24598 CONGRESSIONAL RECORD-HOUSE September 14, 1992 HOUSE OF REPRESENTATIVES-Monday, September 14, 1992 The House met at 12 noon. that the Senate had passed without S. 2880. An act to authorize appropriations amendment a joint resolution of the for fiscal years 1993 and 1994 for the Office of House of the following title: the United States Trade Representative, the DESIGNATION OF SPEAKER PRO H.J. Res. 413. Joint resolution to designate United States International Trade Commis­ TEMPORE September 13, 1992, as "Commodore John sion, and the United States Customs Service, Barry Day." and for other purposes; The SPEAKER pro tempore laid be­ S. 3095. An act to restore and clarify the fore the House the following commu­ The message also announced that the Federal relationship with the Jena Band of nication from the Speaker: Senate had passed with amendments in Choctaws of Louisiana; and WASHINGTON, DC, which the concurrence of the House is S. 3224. An act to designate the United September 14, 1992. requested, bills of the House of the fol­ States Courthouse to be constructed in I hereby designate the Honorable BUTLER lowing titles: Fargo, North Dakota the Quentin N. Burdick DERRICK to act as Speaker pro tempore on H.R. 5488. An act making appropriations United States Courthouse. this day. for the Treasury Department, the United The message also announced that THOMAS S. FOLEY, States Postal Service, the Executive Office pursuant to Public Law 102-166, the Speaker of the House of Representatives. of the President, and certain Independent Chair, on behalf of the Republican lead­ Agencies, for the fiscal year ending Septem­ ber 30, 1993, and for other purposes; and er and the majority leader, appoints H.R. 5679. An act making appropriations Mr. SEYMOUR, as a member of the Glass PRAYER for the Departments of Veterans Affairs and Ceiling Commission. The Chaplain, Rev. James David Housing and Urban Development, and for The message also announced that Ford, D.D., offered the following pray­ sundry independent agencies, boards, com­ pursuant to Public Law 102-166, the er: missions, corporations, and offices for the Chair, on behalf of the Republican We are grateful, 0 God, for all those fiscal year ending September 30, 1993, and for leader, appoints Mrs. Marilyn Pauly of who seek to use their abilities in serv­ other purposes. Kansas, as a member of the Glass Ceil­ ice to others, who dedicate themselves The message also announced that the ing Commission. and their energies to the works of jus­ Senate insists upon its amendment to tice and peace. the bill (H.R. 5488), "An act making ap­ On this day we remember the gifts of propriations for the Treasury Depart­ CONFERENCE REPORT ON S. 12, our friend and colleague, TED WEISS, ment, the United States Postal Serv­ CABLE TELEVISION CONSUMER who served with distinction and honor ice, the Executive Office of the Presi­ PROTECTION AND COMPETITION in this place for many years. We are dent, and certain Independent Agen­ ACT OF 1992 thankful for the commitment and loy­ cies, for the fiscal year ending Septem­ Mr. DINGELL submitted the follow­ alty that he shared with the people of ber 30, 1993, and for other purposes," re­ ing conference report and statement on his community in New York and with quests a conference with the House on the Senate bill (S. 12) to amend title VI all who serve in this place. the disagreeing votes of the two Houses of the Communications Act of 1934 to May each of us who continue in our thereon, and appoints Mr. DECONCINI, ensure carriage on cable television of responsibilities be found faithful in our Mr. BYRD, Ms. MIKULSKI, Mr. KERREY, local news and other programming and Mr. DOMENIC!, Mr. HATFIELD, and Mr. to restore the right of local regulatory tasks and may we, in all things, seek D'AMATO, to be the conferees on the to do justice, love, mercy, and ever authorities to regulate cable television part of the Senate. rates, and for other purposes: walk humbly with You. Amen. The message also announced that the Senate insists upon its amendments to CONFERENCE REPORT (H. REPT. 102-862) the bill (H.R. 5679), "An act making ap­ The committee of conference on the dis­ THE JOURNAL propriations for the Departments of agreeing votes of the two Houses on the The SPEAKER pro tempore. The amendments of the House to the bill (S. 12), Veterans Affairs and Housing and to amend title VI of the Communications Chair has examined the Journal of the Urban Development, and for sundry Act of 1934 to ensure carriage on cable tele­ last day's proceedings and announces independent agencies, boards, commis­ vision of local news and other programming to the House his approval thereof. sions, corporations, and offices for the and to restore the right of local regulatory Pursuant to clause 1, rule I, the Jour­ fiscal year ending September 30, 1993, authorities to regulate cable television nal stands approved. and for other purposes," requests a rates, and for other purposes, having met, conference with the House on the dis­ after full and free conference, have agreed to agreeing votes of the two Houses there­ recommend and do recommend to their re­ PLEDGE OF ALLEGIANCE on, and appoints Ms. MIKULSKI, Mr. spective Houses as follows: That the Senate recede from its disagree­ The SPEAKER pro tempore. The LEAHY, Mr. JOHNSTON, Mr. LAUTEN­ ment to the amendment of the House to the Chair recognizes the gentleman from BERG, Mr. FOWLER, Mr. KERREY, Mr. text of the bill and agree to the same with an Arizona [Mr. RHODES] to lead us in the BYRD, Mr. GARN, Mr. D'AMATO, Mr. amendment as follows: Pledge of Allegiance. NICKLES, Mr. GRAMM, Mr. BOND, and In lieu of the matter proposed to be in­ Mr. RHODES led the Pledge of Alle­ Mr. HATFIELD, to be the conferees on serted by the House amendment, insert the giance as follows: the part of the Senate. following: I pledge allegiance to the Flag of the The message also announced that the SECTION 1. SHORT TITLE. United States of America, and to the Repub­ Senate had passed bills of the following This Act may be cited as the ''Cable Television lic for which it stands, one nation under God, titles, in which the concurrence of the Consumer Protection and Competition Act of indivisible, with liberty and justice for all. House is requested: 1992". S. 2507. An act to amend the Act of October SEC. 2. FINDINGS; POUCY; DEFINITIONS. 19, 1984 (Public Law 98-530; 98 Stat. 2698), to (a) FINDINGS.-The Congress finds and de­ MESSAGE FROM THE SENATE authorize certain uses of water by the Ak­ clares the fallowing: Chin Indian Community, Arizona; (1) Pursuant to the Cable Communications A message from the Senate by Mr. S. 2572. An act to authorize an exchange of Policy Act of 1984, rates for cable television serv­ Hallen, one of its clerks, announced lands in the States of Arkansas and Idaho; ices have been deregulated in approximately 97

DThis symbol represents the time of day during the House proceedings, e.g., D 1407 is 2:07 p.m. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor. September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24599 percent of all franchises since December 29, 1986. (9) The Federal Government has a substantial (19) At the same time, broadcast programming Since rate deregulation, monthly rates for the interest in having cable systems carry the sig­ that is carried remains the most popular pro­ lowest priced basic cable service have increased nals of local commercial television stations be­ gramming on cable systems, and a substantial by 40 percent or more for 28 percent of cable tel­ cause the carriage of such signals is necessary portion of the benefits for which consumers pay evision subscribers. Although the average num­ to serve the goals contained in section 307(b) of cable systems is derived from carriage of the sig­ ber of basic channels has increased from about the Communications Act of 1934 of providing a nals of network affiliates, independent tele­ 24 to 30, average monthly rates have increased fair, efficient, and equitable distribution of vision stations, and public television stations. by 29 percent during the same period. The aver­ broadcast services. Also cable programming placed on channels ad­ age monthly cable rate has increased almost 3 (10) A primary objective and benefit of our jacent to popular off-the-air signals obtains a times as much as the Consumer Price Index Nation's system of regulation of television larger audience than on other channel posi­ since rate deregulation. broadcasting is the local origination of program­ tions. Cable systems, therefore, obtain great ben­ (2) For a variety of reasons, including local ming. There is a substantial governmental inter­ efits from local broadcast signals which, until franchising requirements and the extraordinary est in ensuring its continuation. now, they have been able to obtain without the expense of constructing more than one cable tel­ (11) Broadcast television stations continue to consent of the broadcaster or any copyright li­ evision system to serve a particular geographic be an important source of local news and public ability. This has resulted in an effective subsidy area, most cable television subscribers have no affairs programming and other local broadcast of the development of cable systems by local opportunity to select between competing cable services critical to an informed electorate. broadcasters. While at one time, when cable sys­ systems. Without the presence of another multi­ (12) Broadcast television programming is sup­ tems did not attempt to compete with local channel video programming distributor, a cable ported by revenues generated from advertising broadcasters for programming, audience, and system faces no local competition. The result is broadcast over stations. Such programming is advertising, this subsidy may have been appro­ undue market power for the cable operator as otherwise free to those who own television sets priate, it is so no longer and results in a com­ compared to that of consumers and video pro­ and do not require cable transmission to receive petitive imbalance between the 2 industries. grammers. broadcast signals. There is a substantial govern­ (20) The Cable Communications Policy Act of (3) There has been a substantial increase in mental interest in promoting the continued 1984, in its amendments to the Communications the penetration of cable television systems over availability of such free television programming, Act of 1934, limited the regulatory authority of the past decade. Nearly 56,000,000 households, especially for viewers who are unable to afford franchising authorities over cable operators. over 60 percent of the households with tele­ other means of receiving programming. Franchising authorities are finding it difficult visions, subscribe to cable television, and this (13) As a result of the growth of cable tele­ under the current regulatory scheme to deny re­ percentage is almost certain to increase. As a re­ vision, there has been a marked shift in market newals to cable systems that are not adequately sult of this growth, the cable television industry share from broadcast television to cable tele­ serving cable subscribers. has become a dominant nationwide video me­ vision services. (21) Cable systems should be encouraged to dium. (14) Cable television systems and broadcast carry low-power television stations licensed to (4) The cable industry has become highly con­ television stations increasingly compete for tele­ the communities served by those systems where centrated. The potential effects of such con­ vision advertising revenues. As the proportion of the low-power station creates and broadcasts, as centration are barriers to entry for new pro­ households subscribing to cable television in­ a substantial part of its programming day, local grammers and a reduction in the number of creases, proportionately more advertising reve­ programming. media voices available to consumers. nues will be reallocated from broadcast to cable (b) STATEMENT OF POLICY.-lt is the policy of (5) The cable industry has become vertically television systems. the Congress in this Act to- integrated; cable operators and cable program­ (15) A cable television system which carries (1) promote the availability to the public of a mers often have common ownership. As a result, the signal of a local television broadcaster is as­ diversity of views and information through cable operators have the incentive and ability to sisting the broadcaster to increase its cable television and other video distribution favor their affiliated programmers. This could viewership, and thereby attract additional ad­ media; make it more difficult for noncable-affiliated vertising revenues that otherwise might be (2) rely on the marketplace, to the maximum programmers to secure carriage on cable sys­ earned by the cable system operator. As a result, extent feasible, to achieve that availability; tems. Vertically integrated program suppliers there is an economic incentive for cable systems (3) ensure that cable operators continue to ex­ also have the incentive and ability to favor their to terminate the retransmission of the broadcast pand, where economically justified, their capac­ affiliated cable operators over nonaffiliated signal, refuse to carry new signals, or reposition ity and the programs offered over their cable cable operators and programming distributors a broadcast signal to a disadvantageous chan­ systems; using other technologies. nel position. There is a substantial likelihood (4) where cable television systems are not sub­ (6) There is a substantial governmental and that absent the reimposition of such a require­ ject to effective competition, ensure that First Amendment interest in promoting a diver­ ment, additional local broadcast signals will be consumer interests are protected in receipt of sity of views provided through multiple tech­ deleted, repositioned, or not carried. cable service; and nology media. (7) There is a substantial governmental and (16) As a result of the economic incentive that (5) ensure that cable television operators do cable systems have to delete, reposition, or not First Amendment interest in ensuring that cable not have undue market power vis-a-vis video carry local broadcast signals, coupled with the programmers and consumers. subscribers have access to local noncommercial educational stations which Congress has au­ absence of a requirement that such systems (C) DEFINITIONS.-Section 602 of the Commu­ carry local broadcast signals, the economic via­ thorized, as expressed in section 396(a)(5) of the nications Act of 1934 (47 U.S.C. 531) is amend­ bility of free local broadcast television and its ed- Communications Act of 1934. The distribution of ability to originate quality local programming (1) by redesignating paragraph (16) as para­ unique noncommercial, educational program­ will be seriously jeopardized. graph (19); ming services advances that interest. (8) The Federal Government has a substantial (17) Consumers who subscribe to cable tele­ (2) by striking "and" at the end of paragraph interest in making all nonduplicative local pub­ vision often do so to obtain local broadcast sig­ (15); lic television services available on cable systems nals which they otherwise would not be able to (3) by redesignating paragraphs (11) through because- receive, or to obtain improved signals. Most sub­ (15) as paragraphs (13) through (17), respec­ ( A) public television provides educational and scribers to cable television systems do not or tively; informational programming to the Nation's citi­ cannot maintain antennas to receive broadcast (4) by redesignating paragraphs (1) through zens, thereby advancing the Government's com­ television services, do not have input selector (10) as paragraphs (2) through (11), respectively; pelling interest in educating its citizens; switches to convert from a cable to antenna re­ (5) by inserting before paragraph (2) (as so re­ (B) public television is a local community in­ ception system, or cannot otherwise receive designated) the following new paragraph: stitution, supported through local tax dollars broadcast television services. The regulatory "(1) the term 'activated channels' means those and voluntary citizen contributions in excess of system created by the Cable Communications channels engineered at the headend of a cable $10,800,000,000 since 1972, that provides public Policy Act of 1984 was premised upon the con­ system for the provision of services generally service programming that is responsive to the tinued existence of mandatory carriage obliga­ available to residential subscribers of the cable needs and interests of the local community; tions for cable systems, ensuring that local sta­ system, regardless of whether such services ac­ (C) the Federal Government, in recognition of tions would be protected from anticompetitive tually are provided, including any channel des­ public television's integral role in serving the conduct by cable systems. ignated for public, educational, or governmental educational and informational needs of local (18) Cable television systems often are the sin­ use;"; communities, has invested more than gle most efficient distribution system for tele­ (6) by inserting after paragraph (11) (as so re­ $3,000,000,000 in public broadcasting since 1969; vision programming. A Government mandate for designated) the following new paragraph: and a substantial societal investment in alternative "(12) the term 'multichannel video program­ (D) absent carriage requirements there is a distribution systems for cable subscribers, such ming distributor' means a person such as, but substantial likelihood that citizens, who have as the "AIB" input selector antenna system, is not limited to, a cable operator, a multichannel supported local public television services, will be not an enduring or feasible method of distribu­ multipoint distribution service, a direct broad­ deprived of those services. tion and is not in the public interest. cast satellite service, or a television receive-only 24600 CONGRESSIONAL RECORD-HOUSE September 14, 1992 satellite program distributor, who makes avail­ thority do not provide a reasonable opportunity that is carried as part of the basic service tier or able for purchase, by subscribers or customers, for consideration of the views of interested par­ from other consideration obtained in connection multiple channels of video programming;"; and ties. with the basic service tier; (7) by inserting after paragraph (17) (as so re­ If the Commission disapproves a franchising "(v) the reasonably and properly allocable designated) the following new paragraph: authority's certification, the Commission shall portion of any amount assessed as a franchise "(18) the term 'usable activated channels' notify the franchising authority of any revisions fee, tax, or charge of any kind imposed by any means activated channels of a cable system, ex­ or modifications necessary to obtain approval. State or local authority on the transactions be­ cept those channels whose use for the distribu­ "(5) REVOCATION OF JURISDICTION.-Upon pe­ tween cable operators and cable subscribers or tion of broadcast signals would conflict with tition by a cable operator or other interested any other fee, tax, or assessment of general ap­ technical and safety regulations as determined party, the Commission shall review the regula­ plicability imposed by a governmental entity ap­ by the Commission; and". tion of cable system rates by a franchising au­ plied against cable operators or cable subscrib­ SEC. 3. REGULATION OF RA.TES. thority under this subsection. A copy of the pe­ ers; (a) AMENDMENT.-Section 623 of the Commu­ tition shall be provided to the franchising au­ "(vi) any amount required, in accordance nications Act of 1934 (47 U.S.C. 543) is amended thority by the person filing the petition. If the with paragraph (4), to satisfy franchise require­ to read as follows: Commission finds that the franchising authority ments to support public, educational, or govern­ "SEC. 6!3. REGULATION OF RA.TES. has acted inconsistently with the requirements mental channels or the use of such channels or "(a) COMPETITION PREFERENCE; LOCAL AND of this subsection, the Commission shall grant any other services required under the franchise; FEDERAL REGULATION.- appropriate relief. If the Commission, after the and "(1) IN GENERAL.-No Federal agency or State franchising authority has had a reasonable op­ "(vii) a reasonable profit, as defined by the may regulate the rates for the provision of cable portunity to comment, determines that the State Commission consistent with the Commission's service except to the extent provided under this and local laws and regulations are not in con­ obligations to subscribers under paragraph (1). section and section 612. Any franchising author­ formance with the regulations prescribed by the "(3) EQUIPMENT.-The regulations prescribed ity may regulate the rates for the provision of Commission under subsection (b), the Commis­ by the Commission under this subsection shall cable service, or any other communications serv­ sion shall revoke the jurisdiction of such au­ include standards to establish, on the basis of ice provided over a cable system to cable sub­ thority. actual cost, the price or rate for- scribers, but only to the extent provided under "(6) EXERCISE OF JURISDICTION BY COMMIS­ "(A) installation and lease of the equipment this section. No Federal agency, State, or fran­ SION.-!/ the Commission disapproves a fran­ used by subscribers to receive the basic service chising authority may regulate the rates for chising authority's certification under para­ tier, including a converter box and a remote cable service of a cable system that is owned or graph (4), or revokes such authority's jurisdic­ control unit and, if requested by the subscriber, operated by a local government or franchising tion under paragraph (5), the Commission shall such addressable converter box or other equip­ authority within whose jur4sdiction that cable exercise the franchising authority's regulatory ment as is required to access programming de­ system is located and that is the only cable sys­ jurisdiction under paragraph (2)(A) until the scribed in paragraph (8); and tem located within such jurisdiction. franchising authority has qualified to exercise "(BJ installation and monthly use of connec­ "(2) PREFERENCE FOR COMPETITION.-!/ the that jurisdiction by filing a new certification tions for additional television receivers. Commission finds that a cable system is subject that meets the requirements of paragraph (3). "(4) COSTS OF FRANCHISE REQUIREMENTS.­ to effective competition, the rates for the provi­ Such new certification shall be effective upon The regulations prescribed by the Commission sion of cable service by such system shall not be approval by the Commission. The Commission under this subsection shall include standards to subject to regulation by the Commission or by a shall act to approve or disapprove any such new identify costs attributable to satisfying fran­ State or franchising authority under this sec­ certification within 90 days after the date it is chise requirements to support public, edu­ tion. If the Commission finds that a cable system filed. cational, and governmental channels or the use is not subject to effective competition- "(b) ESTABLISHMENT OF BASIC SERVICE TIER of such channels or any other services required "( A) the rates for the provision of basic cable RATE REGULATIONS.- under the franchise. service shall be subject to regulation by a fran­ "(1) COMMISSION OBLIGATION TO SUBSCRIB­ "(5) IMPLEMENTATION AND ENFORCEMENT.­ chising authority, or by the Commission if the ERS.-The Commission shall, by regulation, en­ The regulations prescribed by the Commission Commission exercises jurisdiction pursuant to sure that the rates for the basic service tier are under this subsection shall include additional paragraph (6), in accordance with the regula­ reasonable. Such regulations shall be designed standards, guidelines, and procedures concern­ tions prescribed by the Commission under sub­ to achieve the goal of protecting subscribers of ing the implementation and enforcement of such section (b); and any cable system that is not subject to effective regulations, which shall include- "(BJ the rates for cable programming services competition from rates for the basic service tier ''(A) procedures by which cable operators may shall be subject to regulation by the Commission that exceed the rates that would be charged for implement and franchising authorities may en­ under subsection (c). orce the regulations prescribed by the Commis­ "(3) QUALIFICATION OF FRANCHISING AUTHOR­ the basic service tier if such cable system were ! sion under this subsection; ITY.-A franchising authority that seeks to exer­ subject to effective competition. "(2) COMMISSION REGULATIONS.-Within 180 "(B) procedures for the expeditious resolution cise the regulatory jurisdiction permitted under of disputes between cable operators and fran­ paragraph (2)( A) shall file with the Commission days after the date of enactment of the Cable Television Consumer Protection and Competi­ chising authorities concerning the administra­ a written certification that- "(A) the franchising authority will adopt and tion Act of 1992, the Commission shall prescribe, tion of such regulations; administer regulations with respect to the rates and periodically thereafter revise, regulations to "(C) standards and procedures to prevent un­ subject to regulation under this section that are carry out its obligations under paragraph (1). In reasonable charges for changes in the subscrib­ consistent with the regulations prescribed by the prescribing such regulations, the Commission- er's selection of services or equipment subject to regulation under this section, which standards Commission under subsection (b); "(A) shall seek to reduce the administrative "(BJ the franchising authority has the legal burdens on subscribers, cable operators, fran­ shall require that charges for changing the serv­ authority to adopt, and the personnel to admin­ chising authorities, and the Commission; ice tier selected shall be based on the cost of ister, such regulations; and "(B) may adopt formulas or other mechanisms such change and shall not exceed nominal "(CJ procedural laws and regulations applica­ and procedures in complying with the require­ amounts when the system's configuration per­ ble to rate regulation proceedings by such au­ ments of subparagraph (A); and mits changes in service tier selection to be ef­ thority provide a reasonable opportunity for "(CJ shall take into account the following fac­ fected solely by coded entry on a computer ter­ consideration of the views of interested parties. tors: minal or by other similarly simple method; and "(4) APPROVAL BY COMMISSION.-A certifi­ "(i) the rates for cable systems, if any, that "(DJ standards and procedures to assure that cation filed by a franchising authority under are subject to effective competition; subscribers receive notice of the availability of paragraph (3) shall be effective 30 days after the "(ii) the direct costs (if any) of obtaining, the basic service tier required under this section. date on which it is filed unless the Commission transmitting, and otherwise providing signals "(6) NOTICE.-The procedures prescribed by finds, after notice to the authority and a rea­ carried on the basic service tier, including sig­ the Commission pursuant to paragraph (SJ( A) sonable opportunity for the authority to com­ nals and services carried on the basic service tier shall require a cable operator to provide 30 days' ment, that- pursuant to paragraph (7)(B), and changes in advance notice to a franchising authority of "(A) the franchising authority has adopted or such costs; any increase proposed in the price to be charged is administering regulations with respect to the "(iii) only such portion of the joint and com­ for the basic service tier. rates subject to regulation under this section mon costs (if any) of obtaining, transmitting, "(7) COMPONENTS OF BASIC TIER SUBJECT TO that are not consistent with the regulations pre­ and otherwise providing such signals as is deter­ RATE REGULATION.- scribed by the Commission under subsection (b); mined, in accordance with regulations pre­ "(A) MINIMUM CONTENTS.-Each cable opera­ "(BJ the franchising authority does not have scribed by the Commission, to be reasonably and tor of a cable system shall provide its subscribers the legal authority to adopt, or the personnel to properly allocable to the basic service tier, and a separately available basic service tier to which administer, such regulations; or changes in such costs; subscription is required for access to any other "(CJ procedural laws and regulations applica­ "(iv) the revenues (if any) received by a cable tier of service. Such basic service tier shall, at a ble to rate regulation proceedings by such au- operator from advertising from programming minimum, consist of the following: September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24601 "(i) All signals carried in fulfillment of the re­ filing of such complaint and that are determined "(h) PREVENTION OF EVASIONS.-Within 180 quirements of sections 614 and 615. to be unreasonable. days after the date of enactment of the Cable "(ii) Any public, educational, and govern­ "(2) FACTORS TO BE CONSIDERED.-ln estab­ Television Consumer Protection and Competi­ mental access programming required by the lishing the criteria for determining in individual tion Act of 1992, the Commission shall, by regu­ franchise of the cable system to be provided to cases whether rates for cable programming serv­ lation, establish standards, guidelines, and pro­ subscribers. ices are unreasonable under paragraph (l)(A), cedures to prevent evasions, including evasions "(iii) Any signal of any television broadcast the Commission shall consider, among other f ac­ that result from retiering, of the requirements of station that is provided by the cable operator to tors- this section and shall, thereafter, periodically any subscriber, except a signal which is sec­ "(A) the rates for similarly situated cable sys­ review and revise such standards, guidelines, ondarily transmitted by a satellite carrier be­ tems offering comparable cable programming and procedures. yond the local service area of such station. services, taking into account similarities in fa­ "(i) SMALL SYSTEM BURDENS.-/n developing "(B) PERMITTED ADDITIONS TO BASIC TIER.-A cilities, regulatory and governmental costs, the and prescribing regulations pursuant to this sec­ cable operator may add additional video pro­ number of subscribers, and other relevant fac­ tion, the Commission shall design such regula­ gramming signals or services to the basic service tors; tions to reduce the administrative burdens and tier. Any such additional signals or services pro­ "(B) the rates for cable systems, if any, that cost of compliance for cable systems that have vided on the basic service tier shall be provided are subject to effective competition; 1,(JOO or fewer subscribers. to subscribers at rates determined under the reg­ "(C) the history of the rates for cable pro­ "(j) RATE REGULATION AGREEMENTS.-During ulations prescribed by the Commission under · gramming services of the system, including the the term of an agreement made before July 1, this subsection. relationship of such rates to changes in general 1990, by a franchising authority and a cable op­ "(8) BUY-THROUGH OF OTHER TIERS PROHIB­ consumer prices; erator providing for the regulation of basic cable ITED.- "(D) the rates, as a whole, for all the cable service rates, where there was not effective com­ "(A) PROHIBITION.-A cable operator may not programming, cable equipment, and cable serv­ petition under Commission rules in effect on require the subscription to any tier other than ices provided by the system, other than pro­ that date, nothing in this section (or the regula­ the basic service tier required by paragraph (7) gramming provided on a per channel or per pro­ tions thereunder) shall abridge the ability of as a condition of access to video programming gram basis; such franchising authority to regulate rates in "(E) capital and operating costs of the cable offered on a per channel or per program basis. accordance with such an agreement. system, including the quality and costs of the A cable operator may not discriminate between "(k) REPORTS ON AVERAGE PRICES.-The Com­ customer service provided by the cable system; subscribers to the basic service tier and other mission shall annually publish statistical re­ and subscribers with regard to the rates charged for ports on the average rates for basic cable service "(F) the revenues (if any) received by a cable video programming offered on a per channel or and other cable programming, and for converter operator from advertising from programming per program basis. bores, remote control units, and other equip­ that is carried as part of the service for which "(B) EXCEPTION; LIMITATION.-The prohibi­ ment, of- a rate is being established, and changes in such tion in subparagraph (A) shall not apply to a "(1) cable systems that the Commission has revenues, or from other consideration obtained cable system that, by reason of the lack of ad­ found are subject to effective competition under in connection with the cable programming serv­ dressable converter bores or other technological subsection (a)(2), compared with ices concerned. ''(2) cable systems that the Commission has limitations, does not permit the operator to offer "(3) LIMITATION ON COMPLAINTS CONCERNING found are not subject to such effective competi­ programming on a per channel or per program EXISTING RATES.-Ercept during the 180-day pe­ tion. basis in the same manner required by subpara­ riod fallowing the effective date of the regula­ ''(l) DEFINITIONs.-As used in this section­ graph (A). This subparagraph shall not be tions prescribed by the Commission under para­ "(]) The term 'effective competition' means available to any cable operator after- graph (1), the procedures established under sub­ that- "(i) the technology utilized by the cable sys­ paragraph (B) of such paragraph shall be avail­ "( A) fewer than 30 percent of the households tem is modified or improved in a way that elimi­ able only with respect to complaints filed within in the franchise area subscribe to the cable serv­ nates such technological limitation; or a reasonable period of time fallowing a change ice of a cable system; "(ii) 10 years after the date of enactment of in rates that is initiated after that effective "(B) the franchise area is- the Cable Television Consumer Protection and date, including a change in rates that results "(i) served by at least two unaffiliated multi­ Competition Act of 1992, subject to subpara­ from a change in that system's service tiers. graph (C). "(d) UNIFORM RATE STRUCTURE REQUIRED.­ channel video programming distributors each of "(C) WAIVER.-//, in any proceeding initiated A cable operator shall have a rate structure, for which offers comparable video programming to at least 50 percent of the households in the fran­ at the request of any cable operator, the Com­ the provision of cable service, that is uni/orm chise area; and mission determines that compliance with the re­ throughout the geographic area in which cable "(ii) the number of households subscribing to quirements of subparagraph (A) would require service is provided over its cable system. the cable operator to increase its rates, the Com­ "(e) DISCRIMINATION; SERVICES FOR THE programming services offered by multichannel mission may, to the extent consistent with the HEARING IMPAIRED.-Nothing in this title shall video programming distributors other than the public interest, grant such cable operator a be construed as prohibiting any Federal agency, largest multichannel video programming dis­ waiver from such requirements for such speci­ State, or a franchising authority from- tributor exceeds 15 percent of the households in fied period as the Commission determines rea­ "(1) prohibiting discrimination among sub­ the franchise area; or sonable and appropriate. scribers and potential subscribers to cable serv­ "(C) a multichannel video programming dis­ "(c) REGULATION OF UNREASONABLE RATES.­ ice, except that no Federal agency, State, or tributor operated by the franchising authority "(1) COMMISSION REGULATIONS.-Within 180 franchising authority may prohibit a cable oper­ for that franchise area offers video programming days after the date of enactment of the Cable ator from offering reasonable discounts to senior to at least 50 percent of the households in that Television Consumer Protection and Competi­ citizens or other economically disadvantaged franchise area. tion Act of 1992, the Commission shall, by regu­ group discounts; or "(2) The term 'cable programming service' lation, establish the following: "(2) requiring and regulating the installation means any video programming provided over a "(A) criteria prescribed in accordance with or rental of equipment which facilitates the re­ cable system, regardless of service tier, including paragraph (2) for identifying, in individual ception of cable service by hearing impaired in­ installation or rental of equipment used for the cases, rates for cable programming services that dividuals. receipt of such video programming, other than are unreasonable; "(f) NEGATIVE OPTION BILLING PROHIBITED.­ (A) video programming carried on the basic serv­ "(B) fair and expeditious procedures for the A cable operator shall not charge a subscriber ice tier, and (B) video programming offered on a receipt, consideration, and resolution of com­ for any service or equipment that the subscriber per channel or per program basis.". plaints from any subscriber, franchising author­ has not affirmatively requested by name. For (b) EFFECTIVE DATE.-The amendment made ity, or other relevant State or local government purposes of this subsection, a subscriber's fail­ by subsection (a) shall take effect 180 days after entity alleging that a rate for cable program­ ure to refuse a cable operator's proposal to pro­ the date of enactment of this Act, except that ming services charged by a cable operator vio­ vide such service or equipment shall not be the authority of the Federal Communications lates the criteria prescribed under subparagraph deemed to be an affirmative request for such Commission to prescribe regulations is effective (A), which procedures shall include the mini­ service or equipment. on such date of enactment. mum showing that shall be required for a com­ "(g) COLLECTION OF lNFORMATION.-The Com­ SEC. 4. CARRIAGE OF LOCAL COMMERCIAL TELE­ plaint to obtain Commission consideration and mission shall, by regulation, require cable oper­ VISION SIGNALS. resolution of whether the rate in question is un­ ators to file with the Commission or a franchis­ Part II of title VI of the Communications Act reasonable; and ing authority, as appropriate, within one year of 1934 is amended by inserting after section 613 "(C) the procedures to be used to reduce rates after the date of enactment of the Cable Tele­ (47 U.S.C. 533) the following new section: for cable programming services that are deter­ vision Consumer Protection and Competition Act "SEC. 614. CARRIAGE OF LOCAL COMMERCIAL mined by the Commission to be unreasonable of 1992 and annually thereafter, such financial TELEVISION SIGNALS. and to refund such portion of the rates or information as may be needed for purposes of "(a) CARRIAGE OBLIGATIONS.-Each cable op­ charges that were paid by subscribers after the administering and enfarcing this section. erator shall carry, on the cable system of that 24602 CONGRESSIONAL RECORD-HOUSE September 14, 1992 operator, the signals of local commercial tele­ lish any changes in the signal carriage require­ ity signal or a baseband video signal to the prin­ vision stations and qualified low power stations ments of cable television systems necessary to cipal headend of the cable system; as provided by this section. Carriage of addi­ ensure cable carriage of such broadcast signals "(B) a cable operator may accept payments tional broadcast television signals on such sys­ of local commercial television stations which from stations which would be considered distant tem shall be at the discretion of such operator, have been changed to con[orm with such modi­ signals under section 111 of title 17, United subject to section 325(b). fied standards. States Code, as indemnification for any in­ "(b) SIGNALS REQUIRED.- "(5) DUPLICATION NOT REQUIRED.-Notwith­ creased copyright liability resulting from car­ "(1) IN GENERAL.-( A) A cable operator of a standing paragraph (1), a cable operator shall riage of such signal; and cable sYStem with 12 or fewer usable activated not be required to carry the signal of any local "(C) a cable operator may continue to accept channels shall carry the signals of at least three commercial television station that substantially monetary payment or other valuable consider­ local commercial television stations, except that duplicates the signal of another local commer­ ation in exchange for carriage or channel posi­ if such a system has 300 or fewer subscribers, it cial television station which is carried on its tioning of the signal of any local commercial tel­ shall not be subject to any requirements under cable system, or to carry the signals of more evision station carried in fulfillment of the re­ this section so long as such system does not de­ than one local commercial television station af­ quirements of this section, through, but not be­ lete from carriage by that system any signal of filiated with a particular broadcast network (as yond, the date of expiration of an agreement a broadcast television station. such term is defined by regulation). If a cable thereon between a cable operator and a local "(B) A cable operator of a cable system with operator elects to carry on its cable sYStem a sig­ commercial television station entered into prior more than 12 usable activated channels shall nal which substantially duplicates the signal of to June 26, 1990. carry the signals of local commercial television another local commercial television station car­ "(c) Low POWER STATION CARRIAGE OBLIGA­ stations, up to one-third of the aggregate num­ ried on the cable sYStem, or to carry on its sYS­ TION.- ber of usable activated channels of such system. tem the signals of more than one local commer­ "(1) REQUIREMENT.-!/ there are not sufficient "(2) SELECTION OF SIGNALS.-Whenever the cial television station affiliated with a particu­ signals of full power local commercial television number of local commercial television stations lar broadcast network, all such signals shall be stations to fill the channels set aside under sub­ exceeds the maximum number of signals a cable counted toward the number of signals the opera­ section (b )- sYStem is required to carry under paragraph (1), tor is required to carry under paragraph (1). "(A) a cable operator of a cable sYStem with the cable operator shall have discretion in se­ "(6) CHANNEL POSITIONING.-Each signal car­ a capacity of 35 or fewer usable activated chan­ lecting which such stations shall be carried on ried in fulfillment of the carriage obligations of nels shall be required to carry one qualified low its cable sYStem, except that- a cable operator under this section shall be car­ power station; and "(A) under no circumstances shall a cable op­ ried on the cable system channel number on "(B) a cable operator of a cable sYStem with erator carry a qualified low power station in which the local commercial television station is a capacity of more than 35 usable activated lieu of a local commercial television station; and broadcast over the air, or on the channel on channels shall be required to carry two qualified "(B) if the cable operator elects to carry an which it was carried on July 19, 1985, or on the low power stations. affiliate of a broadcast network (as such term is channel on which it was carried on January 1, "(2) USE OF PUBLIC, EDUCATIONAL, OR GOV­ defined by the Commission by regulation), such 1992, at the election of the station, or on such ERNMENTAL CHANNELS.-A cable operator re­ cable operator shall carry the affiliate of such other channel number as is mutually agreed quired to carry more than one signal of a quali­ broadcast network whose city of license ref­ upon by the station and the cable operator. Any fied low power station under this subsection erence point, as defined in section 76.53 of title dispute regarding the positioning of a local com­ may do so, subject to approval by the franchis­ 47, Code of Federal Regulations (in effect on mercial television station shall be resolved by ing authority pursuant to section 611, by plac­ January 1, 1991), or any successor regulation the Commission. ing such additional station on public, edu­ thereto, is closest to the principal headend of "(7) SIGNAL AVAILABILITY.-Signals carried in cational, or governmental channels not in use the cable system. fulfillment of the requirements of this section for their designated purposes. "(3) CONTENT TO BE CARRIED.-(A) A cable op­ shall be provided to every subscriber of a cable "(d) REMEDIES.- erator shall carry in its entirety, on the cable system. Such signals shall be viewable via cable "(1) COMPLAINTS BY BROADCAST STATIONS.­ system of that operator, the primary video, ac­ on all television receivers of a subscriber which Whenever a local commercial television station companying audio, and line 21 closed caption are connected to a cable system by a cable oper­ believes that a cable operator has failed to meet transmission of each of the local commercial tel­ ator or for which a cable operator provides a its obligations under this section, such station evision stations carried on the cable system and, connection. If a cable operator authorizes sub­ shall notify the operator, in writing, of the al­ to the extent technically feasible, program-relat­ scribers to install additional receiver connec­ leged failure and identify its reasons for believ­ ed material carried in the vertical blanking in­ tions, but does not provide the subscriber with ing that the cable operator is obligated to carry terval or on subcarriers. Retransmission of other such connections, or with the equipment and the signal of such station or has otherwise material in the vertical blanking internal or materials for such connections, the operator failed to comply with the channel positioning or other nonprogram-related material (including shall notify such subscribers of all broadcast repositioning or other requirements of this sec­ teletext and other subscription and advertiser­ stations carried on the cable system which can­ tion. The cable operator shall, within 30 days of supported information services) shall be at the not be viewed via cable without a converter box such written notification, respond in writing to discretion of the cable operator. Where appro­ and shall offer to sell or lease such a converter such notification and either commence to carry priate and feasible, operators may delete signal box to such subscribers at rates in accordance the signal of such station in accordance with enhancements, such as ghost-canceling, from with section 623(b)(3). the terms requested or state its reasons for be­ the broadcast signal and employ such enhance­ "(8) IDENTIFICATION OF SIGNALS CARRIED.-A lieving that it is not obligated to carry such sig­ ments at the system headend or headends. cable operator shall identify, upon request by nal or is in compliance with the channel posi­ "(B) The cable operator shall carry the en­ any person, the signals carried on its system in tioning and repositioning and other require­ tirety of the program schedule of any television fulfillment of the requirements of this section. ments of this section. A local commercial tele­ station carried on the cable sYStem unless car­ "(9) NOTIFICATION.-A cable operator shall vision station that is denied carriage or channel riage of specific programming is prohibited, and provide written notice to a local commercial tele­ positioning or repositioning in accordance with other programming authorized to be substituted, vision station at least 30 days prior to either de­ this section by a cable operator may obtain re­ under section 76.67 or subpart F of part 76 of leting from carriage or repositioning that sta­ view of such denial by filing a complaint with title 47, Code of Federal Regulations (as in ef­ tion. No deletion or repositioning of a local com­ the Commission. Such complaint shall allege the fect on January 1, 1991), or any successor regu­ mercial television station shall occur during a manner in which such cable operator has failed lations thereto. period in which major television ratings services to meet its obligations and the basis for such al­ "(4) SIGNAL QUALITY.- measure the size of audiences of local television legations. "(A) NONDEGRADATION; TECHNICAL SPECIFICA­ stations. The notification provisions of this "(2) OPPORTUNITY TO RESPOND.-The Commis­ TIONS.-The signals of local commercial tele­ paragraph shall not be used to undermine or sion shall afford such cable operator an oppor­ vision stations that a cable operator carries evade the channel positioning or carriage re­ tunity to present data and arguments to estab­ shall be carried without material degradation. quirements imposed upon cable operators under lish that there has been no failure to meet its The Commission shall adopt carriage standards this section. obligations under this section. to ensure that, to the extent technically feasible, "(10) COMPENSATION FOR CARRIAGE.-A cable "(3) REMEDIAL ACTIONS; DISMISSAL.-Within the quality of signal processing and carriage operator shall not accept or request monetary 120 days after the date a complaint is filed, the provided by a cable system for the carriage of payment or other valuable consideration in ex­ Commission shall determine whether the cable local commercial television stations will be no change either for carriage of local commercial operator has met its obligations under this sec­ less than that provided by the system for car­ television stations in fulfillment of the require­ tion. If the Commission determines that the riage of any other type of signal. ments of this section or for the channel position­ cable operator has failed to meet such obliga­ "(B) ADVANCED TELEVISION.-At such time as ing rights provided to such stations under this tions, the Commission shall order the cable oper­ the Commission prescribes modifications of the section, except that- ator to reposition the complaining station or, in standards for television broadcast signals, the "( A) any such station may be required to bear the case of an obligation to carry a station, to Commission shall initiate a proceeding to estab- the costs associated with delivering a good qual- commence carriage of the station and to con- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24603 tinue such carriage for at least 12 months. If the "(i) low power television stations, television opportunity; and the Commission determines Commission determines that the cable operator translator stations, and passive repeaters which that the provision of such programming by such has fully met the requirements of this section, it operate pursuant to part 74 of title 47, Code of station would address local news and informa­ shall dismiss the complaint. Federal Regulations, or any successor regula­ tional needs which are not being adequately "(e) INPUT SELECTOR SWITCH RULES ABOL­ tions thereto; served by full power television broadcast sta­ ISHED.-No cable operator shall be required- •'(ii) a television broadcast station that would tions because of the geographic distance of such "(1) to provide or make available any input be considered a distant signal under section 111 full power stations from the low power station's selector switch as defined in section 76.5(mm) of of title 17, United States Code, if such station community of license,; title 47, Code of Federal Regulations, or any does not agree to indemnify the cable operator "(C) such station complies with interference comparable device; or for any increased copyright liability resulting regulations consistent with its secondary status "(2) to provide information to subscribers from carriage on the cable sYStem; or pursuant to part 74 of title 47, Code of Federal about input selector switches or comparable de­ •'(iii) a television broadcast station that does Regulations; vices. not deliver to the principal headend of a cable "(D) such station is located no more than 35 "(f) REGULATIONS BY COMMISSION.-Within sYStem either a signal level of - 45dBm for UHF miles from the cable system's headend, and de­ 180 days after the date of enactment of this sec­ signals or - 49dBm for VHF signals at the input livers to the principal headend of the cable sys­ tion, the Commission shall, following a rule­ terminals of the signal processing equipment, if tem an over-the-air signal of good quality, as making proceeding, issue regulations implement­ such station does not agree to be responsible for determined by the Commission; ing the requirements imposed by this section. the costs of delivering to the cable system a sig­ "(E) the community of license of such station Such implementing regulations shall include nal of good quality or a baseband video signal. and the franchise area of the cable system are necessary revisions to update section 76.51 of "(C) MARKET DETERMINATIONS.-(i) For pur­ both located outside of the largest 160 Metro­ title 47 of the Code of Federal Regulations. poses of this section, a broadcasting station's politan Statistical Areas, ranked by population, "(g) SALES PRESENTATIONS AND PROGRAM market shall be determined in the manner pro­ as determined by the Office of Management and LENGTH COMMERCIALS.- vided in section 73.3555(d)(3)(i) of title 47, Code Budget on June 30, 1990, and the population of "(1) CARRIAGE PENDING PROCEEDING.-Pend­ of Federal Regulations, as in effect on May 1, such community of license on such date did not ing the outcome of the proceeding under para­ 1991, except that, following a written request, exceed 35,000; and graph (2), nothing in this Act shall require a the Commission may, with respect to a particu­ "(F) there is no full power television broad­ cable operator to carry on any tier, or prohibit lar television broadcast station, include addi­ cast station licensed to any community within a cable operator from carrying on any tier, the tional communities within its television market the county or other political subdivision (of a signal of any commercial television station or or exclude communities from such station's tele­ State) served by the cable system. video programming service that is predomi­ vision market to better effectuate the purposes Nothing in this paragraph shall be construed to nantly utilized for the transmission of sales of this section. In considering such requests, the change the secondary status of any low power presentations or program length commercials. Commission may determine that particular com­ station as provided in part 74 of title 47, Code of "(2) PROCEEDING CONCERNING CERTAIN STA­ munities are part of more than one television Federal Regulations, as in effect on the date of TIONS.-Within 270 days after the date of enact­ market. enactment of this section.". ment of this section, the Commission, notwith­ "(ii) In considering requests filed pursuant to SEC. 5. CARRIAGE OF NONCOMMERCIAL STA· standing prior proceedings to determine whether clause (i), the Commission shall afford particu­ TIONS. broadcast television stations that are predomi­ lar attention to the value of localism by taking Part II of title VI of the Communications Act nantly utilized for the transmission of sales into account such factors as- of 1934 (47 U.S.C. 531 et seq.) is further amended presentations or program length commercials are "(I) whether the station, or other stations lo­ by inserting after section 614 (as added by sec­ serving the public interest, convenience, and ne­ cated in the same area, have been historically tion 4 of this Act) the following new section: cessity, shall complete a proceeding in accord­ carried on the cable system or systems within "SEC. 615. CARRIAGE OF NONCOMMERCIAL EDU· ance with this paragraph to determine whether such community; CATIONAL TELEVISION. broadcast television stations that are predomi­ "(//) whether the television station provides "(a) CARRIAGE OBLIGATIONS.-/n addition to nantly utilized for the transmission of sales coverage or other local service to such commu­ the carriage requirements set forth in section presentations or program length commercials are nity; 614, each cable operator of a cable sYStem shall serving the public interest, convenience, and ne­ "(Ill) whether any other television station carry the signals of qualified noncommercial cessity. In conducting such proceeding, the that is eligible to be carried by a cable system in educational television stations in accordance Commission shall provide appropriate notice such community in fulfillment of the require­ with the provisions of this section. and opportunity for public comment. The Com­ ments of this section provides news coverage of "(b) REQUIREMENTS TO CARRY QUALIFIED mission shall consider the viewing of such sta­ issues of concern to such community or provides STATIONS.- tions, the level of competing demands for the carriage or coverage of sporting and other "(]) GENERAL REQUIREMENT TO CARRY EACH spectrum allocated to such stations, and the role events of interest to the community; and QUALIFIED STATION.-Subject to paragraphs (2) of such stations in providing competition to "(IV) evidence of viewing patterns in cable and (3) and subsection (e), each cable operator nonbroadcast services offering similar program­ and noncable households within the areas shall carry, on the cable system of that cable op­ ming. In the event that the Commission con­ served by the cable system or systems in such erator, any qualified local noncommercial edu­ cludes that one or more of such stations are community. cational television station requesting carriage. serving the public interest, convenience, and ne­ "(iii) A cable operator shall not delete from "(2)(A) SYSTEMS WITH 12 OR FEWER CHAN­ cessity, the Commission shall qualify such sta­ carriage the signal of a commercial television NELS.-Notwithstanding paragraph (1), a cable tions as local commercial television stations for station during the pendency of any proceeding operator of a cable system with 12 or fewer usa­ purposes of subsection (a). In the event that the pursuant to this subparagraph. ble activated channels shall be required to carry Commission concludes that one or more of such "(iv) In the rulemaking proceeding required the signal of one qualified local noncommercial stations are not serving the public interest, con­ by subsection (f), the Commission shall provide educational television station; except that a venience, and necessity, the Commission shall for expedited consideration of requests filed cable operator of such a system shall comply allow the licensees of such stations a reasonable under this subparagraph. with subsection (c) and may, in its discretion, period within which to provide different pro­ "(2) QUALIFIED LOW POWER STATION.-The carry the signals of other qualified noncommer­ gramming, and shall not deny such stations a term 'qualified low power station' means any cial educational television stations. renewal expectancy solely because their pro­ television broadcast station conforming to the "(B) In the case of a cable sYStem described in gramming consisted predominantly of sales pres­ rules established for Low Power Television Sta­ subparagraph (A) which operates beyond the entations or program length commercials. tions contained in part 74 of title 47, Code of presence of any qualified local noncommercial "(h) DEFINITIONS.- Federal Regulations, only if- educational television station- "(1) LOCAL COMMERCIAL TELEVISION STA­ "(A) such station broadcasts for at least the "(i) the cable operator shall import and carry TION.- minimum number of hours of operation required on that system the signal of one qualified non­ "(A) IN GENERAL.-For purposes of this sec­ by the Commission for television broadcast sta­ commercial educational television station; tion, the term 'local commercial television sta­ tions under part 73 of title 47, Code of Federal "(ii) the selection for carriage of such a signal tion' means any full power television broadcast Regulations; shall be at the election of the cable operator; station, other than a qualified noncommercial "(BJ such station meets all obligations and re­ and educational television station within the mean­ quirements applicable to television broadcast "(iii) in order to satisfy the requirements for ing of section 615(l)(l), licensed and operating stations under part 73 of title 47, Code of Fed­ carriage specified in this subsection, the cable on a channel regularly assigned to its commu­ eral Regulations, with respect to the broadcast operator of the system shall not be required to nity by the Commission that, with respect to a of nonentertainment programming; program­ remove any other programming service actually particular cable sYStem, is within the same tele­ ming and rates involving political candidates, provided to subscribers on March 29, 1990; ex­ vision market as the cable sYStem. election issues, controversial issues of public im­ cept that such cable operator shall use the first "(BJ EXCLUSIONS.-The term 'local commercial portance, editorials, and personal attacks; pro­ channel available to satisfy the requirements of television station' shall not include- gramming for children; and equal employment this subparagraph. 24604 CONGRESSIONAL RECORD-HOUSE September 14, 1992 "(3) SYSTEMS WITH 13 TO 36 CHANNELS.-( A) " (g) CONDITIONS OF CARRIAGE.- "(2) DISTANT SIGNAL EXCEPTION.-Notwith­ Subject to subsection (c), a cable operator of a "(]) CONTENT TO BE CARRIED.-A cable opera­ standing the provisions of this section, a cable cable system with 13 to 36 usable activated tor shall retransmit in its entirety the primary operator shall not be required to add the signal channels- video , accompanying audio, and line 21 closed of a qualified local noncommercial educational "(i) shall carry the signal of at least one caption transmission of each qualified local television station not already carried under the qualified local noncommercial educational tele­ noncommercial educational television station provision of subsection (c) , where such signal vision station but shall not be required to carry whose signal is carried on the cable system, and, would be considered a distant signal for copy­ the signals of more than three such stations, to the extent technically feasible, program-relat­ right purposes unless such station indemnifies and ed material carried in the vertical blanking in­ the cable operator for any increased copyright "(ii) may, in its discretion, carry additional terval, or on subcarriers, that may be necessary costs resulting from carriage of such signal. such stations. for receipt of programming by handicapped per­ "(j) REMEDIES.