access
requirements to both satellite and terrestrial. He argued that because of this
terrestrial "loophole ... the law in its current form is not working
satisfactorily", especially in getting sports programming in rural areas.
Rep. Ed Whitfield (R-KY), who, like
Rep. Boucher, represents a largely rural district, praised the amendment, and
voted for it. Rep. Pickering opposed the amendment, arguing that current law is
a "terrestrial investment in localism" provision. The amendment failed on a roll call
vote of 10-20.
10. Ownership Protectionism.
Rep. Frank Pallone (D-NJ) offered an amendment that would prohibit foreign
ownership or control of a national cable franchise. Rep. Upton raised the
subject of whether or not this amendment might violate existing trade
agreements. Rep. Gonzalez cautioned that "if that is the way we treat them, that
is the way they will treat us". The amendment failed by a vote of 9-19.
11. State Consumer Protection Authority.
Rep. Jay Inslee (D-WA)
offered an amendment that would give state attorneys general consumer protection
enforcement authority. Rep. Barton stated that the amendment, if adopted, would
give the House Judiciary Committee (HJC) jurisdiction over the bill, and asked Rep.
Inslee to withdraw it. Rep. Barton added that he supports the concept of the
amendment, but would like to see the sort of provision put in the bill at the
House Rules Committee stage, thereby depriving the HJC any opportunity to review
the bill. Rep. Inslee withdrew the amendment.
12. Closed Captioning. Rep. Inslee offered an amendment that would
require closed captioning of new video services. Rep. Upton pledged to work with
Rep. Inslee on this issue. Rep. Inslee withdrew the amendment.
13. Consumer Protection by FCC.
Rep. Al Wynn (D-MD) offered an amendment regarding consumer protection by
the FCC. He withdrew it upon receiving a pledge from Rep. Upton to work with him
on this issue.
14. Child Porn. Rep. Stupak offered an amendment
pertaining to child pornography. Members of both parties jumped to praise the
amendment, based upon the hideousness of the crimes involved in the making of
videos involving abuse of children. There was little discussion of how, if at
all, the amendment might actually limit the production or distribution of child
pornography.
This amendment states that the FCC "shall promulgate regulations to require a
cable operator with a national franchise under this section to prevent the
distribution of child pornography ... over its network."
It was approved by unanimous voice vote.
15. Public Interest Obligations. Rep. Markey offered an amendment that
states as follows: "MUST CARRY.--The provision of section 614, regarding
governmental intervention in the marketplace to ensure the free carriage of
local commercial television stations on cable systems, shall not apply to a
cable operator franchised under this section, until the Commission adopts final
rules requiring specific, quantifiable public interest obligations for such
television stations to fulfill as a condition of receiving a digital broadcast
license." He withdrew the amendment.
16. Local Renewal Hearings. Rep. Inslee offered an amendment that
would allow local franchising authorities to compel national franchisees to
submit to a local hearing at the time of renewal of a national franchise. The
amendment does not confer any authority upon the local authority, other than to
hold a hearing. Rep. Upton accepted the amendment, "with some reluctance". It
was approved by unanimous voice vote.
17. Spoof Amendment. Rep. Markey offered the last amendment to Title I
of the bill (regarding national video franchises). It also relates to Title II
(regarding network neutrality). He offered it in an effort to use humor for
debating purposes.
Rep. Markey and others argue that the Title II provisions giving the FCC
adjudicatory authority to enforce its policy statement regarding network
neutrality are insufficient. So, he drafted an amendment that would revise
current law regarding video programming access with a regulatory regime like
that contained in Title II.
The amendment states that "In lieu of the legally-enforceable, pro-consumer
and pro-competitive provisions of Section 628, the Commission is directed to
adopt a broadly-worded, imprecise policy statement of principles about the
benefits of video programming access by competitors. The Commission shall have
the ability to enforce such vague statement of policy principles, but shall not
be permitted to implement such principles in to more effective rules."
