E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 104 CONGRESS, FIRST SESSION

Vol. 141 WASHINGTON, WEDNESDAY, JUNE 14, 1995 No. 97 Senate (Legislative day of Monday, June 5, 1995)

The Senate met at 9 a.m., on the ex- ing them to march to the cadences of of 9:30 a.m., with the time to be equally piration of the recess, and was called to the rhythms of Your righteousness. In divided between the Senator from Flor- order by the President pro tempore Your holy name. Amen. ida [Mr. MACK] and the Senator from [Mr. THURMOND]. f New Jersey [Mr. BRADLEY]. Mr. BRADLEY addressed the Chair. PRAYER RECOGNITION OF THE ACTING The PRESIDING OFFICER (Mrs. The Chaplain, Dr. Lloyd John MAJORITY LEADER HUTCHISON). The distinguished Senator Ogilvie, offered the following prayer: The PRESIDENT pro tempore. The from New Jersey. Almighty God, Sovereign of this Na- acting majority leader is recognized. f tion, and Lord of our lives, we thank f RACE FOR THE CURE You for outward symbols of inner meaning that remind us of Your bless- SCHEDULE Mr. BRADLEY. Madam President, I ings. The sight of our flag stirs our pa- Mrs. HUTCHISON. Mr. President, on am very pleased to join my distin- triotism and dedication. It reminds us behalf of the leader I would like to say guished friend from Florida today on of Your providential care through the that the leader time has been reserved the floor of the U.S. Senate to talk years of our blessed history as a people, this morning, and there will be a period about the Race for the Cure which will take place this Saturday, and the issue our role in the unfinished and unfold- of morning business until the hour of of breast cancer generally. Breast can- ing drama of the American dream, and 9:30 a.m. cer is a dreaded and devastating dis- the privilege we share of living in this Following morning business, the Sen- ease which has reached epidemic pro- land. ate will resume consideration of S. 652, portions in America. During 1995 an es- Lord, today it is a moving experience the telecommunications bill. At that timated 183,000 new cases of breast can- to celebrate Flag Day, in the midst of time the Senate will begin 20 minutes cer will be detected in women, and the crucial legislation before this Sen- of debate on the Feinstein amendment. 46,000 lives will be lost to this disease— ate. It is an inspiring reminder of why Following that debate, at approxi- mately 9:50, the Senate will begin a se- 46,000 lives. The number is staggering. we are here. We repledge our allegiance For this reason I am deeply commit- ries of three consecutive rollcall votes. to our flag and recommit ourselves ted to finding a cure for breast cancer, The first vote will be on or in relation anew to the awesome responsibilities as much as a Senator can be commit- to the Feinstein amendment, to be fol- You have entrusted to us. As we move ted. The real action is in science. But forward with the remaining amend- lowed by a vote on or in relation to the we cannot allow our wives, daughters, ments and substantive content of the Gorton amendment, to be followed by a friends, and coworkers to be claimed by telecommunications legislation, may vote on invoking cloture on S. 652, the this disease. We must continue to bat- the flag that waves above this Capitol telecommunications bill. Further roll- tle for their well-being. remind us that this is Your land, that call votes can be expected throughout Every woman is at risk for breast the airwaves belong to You, and that the day in hope of completing action cancer. It is the leading cause of death You have entrusted to us the preserva- on the telecommunications bill this among African-American women and it tion of the decency of what is broad- evening. is the leading cause of death among all cast on radio and television and com- Mr. President, I yield the floor. women between ages 35 and 54. Al- municated through the sophisticated f though the incidence of breast cancer technology of computers. increases sharply after age 40, younger RESERVATION OF LEADER TIME Thank You, Lord, that our flag also women, even women in their twenties, gives us the bracing affirmation of the The PRESIDENT pro tempore. Under are also diagnosed with and die of unique role of this Senate in our de- the previous order, the leadership time breast cancer. mocracy. In each age You have called is reserved. As a nation, we cannot afford to wait truly great men and women to serve as f any longer to eradicate the leading Senators. We praise You for the 100 dy- killer of women in this country. Al- namic patriots whom You have called MORNING BUSINESS though we still do not know what to serve in this Senate at this strategic The PRESIDENT pro tempore. Under causes breast cancer or how to cure it, time in our history. May they experi- the previous order there will now be a we have begun to make significant ence fresh strength and vision, as You period for the transaction of morning strides. Federal funding for breast can- renew the drumbeat of Your spirit call- business not to extend beyond the hour cer research has quadrupled since 1990.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S 8293 S 8294 CONGRESSIONAL RECORD — SENATE June 14, 1995 The discovery of breast cancer genes I want to, first of all, express my ap- ly’s experience. At a young age, when I has made headlines around the world preciation to Senator BRADLEY for get- was in my twenties, my younger broth- and restored hope that one day a sci- ting the Senate focused on the Race for er in essence said the same thing to me entific breakthrough will provide a the Cure. He came up to me yesterday except that he had discovered a mela- cure. However, we cannot simply sit afternoon and asked if I would be will- noma on his head. Unfortunately, be- back and wait for the cure. Each and ing to come over and talk for a few cause it was on his head and covered by every one of us has a role and we can minutes this morning. hair, it had not been discovered until it play it and we should play it. One way I appreciate, again, in this busy was way too late. And the doctors told to help in this fight is to participate in schedule and busy arena in which we him he probably had 6 months to live. something like the sixth annual Na- find ourselves, a situation where we Michael ended up living 12 years and tional Race for the Cure this Saturday, can focus our attention and our inter- lived most of those 12 years in a very on June 17. The purpose of this race is est on an issue that is of deep concern, useful and beneficial and, for him, a to both raise money and public aware- frankly, to all Americans, but for some comfortable way. It was just at the end ness about how early detection and of us there is a very personal aspect to that it became very, very difficult for mammograms save lives. The Race for it. him. the Cure, and others like it across the I like the word the Senator’s wife But the thoughts that went through Nation, has raised $27.5 million since it uses with respect to triumph. Maybe my mind when Priscilla told me she began, making the race’s foundation we should begin to change the language discovered the lump—I went through the largest private funder of research that we refer to because, as I have be- all of those experiences again that I dedicated solely to breast cancer. come involved in the discussion of this had with my brother Mike. The Race For The Cure is a unique disease, one of the things that I have The fundamental difference, though, opportunity to bring together the found is that the spirit of the individ- between the two was early detection. many people whose lives have been ual, the determination of the individ- Priscilla had not been active in the touched by breast cancer. This year, ual to overcome the disease plays a sig- fight against cancer, but because our 25,000 people are expected to partici- nificant role in the cure. I do not mean family had been dealing with the can- pate in this special event. The size of to downplay the significance, obvi- cer issue, she had become sensitized. this event clearly demonstrates the ously, of the traditional medical ap- She had heard the messages, frankly far-reaching impact this disease has proaches, but I think we are beginning the messages that will come from our had on American life. Since 1960, more to find out that the human spirit plays comments here on the floor today. than 950,000 U.S. women, nearly 1 mil- a greater and greater role in this battle I will guarantee you there will be lion American women, have died from against cancer. someone out there watching and ob- breast cancer. This is more than two Another person that I would like to serving today that will hear what Sen- times the number of all Americans who thank is Nancy Brinker, who is the in- ator BRADLEY had to say about early died in World Wars I and II, the Ko- dividual who started the Race for the detection, hear what Senator ROCKE- rean, Vietnam, and Persian Gulf wars. Cure. The Susan Komen Foundation FELLER will have to say about early de- The fight against breast cancer is a was established by Nancy Brinker in tection, hear what I have to say about continuing battle because breast can- memory of her sister who died of breast early detection, and the realization cer is the leading killer among women. cancer. Nancy has just done an out- that if you detect the disease early, I will join the estimated 5,000 run- standing job, and she has written a you can survive, you can triumph. In ners, walkers, and wheelchair partici- book that is called ‘‘The Race Is Run fact, it has been shown that with most pants who will turn out in force on Sat- One Step at a Time,’’ and why we will breast cancers, if detected and treated urday. I will probably be a walker, not be out on the streets of Washington, early, there is a 94 percent triumphant a runner, but I will be there. And I will DC, and on The Mall this weekend put- rate; 94 percent cure rate. That is a join with my family, my staff, and I ting one foot in front of the other dramatic statistic. The point that the will join all those who have triumphed maybe a little bit faster than we nor- Race for the Cure is all about is we can over breast cancer. mally do trying to focus attention on race there to get the message out that That is how my wife likes to refer to the importance of early detection with early detection saves lives. it, having had breast cancer in 1992 and respect to breast cancer. So, again, if I can go back on a fairly gone through the agony of chemo- I just recommend to any individual personal basis, it, frankly, is hard for therapy and all of the other assorted or any family that is dealing with the me to believe that I am standing on the traumas that are associated with it. disease of breast cancer that you pick floor of the U.S. Senate talking about She does not like the word, ‘‘survivor.’’ up this book that Nancy has written. It breast cancer. I mean not too many She likes to say that she triumphed will change your life, and it will give years ago most males would have said over breast cancer. So I will be joining you a sense about how you can triumph this is not something we can talk all those who triumphed over breast over the disease. about in public. Most women would cancer as well as the relatives of those So, again, I thank Nancy Brinker. I have said that not too long ago. Most who have lost loved ones. I will race or walk for a cure. I am thank Senator BRADLEY for his leader- of our society said we cannot even talk very proud of my own office. We will be ship, and I am delighted to have the op- about cancer. The importance of what bringing about 56 people to race for a portunity to make a few comments of we are doing is saying that you can cure on Saturday. I will race with my my own this morning. As I was trying come out in a very public way and talk staff and hope that one day, when a to think how would I focus my com- about the disease and it is OK for men new generation of American women ments this morning on this issue, I de- and women to talk about early detec- grow old, their children will learn cided that I would like to spend a cou- tion with respect to breast cancer. about breast cancer in history books ple of moments anyway speaking on a Again, in Priscilla’s case, she did all and not in hospitals or in college or at personal basis about my wife, Priscilla. of the things that one is supposed to bedside. It has been almost 4 years since that do. She had a mammogram in Novem- I encourage all my colleagues in the day when Priscilla sat me down. She ber prior to the discovery of the dis- Senate to enter the race and urge them said, ‘‘CONNIE, you had better sit down ease. It did not pick up the lump at to help find a cure for breast cancer. for a moment. I’ve got something I that time. She had her annual gyneco- With all of our help and the help of the need to tell you.’’ I had just come back logical exam in June of the following American people, this race will be a from a week’s trip. She said that while year. Nothing showed up. But there tremendous success. Race for the Cure I was gone she had discovered a lump was a message about self breast exams is, indeed, a race for life. in her breast and that she was fearful that somehow somebody got through Mr. MACK addressed the Chair. that it was cancer. to Priscilla. That is the way she dis- The PRESIDING OFFICER. The Sen- Again, on a personal basis of having covered the disease. Because of that ator from Florida is recognized. experienced this in my family, as many early discovery, Priscilla is going to Mr. MACK. Madam President, thank of you have heard, I have spoken out survive. She is going to triumph. She you. here on the floor before about my fami- has won. She is so excited about having June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8295 gone through that victory, if you will, tage of that at this time. So we need to volved for the first time on Saturday, that she is out right now—she left yes- get that message out to the older June 17. terday morning—she is in Florida this women of our society. I really was interested in what Sen- week, and she is working with other The last point that I would make ator MACK had to say about fear. I survivors of cancer, other people who here this morning, Madam President, think that is true. I have seen that in are engaged in getting the message out has to do with fear. Priscilla talks my own work as a Senator, even going about early detection. about this all the time, and we have all back to the time I was a VISTA volun- I will say on a personal basis that I heard it. People say, well, gee, I think teer in West Virginia, the fear that do not think Priscilla has ever felt bet- I would rather not know. And that is a people sometimes have either because ter in her life, both physically and rationalization on the one hand, but there is enough that is going to be emotionally, to be involved in some- yet it is a recognition of fear, because wrong in their lives they do not want thing she believes in so deeply and the we are still dealing with a situation to take a test to find out something realization that by getting up and say- where we are convinced that if we are which might tell them there is some- ing to people—by the way, let me back told we have cancer, we are going to thing much more seriously going up for a moment. die, that people do not survive. That is wrong in their lives or simply because When I said to Priscilla that I had de- just fundamentally wrong. So we have Americans often are generically opti- cided that I was going to run for the to get the message out that you do not mistic; they figure ‘‘it will not happen Congress back in 1982, she in essence have to address this with the level of to me.’’ Of course, it does. And the fig- said, ‘‘Great. Go for it. But there are fear that so many do; that you have to ures about how you can cut down two things I do not do.’’ She said, ‘‘One break through that fear and let us de- through mammograms, through self- is I do not speak to the media, and the tect the disease early and let us pro- testing, the spread of this disease and other is I do not give speeches.’’ Well, vide then for the treatment of the dis- mortality of this disease are really just I tell you something. Priscilla is out ease so that we can see more of our staggering. speaking to the media, and she is out loved ones triumph over this dreaded I am impressed by the difference be- giving speeches because she is abso- disease. tween the 95 percent cure rate upon lutely convinced that the more she So, again, I thank the Chair. I thank early detection and then over a 5-year does, the more opportunities there are Senator BRADLEY for getting us this period, that a 5-year survival rate goes for people to survive, to triumph over opportunity to get together to talk all the way down to 18 percent. the disease. And she had not been doing about this. I look forward to being out If there has not been early detection this. there on Saturday with him and with and there has been such a spread on a I think most of us recognize that the other 20,000, 25,000 as we raise more more general basis, that argues so to- there is nothing more satisfying in life money to add to the coffers to do the tally for prevention, for self-examina- than to be pursuing something that research and get the message out that tion, for mammograms, for doing ev- you believe in, that you are committed early detection saves lives. I thank the erything we possibly can. to, that you are dedicated to. Chair. So I think it is very important; the So, while I am out here today to talk Mr. ROCKEFELLER addressed the statement that more women die from about the significance of the Race for Chair. this disease than any other is some- the Cure and the 20,000 to 25,000 people thing that we have to understand and that may join us—and I, too, will be The PRESIDING OFFICER. The Sen- ator from West Virginia is recognized. something that we have to talk about participating in the race on Saturday, so that people will be strong in their as I did last year—the real message in EARLY DETECTION AND PUBLIC AWARENESS OF response and that a husband and wife all of this is that early detection saves CANCER and friend, all of us feel a responsibil- lives. One of the comments that the Mr. ROCKEFELLER. Madam Presi- ity to each other about problems with American Cancer Society has stated dent, I rise also to support the Race for diseases like this which are difficult over and over again is we can increase the Cure. I do not have the same per- for women in this case and others for the cure rate of cancer from the 50 per- sonal experience that Senator BRADLEY men in other cases; that we have to be cent roughly where it is today, to 75 and Senator MACK have, but I am pro- able to talk openly, publicly, freely, percent without a single additional foundly moved by the experiences they and instructively about this to each technological breakthrough. have gone through. As they commu- other and to the American public. It is I get very excited about the things nicated to all of us about much more one of our roles I think as public offi- that are happening out at the National devastating experiences that their cials. Cancer Institute with gene therapy, wives have been through and to some So that I congratulate Senator BRAD- and with the therapy work that is extent are still going through, it is in- LEY and Senator MACK, both for their going on, and we are going to get tre- teresting that both men, in my judg- own combination of privacy in the way mendous breakthroughs. But if we did ment, both Senators are reticent about they handled this ordinarily but, on not get one more, we could increase the personal matters. That is their nature. the other hand, when it comes to help- cure rate from 50 to 75 percent if we But when it comes to something like ing others, the way they are deter- could just convince people to take ad- this, where there is so much that they mined to be more public so as to broad- vantage of the early detection proce- can do to help so many people, and en public education and thus increase dures that are already available where they know that as Senators peo- the possibility for a better cure rate. through our health care system in ple will at least from time to time lis- And symbolically, here we come to the America today. From 50 to 75 percent, ten to what they have to say, they Race for the Cure on Saturday, and I that is dramatic, absolutely dramatic. know they have a duty, and I think we hope that it is the largest one ever. The other comment that I would all do, to make people aware of what I thank the Presiding Officer and I make, and I have to be careful here not can happen through early detection yield the floor. to use too many statistics, but as I un- and through public awareness. Several Senators addressed the derstand it, only roughly 35, 37 percent America is a very interesting coun- Chair. of women that are covered by Medicare try. We battle about whether we are The PRESIDING OFFICER. The Sen- take advantage of reimbursement for going to reform health care or whether ator from Florida controls the time. mammography—only 37 percent. And I we are going to increase or decrease Mr. MACK. I inquire as to how much would make this point, that as an indi- Government spending on research, but time I have remaining. vidual gets older and older and older Americans are very unique in the way The PRESIDING OFFICER. The Sen- and the chances of being diagnosed that they sometimes can just galvanize ator has 1 minute 11 seconds. with breast cancer go up and up and up, themselves to make things known, and Mr. MACK. I yield that 1 minute 11 there is more need to take advantage this Race for the Cure is a very dra- seconds to my colleague from New of what is offered through the Medicare matic example. The numbers have York. system, and only 37 percent of Amer- grown over the years. This year the The PRESIDING OFFICER. The Sen- ican women are in fact taking advan- international community will be in- ator from New York is recognized. S 8296 CONGRESSIONAL RECORD — SENATE June 14, 1995 BREAST CANCER AWARENESS STAMP that it will bring us closer to the day Clearly, research has to be done. Mr. D’AMATO. I thank my colleague when the horrible ravages of breast More needs to be done in prevention and friend. Let me commend Senator cancer are a thing of the past. and treatment of breast cancer, and MACK and Senator BRADLEY for their Madam President, this great race, the Race for the Cure is a way for all of extraordinary efforts in this area of Race for the Cure, which is going to us to express our desire to do better in education, of bringing about public take place Saturday here in our Na- this and to bring this to the public’s awareness of not only the disease but tion’s capital, is just a small part of attention. the horrible impact it has not only on what my colleagues are attempting to I think it is an opportune time also women but the families of America. do, and I am proud to be associated for this Senate to recognize that it has Mr. President, I rise today to com- with them in this endeavor. been 6 months without a Surgeon Gen- mend the Susan G. Komen Breast Can- Let me also say that yesterday I was eral. Dr. Foster has the ability, if ap- cer Foundation for sponsoring the able to obtain the signature of every pointed, to bring this issue to the fore- sixth annual national Race for the single Member of this body, 100 Sen- front of this Nation, and I hope that Cure, which will take place this coming ators, within a matter of several hours the majority leader brings Dr. Foster’s Saturday, June 17, here in our Nation’s that would ask of the Postmaster Gen- nomination to the Senate expedi- Capital. eral that a stamp be commemorated to tiously so that we can, again, have an- This annual event raises critically bring about breast cancer awareness. other way of making sure that wom- One of my constituents, Diane needed funds to combat breast cancer— en’s health diseases are brought to the Sackett Nannery, proposed that there a horrible disease that, unthinkably, Nation’s forefront. be the creation of a special pink ribbon has become the most common form of I will be joining my husband and my postage stamp to help bolster breast cancer in women, and the leading cause children this weekend in the Race for cancer awareness in our Nation. And as of cancer death for all women between the Cure. I urge all of my colleagues to the ages of 35 and 54. It is a disease I said I am very proud of my colleagues for the manner in which all of them not only walk the walk but talk the that—with no known cure and no talk and get some good research done known cause—can only be understood, were so supportive of this attempt to create a greater awareness in our Na- on this issue. and eventually conquered, through in- I thank my colleague from New Jer- creased research. tion so that we can do more in our ef- forts to find not only the cure but also sey. In addition to raising funds for re- Mr. BRADLEY. Madam President, as search, this race helps raise the level of to do more in detection and prevention. I can say to you that there has prob- we conclude this morning business on public awareness of this disease, while the Race for the Cure, I simply pay bringing needed public attention to the ably been no area in our Nation that has been harder hit than Long Island, tribute to a member of my staff, Katie importance of early detection. Konnorton, who has coordinated the 56 We must continue to seek new and my hometown, Nassau County, where we have the highest rate of breast can- people who will come from my office, creative ways to promote breast cancer associated with it, family members and awareness. I want to take a moment to cer in the United States, a sad distinc- tion to have. staff members, to make the race on recognize the efforts of one of my Long Saturday. She deserves a lot of credit. Island constituents, Diane Sackett So I want to commend my colleagues I think because of her and because of Nannery, who has proposed the cre- for their leadership, and I want to say the commitment of other people on the ation of a special pink ribbon postage that I am tremendously encouraged by staff, we will have a tremendous turn- stamp to help bolster breast cancer the tremendous public response for the out, and I hope that other Senators’ of- awareness in our Nation. Such a stamp Race for the Cure, not only here but I fices—I am very pleased the Senator would serve as a strong reminder of the think nationwide. We have brought from Washington is going to be there magnitude of this disease, while rein- people together with this magnificent with her family, I respect that—I hope forcing public health officials’ efforts endeavor. I yield the floor and thank my col- other Senators might check off that to promote the benefits of early detec- leagues. Saturday is the day for them to be tion. Mr. BRADLEY addressed the Chair. counted for the cure for breast cancer: I believe this stamp deserves the The PRESIDING OFFICER. The Sen- The Race for the Cure, Saturday, Sen- strong and immediate support of the ator from New Jersey is recognized. ators’ offices here in Washington. It United States Postmaster General. Mr. BRADLEY. Madam President, sends the message of early detection Today I am forwarding a letter to the how much time do I have? and fight for a cure. I thank the Chair. Postmaster General—signed by all 100 The PRESIDING OFFICER. One U.S. Senators—urging his support for minute fifty-five seconds. f the prompt approval of the important Mr. BRADLEY. I yield all my time to COMMENDING JACKSON HOLE SKI breast cancer awareness stamp. I am the Senator from Washington. AREA hopeful that the voice of our Nations’ The PRESIDING OFFICER. The Sen- women will be heard through this ator from Washington is recognized. Mr. THOMAS. Madam President, I unanimous statement by their elected BREAST CANCER—A THREAT TO WOMEN’S would like to take a minute to com- officials, and that this stamp will soon HEALTH mend the Jackson Hole ski area in my become a reality. Mrs. MURRAY. Madam President, I State of Wyoming. Recently this ski Just as I am heartened by the over- rise today to join my colleagues in ex- area received the prestigious Golden whelming support for this stamp, I am pressing support for research on breast Eagle Award, sponsored by the Skiing likewise encouraged by the tremendous cancer and the Race for the Cure. This Co. which is part of Times Mirror Mag- public response the Race for the Cure frightening disease has taken the lives azines and publisher of Ski, Skiing, and has received over its short history. In of far too many women, and the long TransWorld Snowboarding magazines. just 6 years, the national Race for the list of those who have died include The Golden Eagle Award was estab- Cure has grown to become the largest many of my own friends. lished by the Skiing Co. and Times 5K race in the country, with close to As has been stated, breast cancer is a Mirror to recognize exceptional envi- 20,000 participants expected in 1995. growing public health problem in this ronmental excellence in ski area man- True to its name, those who enter run Nation and a great threat to women’s agement by North American ski areas. not to win the race to the finish line, health. Many women are very confused It was presented at the annual meeting but to help our Nation win the race about the mixed messages being sent to of the National Ski Areas Association against the clock to discover a cure for us today about breast cancer. One year in Palm Springs, CA, last month. this devastating disease. we are told to have annual mammo- The Jackson Hole Ski Corp. won the Mr. President, I want to commend all grams beginning at the age of 40. The top award for overall environmental those involved in planning, organizing, next year, after we faithfully comply excellence. The resort was commended supporting, and, not least of all, run- with that, we are told something else. by a panel of judges for downsizing its ning in this important event. I hope We remain worried and confused, and it mountain master plan by a third, in that it will exceed all expectations, and is time for better research on the issue. order to provide a better ski experience June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8297 while adhering to environmental val- War, for example, Congress awarded STATEMENT OF RICHARD D. PARKER, ues. It was also recognized for its vehi- the Medal of Honor to Union soldiers PROFESSOR OF LAW, HARVARD LAW SCHOOL cle maintenance shop management who rescued the flag from falling into I am a civil libertarian. I believe that, in a program, for a sensitive revegetation rebel hands. democracy, freedom of speech must be ‘‘ro- plan, an aggressive recycling program, In 1931, Congress declared the Star bust and wide-open’’. Indeed I believe it and for establishing a land trust to pre- Spangled Banner to be our national an- ought to be more robust and wide-open than, serve the resort’s scenic and natural them. In 1949, Congress established in some respects, it is now and than the Su- preme Court has been willing, on some occa- character. Three years ago, at a series June 14 as Flag Day. Congress has es- tablished ‘‘The Pledge of Allegiance to sions, to grant. It’s because of that belief of training seminars, employees of that I urge the Congress to propose to the Jackson Hole Ski Corp. chose ‘‘Respect the Flag’’ and the manner of its recita- states a new constitutional amendment, one for the Environment’’ as their highest tion. Congress designated John Philip that would permit the people—if, through corporate value. Jim Gill, vice presi- Sousa’s ‘‘The Stars and Stripes For- the democratic process, they so choose—to dent of the area, believes that eco- ever’’ as the national march in 1987. protect the flag of the United States against nomic growth and environmental pro- Congress has also established de- physical desecration. tection can complement each other, be- tailed rules for the design of the flag I cause most resort guests consider and the manner of its proper display. Congress, along with 48 States, had Let me begin with general principles. It is, themselves environmentalists who after all, at the level of fundamental value enjoy the outdoors and appreciate its regulated misuse of the American flag that discussion of constitutional provi- natural beauty. According to Francis until the Supreme Court’s 1989 decision sions—meant ‘‘to endure for ages to come’’— Pandolfi, president and CEO of Times in Texas versus Johnson. should be (and has traditionally been) con- As I say, these congressional actions Mirror Magazines and who presented ducted. reflect the people’s devotion to the the award, My basic proposition is this: Whether free- flag; Congress did not create these feel- dom of speech is, in fact, robust and wide- Our judges called Jackson Hole’s initiative ings and deep regard for the flag among open does not depend solely, or even pri- very broad-based and far-reaching—from its marily, on case-by-case adjudication by the downsizing of the mountain to its outreach our people. courts. It depends most of all on conditions programs, its educational accomplishments The 104th Congress will have a of culture. First, it depends on the willing- and the preservation of the area’s character chance to do its part to reflect our peo- ness and capacity of people—in our democ- through its land trust. The area has done su- ple’s devotion to Old Glory by sending racy, that means ordinary people—to express perb environmental work on virtually every to the States for ratification Senate themselves energetically and effectively in front. Joint Resolution 31, a constitutional public. Second, it depends on acceptance as In addition to Jackson Hole, five amendment giving Congress and the well as tolerance, official and unofficial, of other ski areas won Silver Eagle States power to prohibit physical dese- an extremely wide range of viewpoints and Awards for environmental excellence cration of the flag of the United States. modes of expression. And, third, it depends in the following categories: I recognize that, in good faith, some on adherence to very basic parameters that, Snowbird, UT, for water conservation of my colleagues oppose this constitu- like constitutional provisions in general, and wastewater management; tional amendment. They love the flag help structure democratic life the better to release its energies. Heavenly, CA, for fish and wildlife no less than supporters of the amend- This last condition is the one that con- habitat protection; ment. I do hope those who have opposed the cerns us now. Everyone agrees that there Sierra-at-Tahoe, CA, for environ- must be ‘‘procedural’’ parameters of free mental education; amendment in the past will reconsider their position. We can protect the flag speech—involving, for example, places and Winter Park, CO, for community out- times at which certain modes of expression reach; and without jeopardizing freedom of ex- are permitted. Practically everyone accepts Beaver Creek, CO, for area design. pression. Freedom of expression was some explicitly ‘‘substantive’’ parameters of Madam President, too often we only extremely robust when the 49 flag dese- speech content as well. Indeed, despite talk hear from critics about how ski areas cration statutes were enforceable. And of ‘‘content-neutrality,’’ the following prin- destroy the wilderness. Skiing is a there is no danger of a slippery slope ciple of constitutional law is very clear: Gov- here because there is no other symbol ernment sometimes may sanction you for wonderful sport which millions of peo- speaking because of the way the content of ple from around the world enjoy, and of our country like the flag. We do not salute the Constitution or the Declara- what you say affects other people. the Golden Eagle Award program con- What is less clear is the shape of this prin- firms what we all know; that it can co- tion of Independence, and no one has ever suggested a ban on burning copies ciple. There are few bright lines to define it. exist with environmental protection of The Supreme Court understands the prin- the highest degree. Industry surveys of these hallowed documents. Numer- ciple to rule out speech that threatens to show that skiers are very environ- ous other methods of protest, including cause imminent tangible harm: face-to-face marches, rallies, use of placards, post- mentally aware and involved, and that fighting words, incitement to violation of ers, leaflets, and much more clearly re- any perception of skiing as being law, shouting ‘‘fire’’ in a crowded theater. main available. I hope we will send this And it does not stop there. It understands antienvironmental exists only in the amendment to the States for ratifica- the principle, also, to rule out speech that minds of a few. These success stories tion. threatens certain intangible, even diffuse, not only educate the American public On June 6, Senator HANK BROWN, harms. It has, for instance, described obscen- about what a good job many ski areas chairman of the Subcommittee on the ity as pollution of the moral ‘‘environment.’’ are doing to conserve and protect the Constitution, Federalism, and Property But what about ‘‘political’’ speech critical of environment, but they also serve as ex- the government? Isn’t there a bright line Rights held a hearing on the flag protecting that, at least so long as no immi- cellent examples for other ski areas to amendment. The subcommittee heard emulate. nent physical harm is threatened? The an- from 11 witnesses, including opponents swer is: No. The Court has made clear, for in- Congratulations to Jackson Hole Ski of the amendment. I hope those of my stance, that statements criticizing official Corp. and to all the other winners. colleagues inclined to vote against conduct of a public official may be sanc- f Senate Joint Resolution 31 will review tioned if they are known to be false and dam- the very fine testimony of its support- age the reputation of the official. There has FLAG DAY—JUNE 14, 1995 ers. I ask unanimous consent that two been no outcry against this rule. It was set Mr. HATCH. Madam President, today of the statements, that of Prof. Rich- forth by the Warren Court—in an opinion by is Flag Day. Utahns, and indeed Ameri- Justice Brennan, the very opinion that es- ard Parker and former Assistant Attor- tablished freedom of speech as ‘‘robust and cans all across our great country re- ney General for Legal Counsel, Charles wide-open.’’ 1 It has been reaffirmed ever vere the flag as a unique symbol of the J. Cooper, be printed in the CONGRES- since. Our constitutional tradition, there- United States and of the principles, SIONAL RECORD following my remarks, fore, leaves plenty of room for debate about ideals, and values for which our coun- along with my opening statement from the necessary and proper scope of the ‘‘sub- try stands. that hearing. stantive’’ parameters of the content of free Congress has, over the years, re- There being no objection, the mate- speech. flected the devotion our diverse people rial was ordered to be printed in the have for Old Glory. During the Civil RECORD, as follows: Footnotes at end of article. S 8298 CONGRESSIONAL RECORD — SENATE June 14, 1995 In the past couple of decades, a consensus on its own, lasts forever. Every institution the ‘‘delicate balance’’ of the Constitution as has been growing around the following prop- must be reenergized by every generation to a whole? osition: Important ‘‘substantive’’ parameters meet new challenges. Can we deny that our The proposal would not ‘‘amend the First of public expression, parameters that have generation is now challenged to renew our Amendment.’’ Rather, each amendment long been taken for granted, now need to be commitment to unity-despite-difference? would be interpreted in light of the other— restored. The bonds that hold us together— The aspiration to even a minimal unity is, much as is the case with the guarantees of and so make it possible, as in a healthy fam- once more, commonly put in question. We Freedom of Speech and Equal Protection of ily, for us to engage in ‘‘robust’’ disagree- hear that the freedom the flag symbolizes is the Laws. When the Fourteenth Amendment ment with one another—appear to be disinte- the freedom to burn it, that our unity con- was proposed, the argument could have been grating. On the right, on the left and in the sists simply in a celebration of disunity. made that congressional power to enforce center, it is widely agreed that certain pa- These claims go to the heart of our Constitu- the Equal Protection Clause might be used rameters must be reestablished if free tion. It is in the Constitution that we must to undermine the First Amendment. The speech, in general, is to flourish. answer them. On the right, it’s believed that ‘‘uncivil’’ We hear that flag desecrators are like a courts have seemed able, however, to har- and ‘‘unreasoned’’ speech content needs to be few ‘‘naughty, nasty children’’ trying to monize the two. The same would be true checked. The Supreme Court, on occasion, ‘‘provoke their parents.’’ The rest of the here. Courts would interpret ‘‘desecration’’ has interpreted the First Amendment in family, we hear, need only ‘‘count to ten.’’ 2 and ‘‘flag of the United States’’ in light of light of that belief. The problem, of course, What’s the harm? Take the analogy seri- general values of free speech. They would is that this tends to invite regulation of ously for a moment. How healthy is a family simply restore one narrow democratic au- speech content that is very broad and vague, in which there are no limits to expressive thority. Experience justifies this much con- suffocating free, spontaneous participation abuse, in which everything can be trashed fidence in our judicial system. in the marketplace of ideas. On the left, it’s and will be tolerated? Desecration of mutual But, we’re asked, is ‘‘harmonization’’ pos- believed that ‘‘hate’’ speech—beyond face-to- bonds may be rate. But so are other wrongs sible? If the Johnson and Eichman decisions face harassment or fighting words—that we believe it important to sanction. What is protecting flag desecration were rooted in es- denigrates disadvantaged groups (and so pol- at stake is a principle, a minimal one. It de- tablished strains of free speech law—as they lutes the ideological ‘‘environment’’) needs serves minimal respect—as a matter of prin- were—how could an amendment countering to be checked. On occasion, the Court has ciple. those decisions coexist with the First read the First Amendment in light of that Still, we are told that the aspiration to Amendment? belief as well. The problem, again, is that unity-despite-difference cannot be instituted this tends to invite broad and vague regula- by law, that it can flourish only in the ‘‘vol- First, it’s important to keep in mind that tions suffocating freedom and spontaneity in untary’’ feelings of the people. This argu- free speech law has within it multiple, often public speech. What’s more, both these pre- ment may, of course, be made, in specific competing strains. The dissenting opinions scriptions—by drawing blunt distinctions contexts, against using the narrow authority in Johnson and Eichman were also rooted in among ‘‘types’’ of speech and speakers—may, to be restored by the proposed constitutional established arguments about the meaning of unintentionally, tend to set us apart from amendment. But such an argument ought freedom of speech. Second, even if the gen- each other, even further disintegrating—in- not short-circuit the process, denying the eral principles invoked by the five Justices stead of reaffirming—the bonds that unite us people the right to find it invalid in certain in the majority are admirable in general—as even in disagreement. circumstances. For who can doubt that, in I believe they are 3—that doesn’t mean that In the center, however, there is widespread some circumstances, legal proscriptions do the proposed amendment would tend to un- support for restoration of a much narrower, in fact influence the ‘‘voluntary feelings of dermine them, so long as it is confined, as it more focused parameter: protection of the the people?’’ Those who invoke these feelings is intended, to mandating a unique exception U.S. flag from physical desecration. This should, in any event, be the last to denigrate for a unique symbol of nationhood. Indeed, proposal, first of all, avoids the vices of the the people’s expression of them, through the carving out the exception in a new amend- broader, vaguer alternatives. Its virtue, processes of democracy. ment—rather than through interpretation of moreover, is that—by means of an extremely Finally, we hear there are other ways to do the First Amendment itself—best ensures minimal constraint on freedom, taken for the job. If we don’t like physical desecration that it will be so confined. Even opponents of granted until recently—it affirms the most of the flag, we should criticize the desecra- the new amendment agree on this point.4 basic condition of our freedom: our bond to tors or fly the flag ourselves. Ordinarily, I Third, it’s vital to recognize that the pro- one another in our aspiration to national agree, ‘‘counter-speech’’ is the best response. posed amendment is not in general tension unity. It leaves it to individuals, in a thou- But this situation is unique, just as the flag with the free speech principle forbidding dis- sand other ways, to criticize government and is unique. If it is permissible not just to heap crimination against specific ‘‘messages’’ in even that aspiration to unity, if they want. verbal contempt on the flag, but also to burn regulation of speech content. Those who But it affirms that there is some commit- it, rip it and smear it with excrement—if desecrate the flag may be doing so to com- ment to others, beyond mere obedience to such behavior is not only permitted in prac- municate any number of messages. They the formal rule of law, that must be re- tice, but protected in law by the Supreme may be saying that government is doing too spected. It affirms that, without some aspi- Court—then the flag is already decaying as much—or too little—about a particular prob- ration to national unity—call it patriotism the symbol of our aspiration to the unity un- lem. In fact, they may be burning the flag to if you choose—there might be no law, no derlying freedom. The flag we fly in response protest the behavior of non-governmental, constitution, no freedom. is no longer the same thing. We are told, ‘‘patriotic’’ groups and and to support efforts Still, we know, objections abound. Is this again and again, that someone can desecrate of the government to squash those groups. ‘‘important’’ enough? Is it ‘‘needed?’’ Is it ‘‘a’’ flag but not ‘‘the’’ flag. To that, I simply Laws enacted under the proposed amend- likely to be ‘‘effective?’’ Aren’t there ‘‘less say: Untrue. This is precisely the way that ment would have to apply to all such activ- drastic alternatives?’’ These questions de- general symbols like general values are ity, whatever the specific ‘‘point of view.’’ serve answers. Yet the truth is that they trashed, particular step by particular step. One, and only one, generalized message could practically answer themselves. This is the way, imperceptibly, that commit- be regulated: ‘‘desecration’’ of the flag itself. A common objection goes like this: True, ments and ideals are lost. And regulation could extend no farther than the aspiration to national unity is vital but, To boil down the fundamental value at a ban on one, and only one, mode of doing it: as embodied in the flag, it is just symbolic. stake here: Recall the civil rights move- ‘‘physical’’ desecration.5 Finally, and per- What place does symbolism have in the Con- ment. Recall not only its invocation of na- haps most importantly, we mustn’t lose stitution? The answer is that the framers of tional ideals, but also its evocation of na- sight of the fundamental purpose of the pro- the Constitution put symbolism of our unity tionhood. Recall the famous photograph of posed amendment. That purpose is to restore at the very beginning of the document, in- the Selma marchers carrying flags of the democratic authority to protect the unique voking ‘‘We the People of the United United States. The question is: Will the next symbol of our aspiration to national unity, States’’. And, very near the end, they re- Martin Luther King have available to him or an aspiration that, I’ve said, nurtures—rath- quired that all officials, high and low, be her a basic means of identification with all er than undermines—freedom of speech that ‘‘bound by Oath or Affirmation, to support the rest of us—an embracive appeal to the is ‘‘robust and wide-open.’’ this Constitution’’—a provision that, surely, bonds that, in aspiration and potential, is less functional than symbolic, yet whose One objection remains. It involves ‘‘dese- make us one? symbolism fulfills, nonetheless, an impor- cration.’’ Would this word, evoking sacred- tant function. Animating the whole Con- II ness, itself ‘‘desecrate’’ the Constitution? stitution of 1787, after all, was the aspiration What are the costs, if any, of proposing to Those who make the objection this way de- to call into being a new sense of commit- amend the Constitution this way? All kinds feat themselves, of course. If the Constitu- ment, a commitment to a broad and deep na- of fears have been stirred up in opposition to tion as a whole is ‘‘sacred,’’ as they proclaim tional unity-despite-difference. What was it, the proposal. I’ll comment on two kinds. it is, then there is no text in which a ref- at the beginning, but a bold symbolic effort? First, I’ll address some rather specific fears: erence to ‘‘desecration’’ of the symbol of the But, we hear, that’s all over now. The na- Would the proposal ‘‘amend’’—or ‘‘dese- nationhood that undergirds it could be more tion exists. What need is there to revisit old crate’’—the First Amendment? Then, I’ll at home. Beyond the play on words, however, ideals? Yet the framers knew that nothing, turn to more generic fears: Would it upset it’s useful to keep in mind that this word— June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8299 like any number of others in the constitu- In the end, that’s what is at stake here: and regardless of any message that might be tional text—is a term of art. It has no reli- Our flag symbolizes our nation. It is a nation intended or conveyed by the act of physical gious connotation. The Constitution of Mas- defined not by any ethnicity, but by a politi- impairment. sachusetts, for instance, provides that the cal practice, the practice of popular sov- Several witnesses, I among them, testified right to jury trial ‘‘must be held sacred,’’ 6 ereignty, of democracy. It is through democ- before the Senate Judiciary Committee that and no one reads that as a theological man- racy that our law, including constitutional the proposed legislation, even if cast in date. The question for courts interpreting law, is made. It is through democracy that ‘‘neutral’’ language, could not be squared the proposed amendment would be: What our liberties are nurtured and exercised and with the reasoning of the Johnson decision sorts of physical treatment of the flag are so guaranteed. It is through democracy that we and would therefore almost certainly be in- grossly contemptuous of it as to count as are bonded to one another. Shouldn’t the validated by the Supreme Court. The point ‘‘desecration?’’ This is the type of question— people be authorized, if they choose, to re- was simply this: clothing the federal Flag raising issues of fact and degree, context and quire a very minimal respect for that one Desecration Statute in ‘‘neutral’’ language purpose—that they resolve year in and year symbol, that one value, that one aspiration? would not disguise the undeniable fact that out under other constitutional provisions. FOOTNOTES the central purpose of the proposed measure Thus there is nothing radical or extreme 1 New York Times v. Sullivan, 376 U.S. 254 (1964). was to preserve the flag’s unique status as about the flag amendment—unless it is the 2 Testimony of Charles Fried before the Committee ‘‘the Nation’s most revered and profound rhetoric, igniting and fueling all kinds of on the Judiciary of the United States Senate, June symbol, representing what this Country fears, purveyed by some of its opponents. 21, 1990. stands for’’ (the words are Senator Biden’s, 3 I agree with the majority, for instance, that the the bill’s chief sponsor). The governmental III Freedom of Speech protects expressive conduct and What hides its moderation, I think, is a ge- that its protection should not depend on how ‘‘rea- interest in preserving the flag’s unique sta- neric fear of any proposed constitutional soned’’ or ‘‘articulate’’ the expression is thought to tus as a national symbol simply cannot be amendment—or, at least, of any that is driv- be. I also agree, as a general matter, that govern- divorced from expression, for only messages en by wide public support. Opponents of a ment may not ‘‘prohibit the expression of an idea concerning the flag can either advance or di- simply because society finds the idea itself offensive flag amendment evoke this fear, suggesting minish its symbolic value. or disagreeable.’’ I do not support the broader, Congress enacted the Flag Protection Act the ‘‘delicate balance’’ of the Constitution is vaguer proposals (described above) now being made in jeopardy. In the ways they make the sug- on the right and on the left. of 1989 (‘‘Act’’) by overwhelming majorities gestion, however, they reveal it to be mis- 4 See Frank Michelman, ‘‘Saving Old Glory: On in both Houses, and the Supreme Court leading, even perverse. Constitutional Iconography,’’ 42 Stanford Law Re- promptly struck it down in United States v. They tell us that the Constitution is per- view 1337 (1990). Eichman. Noting that ‘‘[t]he Government’s 5 fect. Or they talk of its fragility. The docu- It’s entirely possible that the specific statutes interest in protecting the ‘physical integ- declared unconstitutional under the First Amend- ment, they imply, is too fine or too delicate rity’ of a privately owned flag rests upon a ment in Johnson and Eichman would not pass mus- perceived need to preserve the flag’s status to amend. But a part of its ‘‘perfection’’ ter under the proposed amendment—because both must be Article V, which provides for its may be worded too broadly. The Texas statute in as a symbol of our Nation and certain na- amendment. It has, after all, been amended Johnson made it a crime to ‘‘damage’’ a flag in a way tional ideals,’’ the Court held that the fed- many times. (The framers’ generation added known to ‘‘seriously offend one or more persons eral statute, like the Texas statute invali- ten amendments in one swoop.) And, far likely to observe or discover’’ it. Thus it swept be- dated in Johnson, ‘‘still suffers from the from proving fragile, it has proved to have yond ‘‘desecration’’ defined by a more general stand- same fundamental flaw: It suppresses expres- ard. The United States statute in Eichman was more extraordinary tensile strength, enduring by sion out of concern for its likely communica- sharply focused. But, before the Supreme Court, the tive impact.’’ adapting to circumstances—changing and government interpreted it as extending to any and unforeseen—just as, long ago, Chief Justice all violations of the ‘‘physical integrity’’ of the flag, The six-year period that has elapsed since John Marshall promised it would.7 again seeming to sweep beyond behavior that might the Johnson case has provided time for tem- Yet, they tell us, any proposed constitu- count as ‘‘desecration.’’ pers to cool. The anger and sadness that tional language will have unintended con- 6 Constitution of the Commonwealth of Massachu- consumed most Americans when the decision sequences—unless we pin down, right now setts, Part I, Article 15. was announced has had time, if not to abate, 7 and forever, every jot and title of its mean- McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 at least to be moderated by reflection and (1819). thought. And yet it still appears that the ing. This is sometimes an effective strategy 8 See Jane Mansbridge, ‘‘Why We Lost the ERA’’ of opposition. It was deployed, for example, (1986). vast majority of Americans so revere their against the Equal Rights Amendment, flag that they are willing to undertake the nickled and dimed to death in disputes over TESTIMONY OF CHARLES J. COOPER arduous task of amending their Constitution hypothetical details.8 The proposed flag Good morning, Mr. Chairman and Members to authorize Congress and the States to pro- amendment is far narrower and, so, far less of the Subcommittee. My name is Charles J. tect it from physical desecration. Congress vulnerable to such opposition. But those who Cooper, and I am a partner in the law firm of has received resolutions calling for passage supported the ERA—and deplored the strat- Shaw, Pittman, Potts & Trowbridge. I appre- of a flag desecration amendment from the egy then—should be loath to use it now. It is, ciate this opportunity to testify before this legislatures of 49 States. As a citizen, my in any event, deeply misguided. For if (as distinguished Subcommittee on the proposed own support for the Flag Protection Amend- John Marshall taught us) the genius of our Flag Protection Amendment. ment has not weakened since Johnson was Constitution is to endure through adapta- Almost six years have passed since the Su- decided, for I remain convinced that the poli- tion, then any pretense to fix its precise preme Court decided the case that the Flag cies underlying the Flag Protection Amend- meaning, once and for all, is futile. Few con- Protection Amendment was specifically de- ment are sufficiently important to warrant stitutional provisions—few of those in the signed to overturn. In Texas v. Johnson the its passage by Congress and ratification by Bill of Rights, for instance—could pass such Court held that the First Amendment’s guar- the States. a test. Hence, the lesson of our history is: anty extends not only to a protester’s ex- But I have been invited to appear before Leave future details of application to the fu- pression of anti-American sentiments this Subcommittee as a constitutional law- ture; trust our judicial system; and stick, for (‘‘America, the Red, White, and Blue, we spit yer, to provide my views on the legal issues, the moment, to issues of fundamental prin- on you.’’), but also to his act of burning an as opposed to the policy issues, raised by the ciple. American flag to dramatize his views. In so proposed amendment. I make this point be- When all is said, opponents are left with ruling, the Court in effect overturned the cause policy objections have dominated the one line of argument. You ought not, they flag desecration statutes of 48 States, as well arguments of constitutional scholars who say, ‘‘fool with’’ the Constitution. You as the Federal Flag Desecration Statute, have testified thus far before congressional should not ‘‘tinker’’ or ‘‘fiddle’’ with it. You which prohibited knowingly and publicly committees in opposition to the Flag Protec- must not ‘‘trivialize’’ it. Here is what’s fas- ‘‘cast[ing] contempt upon any flag of the tion Amendment. These policy objections— cinating: Such verbs are rarely used to de- United States’’ by burning or otherwise for example, that the proposed amendment scribe judicial interpretations or lawyers’ in- physically mistreating it. 18 U.S.C. § 700. would ‘‘trivialize’’ the Constitution, that terpretations or academic interpretations of The reaction of the American people to the flag desecration laws are popular in Com- the Constitution. They’re reserved, instead, Johnson decision was swift, loud, and over- munist regimes, and that the best response for the process of amendment prescribed by whelmingly hostile. President Bush and sev- to flag desecration is to wave one’s own Article V. They’re reserved, especially, for eral Members of Congress called for swift flag—are important and should be considered amendments proposed not by ‘‘experts’’ but passage and ratification of the Flag Protec- seriously by Members of Congress, as well as by large numbers of ordinary citizens and tion Amendment, while other Members of by all Americans, in assessing the merits of their representatives. The disdain in such Congress supported a statutory response to the proposed amendment. But they are enti- language is clear. It is, I believe, a disdain the decision—the Flag Protection Act. The tled to no additional weight when voiced by for the processes of democracy and for the purpose of the legislation was to harmonize law professors (or Supreme Court Justices ordinary people who take part in them. The federal law with the Johnson decision by es- for that matter) rather than by any other implication is that the Constitution—which tablishing a ‘‘neutral’’ flag desecration stat- citizen. I therefore will attempt to confine establishes processes for its own amend- ute— that is, one that punished any impair- my testimony insofar as possible to the legal ment—is too elevated, too refined, to be ment of the physical integrity of the flag, objections that have been advanced in oppo- touched by those very processes. whether performed in public or in private, sition to the Flag Protection Amendment. S 8300 CONGRESSIONAL RECORD — SENATE June 14, 1995 1. Some constitutional scholars have ob- duct that comprises the physical integrity of Beyond this point, I must confess that I am jected to the wording of the proposed Flag the flag. Conduct that is not physically de- perplexed by the claim that the claim that Protection Amendment, which provides sim- structive of the flag, no matter how openly the States and Congress currently possess, ply that ‘‘the Congress and the States shall offensive and disrespectful it may be, would notwithstanding Johnson and Eichman, the have power to prohibit the physical desecra- presumably not be reached. Thus, affixing an legislative power that the Supreme Court so tion of the flag of the United States.’’ These American flag to the seat of one’s pants or decisively and permanently prevented them constitutional scholars object particularly simulating vulgar acts with a flag would not from exercising in Johnson and Eichman. In to the use of the word ‘‘desecration’’ because come within such a prohibition. those cases, the Court held that neither the it makes clear that the amendment would Thus, a ‘‘neutral’’ flag protection statute States nor the Congress have constitutional authorize Congress and the States to pro- is at once too broad, since it would prohibit power to prohibit the physical desecration of hibit only physical mistreatment of the flag conduct that no one wants to prohibit, and the American flag. In both cases, the Court that conveys a political protest.1 Arguing too narrow, since it would permit conduct overturned convictions for conduct that that the Constitution should protect the flag that few people want to permit. The proposal plainly constituted the physical desecration in a ‘‘neutral’’ manner, they propose that the therefore simply does not mesh with the pub- of American flags. The sole purpose of the amendment be worded to authorize Congress lic sentiment that animated the passage of proposed Flag Protection Amendment is to ‘‘to prohibit any physical impairment of the 48 state flag desecration statutes and a simi- overturn the Eichman and Johnson decisions integrity of the flag.’’ Such an amendment lar measure by the federal government, that and thus to return to the States and to Con- would ensure that any statutory restrictions led to the prosecution of Gregory Lee John- gress the legislative power that they thought would apply across the board, regardless of son under the Texas flag desecration law, they had to prohibit the physical desecration the purpose or circumstances of the conduct that provoked the extraordinary public out- of the American flag. at issue. cry at the Supreme Court’s reversal of John- I am even more perplexed, however, by the The threshold question that must be an- son’s conviction, and that inspired this hear- suggestion that passage and ratification of swered by proponents of this suggestion is ing. I submit that that public sentiment is the Flag Protection Amendment would not whether anyone really wants a ‘‘neutral’’ not ‘‘neutral’’; it is not indifferent to the cir- alter the outcome of a future Johnson or flag protection statue. Does anyone really cumstances surrounding conduct relating to Eichman case. Suffice it to say that there is want to protect the physical integrity of all the flag. If such conduct is dignified and re- no reasonable possibility that the Supreme American flags, regardless of the cir- spectful, I daresay that the American people Court, in some future Johnson or Eichman cumstances surrounding the prohibited con- and their elected representatives do not case, would interpret the Flag Protection duct? Certainly the constitutional scholars want to prohibit it; if such conduct is dis- Amendment as being utterly meaningless. suggesting a ‘‘neutral’’ flag protection respectful and contemptuous of the flag, I The second point made by these opponents amendment do not, for they advance the idea believe that they do. of the proposed amendment is that because only as a lesser evil than the Flag Protection The simple truth is that no one really its language does not expressly override the Amendment. Nor are supporters of the pro- wants a genuinely ‘‘neutral’’ flag protection First Amendment, ‘‘it leaves entirely un- posed Flag Protection Amendment likely to statute. Accordingly, amending the Con- clear how much of the Bill of Rights it would be persuaded that a ‘‘neutral’’ alternative stitution to authorize enactment of such a dump.’’ 3 Apparently the argument is that would be preferable. The problem is that a statute obviously makes no sense. the omission from the Flag Protection genuinely ‘‘neutral’’ flag protection measure 2. Some opponents of the Flag Protection Amendment of any statement that it over- simply doesn’t make sense. Amendment objects to the fact that its lan- rides the First Amendment may be con- The act of burning an American Flag is not guage does not explicitly state that it over- strued to mean that the legislative power inherently evil. Indeed, the Boy Scouts of rides the First Amendment. They make two granted by the proposed amendment is ex- America have long held that an American principle points. empt from or otherwise overrides all con- flag, ‘‘when worn beyond repair’’ should be First, they argue that the proposed amend- stitutional restrictions, such as the Due destroyed ‘‘in a dignified way by burning.’’ ment, as written, does nothing more than Process Clause and the Eighth Amendment.4 Boy Scout Handbook at 422 (9th ed.) Simi- confer upon Congress and the States a legis- Before assessing this argument on its own larly, Congress has prescribed that ‘‘[t]he lative power that they already possess. And merits, it is important to note first the para- flag, when it is in such condition that it is no because the proposed amendment does not doxical nature of the dual conclusions that longer a fitting emblem for display, should expressly override the limitations of the these opponents draw from the absence of be destroyed in a dignified way, preferably First Amendment, any exercise of that legis- language in the Flag Protection Amendment by burning.’’ 36 U.S.C. 176(k). Nor is the re- lative power would be subject to the same expressly overriding the First Amendment. spectful disposition of an old or worn flag First Amendment challenge upheld in John- In one breath, they argue that the omission the only occasion on which burning a flag son and Eichman. In other words, the Flag of such language leaves the Supreme Court’s might be entirely proper. The old soldier Protection Amendment, as written, would interpretations in Johnson and Eichman un- whose last wish is to be cremated with a not alter the result of the Supreme Court’s disturbed and, thus, renders the proposed prized American flag fast against his breast decisions in Eichman and Johnson.2 amendment ineffective in accomplishing its would be deserving of respect and admira- The first point to be made in response to acknowledged purpose. In the next breath, tion, rather than condemnation. this argument is that the proposed Flag Pro- they argue that the omission of such lan- In contrast, Gregory Lee Johnson’s con- tection Amendment contains no statement guage from the Flag Protection Amendment duct was offensive—indeed, reprehensible— that it overrides the First Amendment be- presents a serious risk that all other protec- not simply because he burned an American cause such a statement is wholly unneces- tions in the Bill of Rights will be ‘‘trumped’’ flag, but because of the manner in which he sary. The First Amendment is the only con- when confronted with an exercise of the burned it. Yet, a truly neutral flag protec- stitutional provision that has been con- power to prohibit the physical desecration of tion statute would require us to be blind to strued, or could have been construed, by the the flag. In other words, they argue that by the distinction between the conduct of Greg- Supreme Court to prohibit Congress and the failing to include language explicitly over- ory Lee Johnson and his comrades and the States from criminalizing the physical dese- riding the First Amendment, the authors of conduct of a Boy Scout troop reverently cration of an American flag. The proposed the Flag Protection Amendment may have burning an old and worn American flag. It amendment clearly and directly grants unwittingly overridden every constitutional would also reach other forms of conduct that (many would say restores) that legislative provision except the First Amendment. This honor, rather than desecrate, the flag. If, power to Congress and the States. A couple line of reasoning, frankly, is specious, and rather than burning an American flag, Greg- of examples will suffice to illustrate this nothing more need be said to dismiss the no- ory Lee Johnson and his colleagues had point. If the Supreme Court held that the tion that the express terms of the proposed heaped dirt upon it in some sort of anti- Eighth Amendment forbids capital punish- amendment must contain a reference to the American burial ritual, their conduct would ment in all cases, a constitutional amend- First Amendment. undoubtedly have violated not only the ment empowering Congress and the States to In any event, there is no reasonable basis Texas flag desecration statute, but a ‘‘neu- impose the death penalty would not also for concern that the proposed Flag Protec- tral’’ flag protection statute as well. A ‘‘neu- have to contain the entirely redundant tion Amendment will ‘‘trump’’ any constitu- tral’’ statute, however, would also have statement that it overrides the Eighth tional protections other than the constitu- reached and punished the conduct of the un- Amendment in order to be effective. Simi- tional right to physically desecrate the identified patriot who gathered up Johnson’s larly, a constitutional amendment granting American flag. To be sure, the proposed charred flag and buried it in his back yard. the States power to require a moment of si- amendment’s grant of legislative power to Moreover, not only would a ‘‘neutral’’ flag lence at the beginning of each school day prohibit the physical desecration of the flag protection statute prohibit conduct that would plainly overrule the Supreme Court’s comprehends, for example, the power to in- should be praised rather than punished, it contrary Establishment Clause cases, and it vestigate and to punish violations. But noth- would fail to prohibit an infinite variety of would be far-fetched, to put it mildly, to sug- ing in the language or history of the pro- public conduct that casts contempt upon the gest that the purpose and effect of such an posed amendment even remotely suggests flag. Such a statute would prohibit only con- amendment would be unclear in the absence that federal or state authorities would be of express language overriding the First free to enforce a flag desecration statute by Footnotes at end of article. Amendment. randomly invading and searching homes to June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8301 ferret out violations or by summarily tortur- graphic origin, the flag is an incomparable ways of conveying an idea whatsoever— ing or executing violators without a trial. common bond among us. through speech, use of placards, signs, bull- Nor would the proposed amendment author- Moreover, Justice John Paul Stevens, dis- horns, leaflets, handbills, newspapers, and ize state or local governments, for example, senting in Texas v. Johnson, aptly stated, ‘‘A more. A protestor can burn or mutilate other to punish Gregory Lee Johnson, ex post country’s flag is a symbol of more than ‘na- symbols of our country or government, or facto, for his violation, to prosecute only tionhood and national unity.’ It also sig- even effigies of political figures. This amend- black people for violating a flag desecration nifies the ideas that characterize the society ment authorizes legislative bodies to prevent statute, or to prohibit the press from report- that has chosen that emblem as well as the disrespectful conduct with regard to one ob- ing on incidents of flag desecration. There special history that has animated the growth ject, and one object only, our flag. We can are simply no plausible arguments support- and power of those ideas . . .’’ [491 U.S. at withdraw this one unique object from phys- ing an interpretation of the proposed Flag 436, Stevens, J. dissenting] The flag itself ical desecration and our freedom of speech Protection Amendment that would yield represents no political party or political ide- will remain intact. these results. ology. The parade of horribles some opponents In short, the only constitutional right that I wish we did not have to resort to a con- conjure up is a diversion. will be ‘‘trumped’’ by the proposed Flag Pro- stitutional amendment. I believe the Su- Indeed, for many years before the 1989 tection Amendment is the one recognized by preme Court was wrong in Texas v. Johnson. Texas v. Johnson decision invalidating flag the Supreme Court in Johnson and But the Supreme Court has given us no desecration statutes, 48 states and the fed- Eichman—the right to physically desecrate choice: if we believe the flag is important eral government prohibited flag desecration. an American flag. enough to protect from physical desecration, Was freedom of speech impaired in this coun- 3. A particularly popular argument among an amendment is necessary. try all that time? To ask that question is to opponents of the Flag Protection Amend- Let me set the record straight about the answer it—of course not. The First Amend- ment is the concern that prohibiting phys- origin of this bipartisan movement. A grass- ment seemed to have survived these 49 stat- ical flag desecration will compromise the sa- roots coalition, the Citizens Flag Alliance, utes remarkably well. cred values reflected in the First Amend- has been working for some time in support of Many academics have appeared before the ment and lead inevitably to further com- a constitutional amendment regarding flag Committee to tell us the Johnson decision promises of our Constitution’s protection desecration. The Citizens Flag Alliance, led was correctly decided and that it is just a ‘‘for the thought we hate.’’ But if prohibiting by the American Legion, consists of over 100 natural development of the Supreme Court’s organizations, ranging from the Knights of flag desecration would place us on this sort previous First Amendment jurisprudence. Columbus; Grand Lodge, Fraternal Order of of slippery slope, we have been on it for a Yet, distinguished jurists regarded as great Police; and the National Grange to the Con- long time. The sole purpose of the Flag Pro- First Amendment champions have agreed gressional Medal of Honor Society of the tection Amendment is to restore the con- that flag desecration does not fall within the USA and the African-American Women’s stitutional status quo ante pre-Johnson, a ambit of the First Amendment. Chief Justice Clergy Association. Forty-nine state legisla- time when 48 States, the Congress, and four Earl Warren wrote, ‘‘I believe that the tures have called for a constitutional amend- Justices of the Supreme Court believed that States and the Federal government do have ment on flag desecration. the power to protect the flag from acts of legislation prohibiting flag desecration was The Citizens Flag Alliance approached entirely consistent with the First Amend- desecration and disgrace . . .’’ [Street v. New Senator Heflin and me last year, well before York, 394 U.S. 576, 605 (Warren, C.J., dissent- ment. And that widespread constitutional the November elections, and asked us to lead judgment was not of recent origin; it ing)]. Justice Hugo Black—generally re- a bipartisan effort in the Senate. They told garded as a First Amendment absolutist— stretched back about 100 years in some us they had reasonable hopes that President stated, ‘‘It passes my belief that anything in States. During that long period before John- Clinton would support this amendment. We the Federal Constitution bars a State from son, when flag desecration was universally were pleased to introduce this resolution making the deliberate burning of the Amer- criminalized, we did not descend on this pur- here. But, before we were asked to do so by ican Flag an offense.’’ [Id. at 610 (Black, J. ported slippery slope into governmental sup- the Citizens Flag Alliance, we had no plans dissenting)]. Justice Abe Fortas wrote: pression of unpopular speech. The constitu- to reintroduce this amendment. tional calm that preceded the Johnson case This is an effort originating entirely ‘‘[T]he States and the Federal Government would not have been interrupted, I submit, if among the American people, over 75 percent have the power to protect the flag from acts a single vote in the majority had been cast of whom both favor protecting the flag and of desecration committed in public . . .’’ [Id. the other way, and flag desecration statutes sensibly believe that freedom of speech is at 615 (Fortas, J., dissenting)]. had been upheld. Nor will it be interrupted, not jeopardized by so doing. As Justice Stevens said in his Johnson dis- in my view, if the Flag Protection Amend- There is more wisdom, judgment, and un- sent: ‘‘Even if flag burning could be consid- ment is passed and ratified. derstanding on this matter in the hearts and ered just another species of symbolic speech 4. Finally, I should like to conclude my minds of the American people than one will under the logical application of the rules testimony with the point that the Supreme find on most editorial boards, law faculties, that the Court has developed in its interpre- Court is not the final word on the content or and, regrettably, in the Clinton Administra- tation of the First Amendment in other con- meaning of our Constitution. The American tion. texts, this case has an intangible dimension people are. And the idea that the act of dese- I believe the opponents of the amendment, that makes those rules inapplicable.’’ [496 crating an American flag is ‘‘speech,’’ and including President Clinton, have, in good U.S. at 436, Stevens, J., dissenting]. that the people are therefore powerless to in- faith, posed a false choice to the American Even if, on the other hand, one agreed that tervene through law to prevent or punish people. In effect, they say that if we wish to the Johnson and 1990 U.S. v. Eichman cases such a tragic spectacle, falls uneasily on the protect the flag from physical desecration, were correctly decided under prior prece- ears of most ordinary Americans. When the we have to trample on the First Amendment. dents, one could still support this amend- Court errs in its constitutional judgment on If we want to safeguard the First Amend- ment—if one views protection of the flag a matter of surpassing importance to the ment, they say, we have to let desecrators from physical desecration as an important people, it is entirely appropriate for them to trample on the flag. enough value. I am sorry that President correct that error through the amendment In my view, this amendment, granting Clinton could not see his way clear to sup- process prescribed by Article V of the Con- Congress and states power to prohibit phys- porting protection of the flag against phys- stitution. Indeed, I believe it is their respon- ical desecration of the flag, does not amend ical desecration, apparently deferring to the sibility to do so. the First Amendment or infringe upon free- determinations made by his lawyers within Again, thank you for inviting me to par- dom of speech. I believe the flag amendment the narrow confines of a legal memorandum ticipate in this important hearing. overturns two Supreme Court decisions or brief. This is terribly disappointing. which have misconstrued the First Amend- And there is no slippery slope here. The FOOTNOTES ment. amendment relates only to the flag. The 1 See Testimony of Henry Paul Monaghan before The First Amendment’s guarantee of free- uniqueness of the flag renders the amend- the Senate Judiciary Committee (June 21, 1990); tes- dom of speech has never been deemed abso- ment no precedent for any other amendment timony of Cass R. Sunstein before the Senate Judi- lute. Libel is not protected under the First or legislation. Most Americans understand ciary Committee (June 21, 1990). 2 Testimony of Walter Dellinger before the Senate Amendment. Obscenity is not protected this. Moreover, neither the amendment, nor Judiciary Committee at 2 (June 21, 1990) (hereinafter under the First Amendment. A person can- any legislation it authorizes, compels any ‘‘Dellinger Testimony’’). not blare out his or her political views at conduct or any profession of respect for any 3 Id. two o’clock in the morning in a residential idea or symbol, nor prescribes what is ortho- 4 See id. at 3, n. 2. neighborhood and claim First Amendment dox in any matter of opinion. protection. Fighting words which provoke vi- Johnson was a 5–4 decision of the Supreme STATEMENT OF SENATOR ORRIN HATCH olence or breaches of the peace are not pro- Court. Had the Court gone 5–4 the other way, The American people revere the flag as a tected under the First Amendment. I might and upheld flag desecration statutes, would unique symbol of our country. It is the sym- add that legislative bodies are able to regu- there have been an uproar by editorial writ- bol that unites a very diverse people in a late conduct which people might seek to use ers, law professors, and members of Congress way nothing else can. Despite our differences as part of a political message. to repeal these flag desecration statutes? I of politics, philosophy, religion, race, ethnic Protecting the flag from physical desecra- think not. In effect, one vote on the Supreme background, socio-economic status, or geo- tion does not interfere with the numerous Court compels us to go the amendment S 8302 CONGRESSIONAL RECORD — SENATE June 14, 1995 route, we have no choice—if we think the is the noble cause I am dedicated to. women who have not survived their flag is important enough to protect. America’s women deserve no less. Join battle with breast cancer. It is in their Our acquiescence in the Supreme Court’s Race for the Cure. memory that we continue our efforts misguided 5–4 decisions itself devalues the flag. I hope Congress will not stand idly by RACE FOR THE CURE to increase support for medical re- and tacitly accept the Court’s wrongheaded Mr. DASCHLE. Madam President, I search and raise public awareness notion that the flag is of no more value than would like to take a few moments to about this issue. a common object. As Justice Stevens wisely underscore the comments many of my This race is also a tribute to all those noted in his Johnson dissent: ‘‘sanctioning colleagues made earlier today in sup- women who are surviving their battle the public desecration of the flag will tarnish port of the upcoming Race for the with breast cancer. It is in their honor its value . . . That tarnish is not justified by Cure, which will be held this Saturday that we stand with them, walk with the trivial burden on free expression occa- in Washington. This weekend’s race them, and run with them. It is in hum- sioned by requiring that an available alter- ble respect that we race with them—to native mode of expression including uttering marks the 6th year that Washing- words critical of the flag . . . be employed.’’ tonians have participated in this im- find a cure for breast cancer. [436 U.S. at 437] portant event. it is a time when policy- f I urge support for the amendment. makers, civil servants, media rep- VARIOUS ISSUES REGARDING THE RACE FOR THE CURE—BREAST CANCER resentatives, and other put their ideo- AWARENESS logical differences aside and show their PEOPLE’S REPUBLIC OF CHINA Ms. MIKULSKI. Madam President, I solidarity in support of the effort to Mr. THOMAS. Madam President, as rise today to join my colleagues in en- find a cure for breast cancer. the chairman of the Subcommittee on thusiastically supporting the efforts of In the past, the Race for the Cure has East Asian and Pacific Affairs, I would our Vice President and Mrs. Gore in helped raise critical funding for medi- like to speak this morning on two is- bringing breast cancer awareness to cal research and for mammograms. sues concerning the People’s Republic the attention of our Nation’s women. Much of this money remains in the of China; specifically, Hong Kong and their participation in the Race for the local area to support research institu- our embassy in Beijing. Cure demonstrates their on-going com- tions and provide mammograms for First, Hong Kong Governor Chris mitment and dedication to finding a women who could not otherwise afford Patten contacted me last Friday to in- cure for breast cancer and for early de- them. The Race for the Cure has also form me that his government and the tection. done an exceptional job of raising the government of the People’s Republic of I am proud to have been an advocate public’s awareness about breast cancer, China had finally reached an agree- for breast cancer research and early de- and of alerting women to the impor- ment on establishing the Court of tection. When we passed the breast and tance of early detection measures. Final Appeal [CFA]. He was kind cervical cancer amendments of 1993, it As in the past, many of Saturday’s enough to send me a copy of the agree- showed that we can build a preventive race participants will be breast cancer ment, as well as a copy of his state- health care system using the commu- survivors. Many more will be the ment to the Hong Kong Legislative nity-level, public/private partnerships spouses, children, siblings, and friends Council. which are critical to success. This leg- of both breast cancer survivors and, I As my colleagues know, the estab- islation saved women’s lives. am sad to say, the many women who lishment of the CFA has been one of But our job is not over. There are have not survived their battle with this the major sticking points in the nego- many States that have no screening disease. It is for all these individuals tiations over the transition of Hong program for breast cancer and many that we race. And it is for them that Kong from British to Chinese sov- other States are just getting started. we continue our efforts to support re- ereignty in 1997. Hong Kong presently Screenings are absolutely necessary if search and public awareness in the operates under a British legal system we are to prevent this dreaded health hope that one day all women who face based on statute and common law, and risk for America’s women. this disease will be survivors. the judiciary is a separate, independent All women in America are at risk. In Although we have made significant branch of government. These legal tra- fact, 50,000 mothers, daughters, rel- strides in combating breast cancer, we ditions provide substantial and effec- atives, and friends will die from breast are far from the finish line. Medical re- tive protections against arbitrary ar- cancer alone. but the women most at search into the causes, cure, and pre- rest or detention, and ensure the right risk are also those who are our most vention of breast cancer is critical to to a fair and public trial. Aside from defenseless—older women, women of this effort. Public awareness and pre- the legal protections individuals enjoy color, and women of limited income. vention efforts are also critical compo- under this system, Hong Kong’s trans- Over the past few years, we have nents of our battle against breast can- parent and predictable legal system made significant strides in breast can- cer. Today doctors strongly rec- and regulatory scheme has been a cer research—focused through the Na- ommend monthly self-examinations to major draw to businesses. They know tional Institutes of Health’s Office of check for the early warning signs of ahead of time what statutes govern Women’s Research. We know what it breast cancer. Sometimes these early their actions, and that their contracts takes to save many of these lives. warning signs are not early enough, will be enforced. The continuance of It takes regular screening for women however, and that is why it is so impor- these laws after 1997 will be a key fac- over 40 using mammograms and self- tant for women at risk of breast cancer tor in the territory’s ability to main- exams. All women need to hear this to have mammograms. I am hopeful tain its promised high degree of local message. All women should think of that one day we will be able to detect autonomy and its attraction to busi- getting a mammogram as once a year all breast cancers at an early stage. ness. for a lifetime. For the fortunate major- I am even more hopeful, however, Final trial court decisions in Hong ity of America’s women, following that we will someday have a cure for Kong are now appealable to the Su- through on that message is not too this disease. Over 70 percent of all preme Court, and then to the Privy much to ask. women who have breast cancer do not Council in London. There is a well- That is why I take pride in joining exhibit any of the known risk factors. founded concern that, upon retroces- my colleagues today in urging partici- This year 182,000 women will be diag- sion, the protections offered by the pation in the Race for the Cure to be nosed with breast cancer, and 46,000 present legal and appellate systems held this Saturday, June 16. Events women will die from this terrible dis- might disappear to be replaced by a like this get the message out. The mes- ease. Whether the answer to this dis- more ‘‘indigenous’’ system where the sage of ‘‘breast cancer is preventable’’ ease is around the corner, or it takes courts are instruments of the Party, and ‘‘Once a Year for a Lifetime’’ in years to discover, we cannot give up contracts are honored only as long as getting that mammogram. the fight. We must find a cure. they are useful, and final decisions are I welcome the day when no woman Sometimes the most effective move- handed down from Beijing according to turns away from the decision to have a ments are born of tragedy, and the the whims of the leadership. mammogram for lack of funds, access Race for the Cure is one of those move- In an attempt to ally these fears, in to services, or lack of awareness. This ments. this race is a tribute to all the Joint Declaration and subsequent June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8303 discussions the People’s Republic of shortcomings that became apparent. It has come to my attention that our China and United Kingdom agreed to As it stands now, the Court will be representative in the People’s Republic establish a local CFA before 1997 to re- jumpstarted cold in 2 years on July 1 of China, Ambassador J. Stapleton place the Privy Council. Protracted ne- without a ‘‘test run.’’ Roy, will be permanently leaving his gotiations between the parties, how- My second concern involves the present post next week to return to ever, failed to produce a mutually Court’s jurisdiction. In the preliminary Washington and then move on to our agreeable plan for the Court’s imple- talks about the Court, the Chinese side Embassy in Jakarta, Indonesia. Yet, mentation. With 1997 looming and fears was rather adamant that the jurisdic- inexplicably, the Clinton administra- about the consequences of the lack of a tion of the CFA would not extend to tion has failed to even name a replace- court at the time of retrocession, the acts of state. What Beijing sought to ment, let alone forward his or her Hong Kong Government unilaterally forestall by this provision was the name to the Senate for confirmation, prepared a draft bill for introduction in spectre of a judicial branch based on and has simply decided to leave the the Legco. English common law declaring void post vacant for an undeterminant pe- Beijing refused to endorse the draft, some tennet of the central government riod of time. and both sides spent time pointing the vital to the continuation of the Com- Madam President, I am amazed and finger at the other, while it languished. munist system. Unfortunately, the new dismayed that the Clinton administra- In March, in response to statements by agreement adopts the definition of ‘‘act tion has decided to take such an ill-ad- Governor Patten that the Legco might of state’’ set out in Article 19 of the vised step—whatever the impetus. unilaterally establish the CFA without Basic Law, which has been seen by Leaving a post vacant in a small, rel- waiting for Chinese approval, the Peo- some as vague and thus capable of an atively non-strategic country is one ple’s Republic of China stated that it overly expansive interpretation. The thing; but to do so in the world’s most would dismantle any court established worry is that after 1997 the Chinese populous country, a country that is without its OK. This left the Hong will simply qualify politically uncom- emerging as the economic engine that Kong Government with the Hobson’s fortable cases as touching on ‘‘acts of will drive Asia into the 21st century, is choice: either leave it to China to de- state’’ and therefore remove them from quite another. cide when and how the court would be judicial review. This is especially true at this time established after 1997, or go ahead with Third, the provisions regarding judi- when our bilateral relationship is the draft bill and create a serious dis- cial appointments raise some concerns. somewhat less than perfect. pute with the People’s Republic of Under the Joint Declaration, judges ap- The Chinese are extremely displeased China that would have damaged inves- pointed to the CFA were to be con- with our decision this month to admit tor and citizen confidence and left firmed by the Legco. Moreover, the President Lee Teng-hui of Taiwan, and doubts about whether China would Court would be allowed to invite judges have stated that the decision has seri- eventually just dismantle it. from other English common law juris- ously soured their view of our relation- On June 1, however, the two sides dictions to sit on the Court. These two ship. While they have cancelled and began a new round of spirited negotia- provisions have fallen somewhat by the postponed several meetings as a sign of tions which led to the June 9 agree- wayside under the new agreement. their displeasure, I am sure that we ment. The basic gist of the agreement Now, it appears that the confirmation have not seen seen the full extent of is that the Hong Kong Government will provision by the Legco has been re- their reaction. procede to introduce its draft bill in moved. In addition, the parties adopted More importantly, the Chinese Gov- the Legco, and that preparations for the limitation of foreign judges to one ernment is itself in a state of flux. The the Court should be made on the basis set out in what are known as the secret move to replace the ailing Deng of the resulting legislation and com- documents. Both of these are violative Xiaoping is, contrary to the beliefs of pleted in time for the Court to begin of the Joint Declaration. some, well under way. Jiang Zemin and operating on July 1, 1997. It will not, Finally, the parties appear to have his Shanghai compatriots are already however, begin operating before that largely glossed over what is known as moving to consolidate their positions, date. Governor Patten noted on Friday the finality issue. The idea behind the and other factions have begun their that: CFA is that the Hong Kong citizens jockeying in turn. Under these cir- What is vital is that we know now what will have the final say about judicial cumstances, each and every move we kind of court will be in place on 1 July 1997. decisions that effect them, and not make in relation to our Chinese That is what the Hong Kong community and US and other foreign businessmen have been some party cadre in Beijing. The rea- friends—large, small, overt, or subtle— calling for and I believe that the Chinese son is easily illustrated by a simple takes on a special importance. have come to realise that it is vital to the analogy: Wyoming citizens would not To allow our Ambassador to depart maintenance of confidence in Hong Kong. want decisions of their State supreme from Beijing at this time and leave our There will be dissentient voices, of course, court on State laws to be subject to re- embassy floating without anyone at but I believe that the majority of the Hong view by a bureaucrat in Washington. the helm seems to me to be the height Kong community and international investors Yet, the finality of CFA decisions is of misjudgment. I hope that President will welcome the agreement, and that the still somewhat up in the air. Clinton will forward the name of Am- Legislative Council will accept it. The bottom line is that, although it is not Having made these observations, bassador Roy’s intended replacement ideal, this agreement does more to strength- Madam President, as I have pointed in the very near future so we can get en the rule of law after 1997 than any alter- out before decisions such as these are the nomination process rolling and fill native course of action, and for that reason principally a bilateral issue between this vitally important position. I am convinced that it is the right way for- the People’s Republic of China and the f ward. United Kingdom. If both sides have While I find myself in some agree- agreed to the new provisions, who are KATHY JORDAN ment with Governor Patten, as an out- we to gainsay their decision? This is Mrs. FEINSTEIN. Madam President, side observer I have four concerns with one area where, I believe, overly active I rise to salute Kathy Jordan, who the agreement: the timing, jurisdic- moves on our part would for once jus- today is being inducted in the Stanford tion, finality, and judicial independ- tify the usual Chinese observation that University Athletic Hall of Fame. ence issues. First, I regret that the we were meddling in their internal af- My northern California field rep- Court will not begin to function until fairs. I would just hope, though, that resentative for over 2 years, Kathy the day jurisdiction is transferred in the parties would note our concerns joined my staff after an incredibly suc- 1997. If the Chinese had agreed to allow and perhaps work with each other to cessful career in women’s tennis. the Court to begin functioning as soon remove some of the remaining ambigu- While at Stanford, she won four as enabling legislation could be passed, ities and departures from the Joint AIAW Collegiate titles, including both then the two sides would have had Declaration. the singles and doubles championships more than a year in which to see how Madam President, I would also like in 1979. She still is considered the best the court operates and to work out to address another topic concerning women’s tennis player who ever went through a consensus any kinks or the People’s Republic of China today. to Stanford. S 8304 CONGRESSIONAL RECORD — SENATE June 14, 1995 She then turned professional and in at Stanford University and chose to di- Lane Kirkland’s presence at the helm her first year reached the final 16 at rect her talents to public service. She of American labor will be sorely both Wimbledon and the U.S. Open. worked on Lynn Yeakel’s campaign for missed. As the New York Post con- During her professional tennis career the U.S. Senate in her native Penn- cluded: that spanned a decade, Kathy won sylvania and then returned to Califor- His retirement marks the departure from seven Grand Slam titles. nia, where Palo Alto had become home. the public arena of a larger-than-life figure— Kathy earned a reputation as a tough Kathy joined my staff in 1993 as field an able, courageous and principled individual and tenacious competitor. And, as she representative for the northern Califor- whose shoes will be difficult to fill. defeated one challenger after another, nia region of the State. I extend my thanks to Lane Kirkland Kathy proved she was one of the best She has been one of the most out- for his dedication to working men and players in the world and climbed to a standing staff persons I’ve worked with women, and I wish him the best of luck ranking of No. 5. In just 1 year, she over the last 2 years. in the future. went from being No. 23 in the world to Kathy assumed her field responsibil- being No. 5. ities with an incomparable level of f During that time, Kathy beat Chris compassion, intelligence, and dili- Evert in straight sets at Wimbledon in WAS CONGRESS IRRESPONSIBLE? gence. And just as she did on the tennis THE VOTERS HAVE SAID YES 1983, reached the finals of the 1983 Aus- court, Kathy has shown a fierce deter- tralian Open, and then went on to mination to fight for what is right. Mr. HELMS. Madam President, one knock off Pam Shriver in the quarter- She redefined the title ‘‘field rep- does not have to be a rocket scientist final of the 1984 Wimbledon singles resentative’’ and was quickly promoted to realize that the U.S. Constitution championship to reach the semifinals. to the role of field director, overseeing forbids any President’s spending even a Kathy would later be described as projects for me statewide. dime of Federal tax money that has Chris Evert’s top nemesis, beating her As a representative of over 20 coun- not first been authorized and appro- three times. ties, she was my eyes and ears for priated by Congress—both the House of Martina Navratilova, too, felt the northern California. She identifies a Representatives and the U.S. Senate. sting of Kathy Jordan’s passing shots. problem and—more importantly—helps So when you hear a politician or an Not only did Kathy beat her in singles, figure out how to solve a problem. editor or a commentator declare that but it was the team of Kathy Jordan She has been a tireless advocate for ‘‘Reagan ran up the Federal debt’’ or and Liz Smylie that pulled a huge dou- the issues and concerns of the residents that ‘‘Bush ran it up,’’ bear in mind bles upset and ended the 109-match and elected officials in her jurisdiction. that the Founding Fathers, two cen- winning streak of Navratilova and I frequently have county supervisors turies before the Reagan and Bush partner Pam Shriver in the Wimbledon and others approach and thank me for Presidencies, made it very clear that it final of 1985. Jordan and Smylie won by the work she has done and the results is the constitutional duty of Con- a score of 5–7, 6–3, 6–4. It was sweet vic- accomplished. gress—a duty Congress cannot escape— tory for Kathy, who had lost 3 of the At a time when many feel alienated to control Federal spending. They have last 4 years to Navratilova and Shriver and are looking to the government’s not for the past 50 years. after winning the Wimbledon cham- representatives to help them and re- It is the fiscal irresponsibility of pionship in 1980 with partner Anne spond to their needs and problems, I Congress—of Congress!—that ran up Smith. feel proud that I have a staff person the Federal debt that stood at Looking back on the match, Kathy who heeds the call and gets things recounted how she and her partner, $4,903,284,242,955.00 as of the close of done. business Tuesday, June 13. This debt, Smylie, were serving for the match at Kathy is a remarkable person whose 5–4 in the third set. Kathy gambled, which will, of course, be passed on to compassion, respect, and talent for her our children and grandchildren, aver- lunged across to Smylie’s side of the work serves as a model for others. court for a volley. They won the point, ages out to $18,612.95 on a per capita I am grateful to have worked with basis. with Navratilova and Shriver looking her and benefited from her service to stunned as the shot whipped by. the U.S. Senate. f ‘‘Pam and Martina were standing Madam President, I stand here to there looking at each other. I’m kinda congratulate Kathy on all her accom- like a roving linebacker and Liz is like plishments, and for the honor being be- THE 220th ANNIVERSARY OF THE a defensive back who sometimes has to stowed her by Stanford University. U.S. ARMY, JUNE 14, 1995 cover behind me in case a ball gets over For all she has accomplished in both Mr. THURMOND. Madam President, my head,’’ Kathy said in 1991. the world of tennis and in government exactly 220 years ago today, a proud That roving linebacker attitude is service, it is an honor well deserved. American institution was born, the exactly what made Kathy Jordan a leg- f U.S. Army. I rise today to not only rec- end on the tennis courts. ognize this important milestone in the But, in the 1987 Virginia Slims of LANE KIRKLAND New England, Kathy’s career was jeop- history of the Army, but to pay tribute Mr. MOYNIHAN. Madam President, I to all soldiers who have served their ardized with one of the most serious in- rise today to salute my friend, Lane juries an athlete can suffer—a tear of Nation, both in the past and in the Kirkland, who yesterday announced present. the right anterior cruciate ligament. that he would not seek reelection as ‘‘That’s the Bernard King injury. The For more than two centuries, Ameri- president of the AFL–CIO. During his Danny Manning injury. You get scared. ca’s soldiers have selflessly and suc- 16-year tenure as head of the AFL–CIO You never really know. A lot of people cessfully protected the freedoms and and his 50 years of service to organized don’t make it back,’’ Kathy told the ideals of the United States, and Ameri- labor, Mr. Kirkland devoted himself to San Francisco Chronicle in 1990. ca’s soldiers have stood tall and fast But, once again Kathy’s determina- improving the lives and occupations of wherever they have been deployed. tion paved the way and she once again unionized workers. He accomplished From the Minuteman at Lexington became a potent threat in women’s this mission with skill and determina- with his trusty musket who started the tennis. She reunited with her partner, tion. fight for the independence of our Na- An editorial in today’s New York Liz Smylie, and once again knocked off tion, to the G.I. equipped with night vi- Post remarked: the expected winners to climb their sion goggles, a Kevlar helmet, and the way into the Wimbledon doubles final We’ve always hailed his stalwart commit- battle-proven M16A2 rifle on patrol ment to liberal anti-communism and his fe- in 1990. along the DMZ in Korea, our soldiers alty to the concept of a global network of have always distinguished themselves. I’ve had the pleasure of getting to genuinely free trade unions. It’s safe to say, know Kathy over the course of the last in fact, that no one in the United States— The battle streamers of the Army flag 2 years. apart from President Reagan himself—did stand as testament to the courage, for- After retiring from women’s tennis, more to hasten the demise of the Soviet em- titude, and abilities of those who have Kathy finished her undergraduate work pire than did Lane Kirkland. fought under this banner: Valley June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8305 Forge; New Orleans; Mexico City; Get- sion, they have done so with a sense of sections (b) and (c) maintain this regu- tysburg; Havana; the Philippines; Ver- purpose, professionalism, and patriot- latory authority of local jurisdictions, dun; Bataan; North Africa; Monte Cas- ism. We are grateful for the sacrifices but subsection (d) preempts that au- sino; Normandy; Arnhem; the ‘‘Bulge’’; these individuals have made and the thority, and this is what is of vital con- Pusan; Seoul; the Ia Drang Valley; Gre- example they have set for future sol- cern to the cities, the counties and the nada, Panama; Kuwait, and, Iraq rep- diers. With a heritage as proud as the States. resent just a partial list of the places one established by our Nation’s sol- Senator KEMPTHORNE and I have a where ordinary men brought distinc- diers over the past 220 years, we know simple amendment. That amendment, tion to themselves, the Army, and the that the U.S. Army will always remain quite simply stated, strikes the pre- United States by their actions. the finest fighting force that history emption and takes away the part of We must also not forget the many has ever known. this bill that takes away local govern- other campaigns and operations the f ment and State governments’ jurisdic- Army has undertaken in its history, tion and authority over the rights-of- which have included: surveying the un- CONCLUSION OF MORNING way. charted west coast; protecting western BUSINESS We are very grateful to Senator GOR- settlers; guarding our borders; assist- The PRESIDING OFFICER. All time TON who has presented a substitute, ing in disaster relief; providing human- having expired, morning business is which will be voted on following our itarian aid to other nations; and con- now closed. amendment. However, we must, quite ducting medical research that benefits frankly, say this substitute is inad- f soldiers and civilians alike. There is equate. simply no question that the U.S. Army TELECOMMUNICATIONS COMPETI- Why is it inadequate? It is inad- has had a tremendous impact, in many TION AND DEREGULATION ACT equate because cities and counties will continue to face preemption if they different ways, on the history of our The PRESIDING OFFICER. Under Nation and the world. take actions which a cable operator as- the previous order, the Senate will now serts constitutes a barrier to entry and Soon we on the Senate Armed Serv- resume consideration of S. 652, which ices Committee will begin our mark up is prohibited under section (a) of the the clerk will report. bill. As city attorneys state, is a city of the fiscal year 1996 defense author- The bill clerk read as follows: ization budget, including the money insurance or bonding requirement a A bill (S. 652) to provide for a procom- barrier to entry? Is a city requirement needed to support the Army. Often our petitive, deregulatory national policy frame- focus is on what weapon systems we that a company pay fees prior to in- work designed to accelerate rapidly private stalling any facilities to cover the need to fund, how many new tanks, sector deployment of advanced telecommuni- field guns, or rifles we should purchase, cations and information technologies, and costs of reviewing plans and inspecting but our chief concern is always provid- services to all Americans by opening all tele- excavation work a barrier to entry? Is ing for the soldier. We work to ensure communications markets to competition, the city requirement that a company that the young E–3 has a quality of life and for other purposes. use a particular type of excavation that is not beneath him, and that the The Senate resumed consideration of equipment or a different and specific soldier who dedicated his or her career the bill. technique suited to certain local cir- to the Army and Nation is not forgot- Pending: cumstances to minimize the risk of ten. Each of us on the committee, and Feinstein/Kempthorne amendment No. major public health and safety hazards I am sure in the Senate as well, under- 1270, to strike the authority of the Federal a barrier to entry? Is a city require- stands that it is the people—the newest Communications Commission to preempt ment that a cable operator move a State or local regulations that establish bar- cable trunk line away from a public recruit and the most senior general— riers to entry for interstate or intrastate who make up the Army and guarantee park or place cables underground rath- telecommunications services. er than overhead in order to protect the security and defense of the United Gorton amendment No. 1277 (to the lan- public health a barrier to entry? States. We may have an arsenal of guage proposed to be stricken by amendment These are, we contend, intensely smart bombs at our disposal, but it is No. 1270), to limit, rather than strike, the preemption language. local decisions which could be brought the soldier who must face and defeat before the FCC in Washington. The our enemies. Ensuring they have the The PRESIDING OFFICER. There Gorton substitute continues to permit best equipment, training, and quality will now be 20 minutes debate on the cable operators to challenge local gov- of life possible are our highest prior- Feinstein amendment No. 1270, to be ernment decisions before the FCC. ities. equally divided in the usual form, with Why is this objectionable to local ju- This investment in our men and the vote on or in relation to the risdictions? It is objectionable to local women in uniform pays a handsome amendment to follow immediately. jurisdictions because they believe if dividend beyond the security of the Mrs. FEINSTEIN addressed the they are a small city, for example, they United States. Countless numbers of Chair. would be faced with bringing a team people who have served in the Army The PRESIDING OFFICER. The Sen- back to Washington, going before a have gone on to hold important posi- ator from California. highly specialized telecommunications- tions in both the public and private Mrs. FEINSTEIN. Madam President, oriented Federal Communications sectors. Our first President, George the amendment that is the subject of Commission and plighting their troth. Washington, was a general in the discussion is one presented by Senator Then they would be forced to go to Army, as were Ulysses Grant, Zachary KEMPTHORNE and me. There is a section court in Washington, DC, rather than Taylor, and Dwight Eisenhower. Addi- in this bill entitled ‘‘Removal of Entry Federal district court back where they tionally, many former soldiers have to Barriers.’’ It is a section about live. gone on to serve in the Halls of Con- which the cities, the counties and the This constitutes a major financial gress. In the House, there are some 87 States are very concerned because it is impediment for small cities. For big individuals who served in the Army a section that giveth and a section that cities also, they would much prefer to and in the Senate, 27 of our colleagues taketh away. have the issue settled in their district have worn the Army green. I know that Why do I say that? I say it because in court rather than having to come back each of us is proud of our association section 254, the States and local gov- to Washington. with the Army and that we have been ernments are given certain authority The cable operators are big time in able to serve our Nation as both sol- to maintain their jurisdiction and their this country. They maintain Washing- diers and statesmen. control over what are called rights-of- ton offices, they maintain special staff, Madam President, over the past 220 way. they maintain a bevy of skilled tele- years, more than 42 million of our fel- Rights-of-way are streets and roads communications attorneys. Cities do low citizens have raised their right under which cable television companies not. Cities have a city attorney, period. hand and sworn to defend our Nation as put lines. How they do it, where they It is a very different subject. soldiers. In each instance we have do it and with what they do it is all a Suppose a city makes a determina- asked our soldiers to carry out a mis- matter for local jurisdiction. Both sub- tion in the case that they wish to have S 8306 CONGRESSIONAL RECORD — SENATE June 14, 1995 wiring done evenly throughout their be only one telephone company in its central entity to make these decisions, city—I know, and I said this on the jurisdiction or one cable television pro- subject to judicial review when they floor before, when I was mayor, the vider in its jurisdiction, no national or- have to do with whether or not there is local cable operator wanted only to ganization, no Federal Communica- going to be competition, when they wire the affluent areas of our city. tions Commission will have the right have to do with the nature of universal We wanted some of the less affluent to preempt and to frustrate that mo- service, when they have to do with the areas wired; we demanded it, and we nopolistic purpose. It will have to be quality of telecommunications service were able to achieve it. Is this a barrier done in a local district court. And then or the protection of consumers, but be- to entry? Could the cable company if another community in another part lieve that local government should re- then appeal this and bring it back to of the country does the same thing, tain their traditional local control over Washington, meaning that a bevy of at- that will be decided in that district their rights of way, should vote against torneys would have to come back, ap- court. the Feinstein amendment and should pear before the FCC, go to Federal So, Madam President, this amend- vote for mine. It is the balance. It court here or with the local jurisdic- ment—the Feinstein amendment—goes meets the goals that they propose their tion, and maintain its authority, as it far beyond its legitimate scope. But it amendment to meet without being would under the Kempthorne-Feinstein does have a legitimate scope. I join overly broad and without destroying amendment. And then the cable opera- with the two sponsors of the Feinstein the national system of telecommuni- tors, if they did not like it, could take amendment in agreeing that the rules cations competition, which is the goal the item to Federal court. that a city or a county imposes on how of this bill. We believe to leave in the preemption its street rights of way are going to be Mr. KEMPTHORNE. Madam Presi- is, in effect, to create a Federal man- utilized, whether there are above- dent, I am proud to join Senator FEIN- date without funding. So we ask that ground wires or underground wires, STEIN in this amendment. I also wish to subsection (d) be struck and have put what kind of equipment ought to be acknowledge the efforts of the Senator forward this amendment to do so. used in excavations, what hours the ex- from Washington, Senator GORTON, be- I yield now to the Senator from cavations should take place, are a mat- cause all of us are trying to correct Idaho. ter of primarily local concern and, of what is a flaw in this bill. I find it iron- Mr. KEMPTHORNE. Madam Presi- course, they are exempted by sub- ic that the title of this bill, the Tele- dent, how much time do we have re- section (c) of this section. communications Competition and De- maining? So my modification to the Feinstein regulation Act of 1995, this flaw that is The PRESIDING OFFICER. There amendment says that in the case of in this bill smacks right at this whole are 3 minutes 21 seconds remaining. these purely local matters dealing with aspect of deregulation, which this Con- Mr. KEMPTHORNE. Madam Presi- rights of way, there will not be a juris- gress has been very good about reestab- dent, I will reserve my time and ask if diction on the part of the FCC imme- lishing the rights of States and local the Senator from Washington would diately to enjoin the enforcement of units of government. like to speak at this point. those local ordinances. But if, under Madam President, this amendment is I yield the floor and reserve the re- section (b), a city or county makes not about guaranteeing access to the mainder of my time. quite different rules relating to univer- public right of way. As the Senator Mr. GORTON addressed the Chair. sal service or the quality of tele- from Washington just pointed out, that The PRESIDING OFFICER. The Sen- communications services—the very language is in there. That is section ator from Washington is recognized. heart of this bill—then there should be (a). This amendment is not about pre- Mr. GORTON. Madam President, the a central agency at Washington, DC, serving the ability of a State to ad- section at issue here is a section enti- which determines whether or not that vance universal service and to ensure tled ‘‘Removal of Barriers to Entry.’’ inhibits the competition and the very quality in telecommunications serv- And the substance of that section is goals of this bill. ices, because, Madam President, that is that ‘‘No State or local statute or reg- So, Madam President, I am convinced right here in section (b) of the bill. ulation may prohibit or have the effect that Senators FEINSTEIN and This amendment is not about ensuring of prohibiting the ability of any entity KEMPTHORNE are right in the examples to provide any interstate or intrastate that they give, the examples that have that local governments manage their telecommunications services.’’ to do with local rights of way. And the rights of way in a competitively neu- Madam President, this is not about amendment that I propose to sub- tral and nondiscriminatory basis, be- cable companies, although cable com- stitute for their amendment will leave cause that is in section (c) of this bill. panies are one of the subjects of the that where it is at the present time and In fact, the Senator from Texas, the section. This is about all of the tele- will leave disputes in Federal courts in Presiding Officer, was instrumental in communications providers that are the the jurisdictions which are affected. having section (c) put into this act. It subject of this bill. And it is the goal of But if we adopt their amendment, we was very helpful. The whole problem is, this bill to see to it that the maximum have destroyed the ability of the very Madam President, section (d) then pre- degree of competition is available. And commission which has been in exist- empts all of that. In section (d), it in doing so, these fundamental deci- ence for decades to seek uniformity, to states—and I will summarize—that the sions about whether or not an action of promote competition, effectively to do commission shall immediately preempt the State or local government is an in- so; and we will have a balkanized situa- the enforcement of such statute, regu- hibition or a barrier to entry almost tion in every Federal judicial district lation, or legal requirement to the ex- certainly must be decided in one in the United States. So their amend- tent necessary to correct such viola- central place. ment simply goes too far. tion or inconsistency. The amendment to strike the pre- Now, Madam President, I can see I think it is a shame that your good, emption section does not change the some, including some of the sponsors of hard work, Madam President, now has substance. What it does change is the the bill, who feel that this preemption section (d) that preempts it and pulls forum in which any disputes will be ought to be total. And those who feel it the plug on that. There are those that conducted. And if this amendment—the ought to be total should vote ‘‘no’’ on would say the reason you have to have Feinstein amendment—in its original the Feinstein amendment and ‘‘no’’ on that particular section is because there form is adopted, that will be some 150 mine as well. Those who feel that there may be instances in local government or 160 different district courts with dif- should be no national policy, that local that may compel a cable company to ferent attitudes. We will have no na- control and State control of tele- give what they call extractions. We tional uniformity with respect to the communications is so important that asked our cable company in Idaho: Can very goals of this bill, what constitutes the national policy should not be en- you give us some examples of where a a serious barrier to entry. forced by any central agency, should local community has sought extrac- This will say that if a State or some vote for the Feinstein amendment. But tions, where you might have to go in local community decides that it does those who believe in balance, those trees and do something special? We do not like the bill and that there should who believe that there should be one not have any examples. I find it ironic June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8307 that because there are some who be- state and local governments in the develop- to manage the transition to a procom- lieve that these extractions could take ment of the information superhighway. In petitive environment rather than federal place, the remedy is to say that we will particular we are concerned that Section agency preemption, and authority for states now have a Federal commission of non- 254(d) would preempt local government au- and localities to manage the public rights-of- thority over the management of public way. At a June 6 meeting of the State and elected people preempt what local or rights-of-way and local government’s ability Local Coalition, chaired by Governor George State governments do. That is back- to receive fair and reasonable compensation V. Voinovich, the attached letter was signed sliding from what we have been trying for use of the right-of-way. We strongly op- by local officials and Iowa Governor Terry E. to do with this Congress. posed any preemption which would have the Branstad, NGA co-lead Governor on Tele- The Senator from Washington said impact of imposing new unfunded costs upon communications. The letter calls for the sup- that we must decide these cases in one our states, local governments, and tax- port of two amendments. place. That message is very clear, payers. Feinstein/Kempthorne Amendment: Delet- Madam President. If there is a prob- Second, Senator Leahy will offer an ing Section 254(d). Senator Dianne Feinstein amendment to strike language preempting (D–Calif.) and Senator Dirk Kempthorne (R– lem, then we are now going to say with states from requiring intraLATA toll dialing Idaho) are offering an amendment that this legislation, if we leave section (d) parity. Ten states have already established would strip broad and ambiguous FCC pre- in there, they must come to Washing- this requirement as a means of increasing emption language from section 254(d) of the ton, DC. You must come to Washing- competition; thirteen more states are con- bill. Section 254(a) preempts states and local- ton, DC. sidering its adoption. If the goal of S. 652 is ities from erecting barriers to entry, and What has happened to federalism, to to increase competition, the legislation this preemption is supported by NGA policy. States rights and local rights? It was should not take existing authority from Section 254(b) permits states to set terms brought to my attention that in the states that is already being used to further and conditions for doing business within a state, including consumer protections and State of Arizona they have pointed out compensation. We strongly oppose this pre- emption and urge your support for Senator quality of services; section 254(c) ensures the that this, in fact, could preempt the Leahy’s amendment. authority of states and local government to Constitution of the State of Arizona. Again, we urge you to join Senator Fein- manage the public rights-of-way. This is a flaw in this legislation, stein and Senator Leahy in their efforts to Paragraph (c) was inserted in the bill in Madam President, that, again, a non- eliminate these two provisions from the bill committee by Senator Kay Bailey Hutchison elected Commission—which I have a and avoid unwarranted preemption of state (R-Tex.), and includes a requirement that great respect for that Commission— and local government in this critical area. any such fees and charges be nondiscrim- could, in essence, preempt the Con- Sincerely, inatory. Paragraph (d) states that if the FCC ‘‘determines that a state or local govern- stitution of the State. TERRY BRANSTAD, Co-Lead Governor on Telecommunications. ment has permitted or imposed any statute, I ask unanimous consent to have JANE L. CAMPBELL, regulation, or legal requirement that vio- printed in the RECORD a letter from the President, National Conference of State lates or is inconsistent with this section, the National Governors’ Association, Na- Legislatures. FCC shall immediately preempt the enforce- tional Conference of State Legisla- RANDALL FRANKE, ment of such statute, regulation, or legal re- tures, National Association of Coun- President, National Association of Counties. quirement to the extent necessary to correct ties, National League of Cities, U.S. CAROLYN LONG BANKS, such violation or inconsistency.’’ Because Conference of Mayors, all in support of President, National League of Cities. small telephone or cable companies are un- this amendment. They point out that VICTOR ASHE, likely to have a presence in Washington, President, U.S. Conference of Mayors. D.C., this provision would result in a bias to- this will not be the impediment to the ward major competitors. Striking paragraph barrier, but it is the right amendment NATIONAL GOVERNORS ASSOCIATION, (d) leaves adequate protections for a com- to correct this flaw. Washington, DC, June 8, 1995. petitive market. There being no objection, the mate- Leahy/Simpson Amendment: Deleting Pre- STATE PREEMPTION IN FEDERAL TELE- emption of State Authority to Require rial was ordered to be printed in the COMMUNICATIONS DEREGULATION LEGISLA- IntraLATA Toll Dialing Parity. One major RECORD, as follows: TION reason that competition in long distance NATIONAL GOVERNORS’ ASSOCIATION, SUMMARY service has increased is the requirement that NATIONAL CONFERENCE OF STATE The U.S. Senate has begun consideration of local phone companies permit long-distance LEGISLATURES, NATIONAL ASSO- S. 652, a bill to rewrite the Federal Commu- carriers dialing parity (i.e., consumers no CIATION OF COUNTIES, NATIONAL nications Act of 1934 to promote competi- longer have to dial additional numbers to LEAGUE OF CITIES, AND UNITED tion. Several provisions in the bill and cer- utilize an alternative long-distance carrier STATES CONFERENCE OF MAYORS, tain proposed amendments would adversely service). Customers choose a carrier, and all June 6, 1995. affect states, and Governors need to commu- interLATA calls are billed through that Hon. ROBERT DOLE, nicate their concerns to their senators to: company. However, calls within a local ac- Majority Leader, U.S. Senate, Support the Feinstein/Kempthorne amend- cess and transport area (intraLATA), or so- Hon. TOM DASCHLE, ment to strike section 254(d) on FCC preemp- called short-haul or regional long-distance Minority Leader, U.S. Senate, tion; calls, are under state jurisdiction and not Washington, DC. Support the Leahy/Simpson amendment to subject to this FCC rule. To date, ten states DEAR SENATOR DOLE AND SENATOR protect the state option to require have required toll dialing parity, and twelve DASCHLE: On behalf of state and local gov- intraLATA toll dialing parity (open, com- ernments throughout the nation, we are states are currently considering its adoption. petitive markets for regional phone service); writing to strongly urge your support for Paragraph 255(B)(ii) of S. 652 would preempt and two amendments to S. 652, the Telecommuni- the authority of states to order intraLATA Oppose the Packwood/McCain amendment cations Competition and Deregulation Act of toll dialing parity; Senator Patrick S. Leahy to preempt local and state authority to tax 1995. Together these amendments would pre- (D-Vt.) and Senator Alan K. Simpson (R- direct broadcast satellite services (DBS). vent an unwarranted preemption of state and Wyo.) are offering an amendment that would local government authority and speed the BACKGROUND remove this preemptive language. State and Local Taxing Authority. As re- transition to a competitive telecommuni- Both the House and the Senate have re- ported by the Senate Commerce, Science, cations environment. The first amendment ported legislation to reform the Federal and Transportation Committee, S. 652 in- achieves the appropriate balance between Communications Act of 1934. The Senate bill, cludes language ensuring that state and the needed preemption of barriers to entry S. 652, would require local phone companies local government taxation authority is not and the legitimate authority of states and to open their networks to competitors while affected by the bill. Senator Bob Packwood localities, and the second permits states to also permitting those companies to offer (R-Ore.) and Senator John McCain (R-Ariz.) continue efforts already underway to pro- video services in competition with local may offer an amendment exempting the DBS mote competition. cable television franchises. Once the regional First, Senator Feinstein will offer an Bell telephone companies open their net- industry from any local taxation, even taxes amendment to delete a broad and ambiguous works, they can apply to the Federal Com- administered by states. This language is preemption section (section 254(d) of Title munications Commission (FCC) for permis- taken from H.R. 1555, recently approved by II). The Senate’s bill’s proposal under Sec- sion to offer long-distance service. the House Commerce Committee. States tion 254(d) for Federal Communications Com- During the debate over telecommuni- must ensure that the Senate bill avoids the mission (FCC) review and preemption of cations in 1994, states and localities banded preemption of state and local taxing author- state and local government authority is to- together to promote three principles for in- ity. tally inappropriate. Section 254 (a) and (c) clusion in federal legislation: strong univer- ACTIONS NEEDED provide the necessary safeguard against any sal service protections, regulatory flexibility Governors need to contact their senator to possible entry barriers or impediments by that would retain an effective role for states urge support for both the Feinstein/ S 8308 CONGRESSIONAL RECORD — SENATE June 14, 1995 Kempthorne amendment and the Leahy/ should be decided in one central place, Mr. GORTON. Mr. President, I move Simpson amendment, and to urge opposition by the FCC. to reconsider the vote. to the Packwood/McCain amendment. The appropriate balance is to leave Mr. PRESSLER. I move to lay that Mr. LEVIN. Madam President, I sup- purely local concerns to local entities, motion on the table. port the Feinstein amendment to re- but to make decisions on the natural AMENDMENTS NOS. 1284, AS MODIFIED, AND 1282, move the provision in S. 652 which concerns which are at the heart of this AS MODIFIED, EN BLOC would preempt local control of the pub- bill in one central place so they can be (Purpose: To require audits to ensure that lic rights-of-way. consistent across the country. the Bell operating companies meet the sep- The Feinstein amendment would re- Madam President, the purposes of arate subsidiary requirements and safe- move section 254(d) of the tele- this bill will be best served by defeat- guards) communications bill currently being ing this amendment and adopting the (Purpose: To recognize the National Edu- considered by the Senate which directs subsequent amendment. I yield back cation Technology Funding Corporation as the FCC to examine and preempt any the balance of my time. a nonprofit corporation operating under State and local laws or regulations the laws of the District of Columbia, to Mrs. FEINSTEIN. Madam President, provide authority for Federal departments which might prohibit a company from I ask for the yeas and nays. and agencies to provide assistance to such providing telecommunications serv- The PRESIDING OFFICER (Mr. corporation, and for other purposes) ices. CAMPBELL). Is there a sufficient sec- Mr. PRESSLER. Mr. President, I As a former local official I have al- ond? There is a sufficient second. send two amendments to the desk and ways felt it was important that we in The yeas and nays were ordered. ask for their immediate consideration Congress pay proper recognition to the The PRESIDING OFFICER. The en bloc. The amendments are modified rights of local government. question is on agreeing to the Fein- versions of the amendments Nos. 1284 Section 254(d) is the type of legislat- stein amendment No. 1270. and 1282 by Senators SIMON and ing that we in Washington should not The clerk will call the roll. MOSELEY-BRAUN. They are acceptable be doing—preempting State and local The bill clerk called the roll. to the bill managers and have been decisions in areas where local govern- The PRESIDING OFFICER. Are there cleared on both sides of the aisle. ment has the responsibility and speci- any other Senators in the Chamber de- Mr. FORD. Mr. President, he may be fied knowledge to act in the best inter- siring to vote? giving away the dome on the Capitol est of their local communities. Wash- The result was announced— yeas 44, Building. We want to know. ington should not micromanage how nays 56, as follows: The PRESIDING OFFICER. The Sen- local government administers its [Rollcall Vote No. 258 Leg.] ate will be in order. Senators wishing streets, highways, and other public YEAS—44 to hold conversations will retire to the rights-of-way. Abraham Faircloth Levin cloakroom. I will vote in favor of the Feinstein Akaka Feingold Mack Will the Senator from South Dakota amendment and in favor of the right of Baucus Feinstein McCain repeat his request. local governments to retain control Biden Ford Mikulski Bingaman Glenn Mr. PRESSLER. I ask adoption of over their streets, highways, and Moseley-Braun Bond Graham Murray the Simon amendment and the rights-of-way. Boxer Hatfield Pell Moseley-Braun amendment. Mr. KEMPTHORNE. Madam Presi- Bradley Hutchison Pryor Burns Inhofe The PRESIDING OFFICER. Without Robb dent, how much time do I have remain- Byrd Kempthorne objection, the amendments may be Roth ing? Campbell Kennedy Sarbanes considered en bloc at this time. The The PRESIDING OFFICER. The Sen- Cohen Kerry Simpson clerk will report the amendments. ator’s time is expired. Conrad Kohl DeWine Lautenberg Thomas The legislative clerk read as follows: Mr. GORTON. Madam President, how Dodd Leahy Wellstone The Senator from South Dakota [Mr. much time is remaining? NAYS—56 PRESSLER], for Mr. SIMON, proposes amend- The PRESIDING OFFICER. Three ment numbered 1284, as modified; and, for Ashcroft Gramm Moynihan minutes, 38 seconds. Ms. MOSELEY-BRAUN, amendment numbered Bennett Grams Mr. GORTON. Madam President, Murkowski 1282, as modified. Breaux Grassley Nickles once again, the alternative proposal, Brown Gregg Nunn The amendments (Nos. 1284 and 1282), which will be voted on only if this Bryan Harkin Packwood as modified, are as follows: amendment is defeated, retains not Bumpers Hatch Pressler Chafee Heflin AMENDMENT NO. 1284 only the right of local communities to Reid Coats Helms Rockefeller On page 31, insert at the appreciate place Cochran Hollings deal with their rights of way, but their Santorum the following: Coverdell Inouye right to meet any challenge on home Shelby ‘‘(d) BIENNIAL AUDIT.— Craig Jeffords Simon ground in their local district courts. D’Amato Johnston ‘‘(1) GENERAL REQUIREMENT.—A company The Feinstein amendment itself, Daschle Kassebaum Smith required to operate a separate affiliate under Madam President, would deprive the Dole Kerrey Snowe this section shall obtain and pay for a joint Specter FCC of any jurisdiction over a State Domenici Kyl Federal/State audit every 2 years conducted Dorgan Lieberman Stevens law which deliberately prohibited or by an independent auditor selected by the Exon Lott Thompson Commission, and working at the direction of, frustrated the ability of any tele- Frist Lugar Thurmond the Commission and the State commission of Gorton McConnell Warner communications entity to provide each State in which such company provides competitive service. So the amendment (No. 1270) was re- service, to determine whether such company It would simply take that right away jected. has complied with this section and the regu- from the FCC, and each such challenge Mr. GORTON. Mr. President, I move lations promulgated under this section, and would have to be decided in each of the to reconsider the vote. particularly whether such company has com- various Federal district courts around Mr. PRESSLER. I move to lay that plied with the separate accounting require- the country. motion on the table. ments under subsection (b). ‘‘(2) RESULTS SUBMITTED TO COMMISSION; The States retain the right under The motion to lay on the table was STATE COMMISSIONS.—The auditor described subsection (d) to pass all kinds of legis- agreed to. in paragraph (1) shall submit the results of lation that deals with telecommuni- Mr. PRESSLER. I ask unanimous the audit to the Commission and to the cations providers, subject to the provi- consent that the Gorton amendment State commission of each State in which the sion that they cannot impede competi- now be adopted by voice vote. company audited provides service, which tion. The PRESIDING OFFICER. The shall make such results available for public The determination of whether they question is on agreeing to the amend- inspection. Any party may submit comments have impeded competition, not by the ment. on the final audit report. ‘‘(3) ACCESS TO DOCUMENTS.—For purposes way they manage trees or rights of Without objection, the amendment is of conducting audits and reviews under this way, but by the way they deal with agreed to. subsection— substantive law dealing with tele- So the amendment (No. 1277) was ‘‘(A) the independent auditor, the Commis- communications entities. That conflict agreed to. sion, and the State commission shall have June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8309

access to the final accounts and records of technologies through public-private ven- (2) REPORTING REQUIREMENTS.—The report each company and of its affiliates necessary tures, by serving as a clearinghouse for in- of each annual audit described in paragraph to verify transactions conducted with that formation on new education technologies, (1) shall be included in the annual report re- company that are relevant to the specific ac- and by providing technical assistance, in- quired by section 06(a). tivities permitted under this section and cluding assistance to States, if needed, to es- (b) RECORDKEEPING REQUIREMENTS; AUDIT that are necessary for the regulation of tablish State education technology agencies. AND EXAMINATION OF BOOKS.— rates; (b) PURPOSE.—The purpose of this title is (1) RECORDKEEPING REQUIREMENTS.—The ‘‘(B) the Commission and the State com- to recognize the Corporation as a nonprofit Corporation shall ensure that each recipient mission shall have access to the working pa- corporation operating under the laws of the of assistance from the Corporation keeps— pers and supporting materials of any auditor District of Columbia, and to provide author- who performs an audit under this section; ity for Federal departments and agencies to (A) separate accounts with respect to such and provide assistance to the Corporation. assistance; ‘‘(C) the State commission shall imple- SEC. 03. DEFINITIONS. (B) such records as may be reasonably nec- ment appropriate procedures to ensure the For the purpose of this title— essary to fully disclose— protection of any proprietary information (1) the term ‘‘Corporation’’ means the Na- (i) the amount and the disposition by such submitted to it under this section. tional Education Technology Funding Cor- recipient of the proceeds of such assistance; poration described in section 02(a)(1); (ii) the total cost of the project or under- AMENDMENT NO. 1282 (2) the terms ‘‘elementary school’’ and taking in connection with which such assist- ‘‘secondary school’’ have the same meanings At the end of the bill, insert the following: ance is given or used; and given such terms in section 14101 of the Ele- TITLE —NATIONAL EDUCATION (iii) the amount and nature of that portion TECHNOLOGY FUNDING CORPORATION mentary and Secondary Education Act of 1965; and of the cost of the project or undertaking sup- SEC. 01. SHORT TITLE. (3) the term ‘‘public library’’ has the same plied by other sources; and This title may be cited as the ‘‘National meaning given such term in section 3 of the (C) such other records as will facilitate an Education Technology Funding Corporation Library Services and Construction Act. effective audit. Act of 1995’’. SEC. 04. ASSISTANCE FOR EDUCATION TECH- (2) AUDIT AND EXAMINATION OF BOOKS.—The SEC. 02. FINDINGS; PURPOSE. NOLOGY PURPOSES. Corporation shall ensure that the Corpora- (a) FINDINGS.—The Congress finds as fol- (a) RECEIPT BY CORPORATION.—Notwith- tion, or any of the Corporation’s duly au- lows: standing any other provision of law, in order thorized representatives, shall have access (1) CORPORATION.—There has been estab- to carry out the corporate purposes de- for the purpose of audit and examination to lished in the District of Columbia a private, scribed in section 02(a)(3), the Corporation any books, documents, papers, and records of nonprofit corporation known as the National shall be eligible to receive discretionary any recipient of assistance from the Corpora- Education Technology Funding Corporation grants, contracts, gifts, contributions, or tion that are pertinent to such assistance. which is not an agency or independent estab- technical assistance from any federal depart- Representatives of the Comptroller General lishment of the Federal Government. ment or agency, to the extent otherwise per- shall also have such access for such purpose. (2) BOARD OF DIRECTORS.—The Corporation mitted by law. is governed by a Board of Directors, as pre- (b) AGREEMENT.—In order to receive any SEC. 06. ANNUAL REPORT; TESTIMONY TO THE scribed in the Corporation’s articles of incor- assistance described in subsection (a) the CONGRESS. poration, consisting of 15 members, of Corporation shall enter into an agreement (a) ANNUAL REPORT.—Not later than April which— with the Federal department or agency pro- 30 of each year, the Corporation shall publish (A) five members are representative of pub- viding such assistance, under which the Cor- an annual report for the preceding fiscal lic agencies representative of schools and poration agrees— year and submit that report to the President public libraries; (1) to use such assistance to provide fund- and the Congress. The report shall include a (B) five members are representative of ing and technical assistance only for activi- comprehensive and detailed evaluation of State government, including persons knowl- ties which the Board of Directors of the Cor- the Corporation’s operations, activities, fi- edgeable about State finance, technology poration determines are consistent with the nancial condition, and accomplishments and education; and corporate purposes described in section under this title and may include such rec- (C) five members are representative of the 02(a)(3); ommendations as the Corporation deems ap- private sector, with expertise in network (2) to review the activities of State edu- propriate. technology, finance and management. cation technology agencies and other enti- (b) TESTIMONY BEFORE CONGRESS.—The (3) CORPORATE PURPOSES.—The purposes of ties receiving assistance from the Corpora- members of the Board of Directors, and offi- the Corporation, as set forth in its articles of tion to assure that the corporate purposes cers, of the Corporation shall be available to incorporation, are— described in section 02(a)(3) are carried out; testify before appropriate committees of the (A) to leverage resources and stimulate (3) that no part of the assets of the Cor- Congress with respect to the report described private investment in education technology poration shall accrue to the benefit of any in subsection (a), the report of any audit infrastructure; member of the Board of Directors of the Cor- made by the Comptroller General pursuant (B) to designate State education tech- poration, any officer or employee of the Cor- to this title, or any other matter which any nology agencies to receive loans, grants or poration, or any other individual, except as such committee may determine appropriate. other forms of assistance from the Corpora- salary or reasonable compensation for serv- tion; ices; Ms. MOSELEY-BRAUN. Mr. Presi- (C) to establish criteria for encouraging (4) that the Board of Directors of the Cor- dent, this amendment is identical to S. States to— poration will adopt policies and procedures 792, legislation designed to connect (i) create, maintain, utilize and upgrade to prevent conflicts of interest; public schools and public libraries to interactive high capacity networks capable (5) to maintain a Board of Directors of the the information superhighway, which I of providing audio, visual and data commu- Corporation consistent with section nications for elementary schools, secondary 02(a)(2); introduced earlier this year. schools and public libraries; (6) that the Corporation, and any entity re- If there is any objective that should (ii) distribute resources to assure equitable ceiving the assistance from the Corporation, command complete American consen- aid to all elementary schools and secondary are subject to the appropriate oversight pro- sus, it is to ensure that every Amer- schools in the State and achieve universal cedures of the Congress; and ican has a chance to succeed. That is access to network technology; and (7) to comply with— (iii) upgrade the delivery and development (A) the audit requirements described in the core concept of the American of learning through innovative technology- section 05; and dream—the chance to achieve as much based instructional tools and applications; (B) the reporting and testimony require- and to go as far as your ability and tal- (D) to provide loans, grants and other ments described in section 06. ent will take you. Public education has forms of assistance to State education tech- (c) CONSTRUCTION.—Nothing in this title always been a part of that core con- nology agencies, with due regard for provid- shall be construed to establish the Corpora- cept. In this country, the chance to be tion as an agency or independent establish- ing a fair balance among types of school dis- educated has always gone hand in hand tricts and public libraries assisted and the ment of the Federal Government, or to es- disparate needs of such districts and librar- tablish the members of the Board of Direc- with the chance to succeed. ies; tors of the Corporation, or the officers and TECHNOLOGY (E) to leverage resources to provide maxi- employees of the Corporation, as officers or mum aid to elementary schools, secondary employees of the Federal Government. Nonetheless, I am convinced that it schools and public libraries; and SEC. 05. AUDITS. will be difficult if not impossible for us (F) to encourage the development of edu- (a) AUDITS BY INDEPENDENT CERTIFIED PUB- to prepare all of our children to com- cation telecommunications and information LIC ACCOUNTANTS.— pete in the emerging global economy S 8310 CONGRESSIONAL RECORD — SENATE June 14, 1995 unless they all have access to the tech- tion of the information superhighway. This amendment will not infringe on nology available on the information su- Federal support for the acquisition and local control over public education in perhighway. Technology can help use of technology in elementary and any way. Rather, it will supplement, teachers and students play the new secondary schools is currently frag- augment, and assist local efforts to roles that are being required of them in mented, coming from a diverse group of support education technology in the the emerging global economy. It can programs and departments. Although least intrusive way possible by helping help teachers use resources from across the full extent to which the Federal local school districts build their own the globe or across the street to create Government currently supports invest- on-ramps to the information super- different learning environments for ments in education technology at the highway. their students without ever leaving the precollegiate level is not known, the S. 792 has been cosponsored by Sen- classroom. Technology can also allow Office of Technology Assessment esti- ators BURNS, CAMPBELL, KERRY, and students to access the vast array of mated in its report—‘‘Power On!’’— ROBB and endorsed by the National material, available electronically, nec- that the programs administered by the Education Association, the National essary to engage in the analysis of real Department of Education provided $208 School Boards Association, the Amer- world problems and questions. million for education technology in ican Library Association, the Council GAO REPORTS 1988. for Education Development and Re- Last year, I asked the General Ac- There is little doubt that substantial search, and organizations concerned counting Office to conduct a com- costs will accompany efforts to bring about rural education. prehensive, nationwide study of our education technologies into public CONCLUSION Nation’s education infrastructure. The schools in any comprehensive fashion. Mr. President, I urge my colleagues GAO decided to meet my request with In his written testimony before the to take this important step to help five separate reports. The first report House Telecommunications and Fi- connect public schools and public li- entitled—‘‘The Condition of America’s nance Subcommittee on September 30, braries to the information super- Schools’’—concluded that our Nation’s 1994, Secretary of Education Richard highway by quickly enacting my public schools need $112 billion to re- Riley estimated that it will cost any- amendment into law. store their facilities to good overall where from $3 to $8 billion annually to The PRESIDING OFFICER. The condition. build the education portion of the na- question is on agreeing to the amend- The most recent GAO report enti- tional information infrastructure. ments en bloc. tled—‘‘America’s Schools Not Designed NATIONAL EDUCATION TECHNOLOGY FUNDING Without objection, the amendments or Equipped for the 21st Century’’— CORPORATION are agreed to. concluded that more than half of our Mr. President, three leaders in the So the amendments (Nos. 1282 and Nation’s public schools lack six or areas of education and finance came 1284), as modified, were agreed to. more of the technology elements nec- together recently to help public Mr. SIMON. I move to reconsider the essary to reform the way teachers schools and public libraries meet these vote. teach and students learn including: costs. On April 4, John Danforth, Mr. PRESSLER. I move to lay that computers, printers, modems, cable former U.S. Senator from Missouri, motion on the table. The motion to lay on the table was TV, laser disc players, VCR’s, and TV’s. Jim Murray, former president of agreed to. The report states that: 86.8 percent of Fannie Mae, and Dr. Mary Hatwood all public schools lack fiber-optic Futrell, former president of the Na- f cable; 46.1 percent lack sufficient elec- tional Education Association, created CLOTURE MOTION trical wiring; 34.6 percent lack suffi- the National Education Technology cient electrical power for computers; Funding Corp. The PRESIDING OFFICER. Under the previous order, the clerk will now 51.8 percent lack sufficient computer As outlined in its articles of incorpo- report the motion to invoke cloture on networks; 61.2 percent lack sufficient ration, the National Education Tech- S. 652. phone lines for instructional use; 60.6 nology Funding Corp. will stimulate The legislative clerk read as follows: percent lack sufficient conduits and public and private investment in our raceways; and 55.5 percent lack suffi- Nation’s education technology infra- CLOTURE MOTION cient phone lines for modems. structure by providing States with We, the undersigned Senators, in accord- ance with the provisions of rule XXII of the LOCAL PROPERTY TAXES loans, loan guarantees, grants, and Standing Rules of the Senate do hereby The most recent GAO report did find other forms of assistance. move to bring to close debate on Calendar that students in some schools are tak- AMENDMENT No. 45, S. 652, the Telecommunications Com- ing advantage of the benefits associ- Mr. President, I introduced S. 792, petition and Deregulation Act: ated with education technology. The the National Education Technology Trent Lott, Larry Pressler, Judd Gregg, bottom line, however, is that we are Funding Corporation Act, on May 11, Don Nickles, Rod Grams, Rick still failing to provide all of our Na- Santorum, Craig Thomas, Spencer 1995, to help provide the seed money Abraham, J. James Exon, Bob Dole, tion’s children with the best tech- necessary to get this exciting private Ted Stevens, Larry E. Craig, Mike nology resources in the world because sector initiative off the ground. Rather DeWine, John Ashcroft, Robert F. Ben- the American system of public edu- than supporting our Nation’s education nett, Hank Brown, Conrad R. Burns. cation has forced local school districts technology infrastructure by creating f to maintain our public schools pri- another Federal program, this legisla- marily with local property taxes. tion would simply authorize Federal CALL OF THE ROLL In Illinois, the local share of public departments and agencies to make The PRESIDING OFFICER. By unan- education funding increased from 48 grants to the NETFC. imous consent, the quorum call has percent during the 1980–81 school year The amendment I am introducing been waived. to 58 percent during the 1992–93 school today would not create the NETFC or f year, while the State share fell from 43 recognize it as an agency or establish- to 34 percent during this same period. ment of the U.S. Government; it would VOTE The Federal Government’s share of only recognize its incorporation as a The PRESIDING OFFICER. The public education funding has also fall- private, nonprofit organization by pri- question now occurs, Is it the sense of en from 9.1 percent during the 1980–81 vate citizens. However, since NETFC the Senate that debate on S. 652, the school year to 5.6 percent during the would be using public funds to connect telecommunications bill, shall be 1993–94 school year. public schools and public libraries to brought to a close? The yeas and nays INFORMATION SUPERHIGHWAY the information superhighway, my are required. The clerk will call the These statistics as well as the results amendment would require the corpora- roll. of the second GAO report suggest to me tion to submit itself and its grantees to The legislative clerk called the roll. that the Federal Government must do appropriate congressional oversight The yeas and nays resulted—yeas 89, more to help build the education por- procedures and annual audits. nays 11, as follows: June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8311 [Rollcall Vote No. 259 Leg.] be included which does not change the it appear that the ratepayers were not YEAS—89 substance of the bill; it merely clarifies paying for it. But come what may, I am Abraham Frist McCain to what civil penalties it refers. It says afraid they would be. Akaka Glenn McConnell ‘‘civil penalties, damages or interests,’’ Mr. KERREY. What the Senator from Ashcroft Gorton Mikulski as opposed to just ‘‘civil penalties.’’ South Carolina is saying is exactly Baucus Graham Moseley-Braun I ask unanimous consent that this right. It has always been a dispute with Bennett Gramm Moynihan Biden Grams Murkowski amendment be modified in that fash- consumers who object to things a cer- Bingaman Grassley Murray ion. tain company is doing, as to whether Bond Gregg Nickles Mr. PRESSLER. Reserving the right or not a charge is being assessed to the Boxer Harkin Nunn to object until we can get a copy of it shareholder or the ratepayer. That has Breaux Hatch Packwood Brown Hatfield always been in dispute. At both the Pell over here. We are trying to be coopera- Bryan Heflin Pressler tive and move the process forward. FCC and the State public service com- Burns Helms Pryor missions, they have attempted to an- Campbell Hollings Some of these amendments have been Reid Chafee Hutchison modified at the very last minute. We swer this, and they have mechanisms Coats Inhofe Robb have a system of reading these over that allow them to do this kind of sep- Cochran Inouye Rockefeller Roth here, and we would like to get a copy of aration. Cohen Jeffords This is an attempt to protect the Coverdell Johnston Santorum it. Craig Kassebaum Sarbanes Mr. HOLLINGS. If the Senator will ratepayer in the event that the local D’Amato Kempthorne Shelby yield. I understand, Mr. President, the exchange company is fined. As I said, Daschle Kennedy Simpson there is considerable uncertainty. The DeWine Kerry Smith distinguished Senator from Nebraska Dodd Kohl Snowe has a one-line amendment. ‘‘No civil fines are rather substantial—in some Dole Kyl Specter penalties assessed against the local ex- cases, a million dollars a day, and in Domenici Leahy Stevens change carrier as a result of a violation one case $500 million, which could po- Exon Lieberman Thomas tentially be assessed against a local ex- Faircloth Lott Thompson of the section will be charged directly Feinstein Lugar Thurmond or indirectly to that company’s rate- change company if they violated the Ford Mack Warner payers.’’ terms and conditions of this new law. If NAYS—11 Trying that amendment on for size, you presume that a $5 million fine is levied against a local exchange com- Bradley Dorgan Levin let us assume I ran a public utility, Bumpers Feingold Simon whether it be, say, a telephone com- pany, it seems to me the ratepayer Byrd Kerrey Wellstone pany, cellular or otherwise. I am run- should not be penalized as a con- Conrad Lautenberg ning a public company and I am trying sequence of a mistake being made by a The PRESIDING OFFICER. Three- to comply. Let us say I am president. company that is trying to move from a fifths of the Senators duly chosen and Unless I take the money out of my monopoly situation to a competitive sworn having voted in the affirmative, pocket, how else am I going to avoid environment. the motion is agreed to. paying the penalty against the com- This amendment says that, if civil Mr. PRESSLER addressed the Chair. pany directly or indirectly? How do I penalties are imposed or damages or The PRESIDING OFFICER. The Sen- do it? It is bound to come out one way interests are imposed according to the ator from South Dakota is recognized. or the other. My company, Hollings law, we just merely make sure that Mr. PRESSLER. Mr. President, I Communications, has been assessed a they are not going to pass it in particu- lar to a captive ratepayer that has no want to thank all Senators for that $5,000 fine. outstanding cloture vote and to say Mr. KERREY. I have an easy answer other option. Mr. HOLLINGS. Will the distin- that now in this postcloture period, I for that. For example, when the compa- guished Senator yield? hope Senators will bring their amend- nies get into providing ancillary serv- ments to the floor. We are ready to Mr. KERREY. I am happy to yield to ices, they will always say, no, this is the Senator. proceed. Senator DOLE has indicated a not coming from the ratepayers, it is Mr. HOLLINGS. This could make the desire of possibly finishing the bill coming from the shareholders. They do head of a corporation at least far more today or tonight. We hope we can do this all the time. When the company is careful. Perhaps it could be allocated that. offering a defense of something, or against him individually. I think we are on the way to passing when we are identifying something I hearken back, in the past, when I a deregulatory, procompetitive tele- that we are concerned may be billed to was talking with the former distin- communications bill. I thank all Sen- the ratepayer, they will provide infor- guished Attorney General of the United ators for their cooperation. We hope mation to the FCC saying that it is States, Robert Kennedy, and we had that Senators who have speeches or being charged to the shareholders, not the Mississippi case down at Oxford. He amendments will bring them to the the ratepayers. was asking me about the enforcement floor. The bill provides, in section 224, civil of these decisions of the Court. AMENDMENT NO. 1306 penalties and damages if the company I met Senator Kennedy long before (Purpose: To protect ratepayers from having violates the interconnection require- being Senators, otherwise we were very to pay civil penalties for violations by ments. But my concern is that there is close. I said, ‘‘You know our distin- local exchange carriers of interconnection uncertainty as to whether these are guished friend Governor Barnett has a and other duties) going to be imposed, and even if they building right across the street from Mr. KERREY. Mr. President, I send are, what the level is going to be. And the capital. If you had a $10,000 a day an amendment to the desk and ask for what the amendment attempts to do is civil fine imposed, I think you would its immediate consideration. protect the ratepayer from having to get his attention.’’ The PRESIDING OFFICER. The shoulder the burden of any civil pen- We public officials act and the public clerk will report. alty that might end up being imposed, will have to pick up, but when we are The legislative clerk read as follows: damage or interest, assessed against individually responsible, that is a dif- The Senator from Nebraska [Mr. KERREY] the local exchange carrier for violating ferent thing. proposes an amendment numbered 1306. I am confident that the Attorney On page 107, after line 23, insert the follow- the interconnection duties imposed on ing: them by the legislation. General Kennedy communicated that ‘‘(d) PAYMENT OF CIVIL PENALTIES.—No It seems to me—— with Governor Barnett, and thus the civil penalties assessed against a local ex- Mr. HOLLINGS. I am willing to be admission of James Meredith to Ox- change carrier as a result of a violation of educated and go along. In my mind, ford. The idea is a good idea. It is one this section will be charged directly or indi- like Government, we do not have any- I used some years back. I do not see rectly to that company’s ratepayers.’’ thing to give that we do not take. You any objection to it. I will have to listen Mr. KERREY. Mr. President, I have and I have the same idea in mind. If to our distinguished chairman. discussed this with the managers of the that is what the Senator says and that The PRESIDING OFFICER. Is there bill, and I have a modification that I is what they do, I am not the head of an objection to the modification of the would like to get unanimous consent to the company, but I think I could make amendment? S 8312 CONGRESSIONAL RECORD — SENATE June 14, 1995 Mr. PRESSLER. Reserving the right The legislative clerk proceeded to viewed with the distinguished manager to object, I do not think my colleague call the roll. of the bill be included as part of this from South Carolina has a copy of the Mr. KERREY. Mr. President, I ask amendment. modified amendment with the hand- unanimous consent that the order for Mr. PRESSLER. We have no problem written changes. the quorum call be rescinded. with the amendment and we are pre- This is a problem procedurally that The PRESIDING OFFICER. Without pared to accept it. we have here with these modifications. objection, it is so ordered. The PRESIDING OFFICER. Without Amendments must be modified, some- Mr. KERREY. I ask unanimous con- objection the amendment is so modi- times. sent that my request for modification fied. Let me ask, this is written in of this amendment be withdrawn. The amendment, No. 1306, as modi- longhand. I cannot see, ‘‘damages or in- The PRESIDING OFFICER. Without fied, is as follows: terest’’ is inserted where? objection, it is so ordered. On page 107, after line 23, insert the follow- Mr. KERREY. With civil penalty Mr. PRESSLER. Mr. President, we ing: damages. have no problem with the amendment ‘‘(d) PAYMENT OF CIVIL PENALTIES, DAM- Mr. PRESSLER. It should read ‘‘pay- and we are prepared to accept it. AGES, OR INTEREST.—No civil penalties, dam- ment of civil penalties, damages or in- Mr. KERREY. Mr. President, I ask ages, or interest assessed against any local unanimous consent that a modification exchange carrier as a result of a violation re- terest,’’ and then no civil penalties? ferred to in this section will be charged di- Mr. KERREY. That is correct, and no of my amendment be accepted. rectly or indirectly to that company’s rate- civil penalty damages. The PRESIDING OFFICER. Is there payers.’’ objection to the modification of the Mr. PRESSLER. ‘‘Damages or inter- The PRESIDING OFFICER. If there amendment being accepted? est, no civil penalties;’’ and then does be no further debate, the question is on Mr. KERREY. I earlier withdrew it, ‘‘damages or interest’’ occur again? We agreeing to the amendment. but I heard the Senator from South Da- have damages and interest written The amendment (No. 1306), as modi- kota say—— again. fied, was agreed to. Mr. HOLLINGS. The Senator from Mr. KERREY. Mr. President, I gave Mr. KERREY. While I understand the South Dakota was accepting the the desk the only copy of the modifica- Senator has some additional amend- amendment once the modification had tion I have. I am not even able to look ments—I have some other ones I would been withdrawn. at my own copy. send down—let me describe a little bit Mr. PRESSLER. That is right. Mr. PRESSLER. Even the modifica- what was in this amendment so col- tion, I cannot tell—— Mr. HOLLINGS. Is that correct, Sen- ator? leagues understand how this bill has Mr. KERREY. It should be both in been modified. the heading and the text. The change Mr. KERREY. Let me withdraw the modification, and I would like to have I think it is an important amend- needs to be in the heading and the text. ment because we are moving from a Mr. PRESSLER. I think we need a the modification sent to the Senator from South Dakota. system of assessing rates for your local clean copy. telephone service, based upon a rate Mr. KERREY. Would you like block I, personally, would prefer not to base. That typically is calculated, pre- letters? have the amendment without this clar- sented to the public service commis- Let me have staff work on this while ification. I would like to have the man- sion or the public utility commission I talk about the amendment. ager of the bill look at the modifica- Mr. PRESSLER. I do not think we tion before it is accepted, and I would of the State, and the public service have an objection to the basic idea. like to talk about the bill or the commission or public utility commis- Are damages and interest different amendment for a little while, so we can sion makes a determination about from civil penalties? look at a clean copy. local telephone charges based upon Mr. KERREY. Civil penalties is not Mr. PRESSLER. We are prepared to that rate. clear. That is the interpretation that I accept the amendment as it is written There are a number of States that was given. I was attempting to clarify and drafted. have moved to a more competitive type this thing. I was told civil penalties is Mr. KERREY. Without modification? of situation. I think there are seven, not clear. Mr. PRESSLER. Without modifica- eight, or nine States that have done Mr. PRESSLER. Is the Senator tak- tions. so—I believe Colorado just recently ing ‘‘civil penalties’’ out and putting Mr. KERREY. You are saying you ob- passed legislation. This legislation, S. ‘‘damages or interest’’ in? ject to modifications? 652 preempts the States and says we Mr. KERREY. No, I am putting ‘‘in- Mr. PRESSLER. No, no, I did not say are going to go to a price cap system of terest’’ and ‘‘damages’’ in. that. I thought you had withdrawn regulation as opposed to rate base. Mr. PRESSLER. Let me say, gen- your modification. So, all 50 State public utility com- erally speaking, I agree with the thrust Mr. KERREY. I am withdrawing the missions or public service commissions of the amendment. But if we could get modification so I can get the language would be required to use a price cap a clean copy of the amendment, this is clear enough so that the Senator from system under this legislation. a very confusing, the way it is written. South Dakota can evaluate the modi- I think it is going to be important, as It is confusing to me at least. fication itself. Then I can proceed and you move to this widespread use of Mr. KERREY. I will. discuss the amendment while the modi- price cap regulation, to say very clear- The PRESIDING OFFICER. The fication is being sent to the Senator. I ly, given the rather substantial pen- Chair will ask the Senator from Ne- can redo it here so it is a cleaner copy. alties for failure to provide inter- braska if he would like to temporarily The PRESIDING OFFICER. Is there connection—and they are rather sub- lay this aside? an objection to temporarily withdraw- stantial; as I said, I believe it is $1 mil- Mr. KERREY. Mr. President, it takes ing the modification? lion a day and up to $5 million a day— almost no time at all. I would like to Mr. PRESSLER. Mr. President, I sug- that you will not tap the ratepayer. I get staff to clear this up. It is a single- gest the absence of a quorum. believe it is important, if penalties or line amendment. It should not be that The PRESIDING OFFICER. The damages get assessed, it does not get difficult to have staff write this up in clerk will call the roll. passed on to that individual ratepayer. block letters. The legislative clerk proceeded to Regulators are inevitably going to be Mr. PRESSLER. I am not trying to call the roll. asked by local telephone companies or be difficult. Mr. KERREY. Mr. President, I ask local providers of service, as new com- Mr. KERREY. I understand. I put in- unanimous consent that the order for petitors come on line, to adjust these sertions in this thing, and I need it the quorum call be rescinded. caps. When they do, it is going to be written out in a single line. I do not The PRESIDING OFFICER. Without very difficult if not impossible to ex- need to lay the amendment aside. objection, it is so ordered. clude consideration of costs in making I suggest the absence of a quorum. AMENDMENT NO. 1306, AS MODIFIED that adjustment. In making that ad- The PRESIDING OFFICER. The Mr. KERREY. Mr. President, I ask justment they may not be able to iden- clerk will call the roll. the modification that I have now re- tify and exclude penalties effectively. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8313 This amendment will, as a con- disadvantage if there is not number this section will be charged directly or indi- sequence, protect ratepayers. portability. rectly to that company’s ratepayers. Mr. President, I am proposing an But the local exchange carrier This amendment is necessary, be- amendment designed to protect rate- doesn’t have to take any action until cause the ratepayers are captive to the payers from having to shoulder the number portability is technically fea- local exchange carriers. They don’t burden of any civil penalties, damages sible. Who is going to decide that have any choice. Without this amend- or interest assessed against local ex- issue? You can bet the lawyers will ment, the carrier could just pass the change carriers for violating the inter- have something to say about it, as well penalty or damages along to rate- connection and other duties imposed as platoons of experts. payers—who would have to pay, be- on them by this legislation. Same situation with local dialing cause of that lack of choice. And, in Section 224 of the bill contains en- parity. Local dialing parity means that that case, the carrier would have suc- forcement provisions. Under these pro- a customer who subscribes to a com- ceeded in evading the requirements of visions, a telecommunications carrier petitor can make calls by dialing the the bill twice—first by not meeting its that fails to implement the require- same number of digits as they would if interconnection obligations and second ments of sections 251 and 255 can be they were customers of the established by making captive ratepayers foot the punished by a civil penalty of up to $1 phone company. That’s a big deal. Peo- bill for the penalty or damages. million for each offense. A Bell com- ple don’t like to dial any more numbers Moving to a price cap form of regula- pany that repeatedly, knowingly, and than they have to. Back in the days of tion will not solve this problem. In without reasonable cause fails to im- the old Bell system, that was one of fact, a price cap system may increase plement an interconnection agreement, the ways the monopoly disadvantaged the chances that ratepayers will end up to live up to the agreement after im- MCI and other long distance competi- paying the local exchange carrier’s plementing it, or to comply with the tors. You had to dial access codes if civil penalties and damage judgments bill’s separate subsidiary requirements you wanted to use MCI. That discour- if this amendment is not adopted. can be fined up to $500 million. These aged people from switching. Under traditional rate of return regula- penalties are intended to deter compa- So the bill says that a local exchange tion, at least, the State regulators can nies from evading their responsibilities carrier has to provide number port- conduct a rate case and scrutinize the to provide effective interconnection. ability and local dialing parity as soon claim and tell the carrier, No, that’s a The section also provides that private as it is technically feasible, or there penalty, you can’t pass that along. parties injured by such conduct can re- will be penalties. Well, it could be Under price cap regulation, regu- cover damages and interest. years before the lawyers and the ex- lators will inevitably be asked to ad- just the caps. And when they do adjust I have very serious doubts, Mr. Presi- perts and the FCC and the courts figure them, it will be impossible for them to dent, about the efficacy of the civil out what is technically feasible. By exclude consideration of costs in mak- penalties and the prospect of damages. that time, the penalties or a private ing that adjustment. But in making I think there will be a lot of uncer- action to recover damages may not that adjustment, they may not be able tainty as to whether sanctions will be mean too much. effectively to exclude penalties and imposed. This uncertainty is inherent Which brings me to my next point, Mr. President. Even if penalties even- damages from the adjustment. in the nature of the interconnection re- This amendment will put the burden quirements in the bill. For example, tually are imposed, we don’t know how significant the penalties actually on the local exchange carrier to make the very first duty under section 251 is sure that penalties, damages and inter- the duty to enter into good faith nego- would be. The bill sets upper limits on the amount of penalties. But it doesn’t est don’t end up burdening ratepayers. tiations with any telecommunications It makes sure that the penalties penal- carrier requesting interconnection. The offer any assurance that a penalty would ever approach those figures. Ac- ize the local exchange carrier, not the lawyers could litigate until kingdom captive ratepayers. come about whether a company has tual penalties, if they are imposed at AMENDMENT NO. 1344 failed to negotiate in good faith. all, could be a fraction of the possible amount. (Purpose: To provide for the representation A similar example is found under the of consumers on the Federal-State Joint minimum standards of interconnec- A private party seeking damages would also face daunting prospects in Board on universal service) tion. The local exchange carrier must Mr. KERREY. Mr. President, I have take whatever action under its control proving the level of those damages, since in many cases the injured party an amendment at the desk. I ask for its is necessary, as soon as it is tech- immediate consideration. It is amend- nically feasible, to provide tele- might never have gotten its business going because of the very violation ment No. 1344. communications number portability Mr. President, there is under provi- and local dialing parity. Now these two complained of. The speculative nature of damages might be a serious barrier sion of this amendment creation of a things—number portability and local new Federal-State joint board. dialing parity—sound a little arcane, to recovery for the injured party. This balance of uncertain high pen- The PRESIDING OFFICER. The Sen- but they are both essential to having alties or damages against the certain ator will withhold. The clerk has not any kind of meaningful local competi- and enormous financial benefit to local yet reported the amendment. The clerk tion. exchange carriers—especially the Bell will report. Number portability means that cus- The assistant legislative clerk read companies—of not providing effective tomers can keep their telephone num- as follows: interconnection to would-be competi- bers when they switch phone compa- ERREY tors suggests that the deterrence effect The Senator from Nebraska [Mr. K ] nies. Quite simply, telephone cus- proposes an amendment numbered 1344. of this penalty scheme will be minimal. tomers—both business and residen- On page 37, line 7, insert after ‘‘service,’’ So I have my doubts, Mr. President, tial—are not as willing to switch phone the following: ‘‘In addition to the members that this enforcement approach is companies if they also have to switch of the Joint Board required under such sec- going to provide much encouragement tion 410(c), one member of the Joint Board phone numbers. If I’m a small company to local telephone monopolies to co- shall be an appointed utility consumer advo- in Omaha, NE, I can’t afford to change operate in opening up the local market cate of a State who is nominated by a na- telephone companies if it means that I to competition. tional organization of State utility have to change phone numbers, even if But if civil penalties are imposed or consumer advocates.’’. the competitor offers an otherwise bet- damages assessed, one thing we need to Mr. KERREY. Mr. President, the ter deal. My customers wouldn’t know make sure of is that they are not amendment is very straightforward. It how to get a hold of me. All my list- passed on to local ratepayers. That is merely asks for a consumer advocate ings, stationery, and business cards what my amendment does, Mr. Presi- to be appointed to be a member of this would have to be redone. dent. It states that— joint Federal-State board. So new phone companies who want to ... [n]o civil penalties, damages, or inter- The PRESIDING OFFICER. Is there compete with the established carrier est assessed against any local exchange car- further debate? The Senator from will be at a tremendous competitive rier as a result of a violation referred to in South Dakota. S 8314 CONGRESSIONAL RECORD — SENATE June 14, 1995 Mr. PRESSLER. Mr. President, I am tions. I suspect the Senator from South Mr. KERREY. Mr. President, I have going to have to question this amend- Carolina in particular has had experi- an amendment numbered 1313. ment. I want to confer here. Do we ence as a Governor. Very often a stat- AMENDMENT NO. 1313 have a copy of this amendment here? ute ends up saying you have to have (Purpose: Clarifies state rate-making Mr. President, I suggest the absence one from this legislative district, four authority) of a quorum. Republicans, three Democrats, or vice Mr. KERREY. Mr. President, I send The PRESIDING OFFICER. The versa. Very often in the legislative an amendment to the desk and ask for clerk will call the roll. process you get quite detailed in trying its immediate consideration. The assistant legislative clerk pro- to narrow down or debate who is going The PRESIDING OFFICER. The ceeded to call the roll. to be on this board. I am not doing clerk will report. Mr. HOLLINGS. Mr. President, I ask that. The assistant legislative clerk read unanimous consent that the order for Indeed, this provision is in H.R. 1555. as follows: the quorum call be rescinded. It is in the House bill. So I am not ask- The Senator from Nebraska [Mr. KERREY] The PRESIDING OFFICER. Without ing we come in and designate that you proposes an amendment numbered 1313. objection, it is so ordered. On page 116, between lines 2 and 3 insert have ‘‘x’’ number of corporate members the following: Mr. HOLLINGS. Mr. President, I say and this number of Democrats and this (D) Nothing in this section shall prohibit to the Senator from Nebraska, as I un- number of Republicans. I am merely the Commission, for interstate services, and derstand the idea here it is to add a saying there should at least be one the States, for interstate services, from con- consumer representative to the joint consumer advocate. As I said, it is con- sidering the profitability of telecommuni- board, which is now comprised of four sistent with what is already in the cations carriers when using alternative forms of regulation other than rate of return State commissioners and three Federal House bill. commissioners. They have the general regulation (including price regulation and Philosophically I am with both the incentive regulation) to ensure that regu- overall concern of consumers as well as Senator from South Dakota and South lated rates are just and reasonable. industry. Carolina. I think any amendment that Mr. PRESSLER. Mr. President, I am What you have suggested now, by the would come in and say with specific told by leadership that they are now amendment, is that a consumer rep- language here how each one of these prepared to vote. If we could lay aside resentative be added on. The industry board members have to look before you this amendment and come back to the friends, then, will say ‘‘We want an in- can appoint them would complicate the Kerrey amendment No. 1344, I will dustry friend.’’ If there is one thing matter and not likely result in the move to table at that time, if that is that sort the rankles this particular kind of board that is going to be need- agreeable with my friend from Ne- Senator—and it is not the Senator ed. I merely argue, with respect, that braska. from Nebraska; Heavens above, I have this conforms with the language of the The PRESIDING OFFICER. The Sen- the greatest admiration for him—but it House bill. I would have loved to have ator from Nebraska. is this idea of classifications around a situation where I was appointing Mr. KERREY. I ask unanimous con- this town: middle class and lower class boards where this is all I had to worry sent that the amendment I just sent to and upper class and rich class and poor. about, only appointing one consumer the desk be laid aside and that the pre- I represent the high, the low, the advocate as opposed to all the typical vious amendment be the order of busi- rich, the poor and all classes. I really balancing requirements that are speci- ness. And I will speak a little bit fur- look upon our public utility commis- fied in legislation. ther on that before a tabling motion is sion at the several States to be very The PRESIDING OFFICER. The Sen- made. much attuned to the interests of con- ator from South Carolina [Mr. HOL- The PRESIDING OFFICER. Without sumers as well as the industry, and LINGS]. objection, it is so ordered. similarly with respect to the FCC Mr. HOLLINGS. Mr. President, in the AMENDMENT NO. 1344 Members. Mr. Coelho and the Federal interests of all parties, as I understand Mr. KERREY. Mr. President, we are Communications Commission were just it, should we have a motion and a roll- about to vote on a motion by the Sen- commended by the U.S. Circuit Court call ordered, I hope these rollcalls ator from South Dakota to table an of Appeals here in the District of Co- could be stacked beginning at 2 amendment that provides for a single lumbia last week for the outstanding o’clock. We have a meeting of the lead- consumer on the joint Federal-State job in measuring competition in the ership at the White House. We have board. This provision is in the House market and how they balance the in- Members down, bipartisanly, at a bill. I call to my colleagues’ attention, terests of consumers versus the needs luncheon for the President of France, who are trying to figure out exactly of the industry and otherwise. President Chirac. whether or not to support an amend- So I really am not enthused about With that in mind, we can facilitate ment that will provide one consumer this amendment but I yield to my dis- and move right along with any particu- representative on this board, that it tinguished chairman. lar votes. I hope we can start at 2 references the universal services sec- Mr. PRESSLER. Mr. President, I o’clock, if the chairman gives us per- tion. As we move from this monopoly must oppose this amendment reluc- mission to do so. that has been established to provide tantly. I am all for consumers. But to Mr. President, I suggest the absence universal service—understand, that is have a person appointed who is nomi- of a quorum. the purpose of the monopoly. The mo- nated by the National Organization of The PRESIDING OFFICER. The nopoly is put together to provide uni- State Utility Consumer Advocates, clerk will call the roll. versal telephone service. It has gotten then we would say we need a corporate The assistant legislative clerk pro- the job done. Now we are going to move advocate. We need a racial minority ceeded to call the roll. from a monopoly situation to a com- advocate. We need this and that. Mr. KERREY. Mr. President, I ask petitive situation. So I feel strongly this would not be unanimous consent that the order for I support changing the law to get an appropriate amendment. It is my the quorum call be rescinded. that done. But as we make the transi- present intention to move to table it The PRESIDING OFFICER. Without tion, Members should understand that and to ask for the yeas and nays. I objection, it is so ordered. we are putting universal service at risk think we would have serious problems Mr. KERREY. Mr. President, is the because we are basically moving over that this would create, serious prob- current business my previous amend- time so that these companies—cur- lems. I just do not believe in legislat- ment? rently monopolies, currently pricing in ing, appointing one type or one group The PRESIDING OFFICER. The Sen- the vast majority based upon a system having access to the board. ator is correct. of rate-based rate of return—are going The PRESIDING OFFICER. Is there Mr. KERREY. Mr. President, I ask to move to a system of price caps, and further debate? The Senator from Ne- unanimous consent that the amend- eventually they are going to price braska [Mr. KERREY]. ment be laid aside temporarily. based on cost. Mr. KERREY. Mr. President, I ac- The PRESIDING OFFICER. Without Currently, you will have situations knowledge those are reasonable objec- objection, it is so ordered. in a metropolitan area, say Omaha, June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8315 NE, where residential rates are about each one of these members are going to monopoly constraint. We are going to $14 a month, and business rates are $30 look like and which political parties move, again, for emphasis, so that Sen- a month. It does not cost the company and how many corporations. ators understand what this bill does. any difference. There is no difference This merely says one individual. It is This bill preempts State legislatures, in running a line to a business and run- the same language that is in 1555, the State Governors, regulatory commis- ning a line to a resident. The law as set House bill. If there is going to be a ta- sions that say you can no longer have up gives the monopoly the authority to bling motion, I urge my colleagues to rate-based return regulation. We are earn a rate of return. But it is also vote against tabling. This is a going to move to a price cap system of given the ability to subsidize the resi- proconsumer vote. regulation. dential rates, to shift costs; in other The PRESIDING OFFICER. The Sen- I happen to think price cap in almost words, so we can keep the residential ator from South Dakota. all situations can be better than rate- rates lower than they otherwise might Mr. PRESSLER. Mr. President, I based. But there are some, Mr. Presi- be. move to table the amendment, and I dent, where we could have trouble. I do not know whether the rates are ask for the yeas and nays. This amendment tries to address those The PRESIDING OFFICER. Is there a going to go from $14 to $18, or whether situations by saying that ‘‘Nothing in sufficient second? in a competitive environment they are this section shall prohibit the commis- There appears to be a sufficient sec- sion for interstate services and States going to go down. I do not know. We ond. are going to allow them to price dif- The yeas and nays were ordered. for interstate services from considering ferently. The PRESIDING OFFICER. The the profitability or earnings of tele- In transition, one of the biggest ques- question occurs on the motion to table communications carriers when using tions is, How do we continue to provide amendment 1344 offered by the Senator alternative forms of regulation other universal service to these residential from Nebraska [Mr. KERREY]. The yeas than the rate of return regulation.’’ It consumers? These are the consumers. and nays have been ordered. The clerk does not say they have to. It says noth- There is already in place a Federal- will call the roll. ing in this law shall prohibit them State joint board. The assistant legislative clerk called from considering the profitability of It is going to be entitled for 1 year at the roll. the companies. least ‘‘Federal-State Joint Board on The result was announced—yeas 55, Mr. President, residential and busi- Universal Service.’’ nays 45, as follows: ness consumer representatives and The statute says that: [Rollcall Vote No. 260 Leg.] telecommunications competitors alike Within one month after the date of enact- YEAS—55 support this legislation’s goal of en- ment of this Act, the Commission shall insti- Abraham Frist Mack couraging effective competition in the tute and refer to a Federal-State Joint Board Ashcroft Gorton McCain local telephone service market. How- under section 410(c) of the Communications Bennett Gramm McConnell ever, what I am calling the monopoly Act of 1934 a proceeding to recommend rules Bond Grams Murkowski telephone rate amendment is necessary Breaux Grassley regarding the implementation of section 253 Nickles to protect ratepayers of noncompeti- of that Act—— Brown Gregg Packwood Burns Hatch Pressler tive telecommunications services from Which is the Universal Provisions Campbell Hatfield Roth experiencing multibillion dollar rate Chafee Helms Act. Santorum Coats Hollings increases for these services during the Shelby including the definition of universal service. Cochran Hutchison transition to effective local competi- Simpson The Joint Board shall, after notice and pub- Coverdell Inhofe tion. lic comment, make its recommendations to Craig Jeffords Smith Stevens State regulators—that is to say, the the Commission no later than 9 months after D’Amato Johnston National Association of Regulatory the date of enactment of this Act. DeWine Kassebaum Thomas Dole Kempthorne Thompson Commissioners; consumer representa- In other words, this joint board is Domenici Kyl Thurmond tives, the American Association of Re- going to make the recommendations Faircloth Lott Warner tired Persons, the Consumer Federa- Ford Lugar about universal service to the FCC. tion of America, Consumers Union, the The FCC then: NAYS—45 National Association of State Utility . . . may periodically, but no less than once Akaka Feingold Mikulski Consumer Advocates, as well as busi- every 4 years, institute and refer to the Joint Baucus Feinstein Moseley-Braun Biden Glenn Moynihan ness telephone users—that is to say, Board a proceeding to review the implemen- the customers of telephone companies, tation of section 253 of that act and to make Bingaman Graham Murray Boxer Harkin Nunn new recommendations, as necessary, with re- business users, the International Tele- Bradley Heflin Pell communications Association—all are spect to any modifications or additions that Bryan Inouye Pryor may be needed. As part of any such proceed- Bumpers Kennedy Reid concerned about section 301 of this bill. ing, the Joint Board shall review the defini- Byrd Kerrey Robb In mandating price flexibility and tion of, and adequacy of support for, univer- Cohen Kerry Rockefeller prohibiting rate of return regulation, sal service and shall evaluate the extent to Conrad Kohl Sarbanes section 301 also prohibits State and which universal service has been protected Daschle Lautenberg Simon Dodd Leahy Snowe Federal regulators from considering and advanced. Dorgan Levin Specter earnings when determining whether In paragraph (b), the Commission Exon Lieberman Wellstone prices for noncompetitive services are then is told to act. So the motion to table the amend- just reasonable and affordable, while The Commission shall initiate a single pro- ment (No. 1344) was agreed to. the FCC and many State commissions ceeding to implement recommendations AMENDMENT NO. 1313 have instituted various price flexibility from the initial Joint Board required by sub- The PRESIDING OFFICER. The plans, typically based upon the prin- section (a) . . . pending question is the Kerrey amend- ciples of price cap regulation. Almost And then it is supposed to complete ment No. 1313. all of those plans involve some consid- this proceeding within a year after the Mr. KERREY. Mr. President, this eration of earnings. date of enactment of this act. amendment would go into the bill, for If regulators are prohibited from con- So this joint board is going to be colleagues who are checking the lan- sidering the earnings factor when de- making a very important recommenda- guage out, on page 116. And it refers to termining the appropriateness of prices tion about how we maintain this uni- the duty to subscriber. Well, it would for noncompetitive services, then the versal service that our consumers, our add to the rate-of-return regulation captive ratepayers of these services taxpayers, ratepayers, voters out there elimination. In the third title of this will be subject to billions of dollars in have grown accustomed to. bill, we are at the end of the transition. rate increases that regulators could All this amendment does is say that I do not know when that is going to otherwise prevent. the joint board should have on it a sin- be—3, 4 years, it could be sooner, de- The monopoly telephone rates gle consumer representative. It is pending upon the local area. amendment does not change the bill’s something that I understand is a philo- This amendment goes after those prohibition on rate-of-return regula- sophical problem of specifying what areas where you may still have some tion, but would merely allow State and S 8316 CONGRESSIONAL RECORD — SENATE June 14, 1995 Federal commissions to consider earn- In truly competitive markets, prices are work as far away as New York or Wash- ings when authorizing the prices of the result of the forces of supply and demand ington without ever having to leave those noncompetitive services. and don’t need to be regulated at all. How- their homes or families. Or school- ever, because local exchange, ancillary serv- children in a distressed Minneapolis The ratepayer stake in the monopoly ices, and interLATA toll markets are at best telephone rates amendment is dramati- partially competitive, regulatory oversight school district reading the latest publi- cally demonstrated by reviewing the is still needed and—no one expects this situ- cations at the Library of Congress via role of earnings within the regulatory ation to be remedied within the next 12 thin glowing fiber cables. That excites structure for the 4-year period from months. me as a teacher. 1991 to 1994. During that period, if the How are prices in these markets to be set? Or rural health care providers on the regulators of both interstate and intra- They necessarily involve the careful consid- Iron Range, consulting with the top eration of each provider’s rate of return on state operations of the local telephone medical researchers at the Mayo Clinic noncompetitive services. A judgment about in Rochester to better treat their pa- companies had been prohibited from that rate of return must underlie the initial considering earnings when approving determination of the starting prices allowed. tients. rates under their price cap plans, the How else can regulators determine whether I can imagine, Mr. President, things excess revenue over existing authorized the prices charged for their noncompetitive like these, but I do not have to. Al- rate levels could have easily exceeded services are ‘‘just and reasonable,’’ or wheth- ready, communication miracles like $18 billion. In other words, if S. 652 had er excessive revenues from such services will these are occurring with greater fre- become law in 1991, telephone rate- be available to subsidize competitive service quency across our Nation. It is fas- and keep out potential competitors? payers of noncompetitive services—and cinating to live in such exciting times. I keep emphasizing that where you The monopoly telephone rates I think there is a consensus among have competition, there is no prob- amendment, Mr. President, recognizes Senators on both sides of the aisle on lem—but ratepayers in noncompetitive that the earnings of local telephone this question. areas and services would have had to companies are formidable. Each of the Mr. President, this bill presents the pay $18 billion more in telephone rates 7 Baby Bells is among the Fortune Top elected representatives of our States than they did between 1991 and 1994. 50, with most in or approaching to the with a particularly exciting and at Future pocketbook hits will be even Fortune Top 20 list. times daunting responsibility. How do higher unless this legislation is amend- According to the most recently avail- we help dissolve the current artifi- ed. The monopoly telephone rates able statistics from the FCC, Statistics cially divided and fragmented tele- amendment provides a safeguard of Common Carriers, 1993–94 edition, communications industry to nurture against a rate impact for the future. those local telephone companies re- the rapid development of these types of quired to report their earnings to the A recent study by Montgomery Asso- communications, while ensuring that FCC billed $90 billion in rates for 1993 ciates, located in Massachusetts, esti- these services remain available, and I and had net earnings of more than $5 mated the rate impact over the next 4 think the Senator from Nebraska has billion. years of S. 652, if its current form were said this over and over again, and af- Since the competition we strive for enacted. Based upon an examination of fordable to everyone in the Nation, not in this legislation will not become an regulatory and industry data, the merely the most privileged and instant reality, the monopoly tele- study conservatively estimates that wealthy. phone rates amendment recognizes the local rates would increase by $6 per How do we ensure that this bill bene- need to provide State and Federal offi- month over the next 4 years. fits not just the multibillion-dollar al- cials with the tools necessary to ensure phabet soup of corporations—IBM, The monopoly telephone rates that the noncompetitive service of the MCI, AT&T, TCI, GTE, ABC, and the amendment recognizes it is highly ap- local telephone companies are not rest—but the consumers of St. Paul, propriate that State regulators con- priced at excessive levels. Accordingly, and Mankato, Fergus Falls, and Du- tinue to have a role in determining the I urge my colleagues to support the luth, MN. How do we guarantee, Mr. appropriate price of noncompetitive monopoly telephone rates amendment. President, fairness, access, and afford- services in their States, and in so Mr. WELLSTONE. Mr. President, ability in the telecommunications in- doing, have the discretion to consider first of all, let me thank my colleague dustry? the earnings of the local telephone from Nebraska for his very eloquent We have had several opportunities al- company. Approximately 75 cents of and strong voice on the floor of the ready. For example, last week the Sen- every dollar consumers spend on their Senate for the past several days, espe- ate, to its great credit, refused to strip overall telephone bills is for calls made cially in behalf of consumers in this away provisions to keep telecommuni- within their State. As we learned when country; especially in behalf of making cation rates low for schools and hos- deregulating other industries, the leg- sure there is, in fact, real competition. pitals. I am proud to say that I and a islative goal of local telephone com- Mr. President, I come to the floor majority of my distinguished col- petition advanced in this legislation today to address what I consider the leagues voted to defend those protec- will not be achieved overnight. In the merits and the faults of what may be tions. interim, State regulators and legisla- one of the most important economic With that vote I believe we took a tures will continue to be responsible development bills this session of Con- major step toward keeping our commu- for ensuring quality service and fair gress will consider, namely, the Tele- nication technologies affordable for fu- rates for noncompetitive telephone communications Competition and De- ture generations, as well as reaffirming services. Their hands will be tied if regulation Act. the primacy of the consumer in this de- Congress strips them of the authority Mr. President, we have had some en- bate. to even look at the company’s earnings lightening discussions and some solid Monday night the Senate voted to before considering the price level of disagreements on this bill. But this approve an amendment that I believe noncompetitive services. much, I think, all of my colleagues will help keep adult-oriented cable At a time when the Federal Govern- could agree on: The debate we have had video programs away from children. ment is committed to better recognize on this bill has opened all our eyes to Again, I am proud to say I cast my vote the appropriate role of local govern- the dazzling world of possibilities pro- in support of a measure to ensure that ment in assessing and protecting the vided by our emerging information such programming be fully scrambled citizens of its State, it makes no sense technologies. before entering the consumer’s house- to handicap the States as they promote It is a world that, at least from my hold, giving those who know best, the the emergence of competition in local perspective, appears to have virtually parents, the ability to control the flow telephone markets. no limits in terms of the potential for of new services into the home. As the chairman of the Vermont Pub- bettering the health, education, and I am saddened, however, Mr. Presi- lic Service Board recently described in economy of the residents of my State dent, that the Senate has chosen now testimony before the Judiciary Com- of Minnesota. to table a measure that I and many of mittee on antitrust business rights and I can imagine workers in rural Min- my colleagues believe is central, abso- property rights: nesota telecommuting to and from lutely central, to this entire debate of June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8317 competition and consumer protection: For this reason I support this Kerrey Mr. PRESSLER. I think the bill is Providing a role for the Department of amendment, as I have past Kerrey moving very nicely. But we do have a Justice to keep telephone monopolies amendments. I believe that what is number of amendments filed, I think from reassembling themselves. lacking is where do the consumers fit particularly in certain areas. We are Mr. President, I have listened to the in? Where is their voice? Where are eager for Senators to bring their debate on this issue and I thank my their advocates? Do they get an oppor- amendments. I do not see any Senator colleagues for some stimulating and in- tunity to sit down at the table? And on the floor. We are open for business sightful comments on this subject. will, in fact, we have true competition and are going to try to stack votes at Some of my colleagues say that these as opposed to monopoly? 2 o’clock, now. Any Senator having an protections, such as providing consum- I hope the Cell-Phone Canyon out amendment, please bring it. ers a voice in the process through the there does not dominate the final vote Mr. President, I suggest the absence Department of Justice, or other on these key amendments and the final of a quorum. amendments that my colleague from vote on this piece of legislation. I hope The PRESIDING OFFICER. The Nebraska has introduced over and over the vast majority of consumers who clerk will call the roll. again to make sure that the consumers are not out in these halls are the ones The legislative clerk proceeded to are at the table and that there is a who in the last analysis we listen to. call the roll. voice for consumers, some of my col- Mr. President, I yield the floor. Mr. KERREY. Mr. President, I ask leagues have said that this is too Mr. PRESSLER addressed the Chair. unanimous consent that the order for The PRESIDING OFFICER (Mr. much, too bureaucratic, too inefficient the quorum call be rescinded. THOMAS). The Senator from South Da- to enable businesses to compete. The PRESIDING OFFICER. Without kota. objection, it is so ordered. I ask these same colleagues, after Mr. PRESSLER. We are prepared to AMENDMENT NO. 1310 you remove the protections against endorse this, to accept this amend- huge rate increases, against monopoly, ment. Let me say to our friends that (Purpose: Clarifies that pricing flexibility should not have the effect of shifting reve- against service just for the privileged, our bill has been endorsed by the White what would you replace them with? nues form competitive services to non- House Conference on Small Business— competitive services) Words, Mr. President. Promises, guar- by small businessmen across the coun- antees, reassurances that this time, al- Mr. KERREY. Mr. President, I send try—and consumers are interested in an amendment to the desk and ask for though many of these companies have this bill. I have predicted that misbehaved in the past, and have been its immediate consideration. consumer prices will drop dramatically The PRESIDING OFFICER. The fined repeatedly for violating promises for telephone calls and cable television, to protect consumers, this time the clerk will report. just as they dropped when we deregu- The legislative clerk read as follows: corporations promise to behave them- lated natural gas, just as they dropped selves and to conduct themselves in the The Senator from Nebraska [Mr. KERREY] when cellular phones were deregulated. proposes an amendment numbered 1310. consumer’s best interest. In any event, we are prepared to ac- Mr. President, I have said it before, cept this amendment. Mr. President, I Mr. KERREY. Mr. President, I ask and I will say it again. I do not buy it. urge the adoption of the Kerrey amend- unanimous consent that reading of the I would rather put my trust in solid ment. amendment be dispensed with. protections, written in law, to make The PRESIDING OFFICER. If there The PRESIDING OFFICER. Without sure that rates remain affordable, serv- be no further debate, the question is on objection, it is so ordered. ices are available for everyone, and no agreeing to the amendment. The amendment is as follows: one is left behind in the stampede for The amendment (No. 1313) was agreed On page 112, at the end of line 17, insert the corporate profits. This extends across to. following sentence: ‘‘Pricing flexibility im- the board: Let me make it clear that I Mr. PRESSLER. Mr. President, now plemented pursuant to this section shall be intend to fight efforts to strip out of the Senate is open for business. Do we for the purpose of allowing a regulated tele- have Senators who wish to offer communications provider to respond fairly this bill any consumer protections that to competition by repricing services subject ensure affordability, fairness, and ac- amendments? to competition but shall not have the effect cess in local and long distance phone I thank all Senators for their co- of shifting revenues from competitive serv- service and cable TV. Unfortunately, operation. Senator KERREY has another ices to non-competitive services.’’ one? Great. I have been waiting eagerly many of the strongest consumer pro- Mr. KERREY. Mr. President, this is a for his amendment. tection amendments have been de- very simple amendment. Once again, it feated to date. Mr. KERREY. Mr. President, I say to the chairman and ranking member of references title III. Title III is a sec- I have noticed a lot of lobbyists out the committee, I have some amend- tion where we describe how we are in the halls these days; lobbyists that ments filed. I am not sure I am going going to end regulation. It is a section as my colleagues know too well are to bring them all up. I filed them under where we come in very directly, and just outside those doors. For the bene- the cloture rules. Some I am not quite make the transition to a competitive fit of the RECORD, Mr. President, let me sure I want to bring up. My under- pricing situation. take a moment and tell America who is standing is under the cloture rules, For citizens, consumers, taxpayers, out there: NYNEX is out there, Mr. each Member has an hour to talk. At voters and everyone else trying to fig- President, and so is Time-Warner, and some point, I am going to want to ure out what this bill is all about, we Ameritech, and Northern Telecomm, make a closing statement. currently allow local telephone compa- Bell South and Bell Atlantic and I know I control some time. I just nies to set prices based upon a rate-of- Southwestern Bell, Sprint and General want to make sure I reserve about 30 return methodology. Most of the Electric and Gannett—they are all out minutes so I can make a final state- States are set up that way. We are there, Mr. President. It has been called ment. moving to price caps. States are begin- Gucci Gulch in the past, maybe this Mr. PRESSLER. If my friend would ning to experiment with price caps, time we should call it Cell-Phone Can- be willing, perhaps he can begin to even with restrictions on them. yon. There can be no mistaking it; state them now and if he were in the We are going to make a transition to there are billions and billions and bil- proper mood, then when an amendment a different method of pricing, eventu- lions of dollars at stake in this bill. came to the floor we could set the ally allowing the price to be set upon But there is something else at stake speech aside and hear the amendment? the cost of the service that is being here—something much more important Mr. KERREY. That is an unusual re- provided. The language of title III lays than all the billions and billions and quest. I will take a different course. I out a framework for transition from a billions of dollars. The fate of the will take the road less traveled. rate-based-rate-of-return system to a American consumer is at stake here, I Mr. President, I yield the floor. price cap system. urge my colleagues to remember their The PRESIDING OFFICER. Let me This amendment simply adds to the needs, and their voice, in the coming observe each Member should not feel description under ‘‘in general’’—a para- debate and amendments. obligated to take their hour. graph that makes certain that: S 8318 CONGRESSIONAL RECORD — SENATE June 14, 1995 Pricing flexibility implemented pursuant Mr. PRESSLER. Mr. President, I ask that revenue in a fashion that enables to this section shall be for the purpose of al- unanimous consent that the order for me to keep my noncompetitive prices lowing a regulated telecommunications pro- the quorum call be rescinded. higher than I otherwise would. That is vider to respond fairly to competition by re- The PRESIDING OFFICER. Without the intent of the amendment. pricing services subject to competition but shall not have the effect of shifting revenues objection, it is so ordered. Mr. PRESSLER. But the way the from competitive services to non-competi- Mr. PRESSLER. Mr. President, if I amendment reads, it would have the ef- tive services. may ask the author of the amendment fect of shifting revenues from competi- Mr. President, this is merely lan- a couple of questions about the amend- tive services to noncompetitive serv- guage under the general section of sec- ment, as I understand it, ‘‘Pricing ices. Was the intent of that—— tion 301, that attempts to say let us flexibility implemented pursuant to Mr. KERREY. Right. That is exactly make certain that we do not have any this section shall be for the purpose of right. Let us say I am the Acme Tele- language in this bill that permits the allowing a regulated telecommuni- phone Co., and I am currently given a pricing and the shifting of revenues cations provider to respond fairly to regulatory monopoly at the local level. from a competitive situation to a non- competition by repricing services sub- If I am the CEO of that company and I competitive situation. ject to competition but shall not have am performing for my shareowners, I I yield the floor. the effect of shifting revenues from am sitting there right now saying I Mr. HOLLINGS. Mr. President, look- competitive services to non-competi- have all kinds of companies that are ing at this amendment with respect to tive services.’’ coming into my local market. They are the phrasing in the purpose whereby in Why would the Senator want to pre- trying to get my high-end users. So I pricing flexibility and responding to vent a company from shifting from go to that high-end business user and competition by repricing services the competitive services to noncompeti- say I will meet that price. I am now intent as I understand it is that you tive? First of all, what does the Sen- liberated in a competitive environ- not raise the noncompetitive services. ator mean? ment. I will meet that price. Mr. KERREY. Generally speaking, When you say shifting revenues or rais- What I am trying to do with this lan- what I am trying to do with the lan- ing costs, then you get into the con- guage is to prevent the use of that kind guage, I say to the Senator from South cern about cost-based operations of revenue to keep, in an artificial Dakota, Mr. President, is to prevent a whereby I think the intent here is fashion, the price for that noncompeti- continuation of a pricing scheme that when you say shifting revenues—that tive service higher. allows a shifting of revenue and in a is what is disturbing to this Senator. Mr. PRESSLER. Does my colleague Is it the case that what the Senator noncompetitive environment prices to mean shifting cost or shifting reve- is trying to say is that as you respond be higher than they otherwise would nues? Because it would seem that it to that pricing flexibility, and you are be. That is the intent. would be logical you were shifting Mr. PRESSLER. What does the Sen- responding to the repricing services costs. ator consider competitive services to Mr. KERREY. I mean shifting the competition that you do not raise com- be? cost of the service, the revenue that petitive rates? Mr. KERREY. Mr. President, I con- Mr. KERREY. That is correct. would be required to be paid in that sider this to be one of the most impor- Mr. HOLLINGS. I mean noncompeti- noncompetitive environment. So the tant questions that should be asked re- tive. noncompetitive guy ends up paying a peatedly on the floor. I consider com- Mr. KERREY. The Senator is correct; higher rate as a consequence of my petitive service to mean a choice. that we do not end up with non- being able now to go out and say I will When I as a consumer—whether I am a competitive rates. meet the competition; I will lower the Mr. HOLLINGS. Mr. President, I sug- business person, whether I am in my price; I will give you a lower price. gest the absence of a quorum. household, regardless of where I am—I This amendment attempts to prevent The PRESIDING OFFICER. The have choice. the use of that revenue in a non- I do not like the service that the clerk will call the roll. competitive environment. The legislative clerk proceeded to company is providing. I do not like the Mr. PRESSLER. On this amendment, call the roll. price. So I am going to shift and go I will have to oppose it because we do Mr. KERREY. Mr. President, I ask someplace else. I have alternatives to not feel it does what the Senator seems unanimous consent that the order for what I have right now. Right now, I to be saying it does. I am not question- the quorum call be rescinded. have very few alternatives at the local ing the draftsmanship. But I wonder if The PRESIDING OFFICER. Without level. our staffs could discuss it a little bit objection, it is so ordered. It is a very important question. What and see if we cannot—very frankly, we will happen, I suspect, initially is that cannot—— AMENDMENT NO. 1310, AS MODIFIED you are going to get competition at the Mr. KERREY. I would be pleased to. Mr. KERREY. Mr. President, I failed higher end, as we currently do, in fact. Mr. PRESSLER. Quite understand to ask unanimous consent to modify We have, as the Senator knows, all because we think it means you are try- this amendment. It says page 112 and it kinds of competition coming into the ing to shift costs and also it would be should be page 113. local level, a relatively small percent very rare that a company would want So I ask unanimous consent for that of the overall pie, but we are starting to shift competitive services revenues now. to get competition at the local level at to noncompetitive services revenues as The PRESIDING OFFICER. Without that higher end. far as we can see. But I would have to objection, it is so ordered. Mr. PRESSLER. What would be an oppose this amendment as it is pres- The amendment (No. 1310), as modi- example of a problem with a company ently drafted. fied, is as follows: shifting revenues from competitive Mr. KERREY. I will be glad, Mr. On page 113, at the end of line 17, insert the services to noncompetitive services? President, in a quorum call to sit down following sentence: ‘‘Pricing flexibility im- Give me an example. and look at the language in here. I un- plemented pursuant to this section shall be for the purpose of allowing a regulated tele- Mr. KERREY. The concern I have is derstand there may be some potential communications provider to respond fairly that I can keep my noncompetitive confusion over precisely what it is to competition by repricing services subject prices higher than I otherwise would, doing. to competition but shall not have the effect that I could keep the prices in a non- I will say again for emphasis, the in- of shifting revenues from competitive serv- competitive environment higher. If I tent here is to make certain when we ices to non-competitive services.’’ am a company with, let us say, $1 bil- open up competition, we are basically Mr. KERREY. Mr. President, I sug- lion of cash flow a year and the law saying to a company that right now is gest the absence of a quorum. now allows me at the local level to trying—I have heard the Senator from The PRESIDING OFFICER. The meet a competitive alternative and South Dakota talk about it as well, so clerk will call the roll. price in order to be able to get the I think we are basically on the same The legislative clerk proceeded to business, and now I have that business, wavelength. If there is some confusion, call the roll. what I am concerned about is shifting it may be that in drafting this I have June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8319 created it. If the Senator is willing to The PRESIDING OFFICER. The provision, a Bell operating company identify a problem, I am perfectly will- clerk will report. could gain entry into the long distance ing to modify the amendment to make The bill clerk read as follows: market on the basis of one inter- the language clear. The Senator from Nebraska [Mr. KERREY] connection agreement with a competi- But my intent is to create a situa- proposes an amendment numbered 1307. tor. It would not matter whether that tion where we say to a local company, Mr. KERREY. Mr. President, I ask competitor was weak, under- as I think we should by the way, OK, unanimous consent that reading of the capitalized, or lacking either expertise meet the competitive alternative. Go amendment be dispensed with. or a business plan—that one competi- ahead and price your service and meet The PRESIDING OFFICER. Without tor could facilitate Bell entry into that competitive alternative. I just objection, it is so ordered. markets which at that time may, or want to make certain in a noncompeti- The amendment is as follows: may not, be competitive. tive environment the revenue stream On page 83, strike out line 12 and all that One of the goals of this bill is to open does not end up being higher as a con- follows through line 20 and insert in lieu the door, to provide incentives to fa- sequence of liberating, allowing that thereof the following: cilitate local competition. Unless competition to be met. ‘‘(b) SPECIFIC INTERLATA INTERCONNECTION amended, this provision may counter Mr. PRESSLER. I would say before REQUIREMENTS— ‘‘(1) IN GENERAL.—A Bell operating com- that intended goal, in fact removing in- we go into a quorum call that we wel- pany may provide InterLATA services in ac- centives for the Bells to reach agree- come other amendments and speeches cordance with this section only if that com- ment quickly with their strongest po- by Senators. The Senate is open for pany has reached interconnection agree- tential competitors. If the Bells think business, and we will conceivably lay ments under section 251 with telecommuni- that they can gain entry without hav- this aside if somebody else comes with cations carriers that have requested inter- ing to complete more than one agree- an amendment. And with that I note connection for the purpose of providing tele- ment, we are in fact inviting them to the absence of a quorum. phone exchange service or exchange access game the process. Instead of helping to The PRESIDING OFFICER. The service, including telecommunications car- riers capable of providing a substantial num- facilitate local competition, they clerk will call the roll. ber of business and residential customers might gain entry at a time when they The legislative clerk proceeded to with telephone exchange or exchange access still monopolize their local markets, call the roll. service. Those agreements shall provide, at a perhaps both stunting the development Mr. HELMS. Mr. President, I ask minimum, for interconnection that meets of local competition and endangering unanimous consent that the order for the competitive checklist requirements of the gains that have been made over the the quorum call be rescinded. paragraph (2). past decade in the increasingly com- The PRESIDING OFFICER. Without Mr. KERREY. Mr. President, this is petitive long distance industry. objection, it is so ordered. an amendment to section 255 of the This amendment would clarify the Mr. HELMS. Mr. President, I ask Communications Act of 1934. I dis- current provision and move it into line unanimous consent that it be in order cussed it with the managers of the bill. with the bill’s overall intentions by en- for me to address the Senate as in I will briefly describe it. suring that a BOC enters into more morning business. The requirement of the current pro- than one interconnection agreement The PRESIDING OFFICER. Without vision is an attempt to deal with actu- and by ensuring that those agreements objection, it is so ordered. ally section 251 as well by saying that are reached with telecommunications Mr. HELMS. I thank the Chair. my concern with 255 is that it might carriers capable of serving a substan- (The remarks of Mr. HELMS pertain- allow a local telephone company to get tial portion of the business and resi- ing to the submission of S. Res. 133 are into interLATA after having satisfied dential loop telephone markets. This located in today’s RECORD under ‘‘Sub- in a very minimal fashion the inter- clarification strengthens the incen- mission of Concurrent and Senate Res- connection requirement either of the tives and the conditions for competi- olutions.’’) competitive checklist or of 251. The re- Mr. HOLLINGS. Mr. President, while tion to develop. quirement of the current provision The requirement in the current pro- it appears we do not have an imme- should be satisfied as a local telephone vision could be satisfied after a BOC diate amendment, we are reconciling company reached an interconnection reached an interconnection agreement differences, including one on universal agreement with only a single tele- with only a single telecommunications services and otherwise. communications carrier, although in carrier, although in many markets it is While we are engaged in that nego- many markets a substantial number of probable that a substantial number of tiation, I suggest the absence of a carriers will request interconnection. carriers will request interconnection. quorum. Under the current provision, a Bell The PRESIDING OFFICER. The Under the current provision, a BOC company needs only a single entity re- clerk will call the roll. need reach agreement with only a sin- The bill clerk proceeded to call the questing interconnection without re- gle entity requesting interconnection, roll. gard to whether the requesting com- without regard to whether the request- Mr. KERREY. Mr. President, I ask pany is weak, undercapitalized, or ing company is weak, undercapitalized, unanimous consent that the order for lacking in other expertise or business and lacking either expertise or a busi- the quorum call be rescinded. planning. ness plan. The PRESIDING OFFICER. Without This amendment would ensure that a The amendment would ensure that a objection, it is so ordered. local telephone company which enters BOC enters into more than one inter- Mr. KERREY. Mr. President, what is into more than one interconnection connection agreement and that the the pending business? agreement, that the agreement in- agreements include telecommuni- The PRESIDING OFFICER. The cludes telecommunications carriers ca- cations carriers capable of serving a pending business is the Kerrey amend- pable of serving a substantial portion substantial portion of the business and ment No. 1310. of the business in a residential local residential local telephone markets. Mr. KERREY. I ask unanimous con- telephone market. Although it could Although this does not ensure that sent to withdraw amendment No. 1310. not ensure that competition will de- competition will develop, it does en- The PRESIDING OFFICER. Without velop, it ensures the interconnection sure that interconnection agreements objection, it is so ordered. agreements are reached before the long are reached before long distance entry The amendment (No. 1310) was with- distance entry of the company capable with companies capable of providing drawn. of providing local services to both busi- local service to a substantial number of AMENDMENT NO. 1307 ness and residential customers. both business and residential cus- (Purpose: To require more than ‘‘an’’ inter- This amendment would remedy a pro- tomers. connection agreement prior to long dis- vision in the bill which concerns me, a Mr. President, it is a pretty straight- tance entry by a Bell operating company) provision which I believe is very dan- forward, clarifying amendment. As I Mr. KERREY. Mr. President, I send gerous and susceptible to interpreta- have said on a number of occasions, as an amendment to the desk and ask for tion in a manner counter to the overall the managers have as well, this piece of its immediate consideration. intentions of S. 652. Under the current legislation is unprecedented. We are S 8320 CONGRESSIONAL RECORD — SENATE June 14, 1995 trying to manage a transition from a viding substantial coverage for both communications carriers capable of current regulated monopoly into a business and residential customers in providing a substantial number of busi- competitive arena. It is very difficult the exchange access areas. ness and residential customers.’’ to do. What we have established is in Under the circumstances, what that What it is attempting to do—and I section 251, be it a long distance com- would do is really prevent the transi- left the language relatively general, in pany or other carrier, it can be any- tion from taking place as we envision fact, because what I am trying to do, I body who wants to get into local busi- it. say to the Senator from Alaska, what I ness, they can either negotiate an There is no question, as the Senator am trying to do is to make sure—we agreement or satisfy, I believe, 10 from Nebraska stated, we are going tried earlier unsuccessfully. In fact, I things in section 251; that is to say, the from a period of regulation both under have a couple other amendments that I Communications Act of 1934, section the courts and under the FCC to a new do not believe I am going to send to the 251. Once they have satisfied those type of regulation in which this check- desk refighting the battle over whether agreements—they have to satisfy those list is one of the predominant features. or not the Justice Department should agreements in order to satisfy the Under the circumstances of the bill as be the arbiter of whether or not there law—251 describes what they have to do it stands, size is not material but com- is competition. when somebody comes and says, ‘‘I pliance is. And it will take some time In S. 1822, last year’s bill, what we want to get into local service, I want in the transition period for that to hap- said was that once the Department of to approach your customers.’’ Section pen. Justice has determined there is local 251 says what they have to do. This is one reason why we have op- competition, the local company then In addition, in 255, there is a 14-part posed changes in the public interest can do long distance. That was the competitive checklist before the local section of the bill, because it may well method by which we made certain that Bell company can get into interLATA be that in this transition period there there was local competition prior to to provide long distance service. This is going to be several different entities the company getting into long dis- amendment provides language to make trying to get through the gate at the tance. That was the idea. certain that we do not end up with an same time, so to speak. And the ques- Well, now what we have done is re- application occurring after having sat- tion of public interest is going to weigh placed the Department of Justice de- isfied a minimal requirement. In other in terms of which of those entities termination with a checklist so that words, I have competition but it is a should be approved under this section we have this checklist and we have lan- relatively small company. They really of having met with the requirement of guage in 251 that allows for these inter- are not effective competition. This at- the competitive checklist. connections. tempts to strengthen the competitive I think the Senator’s amendment Well, what this simply does is it tries requirement prior to the FCC giving narrows that group that can be at the to make sure we get a little more cer- interLATA approval. gate to be reviewed by the FCC and as tainty of competition because the FCC Mr. President, I yield the floor. such it would be restrictive of competi- does not make any judgment about Mr. STEVENS addressed the Chair. tion in the very essence, in the begin- competition other than the connection. The PRESIDING OFFICER. The Sen- ning, and therefore we would oppose The FCC takes the 14-point checklist. ator from Alaska. the Senator’s amendment as changing The FCC has to certify that the check- Mr. STEVENS. Mr. President, may I the concept which is, again I read, list has been satisfied and that the request that the clerk read the current compliance under the bill is that the company has reached an interconnec- provision on line 12, most specifically agreement provides at a minimum for tion agreement under section 251 that the interLATA interconnection re- interconnection, it meets the require- provides at a minimum for inter- quirement, just the first paragraph as ments of the checklist, the competitive connection that meets the competitive it appears in the bill as it appears now. checklist. This adds to the minimum, checklist requirements. I believe there is one change in it. I saying, in effect, that you have to have I understand that it says at a mini- want to make sure that is the case. size, a large enough carrier that is ca- mum, and there needs to be more. Mr. KERREY. Mr. President, which pable of providing a substantial num- What this attempts to do is bulk that page are you going to read? ber of business and residential cus- up and describe something a bit more Mr. STEVENS. This is page 83, which tomers within the telephone exchange than what is required currently under is the current specific requirement per- or exchange access service. Under the 251. taining to section 251. I just want to circumstances, the Senator from Ne- Mr. STEVENS. Mr. President, if the see if the bill I have is the same as the braska limits those who can get to the Senator is finished, let me state that one that is before the clerk. Are there gate first. It says the only ones that as it is, as I see it and my adviser, Earl any changes? can get to the gate first are the large Comstock, sees it, we agree that the The PRESIDING OFFICER. There carriers. impact of this could be that a Bell op- have been no changes to the bill on Mr. KERREY. No. erating company could not enter the that page. Mr. STEVENS. That is my conten- service area, interLATA, if there was a Mr. STEVENS. Mr. President, on tion. Until the Senator disabuses me of carrier seeking to provide service and that page is the requirement, specifi- that, I intend to move to table his had met the minimum requirements of cally the interLATA interconnection amendment. the checklist, the competitive check- requirement, which specifically states Mr. KERREY. Mr. President, let me list but was a small carrier. As a mat- that a Bell operating company may read the language. Certainly I believe ter of fact, as I said, I think there provide interLATA services in accord- the language is clear on that point. I could well be several small carriers at ance with the section only if that com- am not trying to preclude at all. You the gate, plus there could be a larger pany has reached an interconnection can still have a small carrier, a very carrier at the gate and the question agreement under section 251 and that small company come in and be given would be in terms of the public interest agreement provides at a minimum for the interconnection requirement at the who would be involved in getting ap- interconnection that meets the com- local level. It would be less likely to proval under section 251. But as a prac- petitive checklist requirements of happen. This amendment does not say tical matter the Bell company cannot paragraph 2. Paragraph 2 is the com- that that company is precluded. It does come in until someone provides that petitive checklist. I am certain that not use the language ‘‘preclude’’ at all. service. The Senator’s amendment the Senator from Nebraska and the It says interconnection for the purpose raises the threshold on the level of that Senators involved in this debate know of providing—only if that company service and as such will say the Bell what is in that checklist. reaches ‘‘interconnection agreements companies cannot come in until there What the Senator attempts to do under section 251 with telecommuni- is a substantial competitor there to with his amendment is to expand that cations carriers that have requested provide the service. agreement in a way that, in effect, as I interconnection for the purpose of pro- Mr. KERREY. That is correct. understand his intent, will preclude viding telephone exchange service or Mr. STEVENS. I tried to explain that any small company not capable of pro- exchange access service, including tele- before but I apparently did not get the June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8321 communication correctly as far as the choice at the local level before permis- ator’s amendment would require that Senator from Nebraska is concerned. sion is granted. And so I do not say in you have a carrier capable of providing That is precisely what we are trying to my substitute paragraph that any com- service to a substantial number of busi- avoid. We want to make sure that the pany is precluded from an interconnec- nesses and residential customers. Obvi- checklist is met at a minimum and the tion agreement under section 251. It ously, the small carrier cannot do that. public interest provision comes in at says instead that ‘‘a Bell operating One is looking at the test for the Bell that point. The FCC might delay a company may provide interLATA serv- companies; the other is looking at the smaller company if there is another ice in accordance with this section test for entry. We believe the predomi- one coming through the process that only if that company has reached’’— nant issue in regard to 251 is that there would provide a greater service in the which is in the language here—‘‘only if be no requirement other than the mini- area involved. I think that the Senator that company has reached an inter- mum compliance with the competitive would understand that. But as a prac- connection agreement under section checklist, as provided in subparagraph tical matter we do not look at size as 251’’—all that is the same as the para- (2) of subsection (b) that I read from being determinative of whether or not graph I am replacing—‘‘with tele- section 251. the Bell company could enter the area communications carriers.’’ And here is Mr. KERREY. Mr. President, I under- and provide service in the interLATA where it differs: ‘‘Telecommunications stand the concern, but the larger con- area. carriers that have requested inter- cern, I believe, still remains, which is I will be happy to yield. connection for the purpose of providing expressed by the findings in the bill Mr. KERREY. What the bill does not telephone exchange service or ex- and the description of the bill of what do, as I read it, is give me at least con- change access service, including tele- it is attempting to do, which is: We fidence in the 14-point checklist. What communications carriers capable’’—it want to make sure we have competi- it says is—Mr. President, 255 is the new does not say it is going to preclude tion before we get into long distance. section. It is actually called section 221 anybody. It just has to include ‘‘car- That is the idea. Currently, if I am a consumer, a in the bill, but it creates a new section riers capable of providing a substantial household in Omaha, NE, I have one 255 in the 1934 act, and it is called number of business and residential cus- choice. That is what I have. My tele- interexchange telecommunications tomers with telephone exchange or ex- phone company wants to get into long services, but it is the point where we change access service.’’ distance. The intent here is before you were removing the restrictions that are It says these agreements shall pro- get into long distance, you get some currently in place. vide at a minimum the competitive Currently, a local company cannot do competitive choice at the local level. If checklist which is also in this other all I have to do is sign an interconnec- long distance. What this does is says language. It does not say any company here are the terms and circumstances tion agreement with one small com- is precluded. It does not in fact say it pany before that occurs, that hardly under which it can do long distance. has to be x percent of the market or We fought the battle yesterday say- provides the kind of competitive anything like that. choice, as I understand the intent of ing that I thought that the test that It just says that it has to be more was in last year’s legislation, S. 1822, the bill. than a relatively small company that I understand the Senator’s concern and I think it was H.R. 3626, the House does not really provide that competi- about rural carriers, but I do not be- bill, that the test there was the right tive alternative for that consumer, lieve, at least as I read it, that the one; it had the Department of Justice that customer, that household at the amendment precludes the possibility of determine the competition, and when local level. a rural carrier, a smaller carrier inter- there is no substantial possibility that The Senator from Alaska may still connecting. the monopoly could use their power to move to table. I hope not, based upon Mr. STEVENS addressed the Chair. impede competition, have at it. Go to the language precluding a small com- The PRESIDING OFFICER. The Sen- it. Let the Department of Justice make pany from still coming—a small com- ator from Alaska. that determination. pany could still come and be allowed Mr. STEVENS. Mr. President, it is, We lost that battle. Now what I am under the interconnection agreements in our judgment, that the language of attempting to do is to say that the lan- of 251 to interconnect at the local level. the bill, as it stands, provides an incen- guage, as I read the current language This means I need a little bit more tive to the long-distance companies, in the bill it sets specific interLATA than a small company before the who are worried about Bell companies’ interconnection requirements under, interLATA approval is granted. entry into long distance, to come for- whatever it is, (b) of section 255, spe- Mr. STEVENS. Mr. President, I un- ward and use the provisions of section cific interLATA interconnection re- derstand the Senator’s intent. I call his 251 to negotiate the interconnection quirements. There are two sections, attention to the provision of sub- agreements. two paragraphs in there that are im- section (g) of 251 on page 25: If they do not do that and a small portant. The first one is the general A local exchange carrier shall make avail- carrier does come forward, it still paragraph which this amendment re- able any service, facility, or function pro- meets the requirements of this section places, and the second one is the com- vided under an interconnection agreement to and, therefore, it is sort of an incentive petitive checklist. which it is a party to any other tele- to the other long distance companies The current general paragraph says a communications carrier that requests such to come forward and get involved in Bell operating company may provide interconnection upon the same terms and the negotiations regarding section 251, interLATA, do long-distance service, in conditions as those provided in the agree- in our judgment. accordance with this section only if ment. In any event, it adds a level to the that company has reached an inter- We interpret that section to mean if threshold. It increases the minimum connection agreement under section there is a small carrier involved and it requirements that we have associated 251 and that agreement provides at a comes into the area, which means the with compliance with the checklist minimum for interconnection that Bell carrier can then enter long dis- and, as such, it adds another burden to meets the competitive checklist re- tance, that other carriers can come in future competition, which is something quirements of paragraph 2. easily; as a matter of fact, they would that we disagree with the Senator on. As I read this, what I can do, if I am not have to comply with 251. Mr. KERREY. Mr. President, it un- a Bell company, and let us say I have The problem is that as we see it in questionably asks for a minimum re- 50 people applying to go into inter- rural areas where only a small carrier quirement. That is unquestionably connection, all I have to do is get one may seek the interconnection to pro- true. I believe if this amendment were of them on line. I could have relatively vide competing local service in the be- adopted, it would be a reasonable sub- stable competition. I just do not get ginning, it means that that small car- stitute for the Department of Justice into an agreement with them. I wish to rier cannot enter this picture until role. It makes sure you have competi- get into long distance. there is a larger carrier that would be tion. The concern ought not to be for What I am trying to do is to make able to handle the substantial test of most of these companies trying to fig- sure that I have that competitive the Senator’s amendment. The Sen- ure out whether you have competition; S 8322 CONGRESSIONAL RECORD — SENATE June 14, 1995 the concern really ought to be is there The PRESIDING OFFICER. Without his courtesy he extended to this Sen- a competitive choice: Do I have in my objection, it is so ordered. ator and to the Senator from Michigan, residence in Omaha, NE, or do I have in Mr. DORGAN. Mr. President, I ask Senator LEVIN. my residence in any other area a com- unanimous consent to speak as in We are anxious to put our amend- petitive choice? morning business. ment forward. It is very straight- It does not insert ‘‘no substantial The PRESIDING OFFICER. Without forward. I ask that my amendment possibility’’ language. It does not in- objection, it is so ordered. numbered 1340 be modified by my sec- sert any specific language. It just says Mr. STEVENS. Mr. President, how ond-degree amendment, which is also that it has to be more than a single, long? at the desk, amendment No. 1354. small interconnection. Mr. DORGAN. Ten minutes. The PRESIDING OFFICER. Without Mr. STEVENS. Mr. President, it is Mr. STEVENS. I have no objection. objection, it is so ordered. The PRESIDING OFFICER. The Sen- not my desire to limit in any way the Mrs. BOXER. Mr. President, I ask ator from North Dakota is recognized. Senator’s debate on this amendment. unanimous consent that I yield myself, Mr. DORGAN. I thank the Chair. Mr. KERREY. I conclude my debate. (The remarks of Mr. DORGAN pertain- out of the 20 minutes, 7 minutes. Mr. President, I yield the floor. ing to the introduction of legislation Mr. President there has been a lot of Mr. STEVENS. Mr. President, again I debate on this bill, the Telecommuni- are located in today’s RECORD under say what the Senator from Nebraska is ‘‘Statements on Introduced Bills and cations Competition and Deregulation looking for is something to increase Joint Resolutions.’’) Act of 1995. A lot of it is quite tech- the effective competition tests that are Mr. STEVENS. I suggest the absence nical. A lot of it is difficult to follow. in this bill. The section we have been of a quorum. I do believe that the amendment that debating, section 255(b)(1), sets a mini- The PRESIDING OFFICER. The the Senator from Michigan, Senator mum requirement for the Bell operat- clerk will call the roll. LEVIN, and I are proposing is quite ing companies to enter into interLATA The assistant legislative clerk pro- straightforward. services. We think that is sufficient, in ceeded to call the roll. What we want to do with this amend- view of the requirements of the check- Mr. STEVENS. Mr. President, I ask ment is to protect—protect—the people list itself. unanimous consent that the order for who currently have cable service from Unless the Senator wishes to make the quorum call be rescinded. losing channels that they have grown additional comments, I intend to move The PRESIDING OFFICER (Mr. used to that are in their basic service. to table his amendment, but I will be ABRAHAM). Without objection, it is so We are very fearful that because of happy to let him have the last word, if ordered. the changes made in this bill, cable he wishes to do so. Mr. STEVENS. The Senator from companies will move certain channels The PRESIDING OFFICER. The Sen- California has two amendments. One is out of their basic tier of service, and ator from Nebraska. an amendment to the other. We have the public that has grown used to this Mr. KERREY. Mr. President, the last no objection to the motion she is going basic service will now be forced to pay word merely is that the Senator from to make to consolidate those amend- for these channels on a second tier. Alaska is right, I am not worried about ments. For example, there are many viewers the minimum requirement in 255. I If she wishes to take it up at this that in their basic service get stations think it needs to be strengthened. This time, we would be happy to do so on like CNN or TNT. What we are fearful amendment does precisely that, it at- the basis of a time agreement, 30 min- of—if we do not pass the Boxer-Levin tempts to strengthen the requirements utes to be divided, 20 minutes on the amendment—is that cable companies of 255 prior to being given permission side of the proponent, 10 minutes over will jettison stations like CNN or TNT for interLATA service. here, with no second-degree or other and tell the customers who have been Mr. STEVENS. The Senators’s defini- amendments in order. receiving those programs in their basic tion is the difference between us. We will have a vote on or in relation service that they will have to pay I move to table Kerrey amendment to the amendment following the vote extra. Now CNN and TNT will go into No. 1307, and I ask unanimous consent on the motion to table that has already another tier, and the people who have that the vote on this motion to table been agreed to. been watching them will have to now I ask unanimous consent that that be occur at 2:30 p.m. today and that there pay more. the agreement under which the Sen- be no second-degree amendments in It is very straightforward. What we ator takes up this amendment. order to the amendment prior to the are saying is, if you want to reduce the vote on the motion to table. The PRESIDING OFFICER. Is there objection? level of service that you currently have The PRESIDING OFFICER. Is there as a cable operator, you first need to objection? Without objection, it is so Mr. LEAHY. Reserving the right to object, and I shall not object, the dis- get approval from the local franchise ordered. authority, which is usually the board Mr. STEVENS. Mr. President, I ask tinguished senior Senator from Ne- of supervisors or the county commis- for the yeas and nays. braska and I, Mr. President, have a sioners or the city council or the The PRESIDING OFFICER. Is there a couple of amendments regarding the mayor. sufficient second? Internet that I think we can do in a There is a sufficient second. relatively short period of time. So we are taking, I think, in this The yeas and nays were ordered. I wonder if it might be possible for amendment, some commonsense steps. Mr. STEVENS. Mr. President, in these two Senators to then follow the We are saying before the competition view of the fact that there is approxi- amendment we just discussed. fully comes in, and we look forward to mately an hour left, I ask unanimous Mr. STEVENS. Mr. President, I say that day, before the competition really consent to lay this amendment aside to my friend that we have amendments comes in, for a period of 3 years—we until the time established for the vote already scheduled to come up for a vote have sunsetted this at 3 years—we on my motion to table, in the hope at 2:30. It is our hope we will have this want to protect the people who rely on someone might come forward with an- vote on Senator BOXER’s amendment cable. We want to protect them so they other amendment. right after that, and we would be do not suddenly find themselves with- The PRESIDING OFFICER. Without pleased to take up your amendments out channels that they have grown to objection, it is so ordered. following that, if the Senator would rely on and, in addition, they would Mr. STEVENS. I suggest the absence like to do so. have to spend more money to order of a quorum. Mr. LEAHY. Fine. these channels in another tier of serv- The PRESIDING OFFICER. The The PRESIDING OFFICER. Without ice. clerk will call the roll. objection, it is so ordered. I am very hopeful we will get broad The assistant legislative clerk pro- AMENDMENT NO. 1340 AND AMENDMENT NO. 1354 bipartisan support for this amendment. ceeded to call the roll. (Purpose: To preserve the basic tier of cable Because, whether Mrs. Smith or Mr. Mr. DORGAN. Mr. President, I ask services) Smith lives in Washington or Califor- unanimous consent that the order for Mrs. BOXER. Mr. President, I want nia or Michigan or South Dakota or the quorum call be rescinded. to thank the Senator from Alaska for Ohio, wherever they may live, they June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8323 may be finding out that they will sud- Competition is the answer. We all riod we all know when competition denly have to pay more for program- know that. The problem is there is cannot quite yet do the job. It has been ming they had on their basic rate. going to be an interim period here, and recognized in a number of ways in this Let me tell my colleagues what is that is why the Boxer amendment in bill. This amendment would be, if going to happen to Senators. Whether its second-degree portion which is now adopted, another recognition of the re- they are from California or Michigan part of the principal amendment has a ality that, until competition comes in, or South Dakota or Ohio—wherever 3-year statute of limitations on this we should have an interim period they are from—they are going to get provision. We recognize that competi- where we are going to protect consum- the call from that senior citizen who tion is intended to correct this prob- ers against the unintended con- has come to rely on that programming. lem. But we also recognize it is going sequences which otherwise might They will say, ‘‘Senator, why did you to be a period of time before competi- occur. not protect me? Why do I now have to tion effectively can do that. I congratulate my friend from Cali- pay extra money for CNN?’’ Then, if So, in order to avoid the, I believe, fornia. This is a straightforward you voted against Boxer-Levin, you unintended consequence of someone amendment. We hope the managers of will have to explain it. You will say, who currently is given basic cable at a the bill would accept this amendment ‘‘Well, Mrs. Smith, I thought competi- certain rate suddenly finding the chan- but, if not, we hope the Senate then tion would come in and you would not nels, that were previously part of that would adopt it on a bipartisan basis. get stuck.’’ basic cable, still subject to price regu- I yield the remainder of my time, if I Mrs. Smith will say, ‘‘Well, good, I lation, are now shifted out of that have any, and yield the floor. will send you my bill. You pay it. Be- basic cable into the unregulated upper The PRESIDING OFFICER. Who cause you should have protected me at tiers, this amendment is essential. yields time? least in a transition period and I de- That is the heart of it. It is a fairly The Senator from California. serve that protection. By voting straightforward amendment. It is a Mrs. BOXER. Mr. President, would against the Boxer-Levin amendment very proconsumer amendment, but it is the Chair inform the Senator how you left me exposed to a situation not only proconsumer. I think it is also much time she has remaining? where I lose programming and sud- a way of our carrying out our commit- The PRESIDING OFFICER. The Sen- denly have to pay more for it.’’ ment to our constituents. And that ator has 9 minutes. Mr. President, I retain the remainder commitment is we are going to con- Mrs. BOXER. I ask the Senator from of my time and yield 7 minutes to my tinue to regulate the basic cable. Yes, South Dakota if he is going to speak friend from Michigan, Senator LEVIN. the upper tiers are going to be deregu- either in favor of or opposing the The PRESIDING OFFICER. The Sen- lated but there is not going to be a sur- amendment of the Senator? ator from Michigan is recognized. prise. Mr. PRESSLER. I will be opposing Mr. LEVIN. Mr. President, I thank If you have been getting—and I em- the amendment. I ask the Chair, how my friend from California for taking phasize ‘‘if’’ you have been getting— much time do I have? the initiative on this bill. ESPN, or CNN or whatever on your The PRESIDING OFFICER. The Sen- The amendment she is offering real- basic cable, you are not going to find ator has the 10 minutes that was allo- ly, I believe, is intended to carry out suddenly that rug is pulled out from cated. the purpose of the bill. What the bill under you, those channels are suddenly Mr. PRESSLER. The parliamentary intends to do is deregulate the rates on removed to a higher tier. situation is that there is a vote sched- upper tiers. But as part of this com- Unless we adopt something like this uled at 2:30? promise, it is intended that the basic we are going to find our constituents The PRESIDING OFFICER. There is rate—the basic tier continue to be sub- coming to us and saying, ‘‘Wait a a vote scheduled at 2:30 p.m., tabling ject to regulation by the local fran- minute, I thought you said basic cable the Kerrey amendment. Mr. PRESSLER. Yes, I will be speak- chise authority. That is the structure was going to continue to be regulated ing against the amendment and I will of this bill. Basic tier is going to con- by the local franchising authority. offer a motion to table at some appro- tinue to be regulated. The upper tiers That was the representation you made. priate time. I could do that now and are going to be deregulated. That, it The local franchise authority was stack the vote, this next vote, if that seems to me, is quite an important de- going to continue to regulate basic would be agreeable to my friend? cision on the part of the sponsors of cable. I have been watching ESPN Mrs. BOXER. As long as the Senator this bill, and one that is a very reason- every night and all of a sudden, ESPN from California has 9 minutes to com- able decision. is not on my basic cable anymore. plete a presentation, we have no objec- But the problem then becomes, since What happened? That was supposed to tion and will be happy for the yeas and the upper tiers are deregulated, the continue regulated and now we find it nays on the motion. cable operator who currently shows, is in the higher tier. My basic cable, Mr. PRESSLER. I ask unanimous- for instance, ESPN as part of the basic which is all I get, does not have chan- consent that it be in order at this time, tier and provides it as part of the basic nels which I am accustomed to and and may I ask unanimous consent that rate would then have an incentive to which you folks said would continue to at 2:45, at the conclusion of the first move ESPN to a higher tier and out of be regulated.’’ vote, the Senate then proceed imme- the basic tier, unless this amendment So I think, in order for us to carry diately, and I will make a motion to is adopted. out what is the intention of this bill, table at that time, but that we con- I believe the sponsors of the language that it is necessary to have this transi- tinue to debate? in the bill would say it is their intent tion amendment that the Senator from Mrs. BOXER. Will the Senator repeat that the basic tier remain and that it California and I are offering to the the unanimous-consent request? remain regulated. I think that is the Senate. Again, it is a way I truly be- Mr. PRESSLER. First of all, I ask for intent of this bill. But there is a loop- lieve that carries out the intent of the the yeas and nays on this amendment. hole which we should close with this sponsors of this bill and the basic com- The PRESIDING OFFICER. Is there a amendment. That loophole is that, promise which they have reached, sufficient second? since the upper tiers are deregulated which is that we are going to continue There is a sufficient second. and therefore price is deregulated and to regulate or allow the local franchise, The yeas and nays were ordered. cable companies then can raise prices more accurately, to regulate the basic Mr. PRESSLER. I ask unanimous on upper tier, there would be an incen- cable while we are deregulating the consent that at the conclusion of the tive to move channels that are cur- upper tiers. first vote, it be in order to move to rently provided as part of the basic So, Mr. President, again, with the table the Boxer-Levin amendment. So cable out of basic cable into the upper sunset provision, I think that would we can have two back-to-back votes. tier, unless there is at least a period of address any concerns that regulation is The PRESIDING OFFICER. Is there a couple of years until competition going to continue after it is needed. It objection? comes in, which will take care of this is not going to be needed when com- Mrs. BOXER. I say to my friend, problem. petition takes over but there is this pe- there is no objection. S 8324 CONGRESSIONAL RECORD — SENATE June 14, 1995 The PRESIDING OFFICER. Without pricing of cable television, have been were getting. I say to my friend, the objection, it is so ordered. worked out very laboriously in the committee probably did not deal with Mr. PRESSLER. I will speak against committee, and again in the manager’s that issue because I cannot imagine this amendment, if I may do so now. amendment, and again in the leader- Senators want to have a situation I yield myself, Mr. President, 5 min- ship amendment. I think we have the where their phones are ringing off the utes. cable thing settled down, or at least I hook. The PRESIDING OFFICER. The Sen- hope so. Look, the Boxer-Levin amendment is ator may proceed. The Boxer-Levin amendment sup- supported by the Consumer Federation Mr. PRESSLER. Mr. President, I posedly prevents an operator from of America and it is supported by the urge Senators to vote ‘‘no’’ on the moving a popular service from a regu- Consumers Union. And I am saying Boxer-Levin amendment. The business lated basic tier and offering it on a less that for the 3 years that this bill is of cable TV has been much debated, regulated cable programming service— working its way through, let us protect and we have settled on a bipartisan ap- CPS—tier. But most such migration our consumers. Let us protect our rate- proach in the committee bill and it has has already occurred off the basic tier. payers, whatever State they happen to been settled by the Dole and Daschle The PRESIDING OFFICER. The be in. It is a very simple process. It is subsequent amendments and by leader- Chair wishes to inform the Senator a very simple amendment. Yes, when ship amendments. The cable TV issue that he has used 5 minutes of the 10 we have real competition in the cable should be left as it is in the bill. minutes. industry, there will not be any need for This amendment forbids a cable oper- Mr. PRESSLER. Thank you very the Boxer-Levin amendment. That is ator from taking any program service much. why we have sunsetted that amend- off basic service without approval of Mrs. BOXER. Mr. President, I under- the local franchising authority. We feel ment. stand my friend has reserved 4 or 5 My friend is concerned about giving strongly that would violate the spirit minutes at this time. local government too much power. On of the agreement that has been reached The PRESIDING OFFICER. He has 5 the one hand, I have my colleagues on on a bipartisan basis regarding cable minutes left. television pricing and cable television the Republican side saying that is Mrs. BOXER. I would like to at this where the power ought to be; not here servicing throughout the United time ask for 5 minutes so I may close States. in Washington but with the local the debate on my amendment. The Cable Act of 1984 specifically for- mayors, city councils, boards of com- The PRESIDING OFFICER. The Sen- bids authorities from specifying par- missioners, boards of supervisors be- ator may proceed. ticular services to be carried. I am very cause they are close to the people. And Mrs. BOXER. I appreciate that very touchy about giving any authority the this amendment, the Boxer-Levin ap- much, Mr. President. power to pick programming or the proach, gives them the ability to pro- I want to say to my friend from power of the mayor of the city, for ex- tect the people in their communities South Dakota that I thought he had a ample, to decide what is going to be in from being ripped off by a cable com- very thoughtful response to the Boxer- the local newspaper or what columns pany, and having to pay more for some- Levin amendment. But I want to take are going to be carried, and which thing they always got in their basic these issues one at a time in my hope newspapers are going to operate in that tier. that my colleagues are listening to this city, or what comic strip characters I reserve the remainder of my time. are going to be allowed in that particu- debate because I am putting up a warn- The PRESIDING OFFICER. Who lar city, or what editorial writers are ing flag to my colleagues that the first yields time? going to operate in that particular time a cable company moves CNN or Mr. PRESSLER. Mr. President, I area. TNT or ESPN off basic service, your yield myself my remaining 5 minutes. The Cable Act of 1984 did so to pro- phones are going to be lighting up. You That will give the Senator from Cali- tect the first amendment. It specifi- are going to have to explain why you fornia a chance to finish. cally prohibited franchising authori- did not protect your people. Let me say that I urge my colleagues ties, and it did so to protect the first The answer that my friend from to vote ‘‘no’’ on the Boxer-Levin amendment right to decide what to South Dakota puts forward is one that amendment because we have resolved carry. This amendment would take I take issue with. He says we have had the cable television issue, we have that away. It is a major reversal of a bipartisan approach to the cable part achieved a good compromise and a longstanding cable policy that care- of this bill. It has been settled. With all good settlement. But let me go on and fully balances the rights of cities and due respect, I say to my friend, it may say that the amendment supposedly operators. well be that there are Senators who are prevents an operator from moving a For instance, if a cable operator not on the committee of jurisdiction popular service in a regulated basic wanted to replace a home shopping who may have thought of the problem tier and offering it on a less regulated service with a news service, it could that Senators on both sides of the aisle cable programming service, a CPS tier. not do so without getting approval or, did not think about. But most such migration has already if it wanted to replace one classic This amendment does no violence at occurred off the basic tier. Only a few movie channel with another, it would all. I would characterize it as a transi- mostly smaller systems have large be forbidden unless the city agreed. tional ratepayer protection amend- basic tiers. The Senate bill already pro- The amendment is not needed to pro- ment. Why do I say transitional? It vides protection against higher prices tect the channel location of local only lasts for 3 years. If a cable com- on the CPS tier should an operator mi- broadcasters. They cannot be removed, pany wants to rip off a cable channel grate services and seek a steep rate in- in any case. The cable operator must that you have been watching and you crease. I think that is called the bad already carry local TV stations on the have been getting in your basic tier, actor provision that is in the legisla- basic tier. It is not needed to protect you have the ability to say to the local tion. access channels on basic, either. The franchising authority, please, take a The amendment is not needed to pro- Cable Act requires them to be carried look at this and see if it is fair. tect the channel location of local on basic along with broadcast signals, I say to my friend from South Da- broadcasters. I have already pointed and cities already can require these kota, if he has a farming family in out that they are already there and channels as a part of any franchise South Dakota and they are used to get- under the must-carry provisions. It is that is granted. ting a certain program on their basic not needed to protect access channels This amendment would freeze certain tier, and they are not extremely on basic tier, either. The Cable Act re- programming lineups on smaller sys- wealthy, and they are paying $20 a quires them to be carried on basic tems for no good reason except to give month for their basic service, and they along with broadcast signals, and cities cities editorial power over a cable oper- love the channels in their basic service already can require these channels as ator’s programming. and those channels are ripped away, part of any franchise that is granted. Mr. President, the cable agreement, then they have to pay another say $l5 The amendment freezes certain pro- or the agreements in relationship to or $10 a month for those channels they gram lineups on smaller systems for no June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8325 good reason except it gives cities edi- enhanced competition and consumer protec- I am a Senator. I have served here for torial power over a cable operator’s tion. By opening the marketplace to all com- 3 years. I served in the House of Rep- programming. petitors on equal terms and conditions, you resentatives for 10 years. I served on a Let me conclude by saying that I will ensure vigorous competition that will local board of supervisors for 6 years, think the Boxer-Levin amendment is deliver economic growth, improve services and lower prices to all Americans. and I swear when I go to a community not a good idea. We urge you to pass this legislation in its meeting now as a Senator people will It is a regulatory idea. This is sup- present form and without delay. raise their hand more about cable serv- posed to be a deregulatory bill. It is ice than almost anything else. Oh, they So they want this legislation, the said: What will the family do on the are interested in Bosnia. They care a small business people of America, and farm in South Dakota? I come from a lot about the big global issues, of self-employed Americans. And I have farm in South Dakota. There is a di- course. But nothing impacts their daily heard some people talking about lobby- rect satellite broadcasting competitive life more, it seems to me, than what ists out here. Of course there are lobby- alternative. There is going to be a they bring to a Senator regarding their ists everywhere. They have the right to video dial competitive alternative. We cable rates and the quality of their pro- petition our Government. But here, are going to have the electric utilities gramming. able to get into telecommunications. If signing these letters, we have 500 of the So I think we have a chance to stand we pass this bill, there is going to be so leading small businessmen of America up for the little people out there who much competition and so many alter- gathered in President Clinton’s offices look forward to these programs. And, native voices and sources that prices for a conference. The small business yes, maybe we are stepping on a few are going to collapse. There are going people of America are for this bill. toes of the cable people. But I am not to be more services available, and they They do not support over-regulation worried about them. Do you know what are going to be competitive. We do not such as the Boxer amendment. they did, the cable companies? From need regulation. The PRESIDING OFFICER. The Sen- 1984 to 1992, when they were unregu- For example, if we look at what has ator’s time has expired. lated, they raised basic cable service shown up in the last few years, the Mrs. BOXER. Mr. President, I yield rates by 40 percent. So at that time the Learning Channel, the History Chan- myself the remainder of my time. same arguments were heard: Oh, com- nel, even ‘‘MacNeil/Lehrer’’ has been I did not know the small business petition is around the corner. sold to a private company and is going people took a stand against the Boxer My friend talks about satellite to make additional public affairs pro- amendment, but I have to just say this dishes. I say to my friend from South grams for profit. to my friend. The Consumer Federation Dakota, maybe he does not know the Times are changing. There is more of America supports it, and there are 60 numbers. But only one-half of 1 percent competition out there, more alter- million cable subscribers. And I say to of consumers receive digital broadacast natives. The thinking of the 1950’s and my friend the minute a cable operator satellite service. So he can talk about 1960’s and 1970’s and 1980’s that regula- throws a station off of the basic his people in South Dakota getting sat- tion will bring things to smaller cities tier—— ellite service, but only one-half of 1 and rural areas is not necessarily true. Mr. PRESSLER. If my friend will percent can afford it. My State is a State of smaller cities yield—— Will they get it soon? Yes, they will and rural areas, but we will benefit Mrs. BOXER. I will yield on the Sen- get it soon. Yes, there will be more greatly from the telecommunications ator’s time. I do not have enough time; competition. And I applaud that. I love revolution. This bill will help small I am sorry. the thrust of the bill, that we are going business and small towns. I have with Mr. PRESSLER. I did not specifically to invite people in and have competi- me the signatures of 500 delegates to mean they were opposed to the Boxer- tion. But I have to warn my friends. the White House Conference on Small Levin amendment. They are for the bill Until that day that there is enough Business—meeting this week here in and the Boxer-Levin amendment would competition, that the satellite dishes Washington—telling about how much change the bill. But I should not say are affordable and everyone moves into this telecommunications bill will help that they are against the Senator’s this business, you are going to get the small business. More than 500 delegates amendment specifically. calls from your consumers, whether to the White House Conference on Mrs. BOXER. I thank the Senator. I they are in Kentucky or California or Small Business this week have written appreciate my friend clarifying that on North Carolina, South Carolina, Indi- to President Clinton urging him to sup- his time because I have so little time. ana, I do not care, Michigan, whatever. port our reform bill, S. 652. I think it is important not to confuse Mr. FORD. Will the Senator yield for We have heard a lot in this Chamber the debate. This is not about the whole just 1 minute? Mrs. BOXER. I will be glad to yield. about how corporate interests are in- bill, I say to my friend from South Da- fluencing this, and so forth. Occurring Mr. FORD. The Senator from Califor- kota. Let us not engage in overstate- nia used the rate increase of 40 percent. at this moment over at the White ment. This is a small provision, a small House is the small business conference, That was from GAO sending out a post- provision that deals with one issue. It card and asking you to respond. And and we have 500 of those delegates who is a transitional amendment. It says only those responded that had a very sent a petition urging that President let us protect the ratepayers for 3 low increased rate. Some areas went as Clinton support this bill and that the years, those people who sit in their high as 200 percent. And I can name Congress pass it quickly and that it homes and pay for cable and get cer- those to you. So 40 percent is a low fig- not put more regulation in it. But this tain channels in their basic tier. ure. And I think we ought to remember amendment is for more regulation. Under this bill, a cable company— Mr. President, I will read into the that and pay attention to the Senator’s and by the way, they are not a ‘‘bad amendment. RECORD portions of a letter to me from actor’’ if they do this because it is to- Mrs. BOXER. I thank my friend so the small business owners of America: tally allowable under the bill—can much. It means so much to me that he . . . strongly urging you to enact legisla- knock out several of those channels, sees there is merit in this amendment. tion that will open all telecommunications put them on another tier and charge Senator LEVIN and myself thought markets to full and complete competition, ensuring that all Americans enjoy the lower you for it, and you are sitting there long and hard, and we decided it was prices and innovative services that unfet- like a chump. I hope you will call your important to stand up for the consum- tered competition will produce. Senator and ask that Senator if they ers, protect the consumers so the cable We are pleased to present you with copies voted for Boxer-Levin, because we will companies, just in this 3-year interim of more than 500 letters to President Clinton protect you. I think we are doing the period, cannot pull out from under you from delegates to the White House Con- right thing for the small business peo- a basic, important channel that you ference on Small Business seeking White ple. I think we are doing the right have grown used to, that you have paid House support for Senator Pressler’s Tele- thing for the cable companies because communications Competition Deregulation for in your basic service, and charge Act, S. 652 . . . they sometimes do not know what they you more for it. Of all the solutions offered, S. 652 best are up against when they do this—the The PRESIDING OFFICER. The Sen- achieves the goal of streamlined regulation, outrage that will follow. ator’s time has expired. S 8326 CONGRESSIONAL RECORD — SENATE June 14, 1995 Mrs. BOXER. I thank my friend very ‘‘(n) PRESERVATION OF BASIC TIER SERV- Conrad Johnston Moynihan much. I yield the floor at this time. I ICE.—A cable operator may not cease to fur- Dodd Kennedy Murray nish as part of its basic service tier any pro- Dorgan Kerrey Pell hope Senators will support Boxer- Exon Kohl gramming that is part of such basic service Pryor Levin. Feingold Lautenberg Robb tier on January 1, 1995, unless the franchis- Feinstein Leahy VOTE ON AMENDMENT NO. 1307 Sarbanes ing authority for the franchise area con- Ford Levin The PRESIDING OFFICER. Under Simon cerned approves the action. This provision Graham Lieberman Snowe Harkin Mikulski the previous order, the question is on shall expire three (3) years after the date of Wellstone agreeing to the motion to lay on the enactment.’’ Inouye Moseley-Braun table amendment No. 1307, offered by AMENDMENT NO. 1340, AS MODIFIED ANSWERED ‘‘PRESENT’’—1 the Senator from Nebraska. The yeas The PRESIDING OFFICER. Under Mack and nays have been ordered. The clerk the previous order, amendment 1340 is NOT VOTING—1 will call the roll. modified by the language of amend- Jeffords The legislative clerk called the roll. ment 1354. The PRESIDING OFFICER. Are there The amendment (No. 1340), as modi- So the motion to lay on the table the any other Senators in the Chamber de- fied, is as follows: amendment (No. 1340), as modified, was siring to vote? agreed to. The result was announced—yeas 79, On page 71, between lines 2 and 3, insert Mr. DOLE. Mr. President, I want to the following: nays 21, as follows: urge my colleagues on both sides—if (d) PRESERVATION OF BASIC TIER SERVICE.— [Rollcall Vote No. 261 Leg.] Section 623 (47 U.S.C. 543) is further amended there are any amendments on this side, YEAS—79 by adding at the end the following: too—we want to try to complete action Abraham Feinstein McCain ‘‘(n) PRESERVATION OF BASIC TIER SERV- on this bill today. The chairman has Ashcroft Ford McConnell ICE.—A cable operator may not cease to fur- indicated his willingness to stay all Baucus Frist Mikulski nish as part of its basic service tier any pro- night and keep the hours running. Bennett Glenn Moseley-Braun gramming that is part of such basic service Biden Gorton Thirty hours will expire tomorrow at 4 Moynihan tier on January 1, 1995, unless the franchis- p.m. If we stay all night that would be Bond Gramm Murkowski ing authority for the franchise area con- Breaux Grams 4 p.m. Or, if we can get an agreement Nickles cerned approves the action. This provision Brown Grassley Nunn to vote final passage by 12 noon tomor- Bryan Gregg shall expire three (3) years after the date of Packwood Bumpers Harkin enactment.’’ row, otherwise, I think we may seri- Pressler Burns Hatch ously consider the first option—staying Pryor The PRESIDING OFFICER. The Sen- Byrd Hatfield all night. Rockefeller ator from South Dakota [Mr. PRES- Campbell Heflin I believe that most of the amend- Chafee Helms Roth SLER] is recognized to make a motion Santorum ments will be tabled. I do not know of Coats Hollings to table. Cochran Hutchison Sarbanes any serious amendments at all. Most of Mr. PRESSLER. Mr. President, I Cohen Inhofe Shelby the amendments are on the other side. Coverdell Jeffords Simpson move to table the Boxer amendment, There are still some 50 amendments Craig Johnston Smith and I ask for the yeas and nays. pending which is sort of par for the D’Amato Kassebaum Snowe The PRESIDING OFFICER. Is there a Daschle Kempthorne Specter course, so far. But we hope that if peo- sufficient second? DeWine Kennedy Stevens ple are serious about their amend- Dole Kerry Thomas There is a sufficient second. ments, they will offer them today so Domenici Kohl Thompson The yeas and nays were ordered. Dorgan Lott that we can dispose of this. Thurmond The PRESIDING OFFICER. The Exon Lugar Warner The managers have been on the floor Faircloth Mack question is on agreeing to the motion now for almost a week. They have done NAYS—21 to lay on the table the amendment. an outstanding job on both sides. They The yeas and nays have been ordered. Akaka Graham Lieberman are prepared to complete action on this Bingaman Inouye Murray The clerk will call the roll. bill late, late, late tonight. I urge my Boxer Kerrey Pell The legislative clerk called the roll. colleagues. Maybe some amendments Bradley Kyl Reid Mr. MACK (when his name was Conrad Lautenberg Robb will be accepted. I do not know what Dodd Leahy Simon called). Present. the status of many of these amend- Feingold Levin Wellstone Mr. LOTT. I announce that the Sen- ments are. But it would be our inten- So the motion to lay on the table the ator from Vermont [Mr. JEFFORDS] is tion to table every amendment from amendment (No. 1307) was agreed to. necessarily absent. now on unless the managers indicate AMENDMENT NO. 1340 AND AMENDMENT NO. 1354 The PRESIDING OFFICER (Mr. otherwise. The PRESIDING OFFICER. The GREGG). Are there any other Senators We are having a Republican con- clerk will report amendments 1340 and in the Chamber desiring to vote? ference. I will make that clear to them 1354. The result was announced—yeas 60, that, if we are going to finish this bill, The legislative clerk read as follows: nays 38, as follows: we have to have some discipline on this The Senator from California [Mrs. BOXER] [Rollcall Vote No. 262 Leg.] side to help table amendments for both and Mr. LEVIN proposes amendments num- YEAS—60 managers of the bill, not just the man- bered 1340 and 1354 thereto. Abraham Frist McCain ager on this side. The amendments are as follows: Ashcroft Glenn McConnell So I urge my colleagues to finish Baucus Gorton Murkowski AMENDMENT NO. 1340 today. If you want to agree to an Bennett Gramm Nickles On page 71, between lines 2 and 3, insert Bond Grams Nunn agreement, we will have final passage the following: Breaux Grassley Packwood no later than noon tomorrow. Other- (d) PRESERVATION OF BASIC TIER SERVICE.— Brown Gregg Pressler wise, I will leave it up to the managers. Section 623 (47 U.S.C. 543) is further amended Burns Hatch Reid Campbell Hatfield Rockefeller The chairman has indicated to me that by adding at the end the following: he prefers to stay here all night and ‘‘(n) PRESERVATION OF BASIC TIER SERV- Chafee Heflin Roth Coats Helms Santorum ICE.—A cable operator may not cease to fur- dispose of amendments between now Cochran Hollings Shelby and 4 o’clock tomorrow. nish as part of its basic service tier any pro- Coverdell Hutchison Simpson gramming that is part of such basic service Craig Inhofe Smith The PRESIDING OFFICER. Under tier on January 1, 1995, unless the franchis- D’Amato Kassebaum Specter the previous order, the Senator from ing authority for the franchise area con- Daschle Kempthorne Stevens Vermont is recognized. cerned approves the action.’’. DeWine Kerry Thomas Mr. LEAHY. Mr. President, while the Dole Kyl Thompson distinguished majority leader is on the AMENDMENT NO. 1354 Domenici Lott Thurmond Faircloth Lugar Warner floor, I note that many of us have been Strike all after ‘‘(d)’’ in the pending amendment and insert the following: NAYS—38 trying to work out a time agreement. There is cooperation on both sides of PRESERVATION OF BASIC TIER SERVICE.— Akaka Boxer Bumpers Section 623 (47 U.S.C. 543) is further amended Biden Bradley Byrd the aisle. For example, I am about to by adding at the end the following: Bingaman Bryan Cohen call up an amendment which will by June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8327 prearrangement have a second-degree competition shall not have the effect of (1) an evaluation of the enforceability with amendment by Senators EXON and using noncompetitive services to subsidize respect to interactive media of current COATS. We will keep that on a rel- competitive services.’’ criminal laws governing the distribution of atively short time agreement, and we Mr. PRESSLER. I urge adoption of obscenity over computer networks and the the amendment. creation and distribution of child pornog- will wrap that one up. I will also be raphy by means of computers; yielding to Senator KERREY, who has The PRESIDING OFFICER. Is there (2) an assessment of the Federal, State, an amendment which I understand is further debate? If not, the question is and local law enforcement resources that are going to be accepted. Senator BREAUX on agreeing to the amendment. currently available to enforce such laws; and I have been trying to work out one The amendment (No. 1310), as modi- (3) an evaluation of the technical means of the major issues, which I think both fied, was agreed to. available— Mr. EXON. Mr. President, I move to (A) to enable parents to exercise control sides agree is a major issue that must over the information that their children re- be debated, an intraLATA amendment, reconsider the vote. Mr. PRESSLER. I move to lay that ceive by interactive telecommunications to try to see if we can reach an area of systems so that children may avoid violent, agreement by which we would speed motion on the table. sexually explicit, harassing, offensive, and that one up. The motion to lay on the table was other unwanted material on such systems; Mr. President, with that, I yield, if I agreed to. (B) to enable other users of such systems might, to the Senator from Nebraska, Mr. LEAHY addressed the Chair. to exercise control over the commercial and The PRESIDING OFFICER. The Sen- noncommercial information that they re- Senator KERREY. ceive by such systems so that such users Mr. KERREY addressed the Chair. ator from Vermont. AMENDMENT NO. 1288, AS MODIFIED may avoid violent, sexually explicit, The PRESIDING OFFICER. The Sen- harassing, offensive, and other unwanted ma- (Purpose: To revise title IV of the bill and ator from Nebraska. terial on such systems; and Mr. KERREY. Mr. President, what is provide for a study of the legal and tech- (C) to promote the free flow of informa- nical means of restricting access to ob- the pending business? tion, consistent with the values expressed in scenity on interactive telecommunications the Constitution, in interactive media; and The PRESIDING OFFICER. The Sen- systems) ator from Nebraska is recognized. (4) recommendations on means of encour- Mr. LEAHY. Mr. President, I ask it aging the development and deployment of Mr. KERREY. Is there an amendment be in order to call up amendment No. technology, including computer hardware before the body? 1288. and software, to enable parents and other The PRESIDING OFFICER. There is The PRESIDING OFFICER. The users of interactive telecommunications sys- no amendment pending. clerk will report the amendment. tems to exercise the control described in sub- AMENDMENT NO. 1310, AS MODIFIED Mr. LEAHY. I will note while the paragraphs (A) and (B) of paragraph (3). (b) CONSULTATION.