- "(B) In the case of a cable system described in sons or for educational or language purposes. "(]) COMPLAINT.-Whenever a qualified local this paragraph which operates beyond the pres­ Retransmission of other material in the vertical noncommercial educational television station be­ ence of any qualified local noncommercial edu­ blanking interval or on subcarriers shall be lieves that a cable operator of a cable system cational television station, the cable operator within the discretion of the cable operator. has failed to comply with the signal carriage re­ shall import and carry on that system the signal "(2) BANDWIDTH AND TECHNICAL QUALITY.-A quirements of this section, the station may file a of at least one qualified noncommercial edu­ cable operator shall provide each qualified local complaint with the Commission. Such complaint cational television station to comply with sub­ noncommercial educational television station shall allege the manner in which such cable op­ paragraph (A)(i). whose signal is carried in accordance with this erator has failed to comply with such require­ "(C) The cable operator of a cable system de­ section with bandwidth and technical capacity ments and state the basis for such allegations. scribed in this paragraph which carries the sig­ equivalent to that provided to commercial tele­ "(2) OPPORTUNITY TO RESPOND .-The Commis­ nal of a qualified local noncommercial edu­ vision broadcast stations carried on the cable sion shall afford such cable operator an oppor­ cational station affiliated with a State public system and shall carry the signal of each quali­ tunity to present data, views. and arguments to television network shall not be required to carry fied local noncommercial educational television establish that the cable operator has complied the signal of any additional qualified local non­ station without material degradation. with the signal carriage requirements of this commercial educational television stations affili­ "(3) CHANGES IN CARRIAGE.-The signal Of a section. ated with the same network if the programming qualified local noncommercial educational tele­ "(3) REMEDIAL ACTIONS; DISMISSAL.-Within of such additional stations is substantially du­ vision station shall not be repositioned by a 120 days after the date a complaint is filed plicated by the programming of the qualified cable operator unless the cable operator, at least under this subsection, the Commission shall de­ local noncommercial educational television sta­ 30 days in advance of such repositioning, has termine whether the cable operator has complied tion receiving carriage. provided written notice to the station and all with the requirements of this section. If the "(D) A cable operator of a system described in subscribers of the cable system. For purposes of Commission determines that the cable operator this paragraph which increases the usable acti­ this paragraph, repositioning includes (A) as­ has failed to comply with such requirements, the vated channel capacity of the system to more signment of a qualified local noncommercial Commission shall state with particularity the than 36 channels on or after March 29, 1990, educational television station to a cable system basis for such findings and order the cable oper­ shall, in accordance with the other provisions of channel number different from the cable system ator to take such remedial action as is necessary this section, carry the signal of each qualified channel number to which the station was as­ to meet such requirements. If the Commission local noncommercial educational television sta­ signed as of March 29, 1990, and (B) deletion of determines that the cable operator has fully tion requesting carriage, subject to subsection the station from the cable system. The notifica­ complied with such requirements, the Commis­ (e). tion provisions of this paragraph shall not be sion shall dismiss the complaint. "(c) CONTINUED CARRIAGE OF EXISTING STA­ used to undermine or evade the channel posi­ "(k) IDENTIFICATION OF SIGNALS.-A cable op­ TIONS.-Notwithstanding any other provision of tioning or carriage requirements imposed upon erator shall identify, upon request by any per­ this section, all cable operators shall continue to cable operators under this section. son, those signals carried in fulfillment of the provide carriage to all qualified local non­ "(4) GOOD QUALITY SIGNAL REQUIRED.-Not­ requirements of this section. commercial educational television stations withstanding the other provisions of this sec­ "(l) DEFINITIONS.-For purposes of this sec­ whose signals were carried on their systems as tion, a cable operator shall not be required to tion- of March 29, 1990. The requirements of this sub­ carry the signal of any qualified local non­ "(1) QUALIFIED NONCOMMERCIAL EDUCATIONAL section may be waived with respect to a particu­ commercial educational television station which TELEVISION STATION.-The term 'qualified non­ lar cable operator and a particular such station, does not deliver to the cable system's principal commercial educational television station' upon the written consent of the cable operator headend a signal of good quality or a baseband means any television broadcast station which- and the station. video signal, as may be defined by the Commis­ "(A)(i) under the rules and regulations of the "(d) PLACEMENT OF ADDITIONAL SIGNALS.-A sion. Commission in effect on March 29, 1990, is li­ cable operator required to add the signals of "(5) CHANNEL POSITIONING.-Each signal car­ censed by the Commission as a noncommercial qualified local noncommercial educational tele­ ried in fulfillment of the carriage obligations of educational television broadcast station and vision stations to a cable system under this sec­ a cable operator under this section shall be car­ which is owned and operated by a public agen­ tion may do so, subject to approval by the fran­ ried on the cable system channel number on cy, nonprofit foundation, corporation, or asso­ chising authority pursuant to section 611, by which the qualified local noncommercial edu­ ciation; and placing such additional stations on public, edu­ cational television station is broadcast over the "(ii) has as its licensee an entity which is eli­ cational, or governmental channels not in use air, or on the channel on which it was carried gible to receive a community service grant, or for their designated purposes. on July 19, 1985, at the election of the station, any successor grant thereto, from the Corpora­ "(e) SYSTEMS WITH MORE THAN 36 CHAN­ or on such other channel number as is mutually tion for Public Broadcasting, or any successor NELS.-A cable operator of a cable system with agreed upon by the station and the cable opera­ organization thereto, on the basis of the formula a capacity of more than 36 usable activated tor. Any dispute regarding the positioning of a set forth in section 396(k)(6)(B); or channels which is required to carry the signals qualified local noncommercial educational tele­ "(B) is owned and operated by a municipality of three qualified local noncommercial edu­ vision station shall be resolved by the Commis­ and transmits predominantly noncommercial cational television stations shall not be required sion. programs for educational purposes. to carry the signals of additional such stations " (h) AVAILABILITY OF SIGNALS.-Signals car­ Such term includes (I) the translator of any the programming of which substantially dupli­ ried in fulfillment of the carriage obligations of noncommercial educational television station cates the programming broadcast by another a cable operator under this section shall be with five watts or higher power serving the qualified local noncommercial educational tele­ available to every subscriber as part of the cable franchise area, (II) a full-service station or vision station requesting carriage. Substantial system's lowest priced service tier that includes translator if such station or translator is li­ duplication shall be defined by the Commission the retransmission of local commercial television censed to a channel reserved for noncommercial in a manner that promotes access to distinctive broadcast signals. educational use pursuant to section 73.606 of noncommercial educational television services. "(i) PAYMENT FOR CARRIAGE PROHIBITED.­ title 47, Code of Federal Regulations, or any "(f) WAIVER OF NONDUPLICATION RIGHTS.-A "(]) IN GENERAL.-A cable operator shall not successor regulations thereto, and (III) such sta­ qualified local noncommercial educational tele­ accept monetary payment or other valuable con­ tions and translators operating on channels not vision station whose signal is carried by a cable sideration in exchange for carriage of the signal so reserved as the Commission determines are operator shall not assert any network non­ of any qualified local noncommercial edu­ qualified as noncommercial educational sta­ duplication rights it may have pursuant to sec­ cational television station carried in fulfillment tions. tion 76.92 of title 47, Code of Federal Regula­ of the requirements of this section, except that "(2) QUALIFIED LOCAL NONCOMMERCIAL EDU­ tions, to require the deletion of programs aired such a station may be required to bear the cost CATIONAL TELEVISION STATION.-The term 'quali­ on other qualified local noncommercial edu­ associated with delivering a good quality signal fied local noncommercial educational television cational television stations whose signals are or a baseband video signal to the principal station' means a qualified noncommercial edu­ carried by that cable operator. headend of the cable system. cational television station- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24605 "(A) which is licensed to a principal commu­ "(B) The regulations required by subpara­ "(2) require such local or municipal authority nity whose reference point, as defined in section graph (A) shall require that television stations, to secure a franchise to operate as a multi­ 76.53 of title 47, Code of Federal Regulations (as within one year after the date of enactment of channel video programming distributor.". in effect on March 29, 1990), or any successor the Cable Television Consumer Protection and SEC. 8. CONSUMER PROTECTION AND CUSTOMER regulations thereto, is within 50 miles of the Competition Act of 1992 and every three years SERVICE. principal headend of the cable sYStem; or thereafter, make an election between the right Section 632 of the Communications Act of 1934 "(B) whose Grade B service contour, as de­ to grant retransmission consent under this sub­ (47 U.S.C. 552) is amended to read as follows: fined in section 73.683(a) of such title (as in ef­ section and the right to signal carriage under "SEC. 632. CONSUMER PROTECTION AND CUS· fect on March 29, 1990), or any successor regula­ section 614. If there is more than one cable sYS­ TOMER SERVICE. tions thereto, encompasses the principal tem which services the same geographic area, a "(a) FRANCHISING AUTHORITY ENFORCE­ headend of the cable sYStem. ". station's election shall apply to all such cable MENT.-A franchising authority may establish SEC. 6. RETRANSMISSION CONSENT FOR CABLE sYStems. and enforce- SYSTEMS. "(4) If an originating television station elects "(l) customer service requirements of the cable (A) AMENDMENT.-Section 325 of the Commu­ under paragraph (3)(B) to exercise its right to operator: and "(2) construction schedules and other con­ nications Act of 1934 (47 U.S.C. 325) is amend­ grant retransmission consent under this sub­ struction-related requirements, including con­ ed- section with respect to a cable system, the provi­ struction-related performance requirements, of (1) by redesignating subsections (b) and (c) as sions of section 614 shall not apply to the car­ the cable operator. riage of the signal of such station by such cable subsections (c) and (d), respectively; and "(b) COMMISSION STANDARDS.-The Commis­ system. (2) by inserting immediately after subsection sion shall, within 180 days of enactment of the "(5) The exercise by a television broadcast sta­ (a) the following new subsection: Cable Television Consumer Protection and Com­ tion of the right to grant retransmission consent "(b)(l) Following the date that is one year petition Act of 1992, establish standards by under this subsection shall not interfere with or after the date of enactment of the Cable Tele­ which cable operators may fulfill their customer supersede the rights under section 614 or 615 of vision Consumer Protection and Competition Act service requirements. Such standards shall in­ any station electing to assert the right to signal of 1992, no cable sYStem or other multichannel clude, at a minimum, requirements governing- carriage under that section. video programming distributor shall retransmit "(l) cable system office hours and telephone "(6) Nothing in this section shall be construed the signal of a broadcasting station, or any part availability: thereof, except- as modifying the compulsory copyright license "(2) installations, outages, and service calls; "(A) with the express authority of the origi­ established in section 111 of title 17, United and nating station; or States Code, or as affecting existing or future "(3) communications between the cable opera­ "(BJ pursuant to section 614, in the case of a video programming licensing agreements be­ tor and the subscriber (including standards gov­ station electing, in accordance with this sub­ tween broadcasting stations and video program­ erning bills and refunds). section, to assert the right to carriage under mers.". "(c) CONSUMER PROTECTION LAWS AND CUS­ such section. SEC. 7. AWARD OF FRANCHISES; PROMOTION OF TOMER SERVICE AGREEMENTS.- "(2) The provisions of this subsection shall COMPETITION. "(]) CONSUMER PROTECTION LAWS.-Nothing not apply to- (a) ADDITIONAL COMPETITIVE FRANCHISES.­ in this title shall be construed to prohibit any "(A) retransmission of the signal of a non­ (1) AMENDMENT.-Section 621(a)(l) of the State or any franchising authority from enact­ commercial broadcasting station; Communications Act of 1934 (47 U.S.C. 54l(a)(l)) ing or enforcing any consumer protection law, "(B) retransmission directly to a home sat­ is amended by inserting before the period at the to the extent not specifically preempted by this ellite antenna of the signal of a broadcasting end the following: "; except that a franchising title. station that is not owned or operated by, or af­ authority may not grant an exclusive franchise "(2) CUSTOMER SERVICE REQUIREMENT AGREE­ filiated with, a broadcasting network, if such and may not unreasonably refuse to award an MENTS.-Nothing in this section shall be con­ signal was retransmitted by a satellite carrier on additional competitive franchise. Any applicant strued to preclude a franchising authority and May l, 1991; whose application for a second franchise has a cable operator from agreeing to customer serv­ "(C) retransmission of the signal of a broad­ been denied by a final decision of the franchis­ ice requirements that exceed the standards es­ casting station that is owned· or operated by, or ing authority may appeal such final decision tablished by the Commission under subsection affiliated with, a broadcasting network directly pursuant to the provisions of section 635 for fail­ (b). Nothing in this title shall be construed to to a home satellite antenna, if the household re­ ure to comply with this subsection". prevent the establishment or enforcement of any ceiving the signal is an unserved household; or (2) CONFORMING AMENDMENT.-Section 635(a) municipal law or regulation, or any State law, "(DJ retransmission by a cable operator or of the Communications Act of 1934 (47 U.S.C. concerning customer service that imposes cus­ other multichannel video programming distribu­ 555(a)) is amended by inserting "621(a)(l)," tomer service requirements that exceed the tor of the signal of a superstation if such signal after "section". standards set by the Commission under this sec­ was obtained from a satellite carrier and the (b) FRANCHISE REQUIREMENTS.-Section 621(a) tion, or that addresses matters not addressed by originating station was a superstation on May of the Communications Act of 1934 (47 U.S.C. the standards set by the Commission under this l, 1991. 541(a)) is amended by adding at the end the fol­ section.". lowing new paragraph: For purposes of this paragraph, the terms 'sat­ SEC. 9. LEASED COMMERCIAL ACCESS. "(4) In awarding a franchise, the franchising ellite carrier', 'superstation', and 'unserved (a) PURPOSE.-Section 612(a) of the Commu­ authority- nications Act of 1934 (47 U.S.C. 532(a)) is household' have the meanings given those "(A) shall allow the applicant's cable sYStem terms, respectively, in section 119(d) of title 17, amended by inserting "to promote competition a reasonable period of time to become capable of in the delivery of diverse sources of video pro­ United States Code, as in effect on the date of providing cable service to all households in the enactment of the Cable Television Consumer gramming and" after "purpose of this section franchise area; is". Protection and Competition Act of 1992. "(B) may require adequate assurance that the "(3)(A) Within 45 days after the date of enact­ (b) COMMISSION RULES ON MAXIMUM REASON­ cable operator will provide adequate public, ABLE RATES AND OTHER TERMS AND CONDI­ ment of the Cable Television Consumer Protec­ educational, and governmental access channel tion and Competition Act of 1992, the Commis­ TIONS.-Section 612(c) of such Act (47 U.S.C. capacity, facilities, or financial support; and 532(c)) is amended- sion shall commence a rulemaking proceeding to "(C) may require adequate assurance that the (1) in paragraph (1) by inserting "and with establish regulations to govern the exercise by cable operator has the financial, technical, or rules prescribed by the Commission under para­ television broadcast stations of the right to legal qualifications to provide cable service.". graph (4)" after "purpose of this section": and grant retransmission consent under this sub­ (c) MUNICIPAL AUTHORITIES PERMITTED To (2) by adding at the end the foil owing new section and of the right to signal carriage under OPERATE SYSTEMS.-Section 621 of the Commu­ paragraph: section 614, and such other regulations as are nications Act of 1934 (47 U.S.C. 541) is amend­ "(4)(A) The Commission shall have the au­ necessary to administer the limitations con­ ed- thority to- tained in paragraph (2). The Commission shall (1) by inserting "and subsection (f)" before "(i) determine the maximum reasonable rates consider in such proceeding the impact that the the comma in subsection (b)(l); and that a cable operator may establish pursuant to grant of retransmission consent by television (2) by adding at the end the fallowing new paragraph (1) for commercial use of designated stations may have on the rates for the basic subsection: channel capacity, including the rate charged for service tier and shall ensure that the regulations "(f) No provision of this Act shall be con­ the billing of rates to subscribers and for the col­ prescribed under this subsection do not conflict strued to- lection of revenue from subscribers by the cable with the Commission's obligation under section "(l) prohibit a local or municipal authority operator for such use: 623(b)(l) to ensure that the rates for the basic that is also, or is affiliated with, a franchising "(ii) establish reasonable terms and conditions service tier are reasonable. Such rulemaking authority from operating as a multichannel for such use, including those for billing and col­ proceeding shall be completed within 180 days video programming distributor in the franchise lection: and after the date of enactment of the Cable Tele­ area, notwithstanding the granting of one or "(iii) establish procedures for the expedited vision Consumer Protection and Competition Act more franchises by such franchising authority; resolution of disputes concerning rates or car­ of 1992. or riage under this section. 24606 CONGRESSIONAL RECORD-HOUSE September 14, 1992 "(B) Within 180 days after the date of enact­ "(j)(l) Within 120 days following the date of (1) by redesignating subsections (f) and (g) as ment of this '/)aragraph, the Commission shall the enactment of this subsection, the Commis­ subsections (g) and (h), respectively; and establish rules for determining maximum reason­ sion shall promulgate regulations designed to (2) by inserting after subsection (e) the follow­ able rates under sub'/)aragraph (A)(i), for estab­ limit the access of children to indecent program­ ing new subsection: lishing terms and conditions under subpara­ ming, as defined by Commission regulations, "(f)(l) In order to enhance effective competi­ graph (A)(ii), and for providing procedures and which cable operators have not voluntarily tion, the Commission shall, within one year under subparagraph (A)(iii).". prohibited under subsection (h) by- after the date of enactment of the Cable Tele­ (c) ACCESS FOR QUALITY MINORITY PROGRAM­ "(A) requiring cable operators to place on a vision Consumer Protection and Competition Act MING SOURCES AND QUALIFIED EDUCATIONAL single channel all indecent programs, as identi­ of 1992, conduct a proceeding- PROGRAMMING SOURCES.-Section 612 of such fied by program providers, intended for carriage "(A) to prescribe rules and regulations estab­ Act (47 U.S.C. 532) is amended by adding at the on channels designated for commercial use lishing reasonable limits on the number of cable end thereof the following new subsection: under this section; subscribers a person is authorized to reach "(i)(l) Notwithstanding the provisions of sub­ "(B) requiring cable operators to block such through cable systems owned by such person, or sections (b) and (c), a cable operator required by single channel unless the subscriber requests ac­ in which such person has an attributable inter­ this section to designate channel capacity for cess to such channel in writing; and est; commercial use may use any such channel ca­ "(C) requiring programmers to inform cable "(B) to prescribe rules and regulations estab­ 'PG.city for the provision of programming from a operators if the program would be indecent as lishing reasonable limits on the number of chan­ qualified minority programming source or from defined by Commission regulations. nels on a cable system that can be occupied by any qualified educational programming source, "(2) Cable operators shall comply with the a video programmer in which a cable operator whether or not such source is affiliated with the regulations promulgated pursuant to paragraph has an attributable interest; and cable operator. The channel ca'/)acity used to (1). ". "(C) to consider the necessity and appro­ provide programming from a qualified minority (c) PROHIBITS SYSTEM USE.-Within 180 days priateness of imposing limitations on the degree programming source or from any qualified edu­ fallowing the date of the enactment of this Act, to which multichannel video programming dis­ cational programming source pursuant to this the Federal Communications Commission shall tributors may engage in the creation or produc­ subsection may not exceed 33 percent of the promulgate such regulations as may be nec­ tion of video programming. channel capacity designated pursuant to this essary to enable a cable operator of a cable sys­ "(2) In prescribing rules and regulations section. No programming provided over a cable tem to prohibit the use, on such system, of any under '/)aragraph (1), the Commission shall, system on July 1, 1990, may qualify as minority channel capacity of any public, educational, or among other public interest objectives- programming or educational programming on governmental access facility for any program­ "(A) ensure that no cable operator or group of that cable system under this subsection. ming which contains obscene material, sexually cable operators can unfairly impede, either be­ "(2) For purposes of this subsection, the term explicit conduct, or material soliciting or pro­ cause of the size of any individual operator or 'qualified minority programming source' means moting unlawful conduct. because of joint actions by a group of operators a programming source which devotes substan­ (d) CONFORMING AMENDMENT.-Section 638 of of sufficient size, the flow of video programming tially all of its programming to coverage of mi­ the Communications Act of 1934 (47 U.S.C. 558) from the video programmer to the consumer; is amended by striking the period at the end and nority viewpoints, or to programming directed at "(B) ensure that cable operators affiliated members of minority groups, and which is over inserting the following: "unless the program in­ with video programmers do not favor such pro­ 50 percent minority-owned, as the term 'minor­ volves obscene material.". grammers in determining carriage on their cable ity' is defined in section 309(i)(3)(C)(ii). SEC. 11. UMITATIONS ON OWNERSHIP, CONTROL, systems or do not unreasonably restrict the flow AND UTIUZATION. "(3) For purposes of this subsection, the term of the video programming of such programmers 'qualified educational programming source' (a) CROSS-OWNERSHIP.-Section 613(a) of the to other video distributors; means a programming source which devotes sub­ Communications Act of 1934 (47 U.S.C. 533(a)) is "(C) take particular account of the market stantially all of its programming to educational amended- structure, ownership patterns, and other rela­ (1) by inserting "(])" immediately after "(a)"; or instructional programming that promotes tionships of the cable television industry. in­ and public understanding of mathematics, the cluding the nature and market power of the (2) by adding at the end the fallowing new sciences, the humanities, and the arts and has local franchise, the joint ownership of cable sys­ paragraph: a documented annual expenditure on program­ tems and video programmers, and the various "(2) It shall be unlawful for a cable operator ming exceeding $15,000,000. The annual expendi­ types of non-equity controlling interests; to hold a license for multichannel multipoint ture on programming means all annual costs in­ "(D) account for any efficiencies and other distribution service, or to offer satellite master curred by the programming source to produce or benefits that might be gained through increased antenna television service separate and apart acquire programs which are scheduled to be ownership or control; from any franchised cable service, in any por­ televised, and SPecifically excludes marketing, "(E) make such rules and regulations reflect tion of the franchise area served by that cable promotion, satellite transmission and oper­ the dynamic nature of the communications mar­ operator's cable system. The Commission- ational costs, and general administrative costs. ketplace; "(4) Nothing in this subsection shall sub­ "(A) shall waive the requirements of this paragraph for all existing multichannel "( F) not impose limitations which would bar stitute for the requirements to carry qualified cable operators from serving previously unserved noncommercial educational television stations multipoint distribution services and satellite master antenna television services which are rural areas; and as SPecified under section 615.". "(G) not impose limitations which would im­ (d) CONFORMING AMENDMENT.-Paragraph (5) owned by a cable operator on the date of enact­ ment of this paragraph; and pair the development of diverse and high quality of section 612(b) of the Communications Act of video programming.". 1934 (47 U.S.C. 532(b)) is amended to read as fol­ "(B) may waive the requirements of this para­ lows: graph to the extent the Commission determines SEC. 12. REGULATION OF CARRIAGE AGREE­ 'MENTS. "(5) For the purposes of this section, the term is necessary to ensure that all significant por­ 'commercial use' means the provision of video tions of a franchise area are able to obtain video Part II of title VI of the Communications Act programming, whether or not for profit.". programming.•'. of 1934 is amended by inserting after section 615 SEC. 10. CHILDREN'S PROTECTION FROM INDE­ (b) CLARIFICATION OF LOCAL AUTHORITY TO (as added by section S of this Act) the following CENT PROGRAMMING ON LEASED REGULATE OWNERSH/P.-Section 613(d) Of the new section: ACCESS CHANNELS. Communications Act of 1934 (47 U.S.C. 533(d)) is "SEC. 616. REGULATION OF CARRIAGE AGREE· (a) AUTHORITY TO ENFORCE.- Section 612(h) amended- 'MENTS. of the Communications Act of 1934 (47 U.S.C. (1) by striking "any media" and inserting "(a) REGULATIONS.-Within one year after the 532(h)) is amended- "any other media"; and date of enactment of this section, the Commis­ (]) by inserting "or the cable operator" after (2) by adding at the end thereof the following: sion shall establish regulations governing pro­ "franchising authority"; and "Nothing in this section shall be construed to gram carriage agreements and related practices (2) by adding at the end thereof the fallowing: prevent any State or franchising authority from between cable operators or other multichannel "This subsection shall permit a cable operator to prohibiting the ownership or control of a cable video programming distributors and video pro­ enforce prospectively a written and published system in a jurisdiction by any person (1) be­ gramming vendors. Such regulations shall- policy of prohibiting programming that the cable cause of such person's ownership or control of "(]) include provisions designed to prevent a operator reasonably believes describes or depicts any other cable system in such jurisdiction; or cable operator or other multichannel video pro­ sexual or excretory activities or organs in a pa­ (2) in circumstances in which the State or fran­ gramming distributor from requiring a financial tently offensive manner as measured by contem­ chising authority determines that the acquisi­ interest in a program service as a condition for porary community standards.". tion of such a cable system may eliminate or re­ carriage on one or more of such operator's sys­ (b) COMMISSION REGULAT/ONS.-Section 612 of duce competition in the delivery of cable service tems; the Communications Act of 1934 (47 U.S.C. 532) in such jurisdiction.". "(2) include provisions designed to prohibit a is amended by inserting after subsection (i) (as (c) COMMISSION REGULAT/ONS.-Section 613 of cable operator or other multichannel video pro­ added by section 9(c) of this Act) the following the Communications Act of 1934 (47 U.S.C. 533) gramming distributor from coercing a video pro­ new subsection: is amended- gramming vendor to provide, and from retaliat- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24607 ing against such a vendor for failing to provide, days, such request shall be deemed granted un­ the emergency broadcasting system pursuant to exclusive rights against other multichannel less the requesting party and the franchising Commission regulations in subpart G of part 73, video programming distributors as a condition of authority agree to an extension of time.". title 47, Code of Federal Regulations.". carriage on a system; SEC. 14. SUBSCRIBER BILL ITEMIZATION. (C) PROGRAMMING CHANGES.-Section 624 of "(3) contain provisions designed to prevent a Section 622(c) of the Communications Act of such Act (47 U.S.C. 544) is further amended- multichannel video programming distributor 1934 (47 U.S.C. 542(c)) is amended to read as fol­ (1) in subsection (b)(l), by inserting ", except from engaging in conduct the effect of which is lows: as provided in subsection (h)," after "but may to unreasonably restrain the ability of an unaf­ "(c) Each cable operator may identify, con­ not"; and filiated video programming vendor to compete sistent with the regulations prescribed by the (2) by adding at the end the following new fairly by discriminating in video programming Commission pursuant to section 623, as a sepa­ subsection: distribution on the basis of affiliation or non­ rate line item on each regular bill of each sub­ ''(h) A franchising authority may require a affiliation of vendors in the selection, terms, or scriber, each of the following: cable operator to do any one or more of the fol­ conditions for carriage of video programming "(1) The amount of the total bill assessed as lowing: provided by such vendors; a franchise fee and the identity of the franchis­ "(1) Provide 30 days' advance written notice "(4) provide for expedited review of any com­ ing authority to which the fee is paid. of any change in channel assignment or in the plaints made by a video programming vendor "(2) The amount of the total bill assessed to video programming service provided over any pursuant to this section; satisfy any requirements imposed on the cable such channel. "(5) provide for appropriate penalties and operator by the franchise agreement to support "(2) Inform subscribers, via written notice, remedies for violations of this subsection, in­ public, educational, or governmental channels that comments on programming and channel po­ cluding carriage; and or the use of such channels. sition changes are being recorded by a des­ "(6) provide penalties to be assessed against "(3) The amount of any other fee, tax, assess­ ignated office of the franchising authority.". any person filing a frivolous complaint pursu­ ment, or charge of any kind imposed by any (d) HOME WIRING.-Section 624 of such Act (47 ant to this section. governmental authority on the transaction be­ U.S.C. 544) is further amended by adding at the "(b) DEFINITION.-As used in this section, the tween the operator and the subscriber.". end the following new subsection: · term 'video programming vendor' means a per­ SEC. 15. NOTICE TO CABLE SUBSCRIBERS ON UN· "(i) Within 120 days after the date of enact­ son engaged in the production, creation, or SOLICITED SEXUALLY EXPLICIT PRO· ment of this subsection, the Commission shall wholesale distribution of video programming for GRAMS. prescribe rules concerning the disposition, after sale.". Section 624(d) of the Communications Act of a subscriber to a cable system terminates service, SEC. 18. SALES OF CABLE SYSTEMS. 1934 (47 U.S.C. 544(d)) is amended by adding at of any cable installed by the cable operator Part II of title VI of the Communications Act the end the following new paragraph: within the premises of such subscriber.". of 1934 is further amended by adding at the end "(3)(A) If a cable operator provides a premium SEC. 11. CONSUMER ELECTRONICS EQUIPMENT thereof the following new section: channel without charge to cable subscribers who COMPATIBILITY. "SEC. 611. SALES OF CABLE SYSTEMS. do not subscribe to such premium channel, the The Communications Act of 1934 is amended "(a) 3-YEAR HOLDING PERIOD REQUIRED.-Ex­ cable operator shall, not later than 30 days be­ by adding after section 624 (47 U.S.C. 544) the cept as provided in this section, no cable opera­ ! ore such premium channel is provided without fallowing new section: tor may sell or otherwise transfer ownership in charge- "SEC. 6UA. CONSUMER ELECTRONICS EQUIP· a cable system within a 36-month period fallow­ "(i) notify all cable subscribers that the cable MENT COMPATIBILITY. ing either the acquisition or initial construction operator plans to provide a premium channel "(a) FINDINGS.-The Congress finds that­ of such system by such operator. without charge; "(1) new and recent models of television re­ "(b) TREATMENT OF MULTIPLE TRANSFERS.­ "(ii) notify all cable subscribers when the ceivers and video cassette recorders often con­ In the case of a sale of multiple systems, if the cable operator plans to offer a premium channel tain premium features and functions that are terms of the sale require the buyer to subse­ without charge; disabled or inhibited because of cable scram­ quently transfer ownership of one or more such "(iii) notify all cable subscribers that they bling. encoding, or encryption technologies and systems to one or more third parties, such trans­ have a right to request that the channel carry­ devices, including converter boxes and remote fers shall be considered a part of the initial ing the premium channel be blocked; and control devices required by cable operators to re­ transaction. "(iv) block the channel carrying the premium ceive programming; "(c) EXCEPTIONS.-Subsection (a) shall not channel upon the request of a subscriber. "(2) if these problems are allowed to persist, apply to- "(B) For the purpose of this section, the term consumers will be less likely to purchase, and "(1) any transfer of ownership interest in any 'premium channel' shall mean any pay service electronics equipment manufacturers will be less cable system which is not subject to Federal in­ offered on a per channel or per program basis, likely to develop, manufacture, or offer for sale, come tax liability; which offers movies rated by the Motion Picture television receivers and video cassette recorders "(2) any sale required by operation of any law Association of America as X, NC-17, or R. ". with new and innovative f ea tu res and func­ or any act of any Federal agency, any State or SEC. 16. TECHNICAL STANDARDS; EMERGENCY tions; and political subdivision thereof, or any franchising ANNOUNCEMENTS; PROGRAMMING "(3) cable operators should use technologies authority; or CHANGES; HOME WIRING. that will prevent signal thefts while permitting "(3) any sale, assignment, or transfer, to one (a) TECHNICAL STANDARDS.-Section 624(e) of consumers to benefit from such f ea tu res and or more purchasers, assignees, or transferees the Communications Act of 1934 (47 U.S.C. functions in such receivers and recorders. controlled by, controlling, or under common 544(e)) is amended to read as follows: "(b) COMPATIBLE INTERFACES.- control with, the seller, assignor, or transferor. "(e) Within one year after the date of enact­ "(1) REPORT; REGULATIONS.-Within 1 year "(d) WAIVER AUTHORITY.-The Commission ment of the Cable Television Consumer Protec­ after the date of enactment of this section, the may, consistent with the public interest, waive tion and Competition Act of 1992, the Commis­ Commission, in consultation with representa­ the requirement of subsection (a), except that, if sion shall prescribe regulations which establish tives of the cable industry and the consumer the franchise requires franchise authority ap­ minimum technical standards relating to cable electronics industry, shall report to Congress on proval of a transfer, the Commission shall not systems' technical operation and signal quality. means of assuring compatibility between tele­ waive such requirements unless the franchise The Commission shall update such standards visions and video cassette recorders and cable authority has approved the transfer. The Com­ periodically to reflect improvements in tech­ systems, consistent with the need to prevent mission shall use its authority under this sub­ nology. A franchising authority may require as theft of cable service, so that cable subscribers section to permit appropriate trans/ers in the part of a franchise (including a modification, will be able to enjoy the full benefit of both the cases of default, foreclosure, or other financial renewal, or transfer thereof) provisions for the programming available on cable systems and the distress. enforcement of the standards prescribed under functions available on their televisions and "(e) LIMITATION ON DURATION OF FRANCHIS­ this subsection. A franchising authority may video cassette recorders. Within 180 days after ING AUTHORITY POWER TO DISAPPROVE TRANS­ apply to the Commission for a waiver to impose the date of submission of the report required by FERS.-/n. the case of any sale or transfer of standards that are more stringent than the this subsection, the Commission shall issue such ownership of any cable system after the 36- standards prescribed by the Commission under regulations as are necessary to assure such com­ month period following acquisition of such sys­ this subsection.". · patibility. tem, a franchising authority shall, if the fran­ (b) EMERGENCY ANNOUNCEMENTS.-Section 624 "(2) SCRAMBLING AND ENCRYPTION.-ln issu­ chise requires franchising authority approval of of such Act (47 U.S.C. 544) is amended by add­ ing the regulations referred to in paragraph (1), a sale or transfer, have 120 days to act upon ing at the end the following new subsection: the Commission shall determine whether and, if any request for approval of such sale or trans/er "(g) Notwithstanding any such rule, regula­ so, under what circumstances to permit cable that contains or is accompanied by such infor­ tion, or order, each cable operator shall comply systems to scramble or encrypt signals or to re­ mation as is required in accordance with Com­ with such standards as the Commission shall strict cable systems in the manner in which they mission regulations and by the franchising au­ prescribe to ensure that viewers of video pro­ encrypt or scramble signals, except that the thority. If the franchising authority fails to gramming on cable systems are afforded the Commission shall not limit the use of scrambling render a final decision on the request within 120 same emergency information as is aftorded by or encryption technology where the use of such 24608 CONGRESSIONAL RECORD-HOUSE September 14, 1992 technology does not inter/ere with the functions and changes in cable systems, television receiv­ market, to increase the availability of satellite of subscribers' television receivers or video cas­ ers, video cassette recorders, and similar tech­ cable programming and satellite broadcast pro­ sette recorders. nology.". gramming to persons in rural and other areas "(c) RULEMAK/NG REQUIREMENTS.- SEC. 18. FRANCilSE RENEW.AL. not currently able to receive such programming, "(1) FACTORS TO BE CONS/DERED.-In prescrib­ (a) COMMENCEMENT OF PROCEEDINGS.-Sec­ and to spur the development of communications ing the regulations required by this section, the tion 626(a) of the Communications Act of 1934 technologies. Commission shall consider- (47 U.S.C. 546(a)) is amended to read as follows: "(b) PROHIBITION.-It shall be unlawful for a "(A) the costs and benefits to consumers of "SEC. 626. (a)(l) A franchising authority may, cable operator, a satellite cable programming imposing compatibility requirements on cable on its own initiative during the 6-month period vendor in which a cable operator has an attrib­ operators and television manufacturers in a which begins with the 36th month before the utable interest, or a satellite broadcast program­ manner that, while providing effective protec­ franchise expiration, commence a proceeding ming vendor to engage in unfair methods of tion against theft or unauthorized reception of which affords the public in the franchise area competition or unfair or deceptive acts or prac­ cable service, will minimize interference with or appropriate notice and participation for the tices, the purpose or effect of which is to hinder nullification of the special functions of subscrib­ purpose of (A) identifying the future cable-relat­ significantly or to prevent any multichannel ers' television receivers or video cassette record­ ed community needs and interests, and (B) re­ video programming distributor from providing ers, including functions that permit the sub­ viewing the per/ormance of the cable operator satellite cable programming or satellite broad­ scriber- under the franchise during the then current cast programming to subscribers or consumers. "(i) to watch a program on one channel while franchise term. If the cable operator submits, "(c) REGULATIONS REQUIRED.- simultaneously using a video cassette recorder during such 6-month period, a written renewal "(1) PROCEEDING REQUIRED.-Within 180 days to tape a program on another channel; notice requesting the commencement of such a after the date of enactment of this section, the "(ii) to use a video cassette recorder to tape proceeding, the franchising authority shall com­ Commission shall, in order to promote the public two consecutive programs that appear on dif­ mence such a proceeding not later than 6 interest, convenience, and necessity by increas­ ferent channels; and months after the date such notice is submitted. ing competition and diversity in the multi­ "(iii) to use advanced television picture gen­ "(2) The cable operator may not invoke the re­ channel video programming market and the con­ eration and display f ea tu res; and newal procedures set forth in subsections (b) tinuing development of communications tech­ "(B) the need for cable operators to protect through (g) unless- nologies, prescribe regulations to specify par­ the integrity of the signals transmitted by the "(A) such a proceeding is requested by the ticular conduct that is prohibited by subsection cable operator against theft or to protect such cable operator by timely submission of such no­ (b). signals against unauthorized reception. tice; or "(2) MINIMUM CONTENTS OF REGULATIONS.­ "(2) REGULATIONS REQUIRED.-The regula­ "(B) such a proceeding is commenced by the The regulations to be promulgated under this tions prescribed by the Commission under this franchising authority on its own initiative.". section shall- section shall include such regulations as are (b) PROCEEDING ON RENEWAL PROPOSAL.-Sec­ ''(A) establish effective safeguards to prevent necessary- tion 626(c)(l) of the Communications Act of 1934 a cable operator which has an attributable in­ "(A) to specify the technical requirements (47 U.S.C. 546(c)(l)) is amended- terest in a satellite cable programming vendor or with which a television receiver or video cassette (1) by inserting "pursuant to subsection (b)" a satellite broadcast programming vendor from recorder must comply in order to be sold as after "renewal of a franchise"; and unduly or improperly influencing the decision of 'cable compatible' or 'cable ready'; (2) by striking "completion of any proceedings such vendor to sell, or the prices, terms, and "(B) to require cable operators offering chan­ under subsection (a)" and inserting the follow­ conditions of sale of, satellite cable program­ nels whose reception requires a converter box- ing: "date of the submission of the cable opera­ ming or satellite broadcast programming to any "(i) to notify subscribers that they may be un­ tor's proposal pursuant to subsection (b)". unaffiliated multichannel video programming able to benefit from the special functions of (c) REVIEW CRITERIA.-Section 626(c)(l)(B) Of distributor; their television receivers and video cassette re­ the Communications Act of 1934 (47 U.S.C. "(B) prohibit discrimination by a satellite corders, including functions that permit sub­ 546(c)(l)(B)) is amended by striking "mix, qual­ cable programming vendor in which a cable op­ scribers- ity, or level" and inserting "mix or quality". erator has an attributable interest or by a sat­ "(I) to watch a program on one channel while (d) CORRECTION OF FAILURES.-Section 626(d) ellite broadcast programming vendor in the simultaneously using a video cassette recorder of the Communications Act of 1934 (47 U.S.C. prices, terms, and conditions of sale or delivery to tape a program on another channel; 546(d)) is amended- of satellite cable programming or satellite broad­ "(//) to use a video cassette recorder to tape (1) by inserting "that has been submitted in cast programming among or between cable sys­ two consecutive programs that appear on dif­ compliance with subsection (b)" after "Any de­ tems, cable operators, or other multichannel ferent channels; and nial of a proposal for renewal": and video programming distributors, or their agents "(III) to use advanced television picture gen­ (2) by striking "or has effectively acquiesced" or buying groups; except that such a satellite eration and display f ea tu res: and and inserting "or the cable operator gives writ­ cable programming vendor in which a cable op­ "(ii) to the extent technically and economi­ ten notice of a failure or inability to cure and erator has an attributable interest or such a sat­ cally feasible, to offer subscribers the option of the franchising authority fails to object within ellite broadcast programming vendor shall not having all other channels delivered directly to a reasonable time after receipt of such notice". be prohibited from- the subscribers' television receivers or video cas­ (e) HARMLESS ERROR.- Section 626(e)(2)(A) of "(i) imposing reasonable requirements for sette recorders without passing through the con­ the Communications Act of 1934 (47 U.S.C. creditworthiness, offering of service, and finan­ verter box: 546(e)(2)(A)) is amended by inserting after cial stability and standards regarding character "(C) to promote the commercial availability, "franchising authority" the following: ", other and technical quality: from cable operators and retail vendors that are than harmless error,". "(ii) establishing different prices, terms, and not affiliated with cable systems, of converter (f) CONFLICT BETWEEN REVOCATION AND RE­ conditions to take into account actual and rea­ boxes and of remote control devices compatible NEWAL PROCEED/NGS.-Section 626 of the Com­ sonable differences in the cost of creation, sale, with converter boxes; munications Act of 1934 (47 U.S.C. 546) is delivery, or transmission of satellite cable pro­ "(D) to require a cable operator who offers amended by adding at the end the following gramming or satellite broadcast programming; subscribers the option of renting a remote con­ new subsection: " (iii) establishing different prices, terms, and trol unit- "(i) Notwithstanding the provisions of sub­ conditions which take into account economies of "(i) to notify subscribers that they may pur­ sections (a) through (h), any lawful action to scale, cost savings, or other direct and legitimate chase a commercially available remote control revoke a cable operator's franchise for cause economic benefits reasonably attributable to the device from any source that sells such devices shall not be negated by the subsequent initi- number of subscribers served by the distributor; rather than renting it from the cable operator; . ation of renewal proceedings by the cable opera­ OT and tor under this section.". "(iv) entering into an exclusive contract that "(ii) to specify the types of remote control SEC. 19. DEVELOPMENT OF COMPETITION AND is permitted under subparagraph (D); units that are compatible with the converter box DIVERSITY IN VIDEO PROGRAMMING "(C) prohibit practices, understandings, ar­ supplied by the cable operator: and DISTRIBUTION. rangements, and activities, including exclusive "(E) to prohibit a cable operator from taking Part III of title VI of the Communications Act contracts for satellite cable programming or sat­ any action that prevents or in any way disables of 1934 is amended by inserting after section 627 ellite broadcast programming between a cable the converter box supplied by the cable operator (47 U.S.C. 547) the following new section: operator and a satellite cable programming ven­ from operating compatibly with commercially "SEC. 628. DEVELOPMENT OF COMPETITION AND dor or satellite broadcast programming vendor, available remote control units. DIVERSITY IN VIDEO PROGRAMMING that prevent a multichannel video programming "(d) REVIEW OF REGULATIONS.-The Commis­ DISTRIBUTION. distributor from obtaining such programming sion shall periodically review and, if necessary, "(a) PURPOSE.-The purpose of this section is from any satellite cable programming vendor in modify the regulations issued pursuant to this to promote the public interest, convenience, and which a cable operator has an attributable in­ section in light of any actions taken in response necessity by increasing competition and diver­ terest or any satellite broadcast programming to such regulations and to reflect improvements sity in the multichannel video programming vendor in which a cable operator has an attrib- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24609 utable interest for distribution to persons in "(1) provide for an expedited review of any (1) in paragraph (2)- areas not served by a cable operator as of the complaints made pursuant to this section; (A) by striking "$25,000" and inserting date of enactment of this section; and ''(2) establish procedures for the Commission "$50,000"; "(D) with respect to distribution to persons in to collect such data, including the right to ob­ (B) by striking "1 year" and inserting "2 areas served by a cable operator, prohibit exclu­ tain copies of all contracts and documents re­ years"; sive contracts for satellite cable programming or flecting arrangements and understandings al­ (C) by striking "$50,000" and inserting satellite broadcast programming between a cable leged to violate this section, as the Commission "$100,000"; and operator and a satellite cable programming ven­ requires to carry out this section; and (D) by striking "2 years" and inserting "5 dor in which a cable operator has an attrib­ ''(3) provide for penalties to be assessed years"; and utable interest or a satellite broadcast program­ against any person filing a frivolous complaint (2) by adding at the end thereof the following ming vendor in which a cable operator has an pursuant to this section. new paragraph: attributable interest, unless the Commission de­ "(g) REPORTS.-The Commission shall, begin­ ''(3) For purposes of all penalties and rem­ termines (in accordance with paragraph (4)) ning not later than 18 months after promulga­ edies established for violations of subsection that such contract is in the public interest. tion of the regulations required by subsection (a)(l), the prohibited activity established herein "(3) LIMITATIONS.- (c), annually report to Congress on the status of as it applies to each such device shall be deemed "(A) GEOGRAPHIC LIMITATIONS.-Nothing in competition in the market for the delivery of a separate violation.". this section shall require any person who is en­ video programming. SEC. 22. EQUAL EMPWYMENT OPPORTUNITY. gaged in the national or regional distribution of "(h) EXEMPTIONS FOR PRIOR CONTRACTS.­ (a) FINDINGS.-The Congress finds and de­ video programming to make such programming "(1) IN GENERAL.-Nothing in this section clares that- available in any geographic area beyond which shall affect any contract that grants exclusive (1) despite the existence of regulations govern­ such programming has been authorized or li­ distribution rights to any person with respect to ing equal employment opportunity, females and censed for distribution. satellite cable programming and that was en­ minorities are not employed in significant num­ "(B) APPLICABILITY TO SATELLITE RETRANS­ tered into on or before June 1, 1990, except that bers in positions of management authority in MISSIONS.-Nothing in this section shall apply the provisions of subsection (c)(2)(C) shall apply the cable and broadcast television industries; (i) to the signal of any broadcast affiliate of a for distribution to persons in areas not served by (2) increased numbers of females and minori­ national television network or other television a cable operator. ties in positions of management authority in the signal that is retransmitted by satellite but that "(2) LIMITATION ON RENEWALS.-A contract cable and broadcast television industries ad­ not satellite broadcast programming, or (ii) to is that was entered into on or before June 1, 1990, vances the Nation's policy favoring diversity in any internal satellite communication of any but that is renewed or extended after the date of the expression of views in the electronic media; broadcast network or cable network that is not enactment of this section shall not be exempt and satellite broadcast programming. under paragraph (1). (3) rigorous enforcement of equal employment "(4) PUBLIC INTEREST DETERMINATIONS ON EX­ "(i) DEFINITIONS.-As used in this section: opportunity rules and regulations is required in CLUSIVE CONTRACTS.-ln determining whether "(1) The term 'satellite cable programming' order to effectively deter racial and gender dis­ an exclusive contract is in the public interest for has the meaning provided under section 705 of crimination. purposes of paragraph (2)(D), the Commission this Act, except that such term does not include (b) STANDARDS.-Section 634(d)(l) of the Com­ shall consider each of the fallowing factors with satellite broadcast programming. munication Act of 1934 (47 U.S.C. S54(d)(l)) is respect to the effect of such contract on the dis­ "(2) The term 'satellite cable programming amended to read as follows: tribution of video programming in areas that are vendor' means a person engaged in the produc­ "(d)(l) Not later than 270 days after the date served by a cable operator: tion, creation, or wholesale distribution for sale of enactment of the Cable Television Consumer "(A) the effect of such exclusive contract on of satellite cable programming, but does not in­ Protection and Competition Act of 1992, and the development of competition in local and na­ clude a satellite broadcast programming vendor. after notice and opportunity for hearing, the tional multichannel video programming distribu­ "(3) The term 'satellite broadcast program­ Commission shall prescribe revisions in the rules tion markets; ming' means broadcast video programming when under this section in order to implement the "(B) the effect of such exclusive contract on such programming is retransmitted by satellite competition from multichannel video program­ amendments made to this section by such Act. and the entity retransmitting such programming Such revisions shall be designed to promote ming distribution technologies other than cable; is not the broadcaster or an entity per/orming equality of employment opportunities for fe­ "(C) the effect of such exclusive contract on such retransmission on behalf of and with the the attraction of capital investment in the pro­ males and minorities in each of the job cat­ specific consent of the broadcaster. egories itemized in paragraph (3).". duction and distribution of new satellite cable "(4) The term 'satellite broadcast program­ programming; (C) CONTENTS OF ANNUAL STATISTICAL RE­ ming vendor' means a fixed service satellite car­ PORTS.-Section 634(d)(3) of the Communica­ "(D) the effect of such exclusive contract on rier that provides service pursuant to section 119 diversity of programming in the multichannel tions Act of 1934 (47 U.S.C. 554(d)(3)) is amended of title 17, United States Code, with respect to to read as follows: video programming distribution market; and satellite broadcast programming.''. "(E) the duration of the exclusive contract. "(3)( A) Such rules also shall require an entity SEC. 20. CUSTOMER PRIVACY RIGHTS. "(5) SUNSET PROVISION.-The prohibition re­ specified in subsection (a) with more than S full­ quired by paragraph (2)(D) shall cease to be ef- (a) DEFINITIONS.-Section 63J(a)(2) of the time employees to file with the Commission an fective JO years after the date of enactment of Communications Act of 1934 (47 U.S.C. 551(a)(2)) annual statistical report identifying by race, this section, unless the Commission finds, in a is amended to read as follows: sex, and job title the number of employees in proceeding conducted during the last year of ''(2) For purposes of this section, other than each of the fallowing full-time and part-time job such JO-year period, that such prohibition con­ subsection (h)- categories: "(A) the term 'personally identifiable informa­ tinues to be necessary to preserve and protect "(i) Corporate officers. tion' does not include any record of aggregate competition and diversity in the distribution of "(ii) General Manager. video programming. data which does not identify particular persons; "(iii) Chief Technician. "(d) ADJUDICATORY PROCEEDING.-Any multi­ "(B) the term 'other service' includes any wire "(iv) Comptroller. channel video programming distributor ag­ or radio communications service provided using "(v) General Sales Manager. grieved by conduct that it alleges constitutes a any of the facilities of a cable operator that are "(vi) Production Manager. violation of subsection (b), or the regulations of used in the provision of cable service; and ''(vii) Managers. the Commission under subsection (c), may com­ "(C) the term 'cable operator' includes, in ad­ ''(viii) Professionals. mence an adjudicatory proceeding at the Com­ dition to persons within the definition of cable "(ix) Technicians. operator in section 602, any person who (i) is mission. ''(x) Sales Personnel. "(e) REMEDIES FOR VIOLATIONS.- owned or controlled by, or under common own­ "(xi) Office and Clerical Personnel. "(1) REMEDIES AUTHORIZED.-Upon comple­ ership or control with, a cable operator, and (ii) "(xii) Skilled Craftspersons. tion of such adjudicatory proceeding, the Com­ provides any wire or radio communications serv­ "(xiii) Semiskilled Operatives. mission shall have the power to order appro­ ice.". "(xiv) Unskilled Laborers. priate remedies, including, if necessary, the (b) ADDITIONAL ACTIONS REQUIRED.-Section "(xv) Service Workers. power to establish prices, terms, and conditions 631(c)(l) of the Communications Act of 1934 (47 "(B) The report required by subparagraph (A) of sale of programming to the aggrieved multi­ U.S.C. 551(c)(l)) is amended by inserting imme­ shall be made on separate forms, provided by channel video programming distributor. diately before the period at the end the fallow­ the Commission, for full-time and part-time em­ "(2) ADDITIONAL REMEDIES.-The remedies ing: "and shall take such actions as are nec­ ployees. The Commission's rules shall suffi­ provided in paragraph (1) are in addition to and essary to prevent unauthorized access to such ciently define the job categories listed in clauses not in lieu of the remedies available under title information by a person other than the sub­ (i) through (vi) of such subparagraph so as to V or any other provision of this Act. scriber or cable operator". ensure that only employees who are principal "(/) PROCEDURES.