4/26. The House Commerce Committee (HCC)
amended and approved the "Communications Opportunity, Promotion, and Enhancement
Act of 2006", or COPE Act. This bill has not yet been introduced in the House.
Hence, there is no bill number. There is also no bill sponsor. However,
Barton (R-TX) identifies himself as the sponsor, and
Rep. Bobby Rush (D-IL) as a cosponsor.
The HCC's Subcommittee on Telecommunications and the Internet amended and approved
the COPE Act on April 5, 2006. See, stories titled "House Subcommittee Approves
COPE Act", "House Subcommittee Rejects Network Neutrality Amendment", and
"Amendment by Amendment Summary of Subcommittee Mark Up of COPE Act" in
Daily E-Mail Alert No. 1,344, April 6, 2006.
See also, March 27, 2006,
committee print [34 pages in PDF]. The Subcommittee approved numerous
amendments on April 5, 2006, which were incorporated into the April 26, 2006,
committee print [50 pages in PDF]. This was the base bill for the April 26,
2006, mark up by the full Committee.
The Committee proceeded Title by Title. It first considered amendments to Title I
of the bill, which establishes a national cable franchise. Amendments 1 through
18 pertained to Title I.
The Committee then considered one amendment (19) to Title II, which provides that the
Federal Communications Commission (FCC) is
authorized to enforce its August 2005
statement [3 pages in PDF] regarding network neutrality through case by case
The Committee then considered amendments (20 through 23) to Title III, which extends
the E-911 regulatory regime, and other legacy regulatory regimes, to voice over
internet protocol (VOIP) service.
The Committee then considered amendments (24 and 25) to Title IV, which provides that
state and local entities may provide any telecommunications, information or cable service.
The Committee then considered amendments (26 through 29) to Title V, which
pertains to broadband as a stand alone service. The Committee then considered
further amendments to the bill (30 through 33).
For quick reference, there are red check marks adjacent to items that
were approved by the Committee.
1. Barton: Manager's Amendment. The Committee
approved by voiced vote a
amendment [11 pages in PDF] offered by
Rep. Barton. It contains 26 separate changes to the base bill.
2. Solis: Build Out Mandate. The Committee rejected on a roll call vote of 22 to 33 an
[4 pages in PDF] offered by Rep. Hilda Solis
(D-CA), Rep. John Dingell (D-MI) and
Rep. Ed Markey
(D-MA) that would have imposed a build out requirement on cable operators.
The amendment provided that "Beginning on the date that is 5
years after the effective date 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
Charles Gonzales (D-TX) (at right), who
voted against this amendment, and for final approval, argued that "what we are
really arguing is the digital divide". He stated at this time, and again many
times throughout the mark up, that the companies providing service are not the
problem. Rather, they are the solution. He said that "the remedy is not to
discourage new entrants".
Rep. Barton argued that this amendment goes against the heart of the bill. He
said that "we want to go to a market based model", and that service providers in
a competitive market will have an incentive to maximize their market share.
3. Stearns: Truth in PEG and iNet Billing. The
Committee approved by voice vote an
[1 page in PDF] offered by Rep. Cliff Stearns
(R-FL) which allows service providers to disclose on their bills to customers information
about public, education and government (PEG) access and iNet funding.
4. Waxman: Income Discrimination. The Committee rejected on a roll call vote of
22-29 an amendment [2 pages in PDF] offered
by Rep. Henry Waxman (D-CA) that would have
prohibited discrimination by cable operators on the basis of income.
It provided, in part, that "A cable operator with a national franchise under
this section shall not deny or offer inferior access to its cable service to any
group of potential or current residential cable service subscribers in a manner
that has the purpose or effect of discriminating against that group on the basis
of the income of that group."
Rep. Fred Upton (R-MI) argued
against the amendment on the grounds that the base bill already contains
5. Solis: Discrimination. The Committee rejected on a roll call vote of 23 to 29 an
[1 page in PDF] offered by Rep. Solis that contained a broader prohibition of discrimination by
It would have prevented discrimination "on the basis of race, color,
religion, national origin, sex, or income".
Rep. Solis argued that "the underlying text fails to prevent discrimination.
Rather than protecting local governments and ensuring their residents receive
equitable treatment, this legislation would allow new entrants to deny services
to poor, underserved or minority communities altogether."
Rep. Barton argued that there are already existing laws of general
applicability against discrimination on the basis of race, religion, national
origin, and other grounds.
