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A nice rundown of the Senate Commerce Committee markup session on Thursday

from: Kathy Gill

Live Blogging: Senate and Net Neutrality

1.45 pm Pacific - Final

I'm listening (Real audio feed, which died for a five minute period) to a Senate Commerce, Science, and Transportation Committee mark up session, which began at 2 pm eastern, for SB 2686. This is the third draft of the bill.

To begin, Senators enter written statement into the record and a few have highlighted specific portions of the bill in their oral statement. There is initially no discussion; it is simply an opportunity for Senators to get sound bites on the media record while the longer comments are in the formal record. After each committee member was given an opportunity to take the mike, Chair Sen. Stevens (R-AK) moved to business. The most contentious set of amendments that the committee approved dealt with VoIP. The committee did not discuss amendments relating to net neutrality in the two hour session.

Formal Comments
Democrats are applying brakes -- calling for continuation of the open architecture of the Net -- and noting some of the unexpected consequences of the 1996 telecommunications act, such as increased consolidation, and unanticipated changes, such as cable companies wishing to offer telephone service.

Republicans insist that the bill is a good compromise and any further Net neutrality provisions will "kill competition." This bill will not pass the House if modifications are made in Net neutrality they assert -- nor will the House approve Democrat-preferred Universal access changes.

On Net neutrality, Sen. Boxer (D-CA) addressed the "freedom corner," noting that the freedom of the internet should not be an issue, and that the issue is supported by a broad and diverse coalition. Sen. Cantwell (D-WA) pressed the committee to focus on consumer interest -- reminding the committee that it is the open architecture of the Net that has led to its growth and that Congress has an obligation to protect consumers with common carrier legislation.

Verizon (a company most of the nation thinks of as a wireless carrier) is making a commitment to build infrastructure in New Jersey in exchange for a statewide cable franchise ... which Sen. Lautenberg (D-NJ) believes is a good idea.

Note: Earlier this week, the NJ legislature sent a bill to the Governor that "would allow Verizon Communications Inc. to sell television service throughout New Jersey, the company's third-largest market." This statewide franchise would exempt Verizon from having to negotiate contracts with 526 municipalities. The federal bill would preempt not only local governments but state governments and establish national franchises for cable service.

It's time to usher in cable competition -- and the cities are happy with improvements in the bill, according to Sen. Nelson (D-FL). But this bill does more than video franchising, and "I have serious reservations about how broad this bill has become." This bill pre-empts state regulatory authority over wireless, VoIP and a new service vaguely called "IP video service .... This bill would sweep aside decades of consumer protection ... Maybe we need some federal pre-emption in certain circumstances ... but when these provisions appear out of the blue in the third draft of this bill, I have concerns." Nelson asserted that this appeared to be a reform legislation, which the Senate was not scheduled to tackle until 2007.

Sen. Snowe (R-ME) spoke about Net neutrality and promised an amendment, echoing Cantwell's consumer orientation. Hers are the strongest words on this issue as she also urged caution, joining the Democratic call to "slow down."

Business Session
With a quorum present (with 18 members present -- Rockefeller, among others, was absent), Stevens turned committee member attention to the latest draft of the bill and proposed amendments.

The Boxer-McCain amendment was withdrawn until the bill gets to the full Senate. The Nelson (D-FL) interoperability grants amendment dealing with public safety and was accepted unanimously.

The smoothly running session was derailed with the Cantwell amendment dealing with the 2010 Olympics and interoperability issues crossing international borders.

Stevens opposes having this Canadian event eligible for grants. Cantwell, appearing frustrated asked for a roll call vote, noting that she was "simply responding to the military in my state" and pointing out that Washington local law enforcement has first responder status. Stevens believes that any funds for the 2010 should be a direct appropriations and "to take it out of this billion dollars is simply wrong."

After extension discussion -- and a friendly question designed to make it clear that Cantwell's measure was not an earmark, as Stevens had said -- the two agreed to set the amendment aside and work on appropriations issues in some other manner.

VoIP
The day ended with a long discussion on VoIP -- defined as "interstate" with a federal pre-emption. A question to staff from Sen. Dorgan (D-ND) about what is being preempted .... remained basically unanswered.

Staffer Nagle: "I believe the preemption would be ... broad-based ... insure that appropriate state roles are preserved ..." Stevens stepped in, saying that "a number of important regulations still do apply.... the bill preempts state economic regulations ... it preserves 9-1-1 requirements ... privacy and child protections ... this is a new approach to this concept ... I'm not inclined to support this amendment."

Staff remained unable or unwilling to provide the Dorgan with a list of preemptions and noted that Sen. Sununu (R-NH) has an amendment which would further restrict preemptions. When pushed, staff concurred that the bill would preempt some consumer protections.

Stevens countered, insisting that the bill only "does what the FCC does" and that the only preemption is state economic regulations (barriers to entry).

Dorgan disagreed: "My understanding of the Vonage decision ... order was a narrow order... the order does not address ... universal service ... on the state or federal level."

Momentarily setting aside Dorgan's amendment, discussion turned to the Sununu amendments restricting preemptions (ensuring the bill does not preempt state consumer protection law) and requiring VoIP has to pay access charges just like other telephony service.

Dorgan still wants to know exactly what state law is being preempted.

Note: with a bill of this magnitude (135 pages or 239 kb pdf file) -- or practically any bill considered by Congress today -- it is simply not possible for an individual to be able to answer a question like this off the top of the head. It is almost impossible to enumerate even if one has digital access to the federal code. That is because not only are the bills lengthy, but the existing code is unfathomly large.

After extensive discussion, Sununu moved for a roll call on his amendments. Dorgan: "we have suddenly, on the third draft of this bill ... come up with a new federal paradigm of regulation and preemption." Stevens disagreed, reading a list of exemptions that came out of discussion and stating he thought VoIP should be as unregulated as possible.

Based on this discussion, the Stevens definition of "unregulated" seems to be "regulated by the feds not the states."

Sen. Pryor (D-AR) then asked about state deceptive trade practice laws; staff thought these would be preserved. Stafff: regarding state universal service funds, "under section 254 ... state universal fund portion would be preserved." Staff also alluded to ongoing litigation.

Note: the committee is moving ahead on VoIP legislation in the wake of litigation. Cause and effect?

The package of amendments offered by Sununu was adopted, 14 - 8.

The committee will reconvene on Tuesday.