-The Commission shall pre­ SEC. 21. THEFI' OF CABLE SERVICE. decisionmakers and w ho have supervisory au­ scribe regulations to implement this section. The Section 633(b) of the Communications Act of thority are reported for such categories. The Commission's regulations shall- 1934 (47 U.S.C. 533(b)) is amended- Commission shall adopt rules that def ine the j ob 24610 CONGRESSIONAL RECORD-HOUSE September 14, 1992 categories listed in clauses (vii) through (xv) in improve equal employment opportunity in the section, initiate a rulemaking proceeding to im­ a manner that is consistent with the Commission broadcasting and cable industries as it deems pose, on providers of direct broadcast satellite policies in effect on June 1, 1990. The Commis­ necessary. service, public interest or other requirements for sion shall prescribe the method by which entities SEC. 23. JUDICIAL REVIEW. providing video programming. Any regulations shall be required to compute and report the Section 635 of the Communications Act of 1934 prescribed pursuant to such rulemaking shall, number of minorities and women in the job cat­ (47 U.S.C. 555) is amended by adding at the end at a minimum, apply the access to broadcast egories listed in clauses (i) through (x) and the the fallowing new subsection: time requirement of section 312(a)(7) and the use number of minorities and women in the job cat­ "(c)(l) Notwithstanding any other provision of facilities requirements of section 315 to pro­ egories listed in clauses (i) through (xv) in pro­ of law, any civil action challenging the con­ viders of direct broadcast satellite service pro­ portion to the total number of qualified minori­ stitutionality of section 614 or 615 of this Act or viding video programming. Such proceeding also ties and women in the relevant labor market. any provision thereof shall be heard by a dis­ shall examine the opportunities that the estab­ The report shall include information on hiring, trict court of three judges convened pursuant to lishment of direct broadcast satellite service pro­ promotion, and recruitment practices necessary the provisions of section 2284 of title 28, United vides for the principle of localism under this for the Commission to evaluate the efforts of en­ States Code. Act, and the methods by which such principle tities to comply with the provisions of para­ •'(2) Notwithstanding any other provision of may be served through technological and other graph (2) of this subsection. The report shall be law, an interlocutory or final judgment, decree, developments in, or regulation of, such service. available for public inSPection at the entity's or order of the court of three judges in an action "(b) CARRIAGE OBLIGATIONS FOR NONCOMMER­ central location and at every location where 5 under paragraph (1) holding section 614 or 615 CIAL, EDUCATIONAL, AND INFORMATIONAL PRO­ or more full-time employees are regularly as­ of this Act or any provision thereof unconstitu­ GRAMMING.- signed to work. Nothing in this subsection shall tional shall be reviewable as a matter of right by "(1) CHANNEL CAPACITY REQUIRED.-The Com­ be construed as prohibiting the Commission from direct appeal to the Supreme Court. Any such mission shall require, as a condition of any pro­ collecting or continuing to collect statistical or appeal shall be filed not more than 20 days after vision, initial authorization, or authorization other employment information in a manner that entry of such judgment, decree, or order.". renewal for a provider of direct broadcast sat­ it deems appropriate to carry out this section.". SEC. 24. UMITATION ON FRANCHISING AUTHOR· ellite service providing video programming, that (d) PENALTIES.-Section 634(f)(2) of such Act I7Y UABIU7Y. the provider of such service reserve a portion of (47 U.S.C. 554(f)(2)) is amended by striking (a) AMENDMENT.-Part IV of title VI of the its channel capacity, equal to not less than 4 "$200" and inserting "$500". Communications Act of 1934 is amended by in­ percent nor more than 7 percent, exclusively for (e) APPLICATION OF REQUJREMENTS.-Section serting after section 635 (47 U.S.C. 555) the fol­ noncommercial programming of an educational 634(h)(l) of such Act (47 U.S.C. 554(h)(l)) is lowing new section: or informational nature. amended by inserting before the period the f al­ "SEC. 635A. UMITATION OF FRANCHISING AU­ "(2) USE OF UNUSED CHANNEL CAPACITY.-A lowing: "and any multichannel video program­ THORI7Y UABIU7Y. provider of such service may utilize for any pur­ ming distributor". "(a) SUITS FOR DAMAGES PROHIBITED.-In pose any unused channel capacity required to (f) BROADCASTING EQUAL EMPLOYMENT OP­ any court proceeding pending on or initiated be reserved under this subsection pending the PORTUNITY.-Part I of title III Of the Commu­ after the date of enactment of this section in­ actual use of such channel capacity for non­ nications Act of 1934 is amended by inserting volving any claim against a franchising author­ commercial programming of an educational or after section 333 (47 U.S.C. 333) the following ity or other governmental entity, or any official, informational nature. new section: member, employee, or agent of such authority or "(3) PRICES, TERMS, AND CONDITIONS; EDI­ "SEC. 834. UMITATION ON REVISION OF EQUAL entity, arising from the regulation of cable serv­ TORIAL CONTROL.-A provider of direct broad­ EMPLOYMENT OPPORTUNI1Y REGU· ice or from a decision of approval or disapproval cast satellite service shall meet the requirements LATIONS. with reSPect to a grant, renewal, transfer, or of this subsection by making channel capacity "(a) LIMITATION.-Except as SPecifically pro­ amendment of a franchise, any relief, to the ex­ available to national educational programming vided in this section, the Commission shall not tent such relief is required by any other provi­ suppliers, upon reasonable prices, terms, and revise- sion of Federal, State, or local law, shall be lim­ conditions, as determined by the Commission "(1) the regulations concerning equal employ­ ited to injunctive relief and declaratory relief. under paragraph (4). The provider of direct ment opportunity as in effect on September 1, "(b) EXCEPTION FOR COMPLETED CASES.-The broadcast satellite service shall not exercise any 1992 (47 C.F.R. 73.2080) as such regulations limitation contained in subsection (a) shall not editorial control over any video programming apply to television broadcast station licensees apply to actions that, prior to such violation, provided pursuant to this subsection. and permittees; or have been determined by a final order of a court "(4) LIMITATIONS.-/n determining reasonable "(2) the forms used by such licensees and per­ of binding jurisdiction, no longer subject to ap­ prices under paragraph (3)- mittees to report pertinent employment data to peal, to be in violation of a cable operator's "(A) the Commission shall take into account the Commission. rights. the nonprofit character of the programming pro­ "(b) MIDTERM REVIEW.-The Commission shall "(C) DISCRIMINATION CLAIMS PERMITTED.­ vider and any Federal funds used to support revise the regulations described in subsection (a) Nothing in this section shall be construed as such programming; to require a midterm review of television broad­ limiting the relief authorized with respect to any "(B) the Commission shall not permit such cast station licensees' employment practices and claim against a franchising authority or other prices to exceed, for any channel made available to require the Commission to inform such licens­ governmental entity, or any official, member, under this subsection, 50 percent of the total di­ ees of necessary improvements in recruitment employee, or agent of such authority or entity, rect costs of making such channel available; practices identified as a consequence of such re­ to the extent such claim involves discrimination and view. on the basis of race, color, sex, age, religion, na­ "(C) in the calculation of total direct costs, "(c) AUTHORITY TO MAKE TECHNICAL REVl­ tional origin, or handicap. the Commission shall exclude- SIONS.-The Commission may revise the regula­ "(d) RULE OF CONSTRUCTJON.-Nothing in this "(i) marketing costs, general administrative tions described in subsection (a) to make non­ section shall be construed as creating or author­ costs, and similar overhead costs of the provider substantive technical or clerical revisions in izing liability of any kind, under any law, for of direct broadcast satellite service; and such regulations as necessary to reflect changes any action or failure to act relating to cable "(ii) the revenue that such provider might in technology, terminology, or Commission orga­ service or the granting of a franchise by any have obtained by making such channel avail­ nization.". franchising authority or other governmental en­ able to a commercial provider of video program­ (g) STUDY AND REPORT REQUIRED.-Not later tity, or any official, member, employee, or agent ming. than 2 years after the date of enactment of this of such authority or entity.". "(5) DEFINITIONS.-For purposes of this sub­ Act, the Commission shall submit to the Con­ (b) CONFORMING AMENDMENT.-Section 635(b) section- gress a report pursuant to a proceeding to re­ of the Communications Act of 1934 (47 U.S.C. "( A) The term 'provider of direct broadcast view and obtain public comment on the effect 555(b)) is amended by inserting "and with the satellite service' means- and operation of the amendments made by this provisions of subsection (a)" after "subsection "(i) a licensee for a Ku-band satellite system section. In conducting such review, the Commis­ (a)". under part 100 of title 47 of the Code of Federal sion shall consider the effectiveness of its proce­ SEC. 25. DIRECT BROADCAST SATEILITE SERVICE Regulations; or dures, regulations, policies, standards, and OBUGATIONS. "(ii) any distributor who controls a minimum guidelines in promoting equality of employment (a) AMENDMENT.-Part I of title III of the number of channels (as specified by Commission opportunity and promotion opportunity, and Communications Act of 1934 is further amended regulation) using a Ku-band fixed service sat­ particularly the effectiveness of its procedures, by inserting after section 334 (as added by sec­ ellite system for the provision of video program­ regulations, policies, standards, and guidelines tion 22(f) of this Act) the fallowing new section: ming directly to the home and licensed under in promoting the congressional policy favoring "SEC. 835. DIRECT BROADCAST SATEILITE SERV· part 25 of title 47 of the Code of Federal Regula­ increased employment opportunity for women ICE OBUGATIONS. tions. and minorities in positions of management au­ "(a) PROCEEDING REQUIRED TO REVIEW DBS " (B) The term 'national educational program­ thority. The Commission shall forward to the RESPONSIBILITIES.-The Commission shall, with­ ming supplier' includes any qualified non­ Congress such legislative recommendations to in 180 days after the date of enactment of this commercial educational television station, other September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24611 public telecommunications entities, and public RALPH M. HALL, (7) The cable industry has become more or private educational institutions.". CLAUDE HARRIS, vertically integrated into programming, (b) TECHNICAL AMENDMENT.-Section 331 of Provided that Mr. Ritter is appointed in which may harm competing programmers; such Act as added by Public Law 97-259 (47 place of Mr. Fields for consideration of so (8) There is a substantial governmental U.S.C. 332) is redesignated as section 332. much of section 16 of the Senate bill as and First Amendment interest in ensuring SBC. 16. SPORTS PROGRAMMING MIGRATION would add a new section 614(g) of the Com­ that cable subscribers have access to local STUDY AND REPORT. munications Act of 1934 and so much of sec­ noncommercial educational stations to fur­ (a) STUDY REQUIRED.-The Federal Commu­ tion 5 of the House amendment as would add ther education and promote diversity and al­ nications Commission shall conduct an ongoing a new section 614(f) to the Communications ternative telecommunications services; study on the carriage of local, regional, and na­ Act of 1934. (9) There is a substantial governmental in­ tional sports programming by broadcast sta­ Managers on the Part of the House. terest in having all non-duplicative public tions, cable programming networks, and pay­ television stations available to: promote ERNEST F. HOLLINGS, per-view services. The study shall investigate education and public service programming; DANIEL K. INOUYE, and analyze, on a sport-by-sport basis, trends in ensure the maximum use of the federal con­ WENDELL FORD, the migration of such programming from car­ tributions to public broadcasting; and ensure JOHN C. DANFORTH, riage by broadcast stations to carriage over that citizens have access to the public serv­ Managers on the Part of the Senate. cable programming networks and pay-per-view ice programming responding to their needs systems, including the economic causes and the JOINT EXPLANATORY STATEMENT OF and interests which is provided by the public economic and social consequences of such THE COMMITTEE OF CONFERENCE broadcast stations which they help to fund; trends. The managers on the part of the House and (10) There is a substantial governmental (b) REPORT ON STUDY.-The Federal Commu­ the Senate at the conference on the disagree­ interest in ensuring the continuation of lo­ nications Commission shall, on or before July 1, ing votes of the two Houses on the amend­ cally originated television broadcasting; 1993, and July l, 1994, submit an interim and a ments of the House to the bill (S. 12) to (11) Television stations are an important final report, respectively, on the results of the amend title VI of the Communications Act of source of local programming, especially for study required by subsection (a) to the Commit­ 1934 to ensure carriage on cable television of local news and public affairs programming; tee on Energy and Commerce of the House of local news and other programming and to re­ (12) Television broadcasting is especially Representatives and the Committee on Com­ store the right of local regulatory authori­ important for those who cannot afford to pay merce, Science, and Transportation of the Sen­ ties to regulate cable television rates, and for video programming; ate. Such reports shall include a statement of for other purposes, submit the following (13) Over the past decade, the market share the results, on a sport-by-sport basis, of the joint statement to the House and the Senate of cable television has increased, while that analysis of the trends required by subsection (a) in explanation of the effect of the action of television broadcasting has decreased; and such legislative or regulatory recommenda­ agreed upon by the managers and rec­ (14) Cable television and television broad­ tions as the Commission considers appropriate. ommended in the accompanying conference casting increasingly compete for advertising, (C) ANALYSIS OF PRECLUSIVE CONTRACTS RE­ report: and more advertising is aired on cable tele­ QUIRED.- The House amendment to the text of the vision; (1) ANALYSIS REQUIRED.-ln conducting the bill struck all of the Senate bill after the en­ (15) By carrying television broadcast sta­ study required by subsection (a), the Commis­ acting clause and inserted a substitute text. tions, cable operators may increase the sion shall analyze the extent to which preclusive The Senate recedes from its disagreement viewership of these stations at the expense of contracts between college athletic conterences to the amendment of the House with an programming aired exclusively on cable sys­ and video programming vendors have artificially amendment that is a substitute for the Sen­ tems; and unfairly restricted the supply of the sport­ ate bill and the House amendment. The dif­ (16) As a result, cable operators have an in­ ing events of local colleges for broadcast on ferences between the Senate bill, the House centive not to carry television broadcast sta­ local television stations. In conducting such amendment, and the substitute agreed to in tions, which may jeopardize the future of analysis, the Commission shall consult with the conference are noted below, except for cleri­ these stations and the local programming Attorney General to determine whether and to cal corrections, conforming changes made they air; what extent such preclusive contracts are pro­ necessary by agreements reached by the con­ (17) Subscribers to cable television often do hibited by existing statutes. The reports required ferees, and minor drafting and clerical not have the equipment to make it easy to by subsection (b) shall include separate state­ changes. switch between viewing cable television and ments of the results of the analysis required by SECTION 1-SHORT TITLE television broadcast signals over-the-air; this subsection, together with such recommenda­ Senate bill (18) Cable systems are often the single tions for legislation as the Commission considers The Senate bill, in Section 1, provides the most efficient distribution system for tele­ necessary and appropriate. following short title: "Cable Television vision programming; (2) DEFINITION.-For purposes of the sub­ Consumer Protection Act of 1992". (19) Broadcast programming is the most section, the term "preclusive contract" includes House amendment popular programming on cable systems and any contract that prohibits- The House amendment, in Section 1, pro­ as a result, cable operators and programmers ( A) the live broadcast by a local television sta­ vides the following short title: "Cable Tele­ dervice substantial benefits from the car­ tion of a sporting event of a local college team vision Consumer Protection and Competition riage of local broadcast signals. Since cable that is not carried, on a live basis, by any cable Act of 1992" systems can take broadcast signals without system within the local community served by Conference agreement the consent of the broadcasters, cable sys­ such local television station; or tems now are effectively subsidized by broad­ (B) the delayed broadcast by a local television The conference agreement adopts the cast stations; station of a sporting event of a local college House provision. (20) Franchising authorities had their au­ team that is not carried, on a live or delayed SECTION 2-FINDINGS; STATEMENT OF POLICY; thority to oversee the cable industry limited basis, by any cable system within the local com­ DEFINITIONS by the 1984 Cable Communications Policy munity served by such local television station. Senate bill Act, especially with regard to franchise re­ SBC. J7. APPUCABIUTY OF ANTITRUST LAWS. The Congress finds that: newals; Nothing in this Act or the amendments made (1) Cable rates have increased signifi­ (21) Given the lack of clear guidelines in by this Act shall be construed to alter or restrict cantly; applying the First Amendment to cable fran­ in any manner the applicability of any Federal (2) Without a sufficient number of local chise decisions, franchising authorities are or State antitrust law. television stations and another multichannel unreasonably exposed to liability for mone­ SBC. JS. EFFECTIVE DATE. video programming distributor, cable sys­ tary damages under the Civil Rights Acts; Except where otherwise expressly provided, tems are not subject to effective competi­ (22) Cable systems should be encouraged to the provisions of this Act and the amendments tion; carry those low power television stations made thereby shall take effect 60 days after the (3) There is a substantial governmental that carry a substantial amount of local pro­ date of enactment of this Act. and First Amendment interest in promoting gramming. And the House agree to the same. a diversity of views through multiple tech­ Statement ot,policy That the Senate recede from its disagree­ nology media; ment to the amendment of the House to the (4) The cable industry has become a domi­ Section 3 of the Senate bill sets forth the title of the bill and agree to the same. nant nationwide video medium; policy of the Congress in this Act to: JOHN D. DINGELL, (5) The cable industry has become more (1) promote information diversity; EDWARD J. MARKEY, concentrated; (2) rely on the marketplace, to the maxi­ BILLY TAUZIN, (6) Cable rates other than for basic service mum extent; DENNISE. ECKART, should be regulated only when needed to con­ (3) ensure that cable systems can continue THOMAS J. MANTON, trol undue market power; to grow and develop; 59--059 0-97 Vol. 138 (Pt. 17) 28 24612 CONGRESSIONAL RECORD-HOUSE September 14, 1992 (4 ) protect consumers by regulating where 47 U.S.C. 396(k)(6)(b). A " qualified" station a. public television provides educational effective competition does not exist as a sub­ also includes any translator which operates and informational programming to the Na­ stitute for market forces; and at five watts of power or higher and rebroad­ tion's citizens, thereby advancing the Gov­ (5) ensure that consumers and program­ casts the signal of a qualified noncommer­ ernment's compelling interest in educating mers are not harmed by undue market cial educational television station; its citizens; power. (12) The term " qualified low power sta­ b. public television is a local community Definitions tion" means any station that (a) meets the institution, supported through local tax dol­ The Senate bill amends Section 602 of the rules set forth in 47 C.F.R. part 74; (b) meets lars and voluntary citizen contributions in Communications Act of 1934 to add the fol­ the minimum number of broadcast hours set excess of $10.8 billion between 1972 and 1990, lowing: forth in 47 C.F.R. part 73 for television that provides public service programming (1) The term " activated channels" means broadcast stations; (c) meets the require­ that is responsive to the needs and interests those channels engineered at the headend of ments of the Commission that a significant of the local community; a cable system for the provision of services part of its programming be locally origi­ c. The Federal Government, in recognition generally available to residential cable sub­ nated and produced; (d) meets all of the obli­ of public television's integral role in serving scribers, regardless of whether such services gations imposed on television broadcast sta­ the educational and informational needs of actually are provided, including access chan­ tions in 47 C.F.R. part 73 with respect to the local communities, has invested more than nels; broadcast of non-entertainment program­ $3 billion in public broadcasting between 1969 (3) The term "available to a household" or ming; programming and rates involving po­ and 1992; and "available to a home" when used in ref­ litical candidates and election issues; con­ d. absent carriage requirements, there is a erence to a multichannel video programming troversial issues of public importance, and substantial likelihood that citizens, who distributor means a particular household editorials, personal attacks; children's pro­ have supported local public television serv­ which is a subscriber of customer of the dis­ gramming; and equal employment oppor­ ices, will be deprived of those services. tributor or a particular household which is tunity; (e) complies with the interference (6) The Federal Government also has a actively and currently sought as a subscriber regulations consistent with their secondary compelling interest in having cable systems or customer by a multichannel video pro­ status pursuant to 47 C.F.R. part 74; and (f) carry the signals of local commercial tele­ gramming distributor and which is capable is located within 35 miles of the cable sys­ vision stations because the carriage of such of receiving the service offered by the multi­ tem's principal headend, or no more than 20 signals; channel video programming distributor; miles if the station is located in one of the a. promotes localism and provides a sig­ (6) The term "cable community" means all largest 50 markets, and delivers a signal nificant source of news, public affairs, and of the households in the geographic area in level of - 45 dBm for UHF and - 49 dBm for educational programming; which a cable system is authorized by a fran­ VHF stations to input terminals at the cable b. is necessary to serve the goals contained chising authority to provide cable service, headend; in the Communications Act of providing a regardless of whether the cable operator is (13) The term"usable activated channels" fair, efficient, and equitable distribution of actually providing cable service to such means activated channels of a cable system, broadcast services; and households; except those channels whose use for the dis­ c. will enhance the access to such signals (7) The term "headend" means the location tribution of broadcast signals would conflict of Americans living in areas where the qual­ of any equipment of a cable system used to with technical and safety regulations as de­ ity of reception of broadcast signals is poor; process the signals of television broadcast termined by the FCC; (7) Broadcast television programming is stations for redistribution to subscribers; · (14) The term " video programmer" means a supported by advertising revenues. Such pro­ (8) The term " multichannel video program­ person engaged in the production, creation, gramming is otherwise free to those who own ming distributor" means a person who or wholesale distribution of a video program­ television sets and do not require cable makes available for purchase, by subscribers ming service for sale. This term applies to transmission to receive broadcast signals. or customers, multiple channels of video pro­ those video programmers who enter into ar­ There is a substantial governmental interest gramming; rangements with cable operators for carriage in promoting the continued availability of (9) .The term "principal headend" means­ of a programming service; such free television programming, especially (A) the headend, in the case of a cable sys­ (15) The term " Line 21 Closed caption" for viewers who are unable to afford other tem with a single headend, (B) in the ca3e of means the data signal which displays a vis­ means of receiving programming; a cable system with more than one headend, ual depiction of aural information simulta­ (8) Television broadcasters and cable tele­ the headend designated by the cable operator neously being presented on a television chan­ vision operators compete directly for the tel­ to the Commission as the principal headend; nel. evision viewing audience, programming ma­ (10) (A) The term "local commercial tele­ House amendment terials, and advertising revenue. The Federal vision station" means any commercial tele­ interest in ensuring that such competition is vision station licensed and operating on a Findings fair and operates to the benefit of consumers channel regularly assigned to its community The Congress finds that: requires that local broadcast stations be by the Commission that, with respect to a (1) Fair competition in the delivery of tele­ made available on cable systems; particular cable system, is licensed to a com­ vision programming should foster the great­ (9) Cable systems should be encouraged to munity whose reference point is within 50 est possible choice of programming and carry low power television stations licensed miles of the principal headend and which de­ should result in lower prices for consumers; to the communities served by those systems livers to the principal headend either a sig­ (2) Since passage of the Cable Communica­ where the low power station creates and nal level of - 45 dBm (UHF) or - 49 dBm tions Policy Act of 1984, rates for cable tele­ broadcasts, as a substantial part of its pro­ (VHF) at the input terminals of the signal vision services have been deregulated in 97 gramming day, local programming; processing equipment or a baseband video percent of all franchises. A minority of cable (10) Secure carriage and channel position­ signal; signals that would be considered dis­ operators have abused their deregulated sta­ ing on cable television systems are the most tant signals under 17 U.S.C. 111 shall be con­ tus and their market power and have unrea­ effective means through which off-air broad­ sidered local commercial television stations sonably raised cable subscriber rates. The cast television can access cable subscribers. upon agreement by the station to pay the FCC 's rules governing local rate regulation In the absence of rules mandating carriage cable operator the copyright costs of carry­ will not provide protection for more than and channel positioning of broadcast tele­ ing the station; two-thirds of the nation's cable subscribers vision stations, some cable system operators (B) such term does not include television and will not protect subscribers from unrea­ have denied carriage or repositioned the car­ translator stations, and other passive repeat­ sonable rates in those communities where riage of some television stations; ers; t he rules apply; (11) Cable television systems and broadcast (11) The term " qualified non-commercial (3) In order to protect consumers, it is nec­ television stations increasingly compete for educational television station" means any essary for the Congress to establish a means television advertising and audience. A cable television broadcast station which (A) under for local franchising authorit ies and the FCC system has a direct financial interest in pro­ FCC rules is licensed by t he FCC as a non­ to prevent cable operat ors from imposing moting those channels on which it sells ad­ commercial educational t elevision station rates upon consumers that are unreasonable; vertising or owns programming. As a result , and which is owned and operated by a public (4) There is a substantial government al there is an economic incentive for cable sys­ agency or a nonprofit private entity, (B) is and First Amendment interest in promoting tems to deny carriage to local broadcast sig­ owned or operated by a municipality and a diversity of views provided through mul­ nals, or to reposition signals to disadvanta­ transmits only noncommercial programs for tiple technology media: geous channel positions, or both. Absent re­ educational purposes, or (C) has as its li­ (5) The Federal government has a compel­ imposition of must carry and channel posi­ censee an entity which is eligible to receive ling interest in making all nonduplicative tioning requirements, such activity could a community service grant from the Cor­ local public television services available on occur, thereby threatening diversity, eco­ poration for Public Broadcasting pursuant to cable systems because: nomic competition, and the Federal tele- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24613 vision broadcast allocation structure in local vision subscribers have no opportunity to se­ broadcasting is the local origination of pro­ markets across the country; lect between competing cable systems. With­ gramming. There is a substantial govern­ (12) Cable systems provide the most effec­ out the presence of another multichannel mental interest in ensuring its continuation. tive access to television households that sub­ video programming distributor, a cable sys­ (11) Broadcast television stations continue scribe to cable. As a result of the cable oper­ tem faces no local competition. The result is to be an important source of local news and ator's provision of this access and the opera­ undue market power for the cable operator public affairs programming and other local tor's economic incentives to promote chan­ as compared to that of consumers and video broadcast services critical to an informed nels on which it sells advertising or owns programmers. electorate. programming, negotiations between cable (3) There has been a substantial increase in (12) Broadcast television programming is operators and local broadcast stations have the penetration of cable television systems supported by revenues generated from adver­ not been an effective mechanism for securing over the past decade. Nearly 56 million tising broadcast over stations. Such pro­ carriage and channel positioning; households, over 60 percent of the households gramming is otherwise free to those who own (13) Most subscribers to cable television with televisions, subscribe to cable tele­ television sets and do not require cable systems do not or cannot maintain antennas vision, and this percentage is almost certain transmission to receive broadcast signals. to receive broadcast television services, do to increase. As a result of this growth, the There is a substantial governmental interest not have input selector switches to convert cable television industry has become a domi­ in promoting the continued availability of from a cable to antenna reception system, or nant nationwide video medium. such free television programming, especially cannot otherwise receive broadcast tele­ (4) The cable industry has become highly for viewers who are unable to afford other vision services. A government mandate for a concentrated. The effects of such concentra­ means of receiving programming. substantial societal investment in alter­ tion are barriers to entry for new program­ (13) As a result of the growth of cable tele­ native distribution systems for cable sub­ mers and a reduction in the number of media vision, there has been a marked shift in mar­ scribers, such as the "A/B" input selector an­ voices available to consumers. ket share from broadcast television to cable tenna system, is not an enduring or feasible (5) The cable industry has become verti­ television services. method of distribution and is not in the pub­ cally integrated; cable operators and cable (14) Cable television systems and broadcast lic interest; programmers often have common ownership. television stations increasingly compete for (14) At the same time, broadcast program­ As a result, cable operators have the incen­ television advertising revenues. As the pro­ ming has proven to be the most popular pro­ tive and ability to favor their affiliated pro­ portion of households subscribing to cable gramming on cable systems, and a substan­ grammers. This has made it more difficult television increases, proportionately more tial portion of the benefits for which con­ for non-cable-affiliated programmers to se­ advertising revenues will be reallocated from sumers pay cable systems is derived from cure carriage on cable systems. Vertically broadcast to cable television systems. carriage of local broadcast signals. Also, integrated program suppliers also have the (15) A cable television system carries the cable programming placed on channels adja­ incentive and ability to favor their affiliated signal of a local television broadcaster is as­ cent to popular off-the-air signals obtains a cable operators over non-affiliated cable op­ sisting the broadcaster to increase its larger audience than on other channel posi­ erators and programming distributors using viewership, and thereby attract additional tions. Cable systems, therefore, obtain great other technologies. advertising revenues that otherwise might benefits from carriage of local broadcast sig­ (6) There is a substantial governmental be earned by the cable system operator. As a nals which they have been able to obtain and First Amendment interest in promoting result, there is an economic incentive for without the consent of the broadcaster. This a diversity of views provided through mul­ cable systems to terminate the retrans­ has resulted in an effective subsidy of the de­ tiple technology media. mission of the broadcast signal, refuse to velopment of cable systems by local broad­ (7) There is a substantial governmental carry new signals, or reposition a broadcast casters. While at one time, when cable sys­ and First Amendment interest in ensuring signal to a disadvantageous channel posi­ tems did not attempt to compete with local that cable subscribers have access to local tion. There is a substantial likelihood that broadcasters, this subsidy may have been ap­ noncommercial educational stations which absent the reimposition of such a require­ propriate, it is no longer and results in a Congress has authorized, as expressed in sec­ ment, additional local broadcast signals will competitive imbalance between the two in­ tion 396(a)(5) of the Communications Act of be deleted, repositioned, or not carried. dustries. 1934. The distribution of unique noncommer­ (16) As a result of the economic incentive The House amendment does not include a cial, educational programming services ad­ that cable systems have to delete, reposi­ Statement of Policy. vances that interest. tion, or not carry local broadcast signals, The "Definitions" section of the House (8) The Federal Government has a substan­ coupled with the absence of a requirement amendment contains only a definition of tial interest in making all nonduplicative that such systems carry local broadcast sig­ "multichannel video programming distribu­ local public television services available on nals, the economic viability of free local tor". That definition is identical to the Sen­ cable systems because- broadcast television and its ability to origi­ ate definition. The remainder of the defini­ (A) public television provides educational nate quality local programming will be seri­ tions in the House amendment are dispersed and informational programming to the Na­ ously jeopardized. throughout the House amendment. tion's citizens, thereby advancing the Gov­ (17) Consumers who subscribe to cable tele­ Conference agreement ernment's compelling interest in educating vision often do so to obtain local broadcast Findings its citizens; signals which they otherwise would not be The conference agreement combines, with (B) public television is a local community able to receive, or to obtain improved sig­ modification, the findings of the House institution, supported through local tax dol­ nals. Most subscribers to cable television amendment and the Senate bill, many of lars and voluntary citizen contributions in systems do not or cannot maintain antennas which were quite similar. The conferees excess of $10,800,000,000 since 1972, that pro­ to receive broadcast television services, do adopted the following findings: vides public service programming that is re­ not have input selector switches to convert The Congress finds and declares the follow­ sponsive to the needs and interests of the from a cable to antenna reception system, or ing: local community; cannot otherwise receive broadcast tele­ (1) Pursuant to the Cable Communications (C) the Federal Government, in recognition vision services. The regulatory system cre­ Policy Act of 1984, rates for cable television of public television's integral role in serving ated by the Cable Communications Policy services have been deregulated in approxi­ the educational and informational needs of Act of 1984 was premised upon the continued mately 97 percent of all franchises since De­ local communities, has invested more than existence of mandatory carriage obligations cember 29, 1986. Since rate deregulation, $3,000,000,000 in public broadcasting since for cable systems, ensuring that local sta­ monthly rates for the lowest priced basic 1969; and tions would be protected from anticompeti­ cable service have increased by 40 percent or (D) absent carriage requirements there is a tive conduct by cable systems. more for 28 percent of cable television sub­ substantial likelihood that citizens, who (18) Cable television systems often are the scribers. Although the average number of have supported local public television serv­ single most efficient distribution system for basic channels has increased from about 24 ices, will be deprived of those services. television programming. A government man­ to 30, average monthly rates have increased (9) The Federal Government has a substan­ date for a substantial societal investment in by 29 percent during the same period. The tial interest in having cable systems carry alternative distribution systems for cable average monthly cable rate has increased al­ the signals of local commercial television subscribers, such as the "AIB" input selector most three times as much as the Consumer stations because the carriage of such signals antenna system, is not an enduring or fea­ Price Index since rate deregulation. is necessary to serve the goals contained in sible method of distribution and is not in the (2) For a variety of reasons, including local section 307(b) of this Act of providing a fair, public interest. franchising requirements and the extraor­ efficient, and equitable distribution of broad­ (19) At the same time, broadcast program­ dinary expense of constructing more than cast services. ming that is carried remains the most popu­ one cable television system to serve a par­ (10) A primary objective and benefit of our lar programming on cable systems, and a ticular geographic area, most cable tele- Nation's system of regulation of television substantial portion of the benefits for which 24614 CONGRESSIONAL RECORD-HOUSE September 14, 1992 consumers pay cable systems is derived from current rates are unreasonable. The FCC This subsection also directs the Commis­ carriage of the signals of network affiliates, may act only upon the filing of a complaint sion to establish a formula to establish the independent television stations, and public that is filed within a reasonable time after a rate for the installation and lease of equip­ television stations. Also cable programming rate increase and that properly establishes ment for subscribers to receive basic cable placed on channels adjacent to popular off­ that rates are unreasonable. Prior to estab­ service and connections for additional tele­ the-air signals obtains a larger audience lishing reasonable rates, the FCC shall deter­ vision receivers. The Commission shall also than on other channel positions. Cable sys­ mine whether the existing rates can be justi­ establish a formula to identify and allocate tems, therefore, obtain great benefits from fied by reasonable business practices. A rate costs of satisfying franchise requirements to local broadcast signals which, until now, increase can be deemed to result from a support public, educational, and govern­ they have been able to obtain without the change in the service tiers or a change in the mental channels. The Commission shall also consent of the broadcaster or any copyright per channel price paid by subscribers. In de­ adopt other procedures to implement and en­ liability. This has resulted in an effective termining whether rates are unreasonable, force the regulations prescribed under this subsidy of the development of cable systems the FCC shall consider the following factors, subsection. Such procedures shall require a by local broadcasters. While at one time, among others: cable operator to provide 30 days' notice to when cable systems did not attempt to com­ (A) the extent to which service offerings franchising authorities of any increase of pete with local broadcasters for program­ are offered on an unbundled basis; more than five percent in the basic service ming, audience, and advertising, this subsidy (B) the rates for similarly-situated cable rate. may have been appropriate, it is so no longer systems offering comparable services; Under this subsection, subscription to the and results in a competitive imbalance be­ (C) the history of rates for such service of­ basic tier is necessary to receive access to tween the two industries. ferings of the system; any other tier of service. Under the House (20) The Cable Communications Policy Act (D) the rates for all cable programming amendment, the basic tier must contain all of 1984, in its amendments to the Commu­ service offerings taken as a whole; and signals required to be carried under sections nications Act of 1934, limited the regulatory (E) the rates charged for similar service of­ 614 and 615, any public, educational, and gov­ authority of franchising authorities over ferings by cable systems subject to effective ernmental access programming, and any sig­ cable operators. Franchising authorities are competition. nal of any broadcast station provided by the finding it difficult under the current regu­ Section 623(d) presumes that effective com­ cable operator, as well as other video pro­ latory scheme to deny renewals to cable sys­ petition exists when either (1) fewer than 30 gramming signals that the cable operator tems that are not adequately serving cable percent of the households subscribe to the may choose to provide on the basic tier. subscribers. cable system, or (2) when (A) a sufficient This subsection prohibits cable operators (21) Cable systems should be encouraged to number of local television signals exists and from requiring the subscription to any tier carry low power television stations licensed (B) an unaffiliated multichannel video com­ other than the basic tier as a condition of ac- to the communities served by those systems petitor offering comparable service at com­ ' cess to any programming offered on a per where the low power station creates and parable rates if available to a majority of channel or per program basis, except this broadcasts, as a substantial part of its pro­ the homes in the market and is subscribed to prohibition shall not apply to a cable system gramming day, local programming. by individuals in at least 15 percent of the that, because of technical limitations, can­ homes. Statement of policy Under Section 623(e), cable operators must not offer programming on a per channel or The conference agreement adopts the Sen­ offer uniform rates throughout the geo­ per program basis. However, once a cable ate Statement of Policy. graphic area in which they provide cable system's technology is modified to eliminate service. such technical limitation or after five years, Definitions the exception no longer applies. The FCC The conference agreement adopts the Sen­ Section 623(f) allows governmental au­ thorities to prohibit discrimination among shall initiate a proceeding to consider the ate definitions of "activated channels", benefits of this prohibition and may extend "multichannel video programming distribu­ customers of cable service and to require and regulate the installation or rental of equip­ the five-year period for an additional two tor'', and "usable activated channels". Most years. of the remaining definitions have been in­ ment used by hearing-impaired individuals. Section 623(g) defines "cable programming The House amendment also provides that cluded in the relevant sections of the con­ cable operators may identify as a separate ference agreement. Some definitions have services" to include all video programming services, except basic cable service and pre­ line item on each bill the amount assessed as been eliminated entirely. mium or pay-per-view channels, and equip­ a franchise fee, the amount of supporting SECTION 3-REGULATION OF RATES ment used to receive such services. public, educational, or governmental chan­ Senate bill Section 623(h) directs the FCC to adopt nels, any other fee, tax, assessment or Section 5 of the Senate bill amends Sec­ regulations to prevent cable operators from charge. tion 623 of the Communications Act to give evading the rate regulation provisions of this Section 623(c) provides for the regulation the FCC, and in some cases, local authori­ section. of cable progra.mming services other than ties, the power to regulate the rates for cer­ House amendment those on the basic tier and those offered on tain cable services and equipment. Section 3 of the House amendment pro­ a per program or per channel basis. The sub­ Section 623(a) states that governments vides a new Section 623 in the Communica­ section directs the FCC to adopt criteria for may only regulate cable systems to the ex­ tions Act to ensure that consumers have the identifying unreasonable cable programming tent provided in this section. opportunity to purchase basic cable service rates, procedures to handle complaints filed Section 623(b) states that the FCC shall at reasonable rates. by franchising authorities or other state or regulate the rates, terms, and conditions for Section 623(a) provides that no government local government entities, including the basic cable service not subject to effective may regulate cable service except as pro­ minimum showing that complaints must competition, and shall regulate equipment vided under this section. It also expresses a make to establish a prima facie case that the used to receive such service. If fewer than 30 preference for competition and that the rates rate in question is unreasonable, and proce­ percent of subscribers take only the basic for cable service shall not be subject to regu­ dures to reduce rates that the Commission cable tier, then the FCC shall also regulate lation if the cable system is subject to effec­ determines to be unreasonable and to refund the next lowest priced service tier subscribed tive competition. This subjection also sets the portion of the rates paid by subscribers to by at least 30. percent of the system's cus­ forth the procedures by which a franchising after the filing of the complaint. tomers. This subsection also provides that authority may exercise regulatory jurisdic­ In determining the regulations for these the franchising authority may obtain juris­ tion permitted under this section. programming services, the Commission shall diction to regulate cable rates, upon written Section 623(b) provides that the FCC shall, consider, among other factors: (A) the rates request, if it adopts laws and regulations by regulation, establish a formula to estab­ for similarly-situated cable systems; (B) the conforming to FCC procedures. This sub­ lish the maximum price of the basic service rates for comparable cable systems subject section further states that a cable operator tier. The formula shall take into account the to effective competition; (C) the history of has no obligation to put programming other number of signals carried on the basic tier, rates of the cable system; (D) the rates as a than retransmitted local broadcast signals the direct costs of providing the services on whole for all the cable programming, equip­ on its basic service tier. A cable operator the basic tier, a portion of the joint and com­ ment, and services provided by the system; may file for a basic service rate increase, and mon costs properly allocable to providing (E) the capital and operating costs of the such increase shall be granted if it is not such services, a reasonable profit, rates for cable system; (F) the quality and costs of the acted upon within 180 days of the dated of fil­ comparable cable systems that are subject to customer service provided by the cable sys­ ing. effective competition, any franchise fee, tax tem; and (G) the revenues received by a cable Section 623(c) provides that the FCC shall, or charge imposed on cable operators or sub­ operator from advertising. for systems not subject to effective competi­ scribers, and any amount required to satisfy Except for the period before 180 days after tion, establish reasonable rates for "cable franchise requirements to support public, the· effective date of the Commission's regu­ programming services" if it finds that the educational, or governmental channels. lations, complaints may be filed only within September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24615 a reasonable time following a change in Conference agreement sion of the basic service tier" and to sub­ rates. The conference agreement adopts the stitute "consistent with the Commission's Section 623(d), as added by the House House language with the amendments de­ obligations to subscribers" to ensure that amendment, permits state or franchising au­ scribed below: rates are reasonable. The conferees agree thorities to regulate any per-program rates Section 623(b) is amended to state specifi­ that the cable operators are entitled to earn charged by a cable operator for any national cally that the Commission shall, by regula­ a reasonable profit. The changes included in championship game between professional tion, ensure that the rates for the basic serv­ the conference agreement reflect the belief teams in baseball, basketball, football, or ice tier are reasonable, and that the goal of that cable operators' profits should be con­ hockey. such regulations is to protect subscribers of sistent with the goal of ensuring that rates Section 623(e), as added by the House any cable system that is not subject to effec­ to consumers are reasonable. Further, the amendment, permits any Federal agency, tive competition from rates that exceed the changes included in the conference agree­ state or franchising authority to require and rates that would be charged if such cable ment would allow the Commission to exam­ regulate the installation or rental of equip­ system were subject to effective competi­ ine the profit earned by the cable operators ment to facilitate the reception of basic tion. on other cable services as well as the profit cable service by hearing impaired individuals The conference agreement adds a provision earned on the basic cable service tier in de­ and permits such authorities to prohibit dis­ that, in prescribing regulations to ensure termining whether the rates for the basic crimination among customers of basic cable that rates are reasonable, the FCC shall seek service tier are reasonable. The intention of service, except that no such government au­ to reduce the administrative burdens on sub­ this change is, once again, to protect the in­ thority shall prohibit a cable operator from scribers, cable operators, franchising au­ terests of the consumers of basic cable serv­ offering reasonable discounts to senior citi­ thorities, and the Commission. Rather than ice. zens or other economically disadvantaged requiring the Commission to adopt a formula The conferees agreed to the following group discounts. to set a maximum rate for basic cable serv­ changes regarding the regulation of equip­ Section 623(f), as added by the House ice, the conferees agree to allow the Com­ ment: amendment, prohibits a cable operator from mission to adopt formulas or other mecha­ (1) Rather than requiring the Commission charging a subscriber for any individually­ nisms and procedures to carry out this pur­ to adopt a formula to establish the price for priced channel or for any pay-per-view pro­ pose. The purpose of these changes is to give equipment, the Commission is given the au­ gramming that the subscriber has not af­ the Commission the authority to choose the thority to choose the best method of accom­ firmatively requested. best method of ensuring reasonable rates for plishing the goals of this legislation. Section 623(g), as added by the House (2) The "equipment necessary by subscrib­ the basic service tier and to encourage the ers to receive the basic service tier" is re­ amendment, requires cable operators to file Commission to simplify the regulatory proc­ annually such financial information as may placed with "equipment used by subscrib­ ess. ers". This change gives the FCC greater au­ be needed for purposes of administering and The conferees agreed to the following enforcing this section. The Commission shall thority to protect the interests of the changes to the factors to be considered in de­ consumer. submit to Congress a report on the financial termining the regulations for basic service: In determining the costs of franchise re­ condition, profitability, rates, and perform­ (1) The House language concerning the quirements, the conferees agree to replace ance of the cable industry by January 1, 1994. number of signals carried on the basic serv­ the term "formula" with "regulations" and Section 623(h), as added by the House ice tier is not included in the conference "standards" in order to give the Commission amendment, directs the Commission to es­ agreement. the authority to determine the best method tablish by regulation standards, guidelines, (2) The language concerning joint and com­ of accomplishing the purposes of this legisla­ and procedures to prevent evasions of the mon costs is clarified to ensure that joint tion. rates, services, and other requirements of and common costs are recovered in the rates The conference agreement requires cable this section and shall periodically review and of all cable services, not only in the rates for operators to give franchise authorities 30 revise such standards, guidelines, and proce­ basic cable service, as determined by the days' notice of any increase in the rate for dures. Commission. The language is also clarified the basic service tier, rather than limiting Section 623(i), as added by the House to ensure that the direct costs of providing the notice requirements to rate increases of amendment, directs the Commission to de­ non-basic cable services are not considered more than 5 percent. sign such regulations to reduce the adminis­ joint and common costs and are not recov­ The House amendment required that any trative burdens and cost of compliance for ered in the rates charged for basic cable serv­ television broadcast station signal carried by cable systems that have 1,000 or fewer sub­ ice. The conferees do not necessarily intend the cable operator be provided on the basic scribers. that joint and common costs be recovered on tier, including superstations. The conferees Section 623(j), as added by the House a per channel basis. For instance, the Com­ agreed to delete the requirement that super­ amendment, permits a franchising authority mission may determine that the amount of stations be carried on the basic tier. The to regulate rates in accordance with an joint and common costs allocated to the conference agreement allows cable operators agreement made before July 1, 1990 for the basic service tier should be less than the the discretion to decide whether to carry regulation of basic cable service rates. amount that would be allocated on a "per superstations as part of the basic tier or on Section 623(k), as added by the House channel" basis, both because the basic serv­ other tiers. amendment, directs the Commission to pub­ ice tier may contain public, educational, and The House amendment provided an ex­ lish quarterly statistical reports on the aver­ governmental channels or leased access ception to the so-called "anti-buy-through" age rates for basic service and other cable channels and because the Commission may provision for those systems that, due to programming and equipment both for cable decide as a policy matter to keep the rates technical limitations, could not comply with systems that are and are not subject to effec­ for basic cable service as low as possible. The the requirement. The House amendment lim­ tive competition. conferees believe that the basic cable tier ited this exception to five years, but per­ Under section 623(1), as added by the House should not be required to bear a larger por­ mitted the Commission to extend the waiver amendment, "effective competition" means tion of the joint and common costs than for a maximum of two additional years. The (A) fewer than 30 percent of the households what would be allocated on a per channel conference agreement extends this exception in the franchise area subscribe to the cable basis. The regulated, basic tier must not be to ten years. The conference agreement also service of a cable system; (B) the franchise permitted to serve as the base that allows provides that the Commission may grant areas is served by at least two unaffiliated for marginal pricing of unregulated services. waivers of the "anti-buy-through" require­ multichannel video programming distribu­ (3) In addition to considering the revenues ment for as long as the Commission deter­ tors offering comparable video programming received by a cable operator from advertis­ mines is reasonable and appropriate if the to at least 50 percent of the households in ing, the Commission may also consider any Commission determines that compliance the franchise area, and at least 15 percent of other consideration obtained by a cable oper­ with the requirement would require the the households in the franchise area sub­ ator in connection with the basic service cable operator to increase its rates. Because scribe to the smaller of these two systems; tier. This clarification is intended to help to of these changes, the conference agreement or (C) a multichannel video provider oper­ keep the rates for basic cable service low. does not include the requirement that the ated by the franchising authority offers (4) The Commission may consider the "rea­ Commission initiate a proceeding to consider video programming to at least 50 percent of sonably and properly allocable portion" of the costs and benefits of the "anti-buy­ the households in that franchise area. franchise fees, taxes or other charges im­ through" provision. This subsection also defines "cable pro­ posed by state or local authorities. The pur­ The provision in the House amendment re­ gramming service" as any video program­ pose of this clarification, as with the pre­ garding subscriber bill itemization was ming provided over cable except program­ vious two clarifications, is to help keep the moved to a separate section of the bill-Sec­ ming carried on the basic tier and except rates for basic cable service low. tion 14. programming offered on a per channel or per (5) The language concerning "reasonable The conference agreement makes the fol­ program basis. profit" was amended to strike "on the provi- lowing changes to section 623(c) concerning 24616 CONGRESSIONAL RECORD-HOUSE September 14, 1992 the regulation of cable programming serv­ this practice can cause subscribers' rates for formation to process the signal at the cable ices: cable service to increase. The conferees are headend and thus retransmit an enhanced The conference agreement permits sub­ concerned that such retiering may result in signal to subscribers. scribers, as well as franchising authorities or the evasion of the Commission's regulations Subsection (b)(3)(B) requires that cable other relevant State or local government en­ to enforce the bill. The conferees expect the systems carry the entirety of the program tities, to file complaints. The conference Commission to adopt procedures to protect schedule of any television station carried on agreement allows the FCC to establish pro­ consumers from being harmed by any such the cable system, except where FCC rules cedures concerning the minimum showing evasions. In adopting regulations to imple­ governing network non-duplication, syn­ that a complaint must make in order to ob­ ment this subsection, the conferees intend dicated exclusivity, sports programming, or tain Commission consideration and resolu­ that the Commission also adopt regulations similar regulations require the deletion of tion of whether the rate in question is unrea­ to prevent cable operators from evading the specific programs by a cable system and per­ sonable. The requirement that a complaint "anti-buy-through" provision of the bill. mit the substitution of other programs. must demonstrate a "prima facie case" is The conference agreement amends sub­ Subsection (b)(4)(A) provides that the sig­ not included. The intention of the conferees section 623(k) as included in the House nals carried under this section shall be re­ is to allow consumers to simplify the process amendment to require that the Commission transmitted by cable systems without mate­ of filing complaints concerning unreasonable publish statistical reports on average cable rial degradation. The FCC is directed to rates. For instance, it is not the intention of rates annually rather than quarterly. adopt any carriage standards which are need­ the conferees that the FCC's regulations be Finally, the definition of "cable program­ ed to ensure that, so far as is technically fea­ so technical