Hello, America, and welcome to a world in which the legislature and the executive branch are held by two competing parties that see eye-to-eye on almost nothing. Ironically, this could be a good thing for Washington productivity: Instead of the deadlock caused by the Senate thwarting the House and vice versa all the time, Republicans say controlling both chambers will let them work together on sending legislation to the White House.
But will those bills be substantive? Or will they be mostly political, designed to corner President Obama into positions he doesn't want to take? For one indicator, look no further than a burgeoning push by House Republicans to rewrite the nation's communications laws. If the effort pans out — and Republicans certainly seem eager to try — we could see a major reworking of the laws that shape how you watch TV, get online and make phone calls.
If you thought net neutrality was a big fight, you haven't seen anything yet. Net neutrality is largely about a single policy being developed by the Federal Communications Commission, an independent agency. What Republicans want to do now is take aim at the law that created the FCC in the first place, along with all of its powers. It's an ambitious project that could have far-reaching consequences, shaping the next two decades of tech policy. And you're going to start hearing a lot more about it in the next Congress. Here's everything you need to know about it, right now.
What are the Republicans planning, exactly?
The effort starts with two conservatives in the House, Reps. Fred Upton (R-Mich.) and Greg Walden (R-Ore.). On Tuesday, Upton cruised to reelection despite attempts by campaign finance reformers to unseat him. Upton and Walden are powerful leaders on the Energy and Commerce Committee — and they intend to use the next few years to rewrite the Communications Act, which serves as the congressional charter for the FCC and lays out what the agency can regulate, and in what ways.
You may have heard about the Act — also known interchangeably as the Telecommunications or Telecom Act — in the context of the net neutrality fight; briefly, the FCC is considering reclassifying broadband providers under something known as Title II. Title II is the part of the Telecom Act that lets the FCC regulate phone companies as "common carriers," applying to these companies special obligations and extracting certain fees. But there are a lot of other parts of the Telecom Act, like Title I, Title III, Title VI and so on — these silos each address different industries, such as cellular carriers and cable TV.
A rewrite of the Telecom Act might change little pieces of these titles — or they might scrap them for something else entirely. Many industry officials and analysts believe an incremental shift is the likelier of the two. But there are few concrete proposals on the table yet, and with Republicans in control of both chambers of Congress, Upton and Walden can more or less write a new Telecom Act however they want. They'll be joined in the Senate by the likes of John Thune (R-S.D.), who now takes over as chairman of the Senate Commerce Committee from the top Democrat, Sen. Jay Rockefeller (D-W. Va.).
When will we see a bill?
That's the thing. Although House Republicans have vowed to start drafting legislation early next year, pretty much everyone agrees it'll take a few years at least to pull a final product together. That's what makes writing about a rewrite so hard: It's a thing that isn't yet a thing but eventually will be if everyone keeps talking about it. How big a thing depends on still more things, which I'll get into shortly.
For months, the House has been pushing out white papers asking for feedback on what should go into a rewrite. Now, Republicans say they're poised to begin acting on it.
"We have been hard at work over the past year gathering input and information to inform our work on a Comm Act update," said Upton and Walden in a statement to the Post. "While that work continues, we are ready to put pen-to-paper in the coming months as we update the nation¹s communications laws to further unleash growth and job creation in the innovation era."
Why the interest in rewriting the Act now?
There are a few layers to peel back here. In general, it's safe to say that Republicans see the rewrite as an opportunity to deregulate the communications industry; Upton and Walden have pointed out that technology has changed a great deal since the last time Congress rewrote the Act in 1996. Legacy rules, they argue, risk holding back new technologies and innovation. Others, particularly consumer groups, say the nation's telecom laws are founded on universal principles that apply no matter the technology being regulated. This is a substantive or ideological question, and where lawmakers fall on it will help shape their stance on a rewrite. You'll want to watch this rhetoric closely, because unlike other issues, this one crosses partisan divides.
In certain circumstances, this could force Republicans to make some uncomfortable choices. Analysts believe that any rewrite would be risky for the broadcast industry — with whom Walden is particularly close — because the current system serves them relatively well. But to get other players on board, Walden may need to risk angering his ally.
"We need to be taking on some of our friends," said Norm Coleman, the former Republican senator from Minnesota. "When I say 'taking on,' it's not 'throwing under the bus,' it means saying that sometimes, you've got to bring your friends to a place where they don't want to be. The definition of leadership is bringing folks to places they don't yet realize it's a good place to be."
What are some ideas we could see?
That brings us to another layer atop the first, and it's about the competing influence of different industries. Republicans are charged with a delicate balancing act. Everyone from cable to broadcast to broadband to wireless needs to think they can get something out of a rewrite.
There's some reason to think this is already the case. Preston Padden, a longtime member of the broadcast industry, said one thing he'd like to see is for Congress to give broadcasters more flexibility in the way they can use their airwaves. Smaller telecom companies want to make sure larger firms don't squeeze them out as the country shifts from the heavily regulated, copper-based infrastructure of the past to the fiber optic-based infrastructure of the future, which the FCC doesn't regulate as closely. Officials from the cable industry — not to mention the growing group of companies that do online streaming video — want the rules around video to be redone, particularly when it comes to the amount of money cable companies pay to broadcasters for the right to run their programming. Earlier this year, Sen. Thune unveiled a proposal to do just that, and the idea may make an appearance in the rewrite. New broadband entrants, such as Google Fiber, could benefit if lawmakers waive or somehow weaken local barriers to building infrastructure.
Republicans's task will be to appease all these interests. What makes it especially difficult is that many of these industries used to operate independently of one another. Now, many of them are finding themselves competing on or over the Internet, which makes it hard to determine who needs protection from whom.
Sounds complicated. How will Republicans forge a consensus out of all of this?
They'll need some help. Upton and Walden are influential — and Walden especially is an ally of the broadcasters, having owned a radio station for a while — but certain things happening around them could help make a rewrite more likely. One of them is net neutrality: Analysts say that if the FCC comes out with net neutrality rules that Internet providers don't like, they won't just make a big stink of it in the courts, they'll use the rewrite to roll those regulations back.
In addition, the mega-mergers currently under review by federal officials involving Comcast and Time Warner Cable, and separately, AT&T and DirecTV, may help catalyze a rewrite effort. That's because Comcast and AT&T will likely have to make some concessions in order to satisfy antitrust regulators — and Congress could help the companies weaken those concessions, too.
That's similar to what happened the last time Congress rewrote the Act. Back in the 1980s, regulators broke up AT&T's telephone monopoly and set up barriers that kept long-distance phone companies from entering local markets and vice versa. According to Robert Litan, an economist and lawyer who served in the Clinton administration, tearing down those barriers was a key factor that helped drive momentum for the rewrite that passed in 1996.
On top of all that, some believe there's an opportunity for the House GOP to change how the FCC works on the day-to-day — tweaking a program here, making decisions faster there.
You haven't talked at all about congressional Democrats.
Good point. That's because Democrats largely feel as though they've been excluded from the discussions — something that may continue now that the GOP controls both the House and Senate. According to one Democratic aide, Republicans have not been forthcoming about what they'd like to see in a rewrite.
"If it's to unravel consumer protections and provisions to protect competition, I don't see how that's going to fly with Democrats," said the aide, who spoke on the condition of anonymity because the talks are sensitive.
All this brings us back to where we started. Assuming they can get all their industry ducks lined up in a row, are Republicans serious about producing something that passes muster with the president and not just the House and Senate? How Democrats fare in this process will tell us a lot about the answer.