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The National Weather Services Duties Act of 2005 (S.786) is either about freedom of information or censorship for commercial gain, depending on whom you ask. The bill, introduced by U.S. Sen. Rick Santorum, R-Pa., in April, aims to clarify the responsibilities of the National Weather Service.
Such clarification is necessary, Santorum says, because the parent agency of NWS, the National Oceanic and Atmospheric Administration, repealed its 1991 noncompetition and nonduplication policy in December as a result of recommendations by the National Research Council of the National Academy of Sciences. In effect, this change allows the NWS to compete with private-sector weather companies. S.786 would reverse this revised policy.
"The government weather service responded to this professional review in December by making itself a commercial competitor to America's private weather industry, using taxpayer money to duplicate products and services already freely available to the public by entities like WeatherBank, AccuWeather, The Weather Channel, and others," Steven Root, president of the Commercial Weather Service Association, an industry trade group representing commercial weather providers, writes in an E-mail. "Apparently, this was an attempt to weaken and ultimately silence its strongest and most knowledgeable critic, and to undermine America's gem of the weather world, America's private weather industry."
Critics charge that S.786 is an attempt to silence NWS. "If enacted, S.786 would prohibit the National Weather Service from providing any service, including marine, public and aviation forecasts (other than severe weather warnings) to either the public, the media, academia, or state and local emergency management officials if private sector weather companies are or could provide a similar service for a fee," Richard Hirn, general counsel for the National Weather Service Employees Organization, wrote in a letter to Sen. Jim DeMint, R-S.C.
The National Weather Service is silent on the issue. As a government agency, it's unable to offer comment about proposed legislation that might affect it. But a spokesman for the National Oceanic and Atmospheric Administration notes that NWS isn't actively competing with the private sector. "There's no incentive for us to compete," he says. "No one has come to us and said this competes with our service."
Root says otherwise. "In fact, they're getting more and more into providing specialized, customized value-added products and services," he says. "They're doing it for free. They're writing specialized XML code, they're providing special data services in different formats that up until this point, the private sector has been doing for a reasonable fee."
In December, NWS began making weather data in its National Digital Forecast Database available to the public in XML format, allowing anyone to request weather information through its NDFD XML Simple Object Access Protocol server. Previously, NWS data feeds were not in a format that anyone could access.
Commercial weather providers typically augment NWS data with additional sources of their own and tailor it for sale.
For supporters of the private-sector weather industry, competition from public entities is an issue that's been festering for some time. In a June 3, 2003, letter to Mitchell Daniels, director of the Office of Management and Budget, Sens. Santorum and Conrad Burns, R-Mt., complain that NWS had been diverting Internet traffic from government Web sites to select commercial Web sites, resulting in potential advertising revenue loss to excluded private-sector sites of as much as $100 million.
They also protest "chronic and recurring encroachment on the private sector by the NWS" in a number of areas including "provision of weather information via wireless devices after representing to the private sector that it would not engage in such a practice."
When introducing his bill before the Senate in April, Santorum said regulation was needed because weather data might be used for an unfair advantage in financial trading. "Currently, NOAA and the NWS are doing little to safeguard the NWS information that could be used by opportunistic investors to gain unfair profits in the weather futures markets, in the agriculture and energy markets, and in other business segments influenced by government weather outlooks, forecasts, and warnings," he said. However, his allowance that "no one knows who may be taking advantage of this information" undermines the notion that insider profiteering based on leaked weather data represents a significant potential problem.
Of course, it all comes down to profits. As a 2001 presentation from National Weather Service notes, "Taxpayer-funded government information--from corporate data from the Securities and Exchange Commission to patent data from the Patent and Trademark office--is contributing to the spectacular growth in the information retrieval and database industries."
Rising revenue beget contributions of a different sort: campaign contributions. Supporters of the bill, like Joel Myers, founder and president of AccuWeather, have contributed to Santorum's campaign fund.
"We've supported Sen. Santorum for a number of years," he explains. "Do you think you can buy a senator who's running a $25 million campaign for a couple thousand dollars? It's pretty far-fetched."
Jeff Masters, director of meteorology for The Weather Underground Inc., a small online weather information site, doesn't think it's that far-fetched. "The bill is designed to be private-industry friendly," he says. "I think it was written as a favor for large weather providers." He believes that the bill would eliminate the forecast data his company currently gets from the NWS, forcing his company to purchase that information from a large commercial source such as AccuWeather.
Opponents are responding in kind. "We've never ever, ever, ever endorsed a Senate candidate anywhere," says Dan Sobien, VP of the National Weather Service Employees Organization. "And we haven't decided whether we're going to endorse [Pennsylvania Democratic State Treasurer] Bob Casey, who's running against Santorum. Never in our history have we ever done this. But it's likely that we will. And in fact we have not yet, but will be contributing to his campaign. This is just bad legislation, and anybody who would even promote this sort of thing is no friend of ours."
While everyone seems to agree that the ostensible goal of the bill, "to make all data and information that the public has already paid for available in real time," as Myers puts it, is a good one, there's disagreement about whether the text of the proposed legislation will function as advertised.
The bill directs the NWS to release all its weather information in real time. But it specifies that the data be issued "through a set of data portals designed for volume access by commercial providers of products or services." It also directs the secretary of commerce to determine additional methods for publishing weather data. However, an earlier paragraph restricts the secretary's leeway to make such a determination. It states, "The Secretary of Commerce shall not provide, or assist other entities in providing, a product or service ... that is or could be provided by the private sector," with a few exceptions such as severe weather forecasts.
David Moran, assistant professor of law at Wayne State University, says the bill is ambiguous and contradictory. "I believe the bill is poorly drafted because, after reading it several times, I'm not at all clear as to exactly what information the NWS would be prohibited from releasing to the public," he writes via E-mail. "First, it does not define some key terms. ... Second, [certain provisions] appear to be flatly contradictory. How is the NWS supposed to issue to the public all of its data (not just severe weather information) without thereby providing a service that would compete with private entities?"
With the exception of the Postal Service, the government typically steers away from competing with the private sector. "But what is happening here is people are wanting to make an industry out of government assets," says Richard Griffin, a partner at Texas law firm Jackson Walker, who contends that taxpayer-funded weather data should be equally available to everyone.
Efforts to control public information that profits the private sector are hardly new. Commercial providers of patent and trademark information opposed making the U.S. Patent and Trademark Office database available online, a fight they lost in 1998. And in 1993, responding to pressure from public-interest groups, the Securities and Exchange Commission made its Electronic Data Gathering and Retrieval System available online free of charge, a service Mead Data (subsequently purchased by Reed Elsevier and renamed LexisNexis), under government contract, previously offered for a fee.
Legislation designed to prohibit government-funded municipal wireless networks can be seen in a similar light.
Those following S.786 note that the bill has not received much support and that it's currently languishing in committee. Sobien says the bill has a good chance of becoming law if it gets attached to other legislation, noting that a recent effort to attach it to an appropriations bill failed. He says he expects those backing the bill will try to attach it to an upcoming authorization bill for the National Oceanic and Atmospheric Administration.