or complicated as to require ming service" is amended to include the in­ sible, cable systems afford off-the-air broad­ subscribers to retain the services of a lawyer stallation or rental of equipment used for cast signals the same quality of signal proc­ to file a complaint and obtain Commission the receipt of such video programming. essing and carriage that they employ for any consideration of the reasonableness of the SECTION 4-CARRIAGE OF LOCAL COMMERCIAL other type of programming carried on the rate in question. TELEVISION SIGNALS AND cable system. The conference agreement makes the fol­ Subsection (b)(4)(B) provides that, when lowing changes to the factors to be consid­ SECTION &-CARRIAGE OF NONCOMMERCIAL the FCC adopts new standards for broadcast ered in establishing criteria for determining EDUCATIONAL TELEVISION television signals, such as the authorization whether a rate for cable programming serv­ Senate bill of broadcast high definition television ice is unreasonable: Section 16 of the Senate bill adds a new (HDTV), it shall conduct a proceeding to (1) The conference agreement allows the section 614 to the Communications Act of make any changes in the signal carriage re­ Commission to consider the rates as a whole 1934. quirements of cable systems needed to en­ for all cable programming, equipment, and Subsection (a) requires each cable operator sure that cable systems will carry television services provided by the cable system, except to carry the signals of local commercial tele­ signals complying with such modified stand­ for the rates for those services offered on a vision stations and qualified low power sta­ ards in accordance with the objectives of this per-program or per-channel basis. tions in accordance with the provisions of section. (2) The conference agreement folds the fac­ this section, except to the extent that sta­ Subsection (b)(5) exempts cable systems tor concerning the quality and costs of cus­ tions elect to exercise their rights to require from the obligation to carry signals that tomer service into the factor concerning cap­ retransmission consent under section 325(b). substantially duplicate the signal of another ital and operating costs. Subsection (b)(l)(A) requires a cable opera­ local commercial television station or from (3) As in the basic rate regulation section, tor with twelve or fewer activated channels having to carry the signal of more than one the Commission is authorized to examine to carry at least three local commerCial tele­ station affiliated with a particular broadcast other consideration, in addition to advertis­ vision stations, except that if such a system network, although the cable system may ing revenues, received by the cable operator has 300 or fewer subscribers it will not be carry such signals if it chooses. If a cable in connection with providing cable program­ subject to any carriage requirements under system chooses to carry duplicating signals ming services. this section provided that the cable system of local commercial television stations, all The provision in section 623(d) of the House does not delete from carriage the signal of such signals shall be counted towards the amendment concerning the regulation of any broadcast station. cable system's carriage obligations under pay-per-view charges for championship Subsection (b)(l)(B) requires cable opera­ this section. sporting events is not included in the con­ tors which have more than 12 usable acti­ Subsection (b)(6) governs the cable system ference agreement. The conference agree­ vated channels to carry the signals of local channel position on which signals carried ment substitutes for this provision the Sen­ commercial television stations on up to one­ pursuant to this section must be placed. Sig­ ate provision on uniform rate structure. third of the number of usable activated chan­ nals carried pursuant to this section will be The language of section 623(f) from the nels on their systems. carried, at the choice of the station's li­ House amendment regarding negative option Subsection (b)(2) provides that, in situa­ censee, on: billing is replaced with the language in Sec­ tions where there are more local commercial (1) the station's on-air channel position; or tion 24 of the Senate bill. The language television stations than a cable operator is (2) the channel on which the station was adopted by the conferees ensures that cable required to carry, the cable operator will carried on the cable system on July 19, 1985; operators will not be able to charge cus­ have the discretion to choose which of the or tomers for tiers or packages of programming local commercial stations it will carry ex­ (3) another channel position mutually services or equipment that they do not af­ cept as follows: agreed upon by the station and the cable op­ firmatively request as well as individually­ (A) A cable operator shall not carry the erator. priced programs or channels. This provision signal of a qualified low power station in­ Subsection (b)(7) provides that the signals is not intended to apply to changes in the stead of the signal of a local commercial sta­ carried under this section shall be provided mix of programming services that are in­ tion; and to every subscriber of a cable system. The cluded in various tiers of cable service. (B) A cable system which chooses to carry signals of all local commercial television The conference agreement amends section an affiliate of a broadcast network (as de­ stations carried under this section shall be 623(g) to require cable operators to file finan­ fined by the FCC) must, if more than one af­ viewable on each television receiver that the cial information with the Commission or the filiate of a network qualifies for carriage, cable operator connects to the cable system franchising authority, as appropriate. The carry the affiliate of that network whose or for which it provides a connector. If the conferees intend that cable operators should city of license reference point is closest to cable operator installs wires for connection file such information as the Commission re­ the principal headend of the cable system. to a television set or provides materials to quires with the franchising authority where Subsection (b)(3)(A) requires that a cable connect a television set to the cable system, the franchising authority is certified to reg­ system retransmit the primary audio and it must ensure that all must-carry signals ulate rates. The Congressional report re­ video signal in its entirety of each local can be viewed on that set. If, however, the quirement of the House amendment is not commercial television station carried on the cable system authorizes subscribers to con­ included in the conference agreement. system, and in addition that, if technically nect additional receivers, but neither pro­ The conference agreement amends section feasible, it also retransmits any program re­ vides the connections nor the equipment or 623(i) to include a reference to evasions that lated material transmitted by the broad­ material needed for such connections, its result from retiering as a specific type of caster on a subcarrier or in the vertical only obligation is to notify subscribers of evasion that the Commission should consider blanking interval. In addition, the cable op­ any broadcast stations carried on the cable in establishing standards, guidelines, and erator is given the option, if a broadcaster system which cannot be viewed via cable procedures to implement the bill. The con­ implements signal enhancement technology without a converter box, and to offer to sell ferees recognize that many cable operators (such as ghost-canceling) which uses infor­ or lease such a converter at reasonable rates. have shifted cable programs out of the basic mation carried in the vertical blanking in­ Subsection (b)(8) requires cable operators service tier into other packages and that terval, to install equipment to use that in- to identify, to any person making a request, September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24617 the signals they carry in fulfillment of their forcement authorities, consumers, or other Subsection (b)(3)(D) requires that cable op­ obligations under this sect ion. private parties of any rights or remedies erators who increased their channel capacity Subsection (b)(9) provides that cable sys­ which they may have under federal or state to more than 36 channels on or after March tems must give written notice to any local laws safeguarding competition or consumer 29, 1990, shall carry the signal of each quali­ commercial television station carried on the interests; nor is it intended to deprive par­ fied local noncommercial educational tele­ system at least 30 days before dropping that ties of any contractual remedies they may vision station requesting carriage subject to station from carriage or repositioning it. A have under agreements between cable opera­ subsection (e). cable system may not drop or reposition any tors and stations. Subsection (c) preserves existing carriage such station during a " sweeps" period when Subsection (e) prohibits the imposition on arrangements for qualified noncommercial ratings services measure local television au­ cable systems of any responsibility either to educat ional television stations carried on diences. This notification provision may not provide subscribers with input selector-so­ cable systems as of March 29, 1990. This re­ be used to undermine or evade the channel called " AJB"-switches or inform subscribers quirement may be waived if agreed to in positioning or carriage requirements im­ of them or other similar devices. writing by both the cable operator and the posed on cable operators by this section. Subsection (f) requires the FCC to conduct station. Subsection (b)(lO) bars cable systems from a rulemaking and issue regulations imple­ Subsection (d) provides that cable opera­ seeking or accepting any consideration, menting the requirements imposed by this tors required to add qualified noncommercial monetary or otherwise, in exchange for car­ section within 180 days after enactment. educational television stations pursuant to riage in fulfillment of a cable system's must­ Subsection (g) requires the FCC to com­ this legislation may do so by placing them carry obligations or for carriage or any of mence an inquiry within 90 days of enact­ on unused public, educational, or govern­ the channel positions guaranteed to stations ment to determine whether broadcast tele­ mental (PEG) channels not in use for their under this section. Three exceptions are pro­ vision stations whose programming consists designated purpose. vided: (1 ) a television station may be re­ predominantly of sales presentations are Subsection (e) provides that cable opera­ quired by the cable system to pay any costs serving the public interest, convenience, and tors with 36 or more channels who are re­ necessary for the cable system to receive a necessity. The FCC must take into consider­ quired to carry three qualified noncommer­ good quality signal from the station; (2) a ation the viewing of such stations, the level cial educational television stations shall not cable operator may accept payments from a of competing demands for the channels allo­ be required to carry the signals of additional local commercial television station carried cated to such stations, and the role of such stations whose programming substantially on the cable system which is a distant signal stations in providing competition to non­ duplicates the programming of a qualified under section 111 of t he Copyright Act in the broadcast services offering similar program­ noncommercial educational television sta­ amount of the incremental copyright ming. In the event that the FCC concludes tion requesting carriage. charges incurred by the cable system from that one or more of such stations are not Subsection (f) provides that a qualified carriage of such a station; and (3) if a cable serving the public interest, convenience, and local noncommercial educational television system and a local commercial television necessity, the Commission shall allow the li­ station whose signal is carried on a cable station entered into an agreement relating censees a reasonable period within which to system shall not assert its network non-du­ to carriage or channel positioning prior to provide different programming and shall not plication rights provided in 47 C.F.R. 76.92. June 26, 1990, the cable system may continue deny such stations a renewal expectancy due Non-duplication rights against stations that to accept any compensation specified in such to their prior programming. are not local are preserved. agreement for the remaining life of the This section of the Senate bill also amends Subsection (g) requires that a cable system agreement. In no event, however, shall such Part II of title VI of the Act to add a new retransmit the primary audio and video sig­ agreement or the expiration of such agree­ section 615. nal in its entirety of each local noncommer­ ment relieve a cable system of any carriage Subsection (a ) requires cable operators to cial educational television station carried, on or channel positioning obligations imposed carry local public broadcast stations. the system, and in addition that, if tech­ under this section. Subsection (b)(l) requires cable systems to nically feasible, it also retransmit any pro­ Subsection (c) provides that, if the number carry all qualified local noncommercial edu­ gram related material transmitted by the of local commercial television stations car­ cational television stations that request car­ broadcaster on a subcarrier or in the vertical ried on a cable system, either pursuant to riage of a cable operator. blanking interval necessary for the receipt the obligations of this section or by agree­ Subsection (b)(2)(A) specifies that a cable of programming by handicapped persons or ment between the cable operator and the sta­ system with 12 or fewer usable activated for educational or language purposes. Cable tion, is less t han the number of usable acti­ channels is only required to carry the signal operators must provide each qualified local vated channels which may be used for local of one qualified local public television sta­ public television stations with bandwidth commercial television station signals under tion, but such operators must comply with and technical capacity equivalent to that this section, the cable operator shall carry subsection (c) and may carry other non­ provided the commercial television broad­ any qualified low power stations up to the commercial television stations at their dis­ cast stations carried on their systems. The maximum number of signals which it may be cretion. signals carried under this section shall be re­ required to carry under this section. Subsection (b)(2)(B) provides that, if there transmitted by cable systems without mate­ Subsection (d) sets forth the procedures to are no qualified local public television sta­ rial degradation. The FCC is directed to be followed when a cable system fails to tions available, and the operator has 12 or adopt any carriage standards which are need­ meet the obligations imposed in this section fewer usable activated channels, such opera­ ed to ensure that, so far as is technically fea­ and the remedies for such failure. If a local tor shall select a qualified noncommercial sible, cable systems afford off-the-air broad­ commercial television stat ion believes that a television station to carry. Such operator cast signals the same quality of signal proc­ cable system is not in compliance with this shall not be required to move any other pro­ essing and carriage that they employ for any section either with respect to carriage or gramming service carried as of March 29, 1990 other type of programming carried on the channel posit ioning, it must so notify the to meet the requirements of this section. cable system. cable system in writing. Within 30 days of Subsection (b)(3)(A) requires an opera t or Subsection (g)(3) requires cable systems to being notified, the cable system must either with 13 to 36 usable activated channels to carry a qualified local noncommercial edu­ rectify the noncompliance or explain in writ­ carry at least one qualified public t elevision cational television station on the channel ing why it believes that it has complied with station, but not more than three such sta­ number on which the station is broadcast the requirements imposed in this section. A tions. over the air, or on the channel on which it television stat ion may seek review of any Subsection (b)(3)(B) states that cable sys­ was carried on July 19, 1985, at the election such response by filing a complaint with the tems with 13 to 36 channels have an obliga­ of the station, or on such other channel num­ FCC. The FCC must provide the cable system t ion to carry at least one qualified non­ ber as is mutually agreed upon. Cable sys­ with an opportunity to respond t o the com­ commercial educational television station if tems must give written notice to any local plaint and t o present data and arguments no such local station is available. noncommercial educational television sta­ that it has not failed to meet its obligations. Subsection (b)(3)(C) provides that cable op­ tion carried on t he system at least 30 days The FCC must issue a decision on the com­ erators wit h 13 t o 36 channels who carry the before dropping t hat stat ion from carriage or plaint within 120 days after it is filed. signal of a qualified noncommercial edu­ repositioning it. If the FCC determines that a cable system cational television station affiliated with a Subsection (g)(4) provides that a cable op­ has not met its obligations with respect to State public television network shall not erator is not required to carry the signal of carriage or channel positioning of one or have to carry the signal of additional quali­ a station that does not deliver to the cable more local commercial television signals, it fied noncommercial educational television system's headend a signal of good quality for shall either order repositioning of a station's stations affiliated with the same network, if purposes of retransmission. signal or order the cable system to carry a the programming of the additional station Subsection (h) requires cable operators to signal for at least one year. This subsection substantially duplicates that of the station ensure signals carried pursuant to this sec­ is not intended to deprive federal or state en- receiving carriage. tion shall be available to every subscriber on 24618 CONGRESSIONAL RECORD-HOUSE September 14, 1992 the system's lowest priced tier that contains Subsection (b)(6) governs the cable system ket to better effectuate the purposes of this local broadcast signals. channel position on which signals carried section. The Senate bill includes a similar Subsection (i)(l) bars cable systems from pursuant to this section must be placed. This provision in Section 4(g), the definition of seeking or accepting any consideration, provision is identical to subsection (b)(6) of local commercial television station. Sub­ monetary or otherwise, in exchange for car­ new Section 614 in the Senate bill with one section (h)(3) of the House amendment also riage in fulfillment of a cable system's must­ exception. The House amendment adds a establishes criteria which the FCC shall con­ carry obligations or for carriage on any of fourth option for channel position for the li­ sider in acting on requests to modify the ge­ the channel positions guaranteed to stations censee to select: the channel on which the ographic area in which stations have signal under this section; provided, however, that local commercial television station was car­ carriage rights. The Senate bill has no com­ local noncommercial educational television ried on January 1, 1992. parable provision. stations may be required by the cable system Subsection (b)(7) of both the House amend­ The House amendment, in section 6, to pay any costs necessary for the cable sys­ ment and the Senate bill provides that th'e amends Part II of title VI of the Communica­ tem to receive a good quality signal from the signals carried under this section shall be tions Act to add a new section 615. This sec­ station. provided to every subscriber of a cable sys­ tion is identical to the new Section 615 in Subsection (i)(2) permits a cable operator tem. The provisions are identical with one section 16 of the Senate bill, except as de­ to accept payments from a local commercial exception. The House amendment provides scribed below. television station carried on its cable system that cable operators must notify subscribers Subsection (d) of the House amendment is where that station is a distant signal under of any broadcast station on the cable system identical to subsection (d) of the Senate bill, section 111 of the Copyright Act in the which cannot be viewed via cable without a with one exception. Subsection (d) provides amount of the incremental copyright converter box, and to offer to sell or lease that cable operators required to add quali­ charges incurred by the cable system from such a converter box to subscribers at rates fied noncommercial educational television carriage of such a station. in accordance with the rate regulation provi­ stations pursuant to this legislation may do Subsection (j) provides that a qualified sions of the House amendment, specifically so by placing them on unused public, edu­ noncommercial television station may file a section 623(b)(l)(B). The Senate bill contains cational, or governmental (PEG) channels complaint with the FCC if the station be­ an identical provision, but requires that con­ not in use for their designated purpose. The lieves that a cable operator is not complying verter boxes can be offered "at reasonable House amendment provides that cable opera­ with the provisions of this section. The FCC rates." tors may do so subject to the approval of the must give cable operators an opportunity to The Senate bill, in subsection (c), provides franchising authority. The Senate bill has no respond and present data, views and argu­ that, if the number of local commercial tele­ comparable approval requirement. ments to refute any allegations contained in vision stations carried on a cable system is Subsection (g)(3) of the House amendment such complaints. The FCC shall resolve any less than the number of usable activated requires cable systems to give written notice complaints pursuant to this section within channels which may be used for local com­ to any local noncommercial educational tel­ 120 days. mercial television stations signals under this evision station carried on the system at Subsection (k) requires cable operators to section, the cable operator shall carry any least 30 days before dropping that station identify, to any person making a request, the qualified low power stations up to the maxi­ from carriage or repositioning it. Subsection signals they carry in fulfillment of their ob­ mum number of signals required. The House (g)(3) of the Senate bill contains a similar ligations under this section. amendment has no equivalent provision. provision. The House amendment defines Subsection (1) defines "qualified local non­ Subsection (e) of the House amendment re­ "repositioning" as (A) assignment to a chan­ commercial television station" as a qualified quires the FCC to conduct a rulemaking and nel number different from the channel num­ noncommercial educational television sta­ issue regulations implementing the require­ ber to which the station was assigned as of tion (A) that is licensed to a community ments imposed by this section within 180 March 29, 1990, and (B) deletion of the station whose reference point, as set forth in 47 days after enactment. The language is iden­ from the cable system. The Senate bill pro­ C.F.R. 76.53 is within 50 miles of the prin­ tical to subsection (f) of the Senate bill. The vides that repositioning includes deletion. cipal headend and (B) whose grade B conto-qr, House amendment also requires that the im­ The House amendment provides that the no­ as defined in 47 C.F.R. 73.683(a) encompasses plementing regulations include necessary re­ tification provisions of this subsection shall the principal headend of the cable system. visions to update Section 76.51 of the Com­ not be used to undermine or evade the chan­ House amendment mission's regulations (47 CFR 76.51). There is nel positioning or carriage requirements im­ Section 5 of the House amendment amends no comparable provision in the Senate bill. posed upon cable operators under this sec­ the Communications Act by adding a new Subsection (f) of the House amendment tion. The Senate bill does not have a com­ section 614 to define the obligations of cable provides that a cable operator is not required parable provision. systems with respect to the carriage of com­ to carry nor prohibited from carrying on any Subsection (1) defines "qualified non­ mercial television stations. Section 5 is iden­ tier the signal of any commercial television commercial educational television station" tical to the new section 614 added by the station or video programming service that is as a television broadcast station which: Senate bill, except as described below. predominantly utilized for the transmission (A)(i) is licensed by the FCC as a non­ Subsection (a) of new section 614 in the of sales presentations or program length commercial educational television broadcast House amendment does not require cable op­ commercials. station and which is owned and operated by erators to carry the signals of qualified low Subsection (g) of the House amendment a public agency, nonprofit foundation, cor­ power stations in addition to the signals of states that nothing in this section shall be poration, or association; and (ii) has as its li­ local commercial television stations. The construed to modify or otherwise affect Title censee an entity which is eligible to receive House amendment makes no exception to the 17 of the United States Code. There is no a community service grant from the Cor­ carriage requirements for stations electing comparable provision in the Senate bill. poration for Public Broadcasting; or (B) is to exercise their retransmission rights. Subsection (h)(l) of the House amendment owned and operated by a municipality and Subsection (b)(2) of the House amendment defines the term "local commercial tele­ transmits predominantly noncommercial and subsection (b)(2) of the Senate bill both vision station" . The definition is similar to programs for educational purposes. provides that, in situations where there are the definition in section 4(g) of the Senate Conference agreement more local commercial television stations bill, which amends Section 602 of the Com­ The conference agreement adopts the than a cable opeator is required to carry, the munications Act to add a new paragraph (20). House provisions with amendments. The con­ cable operator will have the discretion to Subsection (h)(2) of the House amendment ference agreement includes a technical choose which of the local commercial sta­ excludes low power television stations, tele­ amendment to clarify that a "local commer­ tions it will carry. Both the House amend­ vision translator stations and passive repeat­ cial television station" is defined as any tel­ ment and the Senate bill require, however, ers from the definition of local commercial evision broadcast station other than a that where a cable system chooses to carry television station. The Senate bill defines a " qualified noncommercial educational tele­ an affiliate of a broadcast network, if more local commercial television station as a full vision station" within the meaning of sec­ than one affiliate of a network qualifies for power television broadcast station. tion 615(1)(1). carriage, the cable operator must carry the Subsection (h)(3) of the House amendment In addition, the conference agreement in­ affiliate of that network whose city of li­ provides that a broadcasting station's mar­ cludes the provisions of the Senate bill con­ cense reference point is closest to the prin­ ket for purposes of this section shall be de­ cerning carriage of low power television sta­ cipal headend of the cable system. The Sen­ termined as provided for in the FCC's rules, tions with the following amendments. The ate bill adds a second exception by requiring 47 CFR sec. 73.3555(d)(3)(i), except that, fol­ low power provisions of the Senate bill are that a cable operator shall not carry the sig­ lowing written request, the FCC may, with amended to provide that cable systems with nal of a qualified low power station instead respect to a particular television broadcast 35 or fewer channels are required to carry of the signal of a local commercial station. station, include additional communities one qualified low power television station There is no equivalent exception in the within its television market or exclude com­ and cable systems with 36 or more channels House amendment. munities from such station's television mar- are required to carry up to, but not more September 14, 1992 CONGRESSIONAL RECOR~HOUSE 24619 than two qualified low power television sta­ The conferees find that the must-carry and 614 and 615 will not be affected by the exer­ tions. Cable systems that are required to channel positioning provisions in the bill are cise of the right of retransmission consent carry two qualified low power television sta­ the only means to protect the federal system by another station. For example, the FCC tions may carry one of those stations on any of television allocations, and to promote should not permit a station negotiating for unused public, educational or governmental competition in local markets. Other rem­ retransmission rights to contract with a access channel, subject to the approval of edies, such as a compliant based, case-by­ cable system for a channel position to which the franchising authority. case process-so-called "negative must­ another station is entitled under sections 614 The definition of qualified low power sta­ carry"-will not protect these interests. and 615. tions is amended to replace the requirement Such post hoc approaches permit significant In the proceeding implementing retrans­ that low power television stations carry a economic harm to occur before relief is mission consent, the conferees direct the substantial amount of locally originated and granted. By then it is simply too late. Given Commission to consider the impact that the produced programming with a requirement the current economic condition of free, local grant of retransmission consent by tele­ that the Commission determine that the pro­ over-the-air broadcasting, an affirmative vision stations may have on the rates for the vision of programming by a low power sta­ must-carry requirement is the only effective basic service tier and shall ensure that the tion would address the local news and infor­ mechanism to promote the overall public in­ regulations adopted under this section do mation needs of the community to which it terest. not conflict with the Commission's obliga­ is licensed. In addition, low power television In no event shall an agreement concerning tions to ensure that rates for basic cable stations must provide an over-the-air signal channel positioning entered into prior to service are reasonable. of good quality to the cable system's July 1, 1990 or the expiration of such agree­ The principles that underlie the compul­ headend. The Commission shall determine ment relieve a cable operator of any carriage sory copyright license of section 111 of the what constitutes a good quality signal for or channel positioning obligations imposed copyright law (18 U.S.C. 111) are undisturbed purposes of this subsection. under this new section 614. by this legislation, but the conferees recog­ The Senate bill is amended to limit car­ SECTION 6-RETRANSMISSION CONSENT FOR nize that the environment in which the com­ riage of low power stations to cable systems CABLE SYSTEMS pulsory copyright operates may change be­ serving communities (1) which are in coun­ Senate bill cause of the authority granted broadcasters ties in which there is no full power station by section 325(b)(l). licensed, and (2) which are located outside This section amends section 325 of the Act by adding a new subsection (b). Cable systems carrying the signals of the top 160 Metropolitan Statistical Areas. One year after the date of enactment no broadcast stations, whether pursuant to an Moreover, the low power station's commu­ cable system or other multichannel video agreement with the station or pursuant to nity of license must have a population of programming distributor shall retransmit the provisions of new sections 614 and 615 of 35,000 or less to qualify for mandatory car­ the signal of a broadcasting station or any the Communications Act, will continue to riage. The conferees believe that, in commu­ part thereof without the express authority of have the authority to retransmit the pro­ nities in which residents have limited access the originating station, except as permitted grams carried on those signals under the sec­ to the signals of full power stations provid­ by section 614. tion 111 compulsory license. The conferees ing local news and information, the public The Commission will conduct a rule­ emphasize that nothing in this bill is in­ interest in receiving local news and informa­ making proceeding to establish rules con­ tended to abrogate or alter existing program tion warrants carriage of such low power sta­ cerning the exercise of stations' rights of licensing agreements between broadcasters tions. mandatory carriage under sections 614 . This Under the conference agreement. cable op­ and program suppliers, or to limit the terms rulemaking proceeding is to commence with­ of existing or future licensing agreements. erators are not required to carry the signal in 45 days after enactment and to be com­ of any commercial television station or SECTION 7-AWARD OF FRANCHISES; PROMOTION pleted within six months. OF COMPETITION video programming service that is predomi­ In such rules, the Commission shall require nantly utilized for the transmission of sales each television station to elect, within one Senate bill presentations or program length commer­ year after enactment, whether to exercise Section 20 of the Senate bill amends Sec­ cials pending the conclusion of a required the authority to grant or withhold retrans­ tion 621(a)(l) of the Communications Act of new FCC proceeding regarding broadcast tel­ mission consent under this section or the 1934 to add a new provision which prohibits evision stations that are predominantly uti­ rights of signal carriage guaranteed by sec­ franchising authorities from unreasonably lized for the transmission of sales presen­ tions 614 of the Act. In situations where refusing to award additional franchises. Any tations or program length commercials. there are competing cable systems serving applicant for a franchise whose application The conference agreement requires the one geographic area, a broadcaster must has been denied may appeal such decision FCC to complete a proceeding within 270 make the same election with respect to all pursuant to Section 635 of the Act. days of enactment to determine, notwith­ such competing cable systems. Section 21 of the Senate bill amends Sec­ standing prior proceedings, whether broad­ This subsection makes clear that stations tion 621(a) to add a new provision requiring cast television stations that are predomi­ which elect to require retransmission con­ franchising authorities to give a competing nantly utilized for the transmission of sales sent from a cable system will not have signal cable operator a reasonable amount of time presentations or program length commer­ carriage rights under sections 614 or 615 on to build its system and provide service to the cials are serving the public interest, conven­ that cable system for the duration of the sta­ entire geographic area. ience, and necessity. tions' election. Section 33 of the Senate bill provides that The conference agreement requires the By the same token, the election of certain the Act does not prohibit a franchising au­ Commission, in conducting such proceeding, stations to negotiate with cable systems for thority or its affiliate from operating as a to provide appropriate notice and oppor­ retransmission consent will not have any ef­ multichannel video distributor within the tunity for public comment. The Commission fect on the rights of other stations to obtain franchising authority's jurisdiction, even also is required to consider the viewing of signal carriage under section 614. where the franchising authority has granted such stations, the level of competing de­ House amendment a franchise to one or more multichannel mands for the spectrum allocated to such video distributors. This provision also states stations, and the role of such stations in pro­ No provision. Conference agreement that nothing in the Communications Act of viding competition to nonbroadcast services 1934 requires a local or municipal authority offering similar programming. The conference agreement adopts the Sen­ to secure a franchise to operate as a multi­ If the Commission concludes that one or ate provision. The conferees believe that a channel video program distributor. more of such stations are serving the public broadcaster that elects to exercise its rights interest, convenience, and necessity, the to carriage and channel positioning under House amendment conference agreement requires the Commis­ sections 614 does so with the expectation Section 4 of the House amendment is simi­ sion to qualify such stations as local com­ that it will in fact be carried by the cable lar to Section 20 of the Senate bill, but in­ mercial television stations for purposes of system. In the event that the cable system cludes five examples of circumstances under must-carry. If the Commission concludes elects not to carry such a signal in fulfill­ which it is reasonable for a franchising au­ that one or more of such stations are not ment of its obligations under section 614, for thority to deny a franchise: serving the public interest, convenience, and example, because it already has carried technical infeasibility; necessity, the conference agreement requires enough local broadcast stations to fill one­ failure of the applicant to assure that it the Commission to allow the licensees of third of its channel capacity, the conferees will provide adequate public, educational such stations a reasonable period within intend that the broadcaster be permitted to and governmental access channel capacity, which to provide different programming, and reassert its right to require consent before facilities or financial support; shall not deny such stations a renewal ex­ carriage by the cable system under other failure of the applicant to assure that it pectancy solely because their programming conditions. • will provide universal service throughout the consisted predominantly of sales presen­ The conference agreement provides that franchise area within a reasonable period of tations or program length commercials. the rights granted to stations under sections time; 24620 CONGRESSIONAL RECORD-HOUSE September 14, 1992 the award would interfere with the ability and the customer (including standards gov­ to programming directed at persons of mi­ of the franchising authority to deny renewal erning bills and refunds). nority groups, and which is more than 50 per­ of a franchise; and Section 632(c) makes it clear that nothing cent minority-owned as the term "minority" failure to demonstrate financial, technical in Title VI is intended to interfere with the is defined in 47 U.S.C. 309(i)(3)(C)(ii). For the or legal qualifications. authority of a state or local governmental purposes of this subsection, the term "mi­ In addition, the House amendment speci­ body to enact and enforce consumer protec­ nority programming sources" is not intended fies that nothing in this provision limits the tion laws, to the extent that the exercise of to include television broadcast stations. ability of franchising authorities to assess such authority is not specifically preempted A qualified educational programming franchise fees or taxes for access to public by the Title. Subsection (c) also provides source is defined as a programming source rights of way. that franchising authorities and cable opera­ that devotes significantly all of its program­ Section 4(b) of the House amendment is tors are permitted to agree to customer serv­ ming to educational or instructional pro­ identical to section 33 of the Senate bill, per­ ice requirements, even if those requirements gramming of such a nature that it promotes mitting municipal authorities to operate may result in the establishment and enforce­ public understanding of mathematics, the cable systems. ment of customer service standards more sciences, the humanities, and the arts and Conference agreement stringent than the standards established by has a documented annual expenditure on The conferees adopt the Senate prov1s10n the FCC under section 632(b). Finally, this programming exceeding $15 million. Pro­ on award of franchises. The conferees believe subsection preserves local authority to es­ gramming expenditures include all annual that exclusive franchises are directly con­ tablish and enforce any municipal law or costs incurred by the channel originator to trary to federal policy and to the purposes of regulation, or any state law, concerning cus­ produce or acquire programs that are sched­ S. 12, which is intended to promote the de­ tomer service requirements that are more uled to appear on air, and specifically ex­ velopment of competition. Exclusive fran­ stringent than, or address matters not ad­ clude marketing, promotion, satellite trans­ chises artificially protect the cable operator dressed by. the standards established by the mission and operational costs, and general from competition. Moreover, at the time FCC under section 632(b). administrative costs. most of the exclusive franchises were award­ Conference agreement Conference agreement ed, local authorities had the power to regu­ The conference agreement adopts the The conference agreement adopts the Sen­ late the rates for basic cable service. How­ House provision. ate provision with an amendment to require ever, the 1984 Cable Act repealed local au­ SECTION !}-LEASED COMMERCIAL ACCESS the Commission to develop procedures for thorities' ability to regulate rates. Senate bill the expedited resolution of disputes concern­ The conference agreement adopts Section The Senate bill amends section 612 of the ing rates or carriage under this section. The 21 of the Senate bill on franchise require­ conference agreement also amends the Sen­ ments with amendments. The conference Communications Act. Subsection 612(a) is amended by adding a new clause that pro­ ate provision to permit cable operators to agreement adds the provisions from Section carry qualified educational programming 4 of the House amendment that specify that vides that among the purposes of this section is "to promote competition in the delivery of sources, as well as minority programming franchising authorities may require appli­ sources, on up to 33 percent of the cable sys­ cants for cable franchises to provide ade­ diverse sources of video programming". Subsection (b) of this section amends sec­ tem's leased access channels and to adopt quate assurance that they will provide ade­ the definition of qualified educational pro­ quate public access, educational and govern­ tion 612(c) of the Act to require the FCC to establish the maximum reasonable rate and gramming source contained in the House mental channels, and may require adequate amendment. assurance that the cable operator is finan­ reasonable terms and conditions for use of cially, technically and legally qualified to these commercial access channels and for SECTION H>---CHILDREN'S PROTECTION FROM IN­ operate a cable system. the billing of rates to subscribers, and for DECENT PROGRAMMING ON LEASED ACCESS The conference agreement adopts the the collection of revenue from subscribers by CHANNELS House provisions permitting municipal au­ the cable operator for such use. Senate bill thorities to operate cable systems. Subsection (d) creates a new section 612(i) which permits a cable operator to provide Section 27 of the Senate bill amends Sec­ SECTION &-CONSUMER PROTECTION AND programming from a qualified minority pro­ tion 612(h) of the Communications Act to CUSTOMER SERVICE gramming source or sources on up to 33 per­ permit a cable operator to enforce a written Senate bill cent of the cable system's leased access and published policy of prohibiting program­ The Senate bill amends section 632 of the channels. Programming that was provided ming on leased access channels that the Communications Act of 1934 to require that over a cable system on July 1, 1990 may not cable operator reasonably believes to be in­ the FCC adopt customer service standards. qualify as minority programming under this decent. Section 612 is further amended to re­ The Senate bill also permits franchising au­ subsection. quire the Commission to promulgate regula­ tions designed to limit the access of children thorities to enforce laws or regulations con­ House amendment cerning customer service that impose stand­ to indecent programming on leased access Section 18 of the House amendment channels. ards that exceed those adopted by the FCC, amends section 612(c) of the Communications and grandfathers any standards in existence Section 28 of the Senate bill requires the Act and requires the Commission, within 180 Commission to promulgate regulations to on the date of enactment. days after the date of enactment of this leg­ The Senate bill further requires the FCC, enable a cable operator to prohibit the use of islation, to establish, by regulation, (1) a for­ any public, educational, or governmental ac­ within 180 days, to adopt customer service mula to determine the maximum rates a standards, gives the franchising authorities cess facility for any obscene programming. cable operator may charge for commercial Section 29 of the Senate bill amends Sec­ the power to enforce the FCC standards, and use of channel capacity by persons not affili­ permits a cable operator to file a complaint tion 638 of the Communications Act to im­ ated with the cable operator; (2) standards pose liability on cable operators for obscene with the FCC if the operator believes that concerning the terms and conditions for such customer service standards adopted by a programming carried by the cable operator use; (3) standards concerning methods for on any channel designated for public, edu­ franchising authority are not in the public collection and billing for commercial use of interest. cational, or governmental use. such channel capacity; and (4) procedures for House amendment House amendment the expedited resolution of disputes concern­ Section 7 of the House amendment amends ing rates or carriage under this section. No provisions. section 632 of the Communications Act. Sec­ Section 15(b) contains a further amend­ Conference agreement tion 632(a) allows franchising authorities to ment to section 612 of the Communications The conference agreement adopts the Sen­ establish and enforce, as part of a franchise, Act and adds a new subsection (i). Under new ate provisions. or franchise renewal, modification or trans­ section 612(i) a cable operator would be per­ mitted to provide programming from a quali­ SECTION 11-LIMITATIONS ON OWNERSHIP, fer, customer service requirements, con­ CONTROL, AND UTILIZATION struction schedules and other construction­ fied minority or educational programming related requirements. source or sources on up to 33 percent of the Senate bill Section 632(b) requires the FCC, within 180 cable system's leased access channels. Pro­ The Senate bill amends 613(f) of the Com­ days of enactment, to establish federal cus­ gramming that already is being provided munications Act as follows: tomer service standards which may be re­ over a cable system on July 1, 1990 shall not Subsection (f)(l) requires the FCC to estab­ quired in local cable franchises and enforced qualify as minority or educational program­ lish reasonable limits on (A) the number of by local franchising authorities. Such stand­ ming for the purpose of this subsection. A cable subscribers that any one cable operator ards shall include, at a minimum, cable sys­ qualified minority programming source is may serve through cable systems owned by tems office hours and telephone availability, defined as a programming source that de­ the operator or in which the operator has an installations, outages and service calls, and votes a "Significant amount of its program­ attributable interest; and (B) the number of communications between the cable operator ming to coverage of minority viewpoints, or channels that can be occupied by a program- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24621 mer that is owned by a cable operator or in DBS systems operating in the United States state or political subdivision of a state, or which the operator has an attributable inter­ at this time, it would be premature to re­ any franchising authority, or any sale, as­ est. quire the adoption of limitations now. How­ signment, or transfer, to one or more pur­ Subsection (f)(2) requires that the FCC, in ever, the conferees expect the Commission to chasers, assignees, or transferees controlled establishing reasonable limitations pursuant exercise its existing authority to adopt such by, controlling, or under common control to subsection (0(1), shall, among other pub­ limitations should it be determined that with, the seller, assignor, or transferrer. lic interest objectives: such limitations would serve the public in­ Subsection (d) empowers the Commission, (A) Ensure cable operators, alone or in a terest. consistent with the public interest, to waive group, do not impede the flow of video pro­ SECTION 12-REGULATION OF CARRIAGE the requirements of subsection (a), except gramming to the consumer; AGREEMENTS that, if a franchise requires franchise author­ (B) Ensure cable operators do not favor ity approval of transfers, the Commission their own programming or unreasonably re­ Senate bill shall not waive such requirements unless the strict the flow of such programming to other The Senate bill requires the FCC to adopt franchise authority has approved such trans­ video distributors; regulations, within one year of enactment, fer. (C) Take particular account of the market governing program carriage agreements be­ Subsection (e) limits the time within structure, ownership patterns, or other rela­ tween cable operators and video program­ which a franchising authority has to dis­ tionships of the cable industry, including the mers. The regulations shall: approve a transfer. After the initial 36- nature and market power of the local fran­ (1) prohibit a cable operator or other mul­ month period following the sale or transfer chise, the joint ownership of cable systems tichannel video distributor from requiring a of ownership of a cable system, if the fran­ and video programmers, and the various financial interest in a programmer as a con­ chise requires franchising authority approval types of non-equity controlling interests; dition of carriage; of a sale or transfer, a franchising authority (D) Take account of any efficiencies and (2) prohibit a cable operator or other mul­ has 120 days to act upon any request for ap­ other benefits gained through integration; tichannel video distributor from coercing a proval of such sale or transfer that contains (E) Ensure its rules reflect the dynamic na­ programmer to provide exclusive rights as a or is accompanied by such information as is ture of the communications marketplace; condition of carriage; required in accordance with Commission reg­ (F) Not impose barriers to service in rural (3) prevent a multichannel video program­ ulations. If the franchising authority fails to areas that do not now have service; and ming distributor from interfering with the render a final decision on the request within (G) Not impose limitations which would ability of an unaffiliated video programmer 120 days, the request shall be deemed grant­ impair the development of diverse and high to compete by discriminating in video dis­ ed, unless the requesting party and the fran­ quality video programming. tribution on the basis of affiliation or non­ chising authority agree to an extension of affiliation in the selection, terms and condi­ time. The Senate bill amends Section 613(a) of The 120-day limitation does not apply to the Communications Act of 1934 by adding a tions of carriage; (4) provide for expedited review of any any request for approval of a cable sale or new paragraph (2) which prohibits a cable op­ transfer subject to this section. The 120-day erator from owning a multichannel complaints brought pursuant to this provi­ sion; limitation also would not apply to requests multipoint distribution system (MMDS) or a for approval of sales or transfers submitted satellite master antenna television service (5) provide for appropriate penalties and remedies for violations of this section and prior to adoption of the FCC regulations, (SMATV) in the same areas in which it holds given that such requests, by definition, could a franchise for a cable system. clarifying that one of the remedies available to the FCC is to require carriage of the pro­ not include the information required to acti­ Paragraph (2)(A) grandfathers all existing vate the 120-day limit. MMDS and SMA TV systems owned by cable gram service; and systems on the date of enactment. (6) provide for the assessment of penalties Conference agreement Paragraph (2)(B) gives the FCC the author­ against persons filing frivolous complaints The conference agreement adopts the ity to grant waivers of the provision where it pursuant to this section. House amendment, as a new section 617 of is necessary to ensure that residents in the House amendment the Communications Act of 1934, with an cable community receive the cable opera­ amendment clarifying that the Commission The provisions of the House amendment shall use its waiver authority to permit ap­ tor's programming. are virtually identical to those of the Senate The legislation amends Section 613(c) by propriate transfers in cases of default, fore­ bill. However, the prohibitions of the House closure or other financial distress. adding a new subsection (c)(2) which provides amendment apply not only to cable opera­ that, if ten percent of the households in the tors, but also to other multichannel video SECTION 14-SUBSCRIBER BILL ITEMIZATION U.S. with television sets subscribe to multi­ programming distributors. Also, under the Senate bill channel programming services provided via House amendment, the · FCC would be re­ Section 23 of the Senate bill amends Sec­ satellite (regardless of frequency band) di­ quired to implement regulations to prevent a tion 622(c) of the Communications Act to rectly to home satellite antennae, the FCC cable operator or other multichannel video permit each cable operator to identify, in ac­ shall promulgate appropriate regulations (A) provider from retaliating against a video cordance with standards prescribed by the limiting ownership of any distributor of such programming vendor for failing to provide Commission, as a separate line item on each direct to home satellite service by cable op­ exclusive rights to programming. bill of each subscriber: (1) the amount of the erators and other persons having media in­ Conference agreement total bill assessed as a franchise fee and the terests, and (B) requiring access to such identity of the franchising authority to service by programmers not owned or con­ The conference agreement adopts the pro­ which the fee is paid; (2) the amount of the trolled by any distributor of such service. visions of the House amendment. total bill assessed to satisfy any require­ House amendment SECTION 13-SALES OF CABLE SYSTEMS ments imposed on the cable operator to sup­ Section 2l(a)(l)(A) requires the FCC to con­ Senate bill port public, educational or governmental duct a study to determine whether it is nec­ No provision. channels; and (3) the amount of any other tax, fee, assessment or other charge imposed essary or appropriate in the public interest House amendment to impose limitations on the extent to which by any governmental authority on the trans­ a multichannel video programming distribu­ The House amendment adds a new section action between the operator and the sub­ tor may engage in the creation or production to Title VI. Subsection (a) prohibits a cable scriber. of such programming. Section 2l(a)(l)(B) re­ operator from selling or otherwise transfer­ House amendment quires the FCC to impose limitations on the ring ownership in a cable system within a 36- The House amendment contains a virtually proportion of the market, at any stage in the month period following either the acquisi­ identical provision. distribution of video programming, which tion or initial construction of such system, Conference agreement may be controlled by a single multichannel except as provided in this section. Subsection (b) states that in the case of a The conference agreement adopts the Sen­ video programming distributor or other per­ ate provision with an amendment clarifying son engaged in such distribution. sale of multiple systems, if the terms of sale require the buyer subsequently to transfer that itemization of subscribers' bills under Conterence agreement ownership of one or more such systems to this section must be done in a manner con­ The conference agreement adopts the Sen­ one or more third parties, such transfers sistent with the regulations prescribed by ate provisions with an amendment to include shall be considered part of the initial trans­ the Commission pursuant to Section 623 of section 2l(a)(l)(A) of the House amendment action. the Communications Act of 1934. and to delete Section 9(b) of the Senate bill Subsection (c) exempts any transfer of SECTION 15-NOTICE TO CABLE SUBSCRIBERS ON which requires the FCC to adopt cross-own­ ownership interest in any cable system that UNSOLICITED SEXUALLY EXPLICIT PROGRAMS ership restrictions for DBS systems and limi­ is not subject to Federal income tax liability Senate bill tations on vertical integration of DBS sys­ and any sale required by operation of any Section 26 of the Senate bill requires a tems. In view of the fact that there are no law or any act of any Federal agency, any cable operator who provides a premium 24622 CONGRESSIONAL RECORD-HOUSE September 14, 1992 channel without charge to any cable sub­ between the franchising authority and the to promulgate regulations concerning the scriber who does not subscribe to such pre­ cable operator to impose on the cable opera­ use of remote control devices. Such regula­ mium channel to, not later than 60 days be­ tor technical standards more stringent than tions shall require a cable operator who of­ fore such premium channel is provided with­ the Commission's standards. fers subscribers the option of renting a re­ out charge: (1) notify all cable subscribers Subsection (b) requires the Commission to mote control unit to: (1) notify subscribers that the cable operator plans to provide a prescribe, and cable operators to comply that they may purchase a commercially premium channel, without charge; (2) notify with, standards to ensure that viewers of available remote control device from any all cable subscribers of the date(s) on which video programming on cable systems are af­ source that sells such devices; and (2) specify the cable operator plans to provide a pre­ forded the same emergency information as is the types of remote control units that are mium channel without charge; (3) notify all afforded by the emergency broadcasting sys­ compatible with the converter box supplied subscribers that they have a right to request tem (EBS) pursuant to Commission regula­ by the cable operator. that the channel carrying the premium tions in subpart G of part 73, title 47, Code of Subsection (h) requires the Commission, channel be blocked; and (4) block the pre­ Federal Regulations. within 180 days after the date of enactment mium channel upon the request of a sub­ Subsection (c) authorizes a franchising au­ of this section, to report to the Congress on scriber. Under this section, the term "pre­ thority to require a cable operator to do one means of assuring compatibility between mium channel" is defined as any pay service or more of the following: (1) provide 30 days' televisions and VCRs and cable systems. offered on a per channel or per program basis advance written notice of any change in Such report shall be prepared by the Com­ that offers movies rated by the Motion Pic­ channel assignment or in the video program­ mission in consultation with representatives ture Association of America as X, NC-17 ming service provided over any such channel; of the cable and consumer electronics indus­ or R. (2) inform subscribers in writing that com­ tries. Subsection (i) requires the Commission to issue such regulations as may be nec­ House amendment ments on programming and channel position changes are being recorded by the franchis­ essary to assure the compatibility interface The House amendment contains a virtually ing authority. required under Subsection (h). identical provision that substitutes 30 days The House amendment, in Section 15, con­ House amendment for 60 days for the notification. tains a home wiring provision identical to Section 9 of the House amendment amends Conference agreement the Senate bill. the Communications Act of 1934 by adding a The conference agreement adopts the Conference agreement new section 624A. Subsection (a) enumerates House provision. The conference agreement adopts the the findings made by Congress concerning SECTION 16-TECHNICAL STANDARDS; EMER- House provisions. consumer electronics equipment compatibil­ GENCY ANNOUNCEMENTS; PROGRAMMING SECTION 17-CONSUMER ELECTRONICS ity. CHANGES; HOME WIRING COMPATIBILITY Subsection (b) directs the Commission, within one year after the enactment of this Senate bill Senate bill section, in consultation with representatives The Senate bill amends section 624(e) of The Senate bill amends the Communica­ of the consumer electronics and cable indus­ the Communications Act to: tions Act by adding a new Section 624A. Sub­ tries, to report to the Congress on the means (1) require that within one year after the section (b) enumerates findings made by of assuring compatibility between tele­ date of enactment, the FCC shall establish Congress concerning consumer electronics visions and VCRs and cable systems, consist­ minimum technical standards to ensure ade­ equipment compatibility. Subsection (c) de­ ent with the need to prevent theft of cable quate signal quality; fines terms used in this new section. service, so