Bracing for the House COPE Vote

The House will likely vote tomorrow (Fri. June 9) on the Communications Opportunity Enhancement Act (COPE). In fact, the vote may come as early as tonight.

According to the report from the Rules Committee, the House has set debate for one hour and approved a number of amendments. The critical amendments for network neutrality are the Markey amendment (D-MA) and an anti-trust savings amendment introduced by Lamar Smith (R-TX) that clarifies that COPE will not preempt anti-trust law (NB: This is not the much stronger Sensenbrenner-Conyer Bill which passed out of Judiciary.

As discussed below, the Rules Committee (which responds to the House Republican leadership) has done its best to stack the odds against NN. Unsurprising, since Speaker Hastert (along with Commerce Chair Barton and Telecommuniations Subcommittee Chair Upton) support COPE and oppose NN. Expect the Smith Amendment to pass, the Markey Amendment to lose, and COPE to pass. Public pressure may still swing some members, but the odds of swinging enough members are vanishingly small.

As I wrote after the loss at the Commerce Committee, we citizens will make the difference. We have gained much ground in the last two months. We now carry the battle to the Senate, where the rules help curb the power of one or two majority leaders to force through legislation.

For those new to this, you can check out my network neutrality primer here. In a rush so will not include links. Will try to put them in later.

To refresh the memory, the COPE Bill has a lot of bad stuff in it for cable access and removes critical anti-redlining requirements. Check out my friends at Saveaccess.org. But my big focus here as been the NN stuff.

COPE contains a “network neutrality” provision that takes the FCC’s existing “four principles” (“consumers” (i.e., us) have freedom to access legal content, run legal applications, attach any legal device to the network that won’t harm the network, and are generally entitled to competition) and makes them law. So far so good. But COPE then goes on to strip the FCC of any ability to protect these freedoms by rules. Rather, COPE limits the FCC to adjudicating any claims of violation of the principles.

I think COPE’s approach sucks for two reasons. First, prophylactic rules have worked for 30 years to prevent network operators from building all kinds of crap into their networks for the purpose of messing with content. The occasional attempt by cable or telco operators to block websites or rival services have been easy to address because the existing Computer Proceeding rules imposing network neutrality made these efforts stick out like sore thumbs. Shifting from a clear rule to a system that encourages network providers to push the limits until someone catches them, goes through the expense of an adjudication, and finally wins, seems to me an invitation to network operators to be as abusive as possible until they get pulled back. By that time, of course, the damage is done and what was once poo-pooed by opponents of regulation as “scare tactics” and “unsupported speculation” has become the new status quo. After all, why should the internet be any different from any other communications medium?

Second, anyone familiar with the FCC would laugh themselves silly over the notion that the FCC works efficiently by adjudication. To take a few examples, Senator McCain filed a complaint under the “sponsorship identification” rules relating to attack ads against him in the 2000 Republican Primary. The FCC has yet to rule on the complaint. Hopefully, they will get to it by 2008. The Commission also has pending before it a complaint filed in 2001 alleging that, contrary to the terms of the AOL-Time Warner Merger conditions, Time Warner cable has not negotiated in good faith to provide access to competing broadand providers. The Commission has before it an “emergency” complaint from the Mid-Atlantic Sports Network, filed at the beginning of last year’s baseball season, that Comcast has illegally demanded a share of ownership rights in exchange for carriage of Nationals games. A second baseball season has now started, with the FCC staff still sitting in the complaint.

As you can imagine, this track record hardly inspires confidence that the FCC will protect my “four freedoms” as COPE supporters maintain.

So I’ve opposed COPE’s provisions on NN as it passed through the Commerce Committee. When the Judiciary Committee wanted a referral, but the rules Committee said no, Sensebrenner and Conyers (Chair and Ranking member), introduced their own bill for NN that relied on antitrust law. As several members voting for the Sensenbrenner-Conyer Bill observed, the COPE ACt as written would have shut out traditional antitrust remedies (under the Supreme Court’s Trinko decision, which held that the remedies under the Communications Act preempt the general remedies under the antitrust laws).

Before a bill comes to the floor for a vote, it goes to the Rules Committee. The Rules Committee decides how much time to allow for debate, and what amendments it will allow members to offer. Amendment’s not “germaine” (as determined by the Committee) are not allowed. Because of the importance of the Rules Committee, the House leadership maintains very firm control of its outcomes.

The Rule for Debate for H.R. 5252 does its best to stack the odds against NN. The Rule allows only one hour of general debate, divided equally between Barton (Commerce Chair) and Dingell (Ranking Democrat). The Committee rejected the bi-partisan Sensenbrenner-Conyers Bill as “not germaine” (rationalizing this on the grounds that it is a pure antitrust bill). Further, while the Committee ruled the Markey-Eshoo-Boucher-Insley “germain,” and alotted it a grand total of 20 minutes for debate. The Rules Committee also permitted Smith to add a new amendment clarifying that COPE’s NN provisions would not eliminate any already existing antitrust authority.

Because the Markey amendment has no Republican co-sponsors, and draws support from Republican boogeymen such as Moveon.org, the Leadership can expect to prevent significant Republican defections. Even the Judiciary Republicans that voted for Sensenbrenner-Conyers are unlikely to vote against the leadership without some fig-leaf of bipartisan support on the amendment. At the same time, the Republican leadership can use the Smith Amendment to sweaten the pot. If it passes, Judiciary retains its previous jurisdiction over related matters (a key concern for a number of the Judiciary Republicans) and the Republicans and quisling Democrats can claim they voted for a “Net Neutrality Amendment” to make the NN provisions “stronger.”

Once the Rules Committee makes its decision, the House as a whole gets to vote on whether to adopt the proposed rules for debating the bill. In a likely preview of tomorrow’s vote, the House voted pretty much along party lines, with some defecting Democrats, to adopt the rule. Tomorrow, the House will take up COPE along with other business. Assuming no major last minute surprises, it should pass the House.

Needless to say, I continue to urge folks to keep calling. While it’s long odds, a sudden massive surge of calls and faxes might still cause enough members to think twice. More importantly, however, we have a long, tough slog ahead of us in the Senate. A wave of pro-NN calls telling members to support the Markey Amendment or vote down the whole bill will shape how the debate unfolds in the Senate. And it will make House members think twice when whatever comes back from Conference (assuming the Senate votes on a bill) comes around.

As I’ve said many times, it takes hard work to get the right laws and policies out of the Sausage Factory of DC (or locally, for that matter). Being right is not enough — although it helps a lot more than people think. We have done a lot to raise the profile of this issue from an insider baseball game to a growing national debate, one where the momentum continues to favor our side (despite the expected loss) over the telco and cable astroturf. I still believe that as more people find out about this fight and what’s at stake, they will support strong network neutrality and we will win in the Senate. But life comes with no promises, and the telcos and cable cos still have all their vast lobbying resources and a willingness to spend millions on lobbying to make billions on business.

I wish I could put a happier spin on things and promise easy victories. Instead, I can only observe that while we may fight and lose, we will certainly lose if we don’t fight. For me, I’d rather be a citizen willing to keep fighting for what I believe in even if I lose, than live life as some consumer-serf who lets my betters make the decisions for me.

Perhaps I’m just too much of an idealist (or why else would I have left private practice for a job with longer hours and a third of the pay?) and out of step with the time, but I’ve met enough other folks who prefer citizenship to consumer-serfdom (in both political parties) to keep on fighting.

Stay tuned . . .

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