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After nearly two years of debates, never-ending commercials, donation solicitations and ever-present polling, Election Day is over and the results are in. As many had predicted, the balance of government has not changed significantly. Democrats will retain the Presidency and control of the Senate, and Republicans will continue to control the House, albeit by a slightly smaller margin than before.
What do these results portend for the issues on which Public Knowledge and its public interest allies work? It’s always hard to tell. Sometimes a seismic event, like a natural disaster or cyber-attack can dictate policy. Or sometimes, like in the case of the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), a particular industry is driving a policy agenda. A lot also depends on who is selected to be the next Chairs of the FCC and FTC. So while all of this is conjecture, my colleagues at Public Knowledge have been making the rounds on the Hill and at the relevant agencies. And based on what we are hearing, these are some of the technology policy issues on which we work that we believe will get traction in 2013-14.
People are still trying to figure out the long-term effects of 14 million voices united against SOPA and PIPA, but for certain two of the short term effects are 1) there is unlikely to be a bill that strengthens copyright enforcement that moves through either house of Congress without a thorough debate; and 2) there are now more members and Senators looking at the possibility of rolling back some of the relentless march towards stronger and longer copyrights. What makes reform a strong possibility is that it has support from both sides of the aisle.
Several opportunities present themselves right away, some of which we have proposed as part of our Internet Blueprint. The Copyright Office’s recent ruling that ripping one’s DVD to one’s own device is not a fair use makes ripe a fix ensuring that such activity does not violate the Digital Millennium Copyright Act. Should the Supreme Court rule that Supap Kirtsaeng cannot dispose of the textbooks he bought overseas in the United States without violating copyright law, there will likely be a serious attempt to reverse that decision. Otherwise, every American’s ability to take advantage of the first sale doctrine (which allows the owner of a copyrighted work to dispose of that work as they see fit) will be severely limited.
There are also serious discussions taking place about trying for the first time in four years to pass legislation that would ensure that individuals and institutions can use works under copyright but for which the owner cannot be found (so-called “orphan works”) will not be subject to huge damage awards.
Look also for legislation that would require the US Trade Representative to 1) make more transparent trade negotiations; 2) ensure balance in intellectual property provisions in trade agreements; and 3) require Congressional approval of all trade agreements. Legislation of this kind is a reaction to the lack of transparency and balance in the Anti-counterfeiting Trade Agreement (ACTA) and the Transpacific Partnership Agreement (TPP).
The Future of Video
The question of how to ensure that Internet video fulfills its promise is on the minds of many legislators, as is evidenced by the fact that there were three separate hearings on the issue in the last year. This issue also enjoys bipartisan interest. There is a deregulatory aspect that appeals to “free market” legislators and a pro-consumer/innovation aspect that appeals to those legislators more comfortable with regulation.
Among the issues that are likely to be part of any future of video bill are retransmission consent reform (including possibly the elimination of distant signal and other protections for broadcasters), the elimination of the compulsory license for cable and satellite and a provision dealing with the increasing use of, and lack of transparency with regard to, data caps. Should the federal courts rule that either Barry Diller’s Aereo Internet video service or Dish Network’s Autohop DVR service is illegal, look for legislation that would reverse such decisions.
Of course the FCC has a tremendous role to play in making the video marketplace more competitive and consumer friendly. The current FCC has largely been hands off – despite the agency's own recommendation in the National Broadband Plan, it has done nothing to ensure that consumers can use any device of their choosing to watch TV (the so-called Allvid solution), and it has not finished proceedings to ensure that 1) Online Video Distributors (OVDs) have the same rights and protections as Multichannel Video Providers like cable and satellite; or 2) independent programmers are protected from the anticompetitive actions of cable operators. It remains to be seen whether the next FCC Chair will make the future of video a priority.
Open Internet/FCC Authority
The fate of an open Internet and the FCC’s ability to protect consumers when it comes to broadband Internet access is now in the hands of the US Court of Appeals for the DC Circuit. Sometime this spring the Court will render a decision in Verizon v. FCC, the case challenging the agency’s network neutrality rules. Verizon’s main challenge to the rules is that the FCC lacks the legal authority to regulate the network management practices of broadband Internet access providers. An FCC loss on those grounds will not only invalidate the rules, but will call into question whether the FCC will have any power to protect against anticompetitive and anti-consumer actions by broadband providers.
Should the FCC lose the case, regardless of the reason, Democrats on Capitol Hill will certainly seek to reinstate the net neutrality rules, and if necessary, give the FCC the authority to do so. Given the control of House by Republicans, passage of such a bill will largely be a symbolic task. In fact, it is widely assumed that House Republicans will introduce a bill stripping the FCC of any and all authority over broadband Internet access and instead giving the Federal Trade Commission enforcement power over broadband providers. Like the attempt to repeal the net neutrality rules via the Congressional Review Act, legislation of this kind will go nowhere in the Senate.
Since Congress will be deadlocked on this issue, it will be up to the new FCC Chair to ensure that the agency has the authority to protect broadband consumers should the court rule against it. And given what happened in Congress when the current Chairman proposed doing so, one should expect no less of a battle royale should the new Chair attempt to do the same.
Of course, this is a mere taste of what Congress and the relevant agencies will attempt to tackle in the next two years. There will certainly be attempts to regulate/legislate in the areas of privacy and cybersecurity, licensed and unlicensed spectrum. The major copyright holders will doubtless propose a “less controversial” SOPA and PIPA, and the Internet Radio Fairness Act will have a second iteration. So stay tuned, because when it comes to technology policy, the next two years will hardly be boring.