Congress Likely to Touch Spectrum Auctions, ECPA Reform; Senate Remains Obstacle to Reform, Former Members Say

Opinions on proposed E-rate expansion -- characterized as a “tax” by opponents -- may be a potential “monkey wrench” in the confirmation processes of FCC chairman nominee Tom Wheeler and FCC commissioner nominee Michael O'Rielly, Tauke said. O'Rielly and Wheeler may have to reassure senators that they're not looking to support new taxes that are not approved by Congress, Stearns said. Expansion that could increase costs is “very alarming,” he said. When it comes to “the USF, as we know, a lot of the money is not being used well.” Boucher said he doesn’t foresee major objections to Wheeler and O'Rielly. “I would expect both of these [nominations] to come to the Senate floor during the fall of this year,” he said.

Spectrum will likely be a focus for the House Communications Committee, Boucher said. The committee will “spend a great deal of time and effort overseeing the development of those auction rules” and should keep the auction open to maximize revenue, he said. “If you're going to realize that level of spectrum receipt, it’s really important to let all of the bidders take part in the auction.” The FCC should not be “in the middle of every transaction” involving spectrum, Tauke said. “We should be looking at spectrum at the federal level the way we do property,” with the FCC acting as a zoning commission to set the rules and intervene only when the participants are not abiding by those rules, he said. “The process now is fraught with problems,” and “we need to rethink the structure of these policies."

Electronic Communications Privacy Act (ECPA) overhaul is likely in this Congress, Boucher said. There are three major bills pending, and “substantively they're identical,” in that they would require law enforcement officials to obtain a warrant before gaining access to electronic communications through service providers, he said. The bills would lead to “a change primarily focused on personal emails,” he said. “There’s broad support for accomplishing this, and I think it’s very likely to happen."

"ECPA reform, if it’s properly drafted, can address the question of surveillance,” which has become a major issue as leaks indicate that the NSA is surveilling the electronic and telephone communications of Americans, Boucher said. “The reach of NSA [surveillance] is poorly understood, and … better clarity is needed,” he said. Congress should focus on increasing transparency and public understanding, and should provide “clarity through a series of hearings, perhaps through floor speeches by knowledgeable members,” he said. “It would be a mistake to legislate in this area in a way that restricts the ability of the NSA” to conduct the surveillance that is necessary to detect and eradicate threats. Tauke defended NSA surveillance programs against recent reports that the agency violated privacy rules. “The numbers of violations are pretty limited when you look at the whole scope of activity,” he said.

The broader realm of online privacy is an “area where Congress should focus, but I see no signs that it’s planning to do so,” Boucher said. “The legislation is there to provide that online privacy protection,” he said, citing legislation he and Stearns had introduced as well as a Senate bill by John McCain, R-Ariz., and then-Sen. John Kerry, D-Mass. Both bills would create privacy standards and give the FTC the authority to enforce those standards, he said. The House Commerce Committee has jurisdiction over the FTC, so it’s up to the House Republican leadership to move the ball forward on online privacy legislation, Stearns said.

There’s not enough consensus on cybersecurity for there to be congressional action, Stearns said. There are 24 cybersecurity bills in the House and Senate, and “none of them have really passed,” he said. “There’s no consensus in Congress on this extremely important issue.” The main bills include the Cyber Intelligence Sharing and Protection Act, sponsored by Rep. Mike Rogers, R-Mich.; the Federal Information Security Amendments Act, sponsored by Rep. Darrell Issa, R-Calif.; and the Cybersecurity Act, sponsored by Sen. Jay Rockefeller, D-W.Va., Stearns said. Members of Congress aren’t facing pressure from constituents on cybersecurity, issues, Tauke said.

Tauke called the formation of bipartisan working groups on spectrum and privacy policies “the most encouraging thing that is happening in this Congress.” Tauke said he sees “a reasonable chance that similar task forces will be established on video and Internet governance.” If and when that happens, “I think that we may look back a few years from now and say that was the foundation for some major overhaul,” he said.

The Senate remains a major obstacle to telecommunications reform, the three panelists said. “We have not had the kind of energy focused on telecom issues in the Senate for at least a decade,” Tauke said. To see meaningful congressional action, “you need to have leaders who are interested in a set of issues.” Telecom policy movement is unlikely “if it’s not on [the Senate leadership’s] agenda and priority list,” he said. Outside of those issues, Congress is not likely to be active in the realm of telecommunications reform, panelists said. “This will be a Congress largely characterized by not addressing things rather than addressing things,” Boucher said.