—In preparing the report (Purpose: Clarifies that pricing flexibility clerk is getting the amendment, it is under subsection (a), the Attorney General should not have the effect of using non- an amendment proposed by myself, shall consult with the Assistant Secretary of competitive services to subsidize competi- Senators MOSELEY-BRAUN, FEINGOLD, Commerce for Communication and Informa- tive services) and KERREY of Nebraska. tion. Mr. KERREY. Mr. President, I send The assistant legislative clerk read ‘‘SEC. 405. EXPEDITED CONGRESSIONAL REVIEW an amendment to the desk and ask for as follows: PROCEDURE. its immediate consideration, amend- ‘‘(a) REQUIREMENT OF LEGISLATIVE PRO- The Senator from Vermont [Mr. LEAHY], POSAL.—The report on means of restricting ment 1310. for himself, Ms. MOSELEY-BRAUN, Mr. access to unwanted material in interactive The PRESIDING OFFICER. The FEINGOLD, and Mr. KERREY, proposes an clerk will report. amendment numbered 1288. telecommunications systems shall be accom- Mr. KERREY. Mr. President, I ask panied by a legislative proposal in the form Mr. LEAHY. Mr. President, we are of a bill reflecting the recommendations of unanimous consent to modify the under postcloture, so I would ask unan- the Attorney General as described in the re- amendment in accordance with the imous consent that I may be allowed, port. agreement of both managers. on behalf of myself and the same co- ‘‘(b) IN GENERAL.—A legislative proposal The PRESIDING OFFICER. Is there sponsors, to modify my amendment. described in (a) shall be introduced by the objection? The PRESIDING OFFICER. Is there Majority Leader or his designee as a bill Mr. PRESSLER. Reserving the right objection? upon submission and referred to the commit- to object, and I will not object, I just tees in each House of Congress with jurisdic- Mr. PRESSLER. Reserving the right tion. Such a bill may not be reported before want to explain to the Members of the to object and I shall not object, this is the eighth day after the date upon which it Senate that it is unusual to allow an the modification—— was submitted to the Congress as a legisla- amendment in this cloture situation, Mr. LEAHY. Modifying the amend- tive proposal. but we view this as duplicative; we al- ment that is at the desk, I would tell ‘‘(c) DISCHARGE.—If the committee to ready have cross-subsidization, but we the distinguished manager. which is referred a bill described in sub- do not think it changes the nature of Mr. PRESSLER. I have no objection. section (a) has not reported such bill at the the bill, and we are prepared to accept The PRESIDING OFFICER. Without end of 20 calendar days after the submission this amendment. date referred to in (b), such committee may objection, it is so ordered. be discharged from further consideration of The PRESIDING OFFICER. Is there The amendment (No. 1288), as modi- such bill in the Senate upon a petition sup- objection to the unanimous consent re- fied, is as follows: ported in writing by 30 Members of the Sen- quest? Without objection, it is so or- On page 137, strike out line 7 and all that ate and in the House upon a petition sup- dered. The clerk will report the amend- follows through page 144, line 19, and insert ported in writing by one-fourth of the Mem- ment, as modified. in lieu thereof the following: bers duly sworn and chosen or by motion of The assistant legislative clerk read SEC. 402. OBSCENE PROGRAMMING ON CABLE the Speaker supported by the Minority Lead- as follows: TELEVISION. er, and such resolution shall be placed on the Section 639 (47 U.S.C. 559) is amended by appropriate calendar of the House involved. The Senator from Nebraska [Mr. KERREY] striking ‘‘$10,000’’ and inserting ‘‘$100,000’’. ‘‘(d) FLOOR CONSIDERATION.— proposes an amendment numbered 1310, as ‘‘(1) IN GENERAL.—When the committee to modified. SEC. 403. BROADCASTING OBSCENE LANGUAGE ON RADIO. which such a bill is referred has reported, or Mr. KERREY. Mr. President, I ask Section 1464 of title 18, United States Code, when a committee is discharged (under sub- unanimous consent that reading of the is amended by striking ‘‘$10,000’’ and insert- section (c)) from further consideration of amendment be dispensed with. ing ‘‘$100,000’’. such bill, it is at any time thereafter in The PRESIDING OFFICER. Without SEC. 404. REPORT ON MEANS OF RESTRICTING order (even though a previous motion to the same effect has been disagreed to) for a mo- objection, it is so ordered. ACCESS TO UNWANTED MATERIAL IN INTERACTIVE TELECOMMUNI- tion to proceed to the consideration of the The amendment is as follows: CATIONS SYSTEMS. bill. The motion is not subject to amend- On page 113, at the end of line 17, insert the (a) REPORT.—Not later than 150 days after ment, or to a motion to postpone, or to a following sentence: ‘‘Pricing flexibility im- the date of the enactment of this Act, the motion to proceed to the consideration of plemented pursuant to this section for the Attorney General shall submit to the Com- other business. A motion to reconsider the purpose of allowing a regulated tele- mittee on the Judiciary of the Senate and vote by which the motion is agreed to or dis- communications provider to respond to com- House of Representatives a report contain- agreed to shall not be in order. If a motion petition by repricing services subject to ing— to proceed to the consideration of the bill is S 8328 CONGRESSIONAL RECORD — SENATE June 14, 1995 agreed to, the bill shall remain the unfin- In lieu of the matter to be inserted, insert respecting restrictions for persons providing ished business of the respective House until the following: information services and access to informa- disposed of. SEC. OBSCENE OR HARASSING USE OF TELE- tion services— ‘‘(2) FINAL PASSAGE.—Immediately follow- COMMUNICATIONS FACILITIES ‘‘(1) No person shall be held to have vio- ing the conclusion of the debate on such a UNDER THE COMMUNICATIONS ACT lated subsections (a), (d), or (e) solely for bill described in subsection (a), and a single 1934. providing access or connection to or from a quorum call at the conclusion of the debate (a) OFFENSES.—Section 223 (47 U.S.C. 223) is facility, system, or network over which that if requested in accordance with the rules of amended— person has no control, including related ca- the appropriate House, the vote on final pas- ‘‘(1) by striking subsection (a) and insert- pabilities which are incidental to providing sage of the bill shall occur. ing in lieu thereof: access or connection. This subsection shall ‘‘(3) APPEALS.—Appeals from the decisions ‘‘(a) Whoever— not be applicable to an individual who is of the Chair relating to the application of ‘‘(1) in the District of Columbia or in inter- owned or controlled by, or a conspirator the rules of the Senate or the House of Rep- state or foreign communications with, an entity actively involved in the cre- ‘‘(A) by means of telecommunications de- resentatives, as the case may be, to the pro- ation, editing or knowing distribution of vice knowingly— cedure relating to a bill described in sub- communications which violate this section. section (b) shall be decided without debate. ‘‘(i) makes, creates, or solicits, and ‘‘(i) initiates the transmission of, ‘‘(2) No employer shall be held liable under ‘‘(e) CONSTITUTIONAL AUTHORITY.—This sec- this section for the actions of an employee or tion is enacted by Congress— any comment, request, suggestion, proposal, agent unless the employee’s or agent’s con- ‘‘(1) as an exercise of the rulemaking power image, or other communication which is ob- duct is within the scope of his employment of the Senate and House of Representatives, scene, lewd, lascivious, filthy, or indecent, or agency and the employer has knowledge respectively, and as such it is deemed a part with intent to annoy, abuse, threaten, or of, authorizes, or ratifies the employee’s or of the rules of each House, respectively, but harass another person; agent’s conduct. applicable only with respect to the procedure ‘‘(B) makes a telephone call or utilizes a ‘‘(3) It is a defense to prosecution under to be followed in that House in the case of a telecommunications device, whether or not subsection (a), (d)(2), or (e) that a person has bill described in subsection (b), and it super- conversation or communication ensures, taken reasonable, effective and appropriate sedes other rules only to the extent that it is without disclosing his identity and with in- actions in good faith to restrict or prevent inconsistent with such rules; and tent to annoy, abuse, threaten, or harass any the transmission of, or access to a commu- ‘‘(2) with full recognition of the constitu- person at the called number or who receives nication specified in such subsections, or tional right of either House to change the the communications: complied with procedures as the Commission rules (so far as relating to the procedure of ‘‘(C) makes or causes the telephone of an- may prescribe in furtherance of this section. that House) at anytime, in the same manner, other repeatedly or continuously to ring, Until such regulations become effective, it is and to the same extent as in the case of any with intent to harass any person at the a defense to prosecution that the person has other rule of that House. called number; or ‘‘(D) makes repeated telephone calls or re- complied with the procedures prescribed by ‘‘SEC. 405. ADDITIONAL PROHIBITION ON BILL- regulation pursuant to subsection (b)(3). ING FOR TOLL-FREE TELEPHONE peatedly initiates communication with a CALLS.’’ telecommunications device, during which Nothing in this subsection shall be construed Mr. LEAHY. Mr. President, I yield to conversation or communication ensues, sole- to treat enhanced information services as common carriage. the distinguished Senator from Ne- ly to harass any person at the called number braska. or who receives the communication; ‘‘(4) No cause of action may be brought in any court or administrative agency against Mr. EXON addressed the Chair. or ‘‘(2) knowingly permits any telecommuni- any person on account of any activity which The PRESIDING OFFICER. The Sen- cations facility under his control to be used is not in violation of any law punishable by ator from Nebraska is recognized. for any activity prohibited by paragraph (1) criminal or civil penalty, which activity the Mr. EXON. I thank my friend from with the intent that it be used for such ac- person has taken in good faith to implement Vermont and I thank the Chair. tivity, a defense authorized under this section or AMENDMENT NO. 1362 TO AMENDMENT NO. 1288, AS shall be fined not more than $100,000 or im- otherwise to restrict or prevent the trans- MODIFIED prisoned not more than two years, or both.’’; mission of, or access to, a communication specified in this section. (Purpose: To provide protections against and harassment, obscenity, and indecency to (2) by adding at the end the following new ‘‘(g) No State or local government may im- minors by means of telecommunications subsections: pose any liability for commercial activities devices) ‘‘(d) Whoever— or actions by commercial entities in connec- tion with an activity or action which con- Mr. EXON. Mr. President, I call up ‘‘(1) knowingly within the United States or in foreign communications with the United stitutes a violation described in subsection amendment No. 1362, which is at the States by means of telecommunications de- (a)(2), (d)(2), or (e)(2) that is inconsistent desk, and I am introducing this on be- vice makes or makes available any obscene with the treatment of those activities or ac- half of myself and Senator COATS. communication in any form including any tions under this section provided, however, The PRESIDING OFFICER. The comment, request, suggestion, proposal, or that nothing herein shall preclude any State clerk will report the amendment. image regardless of whether the maker of or local government from enacting and en- The assistant legislative clerk read such communication placed the call or initi- forcing complementary oversight, liability, as follows: ated the communications; or and regulatory systems, procedures, and re- ‘‘(2) knowingly permits any telecommuni- quirements, so long as such systems, proce- The Senator from Nebraska [Mr. EXON] for cations facility under such person’s control dures, and requirements govern only intra- himself and Mr. COATS, proposes an amend- to be used for an activity prohibited by sub- state services and do not result in the impo- ment numbered 1362 to amendment No. 1288, section (d)(1) with the intent that it be used sition of inconsistent rights, duties or obli- as modified. for such activity; gations on the provision of interstate serv- Mr. EXON. Mr. President, I ask unan- shall be fined not more than $100,000 or im- ices. Nothing in this subsection shall pre- imous consent that reading of the prisoned not more than two years or both. clude any State or local government from amendment be dispensed with. (e) Whoever— governing conduct not covered by this sec- Mr. LEAHY. Reserving the right to ‘‘(1) knowingly within the United States or tion. object, and I shall not object, Mr. in foreign communications with the United ‘‘(h) Nothing in subsection (a), (d), (e), or (f) or in the defense to prosecution under (a), President, am I correct this is in the States by means of telecommunications de- vice makes or makes available any indecent (d), or (e) shall be construed to affect or form of a second-degree amendment to communication in any form including any limit the application or enforcement of any my amendment? comment request, suggestion, proposal, other Federal law. The PRESIDING OFFICER. The image, to any person under 18 years of age ‘‘(i) The use of the term ‘telecommuni- Chair is trying to determine that. regardless of whether the maker of such cations device’ in this section shall not im- Mr. EXON. The amendment that I am communication placed the call or initiated pose new obligations on (one-way) broadcast offering is a second-degree amendment the communication; or radio or (one-way) broadcast television oper- to the Leahy amendment that is pend- ‘‘(2) knowingly permits any telecommuni- ators licensed by the Commission or (one- ing, am I correct? cations facility under such person’s control way) cable service registered with the Fed- to be used for an activity prohibited by para- The PRESIDING OFFICER. This eral Communications Commission and cov- graph (1) with the intent that it be used for ered by obscenity and indecency provisions amendment is a second-degree sub- such activity, elsewhere in this Act. stitute. shall be fined not more than $100,000 or im- ‘‘(j) Within two years from the date of en- Without objection, reading of the prisoned not more than two years or both. actment and every two years thereafter, the amendment is dispensed with. ‘‘(f) Defense to the subsections (a), (d), and Commission shall report on the effectiveness The amendment is as follows: (e), restrictions on access, judicial remedies of this section. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8329 ‘‘SEC. . OBSCENE PROGRAMMING ON CABLE Mr. PRESSLER. I wonder if I should Almighty God, Lord of all life, we praise TELEVISION. not try to reserve 10 minutes of time You for the advancements in computerized ‘‘Section 639 (47 U.S.C. 559) is amended by within that in case some Senator, from communications that we enjoy in our time. striking ‘$10,000’ and inserting ‘$100,000’. Sadly, however, there are those who are lit- ‘‘SEC. . BROADCASTING OBSCENE LANGUAGE whom we have not heard, feels an irre- tering this information superhighway with ON RADIO. pressible urge to make a speech. obscene, indecent, and destructive pornog- ‘‘Section 1464 of Title 18, United States Mr. LEAHY. Might I suggest this to raphy. Virtual but virtueless reality is pro- Code, is amended by striking out ‘$10,000’ and the Senator from South Dakota, that jected in the most twisted, sick misuse of inserting ‘$100,000’. the two managers each have 5 minutes sexuality. Violent people with sexual pathol- ‘‘SEC. . SEPARABILITY. of that time. ogy are able to stalk and harass the inno- ‘‘(a) If any provision of this Title, includ- Mr. PRESSLER. Fine. I do not in- cent. Cyber solicitation of teenagers reveals ing amendments to this Title or the applica- tend to use it, but someone may feel an the dark side of online victimization. tion thereof to any person or circumstance is Lord, we are profoundly concerned about held invalid, the remainder of this Title and irrepressible urge to make a speech. the impact of this on our children. We have the application of such provision to other Mr. LEAHY. That sometimes hap- learned from careful study how children can persons or circumstances shall not be af- pens, Mr. President, in this body. It is become addicted to pornography at an early fected thereby. rare, but it sometimes happens. age. Their understanding and appreciation of ‘‘SEC. . ADDITIONAL PROHIBITION ON BILLING Mr. PRESSLER. The Senator will ac- Your gift of sexuality can be denigrated and FOR TOLL-FREE TELEPHONE commodate them. eventually debilitated. Pornography dis- CALLS.’’ Mr. COATS. Mr. President, I also re- allowed in print and the mail is now readily The PRESIDING OFFICER. The Sen- serve the right to object. I wish to just available to young children who learn how to ator from Nebraska is recognized. clarify that in all of that request the use the computer. Mr. EXON. I ask in a spirit of moving Oh God, help us care for our children. Give Senator from Indiana will have an op- us wisdom to create regulations that will things along, I think there has been portunity to speak on the contingency general agreement among the prin- protect the innocent. In times past, You that—we are offering this together have used the Senate to deal with problems cipals that we could have a time agree- with the Senator from Nebraska, but of air and water pollution, and the misuse of ment on this matter and then a vote, on the contingency that in the event our natural resources. Lord, give us courage and I would like to ask my friend from the amendment, the Exon-Coats to balance our reverence for freedom of Vermont if he is prepared to propose amendment is defeated, I would like to speech with responsibility for what is said the unanimous consent agreement that and depicted. have 5 minutes or so of that time be- Now, guide the Senators when they con- we all had agreed to. fore a vote on the underlying amend- Mr. LEAHY. Mr. President, if the sider ways of controlling the pollution of ment. computer communications and how to pre- Senator will yield, I will soon pro- Mr. EXON. I am happy to agree to serve one of our greatest resources: The pose—let me just outline what I pro- that. minds of our children and the future and pose—we agree to have a 2-hour time Mr. COATS. I do not object. moral strength of our Nation. Amen. agreement evenly divided between the Mr. PRESSLER. I just want to be Mr. President, that is the end of the Senator from Nebraska and myself on a sure to protect the rights of Senators quote of the Chaplain of the Senate second-degree amendment, with a 20- who may be in committee. They are that I referenced earlier. minute time agreement evenly divided having two or three markups. This sub- If in any American neighborhood an between the Senator from Nebraska ject is of great concern to our Nation individual were distributing porno- and myself on the underlying Leahy, et and to a lot of Senators who may be in graphic photos, cartoons, videos, and al amendment, with the understanding, a markup at this moment who want to stories to children, or if someone were of course, that either or both sides speak. I am sure the managers will posting lewd photographs on lampposts could yield back time. work them in for 5 minutes and per- and telephone poles for all to see, or if So with that understanding, I ask haps the Senator from Indiana could children were welcome to enter and unanimous consent that there be a 2- help allocate that time. browse adult book stores and triple X hour time agreement on the Exon Mr. COATS. It is certainly not un- rated video arcades, there would be a amendment evenly divided, at the expi- heard of that Senators might have an public outrage. I suspect and I hope ration of which or the yielding back of irrepressible urge to speak on this or that most people, under those cir- time there be a vote on or in relation any other amendment. cumstances, would immediately call to the Exon amendment, and then, if Mr. PRESSLER. I have no objection. the police to arrest and charge any per- the Exon amendment is not adopted, Mr. LEAHY. I hope as the time goes son responsible for such offenses. we go to the underlying Leahy amend- on perhaps the points will be made and I regret to report that these very of- ment with a 20-minute time agreement we may be able to yield back time and fenses are occurring everyday in Amer- evenly divided, with a vote following not use it all. ica’s electronic neighborhood. It is not on or in relation to it. The PRESIDING OFFICER. Is there right to permit this type of activity in The PRESIDING OFFICER. Is there objection? Without objection, it is so your neighborhoods and it is not right objection? ordered. to ignore such activities via a child’s Mr. EXON. Merely a matter of clari- Who yields time? computer. fication. Did I understand the Senator Mr. EXON addressed the Chair. Section 402 of the Communications from Vermont to include that after we The PRESIDING OFFICER. The Sen- Decency Act, that I have just offered finish the 2 hours equally divided or ator from Nebraska. on behalf of myself and my colleague yielded back, we would have a vote at Mr. EXON. Mr. President, I wish to from Indiana, Senator COATS, a version the end of that time? thank my fine colleague from Indiana of that, which has been slightly amend- Mr. LEAHY. That was part of the for all the help he has been and for a ed, was approved by the Senate Com- unanimous consent, Mr. President; on lot of work we have put in on this. I merce Committee and added to S. 652, the understanding that if the Exon would be glad to yield to him for what- the Telecommunications Competition amendment was defeated, then, of ever time he wants to begin debate or, and Deregulation Act that stands for a course, we would go to the underlying if he wishes me to proceed, I will do so simple proposition; that is, the laws Leahy amendment. If it was not, then at this time. which already apply to obscene, inde- obviously the underlying Leahy Mr. President, I yield myself 10 min- cent, and harassing telephone use and amendment would be moot. utes. the use of the mails should also apply The PRESIDING OFFICER. Is there Mr. President, I would like to start to computer communications. That is objection? out this debate by reading a prayer the heart and soul of our amendment. Mr. PRESSLER. Reserving the right that was offered by the Chaplain of the Not only are children being exposed to object, and I shall not, perhaps I Senate on Monday, June 12, that I hope to the most perverted pornography and should—— will guide us once again. It was so inappropriate communications, but Mr. LEAHY. Let me add that no much on point to what this Senator adults are also being electronically other amendments be in order prior to and the Senator from Indiana and oth- stalked and harassed. the disposition of these amendments ers are attempting to do that I think it I have had the opportunity to share under the unanimous consent request. is worthy of repetition: with several Members of the Senate, on S 8330 CONGRESSIONAL RECORD — SENATE June 14, 1995 both sides of the aisle, what I refer to mate privacy rights. The revision also deal. They knew that, periodically, I as the ‘‘blue book.’’ When I have shown provides strong protection for children. might read something that they prob- this to Members on both sides of the Mr. President, these revisions also ably wished I would not, but they got aisle, there has been shock registered, make it certain that provisions of the me to read and read and read. It helped obviously, on the faces of my col- Communications Decency Act in no me through college, it helped me leagues, shock because few understand way adversely affect the well-litigated through law school, it helped me what is going on today with regard to dial-a-porn statutes generally referred through my days as a district attorney, the pollution of the Internet. I cannot to as 47 U.S.C. 223 (b) and (c). and it certainly helped me become a and would not show these pictures to The Communications Decency Act is U.S. Senator. the Senate. I would not want our cam- not a panacea. What the legislation I also use Internet. I do town meet- eras to pick them up. But I think they will do is give law enforcement new ings on the Internet. I correspond with probably are best described by some tools to prosecute those who would use people around the world with the other material that has come to my at- the computer to make the equivalent Internet. I call up information I need tention by people who are strongly sup- of obscene telephone calls, to prosecute and plan trips to other countries. I call porting our proposition. It says: electronic stalkers who terrorize their up information and maps, and so on. I Warning. Do not open until further in- victims, to clamp down on the elec- find it is a most marvelous tool. Some- structions. Offensive material enclosed. Keep tronic distributors of obscene mate- body raised the question about some- out of reach of children. rials, and to enhance the chances of thing in Australia the other day, and I I hope that all of my colleagues, if prosecution of those who would provide could click into the Internet and pull they are interested, will come by my pornography to children via the com- up something from a country thou- desk and take a look at this disgusting puter. sands of miles away, instantaneously. material, pictures of which were copied Parents, teachers and law enforce- Now, I have not seen the things on off the free Internet only last week, to ment should not be lulled into a false the Internet—I do not doubt that they give you an idea of the depravity on sense of security. Their vigilance will are there—that the Senator from Ne- our children, possibly our society, that still be required even after this much- braska speaks of. I am six-foot-four, is being practiced on the Internet needed legislation is enacted into law. and I looked over the shoulders of a today. This is what the Coats-Exon New voice, video, data and imaging op- huddle of Senators going through the amendment is trying to correct. tions will soon enter every home or be blue book of the Senator from Ne- Mr. President, it is no exaggeration available to America’s children and braska. I saw one page of it, but I do to say that the most disgusting, repul- neighborhood schools and libraries. not care to see that kind of filth. I also sive pornography is only a few clicks This information revolution will give know that I use the Internet probably away from any child with a computer. Americans unprecedented opportuni- more than most, and I have not been I am not talking just about Playboy ties to enrich their lives, gain knowl- able to find some of these things. But I and Penthouse magazines. By compari- edge, and enhance their productivity. do not question that they are there. I son, those magazines pale in offensive- This legislation attempts to make do worry about the universal revulsion ness with the other things that are the information superhighway a little for that kind of pornography—I assume readily available. I am talking about bit safer for families and children to it is universal in this body—and that the most hardcore, perverse types of travel. The time to act is now. Delay we not unnecessarily destroy in reac- pornography, photos, and stories fea- only serves those who would endanger tion what has been one of the most re- turing torture, child abuse, and bestial- the Nation’s children and those who markable technological advances, cer- ity. use the new technology to distribute tainly in my lifetime—the Internet. These images and stories and con- obscene materials or use the secrecy of It has grown as well as it has, as re- versations are all available in public the computer medium to harass others. markably as it has, primarily because spaces free of charge. If nothing is done I urge my colleagues to stand up for it has not had a whole lot of people re- now, the pornographers may become families and children and vote for the stricting it, regulating it, and touching the primary beneficiary of the informa- Communications Decency Act. Let us it and saying, do not do that or do this tion revolution. put politics aside and work together to or the other thing. Can you imagine if I am the first to admit that solutions protect the children. it had been set up as a Government en- to this problem are not easy ones. It I yield the floor. tity and we all voted on these regula- requires careful balance which protects Mr. LEAHY addressed the Chair. tions for it? We would probably be able legitimate use of this exciting new The PRESIDING OFFICER. The Sen- to correspond electrically with our technology, respects the Constitution ator from Vermont is recognized. next-door neighbor, if we ran a wire and, most importantly, provides the Mr. LEAHY. Mr. President, I yield back and forth, and that would be it. maximum protection possible for myself whatever time I may consume. Had we had the Government involved America’s families and America’s chil- Nobody in here would disagree with every step of the way and had us en- dren. the fact that we want to keep hardcore gaged in micromanaging it every step After months of discussion, negotia- pornography away from our children. I of the way, we would not have the tions, and research, I am pleased to am the proud parent of three children, Internet that we have today. offer the Exon-Coats refinement of the and the proud father-in-law of three I think there is a better way to reach Communications Decency Act provi- others. I cherish the time when those the goal that the Senator from Ne- sions included in the committee-re- children were growing up. braska and I share. The goal is—and I ported bill. This modification rep- I had the advantage of growing up in yield to nobody in this body—to keep resents a carefully balanced response a family where we learned to read at an really filthy material out of the hands to growing concerns about inappropri- early age. My parents had published a of children. ate use of telecommunications tech- weekly newspaper when I was a child Maybe we can do it the same way my nologies. and owned a printing business through- parents did. They guided me when we In committee, the decency provisions out the time I was growing up until my read. We have software that can allow were refined to clarify and to focus on adult life when they retired. parents to know what their children wrongdoers and to avoid imposing vi- They read to us as children and en- see on the Internet. Maybe some day carious liability on innocent informa- couraged our reading. By the time I we will accept the fact that there is tion service and Internet access provid- was 4 years old, I was reading books ac- some responsibility on the part of par- ers who simply act as the mailmen, if tively. By the time I finished third ents, not on the part of the U.S. Con- you will, for computer messages. The grade, I had read all of Dickens and gress to tell children exactly what they modification now before the Senate most of Robert Louis Stevenson. I say should do and read and see and talk further clarifies that the proposed leg- that not to brag but because it hap- about as they are growing up. Maybe islation does not breach constitu- pened with the encouragement of my mothers and fathers ought to do what tionally protected speech between con- parents. They guided me; they encour- mine did and what my wife and I did senting adults nor interfere with legiti- aged me to read and to read a good with our children. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8331 In that regard, Mr. President, I also rectly after them. Let us find out how Sunday by James Gleick, titled, ‘‘This suggest that if we are going to get in- we do that without destroying the Is Sex?’’ be printed in the RECORD. volved, maybe we should allow the Internet. There being no objection, the mate- elected Members of this body to do it. For example, the first part of the rial was ordered to be printed in the I was concerned when I heard the new amendment from the Senator from Ne- RECORD, as follows: Chaplain. I have not had a chance to braska and the Senator from Indiana [From the New York Times Magazine, June meet him. Some day I will. After lis- would make it a felony not only to 11, 1995] tening to his prayer, it seems like he send obscene messages to another per- THIS IS SEX? was part of the debate. It reminds me son, but apply the same penalty to (By James Gleick) of his predecessor who gave a long, sending an e-mail message with inde- At first glance, there’s a lot of sex on the long prayer here shortly after the ar- cent or filthy words that you hope will Internet. Or, not at first glance—nobody can rest of O.J. Simpson saying that he annoy another person. find anything on the Internet at first glance. worried about poor O.J. Simpson’s For example, if someone sends you an But if you have time on your hands, if you’re state of being, and that we should pray annoying e-mail message and you re- comfortable with computing, and if you have for him and hopefully he would feel OK. spond with a filthy four-letter word, an unflagging curiosity about sex—in other you may land in jail for 2 years with words, if you’re a teen-ager—you may think Some of us suggested that maybe there you’ve suddenly landed in pornography heav- ought to have also been prayers for the $100,000 fine. If you picked up the phone en. Nude pictures! Foul language! Weird two people that were murdered. I do and did the exact same thing, you are bathroom humor! No wonder the Christian not mean in any way to suggest who perfectly OK. But if you type it out and Coalition thinks the Internet is turning into committed the crime. But I recall sug- send it to the person electronically, no a red-light district. There’s even a ‘‘Red gesting that maybe if we are going to matter how annoyed you might be, Light District’’ World Wide Web page. have the chaplains interject them- tough. So we explore. Some sites make you prom- selves into public debate, they may I do not think under this amendment ise to be a grown-up. (O.K.: you promise.) a computer user would be able to send You try ‘‘Girls,’’ a link leading to a com- want to be evenhanded enough, at puter at the University of Bordeaux, France. least, to pray for those who have died a private or public e-mail message with The message flashes back: Document Con- and not just for somebody who may be the so-called seven dirty words. Who tains No Data. ‘‘Girls’’ at Funet, Finland, a wealthy ex-football star. knows when a recipient would feel an- seems to offer lots of pictures (Dolly Parton! By the same token, I suggest to the noyed by seeing a four-letter word on- Ivana Trump!)—Connect Timed Out. ‘‘Girls,’’ Chaplain—who may be a very fine man, line? courtesy of Liberac University of Tech- for all I know—that perhaps he should The second part of the amendment nology, Czech Republic, does finally, with allow us to debate these issues and de- makes it a felony to send or receive painful slowness, deliver itself of a 112,696- termine how they come out and maybe over computer networks any obscene byte image of Madchen Amick. You could material. There is no requirement that watch it spread across your screen, pixel by pray for our guidance, but allow us to tantalizing pixel, but instead you go have debate them. He may find that he has the person soliciting and receiving the lunch during the download, and when you re- enough other duties, such as composing material knew it was obscene. turn, there she is—in black-and-white and a prayer each morning for us, to keep In other words, you click on your wearing clothes. him busy. Internet—and you can go through These pictures, by the way, are obviously The concern I had in my amend- thousands and thousands of words—and scanned from magazines. And magazines are ment—my amendment speaks to the find out that something you called up the ideal medium for them. Clearly the bat- need to have a real study of just how expecting it to be innocent is not, you tle cry of the on-line voyeur is ‘‘Host Con- tacted—Waiting for Reply.’’ we do this. I suggest one way, of could be prosecuted for receiving it With old Internet technology, retrieving course, is to have the kind of software under this statute. and viewing any graphic image on a PC at that is now available, where parents I think that goes too far. I think that home could be laborious. New Internet tech- can find out exactly who their children could be far better worded. I think that nology, like browsers for the Web, makes all have been corresponding with or what if we had the Justice Department study this easier, though it still takes minutes for they have been looking at on the the area and make recommendations the typical picture to squeeze its way Internet. Parents can make it very that we then act upon within a very through your modem. Meanwhile, though, clear that if you want to use the com- short period of time, which is also in ease of use has killed off the typical pur- my amendment, I think it would be far veyor of dirty pictures, capable of serving puter, there are certain areas you do hundreds of users a day but uninterested in not go into. better. handling hundreds of thousands. The Conser- It is the same way we do it today. A What I worry about is not to protect vatoire National des Arts et Me´tiers has parent can say, hey, you are going to pornographers. Child pornographers, in turned off its ‘‘Femmes femmes femmes je bring books home and there are certain my mind, ought to be in prison. The vous aime’’ Web page. The good news for things that are going to be off limits— longer the better. I am trying to pro- erotica fans is that users are redirected to a at least at your age. It is not that tect the Internet, and make sure that new site where ‘‘You can find naked women, much different just because they might when we finally have something that including topless and total nudity’’; the bad really works in this country, that we news is that this new site is the Louvre. be able to call up the books, or what- The Internet does offer access to hundreds ever, at home. That is no different than do not step in and screw it up, as some- of sex ‘‘newsgroups,’’ forums for discussion calling up the books from the corner times happens with Government regu- encompassing an amazing spectrum of inter- bookstore. I suspect that a number of lation. ests. They’re easy to find—in the newsgroup these things are available there. When it came out that I was looking hierarchy ‘‘alt.sex’’ (‘‘alt’’ for alternative) My bill would require the Attorney for an alternative approach, one that comes right after ‘‘alt.sewing.’’ And yes, General, in consultation with the Na- would allow the Justice Department to alt.sex is busier than alt.sewing. But quite a tional Telecommunications Informa- find a way to go after pornographers few of them turn out to be sham and self-par- tion Administration of the Department but to protect the free use of the ody. Look at alt.sex.fish—practically noth- ing. Alt.sex.bestiality—aha! just what Jesse of Commerce, to transmit to the Judi- Internet, I received these petitions al- Helms fears most—gives way to ciary Committees in the Senate and in most immediately. alt.sex.bestiality.hamster.duct-tape, and fas- the House of Representatives a report Every page of this stack of docu- cinating as this sounds, when you call it up of evaluating current laws and re- ments that I am holding has dozens you find it’s empty, presumably the vestige sources for prosecuting online obscen- and dozens of names from across the of a short-lived joke. ity and child pornography. Internet. These are people saying yes, Alt.sex.bondage.particle-physics is followed If pornographers are out there, pros- that is the way to do it. Find out how by alt.sex.sheep.baaa.baaa.baaa.moo—help! ecute them. I have voted, as most of us to go after the pornographers, but keep Still, if you look hard enough, there is gro- tesque stuff available. If pornography doesn’t have, to go after them. As a former our Internet working. There were 35,000 bother you, your stomach may be curdled by prosecutor and as a parent, I find them petitions, in a matter of days. the vulgar commentary and clinical how-to’s the most disgusting people. In that regard, Mr. President, I ask in the militia and gun newsgroups. Your What they do to our children is ter- unanimous consent that an article in local newsstand is a far more user-friendly rible, allowing authorities to go di- the New York Times magazine this source of obscenity than the on-line world, S 8332 CONGRESSIONAL RECORD — SENATE June 14, 1995 but it’s also true that, if you work at it, you in. Meanwhile, if gun-wielding extremists Times Mirror. can find plenty on line that will disgust you, wish to discuss the vulnerable points in the Mr. LEAHY. I yield the floor, and I and possibly even disgust your children. anatomy of F.B.I. agents, they too can do so. This is the justification for an effort in reserve the balance of my time. At least the rest of us can listen in on them, Mr. EXON. Mr. President, I yield 10 Congress to give the Federal Government too. Perhaps there is a grain of consolation tools to control the content available on the there—instead of censorship, exposure to the minutes to the Senator from Indiana. Internet. The Communications Decency Act, light. Anyway, the only real alternative now Mr. COATS. Mr. President, I want to making its way through Congress, aims to would be to unwire the Information Super- start by thanking my colleague from transform the obscene-phone-call laws into a highway altogether. Nebraska for his interest in this sub- vehicle for prosecuting any Internet user, Mr. LEAHY. I would note a couple ject and for his willingness to work bulletin-board operator, or on-line service things from the article. It points out with me and our staff in putting to- that knowingly makes obscene material available. that it is a sad reality for Federal au- gether what I think is an important As originally written, the bill would not thorities that they cannot cut off por- piece of legislation, and a very effec- only have made it a crime to write lewd E- nographers without forcing the middle- tive piece of legislation. mail to your lover; it would also have made man—the on-line services of the United Obviously, it is a difficult task, bal- it a crime for your Internet provider to States—to do the work of censorship. ancing first amendment rights with transmit it. After a round of lobbying from That work is a practical impossibility. protections that go toward placing re- the large on-line services, the bill’s authors A typical Internet provider carries strictions, in reasonable ways, so that have added ‘‘defenses’’ that could exempt particularly children are not recipients mere unwitting carriers of data, and they more than 10,000 groups. As many as say it is children, not consenting adults, 100 million new words go through them of obscene or indecent material. they aim to protect. Nevertheless, the legis- every day. Are we going to have a Mr. President, sometimes our tech- lation is a historically far-reaching attempt whole new group in the Justice Depart- nology races beyond our ability to stop at censorship on a national scale. ment checking these 100 million new and reflect. We are left with a very The Senate authors of this language do not words to find out if they are wrong? dangerous gap, a period of time when use E-mail themselves, or browse the Web, or Some of the words might appear, just society is unprepared to deal with the chat in newsgroups, and their legislation re- looking at their listings, to be some- results of such rapid change. That is flects a mental picture of how the on-line world works that does not match the reality. thing wild. There may, in fact, be noth- the situation we face with the Internet. The existing models for Federal regulation ing there. The Internet is a tool of great poten- of otherwise protected speech—for example, The article notes a listing for tial. censorship of broadcast television and prohi- ‘‘Femmes, Femmes, Femmes’’, a Senator LEAHY has said it opens a bition of harassing telephone calls—come French word for women. If you call up new world of opportunity. It has be- from a world that is already vanishing over the listing, it is a catalog to the come, without, I believe, anybody spe- the horizon. There aren’t three big television Louvre in Paris. Somebody has a sense cifically planning it or anticipating it, networks now, serving a unified mass mar- of humor. But it gives everyone an it has become one of the largest dis- ket; there are thousands of television broad- tributors of pornography in the world. casters serving, ever-narrower special inter- idea. Is this person suddenly going to ests. And on the Internet, the number of be under investigation because of his or One study found more than 450,000 broadcasters is rapidly approaching the num- her sense of humor? pornographic images and text files are ber of users: uncountable. I am about to yield the floor, Mr. available to anyone with a modem. With Internet use spreading globally, most President, and reserve the balance of This vast library of obscenity and inde- live sources of erotic images already seem to my time. Before I do that, I ask unani- cency was accessed 6.4 million times in be overseas. The sad reality for Federal au- mous consent to have printed in the just the last year. thorities is that they cannot cut those off RECORD a list of groups ranging from Now, we need to make sure what we without forcing the middlemen—on-line are talking about here. We are not services in the United States—to do the the Association of American Publishers work of censorship, and that work is a prac- to the American Library Association, talking about what most people now tical impossibility. Any teen-ager with an the Newspaper Association of America, have images in their mind as to what is account on Prodigy can use its new Web to the Times Mirror, all of whom sup- available off the Internet. I looked at browser to search for the word ‘‘pornog- port my idea of a study in finding a the Senator’s blue book, and I would raphy’’ and click his way to ‘‘Femmes better way of doing this. urge every Senator to look at that be- femmes femmes’’ (oh, well, better luck next There being no objection, the mate- fore they make a final decision on what time). Policing discussion groups presents rial was ordered to be printed in the we are doing here. It is important to the would-be censor with an even more hope- understand the kind of material that is less set of choices. A typical Internet pro- RECORD, as follows: available. Everything imaginable. We vider carries more than 10,000 groups. As SUPPORTERS OF LEAHY STUDY are talking about images and text that many as 100 million new words flow through Association of American Publishers (AAP). them every day. The actual technology of Association of American University Press- deal with the sexual abuse of children. these discussion groups is hard to fathom at es (AAUP). We are talking about images and words first. They are utterly decentralized. Every The Faculty of the City University of New and sexual abuse of infants. new message begins on one person’s com- York. By one estimate about a quarter of puter and propagates outward in waves, like Interactive Working Group. the images available involve the tor- a chain letter that could eventually reach Online Operators Policy Committee of the ture of women. We are dealing in every mailbox in the world. Legislators Interactive. would like to cut off a group like many, many cases with perversion and Services Association. brutality beyond normal imagination alt.sex.bondage.particle-physics at the American Advertising Federation. source, or at its home—but it has no source American Association of Advertising Agen- and beyond the boundaries of a civil so- and no home, or rather, it has as many cies. ciety. homes as there are computers carrying American Library Association. These facts are clear, because it is newsgroups. American Society of Newspaper Editors. available now in the Internet, and we This is the town-square speech the First Association of National Advertisers, Inc. have pictures of it if anybody wants to Amendment was for: often rancorous, some- Association of Research Libraries. see it, or copies of the text that is times harsh and occasionally obscene. Voices Business Software Alliance. available on the Internet. do carry farther now. The world has never Center for Democracy and Technology. been this global and this intimate at once. Computer and Communications Industry There is one more fact that ought to Even seasoned Internet users sometimes for- Association. move the Senate from great and deep get that, lurking just behind the dozen visi- Direct Marketing Association. concern to immediate action here ble participants in an out-of-the-way Electronic Frontier Foundation. today. That is the fact that the newsgroup, tens of millions of potential Feminists For Free Expression. Internet is the one area of communica- readers can examine every word they post. Magazine Publishers of America. tion technology that has no protection If a handful of people wish to share their Media Access Project. at all for children. private experiences with like-minded people National Public Telecomputing Network. in alt.sex.fetish.hair, they can do so, effi- Newspaper Association of America. Now, we face a somewhat unique, dis- ciently—the most fervent wishes of Congress People for the American Way Action Fund. turbing and urgent circumstance, be- notwithstanding—and for better or worse, Recreational Software Advisory Counsel cause it is children who are the com- they’ll have to learn that children can listen Software Publishers Association. puter experts in our Nation’s families. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8333 My generation—I have not figured What used to outrage us now be- Mr. President, all we are saying is, if out how to use the VCR yet. I have a comes almost commonplace. They have you are in the business of providing blinking 12 I do not know how to get invaded our homes. They have invaded this material, you have to provide bar- rid of. It is the children today who are the minds of our children. I think they riers so it does not get in the hands of trained from almost kindergarten on, have numbed us to the shock that used children. If you are an adult who wants on how to access the computer. to be present when this kind of mate- to receive this material, you have to They have technology available at rial was exposed. call up and get it. You have to sub- their fingertips that most adults do not This is an issue beyond partisanship. scribe to it. You have to prove you are have. Sometimes in the interest of It is sponsored by a Democrat and Re- an adult before you receive it. helping with their homework or for the publican. I hope our concern will unite What would our amendment do? It development of our children, we place people across the ideological spectrum. would clean up the Internet. We ban the computer either in a special room A vote for the Exon-Coats amendment obscenity. And we require that inde- or even in their bedrooms. is a way to side with women endan- cency be walled off so children cannot Of the 6.8 million homes with on-line gered by rape and violence, to side with have access. accounts currently available, 35 per- children threatened by abuse, to side We also require commercial on-line with families concerned about the in- cent have children under the age of 18. services to adopt this standard. If they nocence of their children and the de- The only barriers between those chil- wish to provide indecent material, they cency of our culture. have to make what we call an effective, dren and the material—the obscene and The question, in my mind, is not if indecent material on the Internet—are good-faith effort to segregate it from we should act but what we should we access to children and, as the Senator perfunctory onscreen warnings which do. I believe the Exon-Coats amend- inform minors they are on their honor from Nebraska has said, we protect ment is a serious, thoughtful answer to women and children from sexual preda- not to look at this. The Internet is like that question. It is carefully crafted to taking a porn shop and putting it in tors who use this technology to harass be constitutional, to address the con- and to stalk. the bedroom of your children and then stitutional questions. But it is also de- saying ‘‘Do not look.’’ Critics of the amendment are going signed to leave pornographers on the to say it will cripple or close the I think anybody who is a parent un- Internet, who would provide their ma- Internet. Nothing could be further derstands that is a pretty difficult situ- terial to children, with no place to from the truth. Our legislation in- ation to enforce. That really is a mis- hide. cludes reasonable protections for busi- carriage of the responsibility that I The approach we are taking has been nesses and service providers who act in think adults hold to our society, to our legally upheld in the dial-a-porn stat- good faith to shield children from inde- children in our society. utes. It extends that approach, which cency. We provide defenses for those We have all read the worst abuses of has already proven its worth, to this who do nothing more than merely pro- this new technology. Children, not re- new technology. vide access to the Internet. This means alizing the danger, give out their What we are doing here is not new. that small businessmen and others who names, their addresses, their phone What we are doing here is not some- simply have a computer in their office numbers to people they meet over the thing that has not been debated before are not going to be subjected to the Internet. They become easy targets for this body. We are taking the standards penalties when that computer is mis- sexual abuse. Recently, one man, in an adopted by the Senate, by the Con- used. It is important to note that both attempt to find out just how difficult a gress, signed into law, that apply to the chamber of commerce, representing problem this was, posed—typed in on the use of these kinds of communica- business, and a number of national the computer—posed himself as a 13- tions over the phone wires and applied family groups concerned about pornog- year-old. In the course of one evening it, now, over the computer wires. It is raphy, have both endorsed this legisla- on-line he was approached by more just simply a different means of bring- tion. They have understood we have de- than 20 pedophiles. ing a communication into a home— through the computer rather than fined an approach that is strong but I suggest that, as difficult and as hor- reasonable and realistic. rendous as these stories are, the effect through the phone. We are taking the same standards. Critics may also charge the stand- of this kind of material, this kind of ards we have set are too high and this practice is far broader. It does not turn This Senate, on November 16, 1989, voted 96 to 4 to adopt these standards; will force businesses to deny children all who see it into rapists and killers, access to the Internet entirely, but but it does kill something about our 96 Members of the Senate have already voted to adopt these standards and that is not true. That is a scare tactic, spirit, particularly the spirit of our not an argument. Our legislation sim- children. I think we have always felt a apply it to the telephone communica- tion of obscenity and indecency. All ply provides the same protections for special responsibility and obligation to Senator EXON and I are trying to do is children that currently exist in every defend childhood through parents, apply those same standards now to this other sector of our society. through society; to make it, to the best new means of reaching into our homes. Pornographic magazines today can- extent we can, a safe harbor of inno- The bottom line is simple. We are re- not be sold to minors. Telephones cence. It is a privileged time to develop moving indecency from areas of today cannot be used to provide inde- values in an environment that is not cyberspace that are easily accessible to cent messages to minors. But magazine hostile to our children. children. If individuals want to provide stores and telephone companies are But the Internet has invaded that that material, they have to do so with alive and well. They still succeed be- protected place and destroys that inno- barriers to minors. If adults want ac- cause the reasonable efforts that we cence. It takes the worst excesses of cess to the material, they have to ask in the interests of children are not sexual depravity and places it directly make an affirmative, positive effort to crippling demands. into the child’s bedroom, on the com- get it. Mr. President, one of the most urgent puter that their parents purchased in Let me repeat that. That is the criti- questions in any modern society is how the thought it would help them do cal part of this bill. We are simply say- we humanize our technology, how we their homework or develop their intel- ing here if you are in the business of make it serve us instead of corrupt us. lect. When sexual violence and gross providing this material, you have a re- America is on the frontier of human indecency are available to anyone at sponsibility, and it is punishable by knowledge but it is incomplete without the touch of a button, both an individ- penalty of law if you violate that re- applying human values. ual or a culture become desensitized. It sponsibility—I ask the Senator for 5 One of our most important values is is not always that people emulate this additional minutes. the protection of our children, not only material, but often you can become im- Mr. EXON. I wish to yield whatever the protection of their bodies from vio- mune to it. The images and messages additional time the Senator from Indi- lence but the protection of their minds act like a novocaine on our national ana requires. and souls from abuse. conscience. They numb our capacity Mr. COATS. I thank the Senator We cannot and we should not resist for outrage. from Nebraska for the additional time. change. But our brave new world must S 8334 CONGRESSIONAL RECORD — SENATE June 14, 1995 not be hostile to the innocence of our The language, as modified, now works, prohibiting indecency to minors children. The Exon-Coats amendment makes it a criminal offense, punishable without impacting constitutionally is a reasonable amendment. I hope that by up to 2 years in prison and/or a protected communications between Members will support it. $100,000 fine, to knowingly make, cre- adults must be carefully tailored. I am pleased to join the Senator from ate, or solicit and initiate the trans- One of the most popular services Nebraska in offering it to the Senate mission of, or purposefully make avail- accessed via the Internet is USENET, a for its consideration. able any indecent—I emphasize the series of interactive bulletin boards, I yield the floor. word ‘‘indecent’’—communication, re- news groups, and other participatory Mr. FEINGOLD addressed the Chair. quest, suggestion, proposal, image, or forums which are dedicated to different The PRESIDING OFFICER. Who other communication to a person under topics. They are literally thousands of yields time? 18 years of age. these groups available on computer Mr. LEAHY. Mr. President, unless That would appear, on its face, to be networks and they are used widely for the distinguished Senator from Ne- within the scope of the Government’s discussion of everything from current braska is seeking recognition, I yield 20 authority to regulate indecent speech events such as the legislation we are minutes to the distinguished Senator directed at minors. The Supreme Court discussing today to completely obscure from Wisconsin. in the Pacifica Foundation case and subjects. They are used for recreation, The PRESIDING OFFICER. The Sen- entertainment, business, research, and ator from Wisconsin is recognized. other decisions has made it clear that the State may well have an interest in many other purposes. Mr. FEINGOLD. I thank the Chair. Users participating in those Mr. President, I rise in support of the prohibiting indecency to minors. newsgroups may simply read the mes- amendment offered by the Senator However, I, along with my colleague sages or they may post their own. from Vermont, and I am pleased to be from Vermont, continue to have con- There is no way to know who will be a cosponsor of the amendment because cerns about this provision. We share the goal of this provision, but disagree reading your message. I think that is the right approach. I op- Since it is possible that any minor pose the second-degree amendment of- on the means to achieve that end. The crux of the problem, however, is whose home computer can access the fered by the Senator from Nebraska. Internet would also have access to the But I first want to applaud the Sen- that due to the unique nature of inter- public bulletin board, one could make ator from Nebraska, Senator EXON, for active telecommunications systems, the case that the adult posting the so- his concern about the need to protect attempts to prohibit indecent speech to called indecent message did so knowing children from obscene and indecent minors on these networks raises ques- tions of constitutionality. that a minor might see the message. material. Thus, if this legislation became law, No one has done more than he to The Supreme Court, in the Sable de- cision, made it clear that any attempts an adult participant on a bulletin raise the awareness of parents, edu- board who posted a profane message cators, and legislators about the need to regulate indecent communications directed at minors must take into ac- using some of the ‘‘seven dirty words’’ to address the problem of materials on on any subject could be subject to computer networks that may not be count the medium being used and the least restrictive means to achieve the criminal penalties of up to 2 years in appropriate for children. One needs prison or a $100,000 fine, if a minor goal of prohibiting indecency to mi- only to ‘‘surf the net’’ bulletin boards, might read the message posted on that nors. Thus, under Pacifica, offensive read newspapers, periodicals, and listen bulletin board. to broadcast media to know that the works could be banned from radio This threat of criminal sanctions question of obscenity and indecency on broadcasts during certain hours be- could have a dramatic chilling effect computer networks is one of the hot- cause there was, in effect, no other less on free speech on interactive tele- test topics around. The Senator for Ne- restrictive means of preventing minors communications systems, and in par- braska is responsible for the debate on from being exposed to such materials. ticular, these newsgroups and bulletin In contrast, Sable struck down broad this important issue and I applaud his boards accessed through the Internet. very genuine concern, his good inten- Federal legislation seeking to ban cer- Quite simply, adults will have to watch tions, and hard work to protect chil- tain communication via the telephone what they say on these forums. dren. because there were alternative, less re- Let me provide an example of how I have children of my own, and there strictive means available. The Federal that might occur. According to an arti- are materials available through the statute in the Sable case was finally cle in the Phoenix Gazette earlier this Internet that would not be appropriate upheld when it was modified to require year, a large computer bulletin board for them. Some of those materials providers of sexually explicit telephone was raided by the Arizona State De- skirt the boundaries of indecency or services, the so-called Dial-A-Porn partment of Public Safety and the obscenity and other materials, while services, to adopt mechanisms such as local police for providing obscene ma- not indecent, are of an adult nature credit card authorization or other terial on their service. While months that my children may not have the ma- means of verifying age to prevent mi- later the operators of that service had turity to understand at their age. nors from accessing such services. not yet been charged, it was reported So I, too, want to find methods to In other words, where alternative that ‘‘The crackdown had a chilling ef- allow parents to protect their children means are available to block access by fect on providers of on-line services. from material on computer networks minors to these services, those meth- Within days, operators of similar which they view as inappropriate with- ods must be implemented rather than boards removed obscene files or elimi- out trampling on first amendment denying adults their constitutionally nated public access to them.’’ rights of the users of interactive tele- protected right to such material. Now, Mr. President, there is no issue communications systems. The proposed amendment not only raised when the legitimate law enforce- I regret to say that I do not believe adopts an approach that is not the ment efforts to enforce anti-obscenity the Senator from Nebraska has revised least restrictive, it has the potential to laws and ordinances have a chilling ef- the language as reflected in this sec- retard significantly the development of fect on the distribution of obscene ma- ond-degree amendment, which achieves this new type of interactive tele- terials. Under a constitutional inter- that end. communications. pretation in our country, obscenity The Senator from Nebraska has gone CHILLING EFFECT ON CYBERSPACE SPEECH does not have the same constitu- a long way to revise the language of I am concerned that this legislation tionally protected status as the Communications Decency Act to will have a chilling effect on constitu- nonobscene speech. allay the concerns of antipornography tionally protected speech on inter- However, Senator EXON’s bill would groups, civil liberties organizations, active communication networks, po- likely have a chilling effect on pro- and law enforcement officials who tentially slowing the rapid techno- tected speech—or speech which may be raised objections to the bill. His efforts logical advances that are being made perceived to be indecent, but not ob- to accommodate his colleagues only in this new technology. scene. underscore his commitment to the wel- Because of the unique nature of Communication between adults fare of our children. interactive telecommunications net- through the Internet would likely be June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8335 reduced to the lowest common denomi- prison. Many of these bulletin boards interactive telecommunications sys- nator—that which is appropriate for for adults would simply cease to exist. tems often bear a greater resemblance children. Mr. President, that is not free Would the threat of criminal sanc- to the print media, the fact remains speech. tions and the unclear nature of an in- that these interactive telecommuni- INDECENCY DEFINED BY COMMUNITY STANDARDS decency standard have a chilling effect cations systems have some entirely Second, Mr. President, the threat of on free speech via computer networks? unique characteristics which need to be criminal sanctions despite a user’s lack I say it will. You bet it will. considered. of control over, or knowledge of, who Adults will be forced to self-censor It is a unique form of media posing views his/her message, is of additional their words, even if they did not intend differing challenges and opportunities. concern given that indecency is defined those words for children and even if Unlike broadcast or print media, an in- based on community standards. they are protected by the first amend- dividual on the Internet can be both a The definition of indecency for com- ment. communications recipient and origina- Mr. President, the use of computer puter networks hasn’t been fully ex- tor simultaneously. Congress needs to networks holds tremendous potential plored. For broadcast media, FCC has understand these differences before we for the expansion of public dialog and defined indecency as ‘‘language or ma- can determine how best to protect chil- discourse advancing the value of the terial that, in context, depicts or de- dren and the constitutional rights of first amendment. It is an industry that scribes in terms patently offensive as Americans. is growing by leaps and bounds. measured by contemporary community SUPREME COURT ADDRESSES CONSTITUTIONAL- The business, educational, and social ITY OF CONTENT REGULATION BASED ON CHAR- standards for broadcast medium, sex- welfare potential of the information ual or excretory activities or organs’’— ACTERISTICS OF THE MEDIUM superhighway is almost without limit. The way in which the Supreme Court including the so-called seven dirty It would be devastating to limit the po- has dealt with obscenity and indecency words. tential of this medium by taking steps questions as they relate to the first The nature of interactive tele- that could have the effect of silencing amendment has a lot to do with the communications makes even the ‘‘com- its users. structural characteristics of the me- munity standard’’ and entirely dif- DIFFERENT STANDARDS FOR THE SAME dium in question. ferent matter. As a bulletin board user MATERIALS The Supreme Court has taken into you may not even be aware of who will An additional concern, Mr. President, consideration the scarcity of the me- be reading your communication, let is that this legislation will establish dium as a public resource as well as the alone where they are located for pur- different standards for material which ability of the user to control the mate- poses of figuring out what a commu- appears in print and on the computer rial he or she might view over the me- nity standard might be. screen. The legislation would make dium. The print media has been af- It is unclear what would constitute a certain individuals subject to criminal forded a greater degree of first amend- community standard for indecency? penalties if they made their materials ment protection because of the decen- Whose community? That of the and publications available on computer tralized and nonintrusive nature of the initiator or that of the recipient? Will networks to which minors had access. medium. Newspapers are inexpensive to all free speech on the Internet be di- However, that same material, the same produce and to purchase, virtually un- minished to what might be considered message would be perfectly legal, and limited in number, and are decent in the most conservative com- fully protected under the Constitution, noninvasive—that is, it is easy for a munity in the United States? in a bookstore, or a library. If a minor consumer to avoid the media if they An article in the San Diego Union- stumbled across, or purposefully wish. Tribune in February of this year docu- sought, indecent materials in a book- Broadcasting, which uses the scarce mented a case in which a Tennessee store and simply looked at that mate- public spectrum and which is more dif- court convicted a California couple of rial, the author of that material would ficult to control from an end-user violating obscenity laws with their sex- not be subject to criminal penalties nor standpoint, has not enjoyed the same ually explicit bulletin board based and would the bookstore or library that protection as print media. It is easier operated in California. The jury ap- stocked the material. to come across indecent or offensive plied the community standards of I urge my colleagues to keep in mind material while flipping through the Memphis because the materials from that many published works are avail- channels on your television. Broadcast the bulletin board were downloaded able over the World Wide Web through spectrum is also limited so courts have there. the Internet. There is even a ‘‘Virtual upheld content regulation to ensure Again, in the case of obscenity, the Library’’ on the World Wide Web. that public resources furthered the community standard is of less concern Therefore it is entirely conceivable public interest. because obscene speech is not pro- that we would have two separate stand- Interactive communications are dif- tected. But in S. 652, we are prohibiting ards for legality of the same works ferent, Mr. President. There is a great- protected speech, so-called indecent published in the print media and on er ability on computer networks to speech. The uncharted community electronic communications systems. avoid materials end users do not wish standards for indecency pose a risk Civil liberties advocates point out to receive than exists for either broad- that few users will be willing to bear. that under this bill it is possible that cast media or telephony, but arguably INDECENCY PROVISIONS COULD MAKE ILLEGAL an individual who makes available less than exists in print media. SOCIALLY VALUABLE FORUMS electronically the novels such as ‘‘Lady Users of the Internet and other on- Based on the definition which has Chatterley’s Lover,’’ ‘‘Catcher in the line functions typically do not stumble been applied to broadcast media, we Rye’’ by J.D. Salinger, or the many across information, but go out surfing could declare the content of many bul- novels of Kurt Vonnegut such that for materials on a particular subject. letin boards indecent—including those they are potentially accessible to mi- As such, they use search words, mes- containing medical and academic dis- nors, could be subject to criminal pen- sage headings, and the so-called gopher cussions, on-line support groups where alties while could be found in any li- as their guide. Most newsgroups or bul- users discuss the trauma of sexual and brary and bookstore. Why the different letin boards that have sexually explicit physical abuse, or bulletin boards standard? materials are named such that there which contain information on sexually INTERACTIVE MEDIA’S UNIQUE TECHNOLOGICAL can be little doubt what types of mate- transmitted diseases and AIDS and CHARACTERISTICS MUST BE CONSIDERED rials one might encounter if you try to how one might prevent them. The fundamental flaw in the lan- get into that area. Arguably, while the content is of a guage proposed by Senator EXON is RESTRICTION OF PROTECTED SPEECH JUSTIFIED mature nature, these types of forums that it attempts to regulate computer TO SERVE COMPELLING GOVERNMENT INTER- have tremendous social value. How- networks as we regulate broadcasting EST ONLY FOR LEAST RESTRICTIVE MEANS ever, if minors gained access to these and telephones when it has little in In addition to characteristics of scar- services, those making the indecent common with either of them. Although city and user control, the Supreme comment could be subject to 2 years in the materials transmitted through Court has allowed the abridgement of S 8336 CONGRESSIONAL RECORD — SENATE June 14, 1995 protected speech based on certain cri- which supplies 20 elementary and sec- bombing regarding the use of computer net- teria. Over the years, the Court has ondary schools with restricted one-way works to disseminate hate literature that carefully examined two factors when access to USENET discussion groups could incite violence. determining the extent to which con- through the Internet. The company The government moves concern free-speech advocates, who prefer a technological fix. tent shall be subject to government does not make available the news ‘‘We don’t have to rely on the government to controls without violating the first groups on USENET which may be inap- attempt to censor everything on the amendment: propriate for children. That company is Internet,’’ said Daniel Weitzner, deputy di- Whether there is a compelling gov- realizing that the simple service of not rector of the Center for Democracy and ernment interest to abridge protected providing access to all the USENET Technology, a civil-liberties group that tes- speech; services has been a marketing advan- tified at last week’s hearings. Users have no Whether abridgement is accom- tage for them. control of broadcast media, other than to plished in the least restrictive means. The PRESIDING OFFICER. The Sen- change channels or turn it off. But in Mr. President, while the Supreme cyberspace, ‘‘SurfWatch is a great example ator has now used 20 minutes. of the flexibility and user control that is in- Court has recognized that there may be Mr. FEINGOLD. I ask that I be yield- herent in interactive media,’’ Mr. Weitzner a compelling government interest in ed 5 minutes. said. shielding minors from indecent com- Mr. LEAHY. I yield the Senator 5 On-line services such as Prodigy Services munications, I do not believe that the minutes. Co. only grant Internet access to children provision in the Exon bill will serve The PRESIDING OFFICER. The Sen- with parental permission. Jostens Inc. re- that interest in the least restrictive ator is recognized for 5 additional min- cently released software for schools that al- means. The provision, while appearing utes. lows teachers to block electronic bulletin to apply only to minors, will in fact re- Mr. FEINGOLD. Mr. Krol states in boards that contain pornographic pictures. SurfWatch’s Mr. Friedland said the soft- strict the free speech of adults. his book, when explaining the tech- ware contains the Internet addresses of com- The interactive electronic commu- nical needs of Internet users: puters storing sexually explicit material, nications market is growing and the No matter what level you’re at, Internet blocking a user’s attempt to access those technology is evolving rapidly. Con- access always comes via an access provider; computers. But such porno-troves often are a trary to what others might contend, it an organization whose job it is to sell moving target: once users find out about is not clear that there are not adequate Internet access. them, those computers tend to get over- technical means available to parents He further indicates that Internet whelmed by traffic, shut down and move and service providers to screen out ob- service providers are participating in a elsewhere on the network and take a new ad- competitive market. That means the dress. jectionable material for children. To counter that problem, SurfWatch will There is currently software available opportunity exists to solve at least charge users a subscription fee for software which allows parents and employers to part of the problem through the mar- updates that include new offending Internet screen out objectionable services or ketplace today, not through govern- addresses. The company is using a database newsgroups on the Internet. On-line mental prohibitions. to search the Internet for words such as service providers also have the ability None of the technical safeguards ‘‘pornography’’ and ‘‘pedophilia’’ and make a to provide parents with a choice of available, such as blocking software list of Internet sites, which won’t be visible what types of information their chil- and provider screening, are perfect, but to users. dren should access. Schools and univer- the nice thing is they do not violate Mr. FEINGOLD. Mr. President, clear- sities that provide the service of con- the first amendment. ly there are ways parents can exact nection to the Internet can also decide Mr. President, I ask unanimous con- control over what their children can which types of news groups on sent to print an article in the RECORD access on their home computers. It is USENET they will make available. from the Wall Street Journal describ- clearly preferable to leave this respon- Carnegie-Mellon University recently ing some of these technologies. sibility in the hands of parents, rather made offensive-news groups less acces- There being no objection, the article than have the Government step in and sible to students by taking their names was ordered to be printed in the assert control over telecommuni- off their master list. RECORD, as follows: cations. Whenever there is a choice be- I want to clarify one other technical [From the Wall Street Journal, May 15, 1995] tween Government intervention and matter. The Senator from Nebraska NEW SOFTWARE FILTERS SEXUAL, RACIST empowering people to make their own presented a chart which indicated that FARE CIRCULATED ON INTERNET decisions, we ought to try first to use one’s home computer is connected di- SURFWATCH PROGRAM ADDRESSES RENEWED the situation of the approach that in- rectly to the Internet. CYBERSPACE FEARS FOLLOWING OKLAHOMA volves less Government control of our That is not always accurate, Mr. BLAST lives. President. In many cases, users need to (By Jared Sandberg) It is also not clear that existing access first a remote computer or con- Think of it as a parental hand shielding criminal statutes are incapable of en- nect with an access provider. children’s eyes from the evils of cyberspace. forcing laws to protect children on In some cases, that service provider That’s the gist of a software program de- interactive telecommunications. There is an online service, like Prodigy or veloped by SurfWatch Software Inc., a Los have been many reports of prosecution America On-Line. Other services mere- Altos, Calif., start-up. The program, ex- of illegal activity related to the trans- pected to be released today, will allow ly provide the connection services, Internet users to block sexually oriented mission of obscenity using interactive much like a common carrier to the data transmitted via the global computer telecommunications. home users. network. So, Mr. President, I do not even Why is this a crucial distinction? Be- ‘‘The goal is to allow people to have a think it is clear we do not have the au- cause it makes clear there are ways to choice over what they see on the Internet by thority today to prosecute online ob- control what one receives on a com- allowing them to filter or block sexually ex- scenity. The truth is we just do not puter. Because the access provider acts plicit material,’’ said Jay Friedland, know at this point. We need more in- as an intermediary between the user SurfWatch’s vice president of marketing. Mr. formation. However, it is entirely clear Friedland said the software will also allow and the Internet, they can also elimi- users to filter out files such as bomb-making to me that Congress certainly should nate access to certain services. Many manuals and neo-Nazi screeds, which have not abridge constitutionally protected of those Internet access providers are been circulated by hate groups on the speech if there are less restrictive already recognizing the market poten- Internet. means of serving the compelling Gov- tial of providing parents and schools A growing number of firms are racing to ernment interest. with the opportunity to control the ac- provide tools to filter out pornographic and To conclude, that is why I strongly cess of children to some services on the racist fare stored on the Internet before the support, as an alternative, the efforts network. And I am not just talking government takes action itself. The proposed of the Senator from Vermont. This telecommunications-reform bill before the about the big ones like Prodigy and Senate makes it illegal for individuals and amendment requires an expeditious CompuServe. I am talking about corporations to put sexually explicit mate- evaluation by the Department of Jus- Siecom, Inc., which is an Internet serv- rial on the Internet. Last week, the Senate tice of the technology available now to ice provider in Grand Rapids, MI, held hearings in the wake of the Oklahoma allow parents to protect their children June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8337 from objectionable materials while up- amendment unless they felt it had ade- Thank you for your attention to our con- holding the values of the first amend- quate constitutional safeguards. cerns. ment. The Attorney General must also At this time, Mr. President, I ask Sincerely, evaluate whether existing laws are ade- unanimous consent that the following BRIAN C. LOPINA, Director, quate to enforce criminal laws govern- letters in support of the Exon-Coats Governmental Affairs Office. ing obscenity. amendment be printed in the RECORD. This study, which has to be com- The first is from the Christian Coali- NATIONAL COALITION FOR THE pleted within 5 months, will provide tion headed: ‘‘Senators EXON and PROTECTION OF CHILDREN & FAMILIES, Congress with the information we need COATS Have Joined the Efforts. Sup- Cincinnati, OH, June 13, 1995. before we consider legislation. Given port the Exon-Coats Antipornography Hon. JAMES EXON, the first amendment issues at stake Amendment.’’ And we have the support U.S. Senate, here, I believe the Judiciary Commit- of that organization. Washington, DC. tee of the Senate should also be given Next, a letter from the National Coa- DEAR SENATOR EXON: I am writing you on an opportunity to review this matter. I lition for the Protection of Children behalf of the National Coalition for the Pro- do not, in theory, object to some legis- tection of Children & Families to offer our and Families that has essentially the strong support for your willingness to intro- lation. same message in different words. duce an amendment, along with Senator I simply want to work with my col- Next, Mr. President, a reference that Coats, to the Telecom legislation dealing leagues to determine how best to pro- Senator COATS made earlier in his ex- with the problem of children’s access to por- tect children, while at the same time cellent presentation. I pause for just a nography on computer networks. We believe protecting the rights of Americans to moment to thank him for all of his that such legislation is vital to the well being free speech. help and cooperation and for the excel- of our nation’s most important resource, its I will close with these remarks from lent, forthright, factual statement he children. an article in the Federal Communica- made in explaining what we are at- Unless the problem of computer pornog- tions Law Journal by Prof. Fred Cate. raphy is addressed now, millions of children tempting to do and how seriously we will have access to the worst and most vio- In the article, he discussed how elec- consider this to be. That is why we are lent forms of pornography via computer net- tronic communications have changed acting. Senator COATS mentioned the works and the Internet. Currently, almost the way we communicate and have chamber of commerce supports this any child with access to the Internet can even greater potential to revolutionize legislation. I have a letter from the quickly download and view bestiality, tor- communications. He stated: chamber of commerce that I likewise ture, rape, mutilation, bondage, necrophilia If 60 years of the Communications Act of will include in the unanimous-consent and other unspeakable acts. The pornog- 1934 has taught us nothing else, it must cau- request. raphy industry has opened up a free store on the Internet and invited our children to get tion against excluding communications Next is the Family Research Council, media from the full protection of the first whatever they want. Pornographers have no along the same general line. right to hijack Cyberspace, which offers a amendment. To do so with today’s electronic Next is a news release from the Na- information technologies would create an ex- host of promising technologies which should ception that would make the rule of freedom tional Law Center for Children and be available to children and families without of expression meaningless. Families, of Fairfax, VA, that follows fear of encountering violent, degrading por- the same general category. nography. Our society now faces a fundamen- Mr. President, I believe the Exon Last but not least, a news release tal choice of whether we really believe that amendment, unfortunately, does create from Women of America Say ‘‘Enough the Internet is a public network where chil- such an exception, and I urge my col- dren will be welcome, or rather, one which Is Enough.’’ leagues to oppose this language and belongs just to pornographers and their con- I ask unanimous consent that those support, as an alternative, the amend- sumers. letters be printed in the RECORD. ment of the Senator from Vermont. We have had the opportunity to review the There being no objection, the letters I urge my colleagues to vote accord- language of the ‘‘Exon-Coats’’ amendment in were ordered to be printed in the ingly when we vote. I thank the Chair detail. We believe your careful approach to RECORD, as follows: amending the telecommunications legisla- and yield the floor. SENATORS EXON AND COATS HAVE JOINED tion is constitutional, wisely tailored to help Mr. EXON addressed the Chair. protect children from this heinous material, The PRESIDING OFFICER. The Sen- THEIR EFFORTS. SUPPORT THE EXON-COATS ANTI-PORNOGRAPHY AMENDMENT and effective in navigating complex court ator from Nebraska. precedents in this area. CHRISTIAN COALITION, Mr. EXON. Mr. President, I yield my- Thank you for your willingness to address Washington, DC, June 13, 1995. these critical issues. Your leadership on this self 10 minutes. DEAR SENATOR: You may have received an issue is a great service to the world’s chil- I have been listening with keen inter- earlier letter from the Christian Coalition dren. est to my friends and colleagues, the urging your support for the Coats amend- Sincerely, Senator from Vermont and the Senator ment to S. 652, the Telecommunications Re- DEEN KAPLAN, form Act. We are pleased to see that the from Wisconsin. I hope that they will Vice President, Public Policy. listen very carefully to some of the competing versions of anti-pornography leg- islation proposed by Senators James Exon things this Senator has to say, because CHAMBER OF COMMERCE OF THE everything that they have brought up and Dan Coats have subsequently been rec- onciled into a joint amendment. I write you UNITED STATES OF AMERICA, are things that I considered very long now to urge your support for this bipartisan Washington, DC, June 13, 1995. and very hard when I started working computer pornography amendment. Members of the United States Senate: on this difficult situation a year ago. Pornography on the computer super- On behalf of the U.S. Chamber of Com- Nothing they said is new. I just think highway has become so prevalent and acces- merce Federation of 215,000 business mem- they are, without malice aforethought, sible to children that it necessitates congres- bers, 3,000 state and local chambers of com- putting some spin on the Exon-Coats sional action. The comprehensive tele- merce, 1,200 trade and professional associa- amendment that simply is not there. communications legislation which the Sen- tions, and 72 American Chambers of Com- merce abroad, we strongly urge your support I ask unanimous consent that Sen- ate is currently debating is an appropriate vehicle to address this critical problem, and for the amendment to be offered by Senators ator BYRD and Senator HEFLIN both be we urge the Senate not to let this oppor- Exon (D-NE) and Coats (R-IN) to S. 652, the added as original cosponsors to the tunity go by. ‘‘Telecommunications Competition and De- Exon-Coats amendment. Although Senator Patrick Leahy and oth- regulation Act of 1995,’’ regarding revisions The PRESIDING OFFICER. Without ers may urge that the matter be referred to to the Communications Decency Act. objection, it is so ordered. the U.S. Department of Justice for its review The Exon-Coats amendment firmly pro- Mr. EXON. I appreciate very much and analysis, we oppose such a course of ac- tects children against obscene, indecent, and Senator BYRD and Senator HEFLIN, two tion. The increasing existence of computer other types of objectionable communica- very distinguished lawyers, the latter, pornography today requires action, not more tions. It also preserves the interests of busi- study. ness users of information systems. The lan- Senator HEFLIN, being the former chief On behalf of the 1.6 million members and guage is rightfully targeted to reach and justice of the supreme court of Ala- supporters of the Christian Coalition, we prosecute the ‘‘bad actors’’ who exploit the bama. I think both of them would not urge you to support the Exon-Coats amend- capabilities of information technologies to be a cosponsor of this Exon-Coats ment when it comes to the Senate floor. reach children and unconsenting adults, S 8338 CONGRESSIONAL RECORD — SENATE June 14, 1995 which we support fully. Yet adequate de- the distribution of obscenity on the burgeon- that is all we think the law can ask of them fenses and safe harbors are provided to en- ing computer service networks, such as the at this point. There is only so much that can sure that American businesses can utilize ‘‘Internet’’, ‘‘Use Net’’, and ‘‘World Wide be done in a way that is ‘‘technically fea- these telecommunications-based products Web’’. The amendment also criminalizes the sible’’ at any point in time, and the Exon- and services to enhance their competitive- knowing distribution of ‘‘indecent’’ material Coats bill would not require anyone to take ness, address major business problems such to minor children. Both provisions cover steps that are not technically feasible and as employee training and customer service, noncommercial, as well as commercial, does not, and should not, expect anyone to and reach new domestic and global market transmissions. This is important, since take all steps that may be technically pos- shares and suppliers—without fearing unin- present law does not cover indecency to mi- sible. This bill would also allow the States to tended or uncertain liabilities flowing from nors except for commercial dial-porn mes- enforce their own obscenity and ‘‘harmful to the actions of others. sages over the phone lines. Also, the Exon- minors’’ laws against the pornographers and Unlike some previous proposals, this legis- Coats amendment would clearly cover all porn pirates. If the chose to regulate the car- lation provides the certainty that businesses distributions of hard-core obscenity over the riers and connectors, they would be bound by need to ensure that they can employ online computer networks, whereas existing law the Supremacy Clause of the Constitution information technologies. The absence of has been enforced only against commercial and the First Amendment to using consist- this certainty would create a broad and po- sales of obscenity by common carrier and ent measures. This is not inconsistent with tent disincentive, especially for small busi- computer. existing requirements for the States to meet nesses, to the use of online systems and the The vast amount of hard-core pornography under any criminal law. The joint role of fed- interconnection of private business systems on today’s computer bulletin boards is eral and state prosecution of those who dis- with the NII. The Chamber membership is placed there indiscriminately by ‘‘porn pi- tribute the obscenity, and indecency to mi- calling on Congress to enact telecommuni- rates’’ who post freely available pictures of nors, is thus preserved. violence, rape, bestiality, torture, excretory cations reform legislation to enhance our The good faith defense also allows respon- functions, group sex, and other forms of hard children’s lives and our business’ productiv- sible users and providers to utilize the exist- and soft core pornography which are as ity. This amendment does both. ing regulations from the F.C.C. for dial-porn available to teenager computer users as to Please vote ‘‘Yes’’ for the Exon-Coats systems until such time as the F.C.C. makes men who are addicted to pornography. A amendment to S. 652. new regulations specifically for the com- tough federal law is needed to deter such un- Sincerely, puter networks. This means that a company protected and viciously harmful activity and R. BRUCE JOSTEN, or individual who takes a credit card, pin the Exon-Coats bill does just that, making Senior Vice President. number, or access code would be protected such activity a felony punishable by up to under present F.C.C. rules if a minor stole two years in prison and $100,000 in fines. FAMILY RESEARCH COUNCIL, Many of the previous provisions of the his parent’s Visa card or dad’s porn pin num- Washington, DC, June 13, 1995. Exon bill were criticized by pro-family ber. In other words, some responsibility still DEAR SENATOR: I wrote to you last week groups as too lenient and providing too resides with parents to watch what their with my concern about the pending anti-por- many defenses for pornographers, as well as kids are watching on the computer. This is nography amendments to the Telecommuni- for the on-line computer service access pro- serious business and there is a lot of very cations Bill and urging your support of the viders, such as Prodigy, CompuServe, harmful pornography on the ‘‘Internet’’, so proposed Coats Amendment. Last night, Sen- NETCOM, and America On Line. The present parents better take an interest in what their ator Exon agreed to join Senator Coats in his version of the Exon-Coats amendment would children have access to, but cannot expect legislative approach against the obscenity exempt the phone company carriers and every one else to solve the entire problem for and indecency polluting cyberspace. The computer access providers only to the extent them. Federal law can make it a crime to Family Research Council commends these that they provide mere access for users to post hard-core obscenity on the computer Senators for their willingness to take a connect to the services and boards of other boards, but many people are willing to break stand on this unpopular issue. Today or to- companies and individuals beyond their con- that law. The porn pirates are posting the morrow, the Exon-Coats Amendment will be trol. To the extent any phone or computer kind of porn that hasn’t been sold by the por- offered which will criminalize commercial access company would offer obscenity on nography syndicate in their ‘‘adult’’ book- and non-commercial distribution of hard- their own boards, they would be as liable as stores in nearly 20 years. This law should core pornography through computers, as well anyone else. Likewise for making indecent deter them from doing that any longer and it as keep all forms of pornography out of the material available to minors under age 18, if would allow federal prosecutors to charge hands of the most vulnerable ‘‘Net surfers’’— they do it—they are liable, but if they don’t them for it now. our children. do it—they aren’t liable if someone else does The defenses to indecency are available to I urge you to support the Exon-Coats it. This puts the primary criminal liability every one, so that every one has a chance to Amendment to eliminate ‘‘cyberspace’’ as a on those who distribute obscenity to anyone act responsibly as adults in protecting chil- safe haven for pornographers. and on those who make indecency available dren from indecency. This is what the Su- The Exon-Coats Amendment breaks new to minors without taking reasonable steps to preme Court will require for the indecency legal ground in the fight against porn by limit it to adults. Although some people and provisions to be upheld as ‘‘least restrictive’’ criminalizing ‘‘free’’ obscenity traded on the groups may feel that the phone and com- under the First Amendment. Conversely, no Internet, and by making it illegal to make puter access providers should bear respon- one has a defense to obscenity when they dis- indecent material available to children. sibility for the traffic in obscenity and inde- tribute or make obscenity available. The Importantly, the Exon-Coats Amendment cency that is available to minors, there are only exception to this is for the carriers and still addresses the problem of porn on basic Constitutional limitations that apply by law connectors in their role as mere access con- cable packages. It will prohibit cable pro- to any act of Congress in these regards. One, nectors, only then would they be exempt grammers from forcing upon families chan- regulations to protect minors from indecent from the obscenity traffic of others. How- nels which feature indecent programs when speech must be the ‘‘least restrictive means’’ ever, if the on-line service providers go be- they sign up for cable. The indecent channels to protect minors while allowing adults ac- yond solely providing access, and attempt to will be provided only upon specific request. cess to non-obscene speech. Second, the law pander or conspire with pornographers, for Computer pornography is the next great cannot impose strict liability for obscenity. instance, then they would lose their obscen- threat to our children’s hearts and minds. I The Exon-Coats amendment is designed to ity exemption and be liable along with every commend Senator Coats and Senator Exon satisfy both constitutional requirements, one else. This is a limited remedy to prevent for fighting an evil which transcends party while still providing a serious criminal de- the bill from causing a ‘‘prior restraint’’ on lines. terrent to those who would put obscenity First Amendment rights. This bill would be Sincerely, onto the computer nets or who would pub- nothing at all if it were struck down or en- GARY L. BAUER, licly post indecent materials within easy joined before it could be used against those President. reach of children. who are posting, selling, and disseminating The amendment, therefore, contains ‘‘good all the pornography on the computer net- SUPPORT EXON-COATS COMPUTER PORN faith’’ defenses that would allow any com- works. AMENDMENT SAYS NATIONAL LAW CENTER pany, carrier, internet connector, or private There has been some criticism that this FOR CHILDREN AND FAMILIES individual to create reasonable and effective bill in adopting good faith defenses, would The National Law Center for Children and ways to screen children out of adult con- make it ineffectual and that this would Families (‘‘NLC’’) is a non-profit legal advice versations and allow adults to use indecent, weaken the bill in the same way that the ex- organization which supports law enforce- nonobscene, speech among adults. This isting dial-porn law is not completely effec- ment and governmental agencies in the pros- should encourage the access providers to tive. We disagree. The defenses in the dial- ecution and improvement of federal and take steps to enforce corporate responsibil- porn law were necessary to having that law state laws dealing with obscenity and the ity and family friendly policies and monitor upheld by the courts. Without them, it was protection of children. NLC’s Chief Counsel, their systems against abuse. When they do struck down by the Supreme Court. Only Bruce Taylor, feels that today’s version of take such steps, the good faith defense would after the F.C.C. provided its technical the ‘‘Exon-Coats’’ amendment is both effec- protect them from becoming liable for screening defenses was the law upheld by the tive and constitutional. It would criminalize unfound or unknown abuses by others, and federal appeals courts. This law adopts those June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8339 constitutionally required measures for inde- ‘‘ENOUGH IS ENOUGH!’’ CAMPAIGN, a barbarian. I would hope that the Sen- cency and for obscenity only for the mere ac- Washington, DC, June 14, 1995. ator from Vermont would advise the cess providers. The dial-porn law has re- WOMEN OF AMERICA SAY ‘‘ENOUGH IS people that he is using here as support moved the pre-recorded message services ENOUGH!’’ IN SUPPORT OF EXON-COATS COM- for his position that his mutual friend, from the phone lines. The pornographers PUTER PORN AMENDMENT JIM EXON, is not a barbarian under any have gone to live credit card calls. To the ex- The ‘‘Enough is Enough!’’ campaign is a normally accepted definition of the tent they are still obscene, they can and non-partisan non-profit organization which term. should be prosecuted by the Department of educates citizens about the harms of pornog- Let me go into some of the things Justice, with the help of the F.B.I. That is raphy and its link to sexual violence. what it will take to remove the rest of the il- ‘‘Enough is Enough!’’ is dedicated to elimi- that I have been hearing and listening legal dial-porn services. The most ineffective nating child pornography and removing ille- to and attempt, as best I can, to maybe part of the dial-porn law is not the F.C.C. de- gal pornography from the marketplace. straighten out some of the concerns According to Dee Jepsen, President of fenses, they are fine. What is broken is the that I think are very real and sincere, ‘‘Enough is Enough!’’, ‘‘We represent thou- as stated by my colleague from Ver- phone company defense in the statute, 47 sands of women and concerned men across U.S.C. § 223(c)(2)(B), that allows the bell com- America standing together in support of mont and my colleague from the State panies to rely on ‘‘the lack of any represen- sound legislative measures that will enhance of Wisconsin. tation by a provider’’ of dial-porn that the law enforcement and prosecution of the dis- First, let me say that the Exon-Coats provider is offering illegal messages. This tribution of illegal pornography to chil- amendment does not destroy, does not means that if the dial-porn company does dren.’’ retard, does not chill accepted informa- not tell the phone company that the mes- ‘‘Furthermore’’, states Donna Rice Hughes, tion, pictures, or speech. To the con- sages are obscene or going to children as in- Communications Director for the campaign, trary. We are trying to make the decency, then the phone company doesn’t ‘‘the current version of the Exon-Coats Internet system, which is displayed have to block all the dial-porn lines until an amendment will provide greater protection for children from computer pornography’s here on this chart before me, safer, bet- adult subscribes in writing. This is not work- ter, and to make it more frequently able and should be fixed by Congress. The invasion into America’s homes and schools dial-porn law should also be amended to give and still meet constitutional scrutiny.’’ used. This measure is an essential step in pro- I do not know the authenticity of the good faith reliance only on a false represen- tecting children from heinous forms of por- statement that I am about to make. tation by a dial-porn provider. If the phone nography available online. company doesn’t know about a dial-porn But I have read that it has been esti- Mr. EXON. Mr. President, let me service, then they should not be responsible. mated that up to 75 percent, Mr. Presi- However, the phone company should block now, if I might, go into some matters dent, of present computer owners have all the dial-porn lines and only unblock them that I think are tremendously impor- refused to join the Internet system on adult request. This is the provision that is tant. with their home computer, precisely causing the phone companies not to act, not First, I notice that my friend and because they know and they fear—and the F.C.C. defenses. There is no such provi- colleague from Vermont indicated he evidently they have seen or been ad- sion in the Exon-Coats amendment that has some 25,000 signatures that he has vised as to what I have here in the blue would allow the carriers or connectors to piled up on the desk down there from book. Once again, before anyone votes wait for the pornographers to confess guilt people who support his efforts, and his against the Exon-Coats amendment, if before they must act. If they know, they efforts are supported, of course, by my they are interested, I am willing to must act in good faith. No more, no less. friend and colleague from Wisconsin. share this information with them. It This computer porn law is, therefore, better What they propose to do with the un- has pictures in it that were taken di- than the existing dial-porn law in that re- derlying amendment is to punt, to rec- rectly off the Internet system last spect. ognize there is a problem that they week. So I simply say we are not try- both have, but what they are suggest- This amendment would allow federal pros- ing to destroy, we are not trying to re- ing we do is just delay a punt. ecutions against the pornographers and porn tard and we are certainly not trying to pirates immediately, thus removing much of We come from the football State of the hard-core material from the networks Nebraska. That is what the Nebraska chill the great system that is the that the carriers would be providing access football team does, Mr. President. Internet. Anyone who believes that is to anyway. This can’t wait several months or Fourth down and 32 yards to go on very badly misinformed. years. If Congress has to exempt the connec- their own 3-yard line, they always I have also heard a great deal today tors as long as they merely carry the signal punt, except when they are down near about the parents’ responsibilities, and otherwise act in good faith, then so be the end of the game and they recognize which, I guess, means that the parents it. It they abuse it, then Congress can take the serious situation that they might that have such responsibilities must that break away when it is shown that they be in and they might not get the ball follow their children around all of the don’t deserve it. In the meantime, this law back. Then they do not punt. They time. This is not simply something will give federal law enforcement agencies a move aggressively forward, which is that the children have available to tool to get at those who are responsible for them at home. More likely, they are distributing the obscenity that we all com- what we are trying to do in the thoughtful manner embodied in the going to be introduced to it not at plain of right now. It is a good and constitu- home, but in the schools. We have just tional law and arguments that it is not Exon-Coats proposal. Those people that my friend and col- made a concession in the telecommuni- enough are not true, not realistic, and could cations bill before us to give the cause Congress to bypass this opportunity to league from Vermont is supporting in schools and libraries a break, if you enact an effective remedy to protect the pub- carrying the ball would be interested in lic and our children from this insidious prob- knowing, I am sure, what generated will, because we want them involved in lem. Senators Exon and Coats have done an many of those letters that have been this. The schools will be sources of the admirable and honorable job in forcing this offered in debate by the Senator from information that Senator COATS and I issue to a resolution. They have agreed to a Vermont. have been describing. The library is a tough and fair law, with reasonable exemp- I happen to have a copy of a letter in place where they can pick it up. We tions and defenses for legitimate and good this regard, which generated many of also talk about some of the software faith interests. The effective role of alter- those letters, provided to me by my and the off-limits proposition that native measures, like that of Senators Grass- grandson. My grandson is 25 years old, some of the software may or may not ley and Dole, cannot be overlooked as part of and he is old enough to take care of provide. the pressure that brought this matter to a himself. But he thought that I would I simply say, Mr. President, that successful point. The efforts to kill all effec- be interested in this. This is a letter those who know what is going on with tive action, such as the pornography protec- that has been widely distributed on the the Internet today—those who have tion and delay the bill of Senator Leahy of e-mail system. It says: ‘‘The obscenity seen it firsthand, those who are con- Vermont would offer to forego a criminal bill of decency. With the introduction of cerned about making the Internet the in favor of more ‘‘study’’, must be rejected as greatest thing that has ever happened unreasonable and Congress should act imme- Senator J.J. EXON’s Communications diately to criminalize obscenity on the com- Decency Act, the barbarians are really as far as communications exchange is puter networks and forbid indecent material at the gate.’’ concerned—are the ones that are sup- being sent or made available to minors. I have been called many things in my porting the Exon-Coats amendment. life, but never before have I been called We want to make it even bigger, and S 8340 CONGRESSIONAL RECORD — SENATE June 14, 1995 we want to make it even better, but What these pornographers do is place tapping digital communications. This not for raunchy pornography that free-of-charge material on the Internet section would have totally undermined would turn most people off. And to the that is designed to lure people over to the legal authority for law enforce- 25,000 people who want to call this Sen- their bulletin board so they can maybe ment to use court-authorized wiretaps, ator a barbarian, I simply say that, hook them into a monthly charge of one of the most significant tools in law evidently, they are so selfish—at least some type, to have available whenever enforcement’s arsenal for fighting their actions are so selfish, that they they want from their pornography crime. simply say: We do not want to give up which is a library full of everything If that particular section were passed anything. We want to be able to see you can imagine. as introduced, the FBI would not have what we want to see, where we want to What they are doing is taking pre- been able to use court-ordered wiretaps see it, any time we want to see it. views of what they have in here. They to listen in on digital calls made by I simply say that what we are trying are putting them, open and at large, on kidnappers, terrorists, mobsters, or to do is constructively make some the Internet system for all people to other criminals. This is an excellent changes that are necessary. Let me re- see, not unlike, Mr. President, the pre- change that I heartily endorse. view for just a moment, if I can, and views of coming attractions that we PROBLEMS WITH SENATOR EXON’S AMENDMENT make sure that everyone understands see when we go to the movies. This is But, even with this fix, serious con- what the Internet is all about. The what we will see next. stitutional and practical problems re- Internet, basically, is in the center of Obviously, many of the pictures, as main in Senator EXON’s proposed legis- this chart or graph. From listening to evidenced by the blue book, are things lation. many of my colleagues today, those that are readily available. They, of The first part of the amendment who do not support the Exon-Coats course, have a way of referencing back. would make it a felony not only to amendment, I think that they view If you like this picture, come into our send obscene electronic messages to this as the way the Internet is. First, porno shop over here. For a small fee, harass another person, but would apply you have a child at home or an adult at we will show you the real thing. The the same penalty to sending an e-mail home entering the Internet, and they real thing is right here when it comes message with an indecent or filthy have to buy that service from one of to pornography. word that you hope will annoy another the many people who make money Mr. President, I simply say, once person. charging the entry into the Internet, again, that while I am sure my friend For example, if someone sends you an where they have special provisions, from Vermont and my friend from Wis- annoying e-mail message and you re- special facilities which that particular consin are sincere, I appreciate very spond with a filthy, four-letter word, provider might apply. much the very kind things that both you may land in jail for 2 years or with have said about the efforts of this Sen- a $100,000 fine. In addition to that, they apply for ator and Senator COATS because we Under this amendment, no computer entry into the massive Internet itself. have brought attention to this. user will be able to send a private or From the Internet, the child or the It is the intention of the Senator public e-mail message with the seven adult can go worldwide. We can go into from Nebraska and the Senator from dirty words in it. Who knows when any all kinds of sources of information—the Indiana, though, now that we have recipient will decide to feel annoyed by Library of Congress, any of the great called attention to it, we are going to seeing a four-letter word online? universities, and all of the other mas- do something about it. We do some- The second part of the amendment sive sources of information. I think too thing about it in a fully constitutional would make it a felony to send out or many people believe that because the way. We are not going to trample on receive over computer networks any pornography bulletin board is sitting the constitutional rights of anyone. obscene material. There is no require- out here to the side, that you have to I reserve the remainder of my time. ment that the person soliciting and re- work to get to the pornography bul- Mr. LEAHY. Mr. President? ceiving the material knew it was ob- letin board. Mr. President, that is sim- Mr. COATS. Mr. President, could the scene. This means that a computer ply not the case. The pornographers Senator yield for a question, so we can user could be guilty of committing this have invaded the Internet down here, get a sense where we might be with crime at the moment of clicking to re- so that it is freely available, without time. ceive material, and before the user has cost—all of the outlandish, disgusting, Mr. LEAHY. I yield. looked at the material, let alone knows pornographic pictures of the worst Mr. COATS. Mr. President, I am not the material to be, obscene. type, that some of my colleagues think aware of any specific requests for time This means that an adult sitting at we can handle by punting. This is not a from anyone on our side. We might be his computer in the privacy of his own time to punt; this is the time to act. able to yield some time back. home, who wants to get a copy—con- I want to bring reference to the fact Mr. LEAHY. Mr. President, I would sistent with our copyright laws—of a that this is the system that the Coats- be happy to. I wanted to respond, as I magazine article on stock car racing, Exon amendment is trying to create— am sure the Senator from Indiana real- could be subject to 2 years in jail and one that is envisioned as the way the ized I would, to a couple of points. a $100,000 fine for downloading the mag- Internet system works. Actually, the Mr. COATS. We could get the word to azine, which unbeknownst to the user way the Internet system is working Members. also contains obscene material. today—especially with regard to to- Mr. LEAHY. I hope we can vote by 5 This also means that if you are part tally rampant pornography—is that o’clock. of an online discussion group on rape when the child or adult at home goes Mr. COATS. I thank the Senator. victims, your computer is programmed into the Internet system, all too often Mr. LEAHY. I have spoken before on to automatically download messages he is looking for something other than the floor of my concerns with the sent into the discussion group. If a par- basic information. He would have to Exon-Coats amendment. Last Friday, ticipant sends into the group a graphic pay if he wants to subscribe to the por- my good friend from Nebraska, Senator story about a rape, which could be nography bulletin board. But, Mr. EXON, filed a revised version of the De- deemed obscene, this story will auto- President, it goes both ways. These cency Act as amendment No. 1268. The matically be downloaded onto your people—the moneymakers on pornog- revisions made by Senator EXON reflect computer, and you would be criminally raphy up here—are feeding information a diligent and considered effort by him liable under this amendment, even be- because it can be fed free of charge into and his staff to correct serious prob- fore you read the story. the Internet system. The pictures I lems that the Department of Justice, I This may mark the end of online dis- have here in the blue book—there are a and others have pointed out with this cussion groups on the Internet, since whole series of them—were taken free- section of the bill. many users do not want to risk 2 years ly off of the Internet system free of I commend Senator EXON for propos- in jail because of what they might re- charge and readily available to anyone ing in his amendment the striking of ceive from online discussion groups. who has a computer and has the basic the provision in the bill that would im- This amendment would chill free knowledge. pose a blanket prohibition on wire- speech and the free flow of information June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8341 over the Internet and computer net- Internet and other information serv- sultation with the U.S. Department of works. ices would have to clean up their lan- Commerce, on how we can empower The amendment does give one out to guage when they go on-line, whether or parents and users of interactive tele- users who meet some government, FCC not they are communicating with chil- communications systems. determined standards to take steps to dren. We should examine the recommenda- protect themselves from receiving ma- There is no question that we are now tions of these experts before we start terial the government has determined living through a revolution in tele- imposing liability in ways that could to be obscene or indecent. This may communications with cheaper, easier severely damage electronic commu- mean that any user with a connection to use and faster ways to communicate nications systems, sweep away impor- to the Internet or an electronic com- electronically with people within our tant constitutional rights, and possibly munications service may be required to own homes and communities, and undercut law enforcement at the same go out and buy special FCC endorsed around the globe. A byproduct of this time. and expensive software programs to technical revolution is that supervising We should avoid quick fixes today stop obscene materials from reaching our children takes on a new dimension that would interrupt and limit the their computers. That way they could of responsibility. rapid evolution of electronic informa- show that they have at least tried to Very young children are so adept tion systems—for the public benefit far avoid the receipt of obscene materials. with computers that they can sit at a exceeds the problems it invariably cre- Otherwise, they may risk criminal li- keypad in front of a computer screen at ates by the force of its momentum. ability. home or at school and connect to the A number of groups support the ap- Take another example. What if a user outside world through the Internet or proach of the Leahy study, including wants to join a campaign to stop ob- some other on-line service. Many of us civil liberties groups, librarians, online scenity on computer networks, and are justifiably concerned about the ac- providers, newspaper editors, and oth- sends out the message to others on the cessibility of obscene and indecent ma- ers. I ask that a list of the supporters campaign to send him examples of the terials on-line and the ability of par- of the Leahy study be placed in the obscene materials they are fighting to ents to monitor and control the mate- RECORD. An electronic petition has been cir- stop. Under this amendment, any re- rials to which their children are ex- culated on the Internet for the past few ceipt of these materials would be a posed. weeks. Over 35,000 people have signed crime. If this amendment had been the But government regulation of the on in support of the Leahy study, as an law, when my good friend from Ne- content of all computer communica- alternative to the proposed Commu- braska collected the materials in his tions, even private communications, under the rubric of protecting kids and nications Decency Act. blue notebook, he would have commit- A number of organizations have in violation of the first amendment is ted a felony. signed onto the electronic petition to not the answer. How will anti-obscenity or pornog- support the Leahy study as an alter- raphy groups that now monitor online EXISTING LAWS native to Government content regula- obscenity be able to do so without One could get the incorrect idea that tion of electronic communications. criminal liability? we in Congress have ignored the prob- These organizations, including the The third part of Senator EXON’s lem of protecting kids from harms that American Council for the Arts, Center amendment would make it a felony to could befall them from materials they for Democracy and Technology, Voters purposefully make available, either get online. This could not be further Telecommunications Watch, and oth- privately or publicly, any indecent from the truth. We have a number of ers are helping to circulate the peti- message to a minor. laws on the books that the Justice De- tion. Anyone is allowed to sign it or We all share my good friend’s con- partment has successfully used to pros- circulate it—this is a free country. cern over the kind of material that ecute child pornography and obscenity Since May 19, when the petition was may be available and harmful to mi- transmitted over computer networks. launched, over 35,000 people have nors on the Internet and other online Our criminal laws already prohibit signed on. computer networks. But this provision the sale or distribution over computer The Leahy study approach is sup- is not the way to address the problem. networks of obscene or filthy mate- ported by civil liberties groups, librar- Under this provision, no indecent rial—18 U.S.C. §§ 1465, 1466, 2252 and ians, online service providers and news- speech could be used on electronic bul- 2423(a). We already impose criminal li- paper groups, including: Association of letin boards dedicated to political de- ability for transmitting any threaten- American Publishers [AAP]; Associa- bates, since kids under 18 may access ing message over computer networks— tion of American University Presses these boards. 18 U.S.C. § 875(c). Our existing criminal [AAUP]; The faculty of the City Uni- This will certainly insure that civil- laws also criminalize the solicitation versity of New York; Interactive Work- ity is reintroduced into our political of minors over computers for any sex- ing Group; Online Operators Policy discourse when we are online. But this ual activity—18 U.S.C. § 2452—and ille- Committee of the Interactive Services also means that works of fiction, rang- gal luring of minors into sexual activ- Association; American Advertising ing from ‘‘Lady Chatterly’s Lover’’ to ity through computer conversations— Federation; American Association of NEWT GINGRICH’s science fiction novel 18 U.S.C. § 2423(b). Just this weekend, Advertising Agencies; and American ‘‘1945,’’ which contains some steamy there were reports of two instances in Library Association. scenes, could not be put out on the which the FBI successfully tracked Also American Society of Newspaper Internet because of the risk that a down teenagers who were solicited on- Editors; Association of National Adver- minor might download it. Rap music line. tisers, Inc.; Association of Research Li- with bad words could not be distributed Congress took action 2 months ago to braries; Business Software Alliance; online. This provision would censor the pass the Sexual Crimes Against Chil- Center for Democracy and Technology; Internet in a way that threatens to dren Prevention Act of 1995 to increase Computer and Communications Indus- chill our first amendment rights on the penalties and make these various try Association; Direct Marketing As- electronic communications systems. laws even tougher. sociation; Electronic Frontier Founda- Under the amendment offered by my Congress has not been ignoring this tion; Feminists For Free Expression; good friend from Nebraska, those of us problem. This does not mean we cannot Magazine Publishers of America; Media who are users of computer e-mail and or should not do better. But, the prob- Access Project; National Public other network systems would have to lem of policing the Internet is complex Telecomputing Network; Newspaper speak as if we were in Sunday School and involves many important constitu- Association of America; People For the every time we went on-line. tional issues. American Way Action Fund; Rec- I, too, support raising our level of ci- LEAHY AMENDMENT REQUIRING A STUDY reational Software Advisory Counsel; vility in communications in this coun- The amendment I am offering with Software Publishers Association; and try, but not with a government sanc- Senators KERREY, FEINGOLD, and Times Mirror. tion and possible prison sentence when MOSELEY-BRAUN would require a study I have also asked a coalition of indus- someone uses an expletive. All users of by the Department of Justice, in con- try and civil liberties groups, called S 8342 CONGRESSIONAL RECORD — SENATE June 14, 1995 the Interactive Working Group, to ad- pass responsible legislation that will With respect to the Communications De- dress the legal and technical issues for not be attacked constitutionally for cency Act, while we understand that section policing electronic interactive services. years thereafter. 402 is intended to provide users of online There is no question that we need to I note that the House Commerce services the same protection against obscene and harassing communications afforded to educate parents about the types of ma- Committee adopted basically the telephone subscribers, this provision would terials available on the Internet which Leahy study in its markup of the not accomplish that goal. Instead, it would they may want to stop their children House telecommunications legislation. significantly thwart enforcement of existing from accessing. By focusing attention This was Republicans and Democrats, laws regarding obscenity and child pornog- on this issue, Senator EXON’s efforts to across the political spectrum, trying to raphy, create several ways for distributors legislate in this area have already find the best way to handle this. They and packagers of obscenity and child pornog- made strides in alerting parents to the did what I have recommended here. raphy to avoid criminal liability, and threat- In fact, some provisions in my en important First Amendment and privacy material available online that may be rights. harmful to kids, such as the Internet, friend’s amendment could hurt pros- Similarly, while we understand that sec- to control the material transmitted to ecution of those who are not law-abid- tion 405 of this bill is intended to expand pri- them over those systems. We must find ing users of the Internet but use it to vacy protections to ‘‘digital’’ communica- ways to do this that do not invite inva- distribute obscenity and child pornog- tions, such communications are already pro- sions of privacy, lead to censorship of raphy. tected under existing law. Moreover, this private online communications, and As a former prosecutor, I want pros- provision would have the unintended con- ecutors to have the best tools to go sequences of jeopardizing law enforcement’s undercut important constitutional pro- authority to conduct lawful, court-ordered tections. after criminals. I received a letter wiretaps and would prevent system adminis- Before legislating to impose Govern- today from the Justice Department trators from protecting their systems when ment regulation on the content of com- that makes several points. They say a they are under attack by computer hackers. munications in this enormously com- study of the issue is needed. They also Despite the flaws in these provisions, the plex area, I feel we need more informa- confirm that the Exon proposal would Administration applauds the primary goal of tion from law enforcement and tele- regulate indecent speech between con- this legislation: prevent obscenity from communications experts. My bill calls senting adults. And, third, the defenses being widely transmitted over telecommuni- in this proposal would undermine the cations networks to which minors have ac- for just such a fast-track study of this cess. However, the legislation raises complex issue. ability of the Justice Department to policy issues that merit close examination Mr. President, I tell my good friend prosecute online service providers even prior to Congressional action. We rec- from Nebraska, I hope he realizes I though they knowingly profit from the ommend that a comprehensive review be un- would never call him a barbarian. We distribution of obscenity and child por- dertaken of current laws and law enforce- know each other too well and we are nography. ment resources for prosecuting online ob- too good of friends for that. The Department says, ‘‘We still have scenity and child pornography, and the tech- I have to admit, when he talks about concerns. We continue to believe that nical means available to enable parents and football, he has the good grace to live comprehensive review should be under- users to control the commercial and non- commercial communications they receive in a State where the team has had taken to guide the response to the over interactive telecommunications sys- some modicum of success. He has right- problems the Communications Decency tems. ly achieved bragging rights on that. Act seeks to address.’’ The following are the Department’s pri- But when he talks about punting on I ask unanimous consent to have mary objections to sections 402 and 405 of the this, with all due respect, Mr. Presi- that letter printed in the RECORD at pending telecommunications bill: dent, I believe the Exon-Coats amend- this point. First, section 402 of the bill would impose ment punts, because it punts to the There being no objection, the mate- criminal sanctions on the transmission of constitutionally protected speech. Specifi- FCC the task of finding ways to re- rial was ordered to be printed in the cally, subsections 402(a)(1) and (b)(2) of the strict minors’ access to indecent com- RECORD, as follows: bill would criminalize the transmission of in- munications so users can implement U.S. DEPARTMENT OF JUSTICE, decent communications, which are protected them and have a defense to criminal OFFICE OF LEGISLATIVE AFFAIRS, by the First Amendment. In Sable Commu- prosecution. Washington, DC, May 3, 1995. nications of Cal. v. FCC, 492 U.S. 115 (1989), What we have to understand is that Hon. PATRICK J. LEAHY, the Supreme Court ruled that any restric- nobody in this place wants to give por- U.S. Senate, tions on the content of protected speech in nography to children. I do not. The dis- Washington, DC. media other than broadcast media must ad- DEAR SENATOR LEAHY: I write to respond to vance a compelling state interest and be ac- tinguished Senator from Nebraska, the your letter of March 1, 1995 concerning our complished by the ‘‘least restrictive means.’’ distinguished Senator from Indiana, prosecution of violations of federal child por- By relying on technology relevant only to the distinguished Senator from Wiscon- nography and obscenity laws and your April 900 number services, section 402 fails to take sin, all who have spoken on this issue 21, 1995 request for the views of the United into account less restrictive alternatives uti- this afternoon, none wants to give por- States Department of Justice on the ‘‘Com- lizing existing and emerging technologies nography to children. munications Decency Act,’’ which has been which enable parents and other adult users Many Members also do not want to incorporated as title IV of the proposed to control access to content. destroy the Internet as we try to find ‘‘Telecommunications Competition and De- Nearly ten years of litigation, along with regulation Act of 1995,’’ S. 652. In accordance modifications of the regulations, were nec- how to do protect children from harm- with your request, the analysis of the Com- essary before the current statute as applied ful material on the Internet. We can munications Decency Act focuses on sections to audiotext services, or ‘‘dial-a-porn’’ call- accomplish the goal of keeping pornog- 402 and 405 of the bill. ing numbers, was upheld as constitutional. raphy from children without putting The Department’s Criminal Division has, See Dial Information Services v. Thornburg, on a huge Government layer of censor- indeed, successfully prosecuted violations of 938 F. 2d 1535 (2d Cir. 1991). The proposed ship and without destroying the federal child pornography and obscenity laws amendment in section 402 of the bill would Internet. which were perpetrated with computer tech- jeopardize the enforcement of the existing nology. In addition we have applied current Now, my friend from Nebraska says dial-a-porn statute by inviting additional law to this emerging problem while also dis- constitutional challenges, with the concomi- his amendment takes the same ap- covering areas where the new technology tant diversion of law enforcement resources. proach as the dial-a-porn statute. Not may present challenges to successful pros- Second, the definition of ‘‘knowingly’’ in really. On dial-a-porn, it took 10 years ecution. While we agree with the goal of var- section 402 of the bill would cripple obscenity of litigation for the FCC to find a way ious legislative proposals designed to keep prosecutions. Under subsection 402(e), only to implement the dial-a-porn statute in obscenity and child pornography off of the those persons with ‘‘actual knowledge’’ of a constitutional way. That is why I say information superhighway, we are currently the ‘‘specific content of the communication’’ his amendment punts to the FCC the developing a legislative proposal that will could be held criminally liable. This defini- best meet these challenges and provide addi- tion would make it difficult, if not impos- task of finding ways to restrict. tional prosecutorial tools. This legislative sible, to prove guilt, and the standard is Why not instead follow the Leahy package is being developed while taking into higher than the prevailing knowledge re- amendment, which will require a consideration the need to protect fundamen- quirements under existing obscenity and study, a group of experts, an acceler- tal rights guaranteed by the First Amend- child sexual exploitation statutes. Under ated legislative path, so that we will ment. Miller v. California, 413 U.S. 629 (1973), the June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8343 government must only prove that a person ing the section 402, and could thwart existing tack systems unobserved or violate federal being prosecuted under an obscenity statute child pornography and obscenity prosecu- law. had knowledge of the general nature of the tions. There are three other concerns as well. material being distributed. Large-scale dis- The fourth defense provided in subsection First, by adding the term ‘‘digital’’ without tributors of child pornography and other ob- 402(d)(4) would exculpate defendants whose amending the suppression provisions of 18 scene materials—among the most egregious pornography business does not have the U.S.C. § 2515, voice communications—if they violators—do not read or view each obscene ‘‘predominate purpose’’ of engaging in un- are deemed ‘‘digital’’—will no longer be pro- item they distribute. The proposed definition lawful activity. This defense would severely tected by the statute’s exclusionary rule. in subsection 402(e) would make it nearly im- undercut law enforcement’s efforts to pros- This would serve to reduce the privacy pro- possible for the government to establish the ecute makers and distributors of non- tections for phone calls. necessary knowledge requirement and would commercial pornography and obscenity. Second, section 405 would replace the thereby severely handicap enforcement of The fifth defense provided in subsection words ‘‘oral communication’’ with ‘‘commu- existing statutes. 402(d)(5) would preclude any cause of action nication’’ in 18 U.S.C. § 2511(1)(B). This would Third, section 402 would add new terms and from being brought against any person who have undesirable consequences for law en- defenses that would thwart ongoing enforce- has taken good faith steps to, inter alia, ‘‘re- forcement because it would criminalize the ment of the dial-a-porn statute. Currently, strict or prevent the transmission of, or ac- interception of communications as to which the government is vigorously enforcing the cess to,’’ a communication deemed unlawful there was no reasonable expectation of pri- existing dial-a-porn statute. It took more under section 402. This defense would encour- vacy.2 than ten years for the government to be able age intrusion by on-line service providers From the law enforcement perspective, to do so, due to constitutional challenges. into the private electronic mail communica- there is simply no sound reason for eliminat- The proposed amendment to this statute fun- tions of individual users. The defense actu- ing this highly desirable feature of present damentally changes its provisions and sub- ally promotes intrusions into private elec- law. Additionally, the amendment might jects it to renewed constitutional attack tronic mail by making it ‘‘safer’’ to monitor also impact upon the news gathering process. which would hinder current enforcement ef- private communications than to risk liabil- For example, if the conversation of two indi- forts. ity. At the same time, this defense would de- viduals shouting in a hotel room were re- Fourth, section 402 would do significant feat efforts by the government to enforce corded by a news reporter standing outside harm by inserting new and sweeping defenses federal privacy protections against illegal the room, the reporter would, under section that may be applied to nullify existing fed- eavesdropping. 405, be violating the wiretap statute. Under eral criminal statutes. The government cur- Finally, but no less significantly, section current law, of course, the individuals could rently enforces federal criminal laws pre- 405 amends the federal wiretap statute in not complain about the recording because, venting the distribution over computer net- several respects, each of which creates con- by shouting loud enough to be heard outside works of obscene and other pornographic ma- siderable problems. First, it amends the the room, they lack any reasonable expecta- terial that is harmful to minors (under 18 wiretap statute to add the term ‘‘digital’’ to tion of privacy. 1 U.S.C. §§ 1465, 2252 & 2423(a)), the illegal solic- 18 U.S.C. § 2511, without considering the ef- Last, the provision in section 402(d)(5) pro- itation of a minor by way of a computer net- fect of this amendment on other statutory vides that ‘‘no cause of action may be work (under 18 U.S.C. § 2252), and illegal ‘‘lur- provisions. For example, 18 U.S.C. § 2516(1) brought in any court * * * against any per- ing’’ of a minor into sexual activity through provides that certain government officials son on account of any action which the per- computer conversations (under 18 U.S.C. may authorize an application for a wiretap son has taken in good faith to implement a § 2423(b)). These statutes apply to all meth- order for wire or oral communications while defense authorized under this section. * * *’’ 18 U.S.C. § 2516(3) provides that other govern- ods of ‘‘distribution’’ including over com- This would seem to suggest that any person ment officials may authorize an application puter networks. The new defenses proposed can freely engage in electronic surveillance for a wiretap order for electronic commu- in subsection 402(d) would thwart ongoing otherwise prohibited by Title III so long as nications. Since section 405 does not amend government obscenity and child sexual ex- they claim to be implementing a section 402 18 U.S.C. § 2516 to include the term ‘‘digital,’’ ploitation prosecutions in several important defense. As such, section 402(d)(5) severely it would appear that no government official ways: weakens the privacy protections currently has the authority to authorize an applica- The first defense under subsection 402(d)(1) offered by the wiretap statute. tion for a wiretap order for digital commu- would immunize from prosecution ‘‘any ac- In sum, sections 402 and 405 of the bill nications. This is particularly problematic, tion’’ by a defendant who operates a com- would hamper the government’s ongoing since this investigative tool is reserved for puter bulletin board service as an outlet for work in stopping the dissemination of ob- the most serious cases, including those in- the distribution of pornography and obscen- scenity and child pornography and threaten volving terrorists, organized crime, and nar- ity so long as he does not create or alter the law enforcement’s continued ability to use cotics. material. In fact, this defense would estab- court-authorized wiretaps. We believe that a Equally disconcerting, the amendment lish a system under which distributors of comprehensive review be undertaken to serves to protect computer hackers at the pornographic material by way of computer guide response to the problems that the expense of all users of the National Informa- would be subject to fewer criminal sanctions Communications Decency Act seeks to ad- tion Infrastructure (NII), including busi- than distributors of obscene videos, books or dress. nesses, government agencies and individuals. magazines. I assure you that the Department is aware Prior to 1994, the wiretap statute allowed The second defense provided in subsection of the growing use of computers to transmit electronic communication service providers 402(d)(2) would exculpate defendants who and traffic obscenity and child pornography. to monitor voice communications to protect ‘‘lacked editorial control over the commu- The Criminal Division’s Child Exploitation their systems from abuse. 18 U.S.C. nications.’’ Such a defense may significantly and Obscenity Section is aggressively inves- § 2511(2)(a)(i) (1986 version). Thus, when hack- harm the goal of ensuring that obscene or tigating and prosecuting the distribution of ers attacked computer systems and system pornographic material is not available on child pornography and obscenity through administrators monitored these communica- the Internet or other computer networks by computer networks, and the use of comput- tions, they had no clear statutory authority creating a disincentive for operators of pub- ers to locate minors of the purpose of sexual to do so. In October 1994, Congress finally lic bulletin board services to control the exploitation. As we have discussed with your remedied this defect by amending 18 U.S.C. postings on their boards. Moreover, persons staff in a meeting focussed on these issues, § 2511(2)(a)(i) to permit the monitoring of who provide critical links in the pornog- we remain committed to an aggressive effort electronic (i.e., digital, non-voice) commu- raphy and obscenity distribution chains by to halt the use of computers to sexually ex- nications. If section 405 is enacted and these serving as ‘‘package fulfillment centers’’ fill- ploit children and distribute obscenity. hacker communications are deemed digital, ing orders for obscene materials, could assert Sincerely, system administrators will once again be de- the defense that they lack the requisite ‘‘edi- KENT MARKUS, nied the statutory authority to monitor torial control.’’ This proposed defense would Acting Assistant Attorney General. complicate prosecutions of entire obscenity hacker communications. It would be most unfortunate if, at the same time Congress is distribution chains. U.S. DEPARTMENT OF JUSTICE, encouraging the widespread use of the NII, it The third defense provided in subsection OFFICE OF LEGISLATIVE AFFAIRS, passed a law giving system administrator’s a 402(d)(3), containing five subparts, would be Washington, DC. Hobson’s choice: either allow hackers to at- available to pornographic bulletin boards op- Senator PATRICK J. LEAHY, erators who take such innocuous steps as (A) U.S. Senate, directing users to their ‘‘on/off’’ switches on 1 It should be noted that ‘‘digital’’ communica- Washington, DC. their computers as a ‘‘means to restrict ac- tions are already covered by the wiretap statute. DEAR SENATOR LEAHY: This is in response cess’’ to certain communications; (B) warn- Under current law, a ‘‘digital’’ communication is ei- to your June 14, 1995 letter to me posing ing, or advertising to, users that they could ther a wire communication under 18 U.S.C. § 2510(1) receive obscene material; and (C) responding (if it contains voice) or an ‘‘electronic communica- tion’’ under 18 U.S.C. § 2510(12) (if it does not contain 2 The definition of ‘‘oral communication’’ in 18 to complaints about such minimum, this voice). Since such communications are already cov- U.S.C. § 2510(2) contains a requirement that the com- proposed defense would lead to litigation ered, the reason for enacting section 405 is unclear, munication to be protected must have been made over whether such actions constitute ‘‘good and it is difficult to predict how the courts will in- under circumstances justifying an expectation of faith’’ steps to avoid prosecution for violat- terpret the amendment. privacy. S 8344 CONGRESSIONAL RECORD — SENATE June 14, 1995 questions about my June 13 letter to Senator gitimately, the scholars who use it le- pedophiles and predators secure a much Exon concerning his proposed Communica- gitimately, the people who use it for le- stronger foothold in what will be a universal tions Decency Act. gitimate on-line discussion groups, the service network. That network was initially My letter to Senator Exon commented on people who gather information from it, created by the U.S. government and still, in the version of his proposal circulated in his part, is supported by American tax dollars. the constituents who use it to contact ‘‘dear colleague’’ letter of June 7, 1995 (the Technology will help. But there is no tech- ‘‘Exon proposal’’). Senator Exon had re- my office and other offices, and those nological magic bullet. That is why industry quested that we comment on the extent to who find a way to access information is so concerned about vicarious liability. which that revised proposal satisfied the that they have never had before in Even the largest computer companies can concerns I detailed to you in my May 3 let- their lives. not figure out a ‘‘fool proof’’ way to prevent ter. The letter does not address the Exon- That is why, Mr. President, earlier I access. It is odd to expect American tax dol- Coats proposal, which we had not seen nor printed in the RECORD a list of every- lars to pay for the development and expan- were aware of until today. We have just body from librarians to publishers to sion of this marvelous system, only to turn begun to review this new proposal. it over to pornographers. The Congress As stated in my letter to Senator Exon, his newspaper editors to civil liberties groups who support my alternative ap- should not turn its eyes from what is on the proposal still raises a number of complex Internet and issue a mere request to parents legal and policy issues that call for in-depth proach in my amendment. that they buy expensive products to keep analysis prior to congressional action. Be- I am perfectly willing, if the man- this smut from their homes and keep cause we still have concerns, we continue to agers are here and they want to move pedophiles away from their children. believe that a comprehensive review should forward, to yield back the remaining The American people need not pay twice in be undertaken to guide response to the prob- time. order to keep pornography and filth from lems the Communications Decency Act seeks Mr. EXON. Mr. President, I am pre- tarnishing the sanctity of their homes, the to address. pornographers and the pornography addicts Among these concerns are constitutional pared to yield back the remainder of must find their own, secure adults-only questions raised primarily by the lack of our time, I think about 20 minutes. All stomping grounds and let our kids and fami- scienter required for the age element of sub- I need to do is insert some additional lies enjoy this universal, public service for section (e) of the Exon proposal. In our view, material in the RECORD. If I could have education, enlightenment and entertain- this subsection would consequently have the 1 more minute, I would be prepared to ment. effect of regulating indecent speech between yield back the remainder of my time. consenting adults.1 Subsection (a) does not I introduced a version of this legislation I thank my friend from Vermont for nearly a year ago. The time for study is over. have the same constitutional infirmity be- mentioning the Nebraska football cause of the specific intent requirement that The Congress must step up to the plate. The the communication be done ‘‘with intent to again. I had a letter from Tom law will facilitate free speech by creating an annoy, abuse, threaten, or harass * * *’’, Osborne, the head football coach at the environment through constitutional means which we believe is inconsistent with the University of Nebraska, who wrote, where families and children can enjoy the concept of ‘‘consenting adults.’’ ‘‘Dear Jim: Thank you for what you benefits of the Internet. As described in my June 13 letter, we con- are doing. I hope you are successful in This is a fundamental question of burdens. tinue to have a concern with the ‘‘knowl- passing the legislation.’’ The ‘‘hands off crowd’’ say that the burden edge’’ requirements that were re-inserted in I ask unanimous consent that the lies entirely on the parent. The parent must spend hundreds of dollars on ‘‘blocking’’ soft- the Exon proposal as defenses for certain Osborne letter be printed in the parties. ware and must be with the children 24 hours The defenses included in the Exon proposal RECORD, and I ask unanimous consent a day to assure that they do not access im- would undermine the ability of the Depart- to have printed in the RECORD ‘‘No proper material. The Exon-Coats approach ment of Justice to prosecute an on-line serv- Time to Study.’’ says that parents have responsibilities, but ice provider even though it knowingly prof- There being no objection, the mate- so do on-line service providers, and publish- its from the distribution of obscenity or rial was ordered to be printed in the ers and so does law enforcement. If you oper- 2 child pornography. Although the existence RECORD, as follows: ate an on-line adult pornographic book store, of the defenses in the Exon proposal would movie house or swap meet, you have the bur- NEBRASKA FOOTBALL, make prosecutions under the proposal’s of- den to assure that children do not enter, and Lincoln, NE, February 10, 1995. fenses difficult, if not impossible, they would that you are not trading in illegal obscenity. Senator EXON, not threaten obscenity prosecutions under Those engaging in pornography and inde- Washington, DC. existing statutes. cency should install electronic ‘‘bouncers’’ DEAR JIM: Thanks so much for what you at their electronic doorways. The Supreme I hope this information is helpful to you. are doing in your effort to stop pornography. Court in the Sable case indicated that such Sincerely, I realize this is always a somewhat unpopu- a burden was not a constitutional impedi- KENT MARKUS, lar issue to tackle, however, my experience ment. Acting Assistant Attorney General. has been that pornography is tremendously Mr. LEAHY. Mr. President, let me damaging to young people and women in par- For all the talk about ‘‘technological conclude with this: No Member dis- ticular. fixes’’ it is ironic that one group, the Elec- agrees that we want to keep smut out I hope you are successful in passing the tronic Frontier Foundation, who opposes of the hands of our children. I would re- legislation. this measure in favor of more of the so-called Best wishes, ‘‘parental control’’ posts on the Internet in- mind everybody that the Internet has structions on ‘‘How-to Access Blocked become the tremendous success it is TOM OSBORNE, Head Football Coach. Groups.’’ The fact of the matter is that kids, because it did not have Big Brother, not their parents know ‘‘how-to’’ access ev- the Federal Government, trying to NO TIME TO STUDY erything. micromanage what it does and trying Further study does not solve the problem. The Supreme Court noted that daytime to tell users what it could do. The larger telecommunications reform bill radio is ‘‘uniquely accessible to children.’’ I If the Government had been in charge before the Senate will help link up schools to submit that computers are not only ‘‘unique- of figuring out how to expand the new telecommunications services and ly accessible to children,’’ but also ‘‘uniquely Internet or make it more available and Internet services. As one of the Snowe- inaccessible to their parents.’’ I expect that Rockefeller-Exon-Kerrey amendment au- any child or grandchild with basic computer so on, I guarantee it would not be one- skills can outperform any member of this tenth the success it is today. thors, I am very proud of that fact. In addition, at least two Bell Companies body when it comes to operating a computer. In our appropriate zeal to go after As the Supreme Court has noted in a num- child pornographers, let the Senate not plan to offer Internet access as one of their common carrier services; basic computer ber of cases, the Congress has a compelling kill the Internet or smother it for the software manufacturers now offer ‘‘easy state interest in protecting the physical and 99.9 percent of the people who use it le- Internet access’’ with their programs and psychological health of America’s children. thousands of homes every day subscribe to We should not throw our hands up and allow 1 Subsection (e) of the Exon-Coats measure exacer- new information service providers which every child’s computer to become a branch bates the constitutional concerns because it is even homes Internet access. Let’s not lose sight of office of Pornography Incorporated. more expansive than the similar subsection (e) in the fact that this is a very good thing. This Mr. HATCH. As chairman of the the Exon proposal. is a national policy objective. 2 Committee on the Judiciary, I would The defense in subsection (f)(1) of the Exon-Coats But let us not turn a blind eye to a very se- measure is particularly problematic as it focusses rious problem of obscenity, indecency, elec- like to ask the Senator from Nebraska on whether the service provider has control over the for clarification on one point. Title IV bulletin board service. If the provider does not have tronic stalking and pornography in the digi- control, regardless of whether it has guilty knowl- tal world. Every day the Congress delays in of this legislation, the Communica- edge or intent, it is immune from prosecution. dealing with this problem the pornographers, tions Decency Act, includes provisions June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8345 amending section 223 of the Commu- court to treat the online provider as a terial or the provision of material. To nications Act to address, among other publisher, not simply a distributor, and the extent that enhanced access would issues, the circumstances under which to therefore hold the provider respon- be an offense, this defense does not providers of network services may be sible for defamatory statements made apply to someone who, among other held criminally liable for the trans- by others on the system. I want to be things, manages the prohibited or re- mission or distribution of obscene, in- sure that the intend of the amendment stricted material, charges a fee for decent, or harassing materials. is not to hold a company who tries to such material, provides instructions on Copyright matters are, of course, prevent obscene or indecent material how to access such material or pro- within the jurisdiction of the Judiciary under this section from being held lia- vides an index of the material. This is Committee, and it is my understanding ble as a publisher for defamatory state- merely an illustrative list and not an that those provisions in title IV of the ments for which they would not other- exhaustive list of the types of activi- bill, as reported by the Commerce wise have been liable. ties that would not qualify as solely Committee, were not intended to—and Mr. EXON. Yes; that is the intent of providing access or connection under in fact do not—serve as a precedent for the amendment. subsection (f)(1). addressing copyright infringement car- Mr. COATS. And am I further correct Mr. EXON. I agree with the Senator ried out over online services or other that the subsection (f)(4) defense is in- from Indiana. telecommunications or digital net- tended to protect companies from Mr. BIDEN. Mr. President, I oppose works. Am I correct in that under- being put in such a catch-22 position? If the Exon-Coats second-degree amend- standing? they try to comply with this section by ment, I oppose it not because I disagree Mr. EXON. The Senator is correct. preventing or removing objectionable with its mission—which is to keep chil- The liability standards contained in material, we don’t intend that a court dren out of the redlight districts of the my proposal have no applicability to li- could hold that this is assertion of edi- Internet. With that, I wholeheartedly ability for copyright infringement. Nor torial content control, such that the agree. As has become all too clear, the are they intended to set any precedent company must be treated under the new information superhighway has its in the copyright field. high standard of a publisher for the gritty roadside attractions: as the Sen- Mr. HATCH. I thank my colleague for purposes of offenses such as libel. ator from Nebraska has documented, this clarification. Mr. EXON. Yes; that is the intent of some of the information traveling over Mr. COATS. I wanted to clarify that section (f)(4). the Internet is tasteless, offensive, and it is the intent of this legislation that Mr. COATS. Similarly, if a system downright spine-tingling. I stand with persons who are providing access to or operator discontinued service to a cus- him and the Senator from Indiana in connection with Internet or other elec- tomer who was generating objection- condemning and deploring this stuff— tronic services not under their control able material, it is the intent in offer- and I agree that we should do some- are exempted under this legislation. ing this amendment, and specifically thing here and now to help keep it out Mr. EXON. Defense (f)(1) explicitly the intent of subsection (f)(4), that no of the hands of our kids. exempts a person who merely provides breach of contract action would lie access to or connection with a network against the system operator? But I respectfully disagree with them like the Internet for the act of provid- Mr. EXON. Yes; that is our intent. about how we should go about doing ing such access. Understanding that Mr. COATS. I wanted to clarify that that. I believe there is a better, faster, providing access or connection to on- it is the intent of this legislation that and more effective way to make the in- line services is an action which can in- persons who are providing access to or formation superhighway safe traveling clude other incidental acts, this legis- connection with the Internet or other for our children. If the Exon-Coats pro- lation is intended to exempt from pros- electronic service not under their con- vision passes, we will have mountains ecution the provision of access includ- trol are exempted under this legisla- of litigation over its constitutionality, ing transmission, downloading, stor- tion. dragging on for years and years—and age, and certain navigational functions Mr. EXON. Yes, defense (f)(1) explic- all the while, our kids will be doing which are incidental to providing ac- itly exempts a person who provides ac- what they do best: finding new and bet- cess or connection to a network like cess to or connection with a network ter ways to satisfy their curiosity. the Internet. An online service that is like Internet that is not under that The Exon-Coats amendment would providing its customers with a gateway person’s control. Providing access or make it a crime to send an indecent to networks like the Internet or the connection is meant to include trans- communications over the Internet to worldwide web over which it has no mission, downloading, storage, naviga- anyone under 18. Although that cer- control is generally not aware of the tional tools, and related capabilities tainly sounds good, the problem is this: contents of the communications which which are incidental to the trans- in the world of the Internet—where are being made on these networks, and mission of communications. An online communications are sent out to hun- therefore it should not be responsible service that is providing such services dreds and sometimes hundreds of thou- for those communications. To the ex- is not aware of the contents of the sands of people all at once—a ban on tent that service providers are doing communications and should not be re- material that might reach a child is more than merely providing access to a sponsible for its contents. Of course tantamount to a complete outright facility or network over which they this exemption does not apply where ban. have no control, the exemption would the service provider is owned or con- That’s where the constitutional prob- no longer apply. For instance, if an ac- trolled by or is in conspiracy with a lem comes in. In the case of Sable cess provider were to create a menu to maker of communications that is de- Communications versus FCC, the Su- assist its customers in finding the por- termined to be in violation of this stat- preme Court held that indecent nographic areas of the network, then ute. speech—unlike obscenity—is protected that access provider would be doing Mr. HELMS. Mr. President, I would first amendment expression. The Court more than solely providing access to inquire of the Senator from Indiana if also ruled that although indecent the network. Further, this exemption my understanding is correct that, speech cannot be outlawed, it neverthe- clearly does not apply where the serv- under subsection (f)(1) of your amend- less can be restricted to protect chil- ice provider is owned or controlled by ment, a person is protected solely for dren—provided, however, that the re- or is in conspiracy with a pornographer providing access. Is that correct? strictions are drawn as narrowly as who is making communications in vio- Mr. COATS. The Senator is correct, possible so as not to unduly limit adult lation of this legislation. this is a narrow defense. The defense is access. This is known by lawyers as the Mr. COATS. I understand that in a for solely providing access or connec- least restrictive means requirement. Or recent N.Y. State decision, Stratton tion and not a defense for any person put another way by Justice Frank- Oakmont versus Prodigy, the court or entity that provides anything more furter, you can’t ‘‘burn the house to held that an online provider who than solely providing access. This does roast the pig’’—which is exactly what I screened for obscenities was exerting not create a defense for someone who believe the Exon-Coats provision would editorial content control. This led the has some level of control over the ma- do. S 8346 CONGRESSIONAL RECORD — SENATE June 14, 1995 So I believe there will be a heated I believe that a technology-based so- Exon concerning his proposed Communica- and protracted constitutional chal- lution, as advanced in Senator LEAHY’s tions Decency Act. lenge to this provision. In fact, with amendment, is a better answer—con- My letter to Senator Exon commented on the version of his proposal circulated in his history as our guide, such a challenge stitutionally and practically. The mar- ‘‘dear colleague’’ letter of June 7, 1995 (the is virtually guaranteed: when Congress ket, as we speak, is already developing ‘‘Exon proposal’’). Senator Exon had re- banned Dial-a-Porn services to minors, software and hardware to enable par- quested that we comment on the extent to it took 10 years—and many different ents to block children’s access to filth, which that revised proposal satisfied the attempts by the FCC to write narrowly violence, and other objectionable mate- concerns I detailed to you in my May 3 let- tailored regulations, all of which were rial. I believe it makes more sense, and ter. The letter does not address the Exon- challenged and fully litigated—for the will be more effective, to empower Coats proposal, which we had not seen nor statute to be upheld as constitutional. users to protect themselves and their were aware of until today. We have just Ten years. Multiple rulemaking pro- begun to review this new proposal. children than to attempt a topdown As stated in my letter to Senator Exon, his ceedings. Four different trips up to the model of governmental regulation. proposal still raises a number of complex court of appeals. I, for one, just can’t LEVIN ON EXON AMENDMENT TO S. 652, THE legal and policy issues that call for in-depth wait that long. But more importantly, TELECOMMUNICATIONS BILL analysis prior to congressional action. Be- our children shouldn’t have to wait Mr. LEVIN. Mr. President, I support cause we still have concerns, we continue to that long. I want to get to work right keeping obscene material off the believe that a comprehensive review should now—and come up with the best and internet and other electronic media. be undertaken to guide response to the prob- fastest way to get at this problem. This amendment goes significantly be- lems the Communications Decency Act seeks That is why I support the underlying to address. yond that. The language of the amend- Among these concerns are constitutional Leahy amendment. The Leahy amend- ment before us is so broad and vague questions raised primarily by the lack of ment will get us going right now. It di- that it would subject an American citi- scienter required for the age element of sub- rects the Departments of Justice and zen to criminal liability and possible section (e) of the Exon proposal. In our view, Commerce to quickly come up with imprisonment for two years, a $100,000 this subsection would consequently have the technological solutions—ways by fine or both for making what is termed effect of regulating indecent speech between which parents can screen out of their a ‘‘filthy comment’’ on the internet consenting adults.1 Subsection (a) does not computer systems violent, sexually ex- which, in the words of the amendment, have the same constitutional infirmity be- plicit, harassing, offensive, or other- cause of the specific intent requirement that is intended to annoy. the communication be done ‘‘with intent to wise unwanted material. The Leahy Annoying filthy comments that are annoy, abuse, threaten, or harass . . .’’, measure also directs the Departments put on the internet are reprehensible. which we believe is inconsistent with the to evaluate whether current criminal But, I am afraid the attempt to make concept of ‘‘consenting adults.’’ laws are fully enforceable in inter- such language criminal will backfire As described in my June 13 letter, we con- active media, and to assess law en- and make it more difficult for us to ef- tinue to have a concern with the ‘‘knowl- forcement resources currently avail- fectively prohibit abusive and threat- edge’’ requirements that were re-inserted in able to enforce these laws. ening activities and pornographic ma- the Exon proposal as defenses for certain The Leahy amendment doesn’t stop parties. terial aimed at children and adults. The defenses included in the Exon proposal there: it requires that the Departments Our best chance to meet this objective would undermine the ability of the Depart- also submit a legislative proposal with is through means which are Constitu- ment of Justice to prosecute an on-line serv- their study—outlining how best, tech- tional. ice provider even though it knowingly prof- nologically, to empower parents to pro- That is why I support the underlying its from the distribution of obscenity or tect their kids; how to amend, if nec- Leahy amendment to protect the child pornography.2 Although the existence essary, our laws to better crack down internet and other electronic media of the defenses in the Exon proposal would on pornographers; how law enforce- from obscene material. The Leahy make prosecutions under the proposal’s of- ment resources should be allocated Amendment would require the Attor- fenses difficult, if not impossible, they would not threaten obscenity prosecutions under more effectively. ney General of the United States with- existing statutes. What’s more, the Leahy amendment in 150 days to produce Constitutional I hope this information is helpful to you. puts that legislation on a fast-track legislation to address the problem. The Sincerely, schedule. That means that it would Leahy Amendment also provides for ex- KENT MARKUS, only be a matter of months—not 1 pedited procedures which would permit Acting Assistant Attorney General. year, 5 years, or 10 years—for us to the Congress to consider such legisla- FOOTNOTES have taken smart and effective action tion quickly. I believe this is the more 1 Subsection (e) of the Exon-Coats measure exacer- to get at this problem. effective course to protect the internet bates the constitutional concerns because it is even Government censorship, in this in- and other telecommunications media. more expansive than the similar subsection (e) in the Exon proposal. stance, is not just a bad idea in the Mr. President, I ask unanimous con- 2 The defense is subsection (f)(1) of the Exon-Coats eyes of first amendment scholars and sent to have a letter printed from the measure is particularly problematic as it focuses on activists. It’s also a bad idea when it Department of Justice at this point in whether the service provider has control over the bulletin board service. If the provider does not have comes to the eyes and minds of our the CONGRESSIONAL RECORD. The letter control, regardless of whether it has guilty knowl- children. While we might be able to states, in part, ‘‘Defenses included in edge or intent, it is immune from prosecution. shut down some of the filthy talk on the Exon proposal would undermine Mr. EXON. With that, if the Senator the net, we simply can’t do the job the ability of the Department of Jus- from Vermont is ready to yield back, I right this way—we can’t prevent access tice to prosecute an on-line service am ready to yield back our time. to sexually explicit information from provider even though it knowingly Mr. LEAHY. I yield back my time. Finland, Sweden, Japan or other coun- profits from the distribution of obscen- The PRESIDING OFFICER. The tries, all of which are part of the ity or child pornography.’’ question is on agreeing to the amend- Internet community. The Department of Justice letter ment numbered 1362. I also want to say that I—and I’m also states that for many other reasons Mr. LEAHY. Mr. President, I ask for sure I’m joined by many parents across a comprehensive review should be the yeas and nays. the country—am also very concerned made before Congress acts. The PRESIDING OFFICER. Is there a about violent material on the net. As There being no objection, the letter sufficient second? the Judiciary Committee has learned was ordered to be printed in the There is a sufficient second. in some detail, you can learn all about RECORD, as follows: The yeas and nays were ordered. bomb-building and other ways of war U.S. DEPARTMENT OF JUSTICE, The PRESIDING OFFICER. The and destruction online. The Exon-Coats OFFICE OF LEGISLATIVE AFFAIRS, question is on agreeing to the amend- provision doesn’t address violence. The Washington, DC. ment of the Senator from Nebraska. Leahy amendment, with its headlights Senator PATRICK J. LEAHY, The clerk will call the roll. United States Senate, Washington, DC. aimed at technology to screen out vio- DEAR SENATOR LEAHY: This is in response The bill clerk called the roll. lent as well as offensive and sexually to your June 14, 1995 letter to me posing explicit material, does. questions about my June 13 letter to Senator 1 Footnotes at end of letter. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8347 The PRESIDING OFFICER. Are there Mr. DOLE. As I understand, they Mr. LEAHY. If the Senator will yield, any other Senators in the Chamber need to take care of the underlying the major one that I had was dialing who desire to vote? amendment. parity. At one time, we thought it The result was announced, yeas 84, Mr. LEAHY. Mr. President, if the would take several hours. I think Sen- nays 16, as follows: majority leader will yield, the Leahy ator BREAUX and I have worked out a [Rollcall Vote No. 263 Leg.] amendment has now been amended by consensus. I suspect, once you have YEAS—84 the Exon amendment. Because many, gotten your unanimous consent, if the Abraham Exon Lott many Senators supported the amend- managers yield to us, we can probably Akaka Faircloth Lugar ment as one by itself—obviously, the dispose of it in 10 minutes. Ashcroft Feinstein Mack majority support the Exon amend- Mr. DOLE. Let us do that right now. Baucus Ford McCain Then I will come back after that and Bennett Frist McConnell ment—there is really no reason to have Bond Gorton Mikulski a rollcall vote on my amendment. try to get consent on these other Boxer Graham Murkowski I recommend we adopt the Leahy things. In the meantime, if somebody Bradley Gramm Nickles amendment, as amended by the Exon else has an amendment they feel a Breaux Grams Nunn Brown Grassley Packwood amendment, by voice vote. compelling desire to offer, we would Bryan Gregg Pell The PRESIDING OFFICER. The appreciate that information, because it Bumpers Harkin Pressler question is on agreeing to amendment might determine how long we stay to- Burns Hatch Pryor No. 1288, as modified, as amended. night. Byrd Hatfield Reid Campbell Heflin Rockefeller The amendment (No. 1228) was agreed Several Senators addressed the Coats Helms Roth to. Chair. Cochran Hollings Santorum Mr. EXON. Mr. President, I move to The PRESIDING OFFICER. The Sen- Cohen Hutchison Sarbanes reconsider the vote by which the ator from Vermont. Conrad Inhofe Shelby Coverdell Inouye Simpson amendment was agreed to. Mr. LEAHY. Mr. President, person- Craig Johnston Smith Mr. PRESSLER. I move to lay that ally, I like the plan that the majority D’Amato Kassebaum Snowe motion on the table. leader has laid down. As he knows, we Daschle Kempthorne Specter DeWine Kerrey Stevens The motion to lay on the table was tried on this other one to move as Dodd Kerry Thomas agreed to. quickly as we could, and we moved it Dole Kohl Thompson Mr. DOLE addressed the Chair. much faster than some thought. I note Domenici Kyl Thurmond The PRESIDING OFFICER. The ma- in that regard, I appreciate those who Dorgan Lautenberg Warner jority leader. expressed their concern in wanting to NAYS—16 Mr. DOLE. Mr. President, I am try- protect the Internet but also to protect Biden Kennedy Murray ing to determine when we can complete children from being exposed to smut Bingaman Leahy Robb action on this bill. We had a heavy, and pornography. I will state again, Chafee Levin Simon positive vote on cloture. I am going to Feingold Lieberman Wellstone the protection of children is something Glenn Moseley-Braun read a statement that I think satisfies we all want equally in this body. We Jeffords Moynihan the managers of the bill to see if we just have different ways of trying to So, the amendment (No. 1362) was can get some agreement, some accom- figure out ultimately how to protect agreed to. modation. The managers have been them and the first amendment at the Mr. FORD. Mr. President, I move to working toward a final resolution of same time. reconsider the vote. this bill that encompasses the follow- I hope we go to the dialing parity. I Mr. COATS. I move to lay that mo- ing request. I am not going to try to ask unanimous consent that it be in tion on the table. get the agreement, but I will read it: order for me to yield to the Senator The motion to lay on the table was That all amendments qualified from Louisiana to bring up an amend- agreed to. postcloture must be called up by num- ment on behalf of himself and myself. The PRESIDING OFFICER (Mr. ber by 7:30 p.m.; that all amendments That may settle that part and save us DEWINE). The majority leader is recog- be limited to 15 minutes, 30 minutes for several hours. nized. second degrees, for the debate to Mr. STEVENS. Reserving the right SUBMITTED AMENDMENT NO. 1286, AS MODIFIED occur—we are not certain about this— to object, if that is a request, we have Mr. SIMON. Mr. President, will the either tonight or beginning at 9 o’clock worked out an agreement on three Senator yield for a unanimous-consent in the morning. If some of those can be technical amendments that deal with request? debated tonight, it can save us time to- an amendment I previously offered, and Mr. DOLE. I yield to the Senator morrow morning. If we can get the I would like to get an agreement on from Illinois for a unanimous-consent agreement, then rollcall votes will be those. We will proceed with them later request. stacked to begin at 12:30 p.m. I would in the evening, but I want to make sure Mr. SIMON. Mr. President, I thank rather begin at an earlier time tomor- we have an agreement before we get the majority leader for yielding. row, but I understand there is a prob- into this other unanimous-consent On my amendment No. 1286, there is lem on that side. If we can resolve agreement. a technical error. I ask unanimous con- that, they will begin earlier, with the Will the Senator yield to me for the sent to correct that error. There is no last vote in the voting sequence being purpose of a unanimous-consent re- objection by Senators. final passage of the telecommuni- quest? The PRESIDING OFFICER. Is there cations bill. Mr. LEAHY. Mr. President, I yield to objection? Without objection, it is so After that, if get consent, we will go the Senator from Alaska for the pur- ordered. to the highway bill, S. 440, which I un- pose of making a unanimous-consent The submitted amendment (No. 1286), derstand there are a couple major is- request without losing my right to the as modified, is as follows: sues, but, otherwise, we should be able floor. On page 79, line 11, in the language added to finish that by Friday sometime. Mr. STEVENS. Mr. President, I ask by the Dole Amendment No. 1255 as modified, So if Senators have amendments, the unanimous consent that there be 10 insert the following: point is they ought to be letting the minutes equally divided for the consid- (b)(3) SUPERSEDING RULE ON RADIO OWNER- managers know. We think there are eration of my amendments 1301, 1302, SHIP.—In lieu of making the modification re- only about six, maybe a few more than and 1304; that at the end of that 10 min- quired by the first sentence of subsection (b)(2), the Commission shall modify its rules that. I understand Senator STEVENS utes, we then proceed to consider, set forth in 47 CFR 73,3555 by limiting to 50 has some that may be accepted. Sen- without any intervening action or de- AM and 50 FM broadcast stations the num- ator LEAHY has one that is going to be bate, each of the three amendments. I ber of such stations which may be owned or accepted. That would leave one by Sen- will at that time ask that they be con- controlled by one entity nationally. ator LIEBERMAN, one by Senator SIMON, sidered en bloc, but I think they should Mr. DOLE addressed the Chair. one by Senator MCCAIN, one by Senator be explained first; in addition, that The PRESIDING OFFICER. The ma- HARKIN, and then the managers’ after consultation with the Members jority leader. amendment. involved, I ask unanimous consent that S 8348 CONGRESSIONAL RECORD — SENATE June 14, 1995 a modification to amendment No. 1301 interLATA services in such telephone ex- One of the things I have always advo- be permitted prior to the vote on that change area or until three years after the cated is that companies, when they are amendment. date of enactment of the Telecommuni- allowed to move into another area, The PRESIDING OFFICER. Is there cations Act of 1995, whichever is earlier.’’ know that their competition will also objection? Without objection, it is so Mr. BREAUX. Mr. President, I thank be able to compete in their areas at the ordered. the Senator from Vermont for yielding same time. Mr. LEAHY. Mr. President, I believe to me for this purpose and thank him So, Mr. President, I think that the I still have the floor. for working with me and with the dis- amendment is clear, as clear as it pos- The PRESIDING OFFICER. The Sen- tinguished chairman of the committee, sibly can be, in dealing with a very ator from Vermont. as well as the distinguished ranking complicated situation. I think it con- Mr. LEAHY. Mr. President, as I stat- member of the committee, as well as a tinues with the thrust of the commit- ed earlier, I think there was general number of other Members in the body. tee product, which says we want a level We have tried to work really for the agreement among the body that we playing field. That is what this amend- past 2 to 3 days on trying to develop a wanted to find a way to approach what ment addresses dealing with dialing consensus amendment, which I think many see as a problem on the Internet. parity. We had different ways of approaching we now have, which I think solves the I thank all of the Members who had problem both from a sense of fairness it. I note that only because those who major input in helping us craft this. It as well as a sense of trying to encour- supported the underlying amendment has been a bipartisan effort, worked on age additional companies to do what were trying to find the most constitu- by people whose concerns were making tional way of doing it. It was not a case they can do best. I think the basic thrust of this tele- sure we treated long distance compa- of anybody—anybody—in this body communications bill is to promote nies fairly, as well as Members who being in favor of providing pornog- competition. I think the Commerce were concerned about making sure we raphy to children, it simply should go Committee has done a tremendous job treated regional Bells fairly at the without saying, but so there will not be in reporting to the body a bill that, in same time. I think both sides have any mistake on that point. fact, does say to all of the companies, given a product that we now have pend- Mr. President, I yield to my friend whether they be long distance compa- ing before the Senate, and it is a good from Louisiana. He has an amendment nies or whether they be the so-called one. on behalf of the two of us. regional Bell companies, that we want I urge my colleagues to support it by AMENDMENT NO. 1421 you to be able to do what you do best, a voice vote, which is what I hope we Mr. BREAUX. Mr. President, I ask we want you to compete, we want you will be able to do to dispose of it. unanimous consent that the Breaux- to provide good service at a good price Mr. GRAHAM. Will the Senator Leahy amendment at the desk be in to the consumers of America. And the yield? Mr. BREAUX. Yes. order. big problem is then trying to manage Mr. GRAHAM. I briefly had an oppor- The PRESIDING OFFICER. Will the these various companies to make sure tunity to look at the amendment. I Senator state the number? everybody is treated fairly. We wanted asked for a copy to review it in more Mr. BREAUX. It is an amendment to try to make sure no company got an detail. Let me ask a question from the entitled Breaux-Leahy at the desk. economic advantage, because of legis- perspective of my State. The recent The PRESIDING OFFICER. Without lation, over any other company. I objection, it is so ordered. The clerk think the bill does do that. One of the Florida legislature of this spring will report. features of the legislation is that we passed an interLATA dialing parity The assistant legislative clerk read sort of said, when you can do long dis- bill. That legislation goes into effect as follows: tance service, the long distance compa- on January 1, 1996. What effect will The Senator from Louisiana [Mr. BREAUX], nies can do local service. It is sort of this amendment have on my State’s for himself and Mr. LEAHY, proposes an saying that everybody is going to be ability to adopt dialing parity? amendment numbered 1421. able to start competing at the same Mr. BREAUX. I will respond to the Mr. BREAUX. Mr. President, I ask time. One of the provisions in the bill Senator by saying that we have tried unanimous consent that the reading of dealt with a prohibition. It said simply to take into consideration two types of the amendment be dispensed with. that States could not order long dis- States in our amendment. The first The PRESIDING OFFICER. Without tance companies to be able to receive would be about 10 States that are sin- objection, it is so ordered. dialing parity when they do long dis- gle-LATA States, which means they The amendment is as follows: tance service within an intraLATA sit- only have one division of what can hap- On page 93, strike lines 7–12 and insert the uation, within a State. pen in their State. That does not in- following: Mr. President, we thought that the clude Florida. The second category in- ‘‘(ii) Except for single-LATA States and Commerce Committee provision that cludes Florida—except States which States which have issued an order by June 1, restricted that ability of a State was a have issued an order by June 1, 1995, re- 1995 requiring a Bell operating company to good idea. It was consistent with what quiring this dialing parity, those implement toll dealing parity, a State may Judge Greene said. But there were con- States would be able to go forward not require a Bell operating company to im- with those orders, and they would be plement toll dialing parity in an intraLATA cerns, particularly by the Senator from area before a Bell operating company has Vermont, who said that, no, the States able to implement those orders. The been granted authority under this subsection should be able to move forward. We only protection that is required—which to provide interLATA services in that area have crafted an amendment that the I think is a level playing field—is that or before three years after the date of enact- Senator from Vermont really was help- they would not be able to have joint ment of the Telecommunications Act of 1995, ful in putting together, which said that marketing agreements in those areas. whichever is earlier. Nothing in this clause those States that have only one LATA But the State of Florida would be able precludes a State from issuing an order re- and already have issued orders to re- to go forward with that order and im- quiring toll dialing parity in an intraLATA plement it. In essence, the State of area prior to either such date so long as such quire dialing parity would be exempted order does not take effect until after the ear- from that prohibition in a way that Florida would be grandfathered in be- lier of either such dates. would allow that State to take action cause they are a State that already is- (iii) In any State in which intraLATA toll on ordering parity. sued the order at the State level. dialing parity has been implemented prior to This amendment specifies that clear- Mr. GRAHAM. Well, I am not certain the earlier date specified in clause (ii), no ly. It also says, as a precaution and a if they have issued an order or not. My telecommunications carrier that serves protection that guarantees equal op- information is that the legislation goes greater than five percent of the nation’s portunity for all of the companies, that into effect on January 1, 1996. I am not presubscribed access lines may jointly mar- those States, while they would be able certain if that is the threshold that ket interLATA telecommunications services and intraLATA toll telecommunications to order dialing parity, they would not brings a State into the category of services in a telephone exchange area in such be able to allow for joint marketing in those which will still be allowed to ex- state until a Bell operating company is au- those areas. I think that is a good bal- ercise some degree of State regulation thorized under this subsection to provide ance and is fair treatment. over dialing parity. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8349 Mr. BREAUX. My answer to the Sen- plus a special 5-digit access code plus until the Bell companies got into the ator from Florida is simply, yes. The the 7-digit telephone number, for a interexchange long-distance market, explanation is that it is based on the total of 13 digits to complete the call. real competition would not come to the States’ issuing the order, not the effec- Dialing these extra digits severely multibillion-dollar in-State toll mar- tive date. The State of Florida, for in- handicaps competition and gives an ar- ket. stance, would have issued the order in tificial advantage to Bell companies. I have heard some concern that in- a timely fashion in order to be one of This handicap is anticompetitive and State dialing parity might increase the excepted States. anticonsumer. local rates and thereby harm universal Mr. LEAHY. If the Senator will yield, Dialing parity for in-State toll calls service. The 10 States that have or- the Senator from Louisiana is abso- enhances competition for toll services. dered dialing parity have carefully lutely correct. Florida, having ordered Requiring dialing parity overcomes the analyzed and considered the effect of it, even though they have not imple- primary obstacle to meaningful com- dialing parity on local rates. mented it, would be covered by the petition in these short-haul long dis- They have ordered dialing parity Breaux-Leahy amendment and would tance markets. after determining that universal serv- be protected. Without dialing parity, intraLATA ice will not be harmed, and that equal Mr. GRAHAM. Thank you. toll calls are simply carried by the access is necessary for effective com- Mr. BREAUX. Mr. President, I have local exchange carrier. petition. Competition reduces total no additional requests for time on be- For Vermont, a one ‘‘LATA’’ State, costs for consumers and results in new half of my amendment. this means that NYNEX carries the services and technological advance- Mr. LEAHY. The Breaux-Leahy bulk of in-State toll calls, because ments. These advances in technology amendment makes a significant im- other toll call carriers may only be have reduced the cost of providing provement in S. 652, and will permit accessed by dialing cumbersome access basic service and provided new revenue States, at a time certain, to create a codes. Consumers are the losers. sources for the Bell companies. more competitive market for their in- When dialing parity is implemented, Some States may decide that cir- state toll calls. customers will be able to choose the cumstances in their regions are such Without this amendment, S. 652 carrier that carries their in-State toll that dialing parity for in-State toll would have prohibited all States from calls with the same convenient ‘‘1+’’ di- calls is not in the public interest. In ordering a Bell operating company to aling that they have had available for 1987, Vermont decided against requir- provide dialing parity for in-State toll long-distance calling for many years. ing presubscription and dialing parity, calls before the company is authorized Customers will be able to pre-select but this issue is currently being recon- to provide long-distance service in that their carrier for these calls, just as sidered. The Breaux-Leahy amendment area. The bill preempted States’ pre- there is presubscription for long-dis- would permit the 10 States that have rogative to open up the in-State toll tance carriers. already ordered it, based upon the par- market to meaningful competition. The availability of dialing parity for ticular circumstances present in the This preemption would persist under in-State toll service should substan- State, to continue implementation of the bill, as reported by the committee, tially increase competition in this dialing parity. The intraLATA toll dialing parity until the Bell operating company in multibillion dollar telecommuni- preemption provision in S. 652, as re- the State satisfied the unbundling and cations market. Increased competition, ported, is opposed by consumer groups, interconnection requirements in the in turn, would bring lower prices for long-distance carriers, alternative bill and was permitted into the long- consumers and less need for regulation local transport providers, and State or- distance market. of such services by State public service ganizations such as the National Asso- In addition, as introduced, the bill commissions. ciation of Regulatory Utility Commis- rolled back the actions of 10 States A recent Wall Street Journal article sioners [NARUC], and the Attorneys that have already ordered local tele- stated, ‘‘in California, MCI’s direct-dial General of 22 States and Guam. phone companies to provide dialing toll rates are as much as 30 percent In March 31, 1995 letter to Senator cheaper than Pacific Bell’s in some parity for in-State toll calls. PRESSLER, NARUC wrote that: The 10 States that would have had to cases. Similar savings can be had in The blanket preemption of states that undo their dialing parity requirements other major markets across the coun- have already mandated dialing parity will are: Illinois, Wyoming, Wisconsin, try.’’ In general, in-State toll calls are undercut state efforts, already in place, to Michigan, Florida, Connecticut, Geor- significantly lower-priced where effec- encourage competition and bring lower gia, Kentucky, Minnesota, and New tive competition is introduced. Imple- prices and more choice to consumers. York. mentation of toll dialing parity would The Breaux-Leahy amendment would These States recognize that dialing help accomplish that result. permit single-LATA States, including parity is a key to healthy competition By preserving the Bell companies’ Vermont, Maine, Wyoming, New Hamp- for in-State toll calls. dominant position in these markets shire, Rhode Island, New Mexico, Utah They should not be second-guessed until they secure long distance entry, and South Dakota, and the 10 States, and preempted on the Federal level. the bill as reported would have dimin- which have ordered intraLATA toll di- The bill would have stopped and re- ished, rather than increased, the Bell aling parity, to implement dialing par- versed this progress toward a competi- companies’ incentives to open their ity, whether or not the RBOC in the tive market. The bill would also forbid markets to competition as rapidly as State has been authorized to provide all other States, many of which are possible. interexchange service. considering changes, from implement- S. 652 provided a disincentive for the In addition, the Breaux-Leahy ing dialing parity until the regional Bell companies to open their local ex- amendment provides a time certain for Bell operating companies [RBOCs] are change markets so that they could all other States to be able to imple- allowed into the intraLATA long dis- compete in all segments of the long ment such dialing parity of the earlier tance market as a result, the States distance market. Instead, the bill of 3 years after enactment or when the were left with no time certain for when might have encouraged the Bell compa- RBOC is granted authority to provide they could require dialing parity for nies’ to fight competition in their local interexchange service. The preemption intraLATA calls. markets, because as long as they do ‘‘sunset’’ of 3 years permits those 13 Without dialing parity for toll calls, not enter the interLATA market, their States, Arizona, California, Delaware, Bell company customers can place an lucrative intraLATA toll markets are Indiana, Kansas, Louisiana, Massachu- in-State toll call simply by dialing 1 protected. setts, New Jersey, Pennsylvania, plus the seven-digit telephone number, The bill, as reported, also puts un- Texas, Vermont, Washington, and West for a total of eight digits to complete warranted pressure on the regulatory Virginia—with proceedings underway, the call. agencies to approve Bell companies time to complete their proceedings, By contrast, customers who want to entry into the long-distance market, issue any order for intraLATA toll di- use their long distance company to interLATA entry, regardless of the sta- aling parity and make plans for imple- complete that same call must dial 1 tus of local competition under the bill, mentation, though those States may S 8350 CONGRESSIONAL RECORD — SENATE June 14, 1995 not implement until the earlier of 36 had a chance to review them, and I be- rately. The question is on agreeing to months or until the RBDOC is author- lieve they have signed off. What they the amendment. ized to provide inter-exchange services. do is deal with program access. They The amendment (No. 1317) was agreed Finally, in those States where make it clear that the rules are the to. intraLATA toll dialing parity has been same for both cable operators and tele- Mr. PRESSLER. I move to reconsider implemented—not merely ordered— phone companies. This is an area in the vote. during the 3 years after enactment or which, it seemed to me, it was appro- Mr. BROWN. I move to lay that mo- before the RBOC in the State has been priate to have consistent rules and tion on the table. authorized to provide interexchange treat both of them the same. The motion to lay on the table was service, whichever is earlier, the The PRESIDING OFFICER. Is there agreed to. Breaux-Leahy amendment would bar further debate? Mr. BROWN. Mr. President, I ask telecommunications carriers in that Mr. PRESSLER. Mr. President, per- unanimous consent to set aside amend- State from jointly marketing haps my colleague will speak on the ment No. 1318. interLATA and intraLATA services. amendments, and then we will be sure The PRESIDING OFFICER. Without This ban would be lifted or ‘‘sunset’’, 3 we get an agreement here. objection, it is so ordered. years after enactment or when the Mr. BROWN. Mr. President, on AMENDMENT NO. 1319 WITHDRAWN RBOC in the State was authorized to amendment No. 1317, the amendment Mr. BROWN. Mr. President, I ask offer interexchange services, whichever to the managers’ amendment, on page unanimous consent to withdraw is earlier. Furthermore, this ban only 13, line 20, after the word ‘‘program- amendment No. 1319. That is not one applies to carriers serving greater than ming’’ we insert the words ‘‘by any we have been able to reach agreement 5 percent of the Nation’s presubscribed means.’’ And on amendment No. 1318, on. access lines. which deals with page 12 of the man- The PRESIDING OFFICER. Without The biggest telecommunications leg- agers’ amendment, line 10, after the objection, it is so ordered. islative reform package in more than word ‘‘service,’’ it inserts ‘‘or its affili- So the amendment (No. 1319) was 60 years should not include provisions ates.’’ withdrawn. that reverse progress toward competi- The purpose of these two amend- Mr. BROWN. Mr. President, my tion. Supporting this amendment is ments is to make it clear that the rules amendment No. 1320 is one we are at- proconsumer, procompetitive, and pro- were the same for both cable operators tempting to clear on both sides. It is an States’ rights. and telephone companies in the area of amendment which I believe both sides The PRESIDING OFFICER. Is there program access. It seemed appropriate have a copy of. My hope is that we will further debate? to treat both kinds of firms the same shortly be able to deal with both The question is on agreeing to the under these circumstances. amendments numbered 1318 and 1320. I amendment. I believe the amendment is more in yield the floor. terms of a technical amendment than a The amendment (No. 1421) was agreed AMENDMENT NO. 1272 substantive amendment, in terms of to. (Purpose: To require broadcasters to review Mr. LEAHY. Mr. President, I move to the major policy issues this body has viewer input on the violent content of pro- reconsider the vote. been dealing with. gramming upon license renewal) Mr. BREAUX. I move to lay that mo- Mr. President, if I might correct Mr. DORGAN. Mr. President, I send tion on the table. something. Amendment No. 1318 is an to the desk amendment No. 1272 and The motion to lay on the table was amendment to the bill itself. Amend- ask for its immediate consideration. agreed to. ment No. 1317 is the amendment to the The PRESIDING OFFICER. The Mr. PRESSLER. Mr. President, I sin- managers’ amendment. clerk will report. cerely thank the Senators and their Mr. PRESSLER. Mr. President, I sug- The assistant legislative clerk read staffs who worked that out. That was gest the absence of a quorum. as follows: The PRESIDING OFFICER. The truly a remarkable compromise. I The Senator from North Dakota [Mr. DOR- thank them very much. clerk will call the roll. The legislative clerk proceeded to GAN] PROPOSES AN AMENDMENT NUMBERED 1272. I urge Senators to bring their amend- Mr. DORGAN. Mr. President, I ask ments to the floor. We are marching call the roll. Mr. DOLE. Mr. President, I ask unan- that reading of the amendment be dis- forward, but we need everybody who imous consent that the order for the pensed with. has an amendment to get over here. quorum call be rescinded. The PRESIDING OFFICER. Without AMENDMENTS NOS. 1317 AND 1318, EN BLOC The PRESIDING OFFICER. Without objection, it is so ordered. Mr. BROWN. Mr. President, I send objection, it is so ordered. The amendment is as follows: two amendments to the desk, en bloc, Mr. DOLE. I am advised that I can On page 82, between lines 4 and 5, insert and ask for their immediate consider- make the following request that has the following: ation. been cleared on both sides. (3) This section shall operate only if the The PRESIDING OFFICER. The I ask unanimous consent all remain- Commission shall amend its ‘‘Application for clerk will report. ing first-degree amendments be offered renewal of License for AM, FM, TV, Trans- lator or LPTV Station’’ (FCC Form 303–S) to The assistant legislative clerk read by 7:30 p.m. this evening. as follows: require that, for commercial TV applicants The PRESIDING OFFICER. Without only, the applicant attach as an exhibit to The Senator from Colorado [Mr. BROWN] objection, it is so ordered. the application a summary of written com- proposes amendments numbered 1317 and Mr. DOLE. Let me indicate, at 7:30, ments and suggestions received from the 1318, en bloc. we will assess and see where we are. If public and maintained by the licensee in ac- Mr. BROWN. Mr. President, I ask we can work it out, we will try to ac- cordance with 47 C.F.R. sec. 73.1202 that com- unanimous consent that reading of the commodate most of my colleagues. ment on the applicant’s programming, if amendments be dispensed with. I understand there may be a movie any, characterized by the commentor as con- The PRESIDING OFFICER. Without tonight—Batman or something—that stituting violent programming. objection, it is so ordered. many of my colleagues are headed for. Mr. DORGAN. Mr. President, this is a The amendments are as follows: It is a good movie, I understand, too. very simple amendment. I shall not AMENDMENT NO. 1317 VOTE ON AMENDMENT NO. 1317 take a great deal of time to explain it. In managers’ amendment, on page 13, line Mr. BROWN. Mr. President, we have We have visited with both the chair- 20, after ‘‘programming’’ insert: ‘‘by any worked out approval of amendment No. man of the committee and the minor- means’’. 1317. My understanding is it has been ity member, the ranking minority signed off on both sides. member, on this issue. I know the AMENDMENT NO. 1318 Mr. PRESSLER. We have no objec- ranking minority member is inclined On page 12, line 10 insert after ‘‘services’’: tion, and we are in support of that to accept. I have not heard back from ‘‘or its affiliate’’. amendment. the Chair. Mr. BROWN. Mr. President, these are The PRESIDING OFFICER. Amend- Let me describe exactly what this technical amendments. Both sides have ment 1317 will now be considered sepa- does. It follows on the vote that we had June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8351 yesterday on the issue of television vi- require the television stations to col- other forms of assistance from the Corpora- olence. I had originally thought about lect information that they are not now tion; bringing to the floor the television vio- collecting. It simply requires that the (C) to establish criteria for encouraging lence report card, but I decided not to information they now have that is in States to— (i) create, maintain, utilize and upgrade do that. their files must be disclosed and sum- interactive high capacity networks capable My amendment would do something marized with respect to comments they of providing audio, visual and data commu- that is very simple: It would deal with have received from viewers on tele- nications for elementary schools, secondary the application to renewal of licenses vision violence when they file for re- schools and public libraries; for televisions and say that for com- newal of their license. (ii) distribute resources to assure equitable mercial television applicants, for re- Mr. President, I yield the floor. aid to all elementary schools and secondary newal, the applicants would attach as Mr. PRESSLER. Mr. President, we schools in the State and achieve universal an exhibit for the application for re- are prepared to accept the amendment. access to network technology; and (iii) upgrade the delivery and development newal a summary of written comments The PRESIDING OFFICER. If there of learning through innovative technology- and suggestions received by the public is no further debate, the question is on based instructional tools and applications; and maintained by the licensee—which agreeing to the amendment numbered (D) to provide loans, grants and other is, incidentally, now required—and 1272. forms of assistance to State education tech- that comment on the applicants pro- The amendment (No. 1272) was agreed nology agencies, with due regard for provid- gramming, if characterized by the com- to. ing a fair balance among types of school dis- menters as constituting violent pro- Mr. PRESSLER. I move to reconsider tricts and public libraries assisted and the gramming. the vote, and I move to lay that mo- disparate needs of such districts and librar- ies; What this says is, when you are doing tion on the table. (E) to leverage resources to provide maxi- a renewal of application, you are a tel- The motion to lay on the table was mum aid to elementary schools, secondary evision station and you are filing for a agreed to. schools and public libraries; and renewal of your license, that in your The PRESIDING OFFICER. Without (F) to encourage the development of edu- application, you shall provide a sum- objection, it is so ordered. cation telecommunications and information mary of written comments and sugges- Mr. PRESSLER. Mr. President, if technologies through public-private ven- tions that are in your file that you are Senators will bring their amendments tures, by serving as a clearinghouse for in- required to keep, anyway, with respect to the floor, we are eagerly awaiting. formation on new education technologies, and by providing technical assistance, in- to those who comment on violent pro- We want to do business here. We only cluding assistance to States, if needed, to es- gramming that your viewers have wit- have an hour and a half. tablish State education technology agencies. nessed and felt they wanted to bring to The PRESIDING OFFICER. The Sen- (b) PURPOSE.—The purpose of this title is your attention, and that that informa- ator from South Carolina. to recognize the Corporation as a nonprofit tion should be available to the FCC. AMENDMENT NO. 1282, AS FURTHER MODIFIED corporation operating under the laws of the It does not in any way expand the Mr. HOLLINGS. On behalf of Senator District of Columbia, and to provide author- power of the FCC. It simply will re- ity for Federal departments and agencies to MOSELEY-BRAUN, I ask unanimous con- provide assistance to the Corporation. quire the disclosure and summary of sent amendment 1282 be further modi- SEC. —03. DEFINITIONS. information that is already in the file fied as indicated in the modification that is now required by law to be kept, For the purpose of this title— that I send to the desk. (1) the term ‘‘Corporation’’ means the Na- and I think it will emphasize in a re- The PRESIDING OFFICER. Without tional Education Technology Funding Cor- newal for application any information objection, it is so ordered. poration described in section ll 02(a)(1); that would exist in those files about The amendment (No. 1282), as further (2) the terms ‘‘elementary school’’ and viewers’ concerns about violent pro- modified, is as follows: ‘‘secondary school’’ have the same meanings gramming. At the end of the bill, insert the following: given such terms in section 14101 of the Ele- I think that that would be something mentary and Secondary Education Act of TITLE —NATIONAL EDUCATION 1965; and the FCC would find useful in reviewing TECHNOLOGY FUNDING CORPORATION the renewal of applications. I think it (3) the term ‘‘public library’’ has the same also follows on the vote that we had SEC. —01. SHORT TITLE. meaning given such term in section 3 of the This title may be cited as the ‘‘National Library Services and Construction Act. yesterday on television violence. My Education Technology Funding Corporation SEC. —04. ASSISTANCE FOR EDUCATION TECH- colleague, Senator CONRAD from North Act of 1995’’. NOLOGY PURPOSES. Dakota, offered an amendment with SEC. —02. FINDINGS; PURPOSE. (a) RECEIPT BY CORPORATION.—Notwith- Senator LIEBERMAN, which I voted for, (a) FINDINGS.—The Congress finds as fol- standing any other provision of law, in order on the issue of television violence. lows: to carry out the corporate purposes de- I have a piece of legislation that I co- (1) CORPORATION.—There has been estab- scribed in section ll 02(a)(3), the Corpora- sponsored with Senator KAY BAILEY lished in the District of Columbia a private, tion shall be eligible to receive discretionary HUTCHISON on television violence, call- nonprofit corporation known as the National grants, contracts, gifts, contributions, or ing for the development of a television Education Technology Funding Corporation technical assistance from any federal depart- ment or agency, to the extent otherwise per- violence report card so that parents which is not an agency or independent estab- lishment of the Federal Government. mitted by law. would know which are the most violent (2) BOARD OF DIRECTORS.—The Corporation (b) AGREEMENT.—In order to receive any programs, which programs have the is governed by a Board of Directors, as pre- assistance described in subsection (a) the most violence in them, and who spon- scribed in the Corporation’s articles of incor- Corporation shall enter into an agreement sors them. Parents would, therefore, be poration, consisting of 15 members, of with the Federal department or agency pro able to better supervise their children’s which— viding such assistance, under which the Cor- viewing habits and send messages to (A) five members are representative of pub- poration agrees— those who are sponsoring the violence. lic agencies representative of schools and (1) to use such assistance to provide fund- I have not offered that. Instead, I am public libraries; ing and technical assistance only for activi- (B) five members are representative of ties which the Board of Directors of the Cor- offering something that I think com- State government, including persons knowl- poration determines are consistent with the plements what we did last evening and edgeable about State finance, technology corporate purposes described in section —— something that I think is simple, some- and education; and 02(a)(3); thing I hope will not be controversial, (C) five members are representative of the (2) to review the activities of State edu- and something I hope the committee private sector, with expertise in network cation technology agencies and other enti- Chair, the floor manager, will accept. technology, finance and management. ties receiving assistance from the Corpora- I do not intend or need to take addi- (3) CORPORATE PURPOSES.—The purposes of tion to assure that the corporate purposes tional time on this. I think it is easily the Corporation, as set forth in its articles of described in section —— 02(a)(3) are carried incorporation, are— out; understood by everyone, and it is com- (A) to leverage resources and stimulate (3) that no part of the assets of the Cor- plementary to legislation the Senate private investment in education technology poration shall accrue to the benefit of any passed last evening. infrastructure; member of the Board of Directors of the Cor- As I indicated, it does not expand the (B) to designate State education tech- poration, any officer or employee of the Cor- FCC powers or authority, and does not nology agencies to receive loans, grants or poration, or any other individual, except as salary or reasonable compensation for serv- ices; S 8352 CONGRESSIONAL RECORD — SENATE June 14, 1995 (4) that the Board of Directors of the Cor- comprehensive and detailed evaluation of The assistant legislative clerk read poration will adopt policies and procedures the Corporation’s operations, activities, fi- as follows: to prevent conflicts of interest; nancial condition, and accomplishments The Senator from Pennsylvania [Mr. SPEC- (5) to maintain a Board of Directors of the under this title and may include such rec- TER], proposes an amendment numbered 1294, Corporation consistent with section —— ommendations as the Corporation deems ap- as modified. 02(a)(2); propriate. (6) that the Corporation, and any entity re- (b) TESTIMONY BEFORE CONGRESS.—The Mr. SPECTER. I ask unanimous con- ceiving the assistance from the Corporation, members of the Board of Directors, and offi- sent there be no reporting of the are subject to the appropriate oversight pro- cers, of the Corporation shall be available to amendment so I may explain it. cedures of the Congress; and testify before appropriate committees of the The PRESIDING OFFICER. Without (7) to comply with— Congress with respect to the report described objection, it is so ordered. (A) the audit requirements described in in subsection (a), the report of any audit The amendment is as follows: section 05; and made by the Comptroller General pursuant At the appropriate place in the bill, insert (B) the reporting and testimony require- to this title, or any other matter which any the following: ments described in section 06. such committee may determine appropriate. SEC. . TELECOMMUTING PUBLIC INFORMATION (c) CONSTRUCTION.—Nothing in this title AMENDMENT NO. 1318, AS MODIFIED PROGRAM. shall be construed to establish the Corpora- The PRESIDING OFFICER. The (a) FINDINGS.—Congress makes the follow- tion as an agency or independent establish- question recurs on the Brown amend- ing findings— ment of the Federal Government, or to es- (1) Telecommuting is the practice of allow- tablish the members of the Board of Direc- ment, No. 1318. Is there further debate? The Senator ing people to work either at home or in near- tors of the Corporation, or the officers and by centers located closer to home during employees of the Corporation, as officers or from Colorado. their normal working hours, substituting employees of the Federal Government. Mr. BROWN. Mr. President, I ask telecommunications services, either par- SEC. 05. AUDITS. unanimous consent to amend 1318 into tially or completely, for transportation to a (A) AUDITS BY INDEPENDENT CERTIFIED PUB- a form the chairman of the committee more traditional workplace; LIC ACCOUNTANTS.— and distinguished ranking member—— (2) Telecommuting is now practiced by an (1) IN GENERAL.—The Corporation’s finan- Mr. PRESSLER. If my colleague will estimated two to seven million Americans, cial statements shall be audited annually in yield, he is not trying to amend the including individuals with impaired mobil- accordance with generally accepted auditing Moseley-Braun amendment? ity, who are taking advantage of computer standards by independent certified public ac- The PRESIDING OFFICER. The and telecommunications advances in recent years; countants who are members of a nationally pending amendment is the amendment recognized accounting firm and who are cer- (3) Telecommuting has the potential to of the Senator from Colorado. dramatically reduce fuel consumption, mo- tified by a regulatory authority of a State or Mr. BROWN. Mr. President, I send to other political subdivision of the United bile source air pollution, vehicle miles trav- States. The audits shall be conducted at the the desk a revised version of amend- eled, and time spent commuting, thus con- place or places where the accounts of the ment No. 1318, and ask unanimous con- tributing to an improvement in the quality Corporation are normally kept. All books, sent I be allowed to offer the revised of life for millions of Americans; and accounts, financial records, reports, files, version. (4) It is in the public interest for the Fed- and all other papers, things, or property be- The PRESIDING OFFICER. Without eral Government to collect and disseminate longing to or in use by the Corporation and information encouraging the increased use of objection, it is so ordered. The amend- telecommuting and identifying the potential necessary to facilitate the audit shall be ment is so modified. made available to the person or persons con- benefits and costs of telecommuting. The amendment (No. 1318), as modi- (b) The Secretary of Transportation, in ducting the audits, and full facilities for fied, is as follows: consultation with the Secretary of Labor verifying transactions with the balances or and the Administrator of the Environmental securities held by depositories, fiscal agents, On page 13, line 20 insert after ‘‘carrier’’: Protection Agency, shall, within three and custodians shall be afforded to such per- ‘‘or its affiliate’’. months of the date of enactment of this Act, son or persons. Mr. BROWN. It is my understanding carry out research to identify successful (2) REPORTING REQUIREMENTS.—The report both sides have agreed to this version. telecommuting programs in the public and of each annual audit described in paragraph I think it more clearly states the in- private sectors and provide for the dissemi- (1) shall be included in the annual report re- tent that was involved. I urge its ap- nation to the public of information regard- quired by section 06(a). proval. ing— (b) RECORDKEEPING REQUIREMENTS; AUDIT The PRESIDING OFFICER. Is there (1) the establishment of successful AND EXAMINATION OF BOOKS.— further debate? If not the question oc- telecommuting programs; and (1) RECORDKEEPING REQUIREMENTS.—The curs on amendment No. 1318, as modi- (2) the benefits and costs of Corporation shall ensure that each recipient telecommuting. of assistance from the Corporation keeps— fied. (c) REPORT.—Within one year of the date of (A) separate accounts with respect to such Mr. HOLLINGS. Mr. President, let enactment of this Act, the Secretary of assistance; me see a copy of it. I have not seen the Transportation shall report to Congress its (B) such records as may be reasonably nec- modification. We had made suggestions findings, conclusions, and recommendations essary to fully disclose— as to the modification. Can we look at regarding telecommuting developed under (i) the amount and the disposition by such it? this section. recipient of the proceeds of such assistance; Mr. PRESSLER. Mr. President, is it Mr. SPECTER. This amendment di- (ii) the total cost of the project or under- taking in connection with which such assist- possible the Senator from Pennsylva- rects the Secretary of Transportation, ance is given or used; and nia could offer an amendment at this in consultation with the Labor Depart- (iii) the amount and nature of that portion point? I ask unanimous consent what- ment and EPA, to identify successful of the cost of the project or undertaking sup- ever the pending business is it be set governmental and business tele- plied by other sources; and aside so the Senator from Pennsylva- commuting programs and to dissemi- (C) such other records as will facilitate an nia can offer an amendment. nate information about such programs, effective audit. The PRESIDING OFFICER. Without including the benefits of (2) AUDIT AND EXAMINATION OF BOOKS.—The objection, it is so ordered. The Senator telecommuting, to the general public. Corporation shall ensure that the Corpora- from Pennsylvania. tion, or any of the Corporation’s duly au- The amendment is intended to promote thorized representatives, shall have access AMENDMENT NO. 1294, AS MODIFIED the increased use of telecommuting for the purpose of audit and examination to (Purpose: To promote the use of through a broader awareness of the any books, documents, papers, and records of telecommuting by the American work force) benefits, including flexibility, any recipient of assistance from the Corpora- Mr. SPECTER. Mr. President, I send profamily employment, reduced traffic tion that are pertinent to such assistance. an amendment to the desk and ask for congestion, and lower fuel consump- Representatives of the Comptroller General its immediate consideration. tion. The Secretary of Transportation shall also have such access for such purpose. The PRESIDING OFFICER. Is there will be required to report to Congress SEC. 06. ANNUAL REPORT; TESTIMONY TO THE on his findings, conclusions, and rec- CONGRESS. objection to considering the amend- ommendations regarding (a) ANNUAL REPORT.—Not later than April ment? 30 of each year, the Corporation shall publish Mr. SPECTER. It has been previously telecommuting within 1 year of enact- an annual report for the preceding fiscal filed. ment. year and submit that report to the President The PRESIDING OFFICER. The It is my understanding this amend- and the Congress. The report shall include a clerk will report. ment is acceptable on both sides. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8353 Mr. PRESSLER. We are prepared to Mr. DORGAN. Madam President, be- to be voted on first, in consideration of accept this amendment by Senator cause of the time constraint that my friend from North Dakota. We bent Specter from Pennsylvania. I commend amendments must be offered by 7:30, I over backward to give everybody every him for his efforts. feel constrained to offer the amend- chance for this. The bill has been in for I believe the Specter amendment has ment but I admit this is a very con- a week. I would plead with him, we been cleared on both sides. troversial issue. This is a different ap- would like to vote now before Members Mr. HOLLINGS. It has been cleared. proach on the issue that we have de- leave. This subject has been debated so Mr. PRESSLER. Mr. President, I bated at some length with respect to thoroughly and for so many days. We urge the adoption of the amendment. the role of the Justice Department. are prepared to vote here on his amend- The PRESIDING OFFICER. The I would not, in this amendment, pre- ment. pending question is amendment 1294, as serve the same role for the Justice De- Mr. DORGAN. The Senator from modified. partment that we had previously de- South Dakota is absolutely correct. He If there be no further debate, the bated, but the amendment I have of- has been eminently fair. I have not ref- question is on agreeing to the amend- fered, that is germane and I had pre- erenced an amendment this evening ment. viously at the desk, is one that would that is identical to the Justice Depart- The amendment (No. 1294) was agreed provide, upon notification by the Fed- ment amendments that we have dis- to. eral Communications Commission of cussed before. This is a different Mr. SPECTER. Mr. President, I move an approval of an application under amendment. to reconsider the vote. paragraph 1, that the Attorney General It provides that the Attorney Gen- Mr. PRESSLER. I move to lay that may commence an action in U.S. Dis- eral will have the opportunity to seek motion on the table. a stay in U.S. District Court if and The motion to lay on the table was trict Court and seek a stay, if the At- only if, upon approval of an application agreed to. torney General determines the author- ization granted by the Commission by the Federal Communications Com- AMENDMENT NO. 1343 may substantially lessen competition mission, the Attorney General would (Purpose: To provide for Commission notifi- or tend to create a monopoly. determine the authorization granted cation of the Attorney General of any ap- proval of Bell Company entry into long dis- Mr. HOLLINGS. What is the last by the Commission may substantially tance) wording there? I am trying to hear. lessen competition or tend to create a The PRESIDING OFFICER. The Sen- Mr. DORGAN. Let me read the para- monopoly. ator from North Dakota. graph again. Essentially what this This is a different approach and it is Mr. DORGAN. Mr. President, I have amendment would do is to provide gradations lower than the stuff, rather amendment No. 1343 at the desk. I ask that, if the Federal Communications the approaches that we were talking for its consideration. Commission approved an application about earlier. The PRESIDING OFFICER. Without under paragraph 1 in the bill, the At- There may be some others who would objection the pending amendment is torney General may commence an ac- like to discuss this. But, in any event, set aside. The clerk will report. tion in a U.S. District Court: the Senator certainly has a right to The assistant legislative clerk read . . . if . . . the Attorney General determines table this. At the moment, I hope he as follows: that the authorization granted by the Com- will refrain from doing so in the event mission may substantially lessen competi- The Senator from North Dakota [Mr. DOR- some others would like to discuss it. tion or tend to create a monopoly; or, if the GAN] proposes an amendment numbered 1343. Mr. PRESSLER. If my friend will Attorney General determines that the au- yield, I hate to do this because at 7:30 Mr. DORGAN. Mr. President, I ask thorization granted by the Commission is in- unanimous consent that reading of the we are supposed to have the potential consistent with any recommendation of the list of amendments that we are trying amendment be dispensed with. Attorney General provided to the Commis- The PRESIDING OFFICER (Ms. sion pursuant to paragraph (2) of this sec- to move forward. There is very little SNOWE). Without objection, it is so or- tion. time tomorrow morning. Senator DOLE dered. The commencement of such an action shall has asked that we vote on as many of The amendment is as follows: stay the effectiveness of the Commission’s these amendments as we can. This has On page 93, after line 12, insert the follow- approval unless the court shall otherwise been debated thoroughly. ing: specifically order. Mr. DORGAN. Let me ask the Sen- ‘‘(6) NOTIFICATION OF ATTORNEY GENERAL.— I recognize this is a very controver- ator from South Dakota, as well as the ‘‘(A) NOTIFICATION.—The Commission shall sial issue. We have already debated a ranking minority member on this immediately notify the Attorney General of couple of versions of the Justice De- issue—the Senator realizes that we any approval of an application under para- graph (1). partment involvement. I do want to have had substantial debate on the ‘‘(B) ACTION BY ATTORNEY GENERAL.—Upon have this called up, as I have just done, Justice Department role. Those of us notification of an approval of an application prior to 7:30 to have the right to ask for who offered the Justice amendment un- under paragraph (1), the Attorney General a vote on this different approach with derstood that we lost, and it was a very may commence an action in any United respect to the Justice Department close vote. But, nonetheless, we lost. States District Court if prior to final passage of this bill. I do Many of us feel very strongly about the ‘‘(i) the Attorney General determines that not intend to speak at length this need to update the 1934 law, that we the authorization granted by the Commis- sion may substantially lessen competition or evening but I did want to have this in- ought to move forward in the rewrite tend to create a monopoly; or troduced. I will be happy to have it set of the telecommunications laws. We ‘‘(ii) the Attorney General determines that aside. also feel very strongly that if we pro- the authorization granted by the Commis- Mr. PRESSLER. I will be prepared to ceed just as we are now with this bill, sion is inconsistent with any recommenda- table right now and get a vote on it. we could find ourselves in a heck of a tion of the Attorney General provided to the Then it will be behind us. Would that fix having dealt the Justice Depart- Commission pursuant to paragraph (2) of this be agreeable? ment out of a legitimate role here. section. Mr. DORGAN. My understanding is I guess my question is, Does the ‘‘The commencement of such an action shall stay the effectiveness of the Commis- we are going to vote on a good number chairman of the Commerce Committee sion’s approval unless the court shall other- of amendments tomorrow en bloc. Or and the ranking member intend to hold wise specifically order. at least stacked amendments. I expect oversight hearings in the next couple ‘‘(C) STANDARD OF REVIEW.—In any such ac- there may be some others who dis- of years, next year, or the year after, tion, the court shall review de novo the is- cussed the Justice Department role so that you can, through the commit- sues presented. The court may only uphold who may want to add some comments tee structure, address this issue of the the Commission’s authorization if the court to this. Justice role and what has happened finds that the effect of such authorization Mr. PRESSLER. Madam President, if will not be substantially to lessen competi- since the passage of the bill, if this bill tion or to tend to create a monopoly in any my friend will yield, we have had a in fact passes? line of commerce in any section of the coun- long debate on the Senate floor. I If I had some assurance that maybe try. The court may uphold all or part of the thought we had a general agreement. we would have aggressive oversight, authorization.’’ We allowed the Thurmond amendment and if we find in that oversight that we S 8354 CONGRESSIONAL RECORD — SENATE June 14, 1995 have made a mistake here, then per- them the first time. I am sure I would Justice Department role and dealing haps I would be persuaded to let this be the second time, as well. In fact, I with anticompetitive or antitrust is- go. I am uncomfortable with where this share some of them. But at least with sues will not go away and will show up rests. This amendment is not the same respect to the Justice Department, the again, certainly when some of us think as the previous amendment. It is a dif- antitrust enforcement, now with Anne we have the votes to win. When it does ferent approach. Bingaman down at the Attorney Gen- show up, you will know that we have I ask the chairman of the committee eral’s office, I am pretty pleased with counted differently. But in any event, and the ranking minority member what is going on. if the chairman and the ranking mem- about their intentions with respect to Let me ask one additional question. I ber will permit me, I ask unanimous evaluating whether what we have done guess if I get some feeling that you are consent to withdraw the amendment at works or does not work and whether willing to do oversight hearings and be this point. dealing out the Justice Department the aggressive, and find out whether this The PRESIDING OFFICER. Is there way they have been dealt out of this works or does not work, or whether the objection? Without objection, it is so process has been helpful or hurtful to consumers are advantaged or disadvan- ordered. the consumers. taged, I would have some better feeling So the amendment (No. 1343) was Mr. PRESSLER. Let me first of all about it. When we go to conference withdrawn. commend the Senator from North Da- with this bill, if this bill passes the Mr. PRESSLER. I thank my friend kota. He is my friend. We work to- Senate and the House comes to a con- from North Dakota very much for his gether on all kinds of issues, and we ference with a Justice Department role cooperation on this. will in the future. We will try to make in it, as you know, it is a lesser stand- Mr. BROWN addressed the Chair. this a part of a hearing or hearings. I ard than we were proposing. I know The PRESIDING OFFICER. The Sen- cannot guarantee it. There is so much that 43 percent of the membership of ator from Colorado. authorization legislation to do in the the Senate on the issue of the Justice VOTE ON AMENDMENT NO. 1318, AS MODIFIED Commerce, Science, and Transpor- role felt differently than the majority, Mr. BROWN. Madam President, I call tation Committee, a stack of authoriz- but a substantial minority, nonethe- up amendment No. 1318, as modified. I ing legislation to do when we are get- less. believe all parties have had a chance to ting a letter from Senator DOMENICI as I hope we can find a way in the con- review it. It has been cleared now. to how to raise about $25 or $30 billion. ference to resolve this issue in a slight- The PRESIDING OFFICER. The So we have a lot of work to do in the ly different way, as well. question is on agreeing to the amend- I am happy to yield. Commerce, Science, and Transpor- ment. Mr. PRESSLER. Madam President, I tation Committee. But we will be hold- The amendment (No. 1318), as modi- want to thank the Senator from North fied, was agreed to. ing hearings. This will be a part of it. Dakota because I feel comfortable that I really wish that my friend from The PRESIDING OFFICER. Who our Commerce, Science, and Transpor- North Dakota would give us a chance seeks recognition? tation Committee should be an over- in good faith to address this after the Mr. PRESSLER. Madam President, I sight committee for part of the time. proper hearings and take it up legisla- again urge Senators to please come to We have had two of the larger bills, the the floor with their amendments. We tively later, if that would be possible. tort reform bill, and the product liabil- Mr. HOLLINGS addressed the Chair. are open for business. By 7:30, Senator ity bill, coming through our commit- The PRESIDING OFFICER. The Sen- DOLE will return to the floor and look tee. And then the telecommunications ator from South Carolina. over the amendments that people wish bill has occupied a lot of our time. Be- Mr. HOLLINGS. Let me join in the to offer. We are eager to do business cause we have the NASA space issue, comments with our distinguished over here. I plead with Senators. We we have the reauthorization of the chairman. What happens here is, with are trying to finish up. Please come to Magnuson Act, which has had field the amendment of the Senator from the floor with your speeches or amend- hearings, we have had a lot of legisla- North Dakota, as this Senator sees it, ments. tion. it just comes back around and reiter- But I am hopeful that we can have a Madam President, I suggest the ab- ates the amendment which was de- lot of oversight hearings because I am sence of a quorum. feated. I do not think it was one who believes strongly that we The PRESIDING OFFICER. The unjustifiably defeated or casually de- should have a Congress oversight. clerk will call the roll. The assistant legislative clerk pro- feated, or whatever was the expression David Boren used to say that in his dis- ceeded to call the roll. used by my friend from North Dakota. cussions about reforms. That was one Mr. HOLLINGS. Madam President, I Yes, we should have oversight hear- of the reforms we were going to have, ask unanimous consent that the order ings. This is a really complex measure. was to have a Congress with no legisla- for the quorum call be rescinded. I cannot see, as a member of that com- tion and oversight, which is kind of the The PRESIDING OFFICER. Without munications subcommittee, that we ‘‘Blue Monday’’ work of Congress objection, it is so ordered. not have hearings each year to see the where you just sit and try to improve Mr. HOLLINGS. I thank the distin- progress made, how they have managed the Government we already have. to set down the rules for the So I think the Senator makes a good guished Chair. unbundling, the dial parity, the inter- point. We hope to get into those types AMENDMENT NO. 1299 connection, the number portability, of hearings. We have had some already. Mr. HOLLINGS. Madam President, and all of these particular things to We will have more. I hear what he is on behalf of the Senator from Louisi- move everything along down this infor- saying. But I think at this particular ana [Mr. BREAUX], he wanted to make mation superhighway. time in this bill, after all these nego- sure he qualified amendment No. 1299 So I agree with the Senator from tiations and so forth have gone on, that to be called up but not necessarily to North Dakota on that. But I agree with we would have to oppose his amend- be voted on at this particular time. He our chairman. We do not want to come ment at this time. But we hope to work is not present, but I would like to call back around now, and have it all set- with him on it in the future. it up and then set it aside, 1299. tled—one-stop shopping, so to speak, Mr. DORGAN. Madam President, The PRESIDING OFFICER. The that the FCC comes back around here whether we count votes or weigh votes, clerk will report. at the last minute saying: By the way, I do not think there is any reason to The legislative clerk read as follows: we want to put the Attorney General believe a tabling motion made by the The Senator from South Carolina [Mr. back in there again. chairman of the committee would HOLLINGS], for Mr. BREAUX, proposes an I am back in, if you want to hear produce a different result than I saw amendment numbered 1299. those arguments again about antitrust last evening. So I shall not pursue this, Mr. HOLLINGS. Madam President, I lawyers. and I will ask unanimous consent to ask unanimous consent that reading of Mr. DORGAN. That is fine. The Sen- withdraw the amendment in a moment. the amendment be dispensed with. ator does not need to repeat those ar- But I will say to you that I think this The PRESIDING OFFICER. Without guments. But I was entertained by issue will not dissolve. The issue of the objection, it is so ordered. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8355 The amendment is as follows: both sides. I wish to thank both Sen- eight largest companies control merely On page 123, line 10, add the following new ator HOLLINGS and Senator PRESSLER 11 percent of the marketplace. sentence: ‘‘This section shall take effect for being willing to accommodate me Many of these businesses epitomize upon a determination by the United States and to work this out. I thank the es- the American dream. Alarm companies Coast Guard that at least 80% of vessels re- teemed Senator from Kentucky also for are started by people with all kinds of quired to implement the Global Maritime his willingness to help work this mat- backgrounds. A military veteran who Distress and Safety System have the equip- ter out in an acceptable manner. learned electronics in the service, ment required by such System installed and operating in good working condition.’’ Madam President, I ask unanimous someone who worked in the building consent to strike the number 6 and in- trades, or a retired police officer, they Mr. HOLLINGS. And I ask unani- sert in lieu thereof the number 4. start their own businesses; they work mous consent now that the amendment The PRESIDING OFFICER. Hearing hard; they succeed; and they want to be set aside. no objection, it is so ordered. pass on their business to their children. The PRESIDING OFFICER. Without The amendment (No. 1323), as modi- All of that is at risk. The industry is objection, it is so ordered. fied, is as follows: an open marketplace where small com- AMENDMENT NO. 1285 On page 109, line 4, strike out ‘‘3 years’’ panies compete successfully every day (Purpose: To means test the eligibility of the and insert in lieu thereof ‘‘4 years’’. with a few large national companies community users in the act) Mr. HARKIN. Madam President, I because no single company has the Mr. PRESSLER. Madam President, I know that most of any Senate col- ability to control access to service or would like to call up amendment No. leagues share my belief that small how it is delivered. 1285 on behalf of Senator JOHN MCCAIN. business people are the backbone of Furthermore, no single individual or The intention is for this amendment to both the economic and community life group of companies has the ability to be debated and possibly voted on to- of this country. We know that the set the price in the marketplace. It is morrow. small business people in our villages, the American consumer who has the The PRESIDING OFFICER. Without towns and cities back home help to most to lose because the consumer ben- objection, it is so ordered. The clerk provide neighborhood stability and efits from this competitive market- will report. pride by being the individuals who can place. Over the past decade, the aver- The legislative clerk read as follows: be depended upon to participate in age price of the installation of a home The Senator from South Dakota [Mr. community affairs, and we all know security system has declined 40 per- PRESSLER], for Mr. MCCAIN, for himself, Ms. small businesses are where the jobs are cent. Today, you can have a system in- SNOWE, Mr. ROCKEFELLER, Mr. EXON, Mr. created. stalled in your home for as little as KERREY, and Mr. CRAIG, proposes an amend- Today, in the midst of these great $200, and some companies are even of- ment numbered 1285. battles among corporate titans like the fering free installation in order to pro- Mr. PRESSLER. Madam President, I baby Bells, the major long distance mote alarm monitoring services. ask unanimous consent that reading of carriers, the large cable television The alarm industry also has an excel- the amendment be dispensed with. companies and the large broadcasters, lent job creation record. Over the past The PRESIDING OFFICER. Without this amendment helps the little person. 20 years, the alarm industry has more objection, it is so ordered. The amendment that I have just intro- than tripled employment from 40,000 The amendment is as follows: duced on behalf of myself and Senator jobs to well over 140,000 jobs. At the end of section 310 of the Act, add PACKWOOD is very simple. It merely This is a very vibrant sector of the the following: changes the waiting period before the American economy. So vigorous alarm ( ) No entity listed in this section shall be Bell companies could enter the alarm industry competition benefits the entitled for preferential rates or treatment as required by this section, if such entity op- monitoring service business to 4 years. consumer in another way—the develop- erates as a for-profit business, is a school as Now, some of my colleagues might ment of an industry-wide culture which defined in section 264(d)(1) with an endow- ask why we are doing this. Well, this promotes prompt, reliable service. ment of more than $50 million, or is a library amendment would partially restore an This is vitally important in an indus- not eligible for participation in state-based agreement reached in the last Congress try where the service involved is a pro- plane for Library Services and Construction through good faith negotiations be- tection of life, safety, and property in Act title III funds. tween the alarm industry and the one’s home or business. Knowing that a Mr. PRESSLER. I ask unanimous Bells. They were asked by Members of service person will be there next week consent the amendment be laid aside. Congress to work out a deal, and they sometime in the morning or afternoon The PRESIDING OFFICER. Without did. There was give and take on both is not good enough. Consumers benefit objection, it is so ordered. sides and they came to an agreement. from the knowledge that if they do not Mr. HARKIN addressed the Chair. It is the purpose of the HARKIN-Pack- like the service they are receiving, The PRESIDING OFFICER. The Sen- wood amendment to restore one key there is always another alarm company ator from Iowa. element in that agreement. that will provide the service they want AMENDMENT NO. 1323, AS MODIFIED And why was this agreement struck and need at a competitive price. (Purpose: To postpone the effective date of in the first place? First of all, the bur- Another compelling reason for in- the authority to provide alarm monitoring glar and fire alarm industry is unique. creasing the transition period for the services) It is the only information service Bell entry into the alarm monitoring Mr. HARKIN. Madam President, I which is competitively available in service is the fact most experts agree would like to call up my amendment. I every community across the Nation. If that the vast majority of small busi- believe it is amendment No. 1323. you want to verify this, I urge you to ness alarm companies will be driven The PRESIDING OFFICER. The go back to your offices and check the out of business if the regional Bell op- clerk will report. yellow pages in the phone book for erating companies enter before a level The legislative clerk read as follows: your State. What you will find is that playing field exists. The Senator from Iowa [Mr. HARKIN], for the alarm security services are widely The industry felt it had an excellent himself and Mr. PACKWOOD, proposes an and competitively available. chance of developing that level playing amendment numbered 1323. What is less apparent is the fact that field in its prior agreement with the Mr. HARKIN. Madam President, I this highly competitive, $10 billion in- Bells. That agreement included a ban would like just to take a couple of min- dustry is not dominated by large com- on Bell company access to the cus- utes to talk about this amendment. I panies. Instead, it is dominated by tomer lists of existing alarm compa- do not want to take a great deal of small businesses which employ on aver- nies, an expedited complaint process at time; I know the managers want to age less than 10 workers. There are the FCC, a Department of Justice-ad- move on to other amendments, and I over 13,000 alarm companies across the ministered VIII(c) antitrust entry test, have two more amendments I want to Nation. The top 100 control less than 25 and an adequate waiting period to en- offer. percent of the marketplace and the sure that an overburdened FCC should I believe this amendment as it has 100th largest company has annual reve- actually address the industry’s com- been modified will be acceptable to nues of less than $3 million a year. The plaints when Bell entry occurs. S 8356 CONGRESSIONAL RECORD — SENATE June 14, 1995 While the first two of those provi- Mr. PRESSLER. Madam President, I (B) by adding at the end the following new sions remain in the bill, the critical move to reconsider the vote by which paragraphs: VIII(c) antitrust entry test is gone and the amendment was agreed to, and I ‘‘(8) SUBSCRIPTION AGREEMENTS FOR BILLING the term of years prior to entry was move to lay that motion on the table. FOR INFORMATION PROVIDED VIA TOLL-FREE cut in half to 3 years. The motion to lay on the table was CALLS.— agreed to. ‘‘(A) IN GENERAL.—For purposes of para- So, Madam President, while S. 652 re- graph (7)(C), a written subscription does not quires the RBOC’s meet a checklist of Mr. HARKIN addressed the Chair. The PRESIDING OFFICER. The Sen- meet the requirements of this paragraph un- requirements designed to establish con- less the agreement specifies the material ator from Iowa. ditions necessary for competition in terms and conditions under which the infor- the local exchange, it does not require AMENDMENT NO. 1322 mation is offered and includes— actual competition to exist. An VIII(c) (Purpose: To prevent unfair billing practices ‘‘(i) the rate at which charges are assessed antitrust test is no longer available. for information or services provided over for the information; Competition in the local telephone ex- calls to 800 numbers) ‘‘(ii) the information provider’s name; Mr. HARKIN. Madam President, if change is the next best assurance of a ‘‘(iii) the information provider’s business my friend from Massachusetts will level playing field. address; yield, I just have two other amend- ‘‘(iv) the information provider’s regular So, Madam President, the goal of this ments that have been accepted. I call business telephone number; amendment is to make sure that these up amendment No. 1322 and ask for its ‘‘(v) the information provider’s agreement small companies out there, indeed, immediate consideration. to notify the subscriber of all future changes have some period of time to ensure The PRESIDING OFFICER. The in the rates charged for the information; and that there is a level playing field be- clerk will report. ‘‘(vi) the subscriber’s choice of payment fore the Bells can enter the alarm and The legislative clerk read as follows: method, which may be by direct remit, debit, service industry. prepaid account, phone bill or credit or call- The Senator from Iowa [Mr. HARKIN] pro- ing card. This period, has been agreed upon for poses an amendment numbered 1322. ‘‘(B) BILLING ARRANGEMENTS.—If a sub- 4 years, and I am hopeful that would be Mr. HARKIN. Madam President, I the minimum length of time that we scriber elects, pursuant to subparagraph ask unanimous consent that the read- (A)(vi), to pay by means of a phone bill— would have. I still believe that the ini- ing of the amendment be dispensed ‘‘(i) the agreement shall clearly explain tial agreement of 6 years should have with. that charges for the service will appear on been adhered to, but I understand that The PRESIDING OFFICER. Without the subscriber’s phone bill; this has been worked out for 4 years objection, it is so ordered. ‘‘(ii) the phone bill shall include, in promi- here in the Senate, with the assurance The amendment is as follows: nent type, the following disclaimer: of the committee that this would be ac- On page 146, below line 14, add the follow- ‘Common carriers may not disconnect ceptable. I am hopeful that a longer pe- ing: local or long distance telephone service for failure to pay disputed charges for informa- riod can be worked out in the con- SEC. 409. PREVENTION OF UNFAIR BILLING ference committee. Again, I want to PRACTICES FOR INFORMATION OR tion services.’; and SERVICES PROVIDED OVER TOLL- ‘‘(iii) the phone bill shall clearly list the RESSLER OL thank Senators P and H - FREE TELEPHONE CALLS. 800 number dialed. LINGS for helping work out this agree- (a) FINDINGS.—Congress makes the follow- ‘‘(C) USE OF PINS TO PREVENT UNAUTHORIZED ment. ing findings: USE.—A written agreement does not meet the The PRESIDING OFFICER. The Sen- (1) Reforms required by the Telephone Dis- requirements of this paragraph unless it re- ator from South Dakota. closure and Dispute Resolution Act of 1992 quires the subscriber to use a personal iden- Mr. PRESSLER. Madam President, have improved the reputation of the pay-per- tification number to obtain access to the in- these carveouts are always difficult be- call industry and resulted in regulations formation provided, and includes instruc- cause when there is a carveout, there that have reduced the incidence of mislead- tions on its use. ing practices that are harmful to the public ‘‘(D) EXCEPTIONS.—Notwithstanding para- are problems for new entrants. I agree interest. with the Senator from Iowa that this is graph (7)(C), a written agreement that meets (2) Among the successful reforms is a re- the requirements of this paragraph is not re- small business. There has been a lot of striction on charges being assessed for calls quired— discussion on this, whether the burglar to 800 telephone numbers or other telephone ‘‘(i) for calls utilizing telecommunications alarm people should be given a certain numbers advertised or widely understood to devices for the deaf; period of protection. be toll free. ‘‘(ii) for services provided pursuant to a We hope in a deregulatory bill to get (3) Nevertheless, certain interstate pay- tariff that has been approved or permitted to per-call businesses are taking advantage of take effect by the Commission or a State everybody competing as soon as pos- an exception in the restriction on charging commission; or sible. In fact, we had a big thing—at for information conveyed during a call to a ‘‘(iii) for any purchase of goods or of serv- least it was big to me—in the Com- ‘‘toll-free’’ number to continue to engage in ices that are not information services. merce Committee of keeping even the misleading practices. These practices are not ‘‘(E) TERMINATION OF SERVICE.—On receipt in compliance with the intent of Congress in newspaper publishers without a by a common carrier of a complaint by any carveout, without a period of years passing the Telephone Disclosure and Dis- pute Resolution Act. person that an information provider is in —they have 5 or 6 years in the House violation of the provisions of this section, a bill. (4) It is necessary for Congress to clarify that its intent is that charges for informa- carrier shall— If we are going to have deregulation, tion provided during a call to an 800 number ‘‘(i) promptly investigate the complaint; we have to get people competing, be- or other number widely advertised and un- and cause new people want to get into the derstood to be toll free shall not be assessed ‘‘(ii) if the carrier reasonably determines field also out there, new small busi- to the calling party unless the calling party that the complaint is valid, it may termi- nesses. agrees to be billed according to the terms of nate the provision of service to an informa- As I understand it, there is an infor- a written subscription agreement or by other tion provider unless the provider supplies evidence of a written agreement that meets mal agreement, if we can use that appropriate means. (b) PREVENTION OF UNFAIR BILLING PRAC- the requirements of this section. term, reached that they will not seek TICES.— ‘‘(F) TREATMENT OF REMEDIES.—The rem- beyond 4 years in conference, hope- (1) IN GENERAL.—Section 228(c) (47 U.S.C. edies provided in this paragraph are in addi- fully. With that understanding, we can 228(c)) is amended— tion to any other remedies that are available accept this amendment. (A) by striking out subparagraph (C) of under title V of this Act. I urge adoption of the amendment. paragraph (7) and inserting in lieu thereof ‘‘(9) CHARGES IN ABSENCE OF AGREEMENT.—A The PRESIDING OFFICER. Does the the following: calling party is charged for a call in accord- Senator have any further debate on ‘‘(C) the calling party being charged for in- ance with this paragraph if the provider of this amendment? formation conveyed during the call unless— the information conveyed during the call— Mr. HARKIN. No. ‘‘(i) the calling party has a written agree- ‘‘(A) clearly states to the calling party the total cost per minute of the information pro- The PRESIDING OFFICER. The ment (including an agreement transmitted through electronic medium) that meets the vided during the call and for any other infor- question is on agreeing to the amend- requirements of paragraph (8); or mation or service provided by the provider to ment. ‘‘(ii) the calling party is charged for the in- which the calling party requests connection The amendment (No. 1323), as modi- formation in accordance with paragraph (9); during the call; and fied, was agreed to. or’’; and ‘‘(B) receives from the calling party— June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8357 ‘‘(i) an agreement to accept the charges for Unfortunately, this small loophole In closing I would like to urge you to any information or services provided by the has allowed some sleazy operators to please find a way to stop this problem. I provider during the call; and set up phone sex services on 800 num- would love to find a way to stop the phone ‘‘(ii) a credit, calling, or charge card num- bers—and to make the caller pay the scam operations but I do not know where to ber or verification of a prepaid account to begin. I plan to send a copy of this letter to which such charges are to be billed. bill. They use the loophole allowing a Senators Tom Harkin and Charles Grassley. ‘‘(10) DEFINITION.—As used in paragraphs charge when there is a preexisting ar- I can only hope that the more of us who com- (8) and (9), the term ‘calling card’ means an rangement to turn a toll-free 800 num- plain the easier it will be to put an end to it identifying number or code unique to the in- ber call into a toll call. all. dividual, that is issued to the individual by Families are being hurt by these Thank you for your time in reading my a common carrier and enables the individual services. Youngsters run across the concerns. to be charged by means of a phone bill for ads, and, thinking the call will be free, Sincerely, charges incurred independent of where the call numbers like 1–800 HOT TALK. SHEILA WENGER. call originates.’’ These numbers appear in all kinds of (2) REGULATIONS.—The Federal Commu- IOWA UTILITIES BOARD, nications Commission shall revise its regula- publications—from the city paper here in Washington; Rolling Stone maga- UTILITIES DIVISION, tions to comply with the amendment made Des Moines, IA. by paragraph (1) not later than 180 days after zine; and a host of adult magazines. DEAR SIRS: My name is Sue Tappe and I the date of the enactment of this Act. Here are just two examples of this work as the Clinton County Protective (3) EFFECTIVE DATE.—The amendments outrageous behavior that has come to Payee. I work with clients that receive some made by paragraph (1) shall take effect on my attention recently. I would bet that type of benefit, such as SS or SSI, VA etc., the date of the enactment of this Act. every Senator has received calls from and cannot handle their own funds for a vari- (c) CLARIFICATION OF ‘‘PAY-PER-CALL SERV- constituents about this problem, but ety of reasons. ICES’’ UNDER TELEPHONE DISCLOSURE AND DISPUTE RESOLUTION ACT.—Section 204(1) of here are just two from Iowa. I am writing today in reference to a client the Telephone Disclosure and Dispute Reso- Madam President, I ask unanimous that had a phone service installed in Sept. lution Act (15 U.S.C. 5714(1)) is amended to consent to print some constituent let- 1994. This service, at the time of order, had read as follows: ters in the RECORD. a long distance block set up on it, so I as- ‘‘(1) The term ‘pay-per-call services’ has There being no objection, the letters sumed there would be no long distance call- the meaning provided in section 228(j)(1) of were ordered to be printed in the ing. WRONG assumption. My client got a hold of some advertisements that offered 800 the Communications Act of 1934, except that RECORD, as follows: the Commission by rule may, notwithstand- numbers, and went to town dialing them. ing subparagraphs (B) and (C) of such sec- CONSUMER ADVOCATE, OFFICE OF They then turned into 900 numbers by re- tion, extend such definition to other similar UTILITIES, LUCAS STATE OFFICE questing the caller to push another button. services providing audio information or BLDG., He can only read to approximately 3rd grade audio entertainment if the Commission de- Des Moines, IA January 28, 1995. level, but he can follow instructions. He said termines that such services are susceptible To Whom It May Concern: 800 numbers do not cost anything when I This letter is regarding my recent encoun- to the unfair and deceptive practices that questioned him on the subject. ter with U.S. West Communications. are prohibited by the rules prescribed pursu- I have called all the long distance compa- On Tuesday January 24, 1995 I called U.S. ant to section 201(a).’’. nies and have asked for credits because of West to change our service. Because of a re- the long distance block. I have gotten co- Mr. HARKIN. Madam President, I cent problem with the so called ‘‘chat line’’ want to speak about a problem being operation from a couple of the companies, and because of past problems with the 1–800’s but they also let me know that the normal faced by families across the country—a that conveniently turn into the 1–900 procedure is to have them then turned over problem that has cost families hun- charges. I asked U.S. West to take my hus- to a collection agency. band off the account completely and to have dreds and even thousands of dollars. What can be done about these pay talk This problem exposes families to ripoff all long distance service blocked from our home. I wanted no access to any 1+ dialing, telephone companies who take advantage of schemes in their own homes. Worst of 1–800/1–900 calls. I also cancelled all calling clients who cannot understand the con- all, young people are being exposed to cards. My husband agreed and the calling sequences of their actions much less the dial-a-porn phone sex services, even cards were stopped that same day and every- value of their money? when the families take the step of plac- thing was switched to only my access. By the way, my client no longer has a ing a block on extra cost 900 number On Thursday January 26th I thought I had phone service, and that, he does understand. calls from their home. better check to see that my order was com- But until there is complete credit back, he Most people believe that when they pleted. I had no 1+ direct dialing but I could will never have service again. dial 1–800 at the beginning of a call, still call 1–800 numbers. I was shocked. I am enclosing copies of bills and sending On Saturday January 28, 1995 I called U.S. copies to Senator Tom Harkin and Congress- they are calling toll free. Toll free 800 West to see why I still had 1–800 access. They man Jim Leach. We need to take action for number calling has had a dramatically informed me that there was no way to block a change in laws, and to protect ourselves, positive impact on many businesses, al- 1–800 calls. I explained to the lady that I had all of us, from this situation happening lowing catalog sales to take off, and been misinformed because I was told my hus- again. providing helpful customer services. band would not be able to make any long dis- Thank you for listening and hope you My State of Iowa is prominent in pro- tance calls from our house. She put me on might provide some suggestions to me and viding these telemarketing services. So hold then came back to me and said I could certainly some action can be taken in this I strongly believe that we must ensure not block 1–800 calls. I waited a few hours, area. thinking about everything I had been told SUE TAPPE, Payee. public confidence in toll-free 800 num- and then I recalled U.S. West and asked to bers. speak to a supervisor. I was told that there Mr. HARKIN. Madam President, here Federal law prohibits most practices were no supervisors around to talk to. The is how the companies do it. A caller that would allow people calling to an representative offered to help. I explained calls an 800 number. He or she is di- 800 number to be charged for the call. the situation to her. She read a new depart- rected to enter an ‘‘access code,’’ in Callers cannot be assessed a charge by ment memo on the 1–800 information while I order to be connected to a service— virtue of completing the call, and they waited to get some answers. I explained to without knowing that, by entering the cannot be connected to a pay-per-call her that I really needed to speak to a super- number, they are authorizing the serv- service—which are usually called 900 visor and was told that the supervisor would ice to charge for the call. Another just do the same thing that she was doing number services. They also cannot (read the memo on 1–800). scam is for the call to be switched to charge for information conveyed dur- I am discouraged for many reasons: I could international numbers in small coun- ing the call—with one exception. If not speak to a supervisor and it was not of- tries around the world, or to give an there is a preexisting agreement to be fered. international phone number without charged, a charge is allowed. This pro- For a minor to buy alcohol or cigarettes disclosing the extremely high inter- vision was added, because there was they must show an I.D. They are face to face national calling rates. Phone sex com- concern that the provision might be with the seller. These phone conversations panies set up in these companies, have a recording saying you must be 18 years read to prevent people buying mer- or older or have parents permission. They where local law in the host country al- chandise with a credit card on an 800 have no actual contact with the buyer and in lows them to receive a cut from the number, or for nationwide access num- turn are selling to minors, and unfortunately charges. One service operated out of bers for long distance providers. it’s the parents who pay. Suriname charges some $50 per minute. S 8358 CONGRESSIONAL RECORD — SENATE June 14, 1995 Under another so-called preexisting portant amendment to close the loop- thousands and even millions of dollars, agreement, the first call from a num- hole on the phone sex peddlers. and then discontinue the operation and ber establishes the agreement, and sub- Madam President, again, I believe move on to another location and rip-off sequent calls are charged to the phone this amendment has been agreed to. promotion. number the first call was made from. The PRESIDING OFFICER. Is there By the time law enforcement au- This means that anyone making a tele- further debate on this amendment? If thorities have received enough infor- phone call from your phone could make not, the question is on agreeing to the mation to support obtaining the grand you liable for hundreds of dollars of amendment. jury subpoenas required under current calls—even if the person never makes The amendment (No. 1322) was agreed law, the business and the operators are another call from that phone. A person to. gone. And the often elderly victims are making a call from a motel can set up Mr. PRESSLER. Madam President, I out of luck. Law enforcement authori- one of these agreements with a phone- move to reconsider the vote by which ties currently do not have a mecha- sex service, and the motel could be the amendment was agreed to, and I nism available to quickly identify the forced to pay for subsequent calls from move to lay that motion on the table. location of the boiler room before the anywhere in the country. At the Motel The motion to lay on the table was promotion is discontinued. So, they 6 chain alone, porn calls have cost a agreed to. often cannot get after these scam art- quarter of a million dollars in the last AMENDMENT NO. 1324 ists until many people have been vic- year. In our own offices here at the (Purpose: To combat telemarketing fraud timized and the operation has closed Senate, a courier who uses the cour- through reasonable disclosure of certain down. tesy telephone, supposedly to call his records for telemarketing investigations) Law enforcement agencies have this dispatcher, could charge phone-sex Mr. HARKIN. Madam President, I problem because often these pro- calls back to your office account. call up amendment No. 1324. motions furnish only a phone number, How many people are concerned The PRESIDING OFFICER. The leaving no other means of identifica- about this problem? All you need to clerk will report. tion or location. My amendment ad- know is how many families have signed The legislative clerk read as follows: dresses this shortcoming by providing up for 900 number blocking. These fam- The Senator from Iowa [Mr. HARKIN] pro- law enforcement authorities with a ilies have said that they have no inten- poses an amendment numbered 1324. narrowly drawn procedure to more tion of using pay-per-call services. In Mr. HARKIN. Madam President, I quickly obtain the name, address, and Iowa, about one in four lines are re- ask unanimous consent that the read- physical location of businesses sus- stricted from calling 900 numbers, most ing of the amendment be dispensed pected of being involved in of which are homes, rather than busi- with. telemarketing fraud. Phone companies nesses. The PRESIDING OFFICER. Without would have to provide law enforcement Today, I am offering an amendment objection, it is so ordered. officials only the name, address, and that would prohibit this abuse. My The amendment is as follows: physical location of a telemarketing On page 146, below line 14, add the follow- amendment, which is similar to one business holding a phone number if the ing: officials submitted a formal written re- that has been included in the House SEC. 409. DISCLOSURE OF CERTAIN RECORDS Commerce Committee-passed version quest for this information relevant to a FOR INVESTIGATIONS OF TELE- legitimate law enforcement investiga- of this legislation by our House col- MARKETING FRAUD. tion. league, Representative BART GORDON of Section 2703(c)(1)(B) of title 18, United The need for this change was brought Tennessee, would alleviate this prob- States Code, is amended— (1) by striking out ‘‘or’’ at the end of to my attention by the U.S. Postal In- lem. Representative GORDON has been a clause (ii); spection Service, the Federal agency leader on this issue for many years, (2) by striking out the period at the end of which investigates many of the and has fought hard to get control of clause (iii) and inserting in lieu thereof ‘‘; telemarketing schemes. It is necessary the phone-sex industry. This amend- or’’; and to crack down on serious consumer ment would clarify that a preexisting (3) by adding at the end the following: fraud. With this change, we will have agreement must be in writing, which ‘‘(iv) submits a formal written request for many more successful efforts to shut would end the supposed preexisting information relevant to a legitimate law en- down these rip-off artists like several agreements that are initiated by press- forcement investigation of the governmental recent cases in my home State of Iowa. ing a button on a phone. It also ex- entity for the name, address, and place of business of a subscriber or customer of such Gregory Dean Garrison of Red Oak, pands the definition of pay-per-call provider, which subscriber or customer is en- IA was recently indicted for operating service to include the international gaged in telemarketing (as such term is in a telemarketing promotion. He is al- calls, to allow the FCC to regulate section 2325 of this title).’’. leged to have obtained lists of people them. Mr. HARKIN. Madam President, who had previously been victimized by Alternatively, it would allow infor- every year thousands of Americans are telemarketing schemes. Using the com- mation services on 800 numbers with- victimized by fraudulent pany named Teletrieve, he offered for a out a preexisting agreement. The serv- telemarketing promotions. And, unfor- fee, of course, to help individuals re- ice provider would have to disclose tunately, these scam artists prey most cover all the money they previously their rates on each call. If the caller often on our senior citizens. The losses lost to telemarketers. No money was agreed to pay and gave a credit, charge every year are estimated to be in the ever recovered. Most of the victims or calling card to pay for the informa- billions of dollars. I send an amend- were in their eighties. tion, the service could be provided. ment to the desk that would help law Approximately 30,000 Iowans received The bill as reported by committee enforcement to more effectively com- solicitations for another scam. Sweep- purports to address this problem, in bat these abuses. stakes International, Inc., mailed these section 406. However, this section How do these rip-offs occur and why Iowans and others around the Nation would not go as far as the language I is my amendment necessary to stop postcards that enticed recipients to am offering. My amendment was devel- them? Advertisements regarding call a 900 number in order to receive a oped after extensive consultation with sweepstakes, contests, loans, credit re- ‘‘valuable prize.’’ Callers were charged industry representatives, to try to take port and other promotions appear in $9.95 on their phone bill. Based on a into account problems beyond the 800 newspapers, magazines, and other di- Postal Service investigation, civil ac- numbers, and also to take into account rect mail and telephone solicitations. tion was initiated in U.S. District the new legitimate information sys- The operators of many of these phoney Court in Iowa. As a result of the court tems that are going to be offered in the promotions set up a telephone boiler action the promotion was halted and new information environment that this room in which a number of phones are $1.7 million was frozen. This rep- bill will create. Further, a similar operated to receive calls responding to resented just one and a half month’s amendment has already been accepted their ads and to make direct phone ap- revenue from the scam. in the House subcommittee markup. I peals, run their promotion for two to In a similar case, Disc Sweepstakes, urge my colleagues to support this im- three months, ripping people off for Limited of West Des Moines mailed June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8359 about 1.5 million postcards during a The amendment is as follows: the information super-highway as it three month period to individuals On page 146, strike line 14 and insert in lieu begins to weave its way across the Na- throughout the country, representing the following: ‘‘cency, or nudity’’. tion. that they had won a valuable prize. To This section shall not become effective un- In presenting this amendment, we collect the ‘‘prize’’ people had to again less the Commission shall prohibit any tele- recognize that there is a fear among call a 900 number for which they were communications carrier from excluding from many groups and community organiza- billed $9.90. This scheme brought in any of such carrier’s services any high-cost tions that the infrastructure of the in- over $1 million. area, or any area on the basis of the rural lo- cation or the income of the residents of such formation super highway will leave out These are obviously cases in which area; provided that a carrier may exclude an and leave behind those who most need the Postal Inspection Service was able area in which the carrier can demonstrate access to it, families in parts of Bos- to take action. But for every scam they that— ton, or in parts of South Dakota, South close down, there are many more that (1) providing a service to such area will be Carolina, or Mississippi, or other areas go unstopped. It is frustrating for our less profitable for the carrier than providing of the country. law enforcement professionals and it is the service in areas to which the carrier is Ironically, in the 1950’s the infra- costing consumers, particularly the el- already providing or has proposed to provide structure debate was about which derly, millions of dollars every day. the service; and— neighborhoods and which rural areas (2) there will be insufficient consumer de- My amendment simply would allow would be plowed under by bulldozers law enforcement to more easily iden- mand for the carrier to earn some return over the long term on the capital invested to building the Federal highway system. tify and locate these operations. To get provide such service to such area. And, here we are again, in the con- any further information about the The Commission shall provide for public temporary equivalent of that same de- company, they would have to go comment on the adequacy of the carrier’s bate. through the current law subpoena proc- proposed service area on the basis of the re- When the Federal highway system ess. For post office boxes rented for quirements of this section. was developed, we plowed under the commercial purposes, any individual, AMENDMENT NO. 1342, AS MODIFIED poorer areas of many cities and the let alone just law enforcement for a le- Mr. KERRY. Madam President, I ask poorest land in rural areas. We were gitimate law enforcement purpose, can unanimous consent that the amend- willing then to lay roads and build obtain the name and address of the box ment be modified with the changes bridges through the backyards of these holder. So my proposal is very modest that I now send to the desk, and I do areas in our good faith efforts to con- in comparison. this on behalf of myself, Senator LOTT, nect States and cities coast to coast. It I want to make it very clear that this Senator HOLLINGS, and Senator PRES- was the key to commerce and economic amendment is not about privacy. It SLER. This amendment has been opportunity. It was the future. should in no way set a precedent for al- worked out on both sides. I advise the Now, in the 1990’s, the information lowing the Government easier access to Senate that this modification makes super highway holds the same key to company or client records or other in- no substantive change in the amend- economic opportunity, and it would be formation from businesses. I share the ment. It merely places the amendment unforgivable for us to ignore and avoid concerns of those who seek to protect in a more appropriate place in the bill. the same backyards that we were so privacy rights generally. I want to The PRESIDING OFFICER. Is there willing to plow under when we built work with them and others who may objection? Without objection, it is so the interstates beginning in the 1950’s. have a concern with this amendment to ordered. The amendment is so modi- Without access to the information see how we can work together before fied. super highway there are those in our this bill is subject to conference and The amendment, as modified, is as country who will surely be left behind, final consideration by the Senate. follows: and we cannot let that happen. I urge my colleagues to support this At the appropriate place insert: Let me make it clear that this is a narrow but important amendment to ‘‘(k) PROHIBITION ON EXCLUSION OF AREAS bipartisan amendment, and that it does give law enforcement a simple tool to FROM SERVICE BASED ON RURAL LOCATION, not imply that there is anyone in this better protect Americans from tele- HIGH COSTS, OR INCOME.—Part II of title II (47 Chamber or anyone who has partici- marketing scams. U.S.C. 201 et seq.) as amended by this Act, is pated in the development of this legis- Mr. PRESSLER. I urge the adoption amended by adding after section 261 the fol- lation who has intended in any way to of the amendment. lowing: allow the redlining of any area. It is The PRESIDING OFFICER. The ‘‘SEC. 253A. PROHIBITION ON EXCLUSION OF AREAS FROM SERVICE BASED ON equally true that no one is seeking to question is on agreeing to the amend- force telecommunications companies, ment. RURAL LOCATION, HIGH COSTS, OR INCOME. in their good-faith effort to provide The amendment (No. 1324) was agreed ‘‘The Commission shall prohibit any tele- universal service, to lose money by to. communications carrier from excluding from providing advanced telecommuni- Mr. PRESSLER. Madam President, I any of such carrier’s services any high-cost move to reconsider the vote by which cations services to every road and area, or any area on the basis of the rural lo- home in the Nation no matter how re- the amendment was agreed to, and I cation or the income of the residents of such move to lay that motion on the table. area; provided that a carrier may exclude an mote or how impractical. The motion to lay on the table was area in which the carrier can demonstrate That is not the intent of anyone. agreed to. that— But, having said that, the intent of Mr. KERRY addressed the Chair. ‘‘(1) there will be insufficient consumer de- the Senate must be clear: that every- The PRESIDING OFFICER. The Sen- mand for the carrier to earn some return one, especially those less fortunate in ator from Massachusetts. over the long term on the capital invested to our society, those poorer inner-city provide such service to such area, and— AMENDMENT NO. 1342 areas and poorer more remote rural ‘‘(2) providing a service to such area will be areas struggling to keep up and move Mr. KERRY. Madam President, I ask less profitable for the carrier than providing unanimous consent that amendment the service in areas to which the carrier is on, should have access to the equip- No. 1342 be brought up at this time. already providing or has proposed to provide ment that will hold the keys to success The PRESIDING OFFICER. Without the service. and the tools to compete in the 21st objection, it is so ordered. The clerk ‘‘The Commission shall provide for public century, even where it may not will report. comment on the adequacy of the carrier’s produce great profit for the provider The legislative clerk read as follows: proposed service area on the basis of the re- companies. quirements of this section. The Senator from Massachusetts [Mr. Fairness, in this case, means access; KERRY] proposes an amendment numbered Mr. KERRY. Madam President, I rise and, though there is no intent with this 1342. to offer a bipartisan amendment, with amendment to punish telecommuni- Mr. KERRY. Madam President, I ask Senators LOTT, HOLLINGS, and PRES- cations companies or to force them to unanimous consent that the reading of SLER, that will go a long way to make lose money by providing a service to an the amendment be dispensed with. the intentions of the Senate clear in its area where it is clear they will lose The PRESIDING OFFICER. Without recognition of the need for every seg- money in their effort, we also recognize objection, it is so ordered. ment of our society to have access to the importance of universal access. S 8360 CONGRESSIONAL RECORD — SENATE June 14, 1995 The bill, of course, embodies this phi- The PRESIDING OFFICER. If there talk about the cellular valley out here. losophy in several ways. But nowhere is no further debate, the question is on But these are 500 small business men is the principle set forth as straight- agreeing to the amendment No. 1342, as and women from across the Nation forwardly as it should be, and as this modified. wanting to pass this bill because small amendment does. The amendment (No. 1342), as modi- business will benefit and small business In summary, this amendment pro- fied, was agreed to. will be able to participate. hibits the exclusion of areas from ac- Mr. PRESSLER. Madam President, I Mr. PRESSLER. Madam President, I cess to service based on either rural lo- move to reconsider the vote by which hope that Senators will come to the cation or income; and it requires the the amendment was agreed to, and I floor with their amendments because Federal Communications Commission move to lay that motion on the table. the hour of 7:30 p.m. is approaching, to adopt rules and regulations to pro- The motion to lay on the table was and Senator DOLE will be back here hibit any telecommunications carrier agreed to. then. from excluding an area from service Mr. SIMON addressed the Chair. So I thank the Chair, and I suggest based on the income of its residents, or The PRESIDING OFFICER. The Sen- the absence of a quorum. the rural nature of the area; but it does ator from Illinois. The PRESIDING OFFICER. Will the allow the company to make a decision AMENDMENT NO. 1283, AS MODIFIED Senator suspend his request for a mo- not to offer an advanced telecommuni- (Purpose: To revise the authority relating to ment? The Senator from Illinois wanted a cation service if it can demonstrate Federal Communications Commission vote on his amendment tomorrow. that there will be insufficient rules on radio ownership) The amendment will be set aside Mr. SIMON. Madam President, I offer consumer demand for the carrier to until tomorrow. earn some return over the long term on amendment No. 1283, as modified. I will AMENDMENT NO. 1367 its capital investment in providing the discuss it tomorrow. Mr. HEFLIN. Madam President, I service in that area. The PRESIDING OFFICER. The send an amendment to the desk and I think this is a fair amendment. It is clerk will report the amendment, as modified. ask for its immediate consideration. fair to the consumer and to the indus- The PRESIDING OFFICER. The The legislative clerk read as follows: try. It establishes in law the principle clerk will report. that all our citizens should have access The Senator from Illinois [Mr. SIMON] pro- The legislative clerk read as follows: to these telecommunications services poses an amendment numbered 1283, as modi- The Senator from Alabama [Mr. HEFLIN] fied. and it respects the complexity of pro- proposes an amendment numbered 1367. viding those services on a universal Mr. SIMON. Madam President, I ask Mr. HEFLIN. Madam President, I ask basis. unanimous consent that the reading of unanimous consent that reading of the With this legislation we will move the amendment be dispensed with. amendment be dispensed with. into a new age of information and com- The PRESIDING OFFICER. Without The PRESIDING OFFICER. Without munication—a promising future that objection, it is so ordered. objection, it is so ordered. demands our careful consideration. We The amendment, as modified, is as The amendment is as follows: will either establish an infrastructure follows: At the appropriate place in the amend- that brings every American along, or On page 79, line 11, in the language added ment, insert the following: by the Dole amendment No. 1255, as modi- leaves some behind. SEC. . AUTHORITY TO ACQUIRE CABLE SYS- We must remember, that access to fied, insert the following: TEMS. (b)(3) SUPERSEDING RULE ON RADIO OWNER- and knowledge of the information (a) IN GENERAL.—Notwithstanding the pro- SHIP.—In lieu of making the modification re- visions of section 613(b)(6) of the Commu- super-highway will define the economic quired by the first sentence of subsection and political power of this democracy. nications Act of 1934, as added by section (b)(2), the Commission shall modify its rules 203(a) of this Act, a local exchange carrier We can no more deny any American ac- set forth in 47 CFR 73,3555 by limiting to 50 (or any affiliate of such carrier owned by, op- cess to that power than we can deny AM and 50 FM broadcast stations the num- erated by, controlled by, or under common them access to a decent education, or ber of such stations which may be owned or control with such carrier) may purchase or to the ballot, or to the voting booth, controlled by one entity nationally. otherwise acquire more than a 10 percent fi- for in access to them are the fun- Mr. SIMON. Madam President, I am nancial interest, or any management inter- damental freedoms of this democracy not sure we have the right amendment est, or enter into a joint venture or partner- and the individual opportunities that here. ship with any cable system described in sub- those freedoms provide. Mr. PRESSLER. Madam President, I section (b) within the local exchange car- will take this opportunity to urge Sen- rier’s telephone service area. Madam President, I urge passage of (b) COVERED CABLE SYSTEMS.—Subsection this amendment. It is fair. It is respon- ators to bring their additional amend- (a) applies to any cable system serving no sible. It is right. It places the benefit of ments to the floor and also to say that more than 20,000 cable subscribers of which the doubt where it ought to be. I am very proud that 500 delegates at no more than 12,000 of those subscribers live I thank the managers of the bill for the small business conference today within an urbanized area, as defined by the their cooperation and assistance. I sent over individual letters endorsing Bureau of the Census. thank the committee staff. I especially the passage of this bill and also urging (c) DEFINITION.—For purposes of this sec- President Clinton to strongly support tion, the term ‘‘local exchange carrier’’ has appreciate the cooperation and efforts the meaning given such term in section 3 of the Senator from Mississippi [Mr. it. (kk) of the Communications Act of 1934, as LOTT] and his staff, both in committee I know the White House has been a added by section 8(b) of this Act. and now as the bill is considered on the little cool toward this bill, but I hope Mr. HEFLIN. Madam President, I ask floor. that they are warmed up by the small unanimous consent that this amend- I will just say very quickly that this businessmen who are in the White ment be laid aside until later. amendment will empower the Commis- House Conference on Small Business. I The PRESIDING OFFICER. Without sion to try to guarantee that, as we have a whole stack of letters here, objection, it is so ordered. build an information highway struc- which I will not put in the RECORD. I The PRESIDING OFFICER. Who ture, no part of America is left out of might put in the names, but they are seeks recognition? that for reasons of discrimination or from all over the Nation, small busi- Mr. PRESSLER. Madam President, I oversight that no one in the Senate, I nessmen who have come to Washing- ask unanimous consent that the Sen- think, would embrace. ton, who have sent letters urging that ate now turn to the consideration of I believe this will help us to have a the Telecommunications Competition amendment 1341. fair and equitable approach. I appre- and Deregulation Act of 1995 be passed The PRESIDING OFFICER. Without ciate the help of the managers of the and that the White House support it objection, it is so ordered. bill in arriving at an agreement on and that the Senate version is the ver- AMENDMENT NO. 1341 this. sion that they are interested in. (Purpose: To strike the volume discounts Mr. PRESSLER. I commend my So I am very proud of that. There has provision) friend from Massachusetts. I urge the been some talk about big corporate in- Mr. PRESSLER. Madam President, I adoption of the amendment. terests and so forth. There has been send an amendment to the desk for Mr. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8361

