In an effort highly unlikely to succeed, Congressional Republicans are calling on the Federal Communications Commission to stand down from its proposed new digital equity rules.

Sen. Ted Cruz (R-Tex.) and 27 colleagues said the FCC should rescind its draft order on digital discrimination, which they say is tantamount to government control over virtually all aspects of the Internet. Cruz is ranking member of the Senate Commerce Committee.

They argued in a letter to FCC chair Jessica Rosenworcel that the rules would also open internet service providers up to “expansive, indeterminate and crippling” liability under a “disparate impact” standard.

The FCC is scheduled to vote November 15 on proposed rules implementing the Infrastructure Investment and Jobs Act (IIJA), which the Republicans acknowledge directed the FCC to “prevent digital discrimination of broadband access based on income level, race, ethnicity, color, religion, or national origin."

Also Read: FCC’s Geoffrey Starks Says The Time for Digital Equity Is Now

But they also say the way the Democrat-led commission has chosen to try and do that is “untenably” broad and even inconsistent with the law the rules are implementing because they would “undermine Congress’s objective of promoting broadband access for all Americans.”

The Biden administration has told the FCC it should adopt a broad definition of digital discrimination, including in pricing, as it comes up with rules for handing out tens of billions of dollars in broadband buildout subsidies intended to achieve universal deployment by decade's end.

The FCC is planning to adopt such a broad definition, one that includes both intentional and, more problematic for Republicans, unintentional negative effects from facially neutral policies that have disparate impacts on minorities.

Disparate impact tests have long been a tool used in civil rights legislation.

ISPs have said that unintentional impacts should not be part of the definition. ISPs have asserted that a definition that included impacts would divert needed investment from maintaining and improving their networks, but the Biden administration advised the FCC that those claims should be “resisted.”

Also Read: Internet Providers Face Dual Regulatory Campaign

In the Republican letter, a copy of which was supplied to Multichannel News, Republican senators suggested a disparate impacts standard is an existential business threat because it would punish “the practical business choices and profit-related decisions that sustain a vibrant and dynamic free enterprise system.”

Signing on to the letter were Sens. John Thune (R-S.D.), Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Thom Tillis (R-N.C.), J.D. Vance (R-Ohio), Jim Risch (R-Idaho), John Barrasso (R-Wyo.), Mike Crapo (R-Idaho), Dan Sullivan (R-Alaska), Mike Rounds (R-S.D.), James Lankford (R-Okla.), Roger Wicker (R-Miss.), Marsha Blackburn (R-Tenn.), Ted Budd (R-N.C.), Tommy Tuberville (R-Ala.), Markwayne Mullin (R-Okla.), Katie Boyd Britt (R-Ala.), Pete Ricketts (R-Neb.), Jerry Moran (R-Kan.), Joni Ernst (R-Iowa), Cynthia Lummis (R-Wyo.), Shelley Moore Capito (R-W.Va.), Todd Young (R-Ind.), Eric Schmitt (R-Mo.), Deb Fischer (R-Neb.), Kevin Cramer (R-N.D.) and Steve Daines (R-Mont.).

Now that Gigi Sohn has withdrawn her nomination for the open seat on the Federal Communications Commission, the musical chairs game of guess the new nominee begins.

The White House has yet to transmit the withdrawal to the Senate, according to congress.gov, but that should happen within a day or two, and the speculation has already begun.

One name that has surfaced as a possible, confirmable candidate is a familiar one — Anna Gomez. Her resume includes a stint as head of the National Telecommunications & Information Administration, the FCC’s opposite number overseeing government-controlled spectrum, as well as experience at the FCC as onetime head of the International Bureau. She also has experience on Capitol Hill and at the White House, and was a partner at communications firm Wiley, which has accounted for a number of FCC commissioners and chairs, including name partner Dick Wiley.

Gomez was one of the names that surfaced back in 2021 before the president tapped Sohn, a veteran public-interest activist and former FCC adviser.

A former top FCC official speaking on background said that a Gomez pick makes sense given she has already gone through a vetting process and security clearance for her State Department job — she is currently senior adviser for international information and communications policy.

Also back in 2021, another name that surfaced was Edward “Smitty” Smith, a partner at law firm DLA Piper who has experience with overseeing multibillion-dollar broadband subsidies at the National Telecommunications & Information Administration and at the FCC, as an adviser to the Broadcast Incentive Auction Task Force.

Smith also was on the four-person Biden FCC transition review team and raised money for the candidate. One D.C. veteran said that if any profile fit a presidential FCC pick, it is Smith’s.

Someone on the staff of Senate Majority Leader Chuck Schumer (D-N.Y.) could also be in line for the post. Jobs as staffers to powerful senators and relevant committees is another route to an FCC chair.

For example, current chair and former commissioner Jessica Rosenworcel is onetime senior communications counsel for the Senate Commerce Committee.

And while Sohn arguably lost her bid due to opposition from Sen. Joe Manchin (D-W.Va.), Rosenworcel’s bid for commissioner was successful in part because her fan club included her then-boss, Senate Commerce Chair and West Virginia Democratic Sen. Jay Rockefeller.