that cable subscribers will be able (2) permit the FCC to establish standards Subsection (d) prohibits scrambling or to enjoy the full benefits of both the pro­ for technical operation of cable systems and encryption of local broadcast signals, except gramming available on cable systems and for any other video signals, including high where necessary to prevent substantial theft the functions available on their televisions definition television (HDTV); of cable service, but permits scrambling and and VCRs. Within two years after the date of (3) give the FCC authority to require com­ encryption where the use of such tech­ enactment of this section, the Commission pliance with and to enforce the technical nologies does not interfere with the func­ shall issue such regulations as may be nec­ standards; tions of cable subscribers' televisions or vid­ essary to require the use of interfaces that (4) require the FCC to establish procedures eocassette recorders (VCRs). Under this sub­ assure such compatibility. for complaints asserting violations of the section, the Commission is required, within Subsection (c) directs the Commission, technical standards against cable operators, 180 days after the date of enactment of this within one year after the date of submission except that this section does not preclude subsection, to issue regulations under which of the report required in subsection (b), to other remedies permitted under the fran­ a cable operator may, if necessary to protect prescribe regulations necessary to increase chise agreement or Federal or State law; and against theft of cable service, scramble or compatibility between television receivers (5) preempt the establishment of any tech­ encrypt local broadcast signals. The Com­ equipped with premium functions and fea­ nical standards other than those adopted by mission is required periodically to review tures, VCRs, and cable systems. In prescrib­ the FCC. and modify such regulations. ing such regulations, the Commission shall The Senate bill adds a new subsection at Subsection (e) requires the Commission, consider: (1) the costs and benefits of requir­ the end of section 624 of the Communications within 180 days after the date of enactment, ing cable operators to adhere to technical Act of 1934, which requires that, within 120 to promulgate regulations requiring a cable standards for scrambling or encryption of days after the date of enactment, the FCC operator offering any channels the reception video programming in a manner that will shall prescribe rules concerning the disposi­ of which requires a converter box to: (1) no­ minimize interference with or nullification tion of cable-installed wires within the home tify subscribers that such converter box may of the special functions of subscribers' tele­ when the subscriber terminates service. interfere with the enjoyment of certain func­ vision or VCRs, while providing effective tions of their televisions or VCRs; (2) offer protection against theft or unauthorized re­ House amendment new and current subscribers who do not re­ ception of cable service, including functions Subsection (a) of Section 11 of the House ceive or do not wish to receive channels that that permit the subscriber (a) to watch a amendment amends subsection 624(e) of the require a converter box for reception the op­ program on one channel while simulta­ Communications Act and requires the FCC, tion of having cable service installed or re­ neously using a video cassette recorder to within one year after enactment, to adopt installed by direct connection to the sub­ tape a program on another channel or (b) to minimum technical and signal quality stand­ scriber's television or VCR, without passing use a video cassette recorder to tape two ards for the operation of cable systems which through a converter box; and (3) offer sub­ consecutive programs that appear on dif­ may be required and enforced by franchising scribers who receive or wish to receive chan­ ferent channels or (c) to use advanced tele­ authorities as part of a local franchise (in­ nels that require the use of a converter box vision picture generation and display fea­ cluding a modification, renewal or transfer the option of having their cable service in­ tures; (2) the potential for achieving econo­ thereof pursuant to the provisions of Title stalled or reinstalled, so that those channels mies of scale by requiring manufacturers to VI). This subsection also requires the FCC to that do not require a converter box for recep­ incorporate technologies to achieve such adopt national standards and to update peri­ tion are delivered to the subscribers' tele­ compatibility in all television receivers; (3) odically its technical standards to reflect visions or VCRs without passing through a the costs and benefits to consumers of im­ improvements in technology. converter box. posing compatibility requirements on cable Subsection (a) also allows franchising au­ Subsection (f) requires that any charges operators and television manufacturers; and thorities to petition the FCC for a waiver to for installing or reinstalling cable service (4) the need for cable operators to protect permit the imposition of technical standards pursuant to subsection (e) be subject to the the integrity of their signals against theft or more stringent than those prescribed by the rate regulation provisions under section to protect such signals against unauthorized FCC under this subsection. In considering re­ 623(b)(l). reception. quests for such waivers, the Commission Subsection (g) requires the Commission, Subsection (c) further requires the Com­ may consider the existence of an agreement within 180 days after the date of enactment, mission to prescribe regulations necessary: September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24623 (1) to establish the technical requirements television manufacturers in a manner that, cable operator has substantially complied that permit a television receiver or video while providing effective protection against with the material terms of the existing fran­ cassette recorder to be sold as "cable ready"; theft or unauthorized reception of cable serv­ chise and with applicable law throughout the (2) to establish procedures by which manu­ ice, will minimize interference with or nul­ franchise term; facturers may certify television receivers lification of the special functions of sub­ (d) allow the franchising authority to con­ that comply with the technical requirements scribers' television receivers or VCRs; and (2) sider the level of service provided over the established under this subsection in a man­ the need for cable operators to protect the system throughout the franchise term; ner that, at the point of sale, is easily under­ integrity of the signals transmitted by the (e) permit a franchising authority to deny stood by potential purchasers of such receiv­ cable operator against theft or to protect a renewal if the cable operator has had no­ ers; (3) to provide appropriate penalties for such signals against unauthorized reception. tice and an opportunity to cure its failure to willful misrepresentation concerning such Section 624A(c)(2)(A) requires the Commis­ comply substantially with the franchise certifications; (4) to promote the commercial sion, in prescribing regulations under this agreement, unless the franchising authority availability, from cable operators and retail section, to include such regulations as are has waived its right to object in writing; vendors that are not affiliated with cable necessary to specify the technical require­ (f) clarify that franchising authorities systems, of converters and remote control ments with which a television receiver or should be held responsible for non-compli­ devices compatible with converters; (5) to re­ video cassette recorder must comply in order ance with the renewal provisions only where quire a cable operator who offers subscribers to be sold as "cable compatible" or "cable a failure to comply actually prejudiced the the option of renting a remote control (i) to ready". The purpose of this paragraph is to cable operator; and notify subscribers that they may purchase a make clear what standards need to be met, (g) provide that any lawful action to re­ commercially available remote control from consistent with and in conformity to the voke a cable operator's franchise for cause any source that sells such devices rather compatibility regulations issued pursuant to shall not be negated by the initiation of re­ than renting it from the cable operator and subsection (b)(l), in order for televisions or newal proceedings by the cable operator. (ii) to specify the types of remote controls VCRs to be sold as cable ready or cable com­ House amendment that are compatible with the converter box patible. The conferees would encourage the No provision. development of voluntary efforts by the supplied by the cable operator; and (6) to Conference agreement prohibit a cable operator from taking any cable industry and the manufacturers of action that prevents or in any way disables televisions and VCRs to meet the technical The conference agreement adopts the Sen­ the converter box supplied by the cable oper­ requirements referred to in this paragraph. ate provision with the following amend­ ator from operating compatibly with the Section 624A(c)(2)(B) directs the Commis­ ments: Subsection (a) is amended to require sion to require cable operators offering chan­ that if a cable operator seeks the initiation commercially available remote control of a renewal proceeding pursuant to this sec­ units. nels whose reception requires a converter Subsection (d) requires the Commission to box to notify subscribers that they may be tion, the franchising authority must com­ unable to benefit from the special functions mence that process within six months of the review periodically and, if necessary, to date that the cable operator submits its re­ modify the regulations established under of their television receivers and VCRs. Under this subsection, cable operators also would quest. This amendment is intended to pro­ this section in light of any actions taken in vide the cable operator with the opportunity response to regulations issued under sub­ be required, to the extent technically and economically feasible, to offer subscribers to initiate the renewal process but give the section (c) and to reflect improvements and franchising authority a full six months, after changes in cable systems, television receiv­ the option of having all other channels deliv­ ered directly to the subscribers' television the cable operator submits its request, to ers, VCRs, and similar technology. take those actions required by this Section. Subsection (e) directs the Commission to receivers or VCRs without passing through The conferees have deleted sections ll(c) adopt standards under this section that are the converter box. Section 624A(c) further requires the Com­ and ll(d)(2) of the Senate bill which provide technologically and economically feasible, that a franchising authority has the right to taking into account the cost and benefit to mission to prescribe regulations necessary: (1) to promote the commercial availability, consider the quality of service provided by cable subscribers and purchasers of tele­ the cable operator throughout the franchise vision receivers of such standards. from cable operators and retail vendors that term. The conferees believe that franchising Conference agreement are not affiliated with cable systems, of con­ authorities have the duty and authority now verters and remote control devices compat­ to consider the quality of the cable opera­ The conference agreement adopts the ible with converters; (2) to require a cable House amendment with amendments. Sec­ tor's service throughout the franchise term. operator who offers subscribers the option of This provision was removed out of concern tion 624A(a) is amended to include the find­ renting a remote control to notify subscrib­ ings contained in the House amendment. that it would be applied where a new cable Section 624A(b)(l) directs the Commission, ers that they may purchase commercially operator acquires a franchise from the opera­ within one year after the date of enactment available remote control devices from any tor who initially entered into the franchise of this section, in consultation with rep­ source that sells such devices rather than agreement during the pendency of the fran­ resentatives of the consumer electronics and renting them from the cable operator and to chise period. As the franchising authority cable industries, to report to the Congress on specify the types of remote controls that are has the power to approve such a transfer, it means of assuring compatibility between compatible with the converter box supplied should address any deficiencies in the service cable systems and both televisions and by the cable operator; and (3) to prohibit a of the original franchisee at the time of the VCRs, consistent with the need to prevent cable operator from taking any action that transfer. theft of cable service, so that cable subscrib­ prevents or in any way disables the con­ The conference agreement also amends ers will be able to enjoy the full benefit of verter box supplied by the cable operator subsection (f) of the Senate provision by re­ both the programming available on cable from operating compatibly with the com­ placing "and such failure to comply actually systems and the functions available on their mercially available remote control units. prejudiced the cable operator" with "other Section 624A(d) requires the Commission to than harmless error" . This change clarifies television and VCRs. The Commission is fur­ review periodically and, if necessary, modify ther directed to issue, within 180 days after that it is the intent of the conferees that the regulations issued pursuant to this sec­ minor infractions or deviations from the re­ the date of submission of the report required tion in light of any actions taken in response under this section, such regulations as are quirements of this section by a franchising to such regulations and to reflect improve­ authority shall not be grounds for relief pur­ necessary to assure such compatibility. ments and changes in cable systems, tele­ Section 624A(b)(2) requires the Commis­ suant to the provision of this subsection. vision receivers, VCRs and similar tech­ Finally, the conference agreement adopts sion, in issuing the regulations required by nology. section (b)(l), to determine whether and, if the language in subsection (g) of the Senate so, under what circumstances to permit SECTION 18-FRANCHISE RENEWAL provision. cable systems to scramble or encrypt signals Senate bill SECTION 19-DEVELOPMENT OF COMPETITION or to restrict cable systems in the manner in Section 11 of the Senate bill amends sec­ AND DIVERSITY IN VIDEO PROGRAMMING DIS­ which they encrypt or scramble signals, ex­ tion 626 of the Act to: TRIBUTION cept that the Commission shall not limit the (a) clarify that a franchising authority is Senate bill use of such technology where the use of such not required to commence the formal re­ The Senate bill bars national and regional technology does not interfere with the func­ newal process during the 6 months beginning cable programmers who are affiliated with tions of subscribers' television receivers or on the 36th month before the expiration of cable operators from (1) unreasonably refus­ VCRs. the franchise; ing to deal with any multichannel video pro­ Section 624A(c)(l) requires the Commis­ (b) provide that the formal renewal process gramming distributor; and (2) discriminating sion, in prescribing the regulations required can start on the date that the cable operator in the price, terms, and conditions in the by this section, to consider: (1 ) the costs and submits its renewal proposal; sale of their programming to multichannel benefits to consumers of imposing compat­ (c) allow the franchising authority to con­ video distributors if such action would im­ ibility requirements on cable operators and sider in renewal proceedings whether t he pede retail competition. 24624 CONGRESSIONAL RECORD-HOUSE September 14, 1992

National and regional programmers affili­ channel video programming distribution SECTION 20---CUSTOMER PRIVACY RIGHTS ated with cable operators are required by the markets, the effect on competition from Senate bill Senate bill to offer their programming to multichannel video programming distribu­ Section 25 of the Senate bill amends sec­ buying groups on terms similar to those of­ tion technologies other than cable, the effect tion 631(c)(l) of the Act to require cable oper­ fered to cable operators. However, reasonable on the ability to attract capital investment ators to ensure that persons, other than the cost-related conditions and certain other in new satellite cable programming, the ef­ subscriber to the cable system and the cable reasonable requirements can be imposed. fect on the diversity of programming in the operator, do not have access to personally­ The Senate bill also requires any program­ multichannel video programming distribu­ mer who scrambles sate111te cable program­ identifiable information about the sub­ tion market, and the duration of the exclu­ scriber. ming for private viewing to make that pro­ sive contract. The House amendment's provi­ gramming available for private viewing by sions limiting exclusive contracts in areas House amendment C-band home sate111te dish owners. served by cable operators expire in 10 years. Section 8 of the House amendment rede­ Under the Senate bill, a satellite carrier Exclusive contracts for satellite cable pro­ fines the terms "cable operator" and "other that provides service pursuant to the provi­ gramming that were entered into on or be­ service" to ensure that new communications sions of the Home Sate111te Viewers Rights fore June 1, 1990 for geographic areas not services provided by cable operators are cov­ Act, 17 U.S.C. Section 119, shall not (1) un­ served by cable operators are grandfathered ered by the privacy protections embodied in reasonably refuse to deal with any distribu­ under the House amendment. section 631 of the Communications Act. tor of video programming who provides serv­ The requirements imposed by this section The term "other service" is defined to in­ ice to home satellite dish subscribers who do not apply to the signals of the broadcast clude any wire or radio communications meet the requirements of the Home Satellite affiliates of the national television networks service provided using any of the facilities of Viewers Right Act, or (2) discriminate in that are retransmitted by sate111te, nor do a cable operator that are used in the provi­ price, terms and conditions of the sale of they apply to internal satellite communica­ sion of cable services. programming among the distributors to tions of any broadcast or cable network. The term "cable operator" is defined so as home sate111te dish owners qualified under Furthermore, the requirements of the House to include, in addition to those persons with­ the Home Satellite Viewers Rights Act or be­ amendment do not require those distributing in the definition of cable operator in section tween such distributors and other multi­ programming regionally or nationally to 602 of the Communications Act, any person channel video distributors. make that programming available in any who is owned or controlled by or under com­ The Senate bi11 directs the FCC to pre­ area beyond which it has been authorized or mon ownership or control with, a cable oper­ scribe rules to implement this section, in­ licensed for distribution. ator, and provides any wire or radio commu­ cluding rules for expedited review of com­ Under the House amendment, any multi­ nications service. plaints made pursuant to this section. This channel video programming distributor ag­ Conference agreement section does not apply to television broad­ grieved by conduct that it alleges violates cast signals retransmitted by satellite. The conference agreement includes both this section or the FCC's implementing regu­ the Senate and the House provisions. The House amendment lations may begin an adjudicatory proceed­ provisions in the House amendment and the The House amendment makes it unlawful ing at the FCC. The FCC shall provide for an Senate bill amend different subsections of for a cable operator or sate111te cable pro­ expedited review of complaints made pursu­ Section 631 of the Communications Act of gramming vendor affiliated with a cable op­ ant to this section and shall order appro­ 1934. erator to engage in unfair methods of com­ priate remedies. The Senate provision amends Section petition or unfair or deceptive acts or prac­ Conference agreement. 631(c)(l) to require that cable operators pre­ tices, the purpose or effect of which is to The conference agreement adopts the vent unauthorized access of personally-iden­ hinder significantly or prevent any multi­ House provisions, with amendments. The tifiable information. It is not intended to channel video programming distributor from conference agreement clarifies that pro­ prevent local franchising authorities or the providing sate111te cable programming to gramming distributed by satellite broadcast Commission from acquiring such informa­ subscribers or consumers. The FCC is re­ programming vendors (fixed service satellite tion as may be necessary to carry out its ob­ quired to promulgate regulations to imple­ carriers) is covered by this section. Satellite ligations in compliance with the provisions ment this section. broadcast programming vendors are to be of the Communications Act of 1934. At a minimum, the regulations must pre­ held to the same standards as the program­ SECTION 21-THEFT OF CABLE SERVICE vent a cable operator affiliated with a sat­ ming vendors to whom this section applies. ellite cable programming vendor from un­ Under the conference agreement, the limi­ Senate bill duly or improperly influencing the vendor's tations on exclusive contracts and other ar­ No provision. decision to sell, or the price, terms, and con­ rangements regarding programming distrib­ House amendment ditions of sale of, programming to any unaf­ uted within an area served by a cable opera­ Section 20 of the House amendment filiated multichannel video programming tor shall expire after 10 years, except that amends section 633(b) of the Communica­ distributor. The regulations also must pro­ the FCC may extend the limitation if it de­ tions Act and brings into conformity pen­ hibit a satellite cable programming vendor termines that such limitations are necessary alties and remedies for theft of cable service affiliated with a cable operator from dis­ to preserve and protect competition and di­ with those for theft of satellite signals. criminating in the price, terms, and condi­ versity in the distribution of video program­ Conference agreement tions in the sale or delivery of programming ming. For purposes of this section, the con­ to cable operators, other multichannel video ferees intend that an area "served" by a The Conference adopts the House provi­ programming distributors, and their buying cable system be defined as an area actually sion. agents. However, such a vendor may impose passed by a cable system and which can be SECTION 22-EQUAL EMPLOYMENT OPPORTUNITY reasonable cost-related and other reasonable connected for a standard connection fee. Senate bill requirements and may grant reasonable vol­ In lieu of permitting volume discounts, the No provision. ume discounts. conference agreement amends the House pro­ With regard to areas not passed by a cable vision regarding discrimination by satellite House amendment system, the regulations required by the cable programming vendors affiliated with The House amendment amends section House amendment prohibit exclusive con­ cable operators to permit such vendors to es­ 634(d)(l) of the Communications Act to re­ tracts and other arrangements between a tablish different prices, terms and conditions quire the Commission, within 270 days after cable operator and a vendor which prevent a which take into account economies of scale, the date of enactment of this legislation, to multichannel video programming distributor cost savings, or other direct and economic adopt revisions in its rules that may be nec­ from obtaining programming from a sate111te benefits reasonably attributable to the num­ essary to implement the amendments made cable programming vendor affiliated with a ber of subscribers served by the distributor. to section 634. cable operator. In adopting rules under this section, the Section 634(d)(3) is amended to require With regard to areas served by cable opera­ conferees expect the Commission to address cable operators, in their annual statistical tors, the FCC's regulations must prohibit ex­ and resolve the problems of unreasonable reports, to identify by race, sex, and job title clusive contracts for satellite cable program­ cable industry practices, including restrict­ the number of employees within each job ming between a cable operator and a sat­ ing the availability of programming and category. The reports shall be made on sepa­ ellite cable programming vendor affiliated charging discriminatory prices to non-cable rate forms, provided by the FCC, for full­ with a cable interest, unless the FCC deter­ technologies. The conferees intend that the time and part-time employees. mines such a contract is in the public inter­ Commission shall encourage arrangements Section 634(d)(3) also expands from nine to est. In determining whether such an exclu­ which promote the development of new tech­ fifteen the job categories for which employee sive contract is in the public interest, the nologies providing facilities-based competi­ information is required, by prescribing six FCC shall consider the effect of the contract tion to cable and extending programming to new job categories-Corporate Officers, Gen­ on competition in local and national multi- areas not served by cable. eral Manager, Chief Technician, Comptrol- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24625 ler, General Sales Manager, and Production specific prescribed program of practices de­ Subsection (h) provides that State and Manager. signed to ensure the development of equality local governments may establish or enforce The FCC is required to prescribe the meth­ of employment opportunity and to promote equal employment opportunity standards od by which entities are required to compute the hiring of a workforce that reflects the di­ consistent with this section, including re­ and report the number of minorities and versity of the entity's community. This pro­ quirements which impose more stringent women in the job categories above, with the gram shall include: defining and monitoring standards that are provided under this title. exception of the office and clerical, skilled managerial and supervisory performance of Subsection (h) also authorizes State and craftspersons, semiskilled operatives, un­ equal employment opportunity goals; in­ local authorities to establish or enforce re­ skilled laborers, and service workers cat­ forming employees, employee organizations, quirements for conducting business with mi­ egories, and the number of minorities and and sources of qualified applicants of the en­ nority or locally-operated enterprises. women in all the job categories above in pro­ tity's equal employment opportunity policy; Conference agreement portion to the total number of qualified mi­ and monitoring the entity's job structure The agreement of the conferees adopts the norities and women in the relevant labor and employment practices in order to elimi­ House amendment as it applies to cable sys­ market. The report is required to include in­ nate discrimination and to ensure equal op­ tems. For television licensees and permit­ formation on hiring, promotion, and recruit­ portunity throughout its organizational ment practices that the FCC will need to tees, the conference agreement codifies the units, occupations, and levels of responsibil­ Commission's equal employment oppor­ evaluate the compliance of entities with this ity. section. The report will be available for pub­ tunity rules, 47 C.F.R. 73.2080. It is the intent Subsection (d) requires the Commission, of the conferees that this statutory provision lic inspection at the entity's central location within two years of the effective date of this and at every location where five or more be applied in the same manner as were the title, following notice and an opportunity to existing rules on September 9, 1992. full-time employees are regularly assigned comment, to establish prescribed rules to en­ The agreement of the conferees also incor­ to work. This subsection does not prohibit force and effectuate the requirements of this porates into the Communications Act the the FCC from collecting or continuing to Section. FCC's forms, FCC Form 39&-B annual em­ collect statistical or other employment in­ The rules adopted under subsection (d) ployment report and the FCC Form 396 formation to implement this section. may be amended from time to time by the Broadcast Equal Opportunity Program Re­ Section 634(!)(2) is amended to increase the Commission. Such rules shall specify, among forfeiture penalty for violations of Section port, for television broadcast stations. It is other things, the terms under which covered the intent of the conferees that both of these 634 from $200 to $500 for each violation. entities must: disseminate information con­ reports continue to be filed with the FCC by Section 634(h)(l) is amended to extend the cerning their equal opportunity programs to requirements of this section to not only television broadcast licensees and permittees applicants, employees, and others; encourage in the same manner, with the same format cable and satellite master antenna television job referrals from minority and women's or­ operators, but to any multichannel video and content and same terms and conditions ganizations or other similar potential as in effect on September 1, 1992. programming distributor. sources of minority and female applicants; Subsection (f) requires the Commission, The agreement of the conferees creates an within 240 days after the date of enactment compare their employment profiles and FCC Mass Media Bureau of mid-license term of this legislation, and after opportunity for workforce turnover against the availability review of television broadcast stations' public discussion, to submit to Congress a of women and minorities in their service workforce employment profiles. It is the in­ comprehensive report on the effectiveness of areas; undertake to offer promotions of mi­ tent of the conferees that the Commission's its procedures, regulations, policies, stand­ norities and women to positions of greater Mass Media Bureau staff compare the ards and guidelines governing the EEO per­ responsibility; conduct business with minor­ workforce data submitted in the first two formance of the broadcast industry. The ity and female entrepreneurs; and analyze Forms 395 to be filed following the grant of Commission is expected to evaluate the ef­ the results of their equal opportunity pro­ a license renewal with the station's area fectiveness of its "best efforts" policy and grams. labor force, utilizing as the geographic area all aspects of its EEO enforcement. The Subsection (d) also requires an employ­ for comparison that which the Commission Commission is directed to evaluate the effec­ ment unit with more than 5 full-time em­ staff would customarily use for such pur­ tiveness of its policies in promoting: (1) ployees to file with the Commission, and poses (MSA or county), and applying the equal employment opportunities; (2) oppor­ make available to the public, an annual sta­ FCC EEO processing guidelines in effect on tunities for promotion; and (3) the policy of tistical report profiling the race and sex of September 1, 1992. This review is not in­ Congress favoring increased employment op­ its employees in all full-time and part-time tended to establish and shall not be consid­ portunities for women and minorities in job categories. ered or utilized in any manner as establish­ upper management positions. The report required by subsection (d) must ing a quota for the employment of members The House amendment creates a new Sec­ also state the number of job openings that of any societal group. If this staff level re­ tion 617, modeled on the cable EEO industry occurred during the year and must either view suggests that improvement in the sta­ provisions set forth in Section 634, which certify that the openings were filled in ac­ tion's recruitment practices appears nec­ codifies and strengthens the Commission's cordance with the entity's EEO program (re­ essary, a staff letter shall be sent to the sta­ existing equal employment opportunity reg­ quired by subsection (c)) or provide the rea­ tion licensee so indicating. This letter is not ulations for broadcast television stations. sons for not filling those openings in accord­ and is not to be treated for any purpose as a Section 617 requires the Commission to cer­ ance with the program. Commission sanction of the station's EEO tify annually that an employment unit or Subsection (e) requires the Commission to practices. "entity," whether a licensee for a television certify annually that licensees and other en­ The conference agreement also gives the station eligible for carriage under Section tities are in compliance with prescribed EEO Commission the authority to make technical 614 or 615, or an entity engaged primarily in standards. and/or clerical revisions as necessary to re­ the management or operation of any such li­ Subsection (f) requires the Commission to spond to changes in technology, terminology censee, is in compliance with prescribed EEO establish procedures for the enforcement of and Commission organization. standards. An entity will be in violation of this Section, including the investigation of SECTION 23-JUDICIAL REVIEW those standards, and subject to penalties complaints of violations for this Section Senate bill under this section, where it does not provide brought by employees, applicants for em­ Section 17 of the Senate bill amends sec­ equal opportunity for women and minorities. ployment, and other interested persons. Pur­ tion 635 of the Communications Act of 1934 Section 617(a) defines which entities are suant to its rules, the Commission may in­ by adding at the end a new subsection (c)(l) subject to this section's application, and in­ vestigate such complaints and enforce the that provides that any civil action challeng­ cludes both individual licensees and the com­ requirements of the Section, or may refer ing the constitutionality of new sections 614 panies or other entities that are primarily such complaints to any other appropriate or 615 shall be heard by a district court of engaged in their management or operation. Federal agency. three judges convened pursuant to the provi­ Section 617 applies to "entities" (including Subsection (g) authorizes the Commission sions of section 24 of title 28, U.S. Code. New corporations, partnerships, associations, to impose a forfeiture penalty of $200 per day subsection (c)(2) states that an interlocutory joint-stock companies, or trusts) but not to for each violation of the requirements of this or final judgment, decree, or order of the individual persons, that manage or operate Section. This subsection further provides court of three judges under paragraph (10 licensees. that a licensee or entity shall not· be liable holding sections 614 or 615 unconstitutional Subsection (b) sets forth the requirement for more than 180 days of forfeiture accruing shall be reviewable as a matter of right by that each entity afford equal opportunity in prior to notification by the Commission of a direct appeal to the Supreme Court. potential violation. employment, and prohibits discrimination House amendment on the basis of race, color, religion, national Subsection (g) also authorizes the FCC to No provision. origin, age, or sex. condition, suspend, or revoke any license of Subsection (c) requires each employment any person found liable for forfeiture penalty Conterence agreement unit to establish, maintain, and execute a under this section. The conferees adopt the Senate provision. 24626 CONGRESSIONAL RECORD-HOUSE September 14, 1992 SECTION 24-LIMITATION OF FRANCHISING ming that avoids conflict of interest and edi­ shall consider the non-profit character of the AUTHORITY LIABILITY torial control, programming funding sources, programming provider and any Federal funds Senate bill and what are reasonable prices, terms, and used to support the programming such as Section 13 of the Senate bill amends part conditions. programming funded by the Corporation for ill of title VI of the Communications Act of House amendment Public Broadcasting or other Federal agen­ 1934 to include a new section 628 which ex­ Section 21{a)(3) of the House amendment cies. Prices to such national educational pro­ empts local franchising authorities from li­ requires the Commission to initiate a rule­ gramming. suppliers cannot exceed 50 percent ability for damages (except for attorneys' making proceeding, within 180 days, to im­ of the total direct costs of making a channel fees and legal costs) in cases where the fran­ pose public interest or other requirements on available. Direct costs exclude marketing chising authorities are charged with violat­ any DBS provider that is not regulated as a costs, general administrative costs and simi­ ing a cable operator's First Amendment common carrier. Such regulations shall, at a lar overhead as well as any costs associated rights arising from actions authorized or re­ minimum, apply the access to broadcast with a lost opportunity for commercial prof­ quired by title VI of the Communications time requirement of section 312(a)(7) of the it. Act of 1934. This provision does not apply to Communications act and the use of facilities . SECTION 2&-SPORTS PROGRAMMING MIGRATION cases where a franchising authority has been requirements of section 315 of such Act to STUDY AND REPORT found by a final order of a court of binding DBS systems. The proceeding shall also ex­ Senate bill jurisdiction to have violated a cable opera­ amine regulations by which DBS systems No provision. can further the principle of localism. tor's First Amendment rights and repeats or House amendment continues the violation. Subsection (a)(4) directs the Commission to require DBS providers to reserve between Section 21(b) of the House amendment re­ House amendment four and seven percent of their channel ca­ quires the Commission to study carriage of Section 17(a) of the House amendment pacity exclusively for noncommercial public local, regional, and national sports program­ amends part IV of title VI of the Commu­ service uses. The DBS provider may recover ming by broadcast stations and cable pro­ nications Act of 1934 to include a new section only the direct costs of transmitting such gramming networks and pay-per-view serv­ 635A. Subsection (a) exempts local franchis­ public service programming. The House ices. The study shall investigate and ana­ ing authorities from liability for damages in amendment includes a similar provision to lyze, on a sport-by-sport basis, trends regard­ cases arising from regulation of cable service establish a study panel as the Senate bill, ing the migration of such programming from or from a decision of approval or disapproval but does not direct the panel to examine carriage by broadcast stations to carriage with respect to a grant, renewal, transfer, or what constitute reasonable prices, terms, over cable programming networks and pay­ amendment of a franchise. Subsection (b) and conditions for the provision of satellite per-view systems, including the economic creates an exception to the exemption for li­ space for public use channels. the House causes and the economic and social con­ ability set forth in subsection (a) for actions amendment defines "public service uses" to sequences of such trends. This subsection already determined by a final order of a include (i) programming produced by public further requires the Commission, on or be­ court of binding jurisdiction, no longer sub­ telecommunications entities, including inde­ fore July 1, 1993 and July 1, 1994, to submit ject to appeal, to be in violation of a cable pendent production services; {ii) program­ an interim and final report, respectively, on operators rights. ming produced for educational, instruc­ the results of such study to the House Cam­ Subsection (c) clarifies that this section tional, or cultural purposes; and (iii) pro­ mi ttee on Energy and Commerce and the does not limit the relief authorized with re­ gramming produced by any entity to serve Senate Committee on Commerce, Science, spect to any claim against a franchising au­ the disparate needs of specific communities and Transportation. Such reports shall in­ thority which involves discrimination on the of interest, including linguistically, distinct clude a statement of the results, on a sport­ basis of race, color, sex, age, religion, na­ groups, minority and ethnic groups, and by-sport basis, of the analysis of the trends tional origin, or handicap. other groups. evaluated by the Commission and any appro­ Subsection (d) clarifies that this section Conference agreement priate legislative or regulatory recommenda­ does not create or authorize liability of any The conference agreement adopts the tions. kind, under any law, for any action or failure Subsection (b)(3) requires the Commission, to act relating to cable service or the grant­ House amendment with amendments. The purpose of this section is to define the obli­ in conducting the study required by Sub­ ing of a franchise by any franchising author­ section (b)(4), to analyze the extent to which ity. gation of direct broadcast satellite service providers to provide a minimum level of edu­ preclusive contracts between college athletic Section 17(b) of the House amendment is a conferences and video programming vendors conforming amendment. cational programming. The four to seven percent reserve gives the Commission the have artificially and unfairly restricted the Conference agreement flexibility to determine the amount of capac­ supply of sporting events of local colleges for The Conference agreement adopts the ity to be allotted. The pricing structure was broadcast on local television stations. Sub­ House provision. devised to enable national educational pro­ section (b)(3) directs the Commission, in con­ ducting such analysis, to consult with the SECTION 2&-DIRECT BROADCAST SATELLITE gramming suppliers to utilize this reserved channel capacity. Attorney General to determine whether, and SERVICE OBLIGATIONS to what extent, such preclusive contracts are Senate bill Subsection (b){l) mandates that the Com­ mission require, as a condition of any provi­ prohibited by existing statutes. Under this Section 22 of the Senate bill directs the sion, initial authorization, or renewal, of a subsection the Commission is directed to in­ Commission, within one year after enact­ DBS system providing video programming, clude in the reports required under Sub­ ment, to submit to Congress a report analyz­ that the provider of such service reserve not section (b)(2) the results of the analysis re­ ing the need for and most appropriate public less than four percent or more than seven quired under Subsection (b)(3) along with interest obligations to be imposed upon di­ percent of the channel capacity of such serv­ any legislative recommendations the Com­ rect broadcast satellite services in addition ice exclusively for noncommercial public mission considers necessary and appropriate. to those required below. The Commission is service uses. The conferees intend that the Under this subsection, the term "pre­ directed to require any DBS provider to re­ Commission consider the total channel ca­ clusive contract" is defined to include any serve between four and seven percent of its pacity of a DBS system in establishing res­ contract that prohibits: (1) the live broad­ channel capacity exclusively for nondupli­ ervation requirements. Accordingly, the cast of a sporting event of a local college cated, non-commercial, educational, and in­ Commission may determine to subject DBS team that is not carried, on a live basis, by formational programming. In complying systems with relatively large total channel any cable system within the local commu­ with this requirement, a DBS provider shall capacity to a greater reservation require­ nity served by such local television station; lease its capacity to national educational ment than systems with relatively less total or (2) the delayed broadcast by a local tele­ programming suppliers on reasonable prices, capacity. vision station of a sporting event of a local terms, and conditions, and shall not exercise Subsection (b)(2) permits a provider of such college team that is not carried, on a live or any editorial control over this programming. service to use any unused channel capacity delayed basis, by any cable system within This section also establishes a study panel, designated pursuant to this subsection until the local community served by such local comprised of representatives of the Corpora­ the use of such channel capacity is obtained television station. tion for Public Broadcasting, the National for public service use. Conference agreement Telecommunications and Information Ad­ Subsection (b)(3) requires that a DBS pro­ The conference agreement adopts the ministration, and the Office of Technology vider make this channel capacity available House provision. Assessment. This study panel shall submit a to national educational program suppliers at report to Congress within two years after en­ reasonable prices, terms and conditions as SECTION 27-APPLICABILITY OF ANTITRUST LAWS actment containing recommendations on determined by the Commission. Senate bill ways to promote the development of such Subsection (b)(4) provides that, in deter­ The Senate bill, in Section 31, provides programming, methods of selecting program- mining reasonable prices, the Commission that nothing in this Act shall be construed September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24627 to alter or restrict in any manner the appli­ systems, DBS systems, and multipoint dis­ JOHN D. DINGELL, cability of any Federal or State antitrust tribution services. EDWARD J. MARKEY, law. Subsection (b) amends section 310(b) of the BILLY TAUZIN, House amendment Communications Act and provides that no DENNIS E. ECKART, cable system in the U.S. shall be owned or THOMAS J. MANTON, The House amendment, in Section 22, in­ otherwise controlled by any alien, represent­ cludes a similar provision that states that RALPH M. HALL, ative, or corporation as described in section CLAUDE HARRIS, nothing in the Act shall be construed to cre­ 310(b) of the Communications Act. Sub­ ate any immunity to any civil or criminal Provided that Mr. Ritter is appointed in section (b) also provides that no such. alien, place of Mr. Fields for consideration of so action under any Federal or state antitrust representative, or corporation shall be re­ law, or to alter or restrict in any manner the much of section 16 of the Senate bill as quired to sell or dispose of any ownership in­ would add a new section 614(g) to the Com­ applicability of any Federal or state anti­ terest held or contracted for on June l, 1990 trust law. munications Act of 1934 and so much of sec­ and that no such alien, representative, or tion 5 of the House amendment as would add Conference agreement corporation that owns, has contracted on or a new section 614(f) to the Communications The conference agreement adopts the Sen­ before June l, 1990 to acquire ownership, or Act of 1934. otherwise controls two or more cable sys­ ate provision, with a technical amendment Managers on the part of the House. to conform the title of the section to be "Ap­ tems shall be prohibited from acquiring own­ plicability of Antitrust Laws." It is the in­ ership or control of additional cable systems ERNEST F. HOLLINGS, tent of the conferees that the term "anti­ if the total number of households passed by DANIEL K. INOUYE, trust law" as used in this section include all the cable systems that such alien, rep­ WENDELL FORD, Federal and state unfair competition laws. resentative, or corporation would, as a result JOHN C. DANFORTH, of such acquisition, own or control does not Managers on the Part of the Senate. SECTION 28-EFFECTIVE DATE exceed 2,000,000. Senate bill Subsection (b) defines, for purposes of such The Senate bill provides that, except as restrictions, broadcast station licenses to in­ otherwise specified in the legislation, the re­ clude licenses or authorizations for: (1) cable APPOINTMENT AS MEMBERS OF quirements of the legislation shall be effec­ auxiliary relay services; (2) multipoint dis­ JOINT COMMITTEE ON ORGANI­ tive 60 days after the date of enactment. tribution services; (3) DBS services; and (4) ZATION OF THE CONGRESS other services with licensed facilities that House amendment may be devoted substantially toward provid­ The SPEAKER pro tempore laid be­ The House amendment contains a similar ing programming or other information serv­ fore the House the following commu­ provision. ices within the editorial control of the li­ nication from the Republican leader: Conference agreemf!nt censee. HOUSE OF REPRESENTATIVES, The conference agreement adopts the Conference agreement Washington, DC, August 10, 1992. House provision. The conference agreement adopts the Sen­ Hon. THOMAS s. FOLEY .. REQUIREMENT FOR CERTAIN EQUIPMENT ON ate position. Speaker of the House, House of Representatives, TELEVISION SETS EXPANSION OF THE RURAL EXEMPTION TO THE Washington, DC. Senate bill CABLE TELEVISION CROSSOWNERSHIP PROHIBI­ DEAR MR. SPEAKER: Pursuant to Section TION l(a)(2)(B) of H. Con. Res. 192, I hereby ap­ Section 12 of the Senate bill gives the FCC Senate bill point the following Republican Members of the authority to require that television sets the House to serve with me on the Joint have electronic switches permitting users to Section 32 of the Senate bill amends Sec­ tion 613(b)(3) of the Communications Act of Committee on the Organization of the Con­ change readily among video distributors, gress: provided that the FCC determines that such 1934 to revise the definition of rural area to mean an area that has fewer than 10,000 in­ Mr. Gradison of Ohio, Vice Chairman, switches are technically and economically Mr. Walker of Pennsylvania, feasible. habitants or any territory as defined by the Bureau of Census. Mr. Solomon of New York, House amendment House amendment Mr. Dreier of California, No provision. No provision. Mr. Emerson of Missouri, and Conference agreement Mr. Allard of Colorado. Conference agreement Sincerely, The conference agreement adopts the The conference agreement adopts the House position. BOB MICHEL, House position. The conferees recognize that Republican Leader. FOREIGN OWNERSHIP currently the Federal Communications Com­ Senate bill mission has the authority to define a "rural No provision. area" for purposes of this section of the Act and is conducting a proceeding to determine APPOINTMENT AS MEMBER OF NA­ House amendment if this definition should be expanded from TIONAL COMMISSION ON DE­ Section 16 of the House amendment estab­ 2,500 persons to 10,000. The conferees do not FENSE AND NATIONAL SECURITY lishes restrictions on the ownership by for­ want to prejudice the outcome of this pend­ The SPEAKER pro tempore laid be- eign persons or entities of cable systems and ing proceeding, nor do they want to limit the fore the House the following commu­ other telecommunications properties. Sec­ authority of the Commission should it be de­ tion 16(a) enumerates the findings made by termined that the public interest would be nication from the Republican leader: the Congress regarding foreign ownership of served by a broader or narrower definition of HOUSE OF REPRESENTATIVES, cable systems. rural area. Washington, DC, September 11, 1992. The Congress finds that: LEASE/BUY-BACK AUTHORITY Hon. THOMAS s. FOLEY, Speaker of the House, House of Representatives, (1) Restrictions on alien or foreign owner­ Senate bill Washington, DC. ship of broadcasting and common carriers No provision. first were enacted by Congress in the Radio DEAR MR. SPEAKER: Pursuant to the provi­ Act of 1912. House amendment sions of Section 8104 of Public Law 101-511, I (2) Cable television service currently is Section 4(d) of the House amendment hereby appoint the following member of the available to more than 90 percent of Amer­ amends Section 613(b)(2) of the Communica­ National Commission on Defense and Na­ ican households, more than 62 percent of tions Act of 1934 and clarifies that common tional Security: American households subscribe to such serv­ carriers are not prohibited from providing Robert E. Pursley of Stamford, Connecti­ ices, and the majority of viewers rely on multiple channels of communication to an cut. cable as the conduit through which they re­ entity pursuant to a lease agreement under Sincerely, ceive terrestrial broadcast signals. which the carrier retains, consistent with BOB MICHEL, (3) Many Americans receive a significant section 616, the option to purchase such en­ Republican Leader. portion of their daily news, information, and tity upon the taking effect of a future entertainment programming from cable tele­ amendment that would permit common car­ vision systems, and such systems should not riers generally to provide video program­ REGARDING THE WORK OF THE be controlled by foreign entities. ming directly to subscribers in such carrier's telephone service area. U.S. MILITARY IN THE RECENT (4) The policy justifications underlying re­ DISASTER AREAS strictions on alien ownership of broadcast or Conference agreement common carrier licenses have equal applica­ The conference agreement adopts the Sen­ (Mr. HUTTO asked and was given tion to alien ownership of cable television ate position. permission to address the House for 1 24628 CONGRESSIONAL RECORD-HOUSE September 14, 1992 minute and to revise and extend his re­ Mr. SCHEUER. Mr. Speaker, I come Mr. Speaker, I ask Members to make marks.) here to urge, almost to beg, the Presi­ up their minds. Should we include Mr. HUTTO. Mr. Speaker, there have dent to sign the Family and Medical Members of Congress? We believe to been a number of tragedies around the Leave Act that is coming before him as have the public have full faith in the world in recent years, and the United proof that he does identify with the institution in which we work, that States has had its share. Just in recent problems of America, that he does Members of Congress ought to be in­ weeks, Americans have experienced identify with the hurt in the families cluded in the aegis of the independent Hurricane Andrew, that was devastat­ of America when the stress and strains counsel statute. ing to Florida and Louisiana, and ty­ of life particularly beset them. phoon Omar in Guam. Then, this week­ There have been some evidences re­ end Hurricane Iniki struck Kauai, HI. cently that the President is discon­ D 1210 On Saturday, my colleagues SONNY nected from American life. He did not THE IMPACT OF HIGHER COLLEGE MONTGOMERY, BEVERLY BYRON, CLAUDE know that there is an electronic COSTS HARRIS, BEN BLAZ, and I visited south counter at the merchandise checkout (Mrs. SCHROEDER asked and was Dade County and Homestead Air Force at supermarkets around the country. given permission to address the House Base. Although Andrew inflicted in­ Mr. Speaker, it has been said that for 1 minute and to revise and extend credible damage to the people and the President does not know about the her remarks.) property, it was good to see the out­ hurt that is out there; that he talks Mrs. SCHROEDER. Mr. Speaker, the pouring of support by Americans in the about family values in the abstract, Select Committee on Children, Youth, aftermath of this disaster. And I want but when it comes to the specifics of and Families just finished a very inter­ to particularly commend our Armed the family in pain, where there is a esting hearing. Many of America's fam­ Forces, both Active and Guard and Re­ sick child, where there is an ailing par­ ilies and many of America's students serve for the fine job they are doing to ent, he does not seem to comprehend are feeling that they are being fleeced ease the suffering in all these disaster that this is part of a family problem for their sheepskin. And indeed, we had areas. Another job well done by our where there is hurt and that family the GAO come forward with an excel­ military. values include recognizing that fami­ lent report showing how the cost of lies occasionally have the need for a college tuition and the cost of college worker to take leave and be at home, THE REAL ENDANGERED SPECIES has risen way, way, way beyond the taking leave without pay. cost of inflation. (Mr. VENTO asked and was given Mr. Speaker, I hope that his heart, What we are trying to do is educate permission to address the House for 1 his compassion, will tell him that this parents and educate students so they minute and to revise and extend his re­ is necessary. Most major corporations can help the State legislators stand up marks.) around the world, both at home and and ask the very tough questions Mr. VENTO. Mr. Speaker, today, abroad, have these policies. Others do about, are we getting value for our tui­ President Bush and Vice President not. tion dollar. We have got to carry that QUAYLE are speaking out against the We know how to compel corporations dialog on in an open debate rather than Endangered Species Act. The American to maintain minimum standards of ci­ have people stand up and say, "You are voter should realize that the purpose of vility. It was a half century ago that institution bashing." this media blitz is to save a political we passed the minimum wage law and No, we are not institution bashing, endangered species-the Bush-Quayle half a century ago that we passed the but we certainly can be a consumer and Republican species. child labor legislation. Surely this is make sure that we do not keep seeing It is easy to recognize the Bush­ no less urgent than child labor legisla­ more and more and more administra­ Quayle species. It is a rare species. It is tion and the minimum wage legisla­ tive slots being added and fewer and only seen in this country every 4 years tion. fewer teaching slots with most young and then only on golf courses and in Mr. Speaker, I urge President Bush, I people only getting teaching assistance the well-to-do neighborhoods of appeal to President Bush, to sign this and not getting the kind of guidance Kennebunkport, ME. When faced with legislation. we need to be competitive in this problems, it buries its head in the sand world. like an ostrich. As the problems INCLUDE OVERSIGHT OF CON­ So we are paying more and getting mount, it runs around in circles, does less, and we started today in trying to not come up with new ideas, and bel­ GRESS IN INDEPENDENT COUN­ SEL REAUTHORIZATION give people the kind of criteria they lows out its call "don't blame me." need to begin turning that around and The President wants to blame the (Mr. GEKAS asked and was given get our institutions back to where they loss of jobs on the Endangered Species permission to address the House for 1 are focusing on our young people. Act. He is right-the endangered Bush­ minute and to revise and extend his re­ Quayle species is cause for the loss of marks.) 1.3 million American manufacturing Mr. GEKAS. Mr. Speaker, very soon THE LATE HONORABLE TED jobs alone in the past 4 years. now, perhaps this week or next, we will WEISS, A REPRESENTATIVE Mr. Speaker, I support the Endan­ be debating the independent counsel re­ FROM NEW YORK gered Species Act, which has success­ authorization bill which will be before Mr. SCHEUER. Mr. Speaker, I offer a fully worked to address 27,000 different us. There will be some major agree­ privileged resolution (H. Res. 564) and flora and fauna. I do not favor sacrific­ ments to be reached by the parties, all ask for its immediate consideration. ing the Endangered Species Act to save those involved, on how to limit and The Clerk read the resolution, as fol­ the one species that does not deserve make the process more accountable to lows: protection. It is time to permit the ex­ the taxpayers and to Congress itself. H. RES. 564 tinction of the Bush-Quayle species at But there might be strong disagree­ Resolved, That the House has heard with the hands of the voters on November 3. ment, and this is what I wish to warn profound sorrow of the death of the Honor­ the Members that we will be facing, able Ted Weiss, a Representative from the about whether or not to include Mem­ State of New York. PRESIDENT SHOULD SIGN FAMILY bers of Congress as proper targets for Resolved, That a committee of such Mem­ AND MEDICAL LEAVE ACT bers of the House as the Speaker may des­ investigation for wrongdoing, just as ignate, together with such Members of the (Mr. SCHEUER asked and was given members of the executive are now sub­ Senate as may be joined, be appointed to at­ permission to address the House for 1 ject to the gun of the independent tend the funeral. minute and to revise and extend his re­ counsel in investigations conducted at Resolved, That the Sergeant at Arms of the marks.) the authorization of Congress. House be authorized and directed to take September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24629 such steps as may be necessary for carrying received from the White House on Friday, bill (S. 1029) to designate certain lands out the provisions of these resolutions and September 11, 1992 at 4:40 p.m. and said to in the State of Colorado as components that the necessary expenses in connection contain a message from President whereby of the National Wilderness Preserva­ therewith be paid out of the contingent fund the reports on a waiver of certain restric­ tion System, and for other purposes, as of the House. tions with regard to the export to the Peo­ Resolved, That the Clerk communicate ple's Republic of China, of U.S.-origin sat­ amended. these resolutions to the Senate and transmit ellites and Munitions List articles, and an The Clerk read as follows: a copy thereof to the family of the deceased. attached justification thereon. s. 1029 Resolved, That when the House adjourns With great respect, I am Be it enacted by the Senate and House of Rep­ today, it adjourn as a further mark of re­ Sincerely yours, resentatives of the United States of America in spect to the memory of the deceased. DONNALD K. ANDERSON, Congress assembled, The SPEAKER pro tempore. The gen­ Clerk, House of Representatives. SECTION 1. SHORT TITLE. tleman from New York [Mr. SCHEUER] (By) DALLAS L. DENDY, Jr., This Act may be cited as the "Colorado is recognized for 1 hour. Assistant to the Clerk. Wilderness Act of 1992". SEC. 2. ADDITIONS TO THE WILDERNESS PRESER· Mr. SCHEUER. Mr. Speaker, this is a VATION SYSTEM. sad day for the House. It always is WAIVING RESTRICTIONS ON EX­ (a) ADDITIONS.