Rep. Barton also argued at this time, and at many times throughout the
hearing, that the House Commerce Committee should not include any language in
the bill that might give the House
Judiciary Committee (HJC) a claim to jurisdiction over the bill. He said
that civil rights language might have that consequence.
He commented about the HJC, "they could do all kinds of mischief to it".
6. Dingell: Local Authority. The Committee rejected on a roll call vote of 23 to 30 an
[3 pages in PDF] offered by Rep. John
Dingell (D-MI) that would have increased the powers of local franchising
7. Doyle: Local Enforcement Authority. The Committee rejected on a roll call vote of 23 to 27 an
[7 pages in PDF] offered by Rep. Mike Doyle (D-PA) that would have given local authorities
more enforcement authority.
8. Baldwin: Redlining. The Committee rejected on a roll call vote of 20 to 28 an
[5 pages in PDF]
offered by Rep. Tammy Baldwin (D-WI) regarding
Rep. Barton argued that Democrats were offering variations on the same
proposal over and over again with the Solis, Waxman, Solis, Dingell, Doyle, and
Baldwin amendments. He said that the Baldwin amendment is "a little bit
different bite at the apple, but the same apple that we have been biting at all
He also argued that the base bill already contains anti-redlining provisions.
9. Wynn: Consumer Protection. The Committee approved
by voice vote an
amendment [3 pages in PDF] offered by
Rep. Al Wynn (D-MD) regarding consumer protection.
The base bill requires the filing of a certification to obtain a national
franchise. The Wynn amendment requires that applicants include in their
certifications declarations that "the operator will comply with all Commission
consumer protection and customer service rules under section 632(b) and
subsection (g) of this section" and "the operator agrees that such standards may
be enforced by the Commission or by the franchising authority in accordance with
subsection (g) of this section."
The base bill requires the FCC to write rules for the holders of national
cable franchises regarding consumer protection and customer service. The Wynn
amendment adds that "Such rules shall, in addition to the requirements of
section 632(b), address with specificity no less than the following consumer
protection and customer service issues: (i) Billing, billing disputes, and
discontinuation of service, including when and how any late fees may be assessed
(but not the amount of such fees). (ii) Loss of service or service quality.
(iii) Changes in channel lineups or other cable services and features. (iv)
Availability of parental control options." (Parentheses in original.)
The Wynn amendment adds also that "Such rules shall require forfeitures penalties
or customer rebates, or both, as determined by the Commission, that may be
imposed for violations of such Commission rules in a franchise area, and shall
provide for increased forfeiture penalties or customer rebates, or both, for
repeated violations of the standards in such rules", and that such rules "shall
also establish procedures by which any forfeiture penalty assessed by the
Commission under this subsection shall be paid by the cable operator directly to
the franchising authority."
10. Eshoo: Definition of Cable Service.
Rep. Anna Eshoo (D-CA) (at right) offered an
amendment [1 page in PDF] regarding the definition of
cable service. However, she withdrew it.
11. Green: ROW Declaration. The Committee approved
by voice vote an
[1 pages in PDF] offered by Rep. Gene
Green (D-TX) that requires that applicants for a national franchise include
in their certifications "a declaration by the cable operator that the operator
will comply with the rights-of way requirements of the franchising authority
under subsection (f)."
12. Green: Income Based Discrimination. The
Committee approved by voice vote a second amendment offered by Rep. Green pertaining to
income basis discrimination.
The base bill provides that "If the Commission determines (in response to a
complaint under this paragraph or on its own initiative) that a cable operator
has denied access to its cable service to a group of potential residential cable
service subscribers because of the income of that group, the Commission shall
ensure that the cable operator extends access to that group." (Parentheses in
This Green amendment adds to the end of this paragraph the phrase "within a
reasonable period of time".
(Editor's Note: this amendment was not in the web site of the House Commerce
Committee as of publication of this article. Hence, from this amendment on, the
numbering of amendments in the HCC web site differs from TLJ's numbering.)
13. Schakowsky: Consumer Protection.
Rep. Jan Schakowsky (D-IL) offered an
[1 page in PDF] regarding state authority to write consumer protection laws.
This amendment provided that "No State or local law (including
any regulation) shall impose on a cable operator franchised under this section
any consumer protection or customer service requirement unless such requirement
is either -- (A) of general applicability; or (B) not inconsistent with an
express national consumer protection or customer service rule issued by the
However, she then withdrew it.