In the meantime, the FCC remains at a political tie 2-2, able to tackle only various noncontroversial items. There will almost certainly be no broadcast reregulation, Universal Service Fund reform or net-neutrality rule reinstatement until Biden can nominate a new candidate, who will then need to have a nomination hearing, a successful vote out of committee, then a full Senate vote. ■

A pair of U.S. senators from Nevada said the Federal Communications Commission’s new draft map of broadband availability is “deeply flawed” and could cost their state millions in government subsidies.

The FCC is under orders from Congress to come up with better maps. It released a draft late last year in what the agency has said is an iterative process that will benefit from stakeholder input.

Sens. Jacky Rosen and Catherine Cortez Masto, both Democrats representing Nevada, had plenty of input. They told FCC chair Jessica Rosenworcel that “[d]espite a clear mandate from Congress, the draft maps are deeply flawed. As Senators representing Nevada, we are seriously concerned about the Nevada map’s accuracy and potential negative impacts on broadband infrastructure funding for our state.”

Also: FCC Approves Broadband Label Rules

The senators told Rosenworcel that Nevada’s State Broadband Office also had concerns about the FCC’s process for challenging the maps, saying it is “based on assumptions that put the onus on consumers to proactively engage with providers, rather than practical access to high-speed internet for consumers or technological realities.”

It is not Rosen’s first bite at what she suggests is a bad apple. She was a lead signatory on an earlier, bipartisan letter to Rosenworcel also questioning the maps’ accuracy.

In November 2022, the FCC released the first draft of its new broadband availability maps meant to more accurately represent broadband coverage as the Biden administration pushes tens of billions of dollars toward its universal broadband pledge.

The maps show location-level information about broadband availability, an upgrade from the census-level data the FCC had previously collected and which had allowed some broadband dead zones to appear live if they were in census blocks with service elsewhere. ▪️

The National Treasury Employees Union (NTEU), which represents 800 Federal Communications Commission employees, has come out in support of the nomination of Gigi Sohn for the long-vacant fifth seat — and third Democrat — on the commission.

In a letter to Sen. Maria Cantwell (D-Wash.), chair of the Senate Commerce Committee, which failed to successfully report Sohn's nomination to the full Senate for a vote, NTEU said it was concerned about the continued vacancy and that Sohn was a highly qualified nominee whose nomination should be moved out of committee for a floor vote.

Also: Sohn Will Recuse Herself from Retrans, Copyright Issues

“NTEU believes that Ms. Gigi Sohn is a highly qualified nominee,” NETU national president Anthony Reardon said. “She is a former staff member of the FCC and knows the agency well and she would be an excellent member of the Commission. Furthermore, I feel that any further delay in the confirmation of her nomination threatens to inhibit progress at the FCC to the detriment of both the workforce and the American consumer.

“It is time for the country to allow this Commission and its employees to be fully staffed and functioning,” he added. “Ms. Sohn has a stellar record as a telecom expert. I would urge you and your staff can do all that you are able to move this nomination forward.” 

A supporter of Sohn said it was the first time NTEU had endorsed an FCC candidate. A representative of the union was not available at press time to confirm that.

The FCC has been without the Democratic majority secured with President Joe Biden’s election for over a year and a half, leaving it to tackle bipartisan issues but not such hot-button topics as the return of net neutrality rules, which both the current two Democratic FCC commissioners and Biden support; Universal Service reform; and potential reregulation of broadcast ownership deregulated under Republican FCC chairman Ajit Pai.

Sohn would be the first former civil society group activist — she headed Public Knowledge — to sit on the commission, which has featured any number of former lobbyists, including chairmen, from both parties.

While Sohn brings a wealth of experience, including as a former top adviser to FCC chairman Tom Wheeler, she also brings some baggage that vexes Republicans as well as cable and broadcast entities, including her support of Title II-based net neutrality rules; her association with streaming service Locast, which broadcasters successfully sued over copyright issues, and her past criticism of some big media players, notably Fox News Channel. ▪️

The Senate has weighed into what was described as an “overgrown standing army” of Big Tech monopolists, with Senate Antitrust Subcommittee chair Amy Klobuchar (D-Minn.) saying to the army of lobbyists that would try to take down a tough new antitrust law under consideration: “Bring it on.”

The bill, the American Innovation and Choice Online Act, is aimed at preventing big online platforms like Apple, Google, Amazon and others from self-favoring conduct that leverages their dominance in search and apps and online commerce to suppress competition. A House version of the bill was also introduced in June, but the Senate version has a number of changes that would have to be reconciled.

Those new parts of the bill include clarifying that some types of “privacy-enhancing conduct” would be permitted, making sure that powerful platforms not publicly traded do not escape the bill’s coverage, and that subscription services like Amazon Prime Video and other streamers were not impacted.

The bill also now requires guidelines to be issued to the business community within nine months and a one-year period for covered platforms to come into compliance.

Klobuchar, a lead sponsor of the bill, said that helped the measure strike the right balance, but the hearing featured much striking out at provisions of the law from both sides.

While the bill did eventually pass out of committee Thursday, there is no guarantee it can achieve the necessary votes in the full Senate. 