-The following lands in the when any Member departs the scene, PORT TO PEOPLE'S REPUBLIC OF State of Colorado are hereby designated as but it is especially sad to see TED CHINA-MESSAGE FROM THE wilderness and, therefore, as components of WEISS disappear from the floor. TED PRESIDENT OF THE UNITED the National Wilderness Preservation Sys­ WEISS was a man of enormous compas­ STATES (H. DOC. NO. 102-385) tem: sion, an almost infinite capacity to feel (1) Certain lands in the Gunnison Basin Re­ The SPEAKER pro tempore laid be­ source Area administered by the Bureau of hurt, to feel sorrow, to feel pain in the Land Management which comprise approxi­ citizenry, both that he represented as fore the House the fallowing message from the President of the United mately 3,800 acres, as generally depicted on a well as 250 million Americans. map entitled "American Flats Additions to He had the unlimited ability to see States; which was read and, together with the accompanying papers, without the Big Blue Wilderness-Proposal", dated the problems that provided pain, that June 1992, and which are hereby incorporated provided inequality, that produced pov­ objection, referred to the Committee in and shall be deemed to be a part of the erty, that produced a lack of education on Foreign Affairs and the Cammi ttee wilderness area designated by Public Law 96-- and lack of training. And he had a mar­ on Appropriations and ordered to be 560 and renamed "Uncompahgre Wilderness" velous capacity to come up with cre­ printed: by section 3(f) of this Act. (2) Certain lands in the Gunnison Resource ative answers. To the Congress of the United States: Area administered by the Bureau of Land He represented one of the very few Pursuant to the authority vested in Management which comprise approximately districts in our country that would me by section 902(b )(2) of the Foreign 600 acres, as generally depicted on a map en­ have supported a Member with such Relations Authorization Act, Fiscal titled "Bill Hare Gulch and Larson Creek imaginative and, to some perhaps, way Years 1990 and 1991 (Public Law 101- Addition to the Big Blue Wilderness-Pro­ out means of meeting national needs. 246), and section 608(a) of the Depart­ posal'', dated June 1992, and which are here­ I honor TEDDY WEISS for his intrepid ments of Commerce, Justice, and by incorporated in and shall be deemed to be spirit. He was an unassuming person, a State, the Judiciary, and Related a part of the wilderness area designated by Public Law 96--560 and renamed quiet person, a person of infinite dig­ Agencies Appropriations Act, 1992 "Uncompahgre Wilderness" by section 3(f) of nity, but when he was facing the (Public Law 102-140), I hereby report to this Act. enemy, so to speak, he lashed out in the Congress that it is in the national (3) Certain lands in the Pike and San Isabel anger and in passion with a deep intel­ interest of the United States to waive National Forests which comprise approxi­ lect, with knowledge in depth of the the restrictions contained in those acts mately 46,910 acres, as generally depicted on subject, always answering what he felt on the export to the People's Republic a map entitled "Buffalo Peaks Wilderness­ was a compassionate need for people to of China of U.S.-origin satellites and Proposal", dated June 1992, and which shall be treated better by their fellows and Munitions List articles insofar as such be known as the Buffalo Peaks Wilderness. (4) Certain lands in the Gunnison National to be treated better by their govern­ restrictions pertain to the APSAT, Forest (renamed as the Ute National Forest ment. Asiasat 2, Intelsat VIIA, STARSAT, by section 3(f) of this Act) and in the Bureau When it came to education or health AfriSat, and Dong Fang Hong 3 of Land Management Powderhorn Primitive or housing or simply unfairness, in­ projects. Area which comprise approximately 60,100 equity, intolerance, TEDDY could be re­ Attached is my justification for the acres as generally depicted on a map entitled lied on to raise the battle cry, raise the aforesaid actions. "Powderhorn Wilderness-Proposal", dated standard of decency and justice and lib-. GEORGE BUSH. June 1992, and which shall be known as the erty to which all of us could adhere. THE WHITE HOUSE, September 11, 1992. Powderhorn Wilderness. We honor him. And I ask again that (5) Certain lands in the Routt National Forest which comprise approximately 20,020 when we adjourn today, we adjourn in acres, as generally depicted on a map enti­ honor of TED WEISS. ANNOUNCEMENT BY THE SPEAKER PRO TEMPORE tled "Davis Peak Additions to the Mount The resolution was agreed to. Zirkel Wilderness Proposal", dated June A motion to reconsider was laid on The SPEAKER pro tempore. Pursu­ 1992, and which are hereby incorporated in the table. ant to the provisions of clause 5 of rule and shall be deemed to be a part of the I, the Chair announces that he will Mount Zirkel Wilderness designated by Pub­ postpone further proceedings today on lic Law 88-555. COMMUNICATION FROM THE (6) Certain lands in the Grand Mesa, CLERK OF THE HOUSE both motions to suspend the rules on which a recorded vote or the yeas and Uncompahgre, and Gunnison National For­ The SPEAKER pro tempore laid be­ ests (renamed the Ute National Forest by nays are ordered, or on which the vote section 3(f) of this Act) which comprise ap­ fore the House the following commu­ is objected to under clause 4 of rule proximately 30,700 acres as generally de­ nication from the Clerk of the House of xv. picted on a map entitled "Fossil Ridge Wil­ Representatives: Such rollcall votes, if postponed, will derness Proposal", dated June 1992, and HOUSE OF REPRESENTATIVES, be taken tomorrow, Tuesday, Septem­ which shall be known as the Fossil Ridge Washington, DC, September 11, 1992. ber 15, 1992. Wilderness Area. Hon. THOMAS s. FOLEY, (7) Certain lands in the San Isabel National Speaker, U.S. House of Representatives, Wash­ Forest which comprise approximately 22,040 ington, DC. COLORADO WILDERNESS ACT OF acres as generally depicted on a map entitled DEAR MR. SPEAKER: Pursuant to the per­ 1992 "Greenhorn Mountain Wilderness-Pro­ mission granted in clause 5 of rule ill of the posal", dated June 1992, and which shall be Rules of the U.S. House of Representatives, I Mr. VENTO. Mr. Speaker, I move to known as the Greenhorn Mountain Wilder­ have the honor to transmit a sealed envelope suspend the rules and pass the Senate ness. 24630 CONGRESSIONAL RECORD-HOUSE September 14, 1992 (8) Certain lands within the Pike and San Fryingpan-Arkansas Project, Public Law 87- maps and legal descriptions shall be on file Isabel National Forests which comprise ap­ 590, and the reauthorization thereof by Pub­ and available for public inspection in the Of­ proximately 13,830 acres, as generally de­ lic Law 93--493, as modified as proposed in the fice of the Chief of the Forest Service, De­ picted on a map entitled "Lost Creek Wilder­ September 1959 report of the Bureau of Rec­ partment of Agriculture and the Office of the ness Proposal", dated June 1992, which are lamation entitled "Ruedi Dam and Res­ Director of the Bureau of Land Management, hereby incorporated in and shall be deemed ervoir, Colorado", and as further modified Department of the Interior, as appropriate. to be a part of the Lost Creek Wilderness and described in the description of the pro­ SEC. 3. ADMINISTRATIVE PROVISIONS. designated by Public Law 96-560: Provided, posal contained in the final environmental (a) IN GENERAL.-(!) Subject to valid exist­ That the Secretary of Agriculture (herein­ statement for said project, dated April 16, ing rights, lands designated as wilderness by after in this Act referred to as the "Sec­ 1975, under the laws of the State of Colorado, this Act shall be managed by the Secretary retary") is authorized to acquire, only by do­ shall be prejudiced, expanded, diminished, al­ of Agriculture or the Secretary of the Inte­ nation or exchange, various mineral reserva­ tered, or affected by this Act. Nothing in rior (in the case of the portion of tions held by the State of Colorado within this Act shall be construed to expand, abate, Powderhorn Wilderness managed by the Bu­ the boundaries of the Lost Creek Wilderness impair, impede, or interfere with the con­ reau of Land Management) in accordance additions designated by this Act. struction, maintenance, or repair of said with the Wilderness Act (16 U.S.C. 1131 et (9) Certain lands in the Grand Mesa, Fryingpan-Arkansas Project facilities, nor seq.) and this Act, except that, with respect Uncompahgre, and Gunnison National For­ the operation thereof, pursuant to the Oper­ to any wilderness areas designated by this ests (renamed the Ute National Forest by ating Principles, House Document 187, Act, any reference in the Wilderness Act to section 3(f) of this Act) which comprise ap­ Eighty-third Congress, and pursuant to the the effective date of the Wilderness Act shall proximately 5,500 acres, as generally de­ water laws of the State of Colorado: Provided be deemed to be a reference to the date of en­ picted on a map entitled "Oh-Be-Joyful Ad­ further, That nothing in this Act shall be actment of this Act. dition to the Ra.ggeds Wilderness-Pro­ construed to impede, limit, or prevent the (2) Administrative jurisdiction over those posal'', dated June 1992, and which are here­ use of the Fryingpan-Arkansas Project of its lands designated as wilderness pursuant to by incorporated in and shall be deemed to be diversion systems to their full extent. paragraphs (1), (2), and (11) of section 2(a) of a part of the Ra.ggeds Wilderness designated (16) Certain lands in the Arapaho National this Act, and which, as of the date of enact­ by Public Law 96-560. Forest which comprise approximately 24,250 ment of this Act, are administered by the (10) Certain lands in the Grand Mesa, acres, as generally depicted on a map enti­ Bureau of Land Management, is hereby Uncompahgre, and Gunnison National For­ tled "Byers Peak Wilderness-Proposal", transferred to the Forest Service. ests (renamed the Ute National Forest by dated June 1992, and which shall be known as (b) GRAZING.--Grazing of livestock in wil­ section 3(f) of this Act) which comprise ap­ Byers Peak Wilderness. derness areas designated by this Act, where proximately 28,262 acres, as generally de­ (17) Certain lands in the Grand Mesa, established prior to the date of enactment of picted on a map entitled "Roubideau Wilder­ Uncompahgre, and Gunnison National For­ this Act, shall be administered in accordance ness-Proposal", dated June 1992, and which ests (renamed the Ute National Forest by with the provisions of section 4(d)(4) of the shall be known as the Roubideau Wilderness. section 3(f) of this Act) and in the Bureau of Wilderness Act (16 U.S.C. 1133(d)(4)), as fur­ (11) Certain lands in the Rio Grande Na­ Land Management Montrose District which ther interpreted by section 108 of Public Law tional Forest which comprise approximately comprise approximately 17,000 acres, as gen­ 96-560, and, as regards wilderness managed 212,360 acres, as generally depicted on a map erally depicted on a map entitled by the Bureau of Land Management, the entitled "Sangre de Cristo Wilderness-Pro­ "Tabeguache Wilderness-Proposal", dated guidelines set forth in Appendix A of House posal", dated June 1992, and which shall be June 1992, and which shall be known as the Report 101-405 of the lOlst Congress. known as the Sangre de Cristo Wilderness. Tabeguache Wilderness. (c) STATE JURISDICTION.-As provided in Any non-Federal lands or interests therein (18) Certain lands in the San Juan National section 4(d)(7) of the Wilderness Act (16 within the Como Lake and Blanca Peak Forest which comprise approximately 28,740 U.S.C. 1133(d)(7)), nothing in this Act shall be areas, as generally depicted on a map enti­ acres, as generally depicted on a map enti­ construed as affecting the jurisdiction or re­ tled "Como Lake and Blanca Peak Areas", tled "Weminuche Wilderness Additions-Pro­ sponsibilities of the State of Colorado with dated June 1992, which hereafter may be ac­ posed", dated June 1992, and which are here­ respect to wildlife and fish in Colorado. quired by the United States shall be added to by incorporated in and shall be deemed to be (d) CONFORMING AMENDMENT.-Section 2(e) the Sangre de Cristo Wilderness and man­ a part of the Weminuche Wilderness des­ of the Endangered American Wilderness Act aged accordingly, and if all such lands and ignated by Public Law 93-632. of 1978 (92 Stat. 41) is amended by striking interests are so acquired, such areas shall be (19) Certain lands in the Rio Grande Na­ "Subject to" and all that follows through so added and managed in their entirety. tional Forest which comprise approximately "System.". (12) Certain lands in the Routt National 23,800 acres, as generally depicted on a map (e) BUFFER ZONES.-Congress does not in­ Forest which comprise approximately 47,690 entitled "Wheeler Additions to the La Garita tend that the designation by this Act of wil­ acres, as generally depicted on a map enti­ Wilderness-Proposal", dated June 1992, and derness area areas· in the State of Colorado tled "Service Creek Wilderness Proposal", which shall be incorporated into and shall be creates or implies the creation of protective dated June 1992, which shall be known as the deemed to be a part of the La Garita Wilder­ perimeters or buffer zones around any wil­ Sarvis Creek Wilderness. ness. derness area. The fact that non-wilderness (13) Certain lands in the San Juan National (20) Certain lands in the Arapaho National activities or uses can be seen or heard from Forest which comprise approximately 32,800 Forest which comprise approximately 16,580 within a wilderness areas shall not, of itself, acres as generally depicted on a map entitled acres, as generally depicted on a map enti­ preclude such activities or uses up to the "South San Juan Expansion Wilderness-­ tled "Williams Fork Wilderness-Proposal", boundary of the wilderness area. Proposal", (V-Rock Trail and Montezuma dated September 1992, and which shall be (f) WILDERNESS NAME CHANGE.-The wilder­ Peak), dated June 1992, and which are hereby known as the Williams Fork Wilderness. ness area designated as "Big Blue Wilder­ incorporated in and shall be deemed to be a (21) Certain lands in the Arapaho National ness" by section 102(a)(l) of Public Law 96- part of the South San Juan Wilderness des­ Forest which comprise approximately 6,400 560, and the additions thereto made by para­ ignated by Public Law 96-560. acres, as generally depicted on a map enti­ graphs (1) and (2) of section 2(a) of this Act, (14) Certain lands in the San Isabel Na­ tled "Bowen Gulch Additions to Never Sum­ shall hereafter be known as the tional Forest which comprise approximately mer Wilderness-Proposal", dated June 1992, Uncompahgre Wilderness. Any reference to 18,130 acres as generally depicted on a map which are hereby incorporated into and shall the Big Blue Wilderness in any law, regula­ entitled "Spanish Peaks Wilderness-Pro­ be deemed to be a part of the Never Summer tion, map, document, record, or other paper posed", dated June 1992, and which shall be Wilderness. of the United States shall be considered to be known as the Spanish Peaks Wilderness. (b) MAPS AND DESCRIPTIONS.-As soon as a reference to the Uncompahgre Wilderness. (15) Certain lands in the White River Na­ practicable after the date of enactment of (g) NATIONAL FOREST ADDITIONS.-(!) Ex­ tional Forest which comprise approximately this Act, the appropriate Secretary shall file cept for lands within the Powderhorn Wilder­ 8,330 acres, as generally depicted on a map a map and a legal description of each area ness, any lands designated as wilderness by entitled "Spruce Creek Additions to the designated as wilderness by this Act with the this Act which as of the date of enactment of Hunter-Fryingpan Wilderness-Proposal", Committee on Energy and Natural Resources this Act were managed by the Secretary of dated June 1992, and which are hereby incor­ of the United States Senate and the Commit­ the Interior as public lands (as defined in the porated in and shall be deemed to be a part tee on Interior and Insular Affairs of the Federal Land Policy and Management Act of of the Hunter Fryingpan Wilderness des­ United States House of Representatives. 1976), are hereby transferred to the jurisdic­ ignated by Public Law 95--327: Provided, That Each map and description shall have the tion of the Secretary of Agriculture, and no right, or claim of right, to the diversion same force and effect as if included in this shall be added to and managed as part of the and use of the waters of Hunter Creek, the Act, except that the Secretary is authorized National Forest System, and the boundaries Fryingpan or Roaring Fork Rivers, or any to correct clerical and typographical errors of the adjacent National Forests are hereby tributaries of said creeks or rivers, by the in such legal descriptions and maps. Such modified to include such lands. September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24631 (2) For the purposes of section 7 of the recreation management area. After the date trail number 535 except during periods of Land and Water Conservation Fund Act of of enactment of this Act, no new roads or adequate snow cover. 1965 (16 U.S.C. 4601-9), the boundaries of af­ trails may be constructed within the recre­ SEC. 8. OTHER LANDS. fected National Forests, as modified by this ation management area. Nothing in this Act shall affect ownership subsection, shall be considered to be the (g) OFF-ROAD RECREATION.-Motorized or use of lands or interests therein not owned boundaries of such National Forests as of travel shall be permitted within the recre­ by the United States or access to such lands January 1, 1965. ation management area only on those des­ available under other applicable law. (3) Nothing in this subsection shall affect ignated trails and routes existing as of July SEC. 9. WATER. valid existing rights of any person under any 1, 1991. (a) RESERVATION.-With respect to each authority of law. SEC. 6. BOWEN GULCH PROTECTION AREA. wilderness area designated by this Act, Con­ (4) Authorizations to use lands transferred (a) ESTABLISHMENT.-(1) There is hereby es­ gress hereby reserves a quantity of water by this subsection which were issued prior to tablished in the Arapaho National Forest, sufficient to fulfill the purposes for which the date of enactment of this Act, shall re­ Colorado, the Bowen Gulch Protection Area such area is designated. The priority date of main subject to the laws and regulations (hereinafter in this Act referred to as the such reserved rights shall be the date of en­ under which they were issued, to the extent " protection area"). actment of this Act. consistent with this Act. Such authoriza­ (2) The protection area shall consist of cer­ (b) IMPLEMENTATION.-The Secretary of Ag­ tions shall be administered by the Secretary tain lands in the Arapaho National Forest, riculture, the Secretary of the Interior, and of Agriculture. Any renewal or extension of Colorado, which comprise approximately all other officers of the United States shall such authorizations shall be subject to the 11,600 acres as generally depicted as "Area take all steps necessary to protect the rights laws and regulations pertaining to the For­ A" and "Area B" on a map entitled "Bowen reserved by subsection (a ), including the fil­ est Service, Department of Agriculture, and Gulch Additions to Never Summer Wilder­ ing of claims for quantification of such applicable law, including this Act. The ness Proposal", dated September 1992. rights in any present or future appropriate change of administrative jurisdiction result­ (b) ADMINISTRATION.-The Secretary shall stream adjudication in the courts of the ing from the enactment of this subsection administer the protection area in accordance State of Colorado in which the United States shall not in itself constitute a basis for deny­ with this section and the laws and regula­ has been or is hereafter properly joined in ing or approving the renewal or reissuance of tions generally applicable to the National accordance with section 208 of the Act of any such authorization. Forest System. July 10, 1952 (66 Stat. 5460; 43 U.S.C. 666), SEC. 4.. WILDERNESS RELEASE. (C) WITHDRAWAL .-Subject to valid existing ·commonly referred to as the " McCarran {a) REPEAL OF WILDERNESS STUDY PROVI­ rights, all lands within the protection area Amendment". SIONS.-Sections 105 and 106 of the Act of De­ are hereby withdrawn from all forms of (c) CONSTRUCTION.-(!) Nothing in this Act cember 22, 1980 (P.L. 96-560), are hereby re­ entry, appropriation, or disposal under the shall be construed as a relinquishment or re­ pealed. public land laws, from location, entry, and duction of any water rights reserved, appro­ (b) INITIAL PLANS.-Section 107(b)(2) of the patent under the mining laws, and from dis­ priated, or otherwise secured by the United Act of December 22, 1980 (P.L. 96-560) is position under the mineral and geothermal States in the State of Colorado on or before amended by striking out ", except those leasing laws, including all amendments the date of enactment of this Act. lands remaining in further planning upon en­ thereto. (2) Nothing in this Act or in any previous actment of this Act, areas listed in sections (d) DEVELOPMENT.-No developed camp­ Act designating any lands as wilderness shall 105 and 106 of this Act, or previously congres­ grounds shall be constructed within the pro­ be construed as limiting, altering, modify­ sional designated wilderness study areas," . tection area. After the date of enactment of ing, or amending any of the interstate com­ SEC. 5. FOSSIL RIDGE RECREATION MANAGE· this Act, no new roads or trails may be con­ pacts or equitable apportionment decrees MENTAREA. structed within the protection area. that allocate water among and between the {a) ESTABLISHMENT.-(1) In order to con­ (e) TIMBER HARVESTING.-No timber har­ State of Colorado and other States. serve, protect, and enhance the scenic, wild­ vesting shall be allowed within the protec­ (3) Nothing in this Act shall be construed life, recreational, and other natural resourc.e tion area except for any minimum necessary as establishing a precedent with regard to values of the Fossil Ridge area, there is here­ to protect the forest from insects and dis­ any future designations, including designa­ by established the Fossil Ridge Recreation ease, and for public safety. tions of wilderness, or as constituting an in­ Management Area (hereinafter referred to as (f) MOTORIZED TRAVEL.-Motorized travel terpretation of any other Act or designations the "recreation management area" ). shall be permitted within the protection area made pursuant thereto. (2) The recreation management area shall only on those designated trails and routes existing as of July 1, 1991, and only during The SPEAKER pro tempore. Pursu­ consist of certain lands in the Grand Mesa, ant to the rule, the gentleman from Uncompahgre, and Gunnison National For­ periods of adequate snow cover. At all other ests, Colorado, (renamed the Ute National times, mechanized, non-motorized travel Minnesota [Mr. VENTO] will be recog­ Forest by section 3(f) of this Act) which com­ shall be permitted within the protection nized for 20 minutes, and the gen­ prise approximately 43,900 acres as generally area. tleman from Arizona [Mr. RHODES] will depicted as "Area A" on a map entitled (g) MANAGEMENT PLAN.-During the prepa­ be recognized for 20 minutes. "Fossil Ridge Wilderness Proposal" , dated ration of the revision of the Land and Re­ The Chair recognizes the gentleman June 1992. source Management Plan for the Arapaho from Minnesota [Mr. VENTO]. National Forest, the Forest Service shall de­ (b) ADMINISTRATION.-The Secretary of Ag­ GENERAL LEA VE riculture shall administer the recreation velop a management plan for the protection management area in accordance with this area, after providing for public consultation. Mr. VENTO. Mr. Speaker, I ask unan­ section and the laws and regulations gen­ SEC. 7. PIEDRA AREA. imous consent that all Members may erally applicable to the National Forest Sys­ Subject to valid existing rights, the area of have 5 legislative days within which to tem. approximately 56,000 acres in the San Juan revise and extend their remarks on the (c) WITHDRAWAL.-Subject to valid existing National Forest, as generally depicted on a measure presently under consideration. rights, all lands within the recreation man­ map entitled "Piedra Area" dated June 1992, The SPEAKER pro tempo re. Is there agement area are hereby withdrawn from all is hereby withdrawn from all forms of entry, objection to the request of the gen­ forms of entry, appropriation, or disposal appropriation, or disposal under the public tleman from Minnesota? under the public land laws, from location, land laws; from location, entry, and patent There was no objection. entry, and patent under the mining laws, and under the mining laws; and from disposition Mr. VENTO. Mr. Speaker, I yield my­ from disposition under the mineral and geo­ under the mineral and geothermal leasing thermal leasing laws, including all amend­ laws, including all amendments thereto. self such time as I may consume. ments thereto. Until Congress determines otherwise, such Mr. Speaker, S. 1029, passed by the (d) TIMBER HARVESTING.-No timber har­ area shall be managed by the Secretary of Senate last year, is a bill for designa­ vesting shall be allowed within the recre­ Agriculture so as to maintain its presently tion of wilderness on national forest ation management area except for any mini­ existing wilderness character and potential lands and certain other Federal lands mum necessary to protect the forest from in­ for inclusion in the National Wilderness in Colorado. sects and disease, and for public safety. Preservation System. Livestock grazing in Mr. Speaker, the Interior Committee (e) LIVESTOCK GRAZING.-The designation such area shall be permitted and managed to favorably reported S. 1029 after adopt­ of the recreation management area shall not the same extent and in the same manner as be construed to prohibit, or change the ad­ on the date of enactment of this Act. Mecha­ ing an amendment in the nature of a ministration of, the grazing of livestock nized travel within such area shall be per­ substitute. Its provisions are explained within the recreation management area. mitted only on those designated trails and in the committee's report on the bill. (f) DEVELOPMENT.-No developed camp­ routes existing on July 1, 1991. No motorized In brief, the bill, as amended, would grounds shall be constructed within the travel shall be permitted on Forest Service designate new wilderness areas or addi- 24632 CONGRESSIONAL RECORD-HOUSE September 14, 1992 tions to existing wilderness areas each of the areas that would be des­ ministrations unwilling to take appro­ amounting to about 670,960 acres that ignated as wilderness. priate steps to protect wilderness include a very diverse array of Mr. Speaker, as the Interior Commit­ water rights. Second, there has been a landforms-mountain peaks, alpine tee has considered this bill, we have change in wilderness legislation be­ tundra, forests, meadows, lakes, and been reminded of John Gunther's ob­ cause of the Senate's reaction to Fed­ streams-with extraordinary environ­ servation, in his book, "Inside USA," eral court decisions, starting in Colo­ mental, wildlife, and recreation values. that "Water is blood in Colorado. * * * rado in 1985, repudiating the adminis­ In addition, the bill would provide for About water the State is as sensitive tration's policy of effectively relin­ protection of more than 110,000 addi­ as a carbuncle." quishing any claims to water rights for tional acres of unique Colorado lands That was written in 1947. Since then, wilderness areas that were designated that would not be designated as wilder­ many things have changed, but in Colo­ by legislation with no explicit water ness but would be protected against ad­ rado there is still no more sensitive rights provisions. verse impacts from timber harvesting issue than the allocation and use of the It long was the view of the Interior and other activities. water that flows down from the State's Committee and the House that no such The areas dealt with in this bill are mountain ranges and into the great provisions were necessary. However, in noteworthy and deserving of the spe­ rivers-the Rio Grande, the Arkansas, response to the court decisions, the cial consideration and careful manage­ the North Platte, the South Platte, Senate has consistently insisted on in­ ment that would be provided under this and the Colorado itself-that are so im­ cluding in wilderness legislation provi­ bill. portant to so many people in Colorado sions to specify whether designation of Many of the important attributes of and nearly a score of other States. a wilderness area involved a reserva­ these areas derive from the fact that Today, decisions about that water tion of water by the national Govern­ they are relatively well watered. The have become even more complicated. ment. mountain ranges of Colorado catch the Colorado has many more people now­ Therefore, to assure that wilderness snows of winter and rains of summer, primarily concentrated in the front water will receive the protection so im­ and wring the moisture from the winds, range area at the eastern edge of the portant in the arid States of the West, so that unlike many parts of the arid mountains-and the population of the Interior Committee has consist­ West, they have the water to support downstream States, especially Califor­ ently included in wilderness bills for many forms of life. Protection of these nia and Arizona, has also greatly in­ Western national forests and public creased. water resources is an indispensable And, just as important, the Nation lands provisions similar to those that part of the proper management of these has adopted new policies and new prior­ this amendment would add to this Col­ wilderness areas. i ties for the management of the na­ orado wilderness bill. This policy has In other wilderness bills, Congress tional forests and other Federal public been strongly supported by the House has acted to assure such protection by lands in Colorado and other States. of Representatives and accepted by the reserving a Federal water right for One of the most significant changes Senate as well. each wilderness area. Such reserve in those priorities was the enactment As a result, since 1986, laws designat­ water rights are an efficient and effec­ of the Wilderness Act in 1964. Since ing wilderness on Western national for­ tive way to give the land-managing then, Congress has acted to protect est or BLM-managed public lands have agencies the tools they need to prop­ millions of acres throughout the Na­ included an explicit reservation of a erly do their jobs of preserving the nat­ tion as part of the national wilderness water right. Examples include Public ural attributes of areas designated as preservation system, including lands Law 100--225, related to the El Malpais wilderness. managed by the National Park Service, National Monument, national con­ However, the bill, as reported from the Fish and Wildlife Service, and the servation area, and wilderness areas; committee, was silent about the sub­ Bureau of Land Management in addi­ the Nevada Wilderness Protection Act ject of wilderness water rights. This si­ tion to national forest areas. of 1989; the Arizona Desert Wilderness lence was the result of a procedural In 1980, responding to proposals by Act of 1990; and the Los Padres Condor compromise that reflected the fact President Carter, Congress designated Range and River Protection Act, that in the Interior Committee propos­ as wilderness 20 areas in Colorado's na­ signed into law on June 19 of this year. als to reserve Federal water rights tional forests, but decided to defer any Like the corresponding provisions of have been very divisive, but there is wilderness decision about some other those laws, with respect to each "des­ little or no controversy about any areas. There was an expectation that ignated wilderness area-but not other other aspect of the bill as reported. those decisions would be made a couple areas otherwise designated by the At the suggestion of the gentleman of years later, through a followup bill. bill-this bill would reserve a quantity from Colorado [Mr. CAMPBELL] , it was The bill before us is exactly that fol­ of water sufficient to fulfill the pur­ agreed to leave the question of water lowup bill, but instead of a couple of pose of wilderness designation. rights for resolution here on the floor. years, it has taken more than a decade It is important to note that the bill This made it possible for the commit­ to reach the point where we are today. does not attempt to quantify these re­ tee to bring the bill before the House in The reason is that congressional deci­ served water rights, which will date an expeditious way. sions about wilderness in the West from the bill's date of enactment-so To further expedite matters, in these have come to involve explicit decisions that they will be junior to all other last days of the session, we are bring­ about water and water law, which in rights in existence when the bill be­ ing to the floor a revised substitute Colorado means that wilderness deci­ comes law. Instead, the question of that includes water rights provisions, sions now are more controversial than quantification is left for further action so that the House could resolve this they were in 1980 exactly to the extent by the Forest Service and the Bureau water rights issue-the only real issue that they involve water. of Land Management. associated with this bill-through a Of course, the importance of water Section 9 of the bill directs the na­ single vote. for wilderness is not a new discovery. tional administration, including the Thus, the bill now before the House is In fact, as noted in the Interior Com­ land-managing agencies, to take what­ not identical to the versions approved mittee's report about the Colorado wil­ ever steps may be necessary to protect by the Interior and Agriculture Cam­ derness areas designated in the 1980 these new reserved water rights. One of mi ttees. There are two chief dif­ bill, " Their national production of in­ these steps would be the filing of ferences: First, the bill does not in­ valuable supplies of high quality water claims for the quantification of the clude provisions for renaming three ex­ provide[s] a compelling reason for pre­ rights, in any present or future adju­ isting national forests. Second, it does serving them in their natural state." dication in the courts of the State of include, as section 9, an express res­ Two things have changed since 1980. Colorado to which the United States is ervation of a Federal water right for First, we have had two successive ad- properly made a party. September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24633 The bill leaves intact existing law as a matter of fact-and another gen­ In that bill, we dealt with the wilder­ that governs such adjudications, in­ tleman from Colorado, Mr. SKAGGS, ness water rights issue for BLM lands. cluding the statute commonly known also deserves our thanks, particularly It was at times a difficult and tortured as the McCarran amendment, by which for emphasizing the importance of the process. Nonetheless, I am pleased we the United States has waived its sov­ Bowen Gulch and Williams Fork areas, eventually found a consensus on wil­ ereign immunity and has consented to and for his support of sound manage­ derness water rights language which be joined as a party in certain State ment provisions. we believe protects the sovereign proceedings for adjudication and ad­ I also want to thank Chairmen DE LA rights and laws of the State of Arizona. ministration of water rights. GARZA and VOLKMER of the Committee We concluded that that language was The part of the bill referring to the on Agriculture for their cooperation the best we could achieve for the par­ McCarran amendment are intended to and assistance. ticular needs of the State of Arizona. have the same significance and effect I urge the House to approve the mo­ In the language itself, and during the as the similar references in the Arizona tion to suspend the rules and pass S. debate on the legislation, we indicated Desert Wilderness Act and other wil­ 1029, as amended, with its water rights our intent that the wilderness water derness acts I have cited. Because some provisions. language we developed was not nec­ essarily the approach that would work have expressed uncertainty about what 0 1220 was meant by references in those bills best for the differing water laws and to proceedings ''in accordance with'' Mr. Speaker, I reserve the balance of adjudication processes in other West­ the McCarran amendment, S. 1029, as my time. ern States. amended, does not use those words. In­ Mr. RHODES. Mr. Speaker, I yield The statutory language itself says in stead, there is a reference to Colorado myself such time as I may consume. part: "Nothing in this title related to State proceedings "in which the United Mr. Speaker, I rise in support of S. reserved Federal water rights shall be States has been or is hereafter properly 1029, the Colorado Wilderness Act. construed as establishing a precedent joined." The term "properly joined," In 1980, Congress passed the first * * * nor shall it constitute an inter­ like the term "in accordance with" is statewide RARE II Forest Service wil­ pretation of any other Act* * *" intended to signify a proceeding within derness bill. It was for the State of Col­ As I stated at the time, it certainly the scope of the McCarran amend­ orado. That bill designated 1.4 million was not my intent that the water ment's waiver of sovereign immunity, acres of Forest Service wilderness rights language in the Arizona desert which does not extend to all possible areas; at the time doubling Federal wilderness bill would meet the needs of actions related to water in State wilderness area designations in Colo­ other Western States. rado. However, what we have witnessed courts or agencies. since 1990 is that the Arizona desert As explained by Prof. David H. That 1980 bill also designated some 11 areas totaling nearly 500,000 acres as wilderness water rights language ap­ Getches, of the University of Colorado, pears to have become a precedent. in "Water Law in a Nutshell," 2d edi­ congressional wilderness study areas, and about 160,000 acres remained under Essentially identical language was tion, 1990, on pages 335 and following- included in the House-passed California The McCarran amendment does not au­ administrative further planning status. The legislation before us today, 12 wilderness bill; the same language is thorize private suits to decide priorities be­ included in Montana wilderness bill tween the United States and particular years later, essentially completes the claimants, only suits to adjudicate the Forest Service wilderness designations that was reported from subcommittee rights of all claimants on a stream. * * * It in Colorado by, for the most part, deal­ last week and is scheduled for full com­ applies to lawsuits, not proceedings before ing with the study areas which re­ mittee action this week; and now we administrative agencies. The Supreme Court mained following passage of the 1980 find the language in the Colorado wil­ has rejected a Federal claim that the amend­ derness bill as it will be amended by ment does not apply to reserved water Colorado RARE II wilderness bill. The 1980 Colorado wilderness bill was the chairman on the floor today. rights. * * * The McCarran amendment's To play on an old saying * * * If it is consent to joinder of the United States ap­ important in other respects as well. often repeated like a precedent; looks plies to suits in State or Federal court, but Through intensive negotiations, it es­ like a precedent; and smells like a as a practical matter, it is only used in State tablished important land-use and wil­ court proceedings because Federal court ju­ derness management policy regarding precedent, it apparently soon becomes risdiction would not encompass water rights a precedent, even when we say it isn't. grazing in wilderness areas; release I understand why this is happening claims of private parties against one an­ language, and antibuffer zone lan­ other. Federal court jurisdiction does exist if today. I respect and support the desires the United States initiates suit, and the guage, all of which are now routinely of the Colorado congressional delega­ McCarran amendment does not preclude ad­ included directly or by reference in vir­ tion to move this legislation along to judication of the Government's water rights tually every western wilderness bill on either further negotiations with the in that forum. * * * Once the Government is which the Congress acts. Senate or to a formal conference. joined, it must adhere to State procedural The entire Colorado congressional However, that doesn't mean I have to requirements. [Citations omitted.] delegation, especially Senators HANK like the use of this language in this bill That describes the law as it stands BROWN and TIM WmTH, and our col­ or the procedural manner in which that today and as it will remain after this leagues on the Interior Committee, language is being inserted in the bill bill is enacted. Congressmen BEN CAMPBELL, JOEL today. In short, section 9 of S. 1029 is a con­ HEFLEY, and WAYNE ALLARD, are to be Although they will speak for them­ servative measure that provides Fed­ commended for their leadership and selves, I know many in the Colorado eral land managers with the legal basis concentrated efforts to move this legis­ delegation are not overly enamored for proper protection of wilderness lation and finish the work begun in with the language we worked out for without disrupting the adjudication or 1980. Arizona, to say the least. administration of water rights under Probably the major hurdle that has As it came to the House, the Senate­ State law. held up action on the Colorado wilder­ passed Colorado wilderness bill in­ In conclusion, Mr. Speaker, I want to ness bill all these years has been the cluded exactly opposite wilderness thank the Colorado delegation for their issue of wilderness water rights. water rights language. Frankly, since diligence and cooperation in enabling In 1990, under the leadership of the most of the Colorado wilderness des­ us to bring this bill to the floor. former chairman of the Interior Com­ ignations are high-country Forest In particular, Mr. Campbell is to be mittee, Mo Udall, the Arizona congres­ Service lands, I am not convinced the commended for his hard work and per­ sional delegation brought to this House Arizona language is appropriate or nec­ sistence in connection with this impor­ the final version of the first statewide essary in this bill. tant bill, which has been a very long wilderness bill for Bureau of Land Man­ My further concern is with the man­ time in coming-more than a decade, agement lands. ner in which this is being done. It was 24634 CONGRESSIONAL RECORD-HOUSE September 14, 1992 my understanding that as the bill left stituents, and indeed, to all Americans. Service primitive area. The bill did re­ the Interior Committee, with no water Designating more high-country lands name the Grand Mesa, Uncompahgre, rights language, assurances were given in Colorado as wilderness has been a and Gunnison National Forests, but I that there would be a full and open op­ goal of many people, including Sen­ have asked that the provisions be re­ portuni ty to address this issue through ators WIRTH and BROWN, and their moved from the bill. possible amendments on the House predecessors, Senators Hart and Arm­ The substitute simplifies the issue of floor. strong, and of my predecessor, farmer releasing areas not designated as wil­ The fact is, bringing this bill to the Third District Congressman Ray derness by repealing the "release lan­ floor under suspension does not allow Kogvsek. guage" provisions of the 1980 Colorado the offering of any contrary or perfect­ None of us has succeeded so far, un­ Wilderness Act. ing amendment&-if any Member want­ fortunately, but as I prepared for this The substitute was also silent on the ed to-to what the chairman will be of­ day, I way looking through an inspir­ issue of wilderness water rights. That fering. ing book called "Colorado, Our Wilder­ silence will be broken today because I find that regrettable. ness Future," that describes the in­ the committee amendment will include However, having expressed those per­ comparable areas proposed for inclu­ language that has been approved three sonal concerns, I defer, as I usually do sion in the wilderness system, and I times by the House and has already when there is consensus, to the State thought, "We have to try harder. been included in the soon to be passed congressional delegations for guidance Somehow, we have to figure out a way Montana wilderness bill. on these land use issues in their States. to preserve these incredible treasures Al though the so-called Arizona water I support S. 1029 and respect the desires for all of us, for our children, and their language does defer water rights adju­ of the Colorado congressional delega­ children." dication to the States pursuant to the tion to move this bill through the proc­ Therefore, with the cooperation of Mccarren Act, it contains a Federal re­ ess to hopefully deal with this difficult the Colorado congressional delegation I serve water right for wilderness. Most issue before adjournment. offered a substitute for the Senate-­ Coloradoans fear that this reservation I ask my colleagues to support it as passed wilderness bill in the Interior will make the Forest Service the domi­ well. Committee. The majority of that sub­ nant player in terms of State water 0 1230 stitute is before us now. It is generally matters. Fortunately, the Colorado a combination of the areas within the delegation, lead by our colleagues in Mr. Speaker, I reserve the balance of the other body, have drafted language my time. Senate-passed bill, my own bill, H.R. 762 and a bill by my colleague Rep­ to protect these new wilderness areas Mr. VENTO. Mr. Speaker, I yield 10 and ensure that Colorado retains pri­ minutes to the gentleman from Colo­ resentative SKAGGS. The substitute designates 21 wilderness areas compris­ mal in Colorado water issues. rado [Mr. CAMPBELL]. Our Senator's agreement resolves the Mr. CAMPBELL of Colorado. Mr. ing 670,962 acres. The most significant differences in controversy surrounding water rights Speaker, I thank the gentleman from language, and I respect that agree­ Minnesota for yielding time to me. wilderness designations are the des­ I rise in support of H.R. 1029 but can­ ignation of a Spanish Peaks wilderness, ment. But, although the agreement be­ not support the water rights language which was not in the Senate bill, and tween the Senators was a major step, contained in the committee amend­ the designation of the Fossil Ridge and that does not make it any easier to ment. I will not ask for a recorded vote Bowen Gulch areas which were not in pass the bill in the House of Represent­ on the issue because it is vital that the my original bill. atives. bill be passed so we can begin working The Senate bill terms the protected It is my sincere belief, however, that with our colleagues from the other nonwilderness near Fossil Ridge as a the eventual compromise will closely body to resolve the differences between national conservation area. I have resemble the Senate bill that a major­ the House and Senate passed versions called it a recreation management area ity of people in the State of Colorado of the bill. Moving this committee bill to avoid confusing it with a BLM area. support. In both versions, the area is closed to I certainly hope we can maintain the through the House has the support of basis of this fragile process and get on the entire Colorado delegation. mineral activities, timber harvest, de­ In fact, the Colorado delegation first veloped campgrounds, and motorized with what we-most of u&-really want: developed a compromise wilderness bill vehicles are restricted to designated an expanded wilderness system. I also roads and trails in existence on July 1, include in the RECORD a resolution of in 1984. The bill passed the House, but support from the Colorado Water Con­ before action could be taken by the 1991. Senate, Judge Kane issued a decision in The Senate bill designated the Piedra gress for the process I established. the case of the Sierra Club versus area as wilderness, but I have elected COLORADO WATER CONGRESS Block, which started the wilderness to protect it in another way. As it is a Denver, CO, March 24, 1992. downstream area, my substitute would Hon. HANK BROWN, water rights controversy. U.S. Senate, The delegation had already worked withdraw it from mining and mineral Hon. TIM WIRTH, for more than 4 years to resolve the leasing, and require it to be managed U.S. Senate, management controversies surrounding to preserve wilderness characteristics Hon. WAYNE ALLARD, the lands which remained undesignated and potential for inclusion in the Na­ U.S. House of Representatives, in the 1980 bill. tional Wilderness Preservation Sys­ Hon. BEN NIGHTHORSE CAMPBELL, Obviously, if wilderness were simply tem. The substitute also restricts U.S. House of Representatives, a land management issue it would be mechanized travel to designated trails Hon. JOEL HEFLEY, an easy matter to separate the areas and routes in existence on July 1, 1991, U.S. House of Representatives, Hon. DAN SCHAEFER, that have conflicts from those that do and incorporates the Senate bill's re­ U.S. House of Representatives, not. Wilderness, however, is a com­ strictions on motorized travel on a spe­ Hon. PATRICIA SCHROEDER, plicated issue requiring Members of cific Forest Service trail. U.S. House of Representatives, Congress to make tough choices. Rep­ The majority of differences in acre­ Hon. DAVID SKAGGS, resentatives from every State have the age in the areas in actually due to a U.S. House of Representatives, opportunity to judge the work we have formal recalculation of the acreage Washington, DC. done and to add areas within my con­ that I asked the Forest Service to con­ DEAR SENATOR BROWN, SENATOR WIRTH, CONGRESSMAN ALLARD, CONGRESSMAN CAMP­ gressional district that they have duct. BELL, CONGRESSMAN HEFLEY, CONGRESSMAN heard have "outstanding wilderness The substitute would rename the ex­ SCHAEFER, CONGRESSWOMAN SCHROEDER AND values." isting Big Blue Wilderness Area as CONGRESSMAN SKAGGS: Please be advised Passing a Colorado wilderness bill is Uncompahgre Wilderness in recogni­ that the Colorado Water Congress (CWC) important to me and my Colorado con- tion of the original name of the Forest Board of Directors, CWC Federal Affairs September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24635 Committee and CWC Special Committee on Whereas, Congress is considering S. 1029 has wanted to get in, and play, and Colorado Wilderness met on March 23, 1992, which represents a legitimate and good-faith there has been all sorts of problems. in Denver and adopted unanimously the fol­ balancing of the issues involved in the des­ We have had more maps on the wall in lowing motion (Miskel Motion, Hobbs Sec­ ignation of wilderness, and the compromise this body than we have almost had ond): inherent in S. 1029 cannot and should not be (1) CWe is firmly in support of "The Colo­ changed without destroying the consensus walls. So the boundaries of this have rado Wilderness Act of 1991" (S. 1029) as it which supports this legislation; and been discussed over and over again, in was passed by the U.S. Senate; Whereas, S. 1029 will result in the designa­ many, many forms. Everybody has (2) ewe is in strong support of Colorado's tion of an area larger than the entire state of talked about it, but the bottom line be­ Congressional Delegation-particularly Con­ Rhode Island as wilderness; and came the very delicate issue the gen­ gressman Campbell, in whose District nine­ Whereas, The opposition to S. 1029 by ex­ tleman talked about, and that is the ty-five percent of the lands to be designated tremists on both sides of the issue should not as wilderness are located-in the effort to se­ be allowed to jeopardize this unique oppor­ issue of water. cure passage of S. 1029 through the U.S. tunity for a resolution of this important In our State, water is golden. And the House of Representatives; issue; now, therefore, fear that the Federal Government (3) The Colorado Water Congress believes Be It Resolved by the Senate of the Fifty­ might somehow interfere with that has that the process to pass S. 1029 should move eighth General Assembly of the State of Colo­ been a very delicate compromise that forward. If attempts to amend S. 1029 are rado, the House of Representatives concurring we think has now been worked out. made in the House, CWC urges Colorado's herein: I really and truly want to thank Con­ House delegation to do everything in its That Congress is urged to adopt only such gressman CAMPBELL. I do not think power to prevent such amendment attempts; wilderness legislation as embodies the fol­ and lowing principles: anybody could have worked harder (4) If the "Colorado Wilderness Act of 1991" (1) Wilderness legislation must fully pro­ than he has on this. To see 14 years of (S. 1029) is adopted by the House of Rep­ tect private property rights; work compressed into these few min­ resenta tives in a form that is different from (2) Boundaries for wilderness areas must be utes on the floor does not quite give the Senate version of S. 1029, then ewe re­ drawn so as to include only those areas the flavor for how many caucuses, quests Colorado's two U.S. Senators to re­ which are suitable for such designation, meetings, and maps have been drafted store S. 1029 to the form that they so care­ while excluding conflicting uses within such around this, and discussions and lan­ fully crafted in the Senate and sent to the boundaries to the extent possible; House. (3) Reasonable rights of access for private guage and all sorts of different drafts If there are any questions, please do not property must be reconfirmed and main­ that have floated around about this. hesitate to contact us. tained; But I think for our entire country this Sincerely yours, (4) Federal reserved water rights for all ex­ wilderness area is indeed a great treas­ ED POKORNEY isting and new wilderness areas must be ex­ ure. President. pressly disclaimed; (5) Water resource values in wilderness 0 1240 SENATE JOINT RESOLUTION 92-9 areas in this state should be protected Today, to be able to act on it and Whereas, There is currently pending before through the Colorado instream flow pro­ hopefully conclude it in this session the United States Congress legislation to es­ gram; after all of these years, would be a ter­ tablish wilderness areas in Colorado; and (6) The designation of wilderness areas Whereas, The benefits of designating wil­ should not interfere with state water alloca­ rific, terrific conclusion, because basi­ derness areas must be balanced against the tion and administration, or limit existing or cally the American people will win. consequences of such designation upon the future development and use of Colorado's If we do not put this land away, it economic and social welfare of the citizens of interstate water allocations; and will get nibbled away, and that is what Colorado; and (7) Public lands which have been studied it is all about, so I thank everybody for Whereas, The designation of wilderness for possible designation as wilderness areas working so hard to make sure that this areas may significantly affect the economic and which are not being designated as wil­ hopefully comes to a conclusion this health of this state by adversely impacting derness areas at this time should be released private and public property interests and from study status and returned to multiple year, and especially the gentleman rights in land, water, and mineral resources, use. from California [Mr. CAMPBELL] for his by establishing barriers to access to such Be It Further Resolved, That copies of this sweat equity that he put into this wil­ property interests, by preempting existing resolution be transmitted to the Speaker of derness. Believe me he has done an private property rights, and in otber ways; the United States House of Representatives, awful lot of work on it. and the President of the United States Senate, Mr. RHODES. Mr. Speaker, I yield Whereas, Readily available and reliable each Member of Congress from the State of myself such time as I may consume. water supplies are absolutely vital to the Colorado, the Chairman of the United States health and economic development of the peo­ Senate Energy and Natural Resouces Com­ Mr. Speaker, let me just say, in clos­ ple of this state; and mittee, and the Chairman of the Committee ing, having gone through this process Whereas, Uncertainty relative to the exist­ on Interior and Insular Affairs of the United in Arizona, I know how agonizingly dif­ ence of implied federal reserved water rights States House of Representatives. ficult this has been for Colorado. I for existing and new wilderness areas clouds Mr. VENTO. Mr. Speaker, I yield 2 know how contentious that it has been. property titles, discourages natural resource minutes to the gentlewoman from Col­ I want to congratulate all of the management and development, and disrupts orado [Mrs. SCHROEDER]. Members of the delegation for getting the State's water rights administration sys­ to this point. We recognize that what tem, resulting in economic stagnation and Mrs. SCHROEDER. Mr. Speaker, I unproductive litigation; and thank the gentleman from Minnesota we are doing today is simply moving Whereas, Federal reserved water rights for for yielding the time, and just wanted the process another step, but it is a wilderness areas in Colorado are inconsistent to congratulate both the gentleman huge step. It is not over until it is over. with the right and ability of Colorado to ef­ from Minnesota and the gentleman But the best of luck to my colleagues fectively manage and fully utilize the valu­ from Colorado for bringing this to the from Colorado to get legislation passed able water resources allocated to it by inter­ floor. and before the President before the end state compacts and equitable apportionment One of the great mysteries in this of this Congress. decrees; and Whereas, The laws of Colorado and the place is how something can only take I wish you my best. instream flow program of the Colorado 40 minutes. This bill has taken about 12 Mr. Speaker, I have no further re­ Water Conservation Board are adequate to years. I think we have spent more time quests for time, and I yield back the protect water resource values in wilderness talking about the wilderness. We in balance of my time. areas in Colorado; and Colorado feel it is very important, be­ Mr. VENTO. Mr. Speaker, I yield my­ Whereas, National forest lands are fore­ cause we view ourselves as the lungs of self 1 minute. closed from multiple use while they retain Mr. Speaker, I will say that this is a wilderness study status, resulting in loss of the Nation, where people come to economic and recreational opportunities, breathe. bill that has, as I said 700,000 acres of and sufficient time has passed for study of Most of this is in the district of the wilderness, 100,000 acres of other con­ the suitability of such lands for wilderness gentleman from Colorado who just servation lands, and it is obviously im­ designation; and spoke before me, and yet, everybody portant. 