DOLE and ask for its immediate consid- changes in communications and infor- with the ‘‘competitive checklist’’ be- eration. mation technology would transform fore it is eligible to enter either the The PRESIDING OFFICER. The our society and our economy. Second, long distance or the manufacturing clerk will report. drafting the appropriate policies to line of business. It is very important to The legislative clerk read as follows: support this transformation would be a retain this ‘‘parity’’ in the timing and The Senator from South Dakota [Mr. complex and controversial undertak- the requirements for entry into both PRESSLER], for Mr. DOLE, proposes an amend- ing. Our floor consideration of S. 652 lines of business, and I commend the ment numbered 1341. bears out the validity of these two managers of the bill for establishing Mr. PRESSLER. Madam President, I points and demonstrates the challenges this important principle. ask unanimous consent that reading of which the bill’s managers have success- The second important principle con- the amendment be dispensed with. fully faced. tained in this bill is one that we have The PRESIDING OFFICER. Without Our amendment deals with the manu- relied upon for twenty years, namely, objection, it is so ordered. facturing sector, which will develop the the requirement of a structural separa- The amendment is as follows: ‘‘brick and mortar’’ of the information tion between the competitive and mo- On page 70, beginning with line 22, strike highway. As with all key communica- nopoly activities of the Bell operating through line 2 on page 71. tion industries, the stakes for manu- company. S. 652 requires the Bell oper- Mr. PRESSLER. Madam President, I facturers in this bill are very high. We ating company to provide all competi- ask unanimous consent that the cannot jeopardize the current competi- tive services, including manufacturing amendment be set aside and carried tive nature of this sector as the MFJ activities, through a fully separate af- over until tomorrow. restrictions are removed. It has been a filiate. Without such a requirement, it The PRESIDING OFFICER. Without very successful and competitive area, would be virtually impossible to assure objection, it is so ordered. sparked by the innovation and growth the ratepayers of this country that Mr. PRESSLER. Madam President, I made possible by the postdivestiture they were not underwriting the BOCs suggest the absence of a quorum. environment. This has become a $44 competitive ventures. Both the Courts The PRESIDING OFFICER. The billion sector, and it has created tens and the FCC have said on many occa- clerk will call the roll. of thousands of jobs. sions that accounting separation alone The legislative clerk proceeded to The manufacturing sector came alive is insufficient to protect ratepayers in call the roll. after the 1984 Modified Final Judgment this type of situation. Mr. WARNER. Madam President, I ended practices which had discrimi- I urge the bill’s managers to continue ask unanimous consent that the order nated against nontelephone company to defend these important principles. for the quorum call be rescinded. manufacturing. The heart of this dis- Unfortunately, from a manufacturing The PRESIDING OFFICER. Without crimination was the control which the perspective, and in my opinion, S. 652 objection, it is so ordered. local Bell telephone company had—and has created a potential loophole. The AMENDMENT NO. 1325 still has—over the local telephone ex- bill would permit the Bell operating (Purpose: To require additional rules as a change. Equipment had to connect to company to undertake research and de- precondition to the authority for the Bell and use the local exchange network. sign aspects of manufacturing and to operating companies to engage in research Companies who wanted to make tele- enter into royalty agreements with and design activities relating to manufac- phone equipment needed to deal with third parties as soon as the separate turing) the local exchange company as the ex- subsidiary rules are adopted. This pro- Mr. WARNER. Madam President, I clusive designer of the network and the vision means that the operating com- send an amendment to the desk and exclusive buyer of equipment to run pany will not necessarily have com- ask for its immediate consideration. the network. The MFJ eliminated the plied with the ‘‘competitive checklist’’ The PRESIDING OFFICER. The local telephone company’s incentive to before it is able to engage in these two clerk will report. discriminate in manufacturing by pre- activities. This provision has created The legislative clerk read as follows: venting their direct participation in an exception to the parity between The Senator from Virginia [Mr. WARNER] this sector, and that MFJ policy has manufacturing and long distance serv- proposes an amendment numbered 1325. been successful. Manufacturing has ices, and in my opinion, it may become Mr. WARNER. Madam President, my flourished while the BOC’s have man- a very troubling distraction and loop- amendment No. 1325 is a bipartisan aged their networks in cooperation hole. proposal. I am joined by a number of with the manufacturing community. In their package of amendments my colleagues on both sides of the S. 652 develops rules which will guide adopted last week, the managers of the aisle, including my colleague Senator the local telephone companies and pol- bill have clarified that these excep- ROBB as well as Senators DOMENICI, icymakers as the BOC’s reenter manu- tions are not effective until the sepa- GRAHAM, KENNEDY, KERRY, LIEBERMAN, facturing. Recognizing the continued rate affiliate rules have been adopted. and MCCAIN. potential for competitive problems as- This is an important clarification. This amendment is intended to im- sociated with the local exchange mo- In my opinion, these exceptions prove the procompetitive thrust of this nopoly, the bill also encourages the end should be removed from the bill, and in bill as it relates to the manufacture of to this local exchange monopoly by my discussions with the bill’s man- communications products, both tele- eliminating restrictions—government agers I am hopeful that you will keep communications equipment and cus- and facility—on local exchange com- an open mind on this question as you tomer premises equipment. It will petition. However, because we do not proceed forward to conference. make the bill more workable, and most know how or when local competition For now, the presence of these excep- important it will support the bill’s ef- will develop, the bill contains safe- tions in the bill highlights two areas fort to generate more jobs, stimulate guards intended to preclude recurrence where the bill’s safeguards should be innovation, and deliver more consumer of the practices that hurt the manufac- improved. In my view this amendment choices and lower prices. turing industry before 1984. These safe- would be an important improvement to I want to express my thanks to the guards will be needed for so long as the the bill even if the exceptions were not managers of this bill for their tireless local exchange monopoly persists. in the bill. But they are made more im- efforts to draft and to enact tele- S. 652 contains two important prin- portant because of the exceptions. communications reform legislation. I ciples for the manufacturing sector First, the bill does not require full had the privilege of serving on the which are intended to maintain the and ongoing information disclosure Commerce Committee in the 1970’s current competitiveness in the manu- about the telephone exchange network. when we began to address the Federal facturing sector and to build on this In order to develop the products and policies that would be needed because competition. First, the bill treats the services that would connect with of the then impending and dramatic elimination of the long distance and and use the network, manufacturers changes in telecommunications tech- the manufacturing line of business re- need to know the protocols and tech- nology. We learned two important strictions in the same manner. The nical requirements that control con- things in those early efforts. First, Bell operating company must comply nection to and use of the network. As S 8362 CONGRESSIONAL RECORD — SENATE June 14, 1995 currently written, the bill focuses on When the MFJ was adopted, the Court Western Electric Co., 675 F.Supp. 655 (D.D.C. requiring disclosure of vital network found that ‘‘design’’ had been a signifi- 1987). information when the Bell operating cant source of discrimination. More re- In his report to the Justice Department, Peter Huber reached the same conclusion, company transfers that information to cently, in this report to the Justice De- stating that ‘‘research and development its affiliate. This trigger is important, partment, Peter Huber concluded that costs, especially for system design and soft- but it begs the fundamental point that should the BOCs be permitted to again ware development, would surely offer a[n] information should be available when engage directly in manufacturing, then opportunity for cross-subsidy,’’ and that manufacturers need it, not merely ‘‘research and development costs, espe- such ‘‘cross-subsidy by U.S. telcos comes at when the BOC may decide to transfer it cially for system design and software the expense of U.S. ratepayers.’’ See Peter to the affiliate. This trigger also does development, would surely offer an im- Huber, The Geodesic Network (Washington: not address situations where informa- U.S. Government Printing Office, 1987) at portant opportunity for cross-subsidy.’’ 14.20 and 14.23n. 93. Therefore, allowing the tion is transferred to preferred third For these reasons I oppose the idea of Bell companies to engage in these activities party suppliers. A trigger based on a a more rapid elimination of the entry before they have satisfied the ‘‘competitive transfer to the affiliate invites ‘‘gam- restrictions for ‘‘design,’’ but at the checklist’’ could allow significant anti- ing’’ by the BOC and it can encourage very least the Commission must competitive conduct by the Bell companies. considerable debate about when infor- confront the opportunities and risks In addition to providing a check against mation was given to the affiliate associated with this exception as part cross-subsidization, your amendment will help reduce the likelihood that the ‘‘design’’ whether information was provided to of its development of separate affiliate exception will lead to the type of regulatory competitors on the timely basis. safeguards rules. and judicial disputes that the sponsors of S. In my opinion, information regarding Mr. President, our amendment has 652 are seeking to avoid and ensure that protocols and technical requirements broad support in the manufacturing manufacturers have access to the inter- for connecting to the network should community. The primary tele- connection information necessary to com- be on file with the FCC and kept cur- communications manufacturing trade pete equitably for Bell operating company rent at all times. This is not a regu- associations, including the Tele- procurement contracts. latory burden. This is good business communications Industry Associa- We are joined in our support for your amendment by several other manufacturing and sound, pro-competitive policy. And tions, the Electronic Industries Asso- organizations, including the Electronic In- it will reduce regulation because it will ciation, the Independent Data Commu- dustries Association, the Independent Data reduce debates about the timing and nications Manufacturers Association, Communications Manufacturers Association the caliber of information available to and the MultiMedia Telecommuni- and the MultiMedia Telecommunications As- competitors. Our amendment would cations Association, support this sociation. Collectively, these organizations call on the Commission to establish amendment. These manufacturers ac- represents manufacturers which collectively this filing requirement at the same count for an overwhelming majority of account for an overwhelming majority of the time that it establishes the separate the $55 billion generated by the tele- $55 billion in revenues generated by the tele- communications manufacturing industry in affiliate rules. communications manufacturing indus- 1994. Second, the bill recognizes that rela- try in 1994. I ask by unanimous consent Sincerely, tionships between the Bell operating that a letter of support from these or- MATTHEW J. FLANIGAN. companies and third parties can be a ganizations be included in the RECORD Mr. WARNER. Madam President, this source of discrimination and cross sub- at this point. is an amendment which the managers sidy. However, the development of Again I thank my colleagues, the have under consideration and, as yet, rules to prevent such activities are dis- managers of S. 652, for their efforts on there has not been a resolution be- cretionary. Given the royalty and de- this bill and for their cooperation on tween the managers as to whether or sign activities, it is especially impor- our amendment. not it can be accepted. Pending their There being no objection, the letter tant for the FCC to address this area at decision, I have to make a decision as was ordered to be printed in the the same time it develops its separate to whether or not to present it to the RECORD, as follows: affiliate rules, and our amendment in- entire Senate. cludes this directive. The Hon. JOHN WARNER, If I might briefly state it, I have con- Last, the amendment attempts to ad- 225 Russell Senate Office Building, Washington, cerns about the provision in S. 652 that dress the murky distinction between DC. DEAR SENATOR WARNER: On behalf of the permits the Bell operating companies ‘‘research and design’’ and the other into design aspects of manufacturing aspects of manufacturing which remain Telecommunications Industry Association, I want to thank you for your efforts to im- as soon as the separate affiliate rules prohibited until the BOC has complied prove S. 652, the Telecommunications Com- are established. This amendment pro- with the checklist and is authorized to petition and Deregulation Act of 1995. We vides an exception to the bill’s impor- offer long distance service. If the Bell share your belief that the ‘‘design’’ carve-out tant principle that entry into manufac- operating company is to be allowed to in the manufacturing section of S. 652 cre- turing in long distance will not occur engage in research and design activi- ates a dangerous exception to the bill’s oth- until the checklist for local exchange ties before it is permitted to engage in erwise reasonable proposal that a Bell oper- ating company must comply with the bill’s competition has been adopted. other manufacturing activities, then it Short of delaying the design incep- is critical for the Commission to clear- ‘‘competitive checklist’’ and establish a sep- arate subsidiary before being granted relief tion, it would be my hope that we ly identify and articulate these activi- from the line-of-business restrictions im- could explore the possibility that the ties which are permitted to distinguish posed by the Modification of Final Judg- provision can be modified to mitigate these activities from the other aspects ment. Accordingly, although we do not con- what we view—that is my constitu- of manufacturing and from BOC activi- cede that the ‘‘design’’ exception in Section ents—as serious potential for discrimi- ties. This definitional undertaking 256(a)(2) is appropriate communications pol- nation and cross-subsidization, which must be part of the separate subsidiary icy, and while we continue to believe that Section 256(a)(2) should be dropped from the we view as the current situation. Given rulemaking process in order to ensure that the managers are reviewing this, I that ‘‘research and design’’ are com- bill, we strongly support your proposed amendment to S. 652. will ask that the amendment be laid pletely separate from other aspects of There is a broad consensus that ‘‘design’’ aside until some future time. manufacturing and from BOC activi- activities are the most important part of the The PRESIDING OFFICER. Is there ties. manufacturing process, and that it presents objection? The design area is the most impor- the greatest opportunity for anticompetitive Mr. PRESSLER. Madam President, I tant part of the manufacturing process. behavior. Thus, the Court administering the understand that some Senators have a It is the area where considerable value MFJ has stated that: problem with this amendment, and I ‘‘ ‘[I]n virtually every manufacturing epi- is created, and it is the activity which think we will have to resolve those largely determines the functionality sode’ that was the subject of a pretrial charge by the government or that produced problems at a future time. and complexion of the products. The evidence at the trial, it was design and devel- Does the Senator from Virginia vis- MFJ Court has repeatedly found that opment manipulation that was the focus or age this coming up tomorrow? design presents the greatest oppor- sole subject rather than discrimination with Mr. WARNER. Yes, that would be tunity for anticompetitive behavior. respect to fabrication.’’ See United States v. quite agreeable. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8363 AMENDMENT NO. 1325, AS MODIFIED changes in how telecommunications prod- DR. HENRY FOSTER DESERVES A Mr. WARNER. Madam President, to ucts and services are sold that would greatly VOTE benefit the small businesses of our state. correct what seems to be an imperfec- Mrs. BOXER. Madam President, per- tion, I send a modification of my A recent survey, sponsored by the National Federation of Independent Business Founda- haps I am interrupting the flow of the amendment to the desk. tion, found that a full 86 percent of small telecommunications bill for just 1 or 2 The PRESIDING OFFICER. The Sen- business owners said they want the conven- minutes because I promised that I ator has that right. The amendment is ience of ‘‘one-stop shopping’’ for tele- would do so every day until we hear so modified. communications services. that there are plans to bring the nomi- The amendment (No. 1325), as modi- S. 652 would bring us one-stop shopping. By nation of Dr. Henry Foster for Surgeon fied, is as follows: creating a more competitive marketplace General to the Senate for a vote. At the end of section 222 of the bill, insert that will let local Bell companies and long- Senator Pat MURRAY from Washing- the following: distance companies and cable companies all ton and I brought this issue up yester- (c) ADDITIONAL REQUIREMENTS RELATING TO compete in each other’s traditional busi- nesses, it will provide small businesses with day. We noted very clearly that Dr. RESEARCH AND DESIGN ACTIVITIES WITH RE- Foster was nominated by President SPECT TO MANUFACTURING.—(1) In addition to the convenience and lower prices we need. the rules required under section 256(a)(2) of In enacting legislation, we urge Members Clinton in February. This country has the Communications Act of 1934, as added by of Congress to keep in mind ‘‘Five Easy no Surgeon General. subsection (a), a Bell operating company Pieces’’ of guidance from small business on We still have an AIDS epidemic, may not engage in the activities or enter what constitutes good telecommunications Madam President. We have an epidemic into the agreements referred to in such sec- policy. of teen pregnancy. I know my friend tion 256(a)(2) until the Commission adopts 1. For small businesses as customers, we who is sitting in the chair now strongly the rules required under paragraph (2). need legislation that maximizes choice and supports efforts to reduce the rate of (2) The Commission shall adopt rules affordability by simultaneously opening all teen pregnancy and strongly supports that— telecommunications markets—at the earli- est possible date—to full and equal competi- efforts to reduce the rate of AIDS. (A) provide for the full, ongoing disclosure We now have a tuberculosis epidemic by the Bell operating companies of all proto- tion among vendors. cols and technical specifications required for 2. For small businesses as customers, we that has reemerged, after we thought connection with and to the telephone ex- need legislation that minimizes confusion we had solved the problem. We have change networks of such companies, and of and complexity by letting all vendors com- teens smoking in great numbers. any proposed research and design activities pete to offer us one-stop shopping for the full This is the business of the Surgeon or other planned revisions to the networks array of telecommunications products and General, to look over the health issues. that might require a revision of such proto- services. In the Senate we look over so many cols or specifications, 3. For all small businesses, we need legisla- issues—telecommunications—compli- (B) prevent discrimination and cross-sub- tion that maximizes flexibility and mini- cated issues, difficult issues. They sidization by the Bell operating companies mizes regulation, so introduction of new change every day. The Surgeon General products and services can keep pace with in their transactions with third parties and will look after the health of this coun- with the affiliates of such companies; and rapid technological and market changes. (C) ensure that the research and design ac- 4. For small businesses as vendors, we need try. tivities are clearly delineated and kept sepa- legislation that maximizes opportunities for We know when we have healthy ba- rate from other manufacturing activities. us to create and sell innovative new products bies and they are immunized and there Mr. PRESSLER. We have no objec- and services by removing regulatory con- is prenatal care for women, and we straints. tion to this amendment being laid over know when there is less drug use and 5. For small businesses in rural or high- until tomorrow. alcohol use in our Nation, we become a cost areas, we need legislation that maxi- much more productive nation. Cer- I ask unanimous consent that amend- mizes universal opportunity by insuring— ment No. 1325, as modified, be set aside tainly, as we are going to look a the through a fair system of cost sharing—that welfare reform bill, we know one of the until tomorrow. some parts of our country do not become too The PRESIDING OFFICER. Without costly in which to operate, or technological greatest causes of welfare is, simply put, that teens are having babies. This objection, it is so ordered. backwaters. Mr. WARNER. Madam President, I We believe S. 652 achieves these objectives. is a problem we must deal with. Again, I call on the majority leader suggest the absence of a quorum. Please support S. 652. to please move forward this nomina- The PRESIDING OFFICER. The The small businesses of our state thank you for your consideration. tion. Dr. Foster showed he had the true clerk will call the roll. grit to stand the criticism. He emerged Mr. PRESSLER. Madam President, I What this letter is saying and seems out of the committee with a bipartisan, ask unanimous consent that the order to represent, talking of small business- favorable vote. for the quorum call be rescinded. men, the majority of small business- men—and indeed I guess there might be I look forward to debating this nomi- The PRESIDING OFFICER. Without nation on the floor. I certainly hope objection, it is so ordered. at some point some resolutions adopted over there. They made it a point to get that because an individual is an ob/gyn, Mr. PRESSLER. Madam President, I an obstetrician/gynecologist, and in mentioned earlier that over 500 dele- to the Senate today over 500 letters supporting the Senate version of the that practice performed a small num- gates of the, I think, about 1,600 or ber of abortions and yet brought 10,000 1,700 delegates to the Small Business Telecommunications Competition and Deregulation Act. They have also given babies into the world, it would not be Conference going on now at the White used against that individual and that House have written me letters—and the same letters to President Clinton, urging him to support it. I hope he is this will not become a pawn in the also have written President Clinton— Presidential nomination. It would be urging that he support the Senate ver- listening closely to the small business- men in his White House conference. very sad. I think the American people sion of the Telecommunications Com- are very fair people. This man deserves I suggest the absence of a quorum. petition and Deregulation Act and that a vote. This man deserves a hearing. the Senate pass it. The PRESIDING OFFICER. The I just really hope that the majority I just pulled out of this packet of 500 clerk will call the roll. leader will come to the floor—perhaps letters, one letter from a Mr. Robbie The legislative clerk proceeded to today, tomorrow, this week—and tell Smith, Smith Communications in Chi- call the roll. Members when we can hope to have the cago, IL. I do not know him, but he is Mrs. BOXER. Madam President, I ask Foster nomination brought before the a delegate to the Small Business Con- unanimous consent that the order for full Senate. ference now going on at the White the quorum call be rescinded. I thank the Senate. I thank my col- House. He wrote the following, and I The PRESIDING OFFICER. Without leagues. I yield the floor. think it is important, because it is il- objection, it is so ordered. Madam President, I suggest the ab- lustrative that small business strongly Mrs. BOXER. Madam President, I ask sence of a quorum. supports this legislation. unanimous consent to speak as in The PRESIDING OFFICER (Mr. I am writing to urge you to support S. 652, morning business for 2 minutes. ASHCROFT). The clerk will call the roll. the Telecommunications Competition and The PRESIDING OFFICER. Without The legislative clerk proceeded to Deregulation Act, which would bring about objection, it is so ordered. call the roll. S 8364 CONGRESSIONAL RECORD — SENATE June 14, 1995 Mr. LIEBERMAN. Mr. President, I to say there was only one that any nopoly abuses, and virtually dereg- ask unanimous consent that the order consumer had any access to in the ulates cable, which means that without for the quorum call be rescinded. State of Connecticut, they were subject this amendment we are inviting the The PRESIDING OFFICER. Without to a kind of public utilities regulation, majority of cable companies to raise objection, it is so ordered. since there was no competition. their rates. And, unfortunately, we are f This went on until 1984 when the Con- guaranteeing that the majority of our gress in its wisdom, without the par- constituents, many of whom may be THE TELECOMMUNICATIONS COM- ticipation of the occupant of the chair watching tonight, are going to see in- PETITION AND DEREGULATION or myself, at that time passed an act creases in the cost of cable television ACT which prohibited the States from regu- every month, unless we act to amend The Senate continued with the con- lating the cost of cable. As I will docu- this bill. And I believe the amendment sideration of the bill. ment in a moment or two, there was a I am offering is a good procompetitive AMENDMENT NO. 1298 great outcry from many of us at the way to do so, consistent with the over- (Purpose: To improve the provisions relating State level, first on the basis of fed- all procompetitive spirit of this legisla- to cable rate reform) eralism, that we had been deprived of tion. Mr. LIEBERMAN. Mr. President, at this opportunity to exercise our capac- Mr. President, before my colleagues this time I call up amendment No. 1298. ity and obligation to protect our con- vote on this matter, I think it is imper- The PRESIDING OFFICER. The sumers in the State of Connecticut or ative to review the current status of clerk will report. elsewhere as we saw fit, but also be- cable regulation and how it is working. The bill clerk read as follows: cause the effect of the congressional First of all, let us ask what has hap- The Senator from Connecticut [Mr. act of 1984 was to leave cable consum- pened since we passed the Cable Act of LIEBERMAN] proposes an amendment num- ers facing monopolies, only one cable 1992; and, second, what impact will this bered 1298. provider, without the benefit of protec- legislation before us have? My concern Mr. LIEBERMAN. Mr. President, I tion from consumer protection legisla- again is that this legislation, if ask unanimous consent that reading of tion, and without the benefit of com- unamended, virtually guarantees sig- the amendment be dispensed with. petition. nificant cable rate increases before The PRESIDING OFFICER. Without What happened I will document in a competition comes to the cable mar- objection, it is so ordered. moment or two, but it ultimately led ket. And today, the FCC tells us that The amendment is as follows: to a very successful effort in 1992 to only 50 of the more than 10,000 cable At the appropriate place, insert the follow- adopt a cable act which was passed markets in America have effective ing new section: with strong bipartisan majorities, and competition. That means if we have SEC. . DETERMINATION OF REASONABLENESS was vetoed by President Bush. It constituents in the 9,950-plus other OF CABLE RATES. turned out to be the only veto of the markets, and if this legislation goes (a) COMMISSION CONSIDERATION.—Notwith- Bush years that was overridden by this forward as it is, they are probably standing any other provision of this Act or Congress. The Cable Act of 1992 went going to see a cable rate increase. section 623(c), as amended by this Act, for into effect, with positive effect, as I What I see happening here is the po- purposes of section 623(c), the Commission tential for this Congress to make the may only consider a rate for cable program- will describe in a moment. Then, sud- ming services to be unreasonable if it sub- denly as part of this major reform of same mistake that was made in 1984 stantially exceeds the national average rate telecommunications, there appears when the cable industry was deregu- for comparable programming services in what amounts to the evisceration of lated based on the promise or the hope cable systems subject to effective competi- that cable consumer protection. that competition was right around the tion. So just 3 years after passing that corner. (b) RATES OF SMALL CABLE COMPANIES.— landmark legislation to bring competi- In 1984, it was the promise of com- (1) IN GENERAL.—Notwithstanding any tion to cable television and keep regu- petition from satellites to the tradi- other provision of this Act or the amend- tional cable. Now it is again and still ments made by this Act, the regulations pre- lation until that competition came, scribed under section 623(c) shall not apply just 3 years after the effort began once the promise of satellite competition to the rates charged by small cable compa- again to hold down cable rates for the plus the promise of telephone company nies for the cable programming services pro- millions of cable consumers around competition. After the 1984 act passed vided by such companies. America until competition emerges, we the Congress, the fact is that the cost (2) DEFINITION.—As used in this subsection, are now considering a bill that I am of cable television skyrocketed. Today the term ‘small cable company’ means the afraid will undo many of the consumer only one-half of 1 percent of cable con- following: protection benefits of the 1992 Cable sumers receiving satellite service from (A) A cable operator whose number of sub- DBS, direct broadcast satellite, which scribers is less than 35,000. Act. (B) A cable operator that operates multiple The amendment that I have intro- is the new satellite competitor, and cable systems, but only if the total number duced this evening, No. 1298, will pre- only experimental efforts exist today of subscribers of such operator is less than vent the dismantling of the cable to transmit cable over telephone lines. 400,000 and only with respect to each system consumer protections of the 1992 act. It is only natural to fear that cable of the operator that has less than 35,000 sub- Mr. President, I assume we all rates will shoot up again under the cur- scribers. agree—I certainly do—that competi- rent bill. Mr. LIEBERMAN. Mr. President, I tion is the best way to set prices. Mar- Let me just go back over that. The am delighted to see occupying the kets can set prices much more accu- promise of satellite reception for cable chair at this time, the distinguished rately and effectively than regulators consumers, television consumers, was former attorney general of the State of can. Although consumers cannot really ripe in the air in 1984 when cable was Missouri, because my interest in this reap the benefits of competition, obvi- deregulated. Today, 11 years later, one- subject of the regulation of cable rates ously, until there is effective competi- half of 1 percent of the television con- started in 1984 when I was the attorney tion in their local markets, the amend- sumers with multichannel service re- general of the State of Connecticut. ment that I am introducing, I think, ceive that service from the Direct We had established a system similar will provide consumers with some of Broadcast Satellite. in many ways, different in some ways, the advantages of competition. With- The last time Congress prematurely to other States and municipalities out competition, monopolies have the deregulated cable rates, the General around the country to deal with the ad- license to unreasonable rate increases. Accounting Office found that the price vent of this exciting new technology, So we have a choice. When there is no of basic cable service rose more than 40 cable television, in which our State— competition, we can have regulation, percent in the first 3 years without reg- during the 1960’s, originally, and the or we can just simply say let the mo- ulation. And 40 percent is three times 1970’s—had given out franchises for nopolies go. the rate of inflation during that same cable television in different areas of The cable rate regulation included in period of time, 1986 to 1989, and four the State. These were monopolies. Be- the current underlying bill before us, times the level of increases experienced cause they were monopolies, which is in my opinion, does not prevent mo- under regulation. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8365 Mr. President, the Commerce Com- number—this translates into a lation has existed again for a couple of mittee received testimony from local consumer savings of $2.5 billion to $3 years, the capital expenditures of the officials that demonstrated real price billion per year since the adoption of cable industry have been very healthy. exorbitance. Mayor Sharpe James of the Cable Act of 1992. In fact, they have dramatically in- Newark testified that rates increased Furthermore, consumers were not hit creased in the years that regulation by more than 130 percent from 1986 to by the two to three times inflation rate has been on. We go from 1993, up to al- 1989 in his community. Mayor Eddy increases they used to face when cable most $3 billion; in 1994, up to almost $4 Patterson of Henderson, TN, noted was deregulated. So not only did we billion, $3.7 billion. rates rose 40 percent in the same period not have the increases, we actually had Since last summer, 1994, major cable in his area. Rates shot up as much as 99 $2.5 billion to $3 billion of consumer companies have raised and invested percent in communities in Hawaii, ac- savings, and there is not much that we over $15 billion in new competitive ven- cording to Robert Alm from Hawaii’s can look at in the way of the cost of tures. Most recently, a consortium Department of Commerce. David living in our society that went down that includes TCI, Comcast and Cox, Adkisson, Mayor of Owensboro, KY, during this period of time. raised and spent more than $2 billion to testified that basic receipts rose 40 per- While consumers have come out buy, if you will, the spectrum that was cent in just 1 year. And I can report ahead, I want to point out that the auctioned, a figure higher than any that rates in Connecticut jumped 52 cable industry has done well, contrary other set of bidders paid in the spec- percent in those 3 years in the mid- to its fears, under this new act. They trum auction. 1980’s, led by one company which actu- have been busy developing new service Let us talk about the profit margin ally hiked its rates by an unbelievable and increasing revenue streams, and as for the cable industry during this pe- 222 percent when there was no regula- far as I am concerned that is great riod of time. For 1993, it was 20 percent, tion and no competition, which effec- news. With pay channels, increased ad- the highest profit margin of any seg- tively is what this bill will bring us vertising revenue and digital audio ment of the telecommunications indus- back to. services, the cable industry has made try, and this is after regulation went Consumer groups testified to the up all of the money consumers saved into effect, because there was no com- Commerce Committee demonstrating from regulation. In addition, cable has petition. Cable companies have been that in the few communities where had the money to prosper through ex- successful in acquiring and spending there was competition, which is to say pansion. And you can see in this plot money, and that is the way it ought to two cable companies going head to the increase in subscribers that cable be. I want them to grow and prosper. head, rates were about 30 percent lower companies have had since the regula- Finally, here I have plotted the aver- than in the monopoly markets. tions imposed by the Cable Act. age value of cable stocks as compared So on the basis of that evidence this The impact of the Cable Consumer to the S&P 500. As you can see, regula- Congress moved in a bipartisan fashion Act of 1992 saved consumers a substan- tion has not hurt the performance of in 1992 to pass the Cable Act. Let me tial amount of money, $2.5 billion to $3 cable stocks. In blue, we have cable in- now remind my colleagues briefly what billion a year, and rates went down 11 dustry stocks charted. The S&P 500 is that law does. The Cable Act—that is percent. But the great news about it is in red. Here, again, you can see how the law in effect today, before this that all that happened and the cable healthy the cable industry has been— bill—allows Federal and local officials companies still remained healthy. and the stock market, after all, is a to limit cable rates to a reasonable In this chart, I am showing the in- measurement of consumer confidence level until there is effective competi- crease in the number of subscribers the in the future of this industry. Here we tion to the cable monopoly. This is not cable companies have had since the go, 1993 and 1994, during that period of permanent regulation. This is not the regulations imposed in the cable act. time when regulation was instituted heavy, immovable hand of Govern- This is 1990, a 4.4 percent increase; 1991; because there was no competition, the ment. This says let us get regulation and then after the act, 1993–1994, you cable industry stock index performed out of here as soon as there is competi- can see they go up 2.8 percent; and then significantly better than the Standard tion. In other words, regulation sun- in 1994, when the act really kicked in & Poor’s 500. sets, disappears. And the standard here for the full year, a 5-percent increase in Obviously, investors do not think is it disappears when half the residents subscriber growth to cable, which regulation has been bad for the cable of a community have more than one shows that the business remained industry. Just about every day news- choice for cable service and 15 percent healthy during that period of time. papers announce new examples of of them, only 15 percent of that com- Last year, cable systems expanded major cable advancement or system munity, actually select the service their infrastructure to reach 1 million upgrades or system expansion. Again, from the cable competitor. additional homes, 1.4 additional house- that is good news. Let us talk about the results of the holds subscribed to basic cable service, Finally, it is critical to understand law. Mr. President, according to the and 1.1 million families purchased ex- that the cable act and the FCC regula- Consumer Price Index for cable service, panded cable packages. tions allow cable operators to respond rates are down about 11 percent from Pay services were taken by an addi- to both the threat of competition or their trend line when cable was deregu- tional 2 million homes, and dozens of actual competition in the same manner lated. I plotted here on this chart the new programming channels were devel- that any reasonable business in an un- trend of cable rate increases before oped and offered to the public, all of regulated market would react to such rate regulation extrapolated to the that growth occurring during these 2 threats. In the face of competition, a present. That is the blue line. years in which regulation has been in cable operator may either improve Also plotted are cable rates after rate place. service—that is what competition is all regulation, and cable rates subject to Equally important, some would say about—without any regulatory filings, competition. So the red line is the dif- most important, the cable industry has reduce prices for any tier of service— ference here in rates after the 1992 act been investing to compete with tele- that is what a normal business does went into effect, and this actually is a phone companies in the multimedia when they have competition without projection of what has happened in services. I know that one of the argu- any regulatory OK, they reduce their those 50 markets where there is com- ments that the cable company folks prices—they may offer new services at petition, which is great for consumers. have made against this amendment and any price, all this without regulation. Regulation is modestly controlling for deregulation now before there is And, of course, under the act, all pay monopolies. That is what the red line any competition to them has been that services—this is the 1992 act—all pay tells us. But competition is the real so- they have to be able to raise money to services and premium channels are al- lution. Competition works at keeping compete, build an infrastructure with ready unregulated. cable rates under control. Without the telephone companies when they get Mr. President, there is only one thing competition, regulation is necessary to into the cable business. the cable operator may not do under control those price increases. On a na- But the fact is that the chart illus- the Cable Act of 1992 and that is to tionwide basis—this is an interesting trates during this period in which regu- raise rates above a reasonable level. S 8366 CONGRESSIONAL RECORD — SENATE June 14, 1995 Why would any cable operator who Discovery, Lifetime, USA and, in many culation dreamed up by regulators. Not faced real competition want to raise cases, C-SPAN. Rate increases in this only is the system illogical, it is also prices above a reasonable level? Obvi- range would drive cable prices back up unfair. And though the system of cal- ously, most sensible business people to the levels experienced from 1986 to culation may be complex, the result, in would not raise prices in the face of 1992 when there was no consumer pro- my opinion, will be plain and simple, that competition. But does that not all tection. and that is that the consumer of cable change if there is no competition? What we are presenting here is an op- services—the millions out there across I am sorry to say that the committee portunity for the cable operators to go America, who depend on cable for their bill with its repeal of these cable back to their old ways. What I am say- entertainment, for their information, consumer protections that have ing is you do not need to do this to in many cases today, even for their worked for the consumer and the in- keep them healthy, as the numbers I shopping—are going to be the ones to dustry will allow the industry to raise have shown indicated. Even if the Con- lose their rates. Their rates will go up. its rates again before competition ever gress completely deregulated cable My amendment uses markets to set arrives and literally takes us back to again, it—well, basically this amounts prices, not arcane formulas devised by 1984. to complete deregulation. regulators. Although proponents of this bill, S. In my amendment, No. 1298, the na- In conclusion, I want to make sure 652, note that it does explicitly deregu- tional average would be calculated not we do not make the same mistake I be- late all cable services immediately, the by what exists on June 1, 1995, or on lieve Congress made in 1984 and that bill provides cable operators an oppor- what exists 2 years from now after rais- Congress recognized it made in 1992. tunity to raise rates back to about the ing the rates. It will be calculated by Consumers paid a hefty price for pre- level they would have been if we had including markets that currently have mature deregulation of cable over the not passed the Cable Act of 1992. effective competition and those who last decade. I say ‘‘premature’’ because Let me briefly explain. In this bill, S. become competitive over time, allow- competition effectively exists in very 652 before us now, the standard for de- ing the markets, not regulators to set few cable markets. I do not want to termining that a cable company is prices. redo that mistake. charging unreasonable rates for pro- That is the point of this amendment, This amendment will prevent exces- gram services would be a comparison and that is why I think this amend- sive deregulation before there is com- to the national average of cable system ment is so consistent with the overall petition, while maintaining the spirit rates as of June 1, 1995, a few weeks thrust of this bill. It is procompetitive. of the underlying bill. I am in favor of ago. A cable company would have to It says let the markets, not regulators, competition. I hope it comes quickly. I charge rates that are substantially set reasonable prices. Small cable com- hope there are more than one-half of 1 above the national average on June 1, panies, because they have their own percent who get a competitive cable 1995, before that company could be reg- economic pressures that control their service from the direct broadcast sat- ulated. rates, in my opinion, would be exempt ellites. I hope that the telephone com- And this deals with what we all con- from regulation under this amendment. panies move as rapidly as some suggest sider to be cable. The bill, S. 652, leaves I want to emphasize that the negotia- they will—though, I doubt it—into pro- basic services regulated. There are tions that resulted in some changes in viding multi-channel services and com- three tiers of cable: basic, which is the calculation of the national average, petition with existing cable systems. what you can get without cable over while moving in the direction of put- Let competition set rates and protect antenna, in most cases, the networks ting some pressure on these monopolies consumers, not regulators. That is and maybe public television; the mid- and protecting consumers, in my opin- what my amendment is all about. dle tier, what most people think of as ion, just do not go far enough. The na- I thank the Chair for the courtesy cable—CNN, ESPN, Nickelodeon, what- tional average would be calculated and the opportunity to address my col- ever; and the third tier is channels un- using the rates from June 1 of this leagues on behalf of this amendment. regulated. year. Using a fixed date when regula- I urge support for it, and I yield the Today, the basic tier and middle tier tion is in effect is supposed to result in floor. are regulated. Premium channels are a fair value for the national average for Mr. ROCKEFELLER. Just for the not. Under this legislation, the basic cable rates. But that date, June 1, oc- sake of the hour of 7:30, I simply ask tier remains regulated, the middle tier curs after some significant deregula- unanimous consent, Mr. President, for is unregulated, unless the rates are tion for certain cable systems under 10 seconds to call up amendment No. found to be substantially above the na- the FCC procedure. Using that date 1292. tional average. The national average will increase the national average, The PRESIDING OFFICER. Is there will be recalculated every 2 years. therefore, leading to higher cable rates. objection? In the absence of objection, So, there again, we have an incentive The method of calculation spelled out the Senator from West Virginia is rec- for the industry to increase its prices. in the bill, which is complicated, uses a ognized. Ironically, it is as if instead of a reason per-channel approach, cost per channel. Mr. ROCKEFELLER. I thank the to reduce prices or hold prices, we are So let me give you an example based on Senator. giving in this legislation the industry numbers from a compilation of cost per AMENDMENT NO. 1292 an incentive to increase prices, because channel rates in an article that ap- (Purpose: To eliminate any possible jurisdic- the standard will be changed every 2 peared in Consumers Research. tional question arising from universal years. With almost 40 percent of the In 1990, monopoly cable systems were service references in the health care pro- market dominated by two cable compa- charging 50 percent more than cable viders for rural areas provision) nies, the national average will be con- companies in competitive markets on a The PRESIDING OFFICER. Does the trolled by a small number of compa- cost per channel basis. Using the com- Senator call up an amendment? Would nies. plex calculation described in the cur- you repeat the number again, please? For example, an average package of rent bill, as modified by the managers Mr. ROCKEFELLER. Yes. 1292. cable programming around this coun- amendment, there would be a signifi- The PRESIDING OFFICER. The try now costs about $15 or $20 a month. cant increase in the cost per channel clerk will report. Every cable consumer whose company over the rates charged in competitive The bill clerk read as follows: currently charges less than this aver- markets. The Senator from West Virginia [Mr. age will have a green light to increase So taking inflation into account, the ROCKEFELLER] proposes an amendment num- their rates to $20 to $25 per month average cost per channel would be 20 bered 1292. without being substantially above the percent higher in the current bill than Mr. ROCKEFELLER. Mr. President, I national average, which is the standard by simply comparing rates to competi- ask unanimous consent that reading of in this legislation. tive markets, as occurs in my amend- the amendment be dispensed with. In other words, consumers are likely ment. The PRESIDING OFFICER. Without to face at least a $5 a month rate in- So to summarize, the current bill de- objection, it is so ordered. crease for stations like ESPN, CNN, fines a very complex method of cal- The amendment is as follows: June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8367 In section 264 of the Communications Act Mr. STEVENS. Mr. President, I ask cluding those in rural and high cost areas of 1934, as added by section 310 of the bill be- unanimous consent that reading of the and those with disabilities; ginning on page 132, strike subsections (a) amendment be dispensed with. ‘‘(B) are essential in order for Americans to participate effectively in the economic, and (b) and insert the following: The PRESIDING OFFICER. Without ‘‘(a) IN GENERAL.— academic, medical, and democratic processes ‘‘(1) HEALTH CARE PROVIDERS FOR RURAL objection, it is so ordered. of the Nation; and AREAS.—A telecommunications carrier shall, The amendment is as follows: ‘‘(C) are, through the operation of market upon receiving a bona fide request, provide On page 36, between lines 23 and 24, insert choices, subscribed to by a substantial ma- telecommunications services which are nec- the following new subsection and renumber jority of residential customers. essary for the provision of health care serv- the remaining subsections accordingly: ‘‘(2) DIFFERENT DEFINITION FOR CERTAIN ices, including instruction relating to such (a) FINDINGS.—The Congress finds that— PURPOSES.—The Commission may establish a services, at rates that are reasonably com- (1) the existing system of universal service different definition of universal service for parable to rates charged for similar services has evolved since 1930 through an ongoing schools, libraries, and health care providers in urban areas to any public or nonprofit dialogue between industry, various Federal- for the purposes of section 264. health care provider that serves persons who State Joint Boards, the Commission, and the ‘‘(c) ALL TELECOMMUNICATIONS CARRIERS MUST PARTICIPATE.—Every telecommuni- reside in rural areas. A telecommunications courts; cations carrier engaged in intrastate, inter- carrier providing service pursuant to this (2) this system has been predicated on state, or foreign communication shall par- paragraph shall be entitled to have an rates established by the Commission and the ticipate, on an equitable and nondiscrim- amount equal to the difference, if any, be- States that require implicit cost shifting by inatory basis, in the specific and predictable tween the price for services provided to monopoly providers of telephone exchange mechanisms established by the Commission health care providers for rural areas and the service through both local rates and access and the States to preserve and advance uni- price for services provided to other cus- charges to interexchange carriers; versal service. Such participation shall be in tomers in comparable urban areas treated as (3) the advent of competition for the provi- the manner determined by the Commission a service obligation as a part of its obliga- sion of telephone exchange service has led to industry requests that the existing system and the States to be reasonably necessary to tion to participate in the mechanisms to pre- preserve and advance universal service. Any serve and advance universal service under be modified to make support for universal service explicit and to require that all tele- other provider of telecommunications may section 253(c). be required to participate in the preservation ‘‘(2) EDUCATIONAL PROVIDERS AND LIBRAR- communications carriers participate in the and advancement of universal service, if the IES.—All telecommunications carriers serv- modified system on a competitively neutral public interest so requires. ing a geographic area shall, upon a bona fide basis; and (4) modification of the existing system is ‘‘(d) STATE AUTHORITY.—A State may request, provide to elementary schools, sec- adopt regulations to carry out its respon- ondary schools, and libraries universal serv- necessary to promote competition in the pro- vision of telecommunications services and to sibilities under this section, or to provide for ices (as defined in section 253) that permit additional definitions, mechanisms, and such schools and libraries to provide or re- allow competition and new technologies to reduce the need for universal service support standards to reserve and advance universal ceive telecommunications services for edu- service within that State, to the extent that cational purposes at rates less than the mechanisms. On page 38, beginning on line 15, strike all such regulations do not conflict with the amounts charged for similar services to Commission’s rules to implement this sec- other parties. The discount shall be an through page 43, line 2, and insert the follow- ing: tion. A State may only enforce additional amount that the Commission and the States definitions or standards to the extent that it ‘‘SEC. 253. UNIVERSAL SERVICE. determine is appropriate and necessary to adopts additional specific and predictable ‘‘(a) UNIVERSAL SERVICE PRINCIPLES.—The ensure affordable access to and use of such mechanisms to support such definitions or Joint Board and the Commission shall base telecommunications by such entities. A tele- standards. communications carrier providing service policies for the preservation and advance- ‘‘(e) ELIGIBILITY FOR UNIVERSAL SERVICE pursuant to this paragraph shall be entitled ment of universal service on the following SUPPORT.—To the extent necessary to pro- to have an amount equal to the amount of principles: vide for specific and predictable mechanisms the discount treated as a service obligation ‘‘(1) Quality services are to be provided at to achieve the purposes of this section, the as part of its obligation to participate in the just, reasonable, and affordable rates. Commission shall modify its existing rules mechanisms to preserve and advance univer- ‘‘(2) Access to advanced telecommuni- for the preservation and advancement of uni- sal service under section 253(c). cations and information services should be versal service. Only essential telecommuni- ‘‘(b) UNIVERSAL SERVICE MECHANISMS.—The provided in all regions of the Nation. cations carriers designated under section Commission shall include consideration of ‘‘(3) Consumers in rural and high cost areas 214(d) shall be eligible to receive support for the universal service provided to public in- should have access to telecommunications the provision of universal service. Such sup- stitutional telecommunications users in any and information services, including port, if any, shall accurately reflect what is universal service mechanism it may estab- interexchange services, that are reasonably necessary to preserve and advance universal lish under section 253. comparable to those services provided in service in accordance with this section and urban areas. Mr. ROCKEFELLER. I thank the the other requirements of this Act. ‘‘(4) Consumers in rural and high cost areas ‘‘(f) UNIVERSAL SERVICE SUPPORT.—The Chair. should have access to telecommunications Commission and the States shall have as The PRESIDING OFFICER. Without and information services at rates that are their goal the need to make any support for objection, the amendment will be set reasonably comparable to rates charged for universal service explicit, and to target that aside. similar services in urban areas. support to those essential telecommuni- Mr. STEVENS. Mr. President, I want ‘‘(5) Consumers in rural and high cost areas cations carriers that serve areas for which to comply with the majority leader. should have access to the benefits of ad- such support is necessary. The specific and I would like to call up my amend- vanced telecommunications and information predictable mechanisms adopted by the Com- services for health care, education, economic ments 1301, 1302, 1304, already covered, mission and the States shall ensure that es- development, and other public purposes. sential telecommunications carriers are able and 1300. And I will offer a second-de- ‘‘(6) There should be a coordinated Federal- to provide universal service at just, reason- gree amendment to the 1300. State universal service system to preserve able, and affordable rates. A carrier that re- Thank you very much. and advance universal service using specific ceives universal service support shall use The PRESIDING OFFICER. Is there and predictable Federal and State mecha- that support only for the provision, mainte- objection? nisms administered by an independent, non- nance, and upgrading of facilities and serv- Mr. STEVENS. I move to lay this governmental entity or entities. ices for which the support is intended. aside in order to continue with the con- ‘‘(7) Elementary and secondary schools and ‘‘(g) INTEREXCHANGE SERVICES.—The rates classrooms should have access to advanced charged by any provider of interexchange sideration of Senator LIEBERMAN’s telecommunications services. telecommunications service to customers in presentation. ‘‘(b) DEFINITION.— rural and high cost areas shall be no higher The PRESIDING OFFICER. Will the ‘‘(1) IN GENERAL.—Universal service is an than those charged by such provider to its Senator suspend for just a moment? evolving level of intrastate and interstate customers in urban areas. Was the Senator intending to call up telecommunications services that the Com- ‘‘(h) SUBSIDY OF COMPETITIVE SERVICES amendment No. 1300? mission, based on recommendations from the PROHIBITED.—A telecommunications carrier Mr. STEVENS. Yes. public, Congress, and the Federal-State may not use services that are not competi- tive to subsidize competitive services. The AMENDMENT NO. 1300 Joint Board periodically convened under sec- tion 103 of the Telecommunications Act of Commission, with respect to interstate serv- The PRESIDING OFFICER. The 1995, and taking into account advances in ices, and the States, with respect to intra- clerk will report. telecommunications and information tech- state services, shall establish any necessary The legislative clerk read as follows: nologies and services, determines— cost allocation rules, accounting safeguards, The Senator from Alaska [Mr. STEVENS] of- ‘‘(A) should be provided at just, reasonable, and guidelines to ensure that services in- fers an amendment numbered 1300. and affordable rates to all Americans, in- cluded in the definition of universal service S 8368 CONGRESSIONAL RECORD — SENATE June 14, 1995 bear no more than a reasonable share of the to have an amount equal to the amount of Will the Senator indicate to which joint and common costs of facilities used to the discount treated as a service obligation amendment he intended to offer a sec- provide those services. as part of its obligation to participate in the ond-degree amendment? ‘‘(i) CONGRESSIONAL NOTIFICATION RE- mechanisms to preserve and advance univer- Mr. STEVENS. I intend to call up an QUIRED.— sal service under section 253(c). amendment to amendment numbered ‘‘(1) IN GENERAL.—The Commission may ‘‘(b) UNIVERSAL SERVICE MECHANISMS.—The not take action to require participation by Commission shall include consideration of 1300, and that has been filed. telecommunications carriers or other provid- the universal service provided to public in- The PRESIDING OFFICER. Thank ers of telecommunications under subsection stitutional telecommunications users in any you. Under the unanimous consent (c), or to modify its rules to increase support universal service mechanism it may estab- order, amendments are to be called up for the preservation and advancement of uni- lish under section 253. prior to 7:30. It may be that there will versal service, until— Mr. STEVENS. Mr. President, par- be Members of the Senate who will ‘‘(A) the Commission submits to the Com- liamentary inquiry: My amendments come forward. mittee on Commerce, Science, and Transpor- 1301, 1302, and 1304 are covered by the Mr. INOUYE. Mr. President, I thank tation of the Senate and the Committee on the Chair. Commerce of the House of Representatives a unanimous consent agreement. Do I report on the participation required, or the have to call them up at this time? AMENDMENT NO. 1280 increase of support proposed, as appropriate; The PRESIDING OFFICER. The Sen- (Purpose: To encourage steps to prevent the and ator needs to call them up at this time, access by children to obscene and indecent ‘‘(B) a period of 120 days has elapsed since and they need to be reported. material through the Internet and other the date the report required under paragraph Mr. STEVENS. I ask that they be re- electronic information networks) (1) was submitted. ported. I ask unanimous consent that Mr. INOUYE. On behalf of the Sen- ‘‘(2) NOT APPLICABLE TO REDUCTIONS.—This we may proceed in this manner. ator from Virginia, [Mr. ROBB], I call subsection shall not apply to any action up Amendment No. 1280 and ask for its AMENDMENTS NOS. 1301, 1302, AND 1304 taken to reduce costs to carriers or consum- immediate consideration. The PRESIDING OFFICER. The ers. The PRESIDING OFFICER. Without ‘‘(j) EFFECT ON COMMISSION’S AUTHORITY.— clerk will report. objection, the clerk will report. Nothing in this section shall be construed to The legislative clerk read as follows: expand or limit the authority of the Com- The assistant legislative clerk read The Senator from Alaska [Mr. STEVENS] as follows. mission to preserve and advance universal proposes amendments numbered 1301, 1302, The Senator from Hawaii [Mr. INOUYE], for service under this Act. Further, nothing in and 1304. this section shall be construed to require or Mr. ROBB, proposes an amendment numbered prohibit the adoption of any specific type of Mr. STEVENS. Mr. President, I ask 1280. mechanism for the preservation and ad- unanimous consent that reading of the Mr. INOUYE. Mr. President, I ask vancement of universal service. amendments be dispensed with. unanimous consent that reading of the ‘‘(k) EFFECTIVE DATE.—This section takes The PRESIDING OFFICER. Without amendment be dispensed with. effect on the date of enactment of the Tele- objection, it is so ordered. The PRESIDING OFFICER. Without communications Act of 1995, except for sub- The amendments are as follows: sections (c), (d), (e), (f), and (i) which take ef- objection, it is so ordered. AMENDMENT NO. 1301 fect one year after the date of enactment of The amendment is as follows: that Act.’’. (Purpose: To modify the definition of LATA On page 146, below line 14, add the follow- On page 43, beginning with ‘‘receive’’ on as it applies to commercial mobile services) ing: line 25, through ‘‘253.’’ on page 44, line 1, is At the appropriate place insert the follow- SEC. 409. RESTRICTIONS ON ACCESS BY CHIL- deemed to read ‘‘receive universal service ing: DREN TO OBSCENE AND INDECENT support under section 253.’’. In section 3(tt) of the Communications Act MATERIAL ON ELECTRONIC INFOR- of 1934, as added by section 8(b) of the bill on MATION NETWORKS OPEN TO THE In section 264 of the Communications Act PUBLIC. of 1934, as added by section 310 of the bill be- page 14, strike ‘‘services.’’ and insert the fol- . . . In order— ginning on page 132, strike subsections (a) lowing: ‘‘Provided, however, that in the case (1) to encourage the voluntary use of tags and (b) and insert the following: of a Bill operating company affiliate, such in the names, addresses, or text of electronic ‘‘(a) IN GENERAL.— geographic area shall be no smaller than the files containing obscene, indecent, or mature ‘‘(1) HEALTH CARE PROVIDERS FOR RURAL LATA area for such affiliate on the date of text or graphics that are made available to AREAS.—A telecommunications carrier shall, enactment of the Telecommunications Act the public through public information net- upon receiving a bona fide request, provide of 1995.’’ works in order to ensure the ready identi- telecommunications services which are nec- fication of files containing such text or essary for the provision of health services, AMENDMENT NO. 1302 graphics; including instruction relating to such serv- (Purpose: To provide interconnection rules (2) to encourage developers of computer ices, at rates that are reasonably comparable for Commercial Mobile Service Providers) software that provide access to or interface to rates charged for similar services in urban On page 28 before line 6 inset the following: with a public information network to de- areas to any public or nonprofit health care ‘‘(m) COMMERCIAL MOBILE SERVICE PROVID- velop software that permits users of such provider that serves persons who reside in ERS.—The requirements of this section shall software to block access to or interface with rural areas. A telecommunications carrier not apply to commercial mobile services pro- text or graphics identified by such tags; and providing service pursuant to this paragraph vided by a wireline local exchange carrier (3) to encourage the telecommunications shall be entitled to have an amount equal to unless the Commission determines under industry and the providers and users of pub- the difference, if any, between the price for subsection (a)(3) that such carrier has mar- lic information networks to take practical services provided to health care providers for ket power in the provision of commercial actions (including the establishment of a rural areas and the price for similar services mobile service.’’ board consisting of appropriate members of provided to other customers in comparable such industry, providers, and users) to de- urban areas treated as a service obligation as AMENDMENT NO. 1304 velop a highly effective means of preventing a part of its obligation to participate in the (Purpose: To ensure that resale of local serv- the access of children through public infor- mechanisms to preserve and advance univer- ices and functions is offered at an appro- mation networks to electronic files that con- sal service under section 253(c). priate price for providing such services) tain such text or graphics, ‘‘(2) EDUCATIONAL PROVIDERS AND LIBRAR- The Secretary of Commerce shall take ap- In subsection (d) of the section captioned IES.—All telecommunications carriers serv- propriate steps to make information on the ‘‘SPECTRUM AUCTIONS’’ added to the bill ing a geographic area shall, upon a bona fide tags established and utilized in voluntary by amendment, strike ‘‘three frequency request, provide to elementary schools, sec- compliance with subsection (a) available to bands (225–400 megahertz, 3625–3650 mega- ondary schools, and libraries universal serv- the public through public information net- hertz,’’ and insert ‘‘two frequency bands ices (as defined in section 253) that permit works. (3625–3650 megahertz’’. such schools and libraries to provide or re- (b) REPORT.—Not later than 1 year after ceive telecommunications services for edu- Mr. STEVENS. All of my amend- the date of the enactment of this Act, the cational purposes at rates less than the ments will now be called up later? Comptroller General shall submit the Con- amounts charged for similar services to The PRESIDING OFFICER. The four gress a report on the tags established and other parties. The discount shall be an amendments are now pending. utilized in voluntary compliance with this amount that the Commission and the States Mr. STEVENS. I ask unanimous con- section. The report shall— determine is appropriate and necessary to (1) describe the tags so established and uti- ensure affordable access to and use of such sent that they be set aside. lized; telecommunications by such entities. A tele- The PRESIDING OFFICER. Without (2) assess the effectiveness of such tags in communications carrier providing service objection, it is so ordered. The amend- preventing the access of children to elec- pursuant to this paragraph shall be entitled ments are set aside. tronic files that contain obscene, indecent, June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8369 or mature text or graphics through public in- to grow and eventually build their own amendment we offer today will not af- formation networks; and state-of-the-art national networks. fect those subsidies, which will be (3) provide recommendations for additional Those networks now allow nationwide, counted towards the recovery of costs means of preventing such access. long distance competition with AT&T. in setting resale prices. (d) DEFINITIONS.—In this section: (1) The term ‘‘public information network’’ What’s more, excess capacity in the We believe the amendment properly means the Internet, electronic bulletin three new national networks has given balances the interests here in permit- boards, and other electronic information net- birth to an entire industry of more ting the Bell companies to recover works that are open to the public. than 500 resellers around the country. their costs and indeed to make a rea- (2) The term ‘‘tag’’ means a part or seg- The benefits of this new competition sonable profit while assuring that a ment of the name, address, or text of an elec- among carriers and resellers have been viable resale business can jump-start tronic file. enormous—rapid technological innova- local competition. We simply cannot Mr. INOUYE. Mr. President, I ask tions, greater consumer choice, and expect competitors to build out their unanimous consent that this amend- lower consumer prices. own networks before they can provide ment be in order to be taken up tomor- If our Nation’s experience with com- full, unrestricted competition to cur- row. petitive long distance service is any rent local exchange service providers. The PRESIDING OFFICER. Without model—and I am convinced it is our Nor can we expect them to enter the objection, it will be set aside. best model—resale will be the essential market if the wholesale rates offer Mr. INOUYE. I thank the Chair. first step in developing competitive them no margins for profit, such as in Mr. STEVENS. Mr. President, will local exchange markets. Given the the Rochester experiment. The cre- the Senator yield? enormous cost of building sophisti- ation of full-scale, vigorous competi- The PRESIDING OFFICER. The Sen- cated communications networks tion in the market for local exchange ator from Alaska. throughout the country, local ex- services is critical if our Nation’s tele- AMENDMENT NO. 1303 change competition will never have a communications industry is to provide (Purpose: To ensure that resale of chance to develop if competitors have a wide array of the best technology at local services and functions is offered to start by building networks that are low costs to consumers. Resale is a at an appropriate price for providing comparable to the vast and well-estab- proven policy for achieving that com- such services) lished Bell networks. For this reason, petition. I urge my colleagues to adopt Mr. STEVENS. Mr. President, in affordable resale opportunities are the this amendment. order to comply with the previous key to stimulating local competition. Mr. STEVENS addressed the Chair. order, I would call up my amendment But these resale opportunities must be The PRESIDING OFFICER. The Sen- 1303 and ask unanimous consent to call based on economically reasonable ator from Alaska. Mr. STEVENS. What is the pending it up at this time to qualify. prices that reflect the actual cost of providing those services and functions business? The PRESIDING OFFICER. The The PRESIDING OFFICER. At this to another carrier and not monopoly clerk will report. point, all the amendments offered have mark-up prices. The amendment we are The assistant legislative clerk read been set aside. as follows: offering today will ensure that resale AMENDMENTS NOS. 1301, 1302, 1304 opportunities in the local exchange The Senator from Alaska [Mr. STEVENS], Mr. STEVENS. Mr. President, is it in will in fact stimulate the development for himself and Mr. INOUYE, proposes an order to call up my three amendments, amendment numbered 1303. local competition. Make no mistake—we want to be 1301, 1302 and 1304? Mr. STEVENS. Mr. President, I ask The PRESIDING OFFICER. It is in sure that the Bell companies are com- unanimous consent that reading of the order. amendment be dispensed with. pensated for the actual cost of provid- Mr. STEVENS. I yield myself 5 min- The PRESIDING OFFICER. Without ing these facilities, services, and func- utes on the amendments, and I will objection, it is so ordered. tions to competing carriers. We are not make a simple statement on each one. The amendment is as follows: asking them to subsidize their com- Amendment No. 1301 is a technical Page 86, line 25, after ‘‘basis’’ insert a petitors. But neither should these com- clarification of the definition of comma and ‘‘reflecting the actual cost of petitors be asked to subsidize the Bell LATA—Local Access and Transport providing those services or functions to an- companies. Therefore, resale prices Area—in the bill. This amendment other carrier,’’ must reflect the very substantial sav- clarifies that a Bell company cellular Mr. STEVENS. Mr. President, I ings that will be realized by the Bell operation will continue to have the might state that it is not my present companies by selling their facilities on same size LATA as they do today. intention to call this up. We are work- a wholesale, rather than a resale, basis. Mr. President, amendment No. 1302 is ing on this, and we may not call this As a wholesaler, a Bell company is re- a technical clarification of the inter- up. I just want to qualify it for the pur- lieved of the obligation to provide a connection requirements of section 251, poses of the RECORD. wide variety of services to the retail to ensure that the commercial mobile The PRESIDING OFFICER. Without customer, such as billing and mainte- service portion of a local exchange car- objection, the amendment will be set nance, that add to the cost of service. rier’s network is not subject to the re- aside. Similarly, the costs associated with quirements of section 251, unless that Mr. INOUYE. Mr. President, the marketing, advertising, and collecting carrier has market power in the provi- amendment Senator STEVENS and I are on receivables are eliminated when the sion of commercial mobile services. introducing provides an essential Bell company acts as a wholesaler. By Mr. President, amendment No. 1304 is mechanism for achieving a central goal ensuring that these cost-savings are a technical amendment to my earlier of this bill—to open the local exchange accurately reflected in the resale amendment on spectrum auctions that to competition for the first time. To- prices charged to competing local car- the Senate adopted this past week. The day’s highly competitive long distance riers, we can guarantee a viable resale amendment deletes the requirement market has its roots in a 1976 order by industry that will serve as an early that the Secretary of Commerce sub- the Federal Communications Commis- stimulus for local competition. mit a timetable for the reallocation of sion that ushered in the unrestricted The amendment also leaves undis- the 225 to 400 megahertz band of spec- resale of AT&T’s telecommunications turbed pricing structuring that benefit trum. services by its competitors. The FCC residential consumers of local ex- I have had several discussions on this order allowed competitors to purchase change service. As the Bell companies matter with the Department of Defense AT&T’s excess long distance capacity have told us, to keep residential prices and the National Telecommunications in bulk, at non-discriminatory and affordable, they sometimes sell these and Information Agency. Both have often deeply discounted rates, and then services below their actual costs and recommended that this frequency con- resell those services to their own cus- recover the shortfall, where it occurs, tinue to be reserved for military and tomers at competitive retail rates. by pricing other services above their public safety uses. Three companies—Sprint, MCI, and costs, thereby indirectly subsidizing I might point out that my amend- LDDS—exploited this resale capability their residential retail rates. The ment did not mandate the transfer of S 8370 CONGRESSIONAL RECORD — SENATE June 14, 1995 that spectrum. It merely made the industry requests that the existing system the manner determined by the Commission spectrum subject to the requirement be modified to make support for universal and the States to be reasonably necessary to that the Secretary provide a schedule service explicit and to require that all tele- preserve and advance universal service. Any for transfer. The Secretary could have communications carriers participate in the other provider of telecommunications may modified system on a competitively neutral be required to participate in the preservation indicated no intent to transfer. But basis; and and advancement of universal service, if the since there was a problem, I am going (4) modification of the existing system is public interest so requires. to ask the adoption of this amendment. necessary to promote competition in the pro- ‘‘(d) STATE AUTHORITY.—A State may I am informed that amendment No. vision of telecommunications services and to adopt regulations to carry out its respon- 1304 has no budgetary impact on the allow competition and new technologies to sibilities under this section, or to provide for statement I have previously made to reduce the need for universal service support additional definitions, mechanisms, and the Senate concerning the estimate of mechanisms. standards to preserve and advance universal revenues pursuant to the CBO estimate On page 38, beginning on line 15, strike all service within that State, to the extent that through page 43, line 2, and insert the follow- such regulations do not conflict with the process for my spectrum auction ing: Commission’s rules to implement this sec- amendment that was adopted last ‘‘SEC. 253. UNIVERSAL SERVICE. tion. A State may only enforce additional week. ‘‘(a) UNIVERSAL SERVICE PRINCIPLES.—The definitions or standards to the extent that it If there are any questions from any Joint Board and the Commission shall base adopts additional specific and predictable Member about these three technical policies for the preservation and advance- mechanisms to support such definitions or amendments, I would be pleased to re- ment of universal service on the following standards. spond at this time. principles: ‘‘(e) ELIGIBILITY FOR UNIVERSAL SERVICE I reserve the remainder of my time. ‘‘(1) Quality services are to be provided at SUPPORT.—To the extent necessary to pro- just, reasonable, and affordable rates. vide for specific and predictable mechanisms Mr. HOLLINGS. The amendments to achieve the purposes of this section, the have been cleared on this side. ‘‘(2) Access to advanced telecommuni- cations and information services should be Commission shall modify its existing rules Mr. STEVENS. Mr. President, I am for the preservation and advancement of uni- pleased to have the statement of the provided in all regions of the Nation. ‘‘(3) Consumers in rural and high cost areas versal service. Only essential telecommuni- Senator from South Carolina that should have access to telecommunications cations carriers designated under section these three amendments are cleared on and information services, including 214(d) shall be eligible to receive support for his side. I ask my friend, the chairman interexchange services, that are reasonably the provision of universal service. Such sup- of the Commerce Committee, if he is comparable to those services provided in port, if any, shall accurately reflect what is urban areas. necessary to preserve and advance universal prepared to similarly support these service in accordance with this section and amendments? ‘‘(4) Consumers in rural and high cost areas should have access to telecommunications the other requirements of this Act. Mr. PRESSLER. Yes, we are prepared ‘‘(f) UNIVERSAL SERVICE SUPPORT.—The and information services at rates that are to do that. We thank the Senator for Commission and the States shall have as reasonably comparable to rates charged for their goal the need to make any support for taking care of them in such a good similar services in urban areas. universal service explicit, and to target that manner. ‘‘(5) Consumers in rural and high cost areas support to those essential telecommuni- Mr. STEVENS. I yield the remainder should have access to the benefits of ad- cations carriers that serve areas for which of my time. vanced telecommunications and information such support is necessary. The specific and Who controls the other time? services for health care, education, economic predictable mechanisms adopted by the Com- development, and other public purposes. The PRESIDING OFFICER. The Sen- mission and the States shall ensure that es- ‘‘(6) There should be a coordinated Federal- ator from South Dakota. sential telecommunications carriers are able State universal service system to preserve Mr. PRESSLER. I propose that, if we to provide universal service at just, reason- and advance universal service using specific can, we adopt the amendments. able, and affordable rates. A carrier that re- and predictable Federal and State mecha- Mr. STEVENS. I ask unanimous con- ceives universal service support shall use nisms administered by an independent, non- that support only for the provision, mainte- sent that the amendments be consid- governmental entity or entities. nance, and upgrading of facilities and serv- ered, en bloc, and adopted, en bloc. ‘‘(7) Elementary and secondary schools and ices for which the support is intended. The PRESIDING OFFICER. Without classrooms should have access to advanced objection, the amendments are agreed ‘‘(g) INTEREXCHANGE SERVICES.—The rates telecommunications services. charged by any provider of interexchange to, en bloc. ‘‘(b) DEFINITION.— telecommunications service to customers in So the amendments (Nos. 1301, 1302, ‘‘(1) IN GENERAL.—Universal service is an rural and high cost areas shall be no higher and 1304) were agreed to, en bloc. evolving level of intrastate and interstate than those charged by such provider to its Mr. PRESSLER. Mr. President, I telecommunications services that the Com- customers in urban areas. mission, based on recommendations from the move to reconsider the vote. ‘‘(h) SUBSIDY OF COMPETITIVE SERVICES public, Congress, and the Federal-State Mr. STEVENS. I move to lay that PROHIBITED.—A telecommunications carrier Joint Board periodically convened under sec- may not use services that are not competi- motion on the table. tion 103 of the Telecommunications Act of The motion to lay on the table was tive to subsidize competitive services. The 1995, and taking into account advances in Commission, with respect to interstate serv- agreed to. telecommunications and information tech- ices, and the States, with respect to intra- AMENDMENT NO. 1300, AS MODIFIED nologies and services, determines— state services, shall establish any necessary Mr. STEVENS. I send a modification ‘‘(A) should be provided at just, reasonable, cost allocation rules, accounting safeguards, to amendment No. 1300 to the desk. and affordable rates to all Americans, in- and guidelines to ensure that services in- The PRESIDING OFFICER. The Sen- cluding those in rural and high cost areas cluded in the definition of universal service and those with disabilities; ator has that right. bear no more than a reasonable share of the ‘‘(B) are essential in order for Americans joint and common costs of facilities used to The amendment is so modified. to participate effectively in the economic, The amendment (No. 1300), as modi- provide those services. academic, medical, and democratic processes ‘‘(i) CONGRESSIONAL NOTIFICATION RE- fied, is as follows: of the Nation; and QUIRED.— On page 36, between lines 23 and 24, insert ‘‘(C) are, through the operation of market ‘‘(1) IN GENERAL.—The Commission may the following new subsection and renumber choices, subscribed to by a substantial ma- not take action to require participation by the remaining subsections accordingly: jority of residential customers. telecommunications carriers or other provid- (a) FINDINGS.—The Congress finds that— ‘‘(2) DIFFERENT DEFINITION FOR CERTAIN ers of telecommunications under subsection (1) the existing system of universal service PURPOSES.—The Commission may establish a (c), or to modify its rules to increase support has evolved since 1930 through an ongoing different definition of universal service for for the preservation and advancement of uni- dialogue between industry, various Federal- schools, libraries, and health care providers versal service, until— State Joint Boards, the Commission, and the for the purposes of section 264. ‘‘(A) the Commission submits to the Com- courts; ‘‘(c) ALL TELECOMMUNICATIONS CARRIERS mittee on Commerce, Science, and Transpor- (2) this system has been predicated on MUST PARTICIPATE.—Every telecommuni- tation of the Senate and the Committee on rates established by the Commission and the cations carrier engaged in intrastate, inter- Commerce of the House of Representatives a States that require implicit cost shifting by state, or foreign communication shall par- report on the participation required, or the monopoly providers of telephone exchange ticipate, on an equitable and nondiscrim- increase in support proposed, as appropriate; service through both local rates and access inatory basis, in the specific and predictable and charges to interexchange carriers; mechanisms established by the Commission ‘‘(B) a period of 120 days has elapsed since (3) the advent of competition for the provi- and the States to preserve and advance uni- the date the report required under paragraph sion of telephone exchange service has led to versal service. Such participation shall be in (1) was submitted. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8371 ‘‘(2) NOT APPLICABLE TO * * * .— * * * trying to do is see that amendment in doing our best to meet the concerns ‘‘(j) EFFECT ON COMMISSION’S AUTHORITY.— the second degree. We do not have that. that have been expressed by the House Nothing in this section shall be construed to Mr. STEVENS. I suggest the absence Ways and Means Committee. expand or limit the authority of the Com- of a quorum. There is no intention here to make mission to preserve and advance universal service under this Act. Further, nothing in The PRESIDING OFFICER. The this bill a revenue-raising measure, and this section shall be construed to require or clerk will call the roll. it is not one. It merely intends to mod- prohibit the adoption of any specific type of The assistant legislative clerk pro- ify the existing universal service con- mechanism for the preservation and ad- ceeded to call the roll. cept in telecommunications. As I vancement of universal Mr. PRESSLER. Mr. President, I ask pointed out before, the CBO has in- ‘‘(k) EFFECTIVE DATE.—This section takes unanimous consent that the order for formed Members that the universal effect on the date of enactment of the Tele- the quorum call be rescinded. service concept in this bill will cost communications Act of 1995, except for sub- The PRESIDING OFFICER. Without less than the current system. There- sections (c), (d), (e), (f), and (i) which take ef- objection, it is so ordered. fect one year after the date of enactment of fore, it is not a revenue-raising meas- that Act.’’. AMENDMENT NO. 1280 ure. On page 43, beginning with ‘‘receive’’ on Mr. PRESSLER. Mr. President, I ask I do ask now that this amendment line 25, through ‘‘253.’’ on page 44, line 1, is unanimous consent that the Senate 1300 be adopted. I hope that my two deemed to read ‘‘receive universal service now turn to the consideration of friends, the managers of the bill, will support under section 253.’’. amendment 1280, that it be considered agree with me that the amendment— In section 264 of the Communications Act as read, adopted and the motion to re- which, incidentally, I assume will be of 1934, as added by section 310 of the bill be- ginning on page 132, strike subsections (a) consider be laid upon the table, all printed in the RECORD before my re- and (b) and insert the following: without intervening action or debate. marks. Is that the case? ‘‘(a) IN GENERAL.— The PRESIDING OFFICER. Without The PRESIDING OFFICER. The Sen- ‘‘(1) HEALTH CARE PROVIDERS FOR RURAL objection, it is so ordered. ator is correct. AREAS.—A telecommunications carrier shall, So the amendment (No. 1280) was Mr. STEVENS. I point out to the upon receiving a bona fide request, provide agreed to. Senate that the amendment makes spe- telecommunications services which are nec- Mr. PRESSLER. I suggest the ab- cific findings of the Congress with re- essary for the provision of health care serv- sence of a quorum. gard to the universal service system ices, including instruction relating to such The PRESIDING OFFICER. The services, at rates that are reasonably com- that exists and has been developed parable to rates charged for similar services clerk will call the roll. through an ongoing dialog between in- in urban areas to any public or nonprofit The assistant legislative clerk pro- dustry, the various Federal-State joint health care provider that serves persons who ceeded to call the roll. boards, the FCC, and the courts. reside in rural areas. A telecommunications Mr. STEVENS. Mr. President, I ask It is an ongoing system that has been carrier providing service pursuant to this unanimous consent that the order for predicated on rights established by the paragraph shall be entitled to have an the quorum call be rescinded. dialog. I believe that the findings we amount equal of the difference, if any, be- The PRESIDING OFFICER. Without have now put in the bill clarify our in- tween the price for services provided to objection, it is so ordered. health care providers for rural areas and the tent with regard to the concept of con- AMENDMENT NO. 1300 price for similar services provided to other tinuing universal service through the customers in comparable urban areas treated Mr. STEVENS. Mr. President, I use of essential telecommunications as a service obligation as a part of its obliga- renew my request that amendment 1300 carriers. tion to participate in the mechanisms to pre- be amended by the second-degree It is a modification of the existing serve and advance universal service under amendment that is at the desk. concept, as I said, and it will save section 253(e). What the second-degree amendment money for the system. I believe it will ‘‘(2) EDUCATIONAL PROVIDERS AND LIBRAR- does is delete a provision that I added provide universal service in the future IES.—All telecommunications carriers serv- in the modification to clarify a concern ing a geographic area shall, upon a bona fide that will meet the expanding needs of request, provide to elementary schools, sec- that I thought had been expressed by the country, particularly the rural ondary schools, and libraries universal serv- the House. It was in order, and I ask to areas. ices (as defined in section 253) that permit delete that one sentence in accordance Are my friends ready to accept the such schools and libraries to provide or re- with that amendment. amendment numbered 1300, may I in- ceive telecommunications services for edu- The PRESIDING OFFICER. Without quire of the distinguished Senator from cational purposes at rates less than the objection, the amendment is so modi- South Carolina? amounts charged for similar services to fied. Mr. HOLLINGS. Mr. President, No. other parties. The discount shall be an Mr. STEVENS. Mr. President, this 1300 has been cleared on this side. amount that the Commission and the States amendment modifies the universal determine is appropriate and necessary to Mr. STEVENS. May I make a similar ensure affordable access to and use of such service provisions of the bill to address inquiry of the Senator from South Da- telecommunications by such entities. A tele- concerns that were raised by the House kota? Is that amendment acceptable to communications carrier providing service Ways and Means Committee. the chairman of the committee? pursuant to this paragraph shall be entitled As we know, bills that concern the Mr. PRESSLER. That amendment is to have an amount equal to the amount of raising of revenues must originate in acceptable to the ranking member and the discount treated as a service obligation the House. We did not intend to raise I. I commend the Senator from Alaska as part of its obligation to participation in revenues, and this bill does not do so, for his efforts. the mechanisms to preserve and advance uni- either before or after this amendment. versal service under section 253(c). Mr. STEVENS. Mr. President, I ask The amendment has been cleared by ‘‘(b) UNIVERSAL SERVICE MECHANISMS.