While attacking Big Tech is one of the few issues that unites Democrats and Republicans, the bill being marked up by the Senate Judiciary Committee was hardly a bipartisan beatdown of the Big Tech pinata. In fact, it appeared to divide not only Democrat from Republican, but Democrat from Democrat.

There was disagreement on the content of the bill, the consequences — or unintended consequences — of the bill, and the process that got it to markup on Thursday (January 20).

Sen. Mike Lee (R-Utah), ranking member of the antitrust panel, made it clear the bill was not, in its current form, the way to go. He said he could not support it, and he was not alone.

Democratic Sen. Patrick Leahy (D-Vt.) said he still had issues that needed to be resolved before he could vote for it on the Senate floor.

Sen. Dianne Feinstein (D-Calif.) had big problems with the bill's focus on regulating the behavior of the biggest big tech companies — Apple, Google, Facebook and Amazon — while allowing others to engage in the same conduct. She said it could be a “very dangerous” law that could tip the balance of power toward big foreign firms not covered by the bill.

Feinstein said the bill had major security problems because it required companies to take down protections, a complaint lodged by some Republicans. She said she would oppose the bill and said it should have gotten a full committee hearing.

Lee also said one of his issues was there had been no legislative hearing on the bill. He conceded that it had been “mentioned” on occasion in other Big Tech antitrust hearings, but that did not equate with a legislative hearing on the bill itself.

The hearing featured a testy exchange between Feinstein and Klobuchar, with Klobuchar saying one claim Feinstein made about administration concerns with the bill was “not true.”

Lee asked how much pro-competitive behavior could get caught in the bill and end up with the unintended consequence of removal of popular products and services that helped consumers.

The bill potentially fines violators 15% of a company's total revenue, which Lee said would just line government coffers. He said the penalties were not tied to actual harms, and could just push online platforms to stop working with third parties.

Lee also said he was concerned about giving federal agencies sweeping new power to redefine markets. He said that’s something that has never worked and he didn’t see why it would now.

He raised another hot-button issue. He said deep state bureaucrats should not be given control over Big Tech, and said the bill should address Big Tech censorship, rather than giving the keys over to the Federal Trade Commission to control those companies then use it against Republicans.

Klobuchar said she was shocked by some of the things Lee said and that the hearing — in December — where the bill was raised was hardly perfunctory and the Republicans' own witness supported the bill. Klobuchar said there have been four separate hearings related to the issues the bill addresses.

The American Edge Project has taken out ads on Washington media outlets opposing the bill and claiming it could hurt America's tech edge globally. Klobuchar conceded at the hearing that the bill's supporters did not have the money to take out TV ads showing their support, but were behind it nonetheless.

The bill did unite strange political bedfellows Klobuchar and conservative Josh Hawley (R-Mo.). Hawley said the bill goes “right at competitive conduct." Hawley is one of the biggest Big Tech critics. He disagreed with Lee that the bill could, ironically, strengthen Big Tech, though he agreed with the Big Tech/Big Government alliance and about censoring speech.

Klobuchar warned that there would be attempts to delay the bill with a raft of amendments. Lee took issue with that, saying his amendments were an effort to make the bill better, not kill it.

Sen. Thom Tillis (R-N.C.) said the bill was an overreach and needed more work, but said he would not call for a vote on the 40-plus amendments he had filed. His issues included who was covered, what it meant by making “preferencing” illegal and what the consequences of illegal “preferencing” would be. Another 40-some amendments were also withdrawn, but Klobuchar said she would stay there day and night to finish the markup.

Small Hopes for Compromise

While the bill made it out of committee, it was tough to see how there could be a meeting of the minds on exactly the way forward, particularly with the concerns addressed by many Democrats. Some of those Democrats said they could not vote for the bill in committee, others said they would vote for it, but could not vote for it in the full Senate without changes.

Sen. Ted Cruz (R-Tex.) backed an amendment to allow for individuals to sue Big Tech over violations of the new law, pointing out that support was a reversal from the norm, where Democrats push for private rights of action and Republicans oppose, including himself. But Cruz said Big Tech's conduct was so egregious he was ready to “unleash the trial lawyers.”

Some Democrats argued that the bill unfairly targeted conduct by larger players, but Cruz said that the bill was targeted to the large companies because “they were the monopolists.”

He ultimately withdrew all his amendments, saying he looked forward to working on the issue and would vote for the bill out of committee, but reserved judgment on a full-Senate vote.

Cruz used some of his time on bill discussion to agree with Lee that censorship of conservative speech by Big Tech is “pervasive, pernicious and brazen.” Sen. John Kennedy (R-La.) added that he saw Big Tech as a “killing field” for the truth. 

“This bill endangers U.S. digital leadership, and puts consumers’ security and privacy at risk," said Matt Schruers, president of the Computer and Communications Industry Association after the 15-6 vote to report the bill to the full Senate. "Rather than drafting general rules to protect consumers’ welfare, the bill regulates the business models of a handful of companies.  This bill is European-style industrial policy, not competition policy.”

Consumer Reports, which got a shout-out during the hearing over its support of the bill, was understandably pleased it made it out of committee.