Rep. Markey joked that he has warmed to the views of AT&T and SBC on the
network neutrality issue. He added that he has drunk the cool aid. So, he
jested, their access to video programming ought to be subject to the same sort
of vague policy statement protection, that the bill affords consumers and
content providers in accessing their broadband networks.
He then withdrew this amendment.
18. Manager's Amendment to Title II. Rep. Upton offered a manager's
amendment to the network neutrality title of the bill. For the purposes of FCC
adjudicatory proceedings on complaints that allege violation of the FCC network
neutrality principles, it sets a maximum penalty of $500,000. It also requires
the FCC to complete its proceedings within 90 days of receipt of a complaint. It
further authorizes the FCC to issue compliance orders. It also authorizes the
FCC to write procedural rules regarding the conduct of complaint proceedings.
It provides, in part, that the FCC "shall have exclusive authority to
adjudicate any complaint alleging a violation of the broadband policy statement
and the principles incorporated therein. The Commission shall complete an
adjudicatory proceeding under this subsection no later than 90 days after
receipt of the complaint. If, upon completion of an adjudicatory proceeding
pursuant to this section, the Commission determines that such a violation has
occurred, the Commission shall have authority to adopt an order to require the
entity subject to the complaint to comply with the broadband policy statement
and the principles incorporated therein."
It was adopted by voice vote.
19. Network Neutrality. Rep. Markey, Rep. Boucher, Rep. Eshoo, and
Rep. Inslee offered an amendment containing a broader network neutrality
mandate.
It failed on a roll call vote of 8-23.
See, story titled "House Subcommittee Rejects Network Neutrality Amendment",
in this issue.
20. Advanced Internet Communications Services Act.
Rep. Cliff Stearns (R-FL) and Rep.
Boucher offered an amendment that provides that the FCC has exclusive authority
regarding advanced internet communications services. They promoted their stand
alone bill on the same topic.
On January 4, 2005, Rep. Stearns and Rep. Boucher introduced
HR 214,
the "Advanced Internet Communications Services Act of 2005". This is a
reintroduction of a bill from the 108th Congress,
HR 4757, the "Advanced Internet Communications Services Act of 2004". For a
summary of the Stearns Boucher bill, see story titled "Rep. Stearns and Rep.
Boucher Introduce VOIP and Internet Regulation Bill" in
TLJ Daily E-Mail
Alert No. 935, July 12, 2004.
Rep. Stearns withdrew the amendment.
This completed the amendments pertaining to Title II of the bill. The
Subcommittee proceeded to amendments to Title III of the bill, regarding
extending E911 regulations to VOIP service providers. There was no managers'
amendment for this title.
21. Gordon Amendment. Rep. Bart
Gordon (D-TN) offered an amendment regarding Title III. TLJ did not obtain a
copy, and hence, offers no description of it here. It was approved by unanimous
voice vote.
22. VOIP and Alarm Monitoring Services. Rep. Stearns offered an
amendment regarding VOIP service and alarm monitoring.
It provides, in part, that "Prior to installation or number activation of
VOIP service for a customer, a VOIP service provider shall give clear and
conspicuous notice to the customer that to ensure proper functioning of alarm,
security, and personal emergency response system monitoring services -- (1) the
customer's alarm, security and personal emergency response system must be
tested, and the customer's alarm, security, and personal emergency response
provider must be notified, after VOIP service is installed ..."
Rep. Elliot Engel (D-NY) and Rep. Ed Towns (D-NY) offered their support. Rep.
Upton offered to work with Rep. Stearns on this issue, and asked that the
amendment be withdrawn.
Rep. Stearns withdrew the amendment.
23. VOIP Intercarrier Compensation and USF Contributions. Rep. Stupak
offered an amendment that would extend intercarrier compensation and universal
service contribution obligations to VOIP service providers.
Rep. Boucher praised Rep. Stupak for offering the amendment, and used the
occasion to promoteHR 5072, the
"Universal Service Reform Act of 2006", which Rep. Boucher and Rep. Lee Terry
(R-NE) introduced on March 30, 2006.
