Dorgan Says Telecom Stalemates Possible in Divided Congress

Even historically nonpartisan telecom issues have become political in an increasingly divided Congress, and it’s become increasingly difficult to pass substantive legislation, former Sen. Byron Dorgan, D-N.D., said in an interview Thursday with Communications Daily. The Commerce Committee alum urged the FCC to complete what Congress couldn’t: an overhaul of the Universal Service Fund. Dorgan blamed radio talk show hosts for politicizing the net neutrality debate, but he predicted demise for Republicans’ effort to overturn the FCC’s December order using the Congressional Review Act.

After 30 years in Congress, “you don’t walk away from the issues,” said Dorgan. But the former senator doesn’t intend to lobby, he said. He’s now senior policy adviser for the Arent Fox law firm, and last week was named senior fellow at the Bipartisan Policy Center. Dorgan also is working on two “eco-thriller” novels, he said.

Dorgan pointed to recent budget negotiations as an ominous portent of future Congressional stalemates. Last week, there were “plaudits all around” for a bill to fund the government for two weeks, said Dorgan, calling it a “sophistry of low expectations.” That’s an item that “in any other decade you would do by unanimous consent because both sides understand the need to it,” he said. “You wonder what other kinds of issues can get resolved if they are substantive and complicated."

Not completing a USF overhaul is Dorgan’s biggest regret on telecom policy, he said. “If we're going to avoid a digital divide on advanced service, we've got to see a reform” of USF and intercarrier compensation, he said: Dorgan, [Sens.] “Ted Stevens, [R-Alaska] Conrad Burns [R-Mont.] and a number of people were working over the years to try to reform the universal service program, but were never able to get it done, which is a disappointment.” Dorgan is watching the FCC’s rulemaking on the topics, and hopes the commission will finish the job, he said.

Dorgan “is proud of waging the fight for net neutrality, even though the fight is not resolved,” he said. The Internet was built with “an open architecture and rules of nondiscrimination, and as I see larger companies capture more of the telecommunications market across the country, I think it’s even more important to restore the nondiscrimination rules.” Dorgan said he would have liked FCC Chairman Julius Genachowski to make a “stronger” net neutrality order that applied to wireless and reclassified broadband under Title II of the Communications Act. But a “baby step” is better than nothing, he said. “It would have just been easier and much, much more effective” to reclassify, he said. Since there’s a big fight over the FCC order anyway, Genachowski should have just “gone all the way,” Dorgan said.

Dorgan blamed conservative radio broadcasts for turning net neutrality into a partisan issue. The former senator originally pushed for neutrality with a Republican cosponsor, Sen. Olympia Snowe of Maine, and an amendment that they offered on the subject lost in a tie vote, he said. But later, “the bleacher section that provides most of the crowd noise and the pushing and shoving for these things decided to label this as government control of the Internet,” he said. When Rush Limbaugh and other conservative talk show hosts decided to define it that way, “it created a political bed” for the fight, Dorgan said. They “created a spectre of something that doesn’t exist."

Republicans’ effort to use the Congressional Review Act to overturn net neutrality rules is a “nonstarter” because the president may veto a joint resolution of disapproval, Dorgan said. “Anybody has the right to use that process to try and overturn a rule,” but “it’s very hard to do because you have to have the House and the Senate, and then a presidential signature.” The Act also imposes tight timeframes, he said. Dorgan was first to use the Congressional Review Act to try to overturn federal regulations, when he and former Senator Trent Lott, R-Miss., fought against FCC media ownership rules. The Senate approved the resolution of disapproval, but it never made it through the House.

Genachowski and President Barack Obama have “set out an ambitious agenda” for broadband buildout, but while their goals are good, it’s action that will be important, Dorgan said. The former senator described spectrum as an “enormous asset” that isn’t in all cases being put to the best of use. Auctioned spectrum should include an “ironclad” requirement to “use it or lose it,” Dorgan said. There are some companies, particularly in rural areas, that have spectrum but aren’t using it, and don’t want anyone else to have it, he said. On broadcaster spectrum, Dorgan said lawmakers had expected that the DTV transition would reduce the amount of spectrum needed by broadcasters. “The anticipation was they would return that spectrum to the federal government."

Dorgan still hopes the FCC will restore public interest standards in broadcasting, he said. The standards have been “emasculated” to the point where now companies only have to send postcards every few years to keep their licenses, he said. Dorgan looks forward to the FCC’s media ownership review, he said. “It’s always important for the FCC to be monitoring and reviewing” media ownership and determining whether it’s in the public interest, he said. Media consolidation is “harmful to consumers,” Dorgan said. When a train crashed and released poisonous toxins over a town in South Dakota, public safety couldn’t find a radio station to alert the population of 50,000, he said. All of the stations were owned by Austin-based Clear Channel, he said.

Dorgan said he'd vote for the 1996 Telecom Act all over again. “It’s the right thing to have done,” he said. “A lot has happened that probably we couldn’t anticipate then,” Dorgan said. But “even though we didn’t know in 1996 what ‘advanced services’ would be, we did include … the requirement on universal service for example to support the buildout of advanced services [for] comparable service at an affordable price for even the most high-cost regions of the country.”