“The bill will stop the largest online platforms from imposing their self-serving rules on markets and society," said Sumit Sharma, senior researcher for tech competition at Consumer Reports. "The bill will benefit consumers by making it easier to install, choose, and use alternative apps and online services. It will remove the roadblocks that the largest online platforms have put up to hinder innovation by competitors. We will see more innovation as a result of the bill, which will create more choices for consumers.”■

The Consumer Technology Association said Tuesday (Dec. 21) that its upcoming CES 2022 in Las Vegas Jan. 5-8 will host a record number of Senators, and they will be showing up in person rather than remotely.

All attendees and participants in the show have to be fully vaccinated and CES is recommending testing for COVID-19 prior to leaving for Las Vegas and within 24 hours of entering a CES venue.

Discussing tech policy issues at a Friday, January 7, panel will be a mix of high-profile senators from both sides of the aisle: Senate Commerce Committee Chairwoman Maria Cantwell (D-Wash.) and Sens. Marsha Blackburn (R-Tenn.) and Shelley Moore Capito (R-W.Va.). The session will be led by Sen. Jacky Rosen (D-Nevada).

Also from the other side of the aisle, House Majority Whip James Clyburn (D-S.C.) will talk about universal, accessible and affordable high-speed internet on January 7.

They will be among more than 100 government officials, including a panel of governors featuring Govs. Asa Hutchinson of Arkansas and Chris Sununu of New Hampshire, Transportation Secretary Pete Buttigieg and FCC commissioner Nathan Simington.

In addition to in-person attendance, CES is offering a digital-only option, though it points out that “nothing can quite recreate the excitement, connections and spontaneity the in person attendees will experience.” 

Future, parent company of Next TV, B+C and Multichannel News, publishes the official CES Daily. ■

Sens. Roy Blunt (R-Mo.) and Ron Wyden (D-Ore.) are introducing a bill that would give some low-power television (LPTV) stations the opportunity to apply for Class A television service status and its additional interference protections. 

LPTVs haven’t been able to apply to the Federal Communications Commission for such status since 1999.

(Editor's Note: The story initially said it would also provide limited must-carry rights, but those are confined to a small subset of rural LPTV stations and would only apply to those).

Blunt signaled in written questions to FCC chairwoman Jessica Rosenworcel after her nomination hearing that he was looking to give low-power stations a new window on Class A status, saying: “Years ago, Congress enacted a law which allowed certain low power television stations to apply for and receive enhanced rights to their spectrum licenses, giving them certainty to invest in their stations and grow their audiences in mainly small and rural markets. I’m working on legislation to open another, similar window to allow for additional low power stations to once again apply for these ‘Class A’ rights. Can I have your commitment that you will work with me and this Committee in enacting that law so that we can help expand and protect television stations in small markets and the viewers that they serve?”

Rosenworcel’s answer was a succinct “yes.”

“The primary benefits of Class A are to protect broadcast coverage area, encourage investment and secure small business financing which is not available to most LPTV facilities,” said the LPTV Broadcasters Association, which enthusiastically endorsed the bill.

"Simply stated, this bill allows LPTV stations to grow to the next level in serving the public interest with both protection of broadcast coverage area and the ability to secure crucial small business financing, the LPTV Broadcasters Association executive director Michael Lee said.

“NAB applauds the introduction of the Low Power Protection Act, which would offer some community-oriented low power television stations a long-overdue opportunity to gain important interference protections,” the National Association of Broadcasters said. “Millions of viewers across the country rely on LPTVs for local news, weather, community affairs and emergency information, particularly in rural areas and smaller markets. This legislation would ensure Americans’ access to these vital stations and provide assurance that their signals can remain on the air.” ■

It's official. The Senate has voted to confirm Federal Communications Commission chairwoman Jessica Rosenworcel to a new, five-year term on the commission, her third term but first as chair — President Joe Biden designated her chair Oct. 26 after she had been acting chair since January.

The vote was 68 to 31.

Had the Senate not voted to confirm her, Rosenworcel would have had to leave the commission at the end of the year since her current term had expired. Commissioners are allowed to stay on through the end of the next Congress.

Also: Senate Vote to Proceed in Rosenworcel Nomination

The full-Senate vote came after a cloture vote Monday night (December 6) that also saw a majority of Republicans — 27  — vote against advancing her nomination to the floor (she recieved 66 “yea” votes). A number of Republicans and two Democrats, Sens. Ron Wyden (D-Ore.) and Kyrsten Sinema (D-Ariz.), did not vote.

Rosenworcel will still need a third Democrat on the commission to tackle some of the politically divisive issues like re-regulation of broadcast and internet-service providers. Gigi Sohn has been nominated for that seat, but has had a tough time convincing Republicans to support her nomination, Sen. Thom Tillis (R-N.C.) in particular, who Monday (Dec. 6), signaled he would block the nomination.

“Chairwoman Rosenworcel has served as a tireless advocate for consumer protection in today’s digital landscape,” said Sen. Ed Markey (D-Mass.), who spoke in support of her nomination before Monday's cloture vote. “Now more than ever, the FCC needs a chair who understands the importance of net neutrality and critical protections for broadband users, and I know chairwoman Rosenworcel is up for the task. She understands that broadband access is an essential utility to millions of small businesses, communities, and students, and has long partnered with me in addressing the ‘homework gap’ to ensure every student has internet connectivity to complete their homework at home. Together we worked to implement the Emergency Connectivity Fund, providing $7.17 billion in E-Rate home connectivity funding across the country, including $47.5 million for Massachusetts to date. I know that Chairwoman Rosenworcel will continue to successfully administer this program, and I believe she is the best person to lead the FCC in its important work.”