14. Allen: Annual FCC Reports. The Committee approved by voice vote an
amendment [1 page in PDF] offered by
Allen (D-ME) that amends the base bill's requirement that the FCC prepare
annual reports on the deployment of cable service. The amendment requires that
the FCC also include "a comparison with the progress of deployment of broadband
services not defined as cable services within such telephone service area".
15. Allen: Annual FCC Reports. The Committee
approved by voice vote a second amendment
offered by Rep. Allen regarding the annual reports to be prepared by the FCC.
It requires the FCC to describe in detail "the proportion of rural households
to urban households, as defined by the Bureau of the Census, in those franchise
areas or portions of franchise areas where cable service is being offered, and
the proportion of rural households to urban households in those franchise areas
or portions of franchise areas where cable service is not being offered,
including a State-by-State breakdown of such data and a comparison with the
overall ratio of rural and urban households in each State".
(Editor's Note: this amendment was not in the web site of the House Commerce
Committee as of publication of this article.)
16. Inslee: State Enforcement of Consumer Protection Standards.
Rep. Jay Inslee (D-WA) offered an
amendment [2 pages in PDF] regarding state enforcement of consumer
protection and customer service standards. However, he withdrew it.
17. Pickering: Eligibility for National Franchises.
The Committee approved by voice vote an
[pages in PDF] offered by Rep. Chip
Pickering (R-MS) and Rep. Frank
Pallone (D-NJ). It contains two provisions.
First, it provides that "A national franchise under this section
shall be effective with respect to any franchise area 30 days after the date of
the filing of a completed certification under subsection (a)(2)(A) or (B) that
applies to such franchise area."
Second, it provides that "A person or group that is providing
cable service under section 621 or any other law in a franchise area on the date
of enactment of this section may provide cable service pursuant to a national
franchise under this section in such franchise area if, on the date that the
national franchise becomes effective, another person or group is providing cable
service under this section, section 621, or any other law in such franchise area."
18. Baldwin: Increased Funding for PEG Access. The Committee rejected an
amendment [3 pages in PDF] offered by Rep. Baldwin and
Heather Wilson (R-NM) regarding funding for public, educational and
government (PEG) access.
Barton argued against the amendment. He stated that the bill provides for PEG
funding of 1% of gross revenues. He said that this amendment would require new entrants to
pay the same amount per subscriber as incumbents, and would therefore discourage
The vote was 19 to 20. However, the division was not as close as the vote
total suggests. This amendment was taken up just after the Committee took a
recess for a series of floor votes. 11 Republicans and several Democrats had not
yet returned to the Committee room.
This completed the Committee's consideration of amendments to Title I of the
bill. It then proceeded to Title II, regarding network neutrality.
19. Markey: Network Neutrality. The Committee rejected an
[5 pages in PDF] offered by Rep. Ed Markey (D-MA), Rep. Rick Boucher (D-VA), Rep. Anna Eshoo
(D-CA), and Rep. Jay Inslee (D-WA) that would have imposed a broader network neutrality
mandate. It failed on a roll call vote of 22-34.
The amendment provided that each broadband network provider has five duties:
First, "not to block, impair, degrade, discriminate against, or interfere
with the ability of any person to use a broadband connection to access, use,
send, receive, or offer lawful content, applications, or services over the
Second, "to operate its broadband network in a nondiscriminatory
manner so that any person can offer or provide content, applications, and
services through, or over, such broadband network with equivalent or better
capability than the provider extends to itself or affiliated parties, and
without the imposition of a charge for such nondiscriminatory network
Third, "if the provider prioritizes or offers enhanced quality
of service to data of a particular type, to prioritize or offer enhanced quality
of service to all data of that type (regardless of the origin of such data)
without imposing a surcharge or other consideration for such prioritization or
enhanced quality of service". (Parentheses in original.)
Fourth, "to enable a user to attach and use any device to the
operator’s network that does not physically damage, make unauthorized use of, or
materially degrade other users’ utilization of, the network".
Fifth, "to clearly and conspicuously disclose to users, in plain
language, accurate information about the speed, nature, and limitations of their
The amendment added that "Nothing in this section shall prevent
a broadband network provider from taking reasonable and nondiscriminatory
measures to -- (1) manage the functioning of its network to protect the security
of such network and broadband network services, provided that such management
does not depend upon the affiliation with the broadband network provider of the
content, applications, or services on the network; (2) offer varied service
plans to users at defined levels of bandwidth and different prices; (3) offer
consumer protection services (including services for the prevention of
unsolicited commercial electronic messages, parental controls, or other similar
capabilities), or offer cable service, so long as a user may refuse or disable
such services; (4) give priority to emergency communications; or (5) prevent any
violation of Federal or State law, or comply with any court-ordered law
The amendment then provided that the FCC shall write rules within 180 days
"providing for the expedited review of any complaints alleging a violation of
this section. Such regulations shall include a requirement that the Commission
issue a final order regarding any request for a ruling contained in a complaint
not later than 30 days after the date of submission of such complaint."
