Media issues figured prominently in the early days of the 111th Congress, as both Chambers scrambled to deal with problems surrounding the nation’s transition to digital television and attempted to capitalize on President Obama’s promise of a more open and transparent government.

But as the credit crisis worsened, Congressional attention quickly shifted to the economy and President Obama’s other high-priority policy goals—the budget, health care, education reform and renewable energy—and these issues will continue to dominate the legislative agenda in the coming months.  Still, the following key legislative proposals of particular interest to newsrooms appear to have momentum:

Free Flow of Information Act of 2009
Supporters of a federal shield law continue to press for its passage—and are making progress. H.R. 985, introduced by Rep. Rick Boucher (D-Va.), has passed the House and S. 448 is pending in the Senate. The proposals establish a qualified privilege and detail the circumstances under which a reporter can be compelled to testify regarding his or her sources, such as when national security is at risk or an eyewitness has observed a crime.

The House and Senate versions differ, however. The House proposal exempts cases where confidential information would reveal the identity of someone who has unlawfully disclosed trade secrets, personally identifiable health information or nonpublic personal information, as well as cases that could prevent an act of terrorism against the United States, imminent death or significant bodily harm. The Senate bill expands the definition of “journalist” and would allow courts to compel disclosure unless a specific promise of confidentiality has been made.

Sunshine in the Courtroom
Legislation has been reintroduced to permit electronic coverage of federal courts, including the Supreme Court. H.R. 429, introduced by Rep. Ted Poe (R-Texas) and S. 446, introduced by Sen. Arlen Specter (R-Pa.), would allow electronic coverage of Supreme Court proceedings, and S. 657, sponsored by Sen. Chuck Grassley (R-Iowa), would allow electronic coverage of federal trial and appellate proceedings as part of a three-year experiment. 

Reducing Over-Classification Act of 2009
The House passed H.R. 553, introduced by Rep. Jane Harman (D-Calif.). The bill directs the Department of Homeland Security (DHS) to prevent the over-classification of information related to homeland security, the prevention of terrorist attacks and weapons of mass destruction. The bill states that DHS must prepare intelligence products in both classified and unclassified forms, if the product “would reasonably be expected to be of any benefit to a state, local, tribal or territorial government, law enforcement agency, or other emergency response provider, or the private sector.” The bill now awaits action in the Senate.

FOIA
President Obama has given federal agencies a clear mandate to disclose more information under the Freedom of Information Act (FOIA). Attorney General Eric Holder issued a Justice Department memorandum in March on implementing a FOIA policy that restores the presumption that federal agencies should disclose information absent foreseeable harm or a legal ban. Federal agencies are now preparing to cooperate with the new Office of Government Information Services, created by the OPEN Government Act of 2007, to mediate disputes between FOIA requesters and agencies, and to recommend improvements to federal FOIA operations.

Libel Tourism
The House Committee on the Judiciary has shown great interest in renewing the debate over federal protections for defendants in “libel tourism” cases. During the last Congress, H.R. 6146, introduced by Rep. Steve Cohen (D-Tenn.), directed federal and state courts not to recognize any foreign defamation judgment that violates the First Amendment. S. 2977, introduced by Sen. Specter, would have permitted a defendant subject to a foreign libel or slander judgment to file a case in U.S. federal court to bar enforcement of the foreign judgment if the judgment violates the First Amendment. In recent years, plaintiffs in defamation cases have filed claims in international jurisdictions (like the United Kingdom), arguably to escape the constitutional protections afforded to U.S. defendants.

Performance Royalties
Congress will again this session consider the question of royalty payments to music artists by terrestrial radio stations. Reps. Gene Green (D-Texas), Mike Conaway (R-Texas) and 110 co-sponsors have introduced a resolution supporting “local radio freedom” and opposing any attempt by Congress to impose “any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station.” Similarly, supporters of performance royalties have re-introduced their legislation, S. 379, sponsored by Sen. Patrick Leahy (D-Vt.) and H.R. 848, sponsored by Rep. John Conyers (D-Mich.).

The performance royalty bills in the House and Senate are largely the same as the bills passed by the Judiciary Committees in both chambers last session. The House Judiciary Committee has held a hearing on its legislative proposal already, which indicates a consensus is developing within the committee to grant a performance royalty for terrestrial radio. What that royalty should look like, however, is still the subject of debate.

Quick action on both the House and Senate measures can be expected, but final passage of a performance royalty bill is not assured this session.

SHVERA
Congress is also considering the renewal of the Satellite Home Viewer Extension and Reauthorization Act (SHVERA). Passed in 2004, SHVERA reauthorized and revised the compulsory copyright license granted to DBS providers for local broadcast programming. Certain aspects of SHVERA are set to expire on December 31, 2009, and must be renewed if Congress wants to prevent the need for DBS providers to negotiate program-by-program copyright licenses with program producers. 

The SHVERA debate this Congress likely will center less on copyright law than on questions of retransmission consent. Broadcasters expect both DBS and cable to use the bill as a means of adopting rules allowing multichannel video program distributors to carry programming from broadcasters in “adjacent markets” without a retransmission consent agreement.

The House Energy and Commerce Committee, House Judiciary Committee, and Senate Judiciary Committee all have hearings scheduled on SHVERA and its renewal, and the Senate Commerce Committee is expected to follow with its own hearing in the near future. 

Kathleen Kirby is a partner at Wiley Rein LLP in Washington. Shawn Bone, an associate at the firm, assisted in the preparation of this article.