Experts weigh in on b-to-b media's most-pressing legislative issues, post-election

Nov. 14, 2012 -- The election has been decided, and the Hill looks a lot like how it did before: a Democratic presidency and Senate and a Republican House of Representatives. So where does that leave the mountains of legislation that has to be decided, and what will be the effect on b-to-b media and marketers? ABM talked to three policy experts -- Mark Sableman, ABM's Information Policy Counsel; Tom Carpenter, ABM's lobbyist and vice president of Wexler & Walker Public Policy Associates, ABM's Washington representation; and Chip Sharkey, chair of ABM's Talent Management Committee -- to get the details on the current state of data privacy, postal and healthcare reform, and the direction it might take in the future. Broken down by issue, here is what b-to-b needs to know:  

Mark Sableman, partner of Thompson Coburn and ABM's Information Policy Counsel
Mark Sableman

Data privacy is likely to continue to attract attention in both Congress and regulatory agencies under President Obama’s second term. Leaders in both parties have expressed support for various kinds of data privacy laws and regulations, and the FTC is likely to continue to actively hold hearings and propose rules in this area. However, the “data privacy” category includes many sub-issues, some of which attract different political coalitions, and some of which are being primarily addressed outside the political arena.

On Overall Data Privacy Legislation. Broad new laws designed to protect consumer privacy carry the greatest risk for the b-to-b industry, because broad provisions designed to protect consumers could collaterally inhibit valuable b-to-b collection, use and sale of data. The leading bill is likely to be a derivative of the one Sens. John Kerry [Mass.] and John McCain [Ariz.] proposed in the last Congress. ABM will continue to seek to prevent these bills from inhibiting data collection, use and sale within the b-to-b community, because such uses generally do not raise consumer privacy concerns.  

On Data Breach Laws. Both businesses and consumer advocates have been bothered by the patchwork of many different state data breach laws, and Sen. Jay Rockefeller’s [W. Va.] push for a uniform federal data breach law is likely to continue, with fairly broad support. For b-to-b and other businesses, a federal standard for recognizing and reporting data breaches would reduce the costs and risks of the many different state standards and requirements.

On Online Behavioral Advertising. While the FTC’s inquiry into online behavioral advertising five years ago opened up Washington’s critical look at data privacy, in the last year, the FTC has been supportive of the advertising industry’s behavioral advertising self-regulatory program. But opposition has come from both consumer groups and Microsoft, which is building “Do Not Track” protection into its newest Internet browser releases. Thus, for the near future, the future of behavioral advertising is being fought in the marketplace, and in a non-governmental standard-setting agency, the World Wide Web Consortium, which is weighing "Do Not Track" standards.

On Mobile App Privacy. The FTC’s focus on mobile app privacy issues -- controlling use of geolocation information and requiring simple and understandable disclosures of how mobile information will be used -- will continue. This is also the kickoff issue for the Commerce Department’s multi-stakeholder process, designed to develop enforceable industry best practices codes, and that process will continue.

On Data Broker Regulation. Although the FTC has expressed interest in regulating so-called “data brokers” and has taken some enforcement actions, it has largely focused on credit reporting agencies. The bi-partisan Congressional privacy coalition, by contrast, has cast its data brokerage inquiry net more broadly, including some b-to-b companies. With Congress deadlocked on many partisan issues, it is possible that this inquiry, from a bi-partisan coalition, could take off. 

Tom Carpenter, vice president of Wexler & Walker Public Policy Associates, ABM's Washington Representation
Tom Carpenter

On Postal Reform. We did a ton of work at the end of 2011 and the early part of this year to get the postal bill ready, and we've just been waiting a lot of this year for the House to act. The Senate passed their bill in the summer, and we thought the House might act but then they postponed action to the lame-duck session. The most immediate piece on postal, in terms of election impact, is whether the House is going to pass their bill. We think it's about a 50/50 chance right now. [The House] can be here for two weeks to as long as six weeks. The longer they're here, the better the chances are for postal reform.

If they don't pass it during lame duck, then we have to start all over again next year. The house chairman will remain the same, but in the Senate it's a mixed bag. The committee leadership is changing. Senator Joseph Lieberman has been the chairman and has really guided postal through the process, but he is retired. Senators Susan Collins and Tom Carper are still there. The worst case for us is that we have to start all over again, and in that case it will take a long time.

We think that the Postal Service can run out of money by next summer, potentially in late spring, depending on how good of a quarter they have. They are at their debt ceiling right now, so they have no more room to borrow. What could happen is the Postal Service could really start tanking, and they are threatening to potentially shut operations -- then Congress would have to move something fast. We would like Congress to pass their bill in the lame-duck session so we don't have this quick action under duress. Congress typically passes bad bills when they have to do it quickly.

On "The Status Quo." Nothing has really changed in this election: the Democrats are still in control of the Senate, President Obama is still in the White House and the Republicans are still in control of the House. Democrats having a little bit bigger majority in the Senate doesn't really affect things in terms of any ABM issues. So the status quo likely means more gridlock on Capitol Hill.

On Privacy Leadership. In a funny twist, the now third House member to try to tackle privacy has been beaten in election. In 2010, it was Rick Boucher from Virginia who was championing privacy legislation; then earlier this year, in a primary, Rep. Cliff Sterns [Florida] got beat; and now Rep. Mary Bono Mack [Calif.] was the latest Republican to be working on it, and she just got beat. So we've lost three privacy champions in the last two years. That kind of leaves an open question mark on if there's any leadership in the House. 

Chip Sharkey, vice president of human resources and employee development at Naylor and chair of ABM's Talent Management Committee
Chip Sharkey

On The Affordable Care Act. There’s still a lot of speculation that the costs are going to rise. There were pretty good results over the last couple of years in terms of moderate cost increases. But, there were already things that were being bantered around before the election about various elements of the Affordable Care Act being "delayed," a governmental term for moving it back a little, because there are still a lot of questions about this stuff is going to get paid for. The people who are going to pay for it are going to be employers, users and providers -- providers from the standpoint of how they are going to get squeezed for what they can charge.

There are many people in the b-to-b media industry on the smaller side that ultimately might be able to benefit from some things like larger consortiums they can participate in and writing insurance across state lines. We're all just scratching our heads and waiting. Like any other massive government regulation, some of this can get delayed. How much gets pushed back all depends on where the funding will come from. Something I think is always a good business practice is to be familiar with what's going on and to get involved however you can in shaping whatever regulations there area.

ABM continues to lobby on Capitol Hill on behalf of b-to-b media. For more information on our government affairs efforts, click here.

By Elizabeth A. Reid