FATE OF TAUZIN-DINGELL RESTS IN HANDS OF HOUSE RULES COMMITTEE

Fate of data deregulation bill is in hands of House Rules Committee, which now must make pivotal decision on which version of HR-1542 will go to House floor for vote. Supporters and opponents each claimed victory Wed. following House Judiciary Committee’s markup of amended bill and rejection of competing bills. Although panel by voice vote approved “unfavorable” referral of bill out of committee, it passed by voice vote amendment by Chmn. Sensenbrenner (R-Wis.) that would expand authority of Dept. of Justice in reviewing applications for Sec. 271 relief.

Bill by House Commerce Committee Chmn. Tauzin (R-La.) and ranking Democrat Dingell (Mich.) would ease restrictions on Bell companies’ provision of data services across interLATA boundaries. However, Sensenbrenner amendment would: (1) Require Bells to file an application with DoJ before offering Internet backbone and high-speed Internet services across their respective LATA boundaries. (2) Enable Justice to “issue rules” and “make recommendations” governing its decision to reject or approve such applications. (3) Overturn 7th U.S. Appeals Court, Chicago, Goldwasser v. Ameritech decision, which gave antitrust law back seat to Telecom Act in resolution of telecom market disputes.

Rep. Boucher (D-Va.) attempted to block introduction of amendment, which he said “exceeds the scope of referral” granted by House Speaker Hastert (R-Ill.). Hastert recently (CD May 29 p1) approved Sensenbrenner’s request for “sequential referral” of Tauzin-Dingell, but limited scope of referral solely to provisions in HR-1542 that might narrow U.S. Attorney Gen.’s purview of Sec. 271. Boucher argued that amendment wrongly provides “dispository” role to AG, rather than consultative role allowed under current law.

Boucher said House Parliamentarian would deem such proposed changes in bill as outside scope of limited sequential referral. However, Sensenbrenner overruled Boucher’s point of order on basis that Tauzin-Dingell took FCC out of the decisionmaking process and therefore stripped DoJ of its consultative role.

Committee voted 15-19 against referral of bill (HR-2120) by Rep. Cannon (R-Utah) that mirrored Sensenbrenner amendment with exception of Cannon provision enabling Justice to re-issue rules “if the Bells are using or are likely to use their monopoly power to engage in exclusionary or anticompetitive conduct.” Sensenbrenner immediately after vote ordered that other bill (HR- 1698) by Cannon and ranking Democrat Conyers (Mich.) couldn’t be considered for referral.

Ironically, both sides praised actions. Covad said Sensenbrenner amendment “maims” Tauzin-Dingell and Committee’s negative referral indicated it didn’t think HR-1542 should pass House. “This turns Tauzin-Dingell on its head,” Covad attorney Jason Oxman said. Assn. of Communications Enterprises said Judiciary Committee “took a major step to reverse the potential damage” of HR-1542 by making unfavorable referral.

“It’s time for Tauzin-Dingell to die a gentle death,” said CompTel Pres. Russell Frisby. ALTS Pres. John Windhausen said unfavorable referral was “damaging body blow to Tauzin-Dingell” and “sets up an irreconcilable conflict” between committees.

Tauzin-Dingell is “in deeply troubled waters,” said Conyers: “By favorably reporting out the chairman’s procompetitive amendment while at the same time rejecting the promonopoly provisions, Republicans and Democrats have exposed the Tauzin- Dingell bill for what it is -- a barrier to true competition in the high-speed Internet market.”

However, SBC, a supporter of HR-1542, applauded Committee for reporting amended bill unfavorably, saying that meant House could act on Commerce Committee version that was reported favorably. SBC spokesman said competitors were just trying to “put a bright face on something that is bad for them.” Negative referral indicated there wasn’t really support for version amended by the Judiciary Committee, he said.

Rep. Goodlatte (R-Va.), also supporter of Tauzin-Dingell, believes action gutted bill but “does not hurt” its chances of passage, staffer said. Bill reported out of Commerce Committee “was the appropriate version” of legislation and still stands strong chance of going to House floor, aide said.

Tauzin spokesman Ken Johnson said amended bill stood “little or no chance” of surviving parliamentarian review process: “They might as well have tacked on a white flag at the same time they tacked on their amendment. We have a commitment from the leadership that if the Judiciary Committee goes beyond the scope of its referral, then their language will be stripped from our bill.”