Rep. Eshoo (at right), who represents a
Silicon Valley district, gave a passionate, but imprecise, defense of network neutrality principles. She said that it
means not allowing broadband companies to "tax" or "squash" the internet. It
means "mits off the internet".
Rep. Heather Wilson (R-NM), the
only Republican to support this amendment, argued that broadband providers want
to develop a second stream of revenues from content providers. She said that
prioritizing information is how they plan to accomplish this. She argued that
content providers "should not have to pay the owners of the pipe".
Rep. Boucher argued that the Congress should preserve the open and accessible
nature of the internet, which is its "historical architectural characteristic".
He added that the network neutrality amendment would preserve the "status quo".
Rep. Inslee argued that pipe owners should not be gate keepers of freedom of
speech. He said that "all data is created equally", and should be treated
Rep. Barton argued that the Title II of the base bill, which enables
the FCC to enforce on a case by case basis the network neutrality principles
adopted on August 5, 2005, are sufficient.
The amendment failed on a roll call vote. This completed the Committee's
consideration of amendments to Title II. It then proceeded to amendments to
Title III, regarding VOIP/911 and other regulation of VOIP services.
20. Stearns: Notice of Activation of VOIP Service.
The Committee approved by voice vote an
[2 pages in PDF] offered by Rep. Cliff Stearns
It provides that "Prior to installation or number activation of VOIP service
for a customer, a VOIP service provider shall provide clear and conspicuous
notice to the customer that -- (A) such customer should arrange with his or her
emergency response system provider, if any, to test such system after
installation; (B) such customer should notify his or her emergency response
system provider after VOIP service is installed; and (C) a battery backup is
required for customer premises equipment installed in connection with the VOIP
service in order for the signaling of such system to function in the event of a
By this point of the mark up, the Committee was considering amendments in
rapid succession. When the Committee approved the next amendment (21), it
inadvertently removed the language of the Stearns amendment. Later in the mark
up, after staff realized this, the Committee then again approved the Stearns
21. Gordon: Regulation of VOIP: 911. The Committee
approved by voice vote an
amendment [10 pages in PDF] offered by Rep. Bart
Gordon (D-TN) (at right), Rep. Chip Pickering (R-MS), Rep. Anna Eshoo (D-CA), Rep.
John Shimkus (R-IL), and Rep. Mike Ferguson (R-NJ).
This amendment replaces the new Section 716 of the Communications Act to be
created by Title III of this bill. This section provides that "Each VOIP service
provider has a duty to ensure that 911 and E–911 services are provided to
subscribers of VOIP services."
During debate on this amendment, Rep. Markey asked a number of questions to
Committee staff. What this line of questioning revealed is that staff do not
share a common understanding of how some parts of this provision would operate.
Then, Rep. Barton, the sponsor and manager of the bill, asked a series of
questions that revealed that he does not understand the technology that is to be
regulated by this Title of the bill.
Rep. Markey concluded that this provision needs a lot of work.
Rep. Gordon's response was that the questions raised by Rep. Markey go to the
definitions in the base bill, rather than the language in his amendment. The Committee
approved this amendment by voice vote. There were no votes against the amendment.
22. Stupak: Legacy Regulation of VOIP: Universal Service. The
Committee rejected by voice vote an
[2 pages in PDF] offered by Rep. Bart Stupak
(D-MI) regarding VOIP and universal service.
This amendment provided that "Nothing in this Act (including the
amendments made by this Act) shall be construed to exempt a VOIP service
provider from requirements imposed by the Federal Communications Commission or a
State commission on all VOIP service providers to -- (1) pay appropriate
compensation for the transmission of a VOIP service over the facilities and
equipment of another provider; or (2) contribute on an equitable and
non-discriminatory basis to the preservation and advancement of universal
23. Inslee: Legacy Regulation of VOIP:
Disability Access. The Committee approved by voice vote an
[1 page in PDF] offered by Rep. Jay Inslee (D-WA) that replaces the language in the base
bill regarding disability access.