“Jessica Rosenworcel will be a dynamic, determined enforcer and advocate for all consumers and underserved Americans,” said Sen. Richard Blumenthal (D-Conn.), who championed the nomination of his fellow Connecticut native. “As a vigorous consumer champion with deep roots in Connecticut, her confirmation is a historic step forward for both the FCC and our state," he said. "I’ve seen firsthand Chair Rosenworcel’s commitment to ending the scourge of robocalls and closing the digital divide that plagues far too many disadvantaged communities. As funding from the Bipartisan Infrastructure Deal goes to accessible high-speed internet, the FCC will now have an affordable broadband, net neutrality, and privacy champion leading implementation. I’ve been proud to advocate for her nomination as a member of the Senate Commerce Committee, and I look forward to welcoming Chair Rosenworcel back to Connecticut as she continues her impressive work at the FCC.”

“Charter Congratulates chairwoman Jessica Rosenworcel on her confirmation to lead the Federal Communications Commission," said Charter EVP, government affairs, Catherine Bohigian. "Throughout her career in public service, Chairwoman Rosenworcel has proven herself a thoughtful leader and champion on behalf of consumers on the most pressing connectivity challenges such as closing the digital divide, eliminating the homework gap, improving public safety communications, increasing unlicensed spectrum for WiFi, and encouraging innovative spectrum policies. We look forward to continuing to work together on these and other important issues that will drive American innovation and connectivity forward.”

“I want to extend my congratulations to Chairwoman Rosenworcel on her confirmation by the Senate to serve another five-year term on the FCC,“ said Republican commissioner Brendan Carr. "Under her leadership, the FCC has taken significant steps towards eliminating the digital divide, increasing support for telehealth services and enhancing the security of America’s communications networks.  I have enjoyed working with chairwoman Rosenworcel over the past 12 months on a series of initiatives that have delivered results for the American people. I look forward to continuing this good work.”

“I congratulate my colleague chairwoman Rosenworcel on her confirmation to another five year term to serve on the FCC," said commissioner Nathan Simington, also a Republican. “Chairwoman Rosenworcel has ably led the Commission for the past year, and during that time we have achieved a number of significant, bipartisan objectives in the public interest. It is my hope and expectation that we will continue this vital work together in the years to come.”

Sen. Patrick Leahy (D-Vt.), currently the Senate‘s longest-serving member and its president pro tempore and a longtime proponent of better piracy protections for over-the-top content, will not run for re-election, he announced Monday (Nov. 15), after six terms in the Senate.

Leahy has been a prominent figure in communications circles as chairman of the powerful Senate Judiciary Committee, which combines with the Commerce Committee to vet nominees, including to the Supreme Court, and takes the lead in antitrust issues related to proposed mergers.

Leahy said of his two decades as chairman and ranking member of the Judiciary Committee, his goal had always been to “defend our civil liberties, the First Amendment, our right to privacy and the free flow of information from the government to the people it represents.”

He has been prominent on issues particular to the media industry, including protecting and accessing content.

Leahy co-authored a bill making unauthorized streaming a felony to help crack down on criminal piracy in the age of increasingly over-the-top delivered content.

In 2020, after years of effort by the creative community and Leahy, the combination of the explosion of streaming content and over-the-top distribution channels and a COVID-19-sequestered populace for whom online video was entertainment lifeline created the proper conditions for passage of the bipartisan Protecting Lawful Streaming Act, which made stealing video streams a felony, as it already was for illegally copying and distributing copyrighted TV shows and movies.

Before the law passed, a pirated stream was treated as an illegal performance, which is a misdemeanor, rather than illegal reproduction and distribution, which is a felony. Making it a felony meant the greater deterrents of larger penalties or potential prison time.

Leahy has also been a backer of cameras, and later streaming, in the courts.

In the broadband space, like most Democrats, Leahy has backed network neutrality rules and once co-sponsored a bill that would have banned paid prioritization.

He also opposed the bulk collection by the government of communications records undertaken by the government in the wake of 9/11, instead saying such collection should be limited to specific investigations, something he championed in the USA Freedom Act, which he co-sponsored and which passed the Senate in 2015.

The Motion Picture Association hailed Leahy's protection of creative content.

“[MPA] thanks Senator Patrick Leahy for being a tireless champion of the creative community during his eight terms in the U.S. Senate,” MPA chairman and CEO Charles Rivkin said. "Throughout his career, he has been a lion for artists’ rights, from content creation to content protection. His commitment to the film, television and streaming industry goes beyond the halls of the Senate — he‘s been featured in five Batman movies, serving under four different Caped Crusaders. I hope he enjoys a well-deserved, long retirement with his family — his wife, Marcelle; his three children, Alicia, Kevin and Mark; and his five grandchildren. We look forward to seeing him back in Washington, Los Angeles or Gotham very soon.”