24636 CONGRESSIONAL RECORD-HOUSE September 14, 1992 Obvi ously, the issue of wat er began I am not actively opposing the House ver­ Preservation System. This would increase in some of the Colorado courts, and it sion of this bill only because of my belief that from 4 percent to 5 percent the amount of continues. We hope that we can r esolve ensuring negotiations will codify the Senate Colorado's land that's been set aside for per­ that, these problems, wit h the mem­ agreement, which expressly disclaims Federal manent preservation in its natural state. bers of the Colorado delegation and the reserve water rights. Should this bill come The new wilderness areas are spectacular Senate and present this bill to t he back to the House in its present form or any lands that will stir the soul of anybody who President for enactment befor e t he other which strays from protection of private sees them. The flagship area of this bill is the conclusion of this session. property rights and disclaims the existence of Sangre de Cristo Wilderness, to include about I urge Members to support t he bill. Federal reserve water rights, then I will vigor­ one-third of the total acreage in the bill. The Mr. HEFLEY. Mr. Speaker, I hope today's ously work against its passage. Bowen Gulch additions to the Never Summer action marks the beginning of the end for de­ The challenge I see in designating Colorado Wilderness will include major stands of old­ bate on new Colorado wilderness areas that wilderness is finding that delicate balance, a growth trees. The new Williams Fork Wilder­ has lasted for more than a decade. In general, balance which offers more wilderness without ness will include a portion of the continental the boundary corrections suggested by the taking away the property rights or water rights. divide in the congressional district I represent. chairman, Mr. VENTO, appear worthwhile and S. 1029, as reported out of the Senate, comes One area, however, that I think deserves should be considered in this Chamber's con­ the closest to achieving this balance. S. 1029 additional consideration by the cont erees to be sultations with the other body. broke the stalemate that has existed for more appointed on this bill is the Piedra area. In the Still, I would be remiss if I did not restate than a decade with Colorado wilderness. Senate bill, this would be a new wilderness my grave reservations concerning the asser­ Although S. 1029 may not be the perfect area; in the House bill, it would remain a wil­ tion of the Federal reserved water right in the wilderness bill, the main reason it has galva­ derness study area. When the conferees con­ manager's amendment to today's bill. Neither nized so much support stems from its biparti­ sider the boundaries for this area, I urge them I nor any of the Republican members of this san input and the fact that there is no preemp­ to pay particular attention to the spectacular delegation can support such a water right and tion of Colorado water law. It is a compromise old-growth timber stands in this area, to in­ are today withholding our objections only on bill that reflects the interests of a wide spec­ clude as much of these irreplaceable trees as the assurance the Senate will not allow such trum of parties. I am committed to the notion possible in the protected area. an assertion to stand. of maintaining Colorado's ability to control its Rather than boundary questions, though, it As I have previously stated, Colorado's own water, and will therefore vehemently op­ has been the question of water that has de­ water laws are among the oldest in the West pose any attempt to create a Federal reserve layed agreement on a new Colorado wilder­ and have evolved to reflect the needs of a water right on the final Colorado wilderness ness bill. The water question has been wheth­ high desert area of moderate population that bill. er to explicitly create new water rights for receives less than a foot of precipitation each I wish Senators WIRTH and BROWN good these lands to protect their wilderness values. year in many places. The laws that govern luck in their furtherance of this bill, but trust As we are going to pass this bill today, we Colorado's six major rivers reflect not only its their resolve to abide by the critical elements will answer that question in the affirmative­ own needs but the needs of other Western of their original compromise. we are going to reserve additional water rights States, by compact, and of another nation, Mr. SKAGGS. Mr. Speaker, I am delighted for these lands arising from their new wilder­ Mexico, under treaty. that we finally have a Colorado witderness biH ness status. This is what Congress has done In place of this carefully nurtured body of before the House of Representatives, for the in every case in recent years when passing laws, the chairman proposes to insert a Fed­ first time since 1980. new wilderness bills for Western States, and I eral reserved water right for wilderness areas. This bill represents several important break­ believe it is an appropriate thing to do today. Even if we set aside the need to assert such throughs, including agreements on most I have long said, and I still believe, that wilder­ rights in a headwaters area, even if we dis­ boundary matters and, for the time being, an ness needs water. By explicitly reserving miss the argument of States, rights versus agreement to disagree on water. water for the wilderness areas, we wiH ensure Federal preemption, even if we ignore the fact Hanging in the balance is some of the most that the new wilderness cannot be dried up. that the S. 1029 language does all a reserved spectacular land in all of America, ranging By including some important provisions, we water right does-and more-the most its sup­ from mountains more than 14,000 feet high to will protect western water law and other water porters can say is that a Federal reserved dramatic river canyons, from sweeping ex­ users. Those provisions include: water right stretches to fit all situations. This is panses of alpine tundra to enchanting stands A provision specifying that the extent of the too uncertain a theory on which to base the of old-growth forests. We who are now alive wilderness water rights shall be the amount of water needs-and the future-of the American have been entrusted with these marvelous water necessary to fulfill the purposes of the West. lands as their temporary stewards. It is our re­ wilderness designation-and therefore not In this, I would agree with remarks made sponsibility to ensure that they remain part of necessarily all the water flowing through the Thursday by another member of the Sub­ the natural heritage that we leave for future wilderness area. committee on Parks and Public Lands. We generations. A requirement that the wilderness water westerners want ironclad guarantees on this It would be impossible to identify all the rights be adjudicated in State water courts. issue, because water is not a legal theory in work that has gone into preparing this bill for A clarification that the seniority of the wilder­ the West. It is the source of life. And for that floor action today. I would like to single out for ness water rights is determined by the date of reason, I cannot support the inclusion of a particular appreciation the work of Represent­ the wilderness designation, not by the date of Federal reserved water right in this bill. ative BRUCE VENTO, the chairman of the sub­ the creation of an underlying national forest or Mr. ALLARD. Mr. Speaker, it is clear that committee, and Representative BEN other land reservation. Coloradans want more wilderness and I, per­ NIGHTHORSE CAMPBELL, in whose district most Adopting this language would be a good sonally, want to see more wilderness. It is for of these lands lie, for their leadership and co­ way to settle the water controversy. It is a this reason that Congressman SCHAEFER and operation in preparing this bill. Both have well-balanced way to ensure that wilderness myself were the first to put a wilderness bill given me every consideration and every cour­ gets the water it needs and that western water out on the table. tesy in listening to my many suggestions, law and water users are protected. And, be­ It is no secret that I have had some serious drawn from the Bowen Gulch Wilderness cause it is the language that has been in­ reservations about the language of the House Act-which Representative PAT SCHROEDER cluded in other wilderness bills, it avoids bal­ substitute to S. 1029. Unlike the Senate ver­ and I first introduced in October 1990, and re­ kanizing the national wilderness preservation sion, so carefully crafted by Senators BROWN introduced in March 199 1-and from the com­ system-splitting it up into different sub­ and WIRTH, the bill reported out of two House prehensive suggestions I made in May 199 1, systems, each with its own rules and policies. Committees, Interior and Agriculture, remained when I recommended wilderness designation We are all aware, of course, that the Senate silent with respect to water rights so that the for 1,073,070 acres in Colorado, and wilder­ version of this bill includes different water pro­ legislative process could move forward in the ness study for another 147,950 acres. visions, and that this will be a matter of some House committees. Undoubtedly, water rights Although this bill does not include protection controversy in the conference committee. Be­ will be one of the main issues to be resolved for all these lands, it would add about 670,000 cause the new areas are almost entirely just in conference. acres in Colorado to the National Wilderness headwaters areas-with very little or no oppor- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24637 tunity for upstream diversions outside the wil­ both the Federal Government and the property ual is an eligible individual, there is an ap­ derness areas-this is perhaps more · impor­ owners for years to come. propriate balance of positive and negative tant because of the principles and precedents I am not enamored with these develop­ evidence regarding the merits of an issue material to the determination of eligibility, involved than because of any actual resource ments. However, Colorado's two Senators, the benefit of the doubt in resolving each conflicts in the areas involved. Because this is Messrs. BROWN and WIRTH, have requested such issue shall be given to such individ­ so, I think this controversy can be settled in that we move ahead. The bill we are consider­ ual.". other ways besides finally adopting the explicit ing right now is a bad one. I reluctantly allow (b) JUDICIAL REVIEW.-Section 105 of such reserved water rights language the House is this process to move forward only at the Sen­ Act is amended by adding at the end the fol­ passing today. As I've suggested in testimony ators' request and with their steadfast assur­ lowing: to both House and Senate committees, it ances that the final product emerging from this "(h) JUDICIAL REVIEW.- Congress will wholly reflect the hard-fought "(l) REVIEW BY THE CLAIMS COURT.-A would be acceptable to me to remain silent on claimant may seek judicial review of a de­ the issue, and continue to leave it to the compromise passed by the Senate. nial of compensation under this section sole­ courts, which, after all, created the reserved Colorado is a beautiful State and has many ly in the United States Claims Court, which water rights doctrine. areas worthy of the wilderness designation. I shall review the denial upon the administra­ The decisions Congress must make about look forward to accomplishing this result in a tive record and shall hold unlawful and set these lands are, literally, decisions for all time. responsible manner and remain hopeful that aside the denial if it is found to be arbitrary, If, for example, the ol~rowth trees in Bowen this can be accomplished prior to our adjourn­ capricious, an abuse of discretion, or other­ Gulch or the Sandbench area are cut, we may ment this year. wise not in accordance with law. not see their kind again in our State for a long, Mr. VENTO. Mr. Speaker, I have no "(2) APPLICABILITY.-This subsection shall apply only to any claim filed in court on or long time. On the other hand, if Congress sets further requests for time, and I yield after the date of the enactment of this sub­ these areas aside as wilderness, that is the back the balance of my time. section.". best guarantee of protection that has ever The SPEAKER pro tempore (Mr. (c) CONFORMING AMENDMENTS.-Section 105 been devised by any government. Because no DOOLEY). The question is on the motion of such Act is amended­ land designated as wilderness has ever been offered by the gentleman from Min­ (1) in subsection (a)--­ removed from the wilderness preservation sys­ nesota [Mr. VENTO] that the House sus­ (A) in paragraph (1)--- tem. And, according to the basic Wilderness pend the rules and pass the Senate bill, (i) by striking "(6)" and inserting "(7)"; and Act of 1964: S. 1029, as amended. (ii) by striking "(4)" and inserting "(5)"; A wilderness, in contrast with those areas The question was taken; and (two­ (B) in subparagraph (B) of paragraph (4) (as where man and his own works dominate the thirds having voted in favor thereof) redesignated by subsection (a)(l) of this sec­ landscape, is hereby recognized as an area the rules were suspended, and the Sen­ tion)--- where the earth and its community of life ate bill, as amended, was passed. (i) by striking "(4)" and inserting "(5)"; are untrammeled by man, where man himself A motion to reconsider was laid on and is a visitor who does not remain. the table. (ii) by striking "(5)" and inserting "(6)"; Nowhere else in the United States Code is (C) in paragraph (6) (as redesignated by there another passage of statutory language subsection (a)(l) of this section)--- (i) by striking "(4)" and inserting "(5)"; with such poetry. That's understandable. Even CIVIL LIBERTIES ACT and Congress can have its emotions stirred when AMENDMENTS OF 1992 (ii) by striking "(3)" and inserting "(4)"; it passes a wilderness act. I hope that, after a Mr. FRANK of Massachusetts. Mr. and conference committee meets to resolve the Speaker, I move to suspend the rules (D) in paragraph (7) (as redesignated by differences between the House and Senate and pass the bill (H.R. 4551) to amend subsection (a)(l) of this section) by striking versions of this bill, that this again will be a the Civil Liberties Act of 1988 to in­ "(6)" and inserting "(8)"; and year when Congress passes a Colorado wil­ (2) in subsection (b) by striking "(6)" and crease the authorization for the Trust inserting "(8)". derness act. Fund under that Act, and for other pur­ Mr. SCHAEFER. Mr. Speaker, I rise today SEC. 5. TERMINATION OF DUTIES OF ATIORNEY poses, as amended. GENERAL. to comment on the legislation now before, us, The Clerk read as follows: Section 105(e) of the Civil Liberties Act of the Colorado Wilderness Act of 1991. S. 1029 R.R. 4551 1988 (50 U.S.C. App. 1989lr4(e)) is amended by is the culmination of over a decade of at­ Be it enacted by the Senate and House of Rep­ striking "when the Fund terminates." and tempts to create additional wilderness acreage resentatives of the United States of America in inserting "180 days after the Fund termi­ in Colorado. Congress assembled, nates.". I fully support efforts to move forward to­ SECTION 1. SHORT TITLE. SEC. 6. EXCLUSION OF PAYMENTS AS INCOME FOR VETERANS BENEFITS. ward a final resolution to the longstanding dis­ This Act may be cited as the " Civil Lib­ (a) EXCLUSION.-Section 105(!)(2) of the putes we have faced in this debate. Through­ erties Act Amendments of 1992". out the process, I have fought for two goals: Civil Liberties Act of 1988 (50 U.S.C. App. SEC. 2. AUTHORIZATION FOR TRUST FUND. 1989lr4(f)(2)) is amended by striking out", or The protection of private property rights, and Section 104(e) of the Civil Liberties Act of the" and inserting "or available under any the guarantee that Colorado maintain control 1988 (50 U.S.C. App. 19891r3(e)) is amended by other law administered by the Secretary of of the water resources flowing through our striking "$1,250,000,000" and inserting Veterans Affairs, or for purposes of deter­ State. "$1,650,000,000". mining the". S. 1029, as passed by the Senate, accom­ SEC. 3. DEFINmONS. (b) EFFECTIVE DATE.-The amendment plishes these two goals. Boundary lines and Section 108(2) of the Civil Liberties Act of made by subsection (a) shall be effective as water language were carefully drafted to en­ 1988 (50 U.S.C. App. 19891r7(2)) is amended in of August 10, 1988. sure that result and I am supportive of this the matter preceding subparagraph (A) by in­ SEC. 7. COMPLIANCE WITH BUDGET ACT. serting ", or the spouse or a parent of an in­ Section 110 of the Civil Liberties Act of carefully constructed compromise. With the dividual of Japanese ancestry," after "Japa­ changes the House has produced, however, it 1988 (50 App. 19891r9) is amended-.:: nese ancestry". (1) by inserting "(a) IN GENERAL.-" before is clear that these outcomes are now in jeop­ SEC. 4. BENEFIT OF THE DOUBT; JUDICIAL RE· " Subject to"; ardy. VIEW. (2) in subsection (a) (as so designated by The House has ignored the wishes of Colo­ (a) BENEFIT OF THE DOUBT.-Section 105(a) paragraph (1))--- rado's delegation by inserting a Federal re­ of the Civil Liberties Act of 1988 (50 U.S.C. (A) in the first sentence, by inserting "and served right to the water in these newly cre­ App. 1989b-4(a)) is amended- except as provided in subsection (b)" after ated wilderness areas. My position on this (1) by redesignating paragraphs (3) through "105(g) of this title"; and matter is quite clear: I am firmly opposed to (7) as paragraphs (4) through (8), respec­ (B) by striking the second sentence; and tively; and (3) by adding at the end the following new granting the Federal Government such a water (2) by inserting after paragraph (2) the fol­ subsections: right. It is senseless for the purposes of this lowing: "(b) PAYMENTS FROM DISCRETIONARY AP­ legislation and is poor public policy. Addition­ "(3) BENEFIT OF THE DOUBT.-When, after PROPRIATIONS. - ally, there are many private inholdings in some consideration of all evidence and relevant "(1) PAYMENTS.-Any such payment made of the areas which will create a burden for material for determining whether an individ- to an individual who is not of Japanese an- 24638 CONGRESSIONAL RECORD-HOUSE September 14, 1992 cestry and who is an eligible individual on decision we made 5 years ago. They commitment Congress and the Presi­ the basis of the amendment made by section simply give effect to it, and I hope that dent made to Japanese-Americans in 3 of the Civil Liberties Act Amendments of the legislation will be passed. 1988. 1992 shall not be an entitlement and shall be made from discretionary appropriations. Mr. Speaker, I reserve the balance of During World War II, the United . "(2) AUTHORIZATION OF APPROPRIATIONS.­ my time. States Government ordered Japanese­ There are authorized to be appropriated for Mr. GEKAS. Mr. Speaker, I yield my­ Americans from their homes and into fiscal year 1993 and each subsequent fiscal self such time as I may consume. internment camps. Practically over­ year such sums as may be necessary for the Mr. Speaker, I offer to compliment night, these Americans lost much of payments from discretionary appropriations the gentleman from Massachusetts for what they had worked for and what described in paragraph (1). the speedy consideration of this piece they thought the United States Gov­ "(c) DEFINITIONS.-As used in this section­ "(1) the term 'discretionary appropria­ of legislation. ernment would protect. tions' has the meaning given that term in The Congress may have had a divi­ The experience of Japanese-Ameri­ section 250(c)(7) of the Balanced Budget and sion of opinion back in the late 1980's cans during World War II shows in Emergency Deficit Control Act of 1985 (2 when we first debated this particular painful detail that the protections and U.S.C. 900(c)(7)); and issue, and there was heated and proper rights provided by the Constitution are "(2) the term 'entitlement' means 'spend­ debate, as I recall. But the ultimate de­ meaningless unless we as citizens are ing authority' as defined in section cision of the Congress then was to prepared to make certain they are 401(c)(2)(C) of the Congressional Budget Act upheld. In 1942, too many Americans of 1974 (2 U.S.C. 65l(c)(2)(C)).". · make sure that every individual ille­ gally interned during that bad period were willing to ignore the Constitution The SPEAKER pro tempore. Pursu­ in American history should be placed and give in to the mistaken belief that ant to the rule, the gentleman from on the list to later be compensated by Japanese-Americans would not be loyal Massachusetts [Mr. FRANK] will be rec­ the Government which acted so bla­ to the United States. ognized for 20 minutes, and the gen­ tantly illegally against that individ­ All Americans, not just those in­ tleman from Pennsylvania [Mr. GEKAS] ual, and so we come to a point today terned in resettlement camps, were di­ will be recognized for 20 minutes. where the issue, as far as we are con­ minished by the arbitrary denial of The Chair recognizes the gentleman civil liberties of Japanese-Americans. from Massachusetts [Mr. FRANK]. cerned, is moot. We want to provide the proper rem­ These rights are meaningless unless ev­ Mr. FRANK of Massachusetts. Mr. eryone enjoys them. Speaker, I yield myself such time as I edy for those persons interned. The de­ bate of the past as to whether or not Congress reaffirmed its commitment may consume. to individual rights by passing the Mr. Speaker, I thank the ranking mi­ we should do it no longer appears on the horizon, no longer is a part of the Civil Liberties Act of 1988. Under this nority Member for his cooperation in bill, the United States Government is­ bringing this bill forward. debate. The only thing that remains to sued a formal apology for the intern­ Mr. Speaker, we passed some time do is to make sure we complete the job ment policy and began making repara­ ago, I believe 1988, in the House, in the that the original legislation offered to tions payments to the survivors. full Congress, a bill which recognizes do, namely, to compensate those in­ Because original estimates of the the error that was made when innocent terned. number of eligible reparations recipi­ people were interned during World War The numbers having been now ex­ ents were low, Congress now needs to II. We had a procedure set forward at panded to include people not first con­ authorize additional funds for the pro­ that time to do what we could to undo templated is the right thing to do for gram. By passing H.R. 4551 we can en­ that error. We could not, of course, to­ the Congress. And so we offer complete sure that everyone entitled to repara­ tally undo it, but we could do the best and unanimous support for the legisla­ tions under the 1988 act will receive that was possible 40-some-odd years tion. them. Not only will the Federal Gov­ later. Mr. Speaker, I have no further re­ ernment's apology then be complete, I want to commend the Justice De­ quests for. time, and I yield back the but we will have also shown that there partment under this current adminis­ balance of my time. is meaning behind the words in the tration. They have done an excellent Mr. FRANK of Massachusetts. Mr. Constitution. job in administering this. You often Speaker, I yield such time as he may GENERAL LEAVE hear about problems. You hear about consume to the gentleman from Cali­ Mr. FRANK of Massachusetts. Mr. money misspent. Here we have had a fornia [Mr. EDWARDS], a very distin­ Speaker, I ask unanimous consent that significant sum of money well spent, guished senior member of the sub­ all Members may have 5 legislative well administered. The Justice Depart­ committee. days in which to revise and extend ment has~ in fact, done a better job Mr. EDWARDS of California. Mr. their remarks on H.R. 4551, the bill now than we thought they were going to do, Speaker, I thank the chairman of the under consideration. and they have, working with the com­ subcommittee for yielding me this The SPEAKER pro tempore. Is there munity, effectively the Japanese­ time and congratulate him and the objection to the request of the gen­ Americans, identified a significant gentleman from Pennsylvania [Mr. tleman from Massachusetts? number of people we were legally eligi­ GEKAS] for the splendid work in bring­ There was no objection. ble under this bill. ing this bill to the floor. Mr. MATSUI. Mr. Speaker, I rise today in We had a cap on it which now turns Mr. Speaker, I rise today in support strong support of H.R. 4551, the Civil Liberties out to be an interference with the ap­ of H.R. 4551, the Civil Liberties Act Act Amendments of 1992. Today we will vote propriate administration of the legisla­ Amendments of 1992. I want to com­ to finish the work which we began in 1988 tion. mend my colleagues on the Judiciary when we passed the original Civil Liberties We also want to make it clear that Committee for their work in bringing Act. That act promised to help America come spouses not of Japanese ancestry who this measure to the floor. I also want to grips with one of its darkest moments: the chose to accompany their spouses when to express my deep appreciation for the forced internment of Japanese-Americans, citi­ their spouses were incarcerated should work of my friend and fellow Califor­ zens of the United States, who were victims of be treated in a similar fashion. I should nian, NORM MINETA, for his consistent racism and mass hysteria. H.R. 4551 assures certainly think, with all the emphasis leadership on this issue. Without his that a mere technicality will not prevent eligible on family, that we would feel that this persistence, the United States Govern­ and deserving former internees from receiving decision not to have a family split up ment may never have issued its long­ just compensation, and also provides com­ but to share the fate with one's spouse awaited apology to the Japanese-Amer­ pensation for deserving individuals who were is a decision that ought to be fully rec­ icans interned during World War II. inadvertently overlooked by the original legis­ ognized. Mr. Speaker, today we are not break­ lation. These are in the nature of technical ing new ground. We are merely taking This issue transcends the narrow interests amendments. They do not change the the next necessary steps to honor a of providing redress to those who were in- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24639 terned during World War II, and symbolizes an a few hours' notice. Families could take with Once the payments to individuals have been affirmation of the Constitution of the United them only what could be carried, and they completed, a board of directors of the fund will States of America. The Civil Liberties Act of were taken by train to internment camps be named. At that point, moneys in the fund 1988 affirmed one of the fundamental, inalien­ where they were held for up to 4 years. will be used for historical research and public able rights upon which this country was found­ Two-thirds of those relocated to the intern­ education, with the purpose of ensuring that ed: the right to freedom from unconstitutional ment camps were U.S. citizens. The others the internment is remembered and that similar interference with liberty of the citizens of the were permanent resident aliens who were in­ violations of civil liberties never occur again. United States of America. eligible for citizenship because of their race. Unfortunately, the attitudes that led to the Some historians continue to debate whether These acts of injustice were committed on the internment have not disappeared. Hate crimes there were significant losses when Japanese­ basis of security reasons although not one act have recently increased dramatically against Americans were relocated from their homes, of sabotage or espionage has ever been doc­ Asian-Americans and other citizens; suspicion or whether the camps provided an idyllic expe­ umented. fell on Arab-Americans during the Persian Gulf rience. Yet those who merely look at the prop­ The losses incurred by the victims of these war, including a troubling program operated by erty and business losses of those who were events are incalculable. Their deprivations go the FBI to interview Arab-Americans about ter­ interned overlook the highest cost of all-indi­ far beyond the homes, farms and businesses rorist activity. We cannot afford to relax our ef­ vidual pride and trust in the American system. that were left behind or sold for a fraction of forts to prevent prejudice, discrimination, the This debate has never been about money. their worth. Careers and children's educations abrogation of civil rights, and the violation of The issue cuts to the heart of the foundation suffered irreparable damage. Their basic con­ civil liberties. of freedom and liberty in American society. stitutional rights of due process and equal pro­ In order to complete the payments to indi­ Today we are seeking to fulfill the congres­ tection under the law went ignored. They suf­ viduals and fulfill the educational purpose of sional intent of the redress law and to com­ fered terrible humiliation and shame as they the Civil Liberties Act, I urge support for pas­ plete the healing process that is so important were regarded as disloyal and dangerous to sage of H.R. 4551 today. to Americans of Japanese ancestry. I wish the their own country. Mr. MINETA. Mr. Speaker, I rise today in original legislation was sufficient, but we are Conditions in the internment camps were strong support of H.R. 4551 and I urge my confronted by the fact that the original redress difficult. Located inland in desolate areas of colleagues to join me in moving for its quick funding request was inadequate. The Office of Wyoming, Colorado, California, Idaho, Utah, adoption. Redress Administration at the Department of Arkansas, and Arizona, the camps offered little Mr. Speaker, the forcible removal and in­ Justice estimates that redress funding will ex­ or no privacy, a poor diet, and inadequate ternment of Japanese-Americans during World pire before nearly 15,000 eligible recipients re­ medical care. The living quarters were War II is a stain on our national honor. Thanks ceive their payments. If the funding is ex­ cramped, housing an average family of six in to the passage of the Civil Liberties Act of hausted, we would be left with an inequity one room. 1988 in the 1Oath Congress, that stain is fi­ where most would have received payments, Ironically, while family and loved ones were nally being erased. but others, whose birthdates came later, would being held in barbed-wire camps, thousands The legislation before us today will complete still be awaiting payments. of Japanese-Americans were serving in the that process. H.R. 4551, the Civil Liberties Act H.R. 4551 will increase the authorization to United States military. To prove their loyalty to Amendments of 1992, will authorize the fund­ provide adequate funding for all eligible recipi­ their country, many joined the military right ing necessary to fully implement that act, and ents. The new authorization would cover the from the internment camps. The 442d Regi­ will ensure that our Nation lives up to its com­ payments for all the surviving recipients and mental Combat Team, made up of second mitment to redress the wrongs of the intern­ maintain a fund created by Congress to edu­ generation Japanese-Americans, was one of ment and evacuation. cate the public about the internment history. the most decorated combat teams in World As the Commission on Wartime Relocation We have an obligation to make good on rep­ War II . and Internment of Civilians documented in its arations for those who were removed from The 1Oath Congress took an historic step in report, "Personal Justice Denied," the removal their homes and interned 50 years ago. This adopting the Civil Liberties Act of 1988, which of Japanese-Americans from the west coast legislation will bring that obligation to its fru­ officially apologized for the internment and au­ was carried out despite the fact that there was ition and relieve the pains that have not been thorized reparations payments to the survi­ not one documented instance of espionage, healed by time. The legislation also incor­ vors. Through this act, Congress acknowl­ sabotage or fifth-column activity committed by porates provisions originally introduced in my edged that those in power at the time failed to an American of Japanese ancestry or Japa­ bill, H.R. 4553, which protects benefits due to uphold the Constitution. We owe it to every nese resident alien on the west coast. veterans and survivors. Without this clarifying American citizen to follow through on the com­ Without any shred of proof of disloyalty, language, those veterans and survivors who mitment to correcting that miscarriage. more than 120,000 Americans of Japanese also receive redress payments would lose To date, 50,000 individuals have received ancestry were forced from their homes and their eligibility for VA pension benefits, which their redress payments. The Office of Redress businesses and into internment camps scat­ is a stark departure from the intent of Con­ Administration in the Department of Justice tered throughout the country. gress. has identified 95 percent of those eligible for When the racial hysteria that followed the H.R. 4551 is extremely important legislation payment. The program is well under way and attack on Pearl Harbor began to seek out tar­ which will send a signal to the American peo­ is achieving the objectives of the legislation. gets, it settled very quickly on Americans of ple that the American system works and that To complete all redress payments, however, Japanese ancestry. The interviews and arrests Americans can believe in the safeguards of an additional authorization is needed. were just the beginning. Between December our Constitution. I ask all Members of Con­ Congressman MINETA and I have introduced 1941 and February 1942, we were excluded gress to join me in supporting this legislation. legislation, the Civil Liberties Act Amendments from a growing list of security areas. As we Mr. GEPHARDT. Mr. Speaker, I rise today of 1992, to provide the additional authorization quickly learned, even American citizenship in strong support of H.R. 4551, additional au­ that will enable the Department of Justice to meant nothing if your parents or grandparents thorization for the Civil Liberties Act. The pas­ fulfill the mandates of the law. Our legislation happened to have come from Japan. sage of the Civil Liberties Act of 1988 rep­ authorizes an additional $400 million for the President Roosevelfs signing of Executive resented a courageous and necessary step to­ civil liberties public education fund, which was Order 9066 on February 19, 1942, was soon ward making amends for the harm done to created in 1988 by the original act. followed by orders from the Army that de­ American citizens during World War II. I would One purpose of the fund is to make redress clared the western halves of the States of like to recognize Representative MINETA for payments of $20,000 to each eligible individ­ California, Oregon, and Washington, and the his tireless work and dedication on behalf of ual. Earlier it was estimated that 60,000 indi­ southern half of Arizona as security zones this effort. vidual were eligible for payment. The Depart­ where Americans of Japanese ancestry would Fifty years ago our Government issued di­ ment of Justice now estimates that the original be excluded. rectives ordering the evacuation and intern­ figure of 60,000 eligible individuals was too Mr. Speaker, I remember one night in Feb­ ment of 120,000 persons of Japanese ances­ low, and has issued its final estimate that a ruary 1942, when my father called our family try from the west coast of the United States. total of 80,000 redress payments will be need­ together. He told us that he did not know what Some were forced from their homes with just ed to complete the program. would happen to him or my mother, since they 24640 CONGRESSIONAL RECORD-HOUSE September 14, 1992 were resident aliens. Although my father had two of the most decorated units in American ees were still surviving at the time the Civil been in this country for almost 40 years, the military history. Liberties Act of 1988 was signed into law by oriental exclusion law prevented my parents The 1OOth Battalion, originally a part of the Ronald Reagan. from becoming U.S. citizens. Hawaii National Guard, left for the European As the Department of Justice's Office of Re­ But my father was sure that the Constitution theater in September 1943. Fighting as part of dress Administration [ORA] has verified indi­ of this Nation would protect his children, all of the Allied campaign in Italy, the 1,400 men of vidual cases, however, it has become clear whom were American citizens. For as long as the 1OOth suffered an extraordinary level of that the 60,000 estimate was too low. ORA I live, I will never forget my father's shame casualties. now expects to verify 80,000 redress claims, and disillusionment when he discovered that In just the first month and a half of fighting, requiring an additional $400 million. he was wrong. the 1OOth had 78 killed and 239 wounded or H.R. 4551 would provide the additional $250 On March 2, 1942, Gen. John L. DeWitt is­ injured. During that campaign the 1OOth ulti­ million requested by the President for redress sued his Proclamation No. 2, announcing that mately earned 900 Purple Hearts, earning the payments in fiscal year 1993. It will authorize all individuals of Japanese ancestry alien and nickname "The Purple Heart Battalion." $100 million in fiscal year 1994 to make the nonalien would be excluded from the west In June 1944, the 1OOth merged with the final 5,000 redress payments. coast. 442d Regimental Combat Team, which was H.R. 4551 will also expand the Civil Lib­ I was no longer recognized as a· U.S. citi­ composed of Japanese-American volunteers erties Act to include individuals not of Japa­ zen. I had become a nonalien. from Hawaii and the United States mainland. nese ancestry who were interned or evacu­ Mr. Speaker, it was 50 years ago this year The 442d suffered 9,486 casualties during ated along with their Japanese-American that General DeWitt issued his Proclamation the 7 major campaigns it carried out in the Eu­ spouses and children. No. 4, instituting the mass relocation and in­ ropean theater. By the war's end the 442d had Mr. Speaker, I was tremendously pleased to ternment. earned 18, 143 individual decorations including see that the Justice Department made this re­ Many were given just a few days, some­ one Congressional Medal of Honor, 47 Distin­ quest. It affects a relatively small number, cur­ times only hours, to dispose of their posses­ guished Service Crosses, 350 Silver Stars, rently estimated to be no more than 40 peo­ sions and to leave for the assembly centers. 810 Bronze Stars, and over 3,600 Purple ple, but it is an important group nonetheless. We were allowed to take only what we could Hearts. Since they were not themselves Japanese­ The unit was cited seven times by President carry, and none of us knew whether we would Americans, these individuals were not directly Roosevelt and Truman with the Presidential ever see our homes again. affected by the orders that excluded and in­ We were told that our loyalty this country Distinguished Unit Citation. Americans of Japanese ancestry also terned Americans of Japanese ancestry. But was in doubt simply because of our ancestry. played a pivotal role in fighting the war in the because they were the wives and husbands, As General DeWitt said: Pacific. The volunteers of the Military Intel­ and mothers and fathers of Japanese-Ameri­ The Japanese race is an enemy race and ligence Service provided vital support in trans­ cans, they faced a horrible choice: Either re­ while many second and third generation Jap­ lating captured documents and interrogating tain their freedom or preserve their families by anese born on United States soil, possessed following their spouses and children into the of United States citizenship, have become prisoners. Among their most notable accomplishments internment camps. "Americanized," the racial strains are undi- Many were women with small children, 1u ted * * *. That Japan is allied with Ger­ were translations of captured documents re­ many and Italy in this struggle is no ground vealing the call signs and code names for the some only infants when the internment orders for assuming that any Japanese, barred from entire Japanese Imperial Navy, its air squad­ came. Those orders were not concerned with assimilation by convention as he is, though rons, and bases. They also translated docu­ whether individuals represented a threat to born and raised in the Untied States, will ments revealing the entire Japanese naval this country. They cared only about race, and not turn against this nation when the final battle plan for the Philippines. struck even at American children of partial test of loyalty comes. But as these men and women were giving Japanese ancestry. Or, as General DeWitt put it the next day, their all to defend this country and its free­ These parents were told that their children "a Jap is a Jap." doms, they carried with them the. pain of must be taken to an internment camp, but that When we were forced from our homes and knowing that many of their friends and families they themselves could remain free. Those who into the camps, we were told that we couldn't sat locked behind barbed wire fences in the chose to keep their families together by evac­ be trusted. Later, we were told that the evacu­ United States. uating or entering the camps were no less af­ ation and the internment were being done for We had always believed that these sac­ fected, and to call their internment voluntary our own protection. rifices would one day be recognized, and that would be ludicrous. Even as a child of 10 years old, I knew this one day our country would realize how unjust H.R. 4551 will at long last recognize and at­ for the lie that it was. If we were being pro­ our internment had been. In contrast to the tempt to redress the injustice and the indignity tected, then why did the guards on the train tragic disillusionment of 1942, today we know they suffered. and the guards on the watchtowers have their that our faith in this Nation was not misplaced. In addition, H.R. 4551 makes administrative guns pointed in at us, instead of out? Mr. Speaker. I have served in the House for and technical changes to the Civil Liberties For up to 4 years, Japanese-Americans more than 17 years. I can honestly say that I Act that were requested by the administration, were held in the camps, stripped of our most have never felt such pride in this Congress or extending the authority of the Attorney Gen­ basic rights as Americans. The shame of the in this country than on the day the 1OOth Con­ eral under the program and clarifying the pro­ internment and the knowledge that out country gress finally passed H.R. 442, the Civil Lib­ cedure for judicial review for those whose re­ judged us disloyal remains with us to this day. erties Act of 1988. With the passage of the dress claims have been denied. But, Mr. Speaker, the story of Japanese­ Civil Liberties Act, this Nation firmly rededi­ Finally, Mr. Speaker, H.R. 4551 will pre­ Americans is ultimately one of enduring and cated itself to the principles and protections of serve the education function of the civil lib­ unshakable faith in this country. That faith, our Constitution, offering the promise of re­ erties public education fund. The education and our commitment to this Nation, were dem­ dress to those who had been wronged by the program is one of the two key goals of the onstrated time and again throughout the war. internment. Civil Liberties Act: To help ensure that such a By the thousands, Japanese-American men The legislation before us today is vitally nec­ violation of civil liberties never happens again. and women volunteered from the camps to essary to ensure the fulfillment of that prom­ In the wake of our current trade frictions serve in the United States military. In all, ise. with Japan, hate crimes have dramatically in­ 33,000 Americans of Japanese ancestry H.R. 4551, the Civil Liberties Act Amend­ creased against Asian-Americans. Especially served in the Armed Forces during World War ments of 1992, introduced by my good friends in my home State of California, the increase II. the House majority leader RICHARD GEPHARDT has been disturbing. They served in the Military Intelligence Serv­ and the Republican whip NEWT GINGRICH, will On December 7, last year in San Francisco, ice, they served as medics and teachers, they provide the $400 million in additional author­ a gasoline bomb was thrown at a Japanese served in the WAC's, and in the Air Corps. ization needed to complete the original pur­ couple. Last November, a Japanese-American Their most celebrated contributions were in poses of the Civil Liberties Act of 1988. community center in Norwalk, CA, was vandal­ the Army, where the all-Nisei 1OOth Battalion The act authorized $1.25 billion, based on ized and racial slurs painted on the walls. In and 442d Regimental Combat Team became the estimate that 60,000 internees and evacu- January of this year, a cross was burned in September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24641 front of an Asian restaurant in Los Angeles. Finally, Mr. Speaker, I would like to express ensure that the promise of redress is met. I Earlier this year, a bomb threat was made my gratitude to Chairman JACK BROOKS for urge my colleagues to support H.R. 4551 with against the Los Angeles office of the Japa­ moving this legislation forward today; to the entitlement designation, and urge the nese-American Citizens League in connection Speaker TOM FOLEY, who was the lead spon­ President to do so as well. with the day of Remembrance, the Japanese­ sor of the Civil Liberties Act during his tenure Mr. FRANK of Massachusetts. Mr. American community's annual observance of as majority leader; our current majority leader, Speaker, I have no further requests for the anniversary of President Roosevelt's sign­ my good friend RICHARD GEPHARDT, for intro­ time, and I yield back the balance of ing of Executive Order 9066. ducing H.R. 4551; the distinguished Repub­ my time. These are not isolated incidents, Mr. Speak­ lican whip NEWT GINGRICH , the Judiciary Com­ The SPEAKER pro tempore. The er. A recent report by the United States Civil mittee's ranking Republican, HAMIL TON FISH, question is on the motion offered by Rights Commission dramatically demonstrated Representatives HENRY HYDE, DON EDWARDS, the gentleman from Massachusetts continued violence and prejudice against BOB MATSUI, PATSY MINK, NANCY PELOSI, and [Mr. FRANK] that the House suspend Americans of Japanese ancestry and all of all the Members and staff on both sides of the the rules and pass the bill, H.R. 4551 , as Asian-American ancestry. aisle who have helped in the effort to bring amended. The education function authorized by the this bill forward today. This has truly been a The question was taken: and (two­ Civil Liberties Act will serve a crucial role in bipartisan effort. thirds having voted in favor thereoO disseminating an understanding of the intern­ But I must say a special thanks to the gen­ the rules were suspended and the bill, ment, and its place in American history. tleman from Massachusetts [Mr. FRANK] for his as amended, was passed. If there were any remaining doubts that the continued leadership on this program. He and A motion to reconsider was laid on search for scapegoats, and the tendency to­ his dedicated staff are owed a debt of grati­ the table. ward unfounded suspicion remain with us tude not only by Americans of Japanese an­ today, they were certainly removed for me by cestry, but by all Americans who treasure the the experience of Arab-Americans during the rights and freedoms guaranteed by our great Persian Gulf war. Constitution. JACK ALLEN: THANKS FROM THE In late 1990, my office began hearing re­ Mr. Speaker, in passing the Civil Liberties CITY OF SAN LEANDRO ports of interviews of Arab-Americans by Act of 1988 the Congress made a firm com­ The SPEAKER pro tempore. Under a agents of the Federal Bureau of Investigation mitment to redressing the injustice of the in­ previous order of the House, the gen­ and the Secret Service. Loyal Americans ternment, and this Nation rededicated itself to tleman from California [Mr. STARK] is found themselves being asked about terrorist the protections guaranteed to all Americans by recognized for 5 minutes. activity in the United States, and about their our Constitution. H.R. 4551, the Civil Liberties Mr. STARK. Mr. Speaker, recently, I com­ political views on the war. Act Amendments of 1992, will ensure that we mented on one of the hardest working com­ These people had no information about ter­ live up to that commitment and live up to the munity activists and volunteers I know, Mr. rorist activity. Their political views on the war promise of redress for those who were in­ Jack Allen of Hayward, CA. He has been an were none of anybody else's business, and terned. I urge my colleagues to support it and example of civic contribution to countless East certainly not the government's. It was clear to the full implementation of the Civil Liberties Bay residents. them, and to me, that they were suddenly Act of 1988. Jack was largely responsible for the devel­ under suspicion simply because of their an­ Ms. PELOSI. Mr. Speaker, I rise in support opment and approval of the Juan Carbillo-­ cestry. of H.R. 4551, the Civil Liberties Act Amend­ Joao Cabrilho is the Portuguese spelling­ For me, Mr. Speaker, and for every Amer­ ments of 1992. This bill, of which I am an stamp that will be issued September 29, in ican of Japanese ancestry, those questions original cosponsor, seeks to fulfill the promise San Diego. Jack, who lives in Hayward, CA, were chillingly familiar. Once again, a group of of the Civil Liberties Act of 1988. The Civil Lib­ was recently thanked by the mayor of San Americans were having their loyalty thrown erties Act of 1988 authorizes compensation of Leandro, Dave Karp, for all the special work into doubt because we found ourselves at war $20,000 to eligible persons of Japanese an­ he has done on behalf of Portuguese-Amer­ and conveniently forgot the difference between cestry who were evacuated, relocated, or in­ ican clubs and for the Cabrillo festivals in the ancestry and citizenship. terned during World War II. H.R. 4551 would city of San Leandro. With the leadership of my good friend, Mr. ensure that sufficient funds are available to I would like to include at this point in the EDWARDS of California, a meeting was ar­ provide compensation to the more than 75,000 RECORD information on this commemorative ranged with the FBI to discuss these inter­ individuals eligible to receive payment. stamp and the commendation that Jack re­ views, and I will never forget that meeting. The act included a specific provision that ceived from the city of San Leandro: In that meeting an official of the FBI told us the redress funding would receive entitlement C ABRILLO S T AMP T O B E ISSUED S EPT. 28 that the interviews were being conducted with designation, which would free the program Arab-Americans for their own protection. I from having to compete against so many other COMMEMORATIVE HONORS EXPLORER WHO DISCOVERED SAN DIEGO probably should not have been surprised. But programs and ensure that the internees would Four hundred fi fty years after landing in somehow I thought that over the last 50 years receive their long-overdue redress. Now that San Diego Bay, explorer Juan Rodriguez they would at least have thought up a new an additional 20,000 internment survivors have Cabrillo will be honored with a 29-cent com­ way to word the excuse. been identified by the Office of Redress Ad­ memorative stamp to be issued there on Has the situation improved in 50 years, Mr. ministration, passage of H.R. 4551 is needed Sept. 29. Speaker? Certainly. to guarantee the successful completion of re­ On Sept. 28, 1542, Cabrillo st epped ashore at Today we have political leaders like DON dress compensation. a harbor he named San Miguel, the site of EDWARDS, MERV DYMALLY, BOB MATSUI, NICK Mr. Speaker, in California this week, a modern-day San Diego. His landing on the RAHALL, and BARNEY FRANK who stood up and group of Japanese-Americans, who were sen­ west coast marked the culmination of a jour­ said "no." And there is no doubt in my mind iors in college when they were forced into in­ ney which began on J une 27, 1542, when he set sail from t he Mexican port of Navidad that a heightened awareness of what hap­ ternment camps in 1942, will return to the Uni­ with two ships and a small crew. After dis­ pened to Japanese-Americans during World versity of California at Berkeley to participate covering San Diego, he continued his expedi­ War II was a powerful weapon in fighting dis­ in the commencement ceremonies denied tion, ultimately exploring most of the Cali­ crimination against Arab-Americans this ti me. them for over 50 years. I was particularly fornia coast. In his quest , Cabrillo was in­ But it is clear that the attitudes and the prej­ moved by the story of one student who re­ jured, and according to a ship's log, died on udices that led to the internment are still with ceived her diploma from Berkeley while living Jan. 3, 1543. us, Mr. Speaker. We have a duty and an obli­ in horse stalls at Santa Anita racetrack, await­ Though he sailed under the Spanish flag, gation to do everything within our power to ing the order that would send her family to a some historians believe Cabrillo was born in Portugal. This is noted with a marginal in­ see that the story of the internment is known, permanent internment camp. I offer my special scription which reads, "If he was Portuguese understood, and remembered. commendation to Chancellor Chang-Lin Tien as many believe, his name would be spelled The education component of the civil Lib­ for his special efforts in organizing this event. Joao Rodrigues Cabrillo." erties Act is no less important today than it As our Nation continues the healing process Since no portraits of him are known to was in 1988, or in 1941 . from that terrible time in our history, we must exist, the stamp image is based on an artist's 24642 CONGRESSIONAL RECORD-HOUSE September 14, 1992 conception. The Cabrillo stamp features a was not. You had commercial, financial So, it still goes to the · greatest large picture of the bearded conquistador transactions also financed through the lengths to prevent anyone from know­ against the backdrop of the sea, with a tall Banco Nazionale del Lavoro. And this ing about the secret policy that al­ ship in view over his shoulder. The words aspect, the commercial, I brought out "Explorer of California 1542" are printed in lowed Iraq to pursue the development black type in the upper left corner, with "29 in detail, so I will not allude to it in of nuclear arms and other aspects and USA" printed in black in the upper right detail other than to say that it was weapons of mass destruction, by means corner. "Juan Rodfiguez" is printed in black this really secret operation that should of its clandestine procurement network type, with "Cabrillo" printed in large red be of concern particularly to those in Europe and here in the United capital letters below his picture. great guardians of security, all of the States. And I say not only Europe, but The Cabrillo commemorative stamp was vast apparatus of the intelligence that China, North Korea. designed by Ren Wicks of Los Angeles, de­ this country has erected, plus the fi­ Both the publicly known food policy signer of the William Piper and William Sa­ nancial institution regulatory net­ and the secret weapons procurement royan (1991) stamps, and the Igor Sikorsky airmail stamp (1988). work, which we really do not have in network were largely financed through our country. to protect our national in­ the Atlanta branch or agency, as they COMMENDATION terest, should be aware that made it call it, chartered by the State of Geor­ Whereas, Jack Allen worked relentlessly possible, this commercial/financial gia, of the BNL, or the Banco for 12 years to realize his dream-to mark banking access, to procure such things Nazionale del Lavoro, government­ the 450th anniversary of the Discovery of as a .155 artillery shell casing manufac­ owned, headquartered in Rome, by the California by Juan Rodrigues Cabrillo with a tured by an American corporation but Italian Government. Thus, when BNL­ commemorative postage stamp; and into which some Iraqi interests bought Atlanta offices were raided by the FBI Whereas, during that time, he personally the required percentage in order to almost exactly a year before the Iraqi authored over 400 letters to Postal Service officials and elected officials in Washington, have access to blueprints and every­ invasion of Kuwait, alarm bells sound­ D.C. He befriended Frank Thomas, a veteran thing else. ed all over. As the BNL case unraveled, Postal Service official in charge of the com­ So that when our soldiers went to the the Bush administration engaged in a memorative stamp program. This year, Mr. sands of Araby with their .155 military concerted effort to control the political Thomas rewarded Mr. Allen's persistent ef­ artillery shells, they had the same damage. For years, the administration forts; and shells fired back at them. It is still had used the CCC Program as a founda­ Whereas, Jack Allen will finally realize his going on. This is the reason for my tion of United States-Iraq policies and dream at the official West Coast unveiling of concern. Iraq, actually, in all truth, the stamp in San Leandro on Friday, June relations. The BNL scandal threatened 12, 1992. has been one of the minor plans in this to halt that program, and the adminis­ Now, therefore, I, Dave Karp, Mayor of the very canny, very astute, very knowl­ tration was quite fearful of losing the City of San Leandro, on behalf of our City edgeable way of working through the most important tool that it was using Council, do hereby congratulate and com­ crevices and the gaps in our inter­ to engage the government of Saddam mend Jack Allen for his tireless efforts in national banking regulatory system in Hussein. obtaining his dream, and, in so doing, honor­ America. In addition, if anybody learned that ing our City. The City of San Leandro, par­ The administration, last summer, our Government was permitting Iraq to ticularly the members of the local Por­ was willing to admit that its public operate its secret procurement net­ tuguese community, extends a heartfelt policy was a mistake: "Oh, made a mis­ "thank you" to Jack and his wife, Elsie. work, this would severely embarrass In witness whereof, I have hereunto set my take." But they do not take respon­ Washington as well. hand and caused tJie Seal of the City of San sibility for the mistake. It used to be, On the Italian side, not only were Leandro to be affixed this 12th day of June, and it still is in other countries, like in there billions of dollars in potential nineteen hundred and ninety-two. England, Great Britain, when the For­ losses to worry about at BNL and the DAVE KARP, eign Secretary Harrington, later an as­ Italian taxpayer-that is, the Govern­ Mayor, City of Leandro, California. sociate of Henry Kissinger & Associ­ ment-owned bank-lost about almost ates, and still later recently the envoy the same amount of money as the 0 1250 to Yugoslavia, supposed to be the peace American taxpayers have through its envoy, when Lord Carrington fouled up operations. That is in excess of $2 bil­ THE BANCA NAZIONALE DEL in the case of the Malvinas, as the Ar­ lion of taxpayers' money. Here we LAVORO SCANDAL: HIGH-LEVEL gentines called them, or the Falklands, have, oh, all of these alarms and out­ POLITICS TRY TO HIDE THE EVI­ as the British call it, he resigned. We cries about appropriating maybe $4 DENCE useQ. to do that in our country. We used million for an education program. Here The SPEAKER pro tempore (Mr. to have members of the Cabinet, when we are blowing away that amount of DOOLEY). Under a previous order of the they could not stomach something, money with the consequences, that are House, the gentleman from Texas [Mr. they quit, and they say, "Look, we still yet to be fully measured and only GoNZALEZ] is recognized for 60 minutes. don't go along with that." Not now, time and the future, of the folly of the Mr. GONZALEZ. Mr. Speaker, as we not since the ideological compulsion expedition into the sands of Araby. know, President Bush wanted to make and the takeoff on an ideological basis So that on the Italian side, not only a friend of Saddam Hussein, and he vig­ of our governmental leaders since the was there this lost potential but the orously pursued that policy right up President Reagan's advent, and scandal also had the potential to dam­ until the eve of the Iraqi invasion of Reagan/Bush, and now Bush. So that age the Government in Italy politi­ Kuwait. We also know that while the they make mistakes and they, "Oh, cally, if BNL's headquarters in Rome public part of that policy was to use well, yes, sure, but we will admit now were shown to be part of the conspir­ the CCC Program, in the Department that you brought this out," and they acy. of Agriculture, to sell food to Iraq, resisted stoutly bringing anything out, From the very beginning, the Justice there was another, a secret layer to the but, "Yes, it was a mistake, in retro­ Department of the United States of policy, and that aspect was to allow spect it looks like a mistake, but at America pursued the theory that BNL­ Saddam Hussein to operate a clandes­ that time it was our policy to see Atlanta was a rogue operation that de­ tine military procurement network in how," in the words of the President, frauded BNL/Rome, though they knew this country. "we could bring Saddam Hussein and very different, very well. Mr. Speaker, I have made reference Iraq into the confraternity of the civ­ As it happens, this was a politically. to this distinction before because there ilized nations." very convenient theory. It excuses Fed­ was some confusion even reflected by You are going to bring that kind of eral bank regulators who had a com­ the deputy Secretary of State, then, pattern of behavior by a leader of a pletely passive, in fact I will say crimi­ now the acting Secretary of State, say­ country and his regime by arming nally negligent, approach to regulating ing that the CCC Program was it. It them? It is ridiculous. foreign banks and left the job to ill- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24643 equipped State regulators. It excuses cials in Rome had been witting of BNL-At­ This same source stated that the sui­ the government back in Rome, which lanta's activities. cide of the former Italian military at­ allowed its branch in Atlanta to carry The CIA report reveals that the tache to Iraq was tied to the BNL scan­ out a multi-billion-dollar criminal en­ Iraqis originally had accepted loans dal. The cable reporting all this clearly terprise, and the rogue bank theory signed by an Atlanta BNL official, but shows one reason why, a few weeks also makes it easier for government to that later during the relationship as later, our Ambassador in Rome was deny the true extent of its knowledge the loans increased in value, the Iraqis asked to raise the BNL case to a politi­ about this scandalous affair. wanted authorization from higher level cal level and to suggest some kind of BNL officials in Rome rather than 0 1300 damage control. from Atlanta branch officials. The CIA Clearly, all sides had compelling po­ But the problem with the rogue bank report states: "BNL agreed to this re­ litical reasons to portray the activities theory is that it seems highly improb­ quest and the loans were then signed of the Atlanta branch as a rogue oper­ able, in fact it is improbable, and I will by bank officers in Rome." ation. But the CIA report, which con­ say, given my knowledge of the work­ I cannot report the exact extent of tradicts the rogue operation theory, ings of the operations of the state­ knowledge of these higher level BNL raises many critical questions: owned institutions in other countries, officials, because vital evidence has When did the CIA obtain this infor­ not only Italy, it is more than just im­ been denied to me since the Attorney mation and who at the CIA was aware probable, it is impossible for them not General decided to claim that national of it? to have had known that an agency or security interests require him to pre­ Was this information forwarded to branch, call it what you will, in At­ vent the Congress from seeing so-called the Justice Department and the U.S. lanta would be involved in more than classified documents. Among that evi­ attorney's office in Atlanta? If the an­ $6 billion just in transactions involving dence is a number of intercepted com­ swer is yes, has the information been Iraq without some level of knowledge munications between the BNL-Atlanta thoroughly investigated? or assent or consent from higher au­ and its Rome headquarters. If the information is authentic, why thority-namely, DNL headquarters in A bank committee investigator had did the Justice Department stick with Rome. So the critically important an opportunity and an appointment, he the rogue bank theory of prosecution? question arises, what did the higher thought, to see those documents in Was the White House or State De­ levels of BNL know about these mas­ May, but the visit was canceled at the partment aware of this information? sive loans to Iraq? Nothing, as they are behest of Nicholas Rostow, of the infa­ Those questions, though I have here­ maintaining, and as I am fighting the mous Rostow gang that I have referred in before answered some and in fact put Justice Department, the CIA, or rather to before, the so-called legal adviser of documentation in since February, still they are fighting me, the State Depart­ President Bush's National Security need to be further answered. We must ment and the Treasury, because I am Council and the Attorney General, who find out whether a corrupt and a failed trying to save the taxpayers more than seem to occupy the position of policy toward Iraq also corrupted the $395 million that they are being sued stonewallers in chief. criminal investigation of the BNL. We for by the BNL bank on the basis that In any event, it is clear that the BNL must find out whether or not the fits they had no knowledge of these machi­ case stirred up a huge political storm, and starts in the prosecution of the nations and conspiracies. since all sides-Iraq, Rome, and Wash­ BNL case has anything to do with our How ridiculous and how just abso- ington, DC had embarrassing secrets Government's or the Italian Govern­ 1utely insidious that men and women that they wanted to keep. Iraq wanted ment's desire to achieve "some sort of in power in our government, sworn to keep things cozy with Washington­ damage control." under oath to uphold the processes and so they were willing, according to one the Constitution, would be so ready be­ Federal Reserve memo, to sacrifice one D 1310 cause of their overweaning exercise of person to United States prosecution in From the start of the BNL scandal in usurped power to expose the taxpayers early 1990. The Government of Italy August 1989, officials from BNL's Rome to this continued drain of the resources wanted "some kind of damage control" headquarters repeatedly contacted the now that are so desperately needed in according to a cable from the United U.S. officials and made it clear that our country. States Ambassador, dated October 26, they did not want to be the subject of A little over a year ago, I asked the 1989-only a few weeks after the FBI U.S. law enforcement investigations. In Central Intelligence Agency [CIA] for raided BNL's Atlanta office. This cable light of today's revelation that BNL's any information it had on the BNL is worth quoting at greater length: management was indeed aware of the scandal. I received a report, still classi­ The Chairman and the Director General Atlanta office loans to Iraq, it is not fied-it had not been-and a separate called on the Ambassador (October 19) to ex­ surprising that top BNL officials were letter from the CIA, also classified, a press their concerns about developments in nervous about becoming the subject of separate letter. the BNL-Atlanta affair. They suggested that a criminal investigation. the matter should be raised to a political Late last July, I asked the CIA to level and indicated their desire to cooperate Fallout from the scandal did not provide declassified versions of those fully with the U.S. Government authorities limit itself to BNL officials. The At­ documents. We are still waiting. while at the same time making it fairly lanta scandal rocked the highest levels However, I can say that the analysis clear they want to achieve some kind of of the Italian Government. A Novem­ in those documents confirms that more damage control. ber 1989, CIA report states: senior BNL officials in Rome in fact, It is also worth noting that the cable The BNL affair, in combination with other knew what its Atlanta office had been was not only sent to the State Depart­ scandals, has cast a shadow on Prime Min­ doing-that is, financing important ment; it was also sent from Rome to ister Andreotti's three month old govern­ Iraqi military procurement, including the Justice Department in Washington. ment. the Condor II missile project. In fact, all the cables from the U.S. Since BNL is owned by the Italian A CIA report says: Embassy in Rome that contained ref­ Government, the top officials of the The reports on Iraq and the BNL scandal in erences to damage control were routed bank are political appointees. Any general did not add much to our knowledge to the Justice Department in Washing­ wrongdoing on the part of the top po­ of the scandal. Most of the reports repeated ton. litical appointees of BNL could cause information available in the press or con­ A few weeks before .the October 26 considerable embarrassment for the po­ tained sources' opinion of speculation about the scandal which, although interesting and cable, a snippet of information from a litical party that made the appoint­ useful, was not critical. The exceptions are source close to the U.S. Embassy in ments. It is reasonable to assume that that BNL financing helped pay for the Con­ Baghdad reported that the stress of the avoiding personal liability and embar­ dor II missile project, and confirmation of BNL scandal might have caused the rassing the political apparatus could be press allegations that more senior BNL offi- Italian Ambassador in Iraq to collapse. prime motivations for BNL officials in 59--059 0---97 Vol. 138 (Pt. 17) 29 24644 CONGRESSIONAL RECORD-HOUSE September 14, 1992 Rome to deny knowledge of the BNL­ another case for the entire summer of that investigation. These difficulties are A tlan ta scandal. 