—The for the adoption of the amendment. Commission shall include consideration of both sides of the Senate, and the sec- The PRESIDING OFFICER. The the universal service provided to public in- ond-degree amendment has now made question is on agreeing to the amend- stitutional telecommunications users in any this amendment consistent with the ment. universal service mechanism it may estab- position, as we understand it, that has The amendment (No. 1300), as modi- lish under section 253. been brought by the House Members fied, was agreed to. I have a second-degree amendment who raised concerns about the original Mr. STEVENS. I move to reconsider which I filed to this amendment num- language in the bill concerning univer- the vote. bered 1300. sal service. Mr. PRESSLER. I move to lay that I send that amendment to the desk As amended, these universal service motion on the table. and ask that my amendment numbered provisions more clearly address the The motion to lay on the table was 1300, be amended by that amendment in goal of the bill, which is to target uni- agreed to. the second degree. versal service support where it is need- Mr. STEVENS. I thank both the The PRESIDING OFFICER. Is there ed. chairman and ranking member. objection to the modification? I will submit a statement later to- I am pleased to see we were able to Mr. HOLLINGS. Reserving the right morrow, discussing in detail the House work this out. I hope it is worked out to object, Mr. President, what we are concerns. Again, I want to state we are now between the Senate and the House, S 8372 CONGRESSIONAL RECORD — SENATE June 14, 1995 particularly with regard to concerns If you look at the cash flows on the The PRESIDING OFFICER (Mr. raised by the House Ways and Means reports of the major companies, com- INHOFE). The clerk will call the roll. Committee members. panies like TCI—their cash flow, $60 The assistant legislative clerk pro- Mr. BURNS. While the Senator from billion; Time WARNER Cable, $46 bil- ceeded to call the roll. Alaska is on the floor, I want to ex- lion; Comcast, $30 billion; and Cox at Mr. PRESSLER. Mr. President, I ask press my appreciation for his work on $27.2 billion—those are flat from 1993 to unanimous consent that the order for this, as a supporter of universal serv- 1994 and 1995. the quorum call be rescinded. ice, which is the core of our tele- Stock values have dropped about 10.1 The PRESIDING OFFICER. Without communications industry, and he has percent between September 1993 and objection, it is so ordered. worked this out to the good, I think, of April 1995, while the S&P and NASDAQ Mr. PRESSLER. Mr. President, I the industry. He has been a tireless indexes have risen 12.2 percent and 14 want to identify myself with the re- worker in this. I appreciate his efforts, percent respectively. marks of the Senator from Montana. I along with many who serve with him According to A.C. Nielsen, subscriber think Senator BURNS is very accurate on the committee. We appreciate that growth rates have declined from 3.14 on this cable thing. As reported by the Commerce Com- very much. percent in 1993 to 2.85 percent in 1994. mittee on March 30, this bill would Mr. STEVENS. Mr. President, if the It is very dangerous, when we start maintain regulation of basic cable Senator will yield, I think due credit down this road of reregulating. Right rates until there is effective competi- has to be given to the staff of the com- now competition in the entertainment tion; deregulate upper tiers of cable mittee on both sides, of the majority business and in the television business programming services only if they do and minority, and my able assistant, has never been better. And I ask my not ‘‘substantially exceed’’ the ‘‘na- Earl Comstock, who has worked exten- friend from Connecticut, why would tional average’’ for comparable pro- sively and tirelessly on the subject. To anybody, even a telco, want to go into gramming service and redefine the ef- us in rural America this is the core of the cable business with a regulated en- fective competition standard to include this bill. vironment where they could not re- a telephone company offering video Mr. BURNS. Mr. President, I would cover their costs of investment? This is services. just want to make a few remarks with anticompetitive legislation, if I have ever seen it. In other words, it is, I On June 9, the Senate adopted, 77 to regard to the Lieberman amendment 8, a Dole-Daschle leadership amend- which the Senator spoke on just a lit- would imagine, to those who are regu- lated, those who are already in the ment, of which I was also a cosponsor, tle while ago. which met the concerns of those who I want to set the record straight, be- business—they would stay there. They are warm and comfortable in that co- believe that, despite the safeguards al- cause with this amendment we are ready contained in S. 652, it might lead going down the old road of reregula- coon. But whoever wants to go into the business—the investment and ability to unreasonable rate increases by large tion. In fact, more regulation than was cable operators. The Dole-Daschle placed on the cable industry a couple of to recover under a regulatory environ- ment is very, very difficult. amendment also deregulated small op- years ago. erators, a feature of the pending We saw the figures of the stock and So, if we want to promote competi- tion, and that is the very heart and Lieberman amendment, which proposes the worth of these companies, and even soul of this legislation, you create to narrow the definition of effective though I want to pass along these fig- competition, you also create new tech- competition and tie ‘‘national average’’ ures, make no mistake, regulation is nologies and new tools and force those to systems that already face effective not too much of a friend to those entre- technologies into the areas that need competition. As such, the Lieberman preneurial people who have built prob- them so; and that technology gives amendment is excessive and unwar- ably one of the greatest cable systems them the tools for distance learning, ranted. in the world. telemedicine, and a host of services As modified by our amendment, S. What we have done is regulated an that we just would not see in States as 652 will now, first, establish a fixed industry, basically, that is not a neces- remote as my home State of Montana. date, June 1, 1995, for measuring the sity in the home. In other words, the So, the argument just does not hold ‘‘national average’’ price for cable homeowner, or whomever, has the free- water. Additional regulation or addi- services and only allow adjustments dom of not taking the service. There is tional rules in order to lift regulatory every 2 years. This provision elimi- still over-the-air free broadcast tele- control is counterproductive, and that nates the possibility that large cable vision that can be received almost ev- is what this amendment would be. operators could collude to artificially erywhere in the United States. There I am sure we will have a lot of time inflate rates immediately following en- may be some specific spots that do not tomorrow to make our statements on actment of S. 652. The bill as amended, receive free over-the-air television. this. It all depends on what the agree- establishes a ‘‘national average’’ based Also, in my State, looking at the ment is. But this is a damaging amend- on cable rates in effect prior to passage rates where I can remember when we ment. It slows the growth in one of the of S. 652, when rate regulation was in only got the two local stations, and I most dynamic industries, the industry full force, and excludes rates charged think three stations from Salt Lake that has the potential for the most by small cable operators in determin- City, and maybe a public television growth and the potential to really push ing the ‘‘national average’’ rate for station when cable first came to Bil- new services out into America. Do you cable services. lings, MT. That service cost about know what? They always talk about This provision addresses the concerns $5.50, I think, to $6, something like the glass highway, the information that deregulation of small system that. Today we receive between 40 or 45 highway. If one wants to think a little rates, which was included as part of the channels for $21. When you figure the bit, maybe the information highway is Dole-Daschle amendment to S. 652, cost per channel, cable rates have not already there and it could have been would inflate the ‘‘national average’’ gone up any. built in an era where there was no reg- against which the rates of large cable And that was done at a time when ulation and it could be called cable. companies would be measured. It speci- there was no regulation in the cable in- Think about that. Whenever we pro- fies that ‘‘national average’’ rates are dustry. The explanation for the explo- vide a competitive environment for to be calculated on a per-channel basis. sion in the jobs that were provided, the both the telcos and personal commu- This provision ensures that ‘‘national opportunity in programming, new nications, and also in telecommuni- average’’ is standardized, and takes ideas, new channels, exciting Discov- cations, and then in cable communica- into account variations in the number ery—all of those channels came to be tions, we set the environment for a lot of channels offered by different compa- under an era when there was no regula- of competition, I imagine the big win- nies as part of their expanded program tion. ner will be the consumers of this coun- packages. It specifies that a market is Since we passed the 1994 reregulation try and the services they receive and effectively competitive only when an of cable, cable revenues have remained the price those services will be. alternative multichannel video pro- flat. In other words, around $23 billion Mr. President, I yield the floor and I vider offers services ‘‘comparable’’ to in 1993; $23 billion in 1994. suggest the absence of a quorum. cable television service. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8373 This provision enables cable opera- Cable stock values dropped 10.1 per- Cable systems pass over 96 percent of tors not to be prematurely deregulated cent between December 1993 and April Americans homes with coaxial cables under the effective competition provi- 1995 while the S&P and NASDAQ in- that carry up to 900 times as much in- sion if, for example, only a single chan- dexes rose by 12.2 percent and 14 per- formation as the local phone compa- nel of video programming is being de- cent, respectively. That is about a 20- ny’s twisted pair. livered by telco, video, and dial tone percent spread. Cable companies are leaders in the providers in an operator’s market. During the last year 16 major cable use of fiber optics and digital compres- What the bill does: The basic tier, companies, representing 20 percent of sion technology. broadcast and PEG, remains regulated the industry, serving 12 million sub- Cable’s high-capacity systems will until, one, telco offers video program- scribers have sold or announced their ultimately provide virtually every type ming, or, two, direct broadcast sat- intentions to exit the industry. of communication service conceivable ellite, or any other competitor reaches Capital raised for public debt and eq- and allow consumers to choose between 15 percent of the market penetration. uity offerings declined 81 percent in competing providers of advanced voice, I think that is very important be- 1994, $8.6 billion in 1993 to $1.6 billion in video, and data services. cause the basic tier remains regulated 1994. Mr. President, I feel very strongly until the telco in the area has competi- According to A.C. Nielsen, subscriber that we have reached a proper balance tion or until there is at least 15 percent growth rates declined from 3.14 percent regarding cable in this bill, and to of a direct broadcast satellite. in 1993 to 2.85 percent in 1994. adopt the Lieberman amendment The upper tiers of cable rates are Existing and potential competition: would undo that package that has been subject to bad actor review when the Direct broadcast satellite is the fastest worked out. price of program packages signifi- growing consumer electronics product I also feel very strongly that the cantly exceeds the national average. I in history with 2,000 new subscribers a American public will benefit from what have been in some parts of the country day projected to grow to 2.2 million we are doing here. I mentioned earlier where you see a cable rate that is much subscribers by year’s end and over 5 that I have received 500 letters from higher, sort out of the blue, and I think million by 2000. the small business people at the White that under this legislation that could Due to program access, direct broad- House Conference on Small Business fall under the so-called bad actor provi- cast satellite offers every program who want to pass the Senate-passed sion of the legislation. service available on cable plus exclu- bill and also urge President Clinton to The point we are making is that, as sive direct broadcast satellite program- endorse the Senate-passed bill. we move toward deregulation of these ming, such as movies and sports; for I think that we all want that pro- cable rates, there are safeguards built example, 400 NBA games this season competitive deregulatory environment. into this bill. and 700 games next season. Everybody says that. But many of the I am very concerned that the Cable also faces competition from 4 folks out there are arguing to preserve Lieberman amendment would undo the million C-band dishes. regulation. I frequently see large com- carefully crafted compromise on cable Wireless cable has 600,000 subscribers, panies using Government regulation to deregulation that has been agreed to expected to grow 158 percent in 2 years block out competition. by Democrats and Republicans, and we to 1.5 million and to 3.4 million by 2000. I look upon this telecommunications have had several votes in committee Bell Atlantic, NYNEX, and PacTel area as a group of people in a room and on the floor already. We have the have recently invested in wireless with a huge buffet of food stacked on leadership packet. This would tend to cable. unravel all of that at this late moment. So the point is there are new services the table. But they are all worried that The fact of the matter is that rates being offered. There is new competition somebody else is going to get an extra continue to rise with regulation. Cable coming forward. carrot. I think we are going to find rates will continue to increase with Telcos have numerous video pro- there is plenty for all, and the consum- regulations. Indeed, they have been in- gramming trials all over the United ers will benefit with lower telephone creasing with regulations. The FCC States. Meanwhile the Clinton/Gore ad- prices, lower cable prices, more serv- rules allow rates to increase for infla- ministration continues to fight in ices, more services for senior citizens, tion, added program costs, new equip- court to keep the cable-telco ban firm- more services for farmers, and our ment charges, and other factors. ly in place. small cities will be able to flourish. Actual and potential competition Cable deregulation is a prerequisite And it is my strongest feeling that spurred by our bill will result in lower for competition in telecommuni- we should continue, as we have done all cable rates. cations. day, to defeat these amendments to- I have said that, if we can pass this A central goal of this bill is to create morrow. We had a very good day today bill, we will have much lower cable a competitive market for tele- and yesterday in terms of holding this rates than we would under a regulated communications services. committee bill together. system because we will have more pro- Cable television companies are the I see one of my colleagues is in the viders, we will have direct broadcast most likely competitors to local phone Chamber and wishes to speak. I am satellite, we will have the video dial, monopolies, but in order to develop ad- glad to have any speakers. We are try- and we will have the opportunity for vanced, competitive telecommuni- ing to move forward. I thank you very utilities to come into the television cations infrastructures, cable compa- much. market. nies must invest billions in new tech- I yield the floor. We are really talking about, with nologies. Mr. DASCHLE. Mr. President, this this type of regulation, the 1950’s and Federal regulation of television has debate on S. 652 has clearly dem- 1960’s and 1970’s when maybe you could restricted the cable industry’s access onstrated the potential of emerging conceivably say some of this was nec- to capital, has made investors con- telecommunications technologies. It is essary when you just had one or two cerned about future investments in the truly exciting to contemplate what providers. But in the 1990’s and on into capable industry, and reduced the abil- this legislation could mean for Amer- the year 2000, we will have a broad ity of cable companies to invest in ican society. range of competition. I hope that we technology and programming. A particularly intriguing new devel- can take advantage of that. It will re- Concerns about cable rate increases opment in the telecommunications sult in lower cable rates. should be mitigated by cable’s new field is the creation of personal com- Regulation harms the cable industry. competitive pressures from direct munications service [PCS]. These de- In 1994, for the first time ever, cable broadcast satellite services and from vices will revolutionize the way Ameri- revenues remained flat—$23.021 billion telco-delivered video programming. cans talk, work, and play. in 1993, and $23 billion again in 1994. Deregulation of cable television serv- While this new technology opens new Cash flows for major companies de- ices is a prerequisite to bringing com- vistas for personal communications clined. TCI, $60 billion; Time Warner petition to telecommunications and is services, its emergence also highlights Cable, $46 billion; Comcast, $30.1 bil- essential to making the competitive the potential downside of entering lion; Cox, $27.2 billion. model embodied in S. 652 viable. untested areas. Specifically, concerns S 8374 CONGRESSIONAL RECORD — SENATE June 14, 1995 have been raised about the potential tees to consider scheduling hearings on sumers’ interest for State regulators to side-effects of some new PCS tech- this issue. continue to have a roll in determining nology on other devices such as hear- AMENDMENTS NO. 1256 AND 1257 the price of noncompetitive services in ing aids. Mr. HOLLINGS. I would direct a their States, and in having the discre- Recently, the Government completed question to my colleague with regard tion to consider the earnings of the an auction that netted $7 billion for to the Stevens amendment on expanded local telephone company. Approxi- the right to provide advanced digital auction authority for the FCC, as mately 75 cents of every dollar consum- portable telephone service. It is my un- amended by the Pressler amendment. ers spend on their overall telephone derstanding that some of the compa- These amendments will auction spec- bills is for calls made within their nies that obtained these PCS licenses trum currently assigned to broadcast State. The goal of local telephone com- have considered utilizing a technology auxiliary licensees, and were adopted petition advanced in this legislation known as GSM—global system for mo- by voice vote Wednesday evening. This will not be achieved overnight. In the bile communications. I am informed bill now conforms with the Budget Act. interim, State regulators should have that people who wear hearing aids can- Specifically, I do not believe that it is the authority to consider a company’s not operate GSM PCS devices, and the intention of the sponsors to impede earnings before setting the price level some even report physical discomfort the ability of local broadcasters to con- of noncompetitive services. I urge my and pain if they are near other people tinue to deliver on-the-spot news and colleagues to join me in voting for this using GSM technology. information. amendment. It should not be our intent to cause Mr. STEVENS. That is correct. Sev- PREEMPTION OF STATE-ORDERED INTRALATA problems for the hearing impaired in eral concerns have been raised about DIALING PARITY promoting the personal communica- auction of certain spectrum which we tions services market. It is my view intend to address as this bill proceeds Mr. FEINGOLD. Mr. President, as an that the Federal Communications to conference with its companion bill original cosponsor of the amendment Commission [FCC] should carefully in the House. In addition, some of these filed yesterday by the Senator from consider the impact new technologies same concerns will be considered with- Vermont [Senator LEAHY], amendment have on existing ones, especially as in the budget reconciliation bills later number 1289, I want to discuss the im- they relate to public safety and poten- this summer. Therefore, we will con- portant issue of intraLATA dialing tial signal interference problems. An tinue to review these provisions to de- parity. FFC review is in keeping with the in- termine whether the newly-assigned Mr. President, Senator LEAHY’s tent of S. 652, which includes criteria spectrum will adequately satisfy the amendment was very simple. It would for accessibility and usability by peo- needs of electronic news gathering, have merely clarified the rights of the ple with disabilities for all providers what, if any, interference problems will States to implement pro-competitive and manufacturers of telecommuni- arise, and how the costs of such trans- measures for telecommunications mar- cations services and equipment. fers should be borne. kets within their State borders, a role Mr. HOLLINGS. Will the Senator Mr. HOLLINGS. I thank my col- which we have always provided to our yield? league for his comments. States. As is often the case in other Mr. DASCHLE. I will be glad to yield MONOPOLY TELEPHONE RATES policy areas, many States, including to the honorable ranking member of Mr. GLENN. Mr. President, I rise in Wisconsin, are ahead of the Federal the Commerce Committee. support of Senator KERREY’s monopoly Government in deregulating tele- Mr. HOLLINGS. I thank the Senator telephone rates amendment. This communications markets. In the case for yielding and support his suggestion amendment offers critical protection of my State, efforts to begin deregula- that the FCC investigate technologies for ratepayers from potential tion of telecommunications markets that may cause problems for signifi- multibillion rate increases for tele- have been on-going for many years, cant segments of our population before communications services during the culminating in a major telecommuni- they are introduced into the U.S. mar- transition to effective local competi- cations bill passed by Wisconsin’s ket. Such review is prudent for con- tion. State legislature last year and signed sumers, and it will help all companies In mandating price flexibility and by our Governor. by answering questions of safety inter- prohibiting rate-of-return regulation, Unfortunately, while S. 652 has the ference before money is spent deploy- section 301 of the bill also prohibits laudable goal of increasing competition ing this technology here in the United State and Federal regulators from con- in all telecommunications markets, States. sidering earnings when determining without the changes that the Senator Four million Americans wear hearing whether prices for noncompetitive from Vermont and I are promoting, it aids, and the Senator from South Da- services are just, reasonable, and af- would actually cripple existing State kota has raised an important issue. fordable. While the Federal Commu- efforts to enhance competition in mar- GSM has been introduced in other nications Commission [FCC] and many kets within their own borders. The leg- countries, and problems have been re- State commissions have instituted var- islation would prevent States from or- ported. It is reasonable that these ious price flexibility plans, most of dering intraLATA dialing parity in problems be investigated before the those plans involve some consideration local telecommunications markets growth of this technology effectively of earning. If regulators are prohibited until the incumbent regional bell oper- shuts out a large sector of our popu- from considering the earnings factor ating company is allowed access to lation. when determining the appropriateness long distance markets. Mr. DASCHLE. I thank the Senator of prices for noncompetitive services, for his remarks, and would also like to the captive ratepayers of these services IntraLATA dialing parity is com- commend his role in bringing tele- will be subject to unwarranted rate in- plicated phraseology for a very simple communications reform to the floor. creases. concept. Currently, for any long dis- His leadership and patience throughout Mr. President, this amendment does tance calls that consumers make with- this 3-year exercise that has spanned not change the bill’s prohibition on in their own LATA or local access and two Congresses is well known and wide- rate-of-return regulation. The amend- transport area—also known as short- ly appreciated. ment would simply allow State and haul long distance—are by default han- Mr. President, the public record indi- Federal commissions to consider earn- dled by the local toll provider. In order cates that if companies are allowed to ings when authorizing the prices of to use an alternative long distance introduce GSM in its presemt form, se- those noncompetitive services. In this company to make a short-haul long rious consequences could face individ- way, the amendment provides a safe- distance call, a consumer would have uals wearing hearing aids. I would urge guard against excess rate impacts in to dial a long string of numbers to ac- the FCC to investigate the safety, in- the future. cess that service, in addition to the terference and economic issues raised Mr. President, the monopoly tele- telephone number they must dial. For by this technology. I also would urge phone rates amendment recognizes most consumers, that is a inconven- the appropriate congressional commit- that it is appropriate and in the con- ience they simply will not tolerate and June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8375 provides an advantage to the incum- have already ordered intraLATA dial- with respect to this restriction that bent toll provider in providing short- ing parity and the 13 States that are may need to be addressed before the haul long distance. currently considering that option, to legislation is enacted. Dialing Parity already exists in continue their efforts without being de- I appreciate the hard work of my col- interstate long distance markets, railed by this bill. leagues, Senators LEAHY and BREAUX which is why any person can place a Those States may, in some instances, in reaching this agreement. I thank long distance call simply by dialing 1 determine that competition will, in them for their efforts. plus the area code and phone number. fact, not be enhanced by providing EXHIBIT 1 The call is automatically routed intraLATA dialing parity in certain PUBLIC SERVICE COMMISSION through the long distance carrier the markets if the incumbent toll provider OF WISCONSIN, consumer has preselected. This conven- is not allowed to enter long distance June 12, 1995. ience simply does not exist for consum- markets. In other cases, however, a Hon. RUSSELL FEINGOLD, ers making short-haul long distance State’s Public Service Commission’s U.S. Senator, Washington, DC. calls within their own LATA. deliberative process may indicate that, DEAR SENATOR FEINGOLD: I applaud your Wisconsin’s Public Service Commis- in other markets, dialing parity should efforts to remove preemptive language from the telecommunications bill pending before sion has gone through a lengthy multi- be provided regardless of whether the the Senate. This letter is to express support year process examining the technical incumbent toll provider has access to for your amendment that eliminates a pre- feasibility and cost of requiring dialing long distance service. The State has emption clause that prohibits state actions parity for short-haul long distance, de- the expertise to examine the different that require intraLATA dialing parity. In termining whether competition would competitive circumstances for individ- Wisconsin, the Public Service Commission of be enhanced by this type of dialing par- ual markets and they should be al- Wisconsin has ordered full intraLATA dial- ity and whether the public interest lowed to do so. ing parity (1 + presubscription), and it is our would be served by dialing parity for It is inappropriate for the Congress belief that implementation of our orders on that issue will enhance competition and short-haul toll calls. to attempt to preempt a State’s ability serve the public interest. It would be a dis- Their findings indicated that not to make these types of decisions. Re- service to the telecommunications cus- only was intraLATA dialing parity cently, 24 Attorneys General, in a let- tomers of Wisconsin if federal action negated technically feasible, it was also in the ter to Senators, stated their opposition our decision on this issue. public interest. The Commission stat- to the preemption of State’s ability to Proponents of preemption have suggested ed: order intraLATA dialing parity. Sign- that state actions to order full dialing parity IntraLATA 1+dialing parity will benefit ing that letter were State Attorneys prior to federal court action allowing the customers and the State; will encourage the General from Wisconsin, New Mexico, entry of the Regional Bell Operating Compa- development of new products and services at nies (RBOCs) into the interLATA toll mar- Arizona, Arkansas, Connecticut, Dela- ket would constitute a threat to universal reduced prices; and will result in local com- ware, Florida, Illinois, Iowa, Kansas, pany provision of service more efficiently as service. This argument is simply off base. Kentucky, Massachusetts, Minnesota, States, particularly state regulatory com- the market becomes more competitive. Missouri, Montana, North Dakota, missions, are inexorably attuned to the In 1994, State legislation directed our Oklahoma, Tennessee, Utah, Vermont, needs of the citizens of the states and are Wisconsin Public Service Commission Washington, and West Virginia, among very cognizant of the need to maintain uni- to develop rules for 1+dialing parity for others. I ask unanimous consent that a versal service. Any state commission consid- intraLATA markets. The Commission copy of that letter be printed in the ering an order for full dialing parity will have every opportunity to consider the costs has not approached this in a haphazard RECORD. manner, Mr. President. In fact the of that decision and the related implications Mr. President, I also ask unanimous for universal service. The orders of the Wis- Commission has established procedures consent that a letter from the Chair- consin Commission that mandate intraLATA whereby a provider can request dialing man of the Public Service Commission 1 + presubscription include a process where- parity and a company asked to provide of Wisconsin, Cheryl Parrino, in sup- by individual local exchange companies may that service to request a temporary port of this amendment and addressing request Commission waivers of the require- suspension from honoring the request. the issue of Universal Service be print- ments for dialing parity implementation. This provides our PSC with the oppor- ed in the RECORD. This Commission will certainly consider the tunity to review each request on a case The PRESIDING OFFICER. Without potential costs of dialing parity implementa- by case basis if necessary. Our State tion and modify our requirements when it is objection, it is so ordered. in the best interests of the consumers. I am legislature and our Governor endorsed [See Exhibit 1.] confident that other state commissions this process in the Telecommuni- Mr. FEINGOLD. The amendment would give this same consideration. cations Deregulation Act passed and which I have been working on with Further, in Wisconsin, legislation passed signed into law last summer. Senator LEAHY would have simply last summer mandates a universal service That legislation went far beyond the made clear that the bill before us shall program. This Commission will be promul- issue of dialing parity but also allowed not prevent a State from taking pro- gating rules to assure service is available the toll providers to use price cap regu- competitive steps by requiring and affordable to all parts of the state and to lation instead of rate of return regula- intraLATA dialing parity within mar- all segments of the public. The safeguards tion. The bill also stripped certain pro- available through that program offer further kets under their regulatory jurisdic- support to actions by this Commission to viders of their monopoly status to tion. move forward with the introduction of com- allow for greater competition in serv- Mr. President, however, it is my un- petition and fair competitive service stand- ice areas to which they were not pre- derstanding that there are a number of ards at a pace that is reflective of the spe- viously allowed access. This legislation objections to this amendment. In re- cific needs of this state. Universal mandates was miles ahead of Federal legislation, sponse to those objections, the Senator or activities are being addressed in numerous Mr. President. from Vermont [Senator LEAHY] and the other states. Those state plans should be al- Mr. President, the point of this Senator from Louisiana [Senator lowed to move forward based on the respec- tive wisdom of the state legislatures or com- lengthy description of Wisconsin’s de- BREAUX] have worked out a com- missions in those states. A blanket hold on regulatory process is to emphasize that promise which will allow the States all intraLATA dialing parity by Congres- the States are well qualified and expe- that have already ordered intraLATA sional fiat gives no weight to the evidence of rienced in deregulating telecommuni- dialing parity, such as Wisconsin, as competitive need and regulatory safeguards cations markets and are doing so in a well as single LATA states to imple- in any individual state. well-reasoned and orderly fashion. ment it despite the overall preemption Another argument advanced by those who Senator LEAHY’s amendment would contained in this bill. However, the support preemption is that full dialing par- have simply allowed States to continue compromise restricts companies seek- ity may cause the loss of the carrier-of-last- on their path to deregulation and in- ing to offer competitive intraLATA resort obligation by the incumbent local ex- change carrier. In recent hearings in Wiscon- creased competition in telecommuni- toll services from jointly marketing sin on this very subject, this argument was cations markets unhampered by the their intraLATA toll services with raised. It was met by a commitment from Federal Government. The amendment their long distance services for a period other carriers to fill that carrier-of-last-re- would have allowed the 10 States that of up to 3 years. There may be concerns sort role if in fact the incumbent is no longer S 8376 CONGRESSIONAL RECORD — SENATE June 14, 1995 taking on that obligation. This argument competition in each local market before WELL WISHES TO CARDINAL about the loss of universal service because of RBOC entry into other markets. BERNARDIN the carrier-of-last-resort impacts is without Second, legislation should continue to pro- merit. hibit mergers of cable and telephone compa- Ms. MOSELEY-BRAUN. At the out- Competition is coming to the tele- nies in the same service area. Such a prohibi- set, Mr. President, I would like to call communications industry. This bodes well tion is essential because local cable compa- to the attention of my colleagues and for telecommunications customers. Federal nies are the likely competitors of telephone call for the prayers of the American action to stunt competition in parts of the companies. Permitting such mergers raises people in behalf of his eminence, Car- market, while arguments are hashed out on the possibility of a ‘‘one-wire world,’’ with dinal Joseph Bernardin. It has been re- the interLATA front, is a move in the wrong only successful antitrust litigation to pre- cently diagnosed that Cardinal direction. State commissions should decide vent it. Congress should narrowly draft any on the need for and pace of competition in exceptions to this general prohibition. Bernardin is suffering from a form of the states. While there are many advantages Third, Congress should not preempt the cancer that is very difficult to over- to establishing a national policy on tele- states from ordering 1+intraLATA dialing come, and certainly we are all sad- communications, and many good points are parity in appropriate cases, including cases dened by his condition and the physical spelled out in the legislation, the preemption where the incumbent RBOC has yet to re- pain that he must be undergoing pres- of the states on dialing parity is not one of ceive permission to enter the interLATA ently but at the same time confident them. long distance market. With a mere flip of a Again, I commend your attempts to rectify that secure in his faith he will find switch, the RBOCs can immediately offer comfort at this time in the prayers and this portion of the pending telecommuni- ‘‘one-stop shopping’’ (both local and long dis- cations bill. Please contact me if you have tance services). New entrants, however, may the well wishes from the millions of questions on my position on this matter. take some time before they can offer such people in this country who love him This letter of support for your amendment services, and only after they incur signifi- dearly. is independent of the merits of and schedule cant capital expenses will they be able to de- Cardinal Bernardin has been the lead- for interLATA relief for the RBOCs. velop such capabilities. er of the archdiocese of Chicago for Sincerely, In conclusion, we urge you to support tele- over a decade now and is an integral CHERYL L. PARRINO, communications reform legislation that in- Chairman. part of the community and Illinois and, corporates provisions that would maintain indeed, of the church community an important decision-making role for the STATE OF WISCONSIN, throughout this Nation. We all wish Department of Justice; preserve the existing DEPARTMENT OF JUSTICE, prohibition against mergers of telephone him the very best. We wish his health June 2, 1995. companies and cable television companies lo- returns to him. But in the event that it Hon. RUSSELL D. FEINGOLD, cated in the same service areas; and protect might not, we wish him the strength of U.S. Senate, Washington, DC. the states’ ability to order 1+intraLATA his faith and the prayers of people who DEAR SENATOR FEINGOLD: The undersigned state attorneys general would like to address dialing parity in appropriate cases. care about him and the leadership he several telecommunications deregulation Thank you for considering our views. has provided in regard to matters of bills that are now pending in Congress. One Very truly yours, faith for our country. Tom Udall, Attorney General of New of the objectives in any such legislation f must be the promotion that fosters competi- Mexico; James E. Doyle, Attorney Gen- tion while at the same time protecting con- eral of Wisconsin; Grant Woods, Attor- ney General of Arizona; Winston Bry- SUPREME COURT DECISION IN sumers from anticompetitive practices. ADARAND VERSUS PENA In our opinion, our citizens will be able to ant, Attorney General of Arkansas; look forward to an advanced, efficient, and Richard Blumenthal, Attorney General Ms. MOSELEY-BRAUN. Mr. Presi- innovative information network only if such of Connecticut; M. Jane Brady, Attor- dent, I should like to address the issue legislation incorporates basic antitrust prin- ney General of Delaware; Garland of the Supreme Court decision in ciples and recognizes the essential role of the Pinkston, Jr., Acting Corporation Counsel of the District of Columbia; Adarand versus Pena. states in ensuring that citizens have univer- Mr. President, on Monday, a closely sal and affordable access to the tele- Robert A. Butterworth, Attorney Gen- communications network. The antitrust eral of Florida; Calvin E. Holloway, divided Supreme Court handed down a laws ensure competition and promote effi- Sr., Attorney General of Guam; Jim 5 to 4 decision in the case of Adarand ciency, innovation, low prices, better man- Ryan, Attorney General of Illinois; versus Pena. Adarand involved a chal- agement, and greater consumer choice. If Tom Miller, Attorney General of Iowa; lenge to the provision in the small telecommunications reform legislation in- Carla J. Stovall, Attorney General of business act that gives general con- cludes a strong commitment to antitrust Kansas; Chris Gorman, Attorney Gen- tractors on Government procurement principles, then the legislation can help pre- eral of Kentucky; Scott Harshbarger, Attorney General of Massachusetts; projects a financial incentive to hire serve existing competition and prevent par- socially and economically disadvan- ties from using market power to tilt the Hubert H. Humphrey, III, Attorney playing field to the detriment of competition General of Minnesota; Jeremiah W. taged businesses as subcontractors. In and consumers. Nixon, Attorney General of Missouri; its opinion, the Court held that all ra- Each of the bills pending in Congress would Joseph P. Mazurek, Attorney General cial classifications imposed by the Fed- lift the court-ordered restrictions that are of Montana; Heidi Heitkamp, Attorney eral Government will henceforth be currently in place on the Regional Bell Oper- General of North Dakota; Drew subjected to a strict scrutiny analysis. ating Companies (RBOCs). After sufficient Edmondson, Attorney General of Okla- Strict scrutiny, Mr. President, is a competition exists in their local service homa; Charles W. Burson, Attorney General of Tennessee; Jan Graham, At- very difficult standard to meet. Indeed, areas, the bills would allow RBOCs to enter it is the most difficult standard the the fields of long distance services and equip- torney General of Utah; Jeffrey L. ment manufacturing. These provisions raise Amestoy, Attorney General of Ver- Court applies. Accordingly, Federal ra- a number of antitrust concerns. Therefore, mont; Christine O. Gregoire, Attorney cial classifications will be found con- telecommunications deregulation legislation General of Washington; and Darrell V. stitutional only if they are narrowly should include the following features: McGraw, Jr., Attorney General of West tailored measures that entail further First, the United States Department of Virginia. compelling Government interests. Justice should have a meaningful role in de- Ms. MOSELEY-BRAUN. I thank the At the outset I think it is important termining, in advance, whether competition Chair. I say to my colleague, I am not to note that under our system of gov- at the local level is sufficient to allow an RBOC to enter the long distance services and here to speak on this specific legisla- ernment, the Constitution is what the equipment manufacturing markets for a par- tion, although it is obviously impor- Supreme Court says it is. Accordingly, ticular region. The Department of Justice tant and significant legislation. I am ‘‘strict scrutiny’’ for Federal Govern- has unmatched experience and expertise in here to speak as if in morning business ment race programs is now the law of evaluating competition in the telecommuni- and with the indulgence of the sponsors the land. Ever since I studied constitu- cations field. Such a role is vital regardless and managers of the bill, I ask unani- tional law in law school, I have had a of whether Congress adopts a ‘‘competitive mous consent to be allowed to speak in profound respect for the Supreme checklist’’ or ‘‘modified final judgment safe- morning business. Court and all that it represents in our guard’’ approach to evaluating competition in local markets. The Department of Justice The PRESIDING OFFICER. Without system of laws. will be less likely to raise antitrust chal- objection, it is so ordered. Having said that, however, Mr. Presi- lenges if it participates in a case-by-case Ms. MOSELEY-BRAUN. I thank the dent, I still believe that the Adarand analysis of the actual and potential state of Chair. decision was bad law. Clearly, the June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8377 Adarand case would not be the first legally disbarred from the opportunity can be no ‘‘creditor’’ or ‘‘debtor’’ races. time that the Supreme Court has ruled to pursue quality education, to serve in There is a great deal of resentment, we in a way that was just plain wrong. the military, to hold a decent, high are told, by the angry white male to- Who can forget the infamous Dred paying job, to pursue employment, and ward the favoritism shown to blacks in Scott case in which the Court stated to participate fully in our economy as this country. that a black man had no rights which well as in our society. The creators of But, Mr. President, if blacks were so whites were bound to uphold, and that affirmative action sought to give a favored as a group in America, how they were, indeed, mere property? Or boost to black people by lifting them many white Americans do you know Plessy versus Ferguson, which held up, by allowing specific preferences for would want to wake up tomorrow and that segregated facilities were in fact groups. change places? How many white males constitutional? Or the Bradwell case, Now, the issue of preferences when it would want to wake up tomorrow in which the Supreme Court upheld Il- comes to affirmative action is really a morning and be black? The fact is that linois’ refusal to grant a law license to curious intellectual side bar. We have racism is a reality in this country, an women and stating: and take for granted all kinds of pref- unfortunate one but reality, and af- Man is, or should be, women’s defender. erences which serve policy goals and firmative action is one method by The natural and proper timidity and delicacy reflect our society’s values. There are which we attempt to change that re- which belongs to the female sex evidently preferences for veterans, never mind ality. unfits it for many of the occupations of civil whether the individual veteran ever The majority opinion in Adarand life. saw a battle. And I think we would all fails completely to address this. Those And certainly, Mr. President, a num- agree that it is a good thing to reward in the majority I think would prefer to ber of my more conservative colleagues people who took time out of their pri- close their eyes and pretend that rac- would say that the Court was wrong in vate lives to serve our country in the ism simply does not exist, but it does. its ruling in Roe versus Wade. military. There are preferences for sen- And the fact that it does is what makes Nevertheless, the Adarand decision is iors. I do not know too many people the Adarand decision such bad law. now the law of the land. The question who would disagree that getting to the now before us is how will we achieve golden years ought to have some sup- Some have suggested that in re- the goal of true equality in light of this port from society as a whole. There are sponse to the Adarand decision we new hurdle? What should we as a Na- preferences for residents of a State or work on a case-by-case basis to evalu- tion do with the continuing legacy of city in public employment, and a host ate every Federal affirmative action what was called ‘‘the peculiar institu- of others that we could mention. program and save those that can meet tion’’ of slavery and Jim Crow and its So why then is the notion of affirma- the strict scrutiny test. I agree that aftermaths? tive action so fraught with con- this is an appropriate and necessary ac- The most important step I believe troversy? And why are preferences so tivity and one that needs to be part of that we can take in light of this deci- bad only when they arrive in the con- our response. sion is to begin an honest dialog on the text of race? Justice Scalia, who wrote The fact is we have an obligation to issue of race. The racial issue is clearly separately in the Adarand case, argues make Government accountable to re- the most volatile and controversial the following: He argues that it is view all programs to see if they are issue to come before the Court. Indeed, tough cookies; slavery happened; it is achieving the ends for which they have it is one of the most volatile and con- too bad; and now you are on your own been designed. And so the issue is not troversial issues of our time. and nothing ought to be done about one of review but one of retreat and As Justice Ginsburg noted in her dis- that. one of retrenchment. sent, the Court applies a mere ‘‘inter- What Judge Scalia’s decision fails to Mr. President, others have suggested mediate’’ review for classifications recognize is that it is in the interests that the approach ought to be one now, based on gender, while reserving its of the entire country, of all of us, to instead of affirmative action, to speak highest review of strict scrutiny for take steps to resolve the legacy of slav- of reparations—the old ‘‘40 acres and a classifications based on race. ery and of Jim Crow. If affirmative ac- mule’’ analogy. This approach may The irony of the Adarand case is that tion is undone, there will be a very real seem absurd at first blush but, quite the individual who won the contract at cost to society as a whole, black and frankly, if you read the Court’s opinion issue, Mr. Gonzalez, is not black; he is white, and others alike, all of us. The in the Adarand case, it really becomes Hispanic. The contract at issue was imperative for change, the imperative the logical conclusion. Justice O’Con- awarded to a Hispanic subcontractor, for diversity that affirmative action nor’s majority opinion stated group yet every opinion, both the majority provided will have been removed and remedies were inherently suspect; in- opinions and the dissents, including once again minorities and women will stead, Justice O’Connor stated that Justice Thomas’ opinion implies but find it more difficult, if not impossible, remedies should be targeted to individ- does not state that the driving issue at to enter the economic mainstream. uals who have been the victims of rac- stake in Adarand is affirmative action And that cost will not just be borne ism. So descendants of slaves who were for blacks. The opinions in the Adarand by the women and minorities who are promised 40 acres and a mule would, case underscore the myth that affirma- likely to see opportunity shrink away. therefore, be the logical beneficiaries tive action only helps black people. It will be borne by our society as a of Justice O’Connor’s formula. The reality of affirmative action is whole. Affirmative action is about far that other minorities, and women, more than just equal opportunity. It is Still others have called for a nation- have benefited as much if not more about our country’s economic prosper- wide apology about slavery, similar to than blacks as a group, and particu- ity. We are one people. We are one that apology that many are currently larly black men. America. We share a collective respon- pressing the Japanese to issue in re- Affirmative action, Mr. President, sibility to guide our Nation in a con- sponse to their actions in World War II was a response to the legacy of slavery. structive direction of opportunity for —or similarly, frankly, to the apology It was a positive action to give a boost all. And we will all win when America recently given by the United States or, if you will, to mainstream a com- makes it possible to tap the talent of Government for its internment of Jap- munity which had been segregated by 100 percent of its workers. anese Americans during World War II. law and which had threatened to be- Now, I know there is a particular The point is that what we really need come a permanent caste in American controversy about why members of this and what we have to search for are new society. generation should be required or called solutions, solutions that will provide I believe that the originators of af- on to do anything to pay for, if you opportunity to those who face the firmative action showed great wisdom will, the ‘‘sins of their fathers’’ and higher barriers imposed by racism and and forethought in the programs that what happened in this country 100 discrimination. These solutions, I be- they designed to bring black people years ago. Justice Scalia again ex- lieve, will come in as many different into the economic mainstream. They pressed this antipathy when he argued forms as the problems that we face as recognized that black people had been in this opinion in Adarand that there a Nation. For blacks, those solutions S 8378 CONGRESSIONAL RECORD — SENATE June 14, 1995 must include access to quality edu- Small Business Act have been ex- The legislative clerk proceeded to cation, access to capital, and assist- tremely important in helping to bring call the roll. ance with institution building. minorities into the economic main- Mr. PRESSLER. Mr. President, I ask For women, we must make efforts to stream, they, frankly, do not comprise unanimous consent that the order for shatter the glass ceiling that limits the heart of this Government’s efforts the quorum call be rescinded. participation at the highest levels and in regard to affirmative action. The PRESIDING OFFICER. Without perpetuates the old boy network. For Despite all the attention that has objection, it is so ordered. Asian Americans, we must seek to re- been focused on the set-aside program, f move the mystery that surrounds the the heart of affirmative action is not Asian community, when even fourth- set-asides. The heart of affirmative ac- TELECOMMUNICATIONS COMPETI- and fifth-generation Americans are tion, on the other hand, is, in fact, to TION AND DEREGULATION ACT viewed with suspicion as foreign or not create a climate in which diversity can The Senate continued with the con- real Americans. I am certain, Mr. thrive and which allows women and mi- sideration of the bill. President, there are as many other norities to succeed. The heart of af- AMENDMENT NO. 1301, AS MODIFIED worthwhile suggestions that will come firmative action is about ensuring that Mr. PRESSLER. Mr. President, I ask forward in the coming weeks, and I the qualifications of women and mi- unanimous consent that the Stevens look forward to considering and debat- norities will be considered and not ig- amendment No. 1301 be modified with ing these and other suggestions. But nored. the language I now send to the desk. Affirmative action does not seek to the point is that I think the Adarand The PRESIDING OFFICER. Without guarantee any individual a job or a decision becomes a starting point, a objection, it is so ordered. contract. Rather, it seeks to give take-off point for us to begin to have The amendment is so modified. women and minorities a chance to suc- an honest dialog about where we are The amendment (No. 1301), as modi- ceed or fail, sink or swim, based on going in this Nation and how we can go fied, is as follows: there together. ability, not race or gender. Affirmative At the appropriate place insert the follow- While I have the utmost respect for action, therefore, encompasses efforts ing: those who come forward with new ways such as recruiting at historically black In section 3(tt) of the Communications Act to provide opportunity to all, I still, colleges and universities, in addition to of 1934, as added by section 8(b) of the bill on frankly, find it irresponsible that some the Big Ten and Ivy League schools so page 14, strike ‘‘services.’’ and insert the fol- would merely seek to limit opportunity that the most talented young African lowing: ‘‘services: Provided, however, That in without putting forward any new pro- Americans will be considered for jobs the case of a Bell operating company cellular posals, folks who would suggest that and careers along with most talented affiliate, such geographic area shall be no smaller than the LATA area for such affili- repealing our current efforts to provide white Americans. It includes the Exec- ate on the date of enactment of the Tele- opportunity without proposing any new utive order on affirmative action which communications Act of 1995.’’. solutions. This, in my opinion, is noth- requires the Federal contractors to Mr. PRESSLER. I suggest the ab- ing more than a thinly veiled laissez- maximize the percentages of women sence of a quorum. faire attitude toward diversity that is, and minorities in their work force The legislative clerk proceeded to at best, shortsighted. without ever requiring quotas or pref- call the roll. Instead of a deconstructionist ap- erences. proach, tearing down affirmative ac- In short, affirmative action is, at its Mr. LOTT. Mr. President, I ask unan- tion and putting nothing in its place, I heart, about ensuring equal oppor- imous consent that the order for the encourage my colleagues to join in de- tunity, not equal results. Affirmative quorum call be rescinded. veloping creative solutions to the leg- action is not a zero sum gain. It does The PRESIDING OFFICER. Without acy of discrimination in this country. not have winners and losers. We all win objection, it is so ordered. For guidance, I believe we can look to when we open up opportunity and stir Mr. LOTT. Mr. President, I have a the countless individuals, the men and the competitive pot to allow a real unanimous-consent agreement that has women around this country who are al- meritocracy to develop in this country, been read and approved by the distin- ready working in the communities to one that is color blind and gender neu- guished Democratic leader. I would be ensure that the American dream is tral and does not insist that the shack- glad to yield if he has a comment to available for all of us and not just for les of the past are just accidents of make. some of us. birth for which we have no collective Mr. DASCHLE. I thank the Senator And consider for a moment the exam- obligation as a Nation to remove and from Mississippi for yielding. This does ple of LISC, Local Initiative Support overcome. represent a very good-faith effort on Corporation. LISC was established in Diversity is our strength, not our both sides to try to accommodate all 1979 to provide financing and technical weakness—or it can be, anyway, so Senators who have remaining amend- know-how to nonprofit community or- long as we do not allow those who ments, and I think that as a result of ganizations, know-how these groups would separate us on the basis of race this agreement, there is a likelihood used to develop low- and moderately or gender to prevail. This is not, Mr. that we can finish our work in the affordable housing and attract com- President, ‘‘Let’s all get along,’’ and morning and begin voting sometime in mercial investments, create jobs and this is not paternalism, it is an ac- the early afternoon. expand services in underserved neigh- knowledgment that we are all in this I appreciate all Senators’ cooperation borhoods. We need to build on suc- together. We will all rise or fall, sink and hope that we can agree that as a cesses such as these rather than give or swim, together as Americans. Rec- result of this, we will finish our work up on the dream of true equality in ognizing that, let us not retreat. In- tomorrow sometime. I thank the Sen- America. There are enough success sto- stead, let us go forward together to ator from Mississippi. ries out there, there are enough exam- build on the progress that has been Mr. LOTT. I thank the Democratic ples of people working together to made so far. It is in our collective and leader. I commend him and our leader forge a true network, a true quilt of di- national interest that we do so. The fu- for working together to help bring this versity that will reflect the best that is ture of our country, and nothing less to a conclusion. Our two committee America. I believe we have an obliga- important than that, hinges on our re- leaders, the Senator from South Da- tion to look to those examples and to sponse at this time in our history to kota and the Senator from South Caro- replicate them wherever we can. this very important longstanding issue lina, have certainly done their part. We Mr. President, also, I would like to of the character of the American soci- are getting close. I hope we can finish add that while some uncertainty may ety. tomorrow. surround Federal Government set-aside Thank you very much, Mr. President. f programs, there are a host of other ac- I yield the floor and suggest the ab- tivities which are in no way jeopard- sence of a quorum. UNANIMOUS-CONSENT AGREEMENT ized by the Adarand ruling. While ef- The PRESIDING OFFICER. The Mr. LOTT. Mr. President, I ask unan- forts such as the set-asides in the clerk will call the roll. imous consent that debate on the 9 June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8379 amendments be in order tomorrow and ative to getting into—I did not realize, That is the developmental part. They debate on any remaining pending first Mr. President, on page 99, the language do not want anyone to get into it as degree amendments be limited to 30 appeared about getting into the manu- long as they can possibly prevent any- minutes, with the exception of amend- facturing. one getting into research and design. ments Nos. 1299 and 1341, with time on It reads: Now, if this Senator were king for a any second-degree amendments limited . . . if the Commission authorizes a Bell day, I would have them into research to 15 minutes; that the Senate begin operating company to provide interLATA and design tomorrow morning. I would voting on or in relation to the remain- services. . ., then that company may be au- have no relation whatever to the ing pending amendments beginning at thorized by the Commission to manufacture interLATA services getting into long 12:15 p.m. tomorrow; that upon disposi- and provide telecommunications equipment, distance or the checklist. That is why and to manufacture customer premises tion of the pending amendments, the I wanted the Senator to lay that clear- equipment, at any time after that deter- ly on top of the table here. I am not bill be read the third time, and a vote mination is made, subject to the require- on final passage occur without any in- ments of this section. . . . trying to oppose the Senator, I am try- ing to support him. There is the reason tervening action or debate; further, if So the work of the distinguished Sen- an amendment has not had any debate I cannot support it at this time. ator from Virginia is accurate. I had Mr. WARNER. Mr. President, I thank on Thursday due to the time con- always contended that the manufac- straints prior to 12:15 p.m., it be given my distinguished colleague. My distin- turer had no relation whatever to long guished colleague took the time to 10 minutes on the first degree amend- distance. I think it ought to be written ment and 5 minutes on any second de- meet with my constituents a few min- somewhere in the CONGRESSIONAL utes ago and expressed to them his con- gree thereto; provided further that in RECORD that I worked with the Bell op- between the stacked votes beginning at cerns about it. erating companies for a good many Might I suggest that we endeavor to 12:15 p.m., there be 2 minutes for expla- years on the manufacturing bill. get back to the distinguished Senator nation prior to each vote; and that all At the time we passed it in the U.S. from South Carolina tomorrow morn- time limits be equally divided in the Senate, 2 years ago—3 years ago now— ing and, indeed, both managers of the usual form. by a bipartisan 74 votes, it had no rela- bill, with perhaps some language that The PRESIDING OFFICER. Without tion not only to long distance, but the would resolve this problem. objection, it is so ordered. RBOC’s told this particular Senator The Senator from South Carolina has f time and time again, ‘‘We are not in- spoken with clarity now. He has de- terested in getting into long distance. fined the issue far more clearly. We ORDERS FOR THURSDAY, JUNE 15, We are not interested at all in long dis- will take another try in the morning. I 1995 tance. We are trying to get into manu- thank him for his cooperation. Mr. LOTT. Mr. President, I ask unan- facturing.’’ Mr. PRESSLER. Mr. President, I imous consent that when the Senate Now, there was a difference. The dis- would like to say that I join in Senator completes its business today, it stand tinguished chairman and Senators on HOLLINGS’ earlier remarks on manufac- in recess until the hour of 9 a.m. on his side, although we voted it, and that turing, and I thank my good friend Thursday, June 15, 1995; that following is the way it provided in last year’s from Virginia for reconsidering. I hope the prayer, the Journal of the proceed- bill, S. 1822, they had a provision that he will be able—this bill has been craft- ings be deemed approved to date, and manufacturing could not commence for ed in this area. the time for 2 leaders be reserved for 3 years. The compromise was made as I know that the Senator from South their use later in the day, and the Sen- appears on page 99 that it was after Carolina had the amendment a couple ate then immediately resume consider- they got into interLATA it was author- years ago about manufacturing. I know ation of S. 652, the telecommunications ized. this has been worked on day and night bill. I do not question the logic, in a during the drafting sessions, and of The PRESIDING OFFICER. Without sense, of the distinguished Senator course all Senators are welcome to objection, it is so ordered. from Virginia. However, then our side, offer amendments, but I do hope and I f in the negotiations and drawing this should say that I would stand with the measure, said that irrespective of that Senator from South Carolina, based on PROGRAM particular production, namely, the de- the information I have at this moment. Mr. WARNER. I thank the other dis- Mr. LOTT. Under the previous provi- velopment and actual manufacture of tinguished manager from South Da- sions of the agreement entered earlier equipment, that we could immediately kota. I hope that we will remain with this evening, on Thursday, debate time get into the design, saying: open mind until tomorrow morning and will be limited to 30 minutes on each of Upon the enactment of the Telecommuni- I can address the issue. the pending amendments to the tele- cations Act of 1995, a Bell operating company communications bill. may— f Members should be aware at approxi- (A) engage in research and design activi- ties related to manufacturing, and MORNING BUSINESS mately 12:15 on Thursday there will be (B) enter into royalty agreements with (During today’s session of the Sen- a series of rollcall votes, possibly as manufacturers of telecommunications equip- ate, the following morning business many as nine votes, on or in relation to ment. was transacted.) the amendments on the telecommuni- And then in section (b) you have to f cations bill. The last vote in that series have a separate subsidiary. So long as will be final passage. Senators should they have that separate subsidiary, and MESSAGES FROM THE PRESIDENT be aware that rollcall votes will occur they cannot cross subsidize, in any Messages from the President of the throughout Thursday’s session of the fashion, their research and design ac- United States were communicated to Senate. tivities, the research and design activi- the Senate by Mr. Kalbaugh, one of his f ties have no relation whatever to the secretaries. checklist, or the checklist is premised f TELECOMMUNICATIONS COMPETI- on getting in, of course, to long dis- TION AND DEREGULATION ACT tance service. There is no connection, EXECUTIVE MESSAGES REFERRED The Senate continued with the con- whatever. And I really think if we were As in executive session the Presiding sideration of the bill. not this far along in the bill I would be Officer laid before the Senate a mes- Mr. HOLLINGS. While the distin- talking to my chairman to knock that sage from the President of the United guished Senator from Virginia is here, page 99 out and that provision out. We States submitting a nomination which there is no one I admire more, and I have agreed to support the bill as is. was referred to the Committee on Gov- would be ready, willing, and able to try I understand that some in that par- ernmental Affairs. to respond. It came to my attention in ticular manufacturing business realize (The nomination received today is discussing this just in the last hour that the research and design, the soft- printed at the end of the Senate pro- that they had a provision in here rel- ware, is 90 percent of the business. ceedings.) S 8380 CONGRESSIONAL RECORD — SENATE June 14, 1995 MESSAGES FROM THE HOUSE nation of Federal personal property; to the SUBMISSION OF CONCURRENT AND Committee on Governmental Affairs. SENATE RESOLUTIONS At 12:28 p.m., a message from the EC–985. A communication from the Chief House of Representatives, delivered by Judge of the U.S. Court of Veterans Appeals, The following concurrent resolutions Ms. Goetz, one of its reading clerks, an- transmitting, pursuant to law, the report of and Senate resolutions were read, and nounced that the Speaker has signed an estimate of the expenditures and appro- referred (or acted upon), as indicated: the following enrolled bills: priations necessary for the maintenance and By Mr. HELMS (for himself, Mr. LOTT, S. 349. An act to reauthorize appropria- operation of the Court of Veterans Appeals Mr. ABRAHAM, Mr. ASHCROFT, Mr. tions for the Navajo-Hopi Relocation Hous- Retirement Fund; to the Committee on Gov- COATS, Mr. CRAIG, Mr. DEWINE, Mr. ing Program; and ernmental Affairs. FAIRCLOTH, Mr. FRIST, Mr. GRAMM, S. 441. An act to reauthorize appropria- EC–986. A communication from the Postal Mr. GRAMS, Mr. HATCH, Mr. tions for certain programs under the Indian Rate Commission, transmitting, pursuant to KEMPTHORNE, Mr. MCCONNELL, Mr. Child Protection and Family Violence Pre- law, the opinion and further recommended MURKOWSKI, Mr. NICKLES, Mr. vention Act, and for other purposes. descision of the Commission relative to post- SANTORUM, Mr. SMITH, and Mr. THUR- al rate and fee changes, 1994; to the Commit- MOND): The enrolled bills were subsequently tee on Governmental Affairs. S. Res. 133. A resolution expressing the signed by the President pro tempore f sense of the Senate that the primary safe- (Mr. THURMOND). guard for the well-being and protection of REPORTS OF COMMITTEES children is the family, and that, because the At 4 p.m., a message from the House The following reports of committees United Nations Convention on the Rights of of Representatives, delivered by Mr. the Child could undermine the rights of the were submitted: Hays, one of its reading clerks, an- family, the President should not sign and nounced that the House has passed the By Mr. SPECTER, from the Select Com- transmit it to the Senate; to the Committee mittee on Intelligence, without amendment: on Foreign Relations. following bills, in which it requests the S. 922. An original bill to authorize appro- f concurrence of the Senate: priations for fiscal year 1996 for intelligence H.R. 962. An act to amend the Immigration and intelligence-related activities of the STATEMENTS ON INTRODUCED Act of 1990 relating to the membership of the United States Government and the Central BILLS AND JOINT RESOLUTIONS United States Commission on Immigration Intelligence Agency Retirement and Disabil- Reform. ity System, and for other purposes (Rept. No. By Mr. PRESSLER: H.R. 1561. An act to consolidate the foreign 104–97). S. 920. A bill to assist the preserva- affairs agencies of the United States; to au- f tion of rail infrastructure, and for thorize appropriations for the Department of other purposes; to the Committee on State and related agencies for fiscal years EXECUTIVE REPORTS OF Commerce, Science, and Transpor- 1996 and 1997; to responsibly reduce the au- COMMITTEES tation. thorizations of appropriations for United States foreign assistance programs for fiscal The following executive reports of THE RAIL INFRASTRUCTURE PRESERVATION ACT years 1996 and 1997, and for other purposes. committees were submitted: OF 1995 Mr. PRESSLER. Mr. President, f By Mr. MURKOWSKI, from the Committee on Energy and Natural Resources: today I am introducing the Rail Infra- MEASURES REFERRED James John Hoecker, of Virginia, to be a structure Preservation Act of 1995. Member of the Federal Energy Regulatory This legislation is designed to target The following bills were read the first Commission for the term expiring June 30, rail freight investment needs in ne- and second times by unanimous con- 2000. glected regions of the country. I urge sent and referred as indicated: (The above nomination was reported my colleagues to join me in supporting H.R. 962. An act to amend the Immigration with the recommendation that he be this legislation. Act of 1990 relating to the membership of the confirmed, subject to the nominee’s The primary purpose of this bill is to United States Commission on Immigration commitment to respond to requests to Reform; to the Committee on the Judiciary. provide a blueprint for rebuilding and H.R. 1561. An act to consolidate the foreign appear and testify before any duly con- improving the rail lines serving our affairs agencies of the United States; to au- stituted committee of the Senate.) smaller cities and rural areas. These thorize appropriations for the Department of f lines, run mainly by short-line and re- State and related agencies for fiscal years gional railroads, are critical to the sur- INTRODUCTION OF BILLS AND 1996 and 1997; to responsibly reduce the au- vival of rural America’s economy. Yet, JOINT RESOLUTIONS thorizations of appropriations for United the capital needed to maintain these States foreign assistance programs for fiscal The following bills and joint resolu- secondary rail lines is very limited. years 1996 and 1997, and for other purposes; to tions were introduced, read the first the Committee on Foreign Relations. My colleagues may recall I intro- and second time by unanimous con- duced a similar bill during the last f sent, and referred as indicated: Congress. I continue to believe Federal ENROLLED BILLS PRESENTED By Mr. PRESSLER: involvement is necessary to preparing S. 920. A bill to assist the preservation of our Nation’s rail transportation net- The Secretary of the Senate reported rail infrastructure, and for other purposes; work for the next century. A national that on June 14, 1995, he had presented to the Committee on Commerce, Science, commitment to the future of rail to the President of the United States, and Transportation. freight service is critical to the ad- the following enrolled bills: By Mr. MURKOWSKI (for himself, Mr. vancement of our overall transpor- S. 349. An act to reauthorize appropria- BROWN, and Mr. JOHNSTON): S. 921. A bill to establish a Minerals Man- tation system. tions for the Navajo-Hopi Relocation Hous- Mr. President, we are facing very se- ing Program. agement Service within the Department of S. 441. An act to reauthorize appropria- the Interior; and for other purposes; to the rious Federal budget constraints. I sup- tions for certain programs under the Indian Committee on Energy and Natural Re- port comprehensive deficit reduction Child Protection and Family Violence Pre- sources. proposals and have backed that support vention Act, and for other purposes. By Mr. SPECTER: with my voting record. I will continue S. 922. An original bill to authorize appro- f priations for fiscal year 1996 for intelligence to do so. In our efforts to tackle the and intelligence-related activities of the deficit, it is important to allocate our EXECUTIVE AND OTHER United States Government and the Central limited tax dollars wisely. COMMUNICATIONS Intelligence Agency Retirement and Disabil- In my view, adequate investment in The following communications were ity System, and for other purposes; from the our Nation’s transportation infrastruc- laid before the Senate, together with Select Committee on Intelligence; placed on ture provides for wise use of these dol- accompanying papers, reports, and doc- the calendar. lars. However, as we consider national By Mr. DORGAN: transportation infrastructure invest- uments, which were referred as indi- S. 923. A bill to amend title 23, United cated: States Code, to provide for a national pro- ment, we must not overlook one very EC–984. A communication from the Admin- gram concerning motor vehicle pursuits by critical transportation mode—rail istrator of the General Services Administra- law enforcement officers, and for other pur- freight service. tion, transmitting, pursuant to law, the re- poses; to the Committee on Commerce, During the 1970’s and 1980’s, the large port on programs for the utilization and do- Science, and Transportation. railroads abandoned thousands of miles June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8381 of rail lines throughout the United is a worthy program and should be con- er issues of transportation investment States. Much of our former rail infra- tinued. policy. structure has been abandoned. Fortu- In addition, adequate funding for the Mr. President, I ask unanimous con- nately, many independent regional and section 511 Loan Guarantee Program sent that the bill be printed in the short-line railroads have filled the gap, would permit high priority railroad RECORD. keeping many essential rail lines in transportation infrastructure invest- There being no objection, the bill was service. ment on lines operated by short-line ordered to be printed in the RECORD, as Despite the remarkable efforts by re- and regional railroads. In this era of follows: gional and short-line entrepreneurs to significant budgetary pressures, the 511 S. 920 keep alive our Nation’s secondary rail program provides a cost effective Be it enacted by the Senate and House of Rep- lines, the demand for capital invest- method to insure modest infrastruc- resentatives of the United States of America in ment to maintain these lines far out- ture investment on a repayable basis. Congress assembled, paces supply. This situation keeps far The 511 Program requires a process- SECTION 1. SHORT TITLE. too many rural communities on the ing fee paid to the Federal Government This Act may be cited as the ‘‘Rail Infra- brink of losing their rail service or and the money borrowed is repaid with structure Preservation Act of 1995’’. having inadequate service due to un- interest. The cost to the taxpayers SEC. 2. LOCAL RAIL FREIGHT ASSISTANCE; AU- THORIZATION OF APPROPRIATIONS. sound track conditions. Unfortunately, should range from negligible to a posi- Section 22108 of title 49, United States the Federal commitment to maintain- tive return. In this time of fiscal pres- Code, is amended— ing necessary rail lifelines has dimin- sure, we should support programs like (1) by striking out so much of subsection ished almost to the point of the 511 Program and LRFA that pro- (a) as precedes paragraph (2) and inserting nonexistence. vide excellent leverage of our limited the following: It would help address the capital in- Federal dollars. ‘‘(a) GENERAL.—(1) There is authorized to vestment needs of our rail freight The 511 Railroad Loan Guarantee be appropriated to the Secretary of Trans- transportation system. Specifically, Program is permanently authorized at portation to carry out this chapter the sum of $25,000,000 for the fiscal year ending Sep- my legislation would permanently au- $1 billion, of which approximately $980 tember 30, 1996, and for each subsequent fis- thorize the Local Rail Freight Assist- million currently is available for com- cal year.’’; and ance [LRFA] Program. However, due to mitment. The Credit Reform Act rules (2) by striking subsection (a)(3). legitimate funding constraints, my bill require an appropriation for the 511 SEC. 3. DISASTER FUNDING FOR RAILROADS. would reduce the authorization level Loan Program to cover the anticipated Section 22101 of title 49, United States by 17 percent from the amount ap- loss to the Government over the life of Code, is amended by redesignating sub- proved by the Senate Commerce Com- each loan. Based on a fiscal year 1994 section (d) as (e), and by inserting after sub- mittee during the last Congress. It also appropriation for a 511 project in New section (c) the following— updates the existing section 511 rail- York State—the first 511 application ‘‘(d) DISASTER FUNDING FOR RAILROADS.— road loan guarantee program as I first ‘‘(1) The Secretary may declare that a dis- processed under the rules of the Credit aster has occurred and that it is necessary to proposed in the last Congress. Reform Act—5 percent of the total ob- repair and rebuild rail lines damaged as a re- The LRFA Program has proven to ligation level must be appropriated. sult of such disaster. If the Secretary makes play a vital role in our Nation’s rail Several regional and short-line rail- the declaration under this paragraph, the transportation system. Created in 1973, roads are ready to submit loan applica- Secretary may— LRFA provides matching funds to help tions as soon as the program is appro- ‘‘(A) waive the requirements of this sec- States save rail lines that otherwise priated funding. For example, the Da- tion; and would be abandoned. For instance, over ‘‘(B) prescribe the form and time for appli- kota, Minnesota & Eastern [DM&E] cations for assistance made available herein. the past few years, several rail im- Railroad, headquartered in Brookings, ‘‘(2) The Secretary may not provide assist- provement projects in my home State SD, is prepared to file an application ance under this subsection unless emergency of South Dakota have been made pos- for a 511 loan guarantee as part of a disaster relief funds are appropriated for sible through LRFA funding assist- project to be matched by financing that purpose. ance. Without LRFA, our freight fund- from revenue bonds issued by the State ‘‘(3) Funds provided for under this sub- ing needs would go largely unmet. of South Dakota. section shall remain available until ex- tended.’’. Of particular importance is how It also is important to note that re- LRFA’s matching requirements enable cently the House Transportation and SEC. 4. DECLARATION OF POLICY. Section 101(a) of the Railroad Revitaliza- limited Federal, State, and local re- Infrastructure Railroad Subcommittee tion and Regulatory Reform Act of 1976 (45 sources to be leveraged. Indeed, approved an Amtrak reauthorization U.S.C. 801(a)(4)) is amended to read as fol- LRFA’s success has been in part due to bill that includes a 511 loan guarantee lows: its ability to promote investment part- provision specifically permitting $50 ‘‘(4) continuation of service on, or preser- nerships, thus, maximizing very lim- million of the $1 billion authorized for vation of, light density lines that are nec- ited Federal assistance. the section 511 program to be available essary to continued employment and com- Historically, LRFA has received only for Amtrak for fiscal years 1996 munity well-being throughout the United a very modest level of Federal funding. through 1999. Indeed, the 511 program is States;’’. gaining increased Congressional atten- SEC. 5. RAILROAD LOAN GUARANTEES; MAXIMUM For example, $17 million was provided RATE OF INTEREST. for LRFA in fiscal year 1995. But a sub- tion and support. Section 511(f) of the Railroad Revitaliza- stantial portion of this very limited ap- My legislation is intended to make tion and Regulatory Reform Act of 1976 (45 propriation—$6.5 million—was re- the loan guarantee program more user U.S.C. 831(f)) is amended by striking ‘‘shall scinded recently by Public Law 104–6. friendly. My overall objective is to en- not exceed an annual percentage rate which Yet, LRFA remains very popular since sure the 511 Loan Program can best the Secretary determines to be reasonable, it has been the only Federal program serve its customers. I am eager to ex- taking into consideration the prevailing in- that provides infrastructure invest- plore all options to enable us to reach terest rates for similar obligations in the ment in short-line and regional rail- this goal. private market.’’ and inserting in lieu there- of ‘‘shall not exceed the annual percentage roads in the absence of section 511 ap- Mr. President, in my judgment, we rate charged equivalent to the cost of money propriations. need to help preserve our rural freight to Government.’’. For example, in fiscal year 1995, 31 rail systems. Building up these systems SEC. 6. RAILROAD LOAN GUARANTEES; MINIMUM States requested LRFA assistance for would allow more freight to be shipped REPAYMENT PERIOD AND PREPAY- 59 projects, totaling more than $32 mil- by rail and would help to alleviate MENT PENALTIES. lion in funding requests. Unfortu- highway traffic and congestion. Our Section 511(g)(2) of the Railroad Revital- nately, less than one-third of funding national transportation needs can best ization and Regulatory Reform Act of 1976 (45 U.S.C. 831(g)(2)) is amended to read as fol- was available to meet these rail infra- be measured on this type of inter- lows: structure needs. With continued rail- modal perspective. Therefore, I urge ‘‘(2) payment of the obligation is required road restructuring, these legitimate my colleagues to support this legisla- by its terms to be made not less than 15 funding needs will only increase. LRFA tion while we work to address the larg- years nor more than 25 years from the date S 8382 CONGRESSIONAL RECORD — SENATE June 14, 1995 of its execution, with no penalty imposed for the Mineral Leasing Act, the Federal partment has never lost a challenge to prepayment after 5 years;’’. Oil and Gas Royalty Management Act, one of its 5-year oil and gas plans, SEC. 7. RAILROAD LOANS GUARANTEES; DETER- and the Outer Continental Shelf Lands which are the activity planning docu- MINATION OF REPAYABILITY. Act. ments laying out the Department’s Section 511(g)(5) of the Railroad Revital- ization and Regulatory Reform Act of 1976 Second, MMS was given responsibil- proposed oil and gas leasing program (45 U.S.C. 831(g)(5)) is amended to read as fol- ity for managing a program to promote each 5 years. For its part in assuring lows: and regulate the use of lands on the that NEPA [the National Environ- ‘‘(5) either the loan can reasonably be re- Outer Continental Shelf for purposes of mental Policy Act] and other environ- paid by the applicant or the loan is mineral exploration, development and mental requirements are fully imple- collaterallized at no more than the current production. The OCS contains abun- mented and adhered to with respect to value of assets being financed under this sec- dant supplies of oil and natural gas, as oil and gas exploration, development tion to provide protection to the United well as other minerals used for indus- States;’’. and production activities on the OCS, trial and commercial purposes, such as SEC. 8. RAILROAD LOANS GUARANTEES; RIGHTS MMS received the President’s Council OF SECRETARY. sulfur. on Environmental Quality Award in Section 511(i) of the Railroad Revitaliza- When MMS was formed, many good 1994 for making environmental consid- tion and Regulatory Reform Act of 1976 (45 Federal employees from the Interior erations an integral part of the agen- U.S.C. 831(i)) is amended by adding at the Department’s Bureau of Land Manage- cy’s mission and decision-making proc- end the following; ment and U.S. Geological Survey, as ess. ‘‘(4) The Secretary shall not require, as a well as some from the Department of These are achievements of which condition for guarantee of an obligation, Energy, were selected to staff this new that all preexisting secured obligations of an MMS can be proud. All this from an obligor be subordinated to the rights of the agency. Most of these people brought a agency that is not even 15 years old. Secretary in the event of a default.’’. particular expertise to their jobs, with Compare the effectiveness of MMS to some having experience at the General one of its sister agencies at Interior, By Mr. MURKOWSKI (for him- Accounting Office and the Internal the Office of Surface Mining, and you self, Mr. BROWN, and Mr. JOHN- Revenue Service. have an example of one agency that STON): What has MMS and its employees functions well and one that is an abso- S. 921. A bill to establish a Minerals done with its responsibilities in last 13 lute mess. Management Service within the De- years, Mr. President? Well, it has sig- Now, however, Mr. President, along partment of the Interior; and for other nificantly improved the royalty man- come President Clinton and Secretary purposes; to the Committee on Energy agement program. It has reduced the Babbitt and their half-baked and Natural Resources. number of data-related errors and roy- reinvention of government proposal to THE MINERALS MANAGEMENT SERVICE ORGANIC alty payor mistakes from about 39 per- dismantle MMS, to devolve some of its ACT cent in 1982 to less than 5 percent. In functions to the States, and to absorb Mr. MURKOWSKI. Mr. President, I increased the percentage of monies the other functions elsewhere in Inte- rise today to introduce legislation to being distributed on time from 92 to rior. If it weren’t for the fact that we establish the Minerals Management about 99 percent in a period of about 10 know the President and the Secretary Service as a permanent agency at the years. For its handling of the royalty are not economists, I’d swear the MMS Department of the Interior. I am management functions, MMS received devolution idea is the work of an econ- pleased to be joined in this effort by an award for management excellence omist. Economists have been described my colleague from Colorado, Senator from the President’s Council on Man- as people who sit around and wonder BROWN, and by the ranking member on agement Improvement in 1991, and whether things that actually work in the Committee on Energy and Natural twice in the last 5 years has been a fi- practice can work in theory. Resources, Senator JOHNSTON. nalist for the Federal Quality Insti- Here, we have the same kind of ge- The legislation I sponsor is very tute’s Quality Improvement Prototype nius at work. MMS is recognized by straightforward. It would simply au- Awards. people inside and outside of govern- thorize the establishment of a Minerals Besides the IRS, the MMS is the sec- ment as an effective agency. Yet Presi- Management Service at the Depart- ond largest source of revenues for the dent Clinton and Secretary Babbitt ment of the Interior, require that it be Federal Government, handling more want to give States the task of collect- headed by a Director who is to be ap- than 4 billion in mineral royalties, ing, disbursing, and auditing royalties, pointment by the President and con- bonus bids, and rental payments each have the Federal Government keep re- firmed with the advice and consent of year. That is tremendous responsibil- sponsibility for all major substantive the Senate, and direct that it admin- ity, and MMS is handling it well. Sure, functions, and double the States’ con- ister royalty management and Outer there are disagreement over policy is- tribution to administrative costs. What Continental Shelf lands programs. The sues. But, for the most part, people a deal! Minerals Management Service already would say MMS is doing a good job. Under the present system, States are exists although, as I will explain, the As for its responsibilities over the assessed 25 percent of the total admin- Clinton administration has proposed to OCS lands program, Mr. President, I istrative costs of royalty collection, dismantle it. My bill, which is an MMS believe MMS can take great pride in disbursement and auditing. Under the organic act, would authorize and pre- the fact that the OCS is contributing Babbitt devolution proposal, the States serve MMS. to our Nation’s energy supply in an en- would be assessed the present 25 per- Mr. President, the Minerals Manage- vironmentally sound and safe manner. cent, plus another 25 percent. Wyo- ment Service—or MMS—was estab- The OCS accounts for about 23 percent ming, New Mexico, Colorado, and Utah lished by Secretarial order in 1982 in of the Nation’s natural gas production would pay an additional $3.2 million, response to concerns about the amount and after 14 percent of our crude oil $3.3 million, $1.5 million, and $1.1 mil- of money the United States was receiv- production. The OCS contains about 25 lion, respectively, for the privilege of ing for Federal coal leases in the West percent of our known natural gas re- doing MMS’s job. and for the job that was being done in serves and about 15 percent of our At first blush, Mr. President, the collecting mineral royalties owed the known oil reserves. Historically, the concept of devolving responsibility to United States. OCS has accounted for more than 106 the States sounds like a good idea. It’s When MMS was created, it was given trillion cubic feet of natural gas pro- one that Republicans have been espous- two basic functions: first, to assure duced and the production of 9 billion ing for years and one that Democrats that there is timely and efficient col- barrels of oil. only recently have begun to imitate. lection, disbursement, accounting for Remarkably, there has never been a Give States primacy. Give them the and auditing of the royalties owed the blow-out from an oil well on the Fed- ability to make decisions regarding is- United States for mineral leases both eral OCS. The amount of oil spilled as sues affecting their economic well- onshore and offshore. MMS has prin- a percentage of oil produced on the being. Give them a greater say in how cipal responsibility for handling the OCS amounts to one-one thousandth of public lands and natural resources are mineral receipts under provisions of a percent [.001 percent]. And, the De- managed. That is what Republicans June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8383 have been advocating for years. The icy. The dismantling of MMS is con- are the villains. I have believed that Clinton-Babbitt proposal gives States sistent with that AWOL approach to for a long time and have introduced more work at greater cost. This is executive management. legislation in both the House and Sen- their idea of reinventing government. Mr. President, I urge my colleagues ate to respond to this problem. Well, the President and his friend to join me in supporting this legisla- It is not just the woman in Falls Secretary Babbitt have got it wrong. tion. I urge them not to succumb to Church, VA, who lost her family in a The devolution proposal was not clear- the baiting that is likely to come from senseless accident, or my mother who ly thought out beforehand, because it President Clinton, his friend Secretary was senselessly killed in a similar cir- doesn’t really pass true responsibility Babbitt and others who are attempting cumstance in a police chase in Bis- to the States. All it passes to the to ‘‘reinvent government’’ by destroy- marck, ND, but let me expand on my States is the ministerial function of ing an agency that works and claiming own experience. royalty collection, disbursement, and that Republicans are against govern- Eyewitnesses said that particular auditing. And, as I just stated, for an ment reform, reduction of the Federal chase occurred at speeds up to 80 to 100 added 25 percent administrative work force, and saving money. The miles an hour on the city streets. My charge. Under the President’s proposal, MMS devolution is a bad idea, and is mother, coming home from the hos- the Federal Government would retain forced on an agency that works. I urge pital, was a victim of that accident. rulemaking authority, responsibility my colleagues to join me in sending a The villain there was a fellow in the to make valuation determinations, and message to the President that he has pickup truck who was drunk and who other important responsibility. So the completely missed the mark on this fishtailed his pickup truck because he devolution of MMS responsibility is one. was pushing the accelerator too hard, not really what it’s cracked up to be. showing off. He took flight from the We have yet to see an explanation of By Mr. DORGAN. police at a very rapid rate of speed, and the economic effects of the President’s S. 923. A bill to amend title 23, Unit- the result was that a wonderful woman proposal that fully sets out the bene- ed States Code, to provide for a na- was killed. She senselessly lost her life. fits of this proposal. We haven’t seen a tional program concerning motor vehi- Here’s another tragic incident. On rush by the States to accept this re- cle pursuits by law enforcement offi- November 25, last year, a car carrying sponsibility, because many are still cers, and for other purposes; to the a family of four on their way to a trying—as we are—to figure out the Committee on Commerce, Science, and movie in Houston, TX, was struck by a proposal, whether they are equipped to Transportation. speeding car during a high-speed chase. handle the responsibilities, and wheth- THE NATIONAL POLICE PURSUIT POLICY ACT OF I could stand here for some hours and er the proposal would impose an un- 1995 talk about the number of people killed funded mandate. I suspect that some of Mr. DORGAN. as a result of high-speed chases. In the numbers used by the President and Mr. President, I intend to send some fact, a lot of people do not know, but Secretary Babbitt came from the same legislation to the desk of the Senate more innocent people in this country creative genius that thought up the today dealing with an issue that does are killed as a result of an accident MMS devolution proposal in the first not command many headlines but that that occurs from a high-speed police place. is a critically important issue, in my pursuit or chase on city streets than Mr. President, the long and short of judgment. It is the issue of the policy are killed as a result of an accidental it is this: President Clinton and Sec- of police pursuit in this country and shooting from a policeman’s gun. We retary Babbitt have missed the mark the dangers resulting from people who do not know how many, but we esti- with their MMS devolution proposal. flee from police. mate probably a thousand people a The President’s efforts would be better I received a letter about a month or year or more. Thousands and thousands directed in improving the Office of Sur- two ago from a woman in Falls Church, more are injured as a