“It was my honor to serve with Patrick Leahy in the Senate and my good fortune to call him a friend. I even took the time recently to visit his boyhood home in Montpelier, Vermont," said National Association of Broadcasters President Gordon Smith. "More importantly, during my time in the Senate[he was a Republican senator from Oregon], I had the privilege of traveling the world with Pat and working with him on a range of legislation, all in the interest of the nation. While leading NAB, I have been grateful for the opportunity to continue working with him in support of America’s local broadcasters. I thank Senator Leahy for his decades of service to the American public and the people of Vermont, and I wish my friend the very best in his retirement.”

“As a former staffer to Senator Leahy, I witnessed firsthand his incredible dedication to ensuring a better future for the people of Vermont," said incoming NAB COO and incoming president, Curtis LeGeyt. "Working with him instilled in me a dedication to public service that I carry with me as an advocate for radio and television broadcasting. It was a privilege to learn from one of this generation’s great legislators and public servants, and to see the important accomplishments made possible by working across party lines. I congratulate Senator Leahy on his well-deserved retirement.”■

Some powerful lawmakers are telling Facebook it should pull the plug on plans for a kids‘ version of Instagram, not simply suspend them, and have signaled that Congress is stepping in regardless.

Facebook announced the pause on Monday (Sept. 27), but said it still thought a kid-targeted version of Instagram was a way to help prevent children under 13 from trying to access inappropriate apps.

The opposing view from lawmakers came in a joint statement from, among others, the lead senator for a hearing this week on the adverse impact of the adult/teen version of Instagram on young people, Sen. Richard Blumenthal (D-Conn.).

Joining Blumenthal were Sen. Ed Markey (D-Mass.), one of the leading voices for kids’ online privacy, as well as Reps. Kathy Castor (D-Fla.) and Lori Trahan (D-Mass.).

The legislators said that though they were glad Facebook had heeded their call to back off the kids’ version, a pause was not enough.

“Facebook has completely forfeited the benefit of the doubt when it comes to protecting young people online and it must completely abandon this project,” they said in a joint statement. “Time and time again, Facebook has demonstrated the failures of self-regulation, and we know that Congress must step in.”

In this case, that step is the Kids Internet Design and Safety (KIDS) Act, which the lawmakers said they plan to introduce. The bill would give young internet users “the protections they need to navigate today’s online ecosystem without sacrificing their well-being.” 

They said it is critical legislation and called upon their colleagues to support it.

A group of senators is pushing President Joe Biden to name Jessica Rosenworcel permanent chair of the Federal Communications Commission, but a letter they sent to the White House last week makes no mention of nominating a third Democrat to the agency. 

Filling that last seat would likely be the only way a Democratic chair, whoever it is, can advance non-bipartisan items like restoring network neutrality rules.

Also Read: FCC Chair Remains Big X Factor for Biden

Rosenworcel has been acting chair since soon after Biden took over last January.

According to a copy of the letter, first reported by B+C/Multichannel News sister publication TV Technology, the senators — from 17 states and comprising Democrats and one independent — said that without a permanent chair helping hand out billions in broadband aid, the administration was risking its major broadband goals.

They spoke of Rosenworcel's long experience, the fact that she has been approved on a bipartisan basis when confirmed as a commissioner and that it would take months to confirm someone else as chair. They even suggested that were Biden to pick a different chair, the lengthy process or hiring staff and implementing an agenda would lead to “indecision and gridlock.”

The senators urged Biden to nominate Rosenworcel as permanent chair “as soon as possible.”

While the president could just name her chairman, her tenure is up at the end of the year unless she is renominated, so it would make more sense to nominate her for a new term.

Washington watchers remain a bit perplexed by the ongoing lack of a permanent chair with Rosenworcel in the seat.

Initial delays were thought to involve a decision between Rosenworcel and current commissioner Geoffrey Starks. Starks had the backing of the Congressional Black Caucus, whose leading figure, Rep. James Clyburn (D-S.C.), helped elect Biden with his key endorsement in South Carolina’s Democratic primary. (Clyburn is the father of former acting FCC chair Mignon Clyburn).

But another name for chair has also been talked about inside the Beltway recently: Catherine Sandoval, former FCC staffer and currently a member of the California Public Utilities Commission, the first Hispanic female in that post. She would also be the first Hispanic FCC chair if the president chose her.

As to why no mention of the open Democratic seat in the senators' letter, one former high-ranking FCC official suggested that may be because it would be tough to get two Democrats nominated and confirmed by year-end.

WASHINGTON — Lawmakers and association stars were aligning for another run at the STELAR compulsory copyright license bill, the battle over which has divided broadcasters and cable operators for decades.

Congress must revisit the copyright legislation every five years as key provisions come up for sunset or renewal. Cable’s chances of STELAR renewal, which it has pushed, were looking pretty good at press time, though broadcasters were trying to divide and conquer by suggesting good-faith provisions could be de-tethered from the law even as the compulsory license is retained.

STELAR is the latest version of legislation, first passed in 1988, that allows satellite-TV providers to import distant network signals into local markets. The law also requires multichannel video programming distributors, including cable operators, and broadcasters to bargain in good faith in negotiations over retransmission consent for TV stations. The bargaining provisions are what has made the license renewal a flashpoint in the carriage battleground.