1990. This reassignment is most mys­ compounded by what is perceived as inter­ It is also reasonable to conclude that terious given that the BNL case was ference from the Justice Department in fear of political disaster could push the largest, and arguably, the most im­ Washington. BNL officials to the point of approach­ portant case ever at the U.S. attor­ 0 1320 ing U.S. officials to achieve "some sort ney's office in Atlanta. of damage control." In fact, on numer­ The reassignment of the lead pros­ Justice corrupting its own self, cor­ ous occasions BNL officials approached ecutor is also arguably the most obvi­ rupting and abdicating and frustrating U.S. officials to discuss the BNL scan­ ous sign that the BNL indictment was the very oath of office and constitu­ dal. delayed for political purposes. At the tional responsibilities inherent in The scandal forced BNL Chairman time of the reassignment in May 1990, those officials and in those positions. Nerio Nesi and Vice Chairman Giacomo United States-Iraq relations were at a The committee has additional docu­ Pedde to resign soon after public dis­ critical juncture. An indictment of ments providing evidence that political° closure of the debacle. Mr. Nesi's re­ BNL or an aggressive investigation of considerations were translated into placement was a man named the Italians or Iraqis involved in the damage control. Former investigators Giampiero Cantoni. Mr. Cantoni had scandal at that juncture would cer­ assigned to the BNL case in Atlanta close ties to the Socialist Party and tainly have complicated United States­ have voiced frustration at their inabil­ was a close ally of former Prime Min­ Iraq relations. ity to vigorously pursue the Iraqis, the ister Craxi. A State Department cable In fact, I have placed in the RECORD Turks, and BNL officials in Rome that indicates that Cantoni's ties to Craxi numerous documents showing exactly were involved in the scandal. were a prerequisite for his selection to that that is what our top level officials A February 6, 1990, Federal Reserve replace the discredited Mr. Nesi. were saying, and in fact Secretary Bank of New York memo shows how On numerous occasions Mr. Cantoni Baker himself, and I placed a document politics influenced events. approached United States Ambassador in the RECORD saying, he did not want The Federal Reserve Bank of New to Italy, Peter Secchia, about achiev­ to have anything disturb the United York is the No. 1 in our country, the ing damage control in the BNL inves­ States-Iraqi relations. one that really runs the show for our tigations. Given the political nature of In fact, the indictment was not even banking system. I want to remind my his appointment, it is not surprising redrafted until well after the Iraqi in­ colleagues that the Federal Reserve that Mr. Cantoni would approach the vasion of Kuwait and it was not handed ~oard is not a Federal agency. It is a U.S. Government to ask for damage down until late February 1991. creature and a hand maiden of the pri­ control. Mr. Cantoni did not act alone; The Justice Department in Washing­ vate commercial banking system of the other BNL officials also approached the ton apparently heard loud and clear United States, even though the Con­ United States asking for similar con­ Cantoni's repeated appeals for damage gress created them, like it did the CIA. sideration. The United States Govern­ control and this could have led to a go­ The Congress created the CIA in the ment appears to have acquiesced to the slow approach to the BNL investiga­ 1947 National Security Act, but it has Italian requests, and coincidentally, tion. There are several memos that been used as a tool for personal either has secrets of its own to keep buried, make it crystal clear that when the vindictiveness or political combat by and, in fact, by now some, if not all, Justice Department in Washington, Presidents. might have been-what do they call DC, took control of the BNL case inex­ Presidents have taken over, so the it-shredded? plicable delays and complications oc­ CIA, like the Federal Reserve Board, I mentioned earlier Ambassador curred. does not think they have any account­ Secchia's cable of October 26, 1989, in Transferring control of the case to ability to the Congress. That means which Mr. Cantoni was portrayed as Washington enabled Bush administra­ the people. asking for damage control in the BNL tion political appointees at the Justice Oh, my colleagues, our Congresses case. Damage control may be just what Department to play a direct role in since 1913 have abdicated their grave he got when you consider that less handling the BNL case. This ulti­ responsibilities through the years to than 10 days after his request, the mately led to the BNL indictment the point today of no return, where our White House called the Atlanta pros­ being delayed and the quashing of any country is imperiled as it never has ecutor in charge in the BNL case in serious investigation of BNL officials been since our founding, as far as its fi­ order to discuss the case. Was this just in Rome as well as Iraqis involved in nancial and economic freedom, not to a coincidence that happened to come the scandal. In other words, by taking speak of the standard of living, is con­ less than 10 days after this call? Well, control of the case, the Attorney Gen­ cerned. It is in grievous peril, and my if you believe that, my colleagues, I am eral was in a position to grant the Ital­ frustration is that there has been heed­ sure you believe in the tooth fairy. ians their wish for damage control. He less regard of some of us that have spo­ Mr. Cantoni's requests for damage was also able to accommodate White ken out for more than 26 years. control continued well into 1990. Just House and State Department concerns The committee has additional docu­ days before the invasion of Kuwait, a about revelations of the administra­ ments providing evidence that political July 25, 1990, cable from Ambassador tion's own role and participation. considerations were translated into Secchia to the State Department con­ Another CIA memo demonstrates damage control. I repeat, we know the tains the following passage: that the United States had granted the former investigators have been so frus­ Professor Cantoni, the Chairman of BNL, Italians, and themselves, some kind of trated because they were impeded in and the Ambassador had a long discussion at damage control. Regarding the impact their obligation to pursue all involved, a local event last week in northern Italy. He of the BNL scandal on United States­ both Atlanta officials, Turks, Iraqis, (Cantoni) expressed once more his concern Italian relations, the report states: and Italians. over the ongoing investigation of the BNL­ Atlanta branch's Iraq loans. Cantoni has spo­ Rome appears satisfied to date with co­ A February 6, 1990, Federal Reserve ken to the Ambassador on several occasions operation of the U.S. investigating agencies Bank of New York memo shows how about his concerns regarding the BNL At­ and appreciates the low key manner in which politics did and has influenced events. lanta branch affair. Cantoni did not ask for Washington has reacted. The memo states, "A planned trip to any intervention . .. Yet, he made a pitch Another memo supporting the asser­ Italy by criminal investigators was put for the U.S. government to go slowly before tion that the Justice Department in off because of BNL-asserted concerns making indictments. Washington interfered with the case is regarding the Italian press." Evidently Mr. Cantoni was not aware a Federal Reserve memo of April 5, Now. let me say something for the that the case had been delayed by the 1990, which states: benefit of my colleagues and fellow U.S. attorney's office in Atlanta who The resignation of the U.S. Attorney in At­ Americans. The Italian press, particu­ had reassigned the lead prose cu tor to lanta has led to a number of difficulties in larly in Rome, has been most indefati- September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24645 gable, and the investigating committee moved to a small town up in what we If we reach that point, we are of the Roman Senate and its chairman, call the hill country. doomed. We have no Constitution, and Senator Carta; with whom I met here They recognized me and said, "Oh, once that break is made from our shore in the United States and some of his Congressman. How are you? We are so mooring, we will be flopping up and colleagues, and they have had as a glad to see you.'' down in these heavy waters of distress. matter of public revelation what the I saluted them and addressed them. I And our .people will no longer be citi­ CIA does not want the American people was leaving when this individual comes zens, as they are not now. They are to know, and has written, though they up. I had never met him before, but subjects. have not come forth, to charge that from his pictures and all I could tell The President is not the President. somehow, somewhere, in some manner, that what he said was true. He is a potentate. He is a Caesar. , some nebulous manner, amorphous, He said, "You are Congressman GON­ Now incidentally, anybody thinks shapeless, I have violated the national ZALEZ?" that I am saying that about present security. I said, yes. He said, "Well, I am E. Presidents, I inveigh all against, even Well, I stand before the bar of judg­ Howard Hunt, and you are nothing but before I got to this Congress, against ment of my colleagues, the representa­ a-" and then he used a bad word. the President having the power to com­ tives of the people. I have placed in the Well, I had two little bags I was car­ pel an unwilling American to go out­ RECORD-what? What the Congress is rying, very small, so I just dropped side of the continental United States not supposed to know? Documents that them. I noticed he had a shoulder hol­ and risk his life in an undeclared war, should not be available to the Con­ ster with a pistol. It was obvious. a Presidential. gress, even though Supreme Court deci­ So I said, "Mister, since you want to Our country was made up of people sion after Supreme Court decision has use sailors' language, here is what I and subsequent influx of people who upheld the absolute and supreme power think of you." And then I used some wanted to get away from the king­ of the Congress to know? choice words. made wars. The question then remains why I said, "Let me tell you something Why, my colleagues, do you think should they not feel in that secret else. You take one step forward closer the makers of the Constitution placed basement, dark and dank areas of the to me or you make a move for the gun inexorably, undividingly, unqualifying CIA and the other so-called security in your shoulder holster, and I will the power to declare war in the Con­ agencies, not to believe they can do ev­ swear to you I will take it from you gress? That is all I have been saying erything, from mayhem and murder, and in self defense I will kill you with since even before I came to this Con­ not just to foreign officials, but here in it." gress, and I have said that with Presi­ the United States? Even though their He looked at me startled, turned dents in between, Democrat, Repub­ charter, the 1947 Security Act, limits around, and walked away. I picked up lican, what have you. the CIA to offshore, they have involved my bags and walked out of the airport. Now, as I have said, Chairman themselves, going back to the famous That is all I know. Now, was he E. Cantoni was not the only BNL em­ plumbers and some of the apparatchiks Howard Hunt? Well, he sure looked like ployee that approached the Embassy belonging to the CIA and still belong­ him. What was his beef? I do not know. about achieving damage control. A ing to the CIA and responsive to them, What was he doing in San Antonio? I cable from Ambassador Secchia, that is plotting such things as around the do not know. Why does he still have a our Ambassador in Rome, Ambassador clock surveillance-of whom? Jack An­ shoulder holster and pistol? I do not Secchia to the State Department, derson, the columnist, because he had know. He is ex-CIA. They say ex, but March 19, 1990, states: written something that looked like there ain't no such thing. Executive Vice President DeVito of BNL somebody had leaked. 0 1330 called on econ officer March 16 to register See, in my case they accuse me of concern that BNL might be soon indicted in having leaked something. You cannot Given that, all I can say is that we the U.S. for corporate vicarious criminal li­ say I leaked. I put it in the RECORD. have reached a point in our country ability in connection loans by its Atlanta Now, what I say is, gosh, just think where our people are no longer citizens. branch to Iraq. DeVito said matter was ur­ how much I have done in behalf of Our constituents are not citizens any gent. The Justice Department he thought more. They are subjects, like the sub­ has taken the investigation out of the hands stimulating the subscription to the of the U.S. Attorney in Atlanta who had re­ CONGRESSIONAL RECORD. If for nothing jects of the majesties of the King of garded BNL as a victim of its own employees else I think we ought to be glad that England and the others have been. And in Atlanta. The Justice Department took a there is interest in reading the CON­ that is what we were supposed to be all different view partly for political reasons. GRESSIONAL RECORD nowadays. about in America, that we were going The DeVito cable went on: But going back to this other, you had to get away from that. We were going to be citizens, sov­ * * *from the current (BNL) managements plotters accustomed to having been in­ point of view * * * an indictment would add volved in offshore hit operations for ereign, and the source of all power, as insult to injury. The Government of Italy he the CIA not finding it easy to dispense the Constitution says right in its Pre­ implied, would be terribly unhappy with with that domestically. So there was amble: "We, the people of the United such a development. The Government could even comments then about how are you States," not the President, not the not stand by idly while the largest bank in going to get this guy? Congress, not the judges or the courts, Italy-controlled by the Treasury Ministry­ So they had round the clock surveil­ we, the people, in order to establish, do suffer such an indignity. lance, 24-hour surveillance, on Jack ordain and establish, we, the people. The unmistakable message of Anderson for a month. One of them, We have gotten away from that. We DeVito's conversation with the Ambas­ one of the kooks that had creeped up, have forgotten it, and even our citizens sador is that BNL was fully aware that guys like G. Gordon Lilly-Liddy-who think that, my gosh, here are these the Justice Department was calling the used to say look, and he would get a men running for the Presidency, "Elect shots in the BNL case and that BNL match and would burn his own hand me, I will solve all problems," as if it would not tolerate being the subject of and would not wince. was not a tripartite government where the criminal investigation. Of course, You had E. Howard Hunt. The only the lawmaking, judiciary is coequal, Mr. DeVito knew that a BNL indict­ thing I know about E. Howard Hunt just as sovereign, separate and inde­ ment would be damaging to Mr. was 2 years ago in July, in fact July 14, pendent as the executive branch. But Andreotti's government and it appears I go back to my district every week­ there is not anybody, and by the way, he was sent to Ambassador Secchia to end, and I came in that Saturday I hear some of the minority, ex-admin­ get that message across. morning. I arrived at the San Antonio istration employers, by their own proc­ Not surprisingly, according to Mr. Airport, and there was a couple there lamation, you would think the Presi­ Barr, the man sitting in the Attorney that used to be in my district and dency is omnipotent. General's chair today, an August 10, 24646 CONGRESSIONAL RECORD-HOUSE September 14, 1992 1992, Special Prosecutor report, it was trip of the U.S. Attorney to investigate Rostow gang set up snares and hurdles about this time that the Justice De­ Entrade was the stinging criticism of to stop anyone who asked questions. partment found a "lack of culpability" the BCCI criminal settlement. That is why the White House and nu­ by BNL-Rome. D 1340 merous Government agencies today Here is our Attorney General already refuse to turn over BNL-related docu­ saying, look, taxpayers, this suit BNL The memo states, and I quote, ments to the committee. has, let them collect it, because I say The criticism of the BCCI criminal settle­ Why not? They cannot say that it is they did not know. ment has motivated the Attorney General to an ongoing national security matter, This was August 10, last month. have the BNL matter reviewed by main Jus­ so why? I just -ask that question Since BNL-Rome was never vigor­ tice in Washington before any settlement is elliptically, because I leave it to the ously pursued by the Justice Depart­ agreed to by the U.S. Attorney. judgment of my colleagues. ment, it is safe to conclude that the This information is in direct conflict That is also why the Attorney Gen­ U.S. Government got the message. How with Barr. I just cannot find myself, eral spent months and months review­ convenient. even though he sits in that position, ing the BNL indictment, which by the As I mentioned, investigators in the identifying him as an Attorney Gen­ way, was not handed down until the BNL case felt frustrated at not being eral. He has traduced that office. He day after fighting in the gulf stopped. able to vigorously pursue the Iraqis in­ has traduced his oath of office. He has That same damage control is what un­ volved in the BNL case. Attorney Gen­ betrayed a trust, and I cannot respect doubtedly accounts for the eral Barr addressed this issue in his that. I respect the office of Attorney stonewalling that continues to this August 10 Iraqgate report which states: General, because that has been a tradi­ day. Mr. Barr, a loyal political ap­ The Atlanta prosecutors did not seek any tional office since the first administra­ pointee, is more interested in damage other foreign travel: they believed that the tion in our country, but not Barr. control than in justice. Clearly his Iraqis would be evasive and uncooperative The Iraqgate report of Barr's claim­ masters have much to fear if all the * * * ing the plea agreement was abandoned That is contradicted by memoranda facts are ever fully disclosed. because of Entrade's change in plans, What panjandrum in the White that I have inserted in the RECORD and it was in fact a political decision, since February showing clearly that House, after all, is willing to acknowl­ which, of course, the Justice Depart­ edge that it was United States Govern­ the diplomatic officials wanted to pro­ ment denies. tect and keep any Iraqi and even a J or­ ment policy to provide Iraq with mili­ We may never know exactly what has tarily useful technology-even tech­ danian from getting indicted in the happened in BNL-Atlanta. Much may United States. This is quite puzzling, nology for Iraq nuclear weapons pro­ come out, beginning today, when Chris­ gram? Sadly, that is exactly what hap­ that is, Barr's statement here, given topher Drogoul and the other BNL em­ that the fact that on March 15, 1990, pened. It is too sorry a tale for the ployees make their statements in court President and State Department to the Justice Department wrote the or before our committee. I have signed State Department asking to interview admit. One can only wonder: how many a subpoena to be dated after sentenc­ other foreign governments have been a half dozen Iraqis involved in the BNL ing. scandal. The prosecutors in Atlanta allowed-or may be allowed today-in Meanwhile, we already know that the fact, I know they are. Does anybody were never allowed to talk to the Iraqi government of Italy had plenty of rea­ targets. Could it be that Mr. DeVito's among my colleagues think the kind of son not to want all the details of what crime we have in this country, particu­ calls for damage control were heard BNL-Rome knew, to be revealed. We loud and clear by the State Depart­ larly the mere $1 trillion drug money know also that the Italian government laundering, would be possible without ment and Justice Department? And worked hard to gain damage control, could it be that the White House didn't the deficiencies and if not witting or and events here in the United States unwitting collaboration, of banks, reg­ want to offend Saddam Hussein, or em­ would lead a reasonable mind to con­ barrass itself, which is more likely? ulators, government officials, low- and In past reports I have provided over­ clude that they got what they wanted. high-level State, local, and Federal? Of whelming evidence that shows the U.S. After all, it was also very much in course not. Attorney in Atlanta expected to bring Washington's interest to keep the de­ We get the kind of crime we deserve, the BNL indictment in early 1990 and tails quiet. because we as a people, I am sorry and that it never materialized after the in­ And so the Justice Department says sad to say, have been willing to forsake dictment was sent to the Justice De­ in its whitewash report of August 10, our inheritance for a mess of pottage. partment in Washington, DC for re­ that BNL management was more or The policy toward Iraq was cynical, view. I have quoted from over a half less careless, but not involved. This is unprincipled, and had a tragic out­ dozen documents that support that despite the CIA report that says BNL­ come, and will continue to have, but Rome was asked to sign off on impor­ fact. the dense curtain of secrecy may for­ A February 1990 Federal Reserve tant deals BNL-Atlanta made with ever hide the full extent of this disas­ memo shows how high level politics in­ Iraq, and agreed to do so-a report that ter. fluenced events. The memo states: says clearly, Rome knew what was hap­ It is convenient for all parties to hide * * * Entrade is willing to pay a $1 million pening, and our Government is aware the facts. The White House no longer penalty provided no individual from the firm of that fact. cares about Saddam Hussein, of course, is convicted. The Iraqis are willing to sac­ But then, it is not in our Govern­ but it surely is caring about burying rifice one individual to the vagaries of the ment's political interest to let the its mistakes, and that is exactly what U.S. criminal judicial system. world know just how much the White they are doing. This memo shows that the BNL case House and other agencies knew about Mr. Speaker, I append to my state­ was far enough along in early 1990 to Saddam Hussein's use of BNL loans to ment the documentation which I men­ have negotiations for a plea agreeme~t aid its military industrialization effort tioned for the references I have made: with Entrade and the Iraqis related to and the BNL-financed secret military COMMITTEE ON BANKING, their role in the BNL case. Regarding procurement network operating in Eu­ FINANCE AND URBAN AFFAIRS, the investigation of Entrade for its role rope and in our country. Washington, DC, August 20, 1991. in the BNL scandal, the February 1990 Hon. WILLIAM H. WEBSTER, Federal Reserve memo goes on to Director of Central Intelligence, Central Intel­ ligence Agency Washington, DC. state: "A trip to Istanbul was put off at Everyone, it seems, wanted damage DEAR JUDGE WEBSTER: The Banking Com­ the request of Attorney General control. That is why the Attorney Gen­ mittee is conducting an investigation into Thornburgh." eral wanted to stop my committee's in­ the operations of the Banca Nazionale del The memo says the reason vestigation even before it started in Lavoro (BNL). I ask for your cooperation Thornburgh delayed the investigative 1990. That is why the White House-led with the Committee's investigation. September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24647 Between 1985 and 1990, BNL provided Iraq available to staff members when they have the CCC guarantee on roughly one billion with over $4 billion in unauthorized loans obtained the appropriate clearances. dollars of BNL--Atlanta's three billion dollar that were used to purchase agricultural In response to your request. an extensive exposure. The men alluded to legislation products and industrial goods. Many of the search of the files and indices of the appro­ under consideration in congress providing for individuals and beneficiaries of the BNL priate CIA offices produced the following re­ USG credits to Iraq being affected by the in­ loans to Iraq are based in foreign countries. sults that are keyed to your letter. vestigation/charges. Cantoni said FBI agents The Committee would like to learn more [All portions classified secret] remained in the Atlanta branch, or had about the foreign beneficiaries of BNL loans In addition to providing information from sealed the books. He also maintained that to Iraq are based in foreign countries. The our classified files, we also have included the ex-Atlanta branch manager Drogoul was Committee would like to learn more about some unclassified material from other open available and willing to testify to appro­ the foreign beneficiaries of BNL loans to source publications (TAB B), and from the priate officials. Iraq, and respectfully asks the CIA to pro­ Foreign Broadcast Information Service 5. Cantoni and Savona both made the point vide, if available, foreign intelligence infor­ (FBIS) that may assist you in this investiga­ that they mation on the following: tion. (TAB C) Confidential 1. Wafia Dajani (Jordanian Citizen) and his In the course of searching our records, we Confidential related companies: Amman Resources, identified documents relating to this matter Page 03 Rome 22656 01 of 02 2615445Z Amman, Jordan; Amman Resources Inter­ that were originated by the Defense Intel­ Were willing and anxious to cooperate with national, Georgetown, Grand Cayman; Araba ligence Agency, the National Security Agen­ USG authorities. They also said their U.S. Holdings, Inc. Panama; Aqaba Packing Co., cy, United States Information Agency, De­ lawyers would be in Rome on October 25. Amman, Jordan. 6. The ambassador said he would pass on 2. Technology and Development Group partment of Justice, and the Department of State. We are prepared to provide these the concerns of BNL and their willingness to (TOO) London, England. cooperate to Washington, but that he was 3. TMG Engineering Limited, London, Eng­ agencies with specific document citations to facilitate their response to the Committee if unable to comment or otherwise be helpful land. on a matter under criminal investigation. 4. Matrix-Churchill Limited (MCL) Cov- you with to obtain these documents from them. 7. On a separate note, treasury minister entry, England. Carli responded negatively on October 24 to a 5. Tigris Trading Company, Baghdad, Iraq. Sincerely, STANLEY M. MOSKOWITZ, request by opposition Senators to conduct an 6. Al-Arabi Trading Company, Ltd. investigation into the BNL--Atlanta affair. 7. Meed International, Ltd, England. Director of Congressional Affairs. Carli said that a number of investigations by 8. Kintex, Sophia, Bulgaria (aka "Globus" [Enclosures classified secret) Italian and U.S. officials were underway. He or "Korekom"). also noted that bank secrecy laws impeded 9. TechnoExport Foreign Trade Company, R 2615172 Oct 89 the bank of Italy from providing information Ltd., Czechoslovakia. Fm Amembassy Rome to the Senate. 10. Bank for Foreign Economic Affairs of To SecState Wash DC 0695 8. Comment: The remarks on the need to the USSR, Moscow, USSR. Treas Dept Wash DC raise this to a political level are interesting 11. Exportkhleb, Moscow, USSR. Info Dept Justice Wash DC as the case has already become a political THE FOLLOWING IRAQI GOVERNMENT ENTITIES AMConsul Milan issue in Italy. The President has become in­ AND IRAQI INDIVIDUALS: Amembassy Baghdad volved as witnessed by the inclusion of 12. Ministry of Industry and Military Man­ Confidential section 01 of 02 Rome 22656 Cantoni and Savona in his party in the U.S. ufacturing, An Agency of the Republic of LIHDIS Cantoni and Savona, while new to BNL, have Iraq. Please pass Federal Reserve Board and Dir close political connections, Cantoni to Craxi 13. Nassar State Establishment for Me­ FBI and the socialists, and Savona to Cossiga (a chanical Industries, An Agency of Republic E.O. 12356: Deel: OADR fellow Sardinian) and to Carli, his mentor at of Iraq. Tags: EFIN, ECON, IT the Bank of Italy and later at Confindustria. 14. Central Bank of Iraq, Baghdad, Iraq; Subject: Banca Nazionale Del Lavoro Con- The treasury is the majority shareholder of Sadik Taha. cerns re Atlanta Branch BNL. 15. Rafidain Bank, Baghdad, Iraq. Ref: Rome 22019 BNL is an upstart bank by Italian stand­ 16. Ali Mutalib Ali, former commercial at­ 1. Confidential-Entire Text. ards, dating only to 1913 and owing its tache at Iraq's German Embassy. 2. Summary: The chairman and the direc­ growth to its role as the key bank for the Thank you for your time and cooperation. tor general of Banca Nazionale Del Lavoro government in the 1920s and 30s. It continued With best wishes. (BNL) called on ambassador to express their to grow in the post-war period, but has been Sincerely, concerns about developments in the BNL--At­ having problems in the past few years. The HENRY B. GONZALEZ, lanta affair. They suggested that the matter recently sacked Chairman, Nerio Nesi, had Chairman. should be raised to a political level, and indi­ been engaged in an effort to pare down the cated their desire to cooperate fully with staff of the bank and separate out some func­ CENTRAL INTELLIGENCE AGENCY, USG authorities while at the same time tions while at the same time increase the Washington DC, November 12, 1991. making it fairly clear they want to achieve bank's capital. To achieve the latter, he Hon. HENRY B. GONZALEZ, some kind of damage control. worked out a deal whereby the state-owned Chairman, Committee on Banking, Finance and Confidential insurance agency INA and the state pension Urban Affairs, House of Representatives, Confidential system INPS would take the proceeds from Washington, DC. Page 02 Rome 226565 01 of 02 261545Z. the sale of shares in CREDIOP and invest DEAR MR. CHAIRMAN: In a letter dated 20 Ambassador said he would pass on their them in BNL. The result will be a capital in­ August 1991, the Banking Committee in­ concerns but could not otherwise be helpful crease. formed us of its investigation into the oper­ with or comment on a matter under criminal Confidential ations of Banca Nazionale del Lavoro (BNL). investigation. Separately, treasury minister Confidential As a part of this investigation, the Banking Carli has blocked an effort by opposition Page 02 ROME 22656 02 of 02 2615987. Committee requested any foreign intel­ Senators to conduct an investigation into That will reduce the treasury's ownership ligence information this Agency may have the BNL--Atlanta affair, end summary. from 75 percent to 56 percent. INA is also on foreign beneficiaries of BNL loans to Iraq. 3. The chairman of Banca Nationale Del making a subordinated loan. The capital in­ As you are aware, we also are responding to Lavoro, Giampiero Cantoni, and the director crease was approved by the BNL board in a separate request from your Committee to general, Paolo Savona, called on the ambas­ mid-October, and is to be presented to the review summaries of several raw, sador on October 19. The meeting was at shareholders (treasury, INA, INPS plus a unevaluated reports on Iraq and BNL. Some Cantoni's request, made during the return scattering of other. mostly public, institu­ of these summaries contain specific informa­ flight from the U.S. with President Cossiga. tions) on December 13. tion on the Rafidain Bank (item 15 in your 20 Both Cantoni and Savona had been in the BNL's reputation within the Italian bank­ August letter). U.S. with President Cossiga's delegation. ing community and even among its own staff In addition to the information we are pro­ 4. Cantoni expressed concerns about pro­ has been suffering for some time. The BNL­ viding at this time, there are other docu­ spective developments in the BNL--Atlanta Atlanta affair, even if contained, will aggra­ ments, with the security classification TOP affair. He said BNL's U.S. lawyers were urg­ vate BNL's problems. Not least of these are SECRET compartmented information, on the ing him to raise the issue to a "political" loan to Latin American countries. BNL is Iraq/BNL connection that we are prepared to level. He said that his U.S. lawyers thought said to be one of the two largest lenders to provide directly to you and the other Com­ that charges would be filed under the Rico Mexico and has been active in South Amer­ mittee members. The TOP SECRET com­ Act and that BNL/or Iraqi assets could be ica as well. partmented documents also can be made frozen. Savona was concerned about losing SECCHIA. 24648 CONGRESSIONAL RECORD-HOUSE September 14, 1992 FEDERAL RESERVE BANK OF NEW YORK, and has offered on a number of occasions to dent, Chairman of TOO., President of Matrix­ February 6, 1990. cooperate with the United States. The inves­ Churchill (England). To: Legal Files, tigation is now at a point where the U.S. At­ From: Ernest T. Patrikis. torney's Office wishes to accept the Iraqi U.S. DEPARTMENT OF JUSTICE, U.S. Subject: Recent Developments Regarding offer and invite Iraq to have certain named ATTORNEY, NORTHERN DISTRICT OF Banca Nazionale del Lavoro. individuals come to the United States for GEORGIA, ATLANTA, GA, JANUARY On February 6, I spoke with Ed interviews. 9, 1990. Willingham, General Counsel of the Atlanta Therefore, we request that the United · Re: Assistance of Robert Kennedy. Reserve Bank, and among the topics we dis­ States extend in an appropriate fashion, both Mr. ZANE KELLY, cussed was current developments regarding in Washington and Baghdad, an invitation to Federal Reserve Bank, Atlanta, GA BNL. Obviously, the indictments that were Iraq to have the persons named on the at­ DEAR MR. KELLY: As you are aware Mr. expected to come down in January did not tached list travel to the United States to Kennedy of your office has been providing es­ materialize. A planned trip to Italy by crimi­ meet with the U.S. authorities conducting sential assistance to this office in the BNL­ nal investigators was put off because of BNL the investigation. Atlanta criminal investigation since late asserted concerns regarding the Italian In issuing this invitation you may tell Iraq July 1989. In fact, without Mr. Kennedy's ex­ press. that the investigation is for possible viola­ pertise this major case could not have pro­ A trip to Istanbul was put off at the re­ tions of U.S. law, including, 18 U.S.C. §§371, gressed with the speed and depth accom­ quest of Attorney General Thornburg. The 1001, 1341, 1343, and 2314. plished to date. We cer tainly appreciate his criticism of the BCCI criminal settlement We would like to begin the meetings on efforts as well as those of yourself, Madeline has motivated the Attorney General to have March 26, 1990, or as soon thereafter as can Marsten and Ed Willingham. the BNL matter reviewed by main Justice in be arranged. We expect that each of the per­ Prior to anticipated indictment early next Washington before any settlement is agreed sons invited will need to allow for a mini­ month, we request additional assistance to by the United States Attorney. mum of three days in the United States in from Mr. Kennedy, which involves a trip to Ed reported that Entrade is willing to pay connection with the U.S. Attorney's inves­ Rome and Istanbul to interview essential a Sl million penalty provided no individual tigation. Further, the United States offers non-grand jury witnesses. Travel may com­ from that firm is convicted. The Iraqis are its assurances that for such time as these in­ mence as early as January 19, 1990. willing to sacrifice one individual to the va­ dividuals are in the United States as our The stop in Rome is necessary to speak garies of the United States criminal judicial guests and cooperating with the U.S. Attor­ with a number of BNL-Rome employees, offi­ system. Mr. Dragoul has retained high-pow­ cers, and directors at whom Chistopher ney's Office, that Office will not serve proc­ Drogoul and other key subjects have leveled ered defense counsel. All in all, Ed believes ess upon them or otherwise seek to assert ju­ charges of complicity in their BNL-Atlanta that we will hear little about this matter risdiction over them. In addition, and pursu­ scheme. A Rome setting is required for im­ until some time late in March. ant to our standard practice, the United mediate access to all relevant records which States is prepared to make and pay for the may assist in defeating these spurious claims FEDERAL RESERVE BANK OF NEW YORK, travel arrangements and per diem of each of by subjects of our criminal investigation. April 5, 1990. the persons invited. The Istanbul portion of the trip is nec­ To: Mr. Corrigan. Finally, the Commodity Credit Corpora­ essary to interview Yavus Tezeller, a Turk­ From: Thomas C. Baxter, Jr. tion (CCC) and the Department of Agri­ ish national who has essential knowledge Subject: Lavoro. culture (USDA) are considering a request by and records regarding kickbacks to BNL-At­ I followed up on your suggestion about a Iraq to extend $500 million in export credit lanta's First Vice President, Christopher possible connection between Banca guarantees under CCC's GSM-102 program Drogoul, and his father Pierre Drogoul. Nazionale del Lavoro ("BNL") and the nu­ for the remainder of fiscal year 1990. The Tezeller's attorneys also indicate he can pro­ clear triggers that were seized in London. As USDA and CCC also need to meet with the vide information regarding "after sale serv­ you suspected, there is a connection. Appar­ persons named above in connection with ices," unearned consulting fees, and other ently, Von Wedel (a former officer of BNL their own investigation into alleged irreg­ payments to the Iraqis, as well as kickbacks who is now cooperating with the govern­ ularities concerning extensions of credit by paid by United States and multinational ment) says that one of the transactions done BNL to Iraq for commodity purchases under companies to obtain Iraqi contracts. This is with Rafidian Bank at some point referenced the GSM-102 program during the period from especially important information in light of nuclear detonators. According to Von Wedel, 1985 to 1988 in order to complete the process­ the prevailing rumors regarding the Paris this reference scared BNL away from this ing of the Iraqi application. Therefore, and Club's intent to reschedule Iraqi debt, in­ particular transaction, but it is possible that in order to accommodate all concerned, we cluding a substantial portion of the Sl.7 bil­ the lesson the Iraqis learned was to be ge­ propose that the USDA and CCC meetings lion guaranteed by the CCC. Other Entrado neric in preparing the credit documentation. with the Iraqis also be scheduled for the time and Enka officials with their relevant docu­ Thus, it is entirely possible that BNL fi­ while they are in the United States. In issu­ ments should also be available for interview. nanced some of this material. ing the invitation for them to meet sepa­ Thank you again for the support of your At any rate, I have been assured that those rately with the USDA and CCC, you may office in this most important investigation. conducting the criminal investigation in At­ wish to inform them that the U.S. Attor­ Sincerely, lanta are looking into these connections, ney's Office is unable under our law to share ROBERT L. BARR, JR., with a view to developing additional crimi­ the information it has developed with the U.S. Attorney. nal charges. The resignation of the United USDA and the CCC, thus making it impos­ GALE MCKENZIE, States Attorney in Atlanta has led to a num­ sible to satisfy all U.S. interests in one Assistant U.S. Attorney. ber of difficulties in that investigation. meeting alone. These difficulties have been compounded by If you need further information, feel free what is perceived an interference from the to call me at 786-3500. HON. TED WEISS OF NEW YORK Justice Department in Washington. Sincerely, (Mr. GONZALEZ asked and was given The press has also made a connection be­ DREW C. ARENA, permission to address the House for 1 tween BNL and the detonators. Attached you Director. will find copies of two Financial Times arti­ minute.) cles doing just that. LIST OF INVITEES Mr. GONZALEZ. Mr. Speaker, I wish to allude for no more than 30 seconds Abdul Hussein Sahib, Director General, OFFICE OF INTERNATIONAL AFFAIRS, State Company for Foodstuffs Trading. to the sad and distressing event of Washington, DC, March 15, 1990. Harith Al-Barazanehi, Director General, today, the passing of a great friend and Re request for meeting with Iraqis. State Enterprise for Tobacco and Cigarettes. a great Congressman, the Honorable MICHAEL YOUNG, Zuhair Daoud, Director General, State TED WEISS of New York. Deputy Legal Adviser, U.S. Department of Company of Grain Trading and Processing. It has been very little noted among State, Washington, DC. Sadik H. Taha, Director General for Agree­ us here, but during this last Congress DEAR MR. YOUNG: The United States Attor­ ments and Loans, Central Bank of Iraq. he was assigned to the Committee on ney's Office for the Northern District of Ahmed Al-Dulaimi, Under Secretary, Min­ Banking, Finance and Urban Affairs, Georgia is investigating the activities of the istry of Industry and Military Manufactur­ even though he has other official Atlanta office of the Banca Nazionale del ing. standing committee assignments and Lavoro (BNL), an Italian concern. That in­ Raja Hassan Ali, Director General, Eco­ vestigation includes extensions of credit nomic Department, Ministry of Industry. obligations. He was there when he was made by BNL to Iraq during the period from Dr. Fadel Jawad Kadhum, Legal Adviser. needed, and it was not easy. January, 1986 to August, 1989. The Govern­ Dr. Safa Al-Habobi, Director General, Al­ Ted was a very principled man. I will ment of Iraq is aware of the investigation Nassar Complex Ministry of Industry, Presi- just say that I endorse everything that September 14, 1992 CONGRESSIONAL RECORD-HOUSE 24649 his colleague, the gentleman from New Mr. ST ARK in two instances. 1, 1992, pursuant to 2 U.S.C. 685(e) (H. Doc. York, the Honorable JIM SCHEUER, said Mr. VENTO. No. 102-387); to the Committee on Appropria­ when he introduced the resolution this Mr. RANGEL. tions and ordered to be printed. 4226. A letter from the Deputy Secretary of afternoon that when we adjourn today Mr. FORD of Michigan. Defense, transmitting a report on the status we do so in the honor and memory of Mr. LANTOS in two instances. and cost of U.S. commitment to NATO as re­ TED WEISS. flected in the DPQ Response and defense budget request, pursuant to 22 U.S.C. 1928 SENATE BILLS REFERRED note; to the Committee on Armed Services. COMMUNICATION FROM HON. Bills of the Senate of the following 4227. A letter from the Department of the CHARLIE ROSE, MEMBER OF titles were taken from the Speaker's Navy, transmitting notification of the pro­ CONGRESS table and, under the rule, referred as posed transfer of the obsolete vessel Takelma (ATF 113) to the Government of Argentina, The SPEAKER pro tempore laid be­ follows: pursuant to 10 U.S.C. 7308(c); to the Commit­ fore the House the following commu­ S. 2507. An act to amend the Act of October tee on Armed Services. nication from the Honorable CHARLIE 19, 1984 (Public Law 98-530; 98 Stat. 2698), to 4228. A letter from the Secretary of De­ ROSE, Member of Congress: authorize certain uses of water by the Ak­ fense, transmitting a draft of proposed legis­ Chin Indian Community, Arizona; to the lation to amend section 2031 of title 10, Unit­ HOUSE OF REPRESENTATIVES, Committee on Interior and Insular Affairs. COMMI'ITEE ON HOUSE ADMINISTRATION, ed States Code; to the Committee on Armed S. 2572. An act to authorize an exchange of Services. Washington, DC, September 11, 1992. lands in the States of Arkansas and Idaho; to Hon. TOM s. FOLEY, 4229. A letter from the Secretary of En­ the Committee on Interior and Insular Af­ ergy, transmitting the quarterly report on Speaker of the House, Washington, DC. fairs, Agriculture, and Merchant Marine and DEAR MR. SPEAKER: This is to formally no­ the Strategic Petroleum Reserve during the tify you pursuant to Rule L (50) of the Rules Fisheries. period April 1, 1992 through June 30, 1992, S. 2880. An act to authorize appropriations of the House that a member of my staff has pursuant to 42 U.S.C. 6245(b); to the Commit­ for fiscal years 1993 and 1994 for the Office of tee on Energy and Commerce. been served with a subpoena issued by the the United States Trade Representative, the United States District Court for the District 4230. A letter from the Department of En­ United States International Trade Commis­ ergy, transmitting a notice of meetings re­ of Columbia. sion, and the United States Customs Service, After consultation with the General Coun­ lated to the International Energy Program; and for other purposes; to the Committee on to the Committee on Energy and Commerce. sel to the Clerk, we will determine if the Ways and Means. compliance with the subpoena is consistent 4231. A letter from the Advisory Panel on S. 3095. An act to restore and clarify the Alzheimer's Disease, Department of Health with the privileges and precedents of the Federal relationship with the Jena Band of House. and Human Services, transmitting the third Sincerely, Choctaws of Louisana; to the Committee on report on administrative and legislative ac­ CHARLIE ROSE, Interior and Insular Affairs. tions to improve services for individuals S. 3224. An act to designate the United Chairman. with Alzheimer's disease and related demen­ States Courthouse to be constructed in tias, pursuant to 42 U.S.C. 679; to the Com­ Fargo, North Dakota the Quentin N. Burdick mittee on Energy and Commerce. United States Courthouse; to the Committee 4232. A letter from the Acting Director, De­ SPECIAL ORDERS GRANTED on Public Works and Transportation. fense Security Assistance Agency, transmit­ By unanimous consent, permission to ting notice of the Department of the Air address the House, following the legis­ Force's proposed Letter(s) of Offer and Ac­ lative program and any special orders ADJOURNMENT ceptance [LOA] to the Coordination Council heretofore entered, was granted to: Mr. GONZALEZ. Mr. Speaker, pursu­ for North American Affairs for training (Transmittal No. 92-40), pursuant to 22 U.S.C. (The following Members (at the re­ ant to House Resolution 564, I move 2776(b); to the Committee on Foreign Affairs. quest of Mr. GoNZALEZ) to revise and that the House do now adjourn in mem­ 4233. A letter from the Assistant Secretary extend their remarks and include ex­ ory of the late Honorable TED WEISS. of State for Legislative Affairs, transmitting traneous material:) The motion was agreed to; accord­ copies of the original report of political con­ Mr. FRANK of Massachusetts, for 5 ingly (at 1 o'clock and 48 minutes p.m.) tributions of Alvin P. Adams, of Virginia, to minutes, today. pursuant to House Resolution 564, the be Ambassador to the Republic of Peru, and Mr. ANNUNZIO, for 5 minutes, today. House adjourned until tomorrow, Tues­ members of his family, pursuant to 22 U.S.C. (The following Member (at the re­ day, September 15, 1992, at 12 noon, in 3944(b)(2); to the Committee on Foreign Af­ fairs. quest of Mr. GoNZALEZ) to revise and memory of the late Honorable TED 4234. A letter from the Acting Assistant extend her remarks and include extra­ WEISS of New York. Secretary for Legislative Affairs, Depart­ neous material:) ment of State, transmitting a copy of Presi­ Ms. NORTON, for 60 minutes each day, dential Determination 92-44, relative to the on September 15, 16, 17, and 18. EXECUTIVE COMMUNICATIONS, eligibility of the Organization of African ETC. Unity [OAU] to be furnished defense articles Under clause 2 of rule XXIV, execu­ and services under the Foreign Assistance EXTENSION OF REMARKS Act and the Arms Export Control Act, pursu­ tive communications were taken from ant to 22 U.S.C. 2753(a)(i); to the Committee By unanimous consent, permission to the Speaker's table and referred as fol­ on Foreign Affairs. revise and extend remarks was granted lows: 4235. A letter from the Department of the to: 4223. A letter from the Assistant Adminis­ Navy, transmitting the 1991 annual report (The following Members (at the re­ trator, Environmental Protection Agency, for the Navy Nonappropriated Fund Retire­ quest of Mr. GEKAS) and to include ex­ transmitting a final rule which revises a ment Plan of Employees of Civilian Morale, traneous matter:) number of existing regulations in the area of Welfare and Recreation, pursuant to 31 registration and classification procedures, U.S.C. 9503(a)(l)(B); to the Committee on Mr. DUNCAN. pesticide policies, and data requirements for Government Operations. Mrs. ROUKEMA. registration, pursuant to 7 U.S.C. 136w(a)(4); 4236. A letter from the Director, Office of Mr. SOLOMON. to the Committee on Agriculture. Management and Budget, transmitting (The following Members (at the re­ 4224. A communication from the President OMB's cost estimate for Pay-As-You-Go cal­ quest of Mr. GONZALEZ) and to include of the United States, transmitting revised culations as of August 31, 1992; to the Com­ extraneous matter:) fiscal year 1992 request for appropriations for mittee on Government Operations. Mr. ANDERSON in 10 instances. the Small Business Administration, pursu­ 4237 . A letter from the Director, Office of Mr. GoNZALEZ in 10 instances. ant to 31 U.S.C. 1107 (H. Doc. No. 102-386); to Management and Budget, transmitting the Committee on Appropriations and or­ OMB's cost estimate for Pay-As-You-Go cal­ Mr. BROWN in 10 instances. dered to be printed. culations as of September 8, 1992; to the Mr. ANNUNZIO in six instances. 4225. A letter from the Director, the Office Committee on Government Operations. Mr. LAF ALCE. of Management and Budget, transmitting 4238. A letter from the Deputy Associate Mr. SKELTON in two instances. the cumulative report on rescissions and de­ Director for Collection and Disbursement, Mr. YATRON in two instances. ferrals of budget authority as of September Department of the Interior, transmitting no- 24650 CONGRESSIONAL RECORD-HOUSE September 14, 1992 tice of proposed refunds of excess royalty Mr. DINGELL: Committee on Energy and tions were introduced and severally re­ payments in OCS areas, pursuant to 43 U.S.C. Commerce. H.R. 3591. A bill to amend the ferred as follows: 1339(b); to the Committee on Interior and In­ Public Health Service Act to provide protec­ sular Affairs. tions from legal liability for certain health By Mr. HUGHES (for himself and Mr. 4239. A letter from the Deputy Associate care professionals providing services pursu­ MOORHEAD): Director for Collection and Disbursement, ant to such act; with an amendment (Rept. H.R. 5933. A bill to implement the rec­ Department of the Interior, transmitting no­ 102-823, Pt. 2). Referred to the Committee of ommendations of the Federal Courts Study tice of proposed refunds of excess royalty the Whole House on the State of the Union. Committee, and for other purposes; to the payments in OCS areas, pursuant to 43 U.S.C. Mr. DINGELL: Committee on Energy and Committee on the Judiciary. 1339(b); to the Committee on Interior and In­ Commerce. Conference report on S. 12 (Rept. By Mr. JOHNSON of South Dakota (for sular Affairs. 102-862). Ordered to be printed. himself, Mr. BEREUTER, Mr. 4240. A letter from the Deputy Associate Mr. BROOKS: Committee on the Judiciary. SARPALIUS, Mr. MCCLOSKEY, Mr. Director for Collection and Disbursement, H.R. 4551. A bill to amend the Civil Liberties LEACH, Mr. NUSSLE, Mr. PENNY, Mr. Department of the Interior, transmitting no­ Act of 1988 to increase the authorization for NAGLE, and Mr. DORGAN of North Da­ tice of proposed refunds of excess royalty the trust fund under that act, and for other kota): payments in OCS areas, pursuant to 43 U.S.C. purposes; with an amendment (Rept. 102-863). H.R. 5934. A bill t o amend the Agricultural 1339(b); to the Committee on Interior and In­ Referred to the Committee of the Whole Act of 1949 to improve the Farmer-owned Re­ House on the State of the Union. serve Program, and for other purposes; to sular Affairs. Mr. MILLER of California: Committee on 4241. A letter from the Deputy Associate the Committee on Agriculture. Interior and Insular Affairs. H.R. 5534. A bill By Mr. SCHEUER: Director for Collection and Disbursement, to authorize the Secretary of the Interior to Department of the Interior, transmitting no­ enter into a cooperative agreement with the H. Res. 564. Resolution expressing the pro­ tice of proposed refunds of excess royalty William 0. Douglas Outdoor Classroom; with found sorrow of the House of Representatives payments in OCS areas, pursuant to 43 U.S.C. amendments (Rept. 102-864). Referred to the on the death of the Honorable Ted Weiss, a 1339(b); to the Committee on Interior and In­ Committee of the Whole House on the State Representative from the State of New York; sular Affairs. of the Union. considered and agreed to. 4242. A letter from the Deputy Associate Mr. MILLER of California: Committee on Director for Collection and Disbursement, Interior and Insular Affairs. H.R. 2737. A bill Department of the Interior, transmitting no­ to provide that a portion of the income de­ tice of proposed refunds of excess royalty rived from trust or restricted land held by an payments in OCS areas, pursuant to 43 U.S.C. individual Indian shall not be considered as a ADDITIONAL SPONSORS 1339(b); to the Committee on Interior and In­ resource or income in determining eligibility Under clause 4 of rule XXII, sponsors sular Affairs. for assistance under any Federal or federally 4243. A letter from the Deputy Associate assisted program; with an amendment (Rept. were added to public bills and resolu­ Director for Collection and Disbursement, 102-865, Pt. 1). Ordered to be printed. tions as follows: Department of the Interior, transmitting no­ H.R. 2880: Mr. POSHARD. tice of proposed refunds of excess royalty H.R. 3928: Mr. HEFLEY and Mr. FROST. payments in OCS areas, pursuant to 43 U.S.C. REPORTED BILLS SEQUENTIALLY H.R. 4141: Mr. BLACKWELL, Mr. WAXMAN, 1339(b); to the Committee on Interior and In­ REFERRED Mr. HAYES of Illinois, and Mr. RANGEL. sular Affairs. Under clause 5 of rule X, bills and re­ H.R. 4385: Mr. FISH. 4244. A letter from the Chairman, Adminis­ ports were delivered to the Clerk for H.R. 4399: Mr. SHAYS. trative Conference of the United States, transmitting the annual report on fees and printing, and bills referred as follows: H.R. 4414: Mr. MATSUI. other expenses awarded pursuant to 5 U.S.C. [Submitted September 11, 1992) H.R. 4897: Mr. RITTER. 504(e) covering the period from October 1, Mr. DE LA GARZA: Committee on Agri­ H.R. 5208: Mr. SKAGGS. 1990 through September 30, 1991, pursuant to culture. H.R. 918. A bill to modify the re­ H.R. 5507: Mr. EMERSON, Mr. GILCHREST, 5 U.S.C. 504(e); to the Committee on the Ju­ quirements applicable to locatable minerals and Mrs. MORELLA. diciary. on public domain lands, consistent with the H.R. 5542: Mr. SOLOMON. 4245. A letter from the Secretary of Com­ principles of self-initiation of mining claims, H.R. 5610: Mr. ZELIFF. merce, transmitting a copy of the coopera­ and for other purposes; referred to the Com­ H.R. 5783: Mrs. UNSOELD, Mr. OLIN, Mr. tive program for the development of tuna mittee on Merchant Marine and Fisheries for HENRY, Mrs. KENNELLY, Mr. LIPINSKI, Mr. and other latent fishery resources of the a period ending not later than September 14, RANGEL, and Ms. NORTON. Central, Western, and South Pacific Ocean, 1992 for consideration of such provisions of H.R. 5927: Mr. BATEMAN. pursuant to 16 U.S.C. 758e-la; to the Commit­ the bill and amendment recommended by the Committee on the Interior and Insular Af­ H.J. Res. 478: Mr. TAYLOR of North Caro­ tee on Merchant Marine and Fisheries. lina, Mr. MARTIN, Mr. ROWLAND, Mr. MORAN, 4246. A letter from the Railroad Retire­ fairs as fall within the jurisdiction of that committee pursuant to clause l(n), rule X. Mr. WILLIAMS, Mr. THOMAS of Georgia, Mr. ment Board, transmitting the Board's budget HATCHER, and Mr. BARNARD. request for fiscal year 1994; jointly, to the (Rept. 102-711 Pt. 2). Ordered to be printed. Committee on Appropriations, Energy and H.J. Res. 520: Mr. CARPER, Mr. FORD of Ten­ Commerce, and Ways and Means. nessee, Mr. PURSELL, Mr. SMITH of Texas, 4247. A letter from the Railroad Retire­ SUBSEQUENT ACTION ON A RE­ and Mr. WELDON. ment Board, transmitting the Board's budget PORTED BILL SEQUENTIALLY H.J. Res. 522: Mr. RIGGS, Mr. ZELIFF, Mr. request for fiscal year 1994, pursuant to 45 REFERRED FAWELL, and Mr. BALLENGER. U.S.C. 231f; jointly, to the Committees on H.J. Res. 530: Mr. MORAN, Mr. HOYER, Mr. Under clause 5 of rule X the following RANGEL, Mr. BLILEY, Mr. BOUCHER, Mr. Appropriations, Energy and Commerce, and action was taken by the Speaker: Ways and Means. · GEKAS, Mr. JONES of Georgia, Mr. LIVING­ H.R. 918. Referral to the Committee on STON, Mr. MACHTLEY, Mr. TAUZIN, Ms. NOR­ Merchant Marine and Fisheries extended for TON, Ms. HORN, Mr. RITTER, Mr. GOODLING, REPORTS OF COMMITTEES ON a period ending not later than September 15, Mr. HOCHBRUECKNER, Mr. LANCASTER, Mr. PUBLIC BILLS AND RESOLUTIONS 1992. HAYES of Louisiana, Mr. SCHUMER, Mr. GOR­ DON, Mr. GUNDERSON, Mr. NAGLE, Mr. CARR, Under clause 2 of rule XIII, reports of Mr. MOODY, Mr. BAKER, Mr. SABO, Mr. CAL­ committees were delivered to the Clerk PUBLIC BILLS AND RESOLUTIONS LAHAN, Mr. GRANDY, and Mr. OBERSTAR. for printing and reference to the proper Under clause 5 of rule X and clause 4 H. Con. Res. 324: Mr.VANDERJAGT and Mr. calendar, as follows: of rule XXII, public bills and resolu- CHANDLER.