It provides that "A VOIP service provider or a manufacturer of VOIP service
equipment shall have the same rights, duties, and obligations as a
telecommunications carrier or telecommunications equipment manufacturer,
respectively, under sections 225, 255, and 710 of the Act. Within 1 year after
the date of enactment of this Act, the Commission, in consultation with the
Architectural and Transportation Barriers Compliance Board, shall prescribe such
regulations as are necessary to implement this section. In implementing this
subsection, the Commission shall consider whether a VOIP service provider or
manufacturer of VOIP service equipment primarily markets such service or
equipment as a substitute for telecommunications service, telecommunications
equipment, customer premises equipment, or telecommunications relay services."
This replaces the language on this subject approved during the
Subcommittee mark up on April 5. At that mark up Rep. Barton opposed imposing
old regulatory regimes on new internet services. He suggested that the language
might be removed. However, the Committee approved this amendment by voice vote.
Rep. Pickering received consent to offer an amendment to Title
III later in the hearing. (See, Amendment 33, below.) Otherwise, this completed the
Committee's consideration of amendments to Title III. The Committee then considered
amendments to Title IV, which deals with municipal service offerings.
24. Buyer: FCC Report on Municipal Service
Offerings. The Committee approved by voice vote an
[1 page in PDF] offered by Rep. Steve Buyer (R-IN)
that requires the FCC to write a report within one year
"on the status of the provision of telecommunications service, information
service, and cable service by States and political subdivisions thereof."
The base bill provides, in part, that "Neither the Communications Act of 1934
nor any State statute, regulation, or other State legal requirement may prohibit
or have the effect of prohibiting any public provider of telecommunications
service, information service, or cable service (as such terms are defined in
sections 3 and 602 of such Act) from providing such services to any person or
entity." (Parentheses in original.)
25. Terry: Grandfathering of State Prohibitions of Municipal Service
Offerings. The Committee rejected by voice vote an
amendment [1 page in PDF] offered by
Rep. Lee Terry (R-IA) that would have
grandfathered existing bans on municipal offerings.
His amendment provided that "Nothing in this section shall affect any State
law, rule, regulation or legal requirement that is in effect on the date of
enactment of this section and that governs, applies to, limits, restricts, or establishes
requirements relating to, the provision of telecommunications, telecommunications service,
information service, or cable service by a public provider."
This concluded the Committee's consideration of amendments to Title IV. It
then proceeded to amendments to Title V, which 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 cable service or
telecommunications service offered by the provider." This language was added
during the April 5 Subcommittee mark up via an amendment offered by Rep.
Rick Boucher (D-VA). (Amendment 28 below amends this language.)
26. Blackburn: Regulation of Wireless Services.
Rep. Marsha Blackburn (R-TN), Rep.
Rick Boucher (D-VA), and Rep. Jay Inslee (D-WA) offered an
amendment [2 pages in PDF] that provided that states cannot regulate wireless services,
and that the FCC shall write national wireless consumer protection rules.
First, the amendment provided that "Notwithstanding any other provision of
law, no State or local governmental entity shall, for any mobile service or any
other service that is primarily intended for receipt on or use with a wireless
device that is used by a customer of mobile service in connection with such
mobile service, regulate or adjudicate the rates, terms, or conditions of the
offering of such service. Except with respect to laws that regulate or have the
effect of regulating the rates, terms, conditions and entry of the offering of
such service, this subsection shall not be construed to apply to State or local
laws that are generally applicable to businesses in the State or locality,
Second, the amendment provided that the FCC shall "by rule establish national
consumer protection standards for subscribers to mobile service."
However, the amendment was not germane to the bill, and she withdrew it.
27. Ross: FCC BPL Study. The Committee approved an
[1 page in PDF] offered by Rep. Mike Ross (D-AR) that requires the FCC to write a "study
of the interference potential of broadband over power line systems".
28. Pickering: No Tying of VOIP to Broadband
Offering. The Committee approved by voice vote an
[1 page in PDF] offered by Rep. Chip Pickering (R-MS) that clarifies that a broadband service
provider cannot tie a broadband service offering to cable service, telecommunications
service, or VOIP service. It adds the reference to VOIP service.
Hence, the opening paragraph to Title V now reads as follows: "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 cable service,
telecommunications service or VOIP service offered by the provider."
This amendment is labeled as a Rep. Pickering amendment, also offered by Rep.
Boucher. During the mark up, Rep. Boucher offered the amendment on behalf of
Rep. Pickering, who was out of the room at the time. The HCC web site identifies
it as a Rep. Boucher amendment.
(Continued in column 2.)