Broadcasters and cable operators both want this periodic fight to go away, but by very different routes. Stations want the license eliminated, while MSOs, joined by fair-use supporters often critical of cable, want it to be permanently renewed.

“Given the importance of STELAR to maintaining competition and protecting viewers, Congress should reauthorize it permanently,” Public Knowledge senior counsel John Bergmayer said. “There is no reason for Congress to create artificial crises every few years to ensure that satellite remains a competitor.”

Adding New Meanings to ‘Bad Faith’

Cable operators want to use STELAR (which has had different names at different times) to get rid of retrans blackouts, or at least to stop TV stations from pulling signals during marquee events and forbid bundled deals involving multiple stations or TV signals and other programming. Those conditions should be considered bad-faith bargaining, operators say.

“Broadcasters thumb their noses at Congress and the FCC while jacking up rates on consumers, then brag about it on their quarterly earnings calls,” said Trent Duffy of the American Television Alliance, which includes small and midsized cable operators.

Another sore point with cable operators is when TV stations program a digital subchannel as a network affiliate, allowing that station to control multiple affiliates in a market without running afoul of FCC local ownership limits that apply only to primary signals.

Addressing the subchannel issue would entail Congress beefing up the bargaining rules, since the FCC, under both Democrats and Republicans, has not gone there.

Cable operators, which generally like the government to stay out of the market, argue that tightening the rules is necessary to better level off a playing field that Congress tilted toward broadcasters by imposing the retransmission-consent and must-carry regime in the 1992 Cable Act.

The issue got plenty of new attention as the House and Senate launched hearings into STELAR in particular and the state of the video marketplace in general.

While Republicans signaled it might be OK for the law to go away, they were not of one mind.

The top Democrat on the House Energy & Commerce Committee, Mike Doyle of Pennsylvania, set a cable-friendly tone at a June 4 hearing, saying that while STELAR was not perfect, its sunset would create a “crisis” of lost viewership and invite bad behavior and consumer harm.

While cable operators told Congress that escalating retrans fees were hitting consumers hard — both by inflating their cable bills and siphoning off money that would otherwise go to building out rural broadband — broadcasters said that with big tech eating into their local ads, retrans was crucial to supporting all that local, and even life-saving, content legislators agreed was must-have video.

Given the competition for local ads from online platforms, National Association of Broadcasters president Gordon Smith said at a June 5 Senate Commerce Committee hearing that free, over-the-air stations increasingly need retransmission fees. He said the fees are fair value to support stations’ investment in must-have programming — local news, weather and emergency information that legislators conceded are, indeed, must-have.

ACA Connects president and CEO Matt Polka saw it a lot differently. He told Multichannel News, as he has been telling the Hill, that huge broadcast conglomerates would only have a more outsized influence on rising cable bills via rising retrans fees if the law went away and Congress did not put more, not fewer, good faith conditions on negotiations.

NCTA-The Internet & Television Association president Michael Powell said STELAR was all about retaining the FCC as a backstop to retrans bargaining.

In any event, Doyle signaled STELAR was not likely to be relegated to the dustbin of history just yet. He said at the House hearing that though he agreed the license and bargaining components were hardly a perfect solution, allowing them to sunset would result in a “crisis,” of lost viewership and invite bad behavior and consumer harm.

Like cable operators, legislators were remiss to let the “good-faith” directive lapse.

The STELAR license and good-faith bargaining provisions have to either stay or go by the end of the year (or close to it), so Congress has a deadline to drive those key issues to some kind of resolution.

The Senate hearing with Supreme Court nominee Brett Kavanaugh and his accuser, Christine Blasey Ford, got plenty of TV coverage — it was roadblocked across most cable news and network-affiliated TV-station outlets — just not quite as much TV coverage as C-SPAN had wanted.

Viewers may have noticed that shots of Senate Judiciary Committee chairman Charles Grassley (R-Iowa) and ranking member Dianne Feinstein (D-Calif.) were always slightly side shots rather than full-on faces.

While the Senate Judiciary Committee suggested C-SPAN would have four cameras in the hearing room — the cable-backed public affairs net was providing the TV pool feed for the commercial broadcast and cable networks — that did not prove to be the case.

In providing TV coverage of Hill hearings, C-SPAN usually has three cameras, one on either side to get the Democrats and the Republicans, then one in the front to capture the witnesses. But it sometimes uses a fourth camera in the back of the room to get a wide shot and a straight-on view of the chairman and ranking members, who are in the center. A C-SPAN source said it has used that fourth camera many times.

In an email outlining the video coverage, the committee said:

“The room already has three robocameras built in for the purposes of streaming the hearing online. This feed cannot be used to pool for media outlets. Typically, C-SPAN sets up three cameras in the room to serve as the TV pool feed. … For this hearing, C-SPAN has asked for a fourth camera. That equals seven total video cameras. For context, during the first four days of Judge Kavanaugh’s hearing, the room had a minimum of 28 video cameras in it.”

That clearly sounds to The Wire like someone at the committee thought C-SPAN would be granted that camera, since it used the seven-camera figure for comparison purposes.