Rep. Upton said that this is not a universal service bill, and asked Rep.
Stupak to withdraw the amendment.
Rep. Pickering said that this issue should be addressed, "but this is not the
time or the bill to do this".
"I don't see it being hooked up to this bill", said Rep. Upton. However, he
added that "if the Senate does add it we will have to deal with it at that
point."
Rep. Stupak then withdrew the amendment.
24. VOIP Service Providers' Rights and Obligations Under §§ 251 and 252.
Rep. Pickering offered an amendment regarding the rights of VOIP service
providers.
It provides, first, that "A facilities-based VOIP service provider shall have
the same rights, duties, and obligations as a requesting telecommunications
carrier under sections 251 and 252 ... if the provider elects to assert such
rights."
It further provides that "A VOIP service provider that is not a
facilities-based VOIP service provider shall have only the same rights, duties
and obligations as a requesting telecommunications carrier under sections
251(b), 251(e), and 252, if the provider elects to assert such rights."
This amendment leaves to the FCC the task of defining the term
"facilities-based VOIP service provider".
The amendment was approved by unanimous voice vote.
25. Access to ROWs. Rep. Stearns offered an amendment regarding access
to public rights of way. Rep. Stearns argued that it would ensure that new
entrants would have ready access to ROWs. Rep. Upton stated that is was not
germane. Rep. Stearns withdrew it.
26. Legacy Regulation of VOIP Service. Rep. Inslee and Rep. Engel
offered an amendment that imposes upon VOIP service providers the regulatory
regime for telecommunications for deaf and hearing impaired services.
Rep. Inslee stated that this requirement only applies to services that are a
replacement for telephone service.
He inaccurately described the contents of his amendment. It states that "A
VOIP service provider shall have the same rights, duties, and obligations as a
telecommunications carrier under sections 225, 255, and 710. In revising the
Commission's regulations under such sections to carry out this subsection, the
Commission shall consider whether a service or equipment is marketed as a
substitute for telecommunications service, telecommunications equipment,
customer premises equipment, or telecommunications relay services."
Rep. Upton stated that he accepted the amendment.
Rep. Barton then expressed his displeasure at not have been given a copy of
this amendment beforehand, and his opposition to the content of the amendment.
He added that he would not interfere with any commitment that Rep. Upton had
made to Rep. Inslee and Rep. Engel. "You are the Subcommittee Chairman. This is
your mark up." However, he added that "I would like to point out the obvious. I
chair the full Committee."
Rep. Upton said then that there may be a manager's amendment at the full
Committee mark up that removes this amendment.
Basically, Rep. Barton said that VOIP "is a different animal" from telephone
service. He expressed opposition to imposing old regulatory regimes on new
internet services. "I don't think this bill is about reinventing regulation",
said Rep. Barton. He added that this amendment "would be burdensome, to say the
least, to implement".
Rep. Barton sat in silence, with his hand on his mouth, when the Subcommittee
approved this amendment by unanimous voice vote.
27. White Space Study. Rep. Inslee offered an amendment that would
require the FCC and NTIA to conduct a "band-by-band analysis of the usage of
spectrum to identify any bands that are not being used efficiently".
Rep. Upton said that it was not germane. Rep. Inslee withdrew it.
28. Tying by Broadband Service Providers. Rep. Boucher offered an
amendment that provides that "A broadband service provider shall not require a
subscriber, as a condition on the purchase of any broadband service the provider
offers, to purchase any other cable service or telecommunications service
offered by the provider."
Rep. Boucher argued that consumers should be able to purchase broadband
service as a stand alone service.
Rep. Upton accepted the amendment. It was approved by unanimous voice vote.
Franchising Parity. Rep. Pickering did not offer an amendment
pertaining to franchising parity, when there are two or more service providers
in one area. However, he stated that he had considered doing so, and that he
might offer such an amendment later.
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