C-SPAN confirmed it asked for that fourth camera to get the straight-on wide shot, but said that request was denied, with no reason given. The C-SPAN source said it could have been space limitations.

A Senate Judiciary Committee spokesperson had not returned a request for comment at press time about the missing camera and the reason why it was denied.

WASHINGTON — Bipartisan frustration with the Lifeline communications subsidy program was vented Thursday (Sept. 14) at a Senate Homeland Security and Government Affairs Committee hearing.

Witnesses taking some of that heat were FCC chair Ajit Pai; Seto Bagdoyan, director of audit services, forensic audits and investigative service at the Government Accountability Office; and Vicki Robinson, acting CEO of the Universal Service Administration Co.

The hearing title telegraphed that frustration, “FCC’s Lifeline Program: A Case Study of Government Waste and Mismanagement.” But while that title is the responsibility of the majority, both Republicans and Democrats took aim at the program.

The Lifeline program is the Universal Service Fund subsidy that goes to low-income residents to support basic lifeline communications service, previously phone service and now, increasingly, broadband Internet service.

Sen. Ron Johnson (R-Wis.), the committee chairman, said he would recommend the USF undertake a forensic audit of the top 30 providers participating in the program.

Johnson pointed to evidence that many people getting subsidized wireless service had other means of communications, so it was not really a lifeline. He suggested that ending the program was on the table, with the money perhaps better spent on paying down the deficit.

But Sen. Heidi Heitkamp (D-N.D.) said she did not want the baby thrown out with the bathwater. Heitkamp argued that the USF program was crucial, and that while officials need to get a handle on waste, fraud and abuse, she did not want the fund raided for deficit reduction, including by moving it from private banks to the U.S. Treasury as some have suggested.

Pai said moving the USF to the Treasury would be a way to better protect the money.

Arguably the legislator most incensed by the program's waste, fraud and abuse was ranking member Sen. Claire McCaskill (D-Mo.). The GAO witness was in attendance because of a GAO report (the "case study" of the hearing's title) McCaskill had asked for showing widespread waste, fraud and abuse in the program.

For example, the GAO was unable to confirm whether 36% of the 3.5 million individuals it reviewed (or some 1.2 million) actually participated in any of the qualifying programs, like Medicaid, that they stated on their applications for the subsidy.

“I don’t know where to start,” she said, then picked one of many issues: The $90 million owed by participating companies who were still receiving Lifeline money. Over the past two years, McCaskill pointed out, the FCC had written checks totaling more than $2 billion to the 10 carriers that owed it money, asking how in the world that was possible.

Pai said it was a great question, and he was committed to stopping that.

But McCaskill shot back that he wasn't, that there was no enforcement, and that they continued to get away with it. She conceded three Lifeline related settlements the FCC had struck, but the former DA said nobody had gone to jail. "It is outrageous that they have gotten away with this level of fraud," she said.

Pai said that it was a top enforcement priority and they would not be "falling through the cracks" on his watch.

McCaskill was also nonplussed that companies were able to override the local verification process, essentially saying that folks who had been deemed ineligible for the subsidy were eligible anyway. GAO found that 63% of the time it applied for the subsidy under fake names, it got one.

Robinson pointed out that a new national verifier could not be overridden, but that the program always had to balance integrity with participation. McCaskill shot back that the integrity of the process had already been lost.

Related: Senate Leaders Want Lifeline Abuse Investigations

McCaskill said she would personally help put some of the fraudsters in jail and asked Pai why the FCC was not doing more to weed out the waste and fraud. 

Pai said he was trying to, but that he was addressing issues that had essentially festered under previous management due to an unwillingness to crack down on the program's abusers. Pai actually launched his own investigation into Lifeline abuses when he was a commissioner, and has long argued the FCC needed to do more to rein in those abuses. As chairman, he rescinded some Lifeline eligibilities while the FCC figures out how to better verify that eligibility. 

Pai said the key is that the subsidy — $9.25 per month — should only go to those who would otherwise not have basic communications and that insuring that was a top priority of his FCC.

Asked by McCaskill for three things he could talk about that would bring some "urgency" to the issue of waste fraud and abuse, Pai said that 1) verification needed to be upfront, rather than follow an after-the-fact "pay and chase" model; 2) there needs to be a "meaningful" budget mechanism; and 3) the FCC must clearly define the goal of the program, then measure how and if it is meeting that goal.

McCaskill suggested handing out phones when folks apply for unemployment or SNAP (the Supplemental Nutrition Assistance Program), so their eligibility would already be established. 

At a couple of points during the hearing, it was Johnson who eased the tension by pointing out that while they were clearly venting on the program, they considered the witnesses as wearing "white hats," and that they were all there to work with the committee to improve it.

“It’s worth noting that on the day a Senate committee is examining the FCC’s Lifeline program to try to ensure that waste, fraud, and abuse is curtailed, the FCC has just announced that the new USF fee, in effect a tax on their phone service paid by all consumers, will be 18.8%," said Randolph May, president of free market think tank, The Free State Foundation. "I am a long-time supporter of a properly-formulated and properly-run Lifeline program to provide a safety net for low income persons. But this tax of almost 19%— the highest ever —  on all phone bills shows why it is so important to curtail fraud and abuse if support for the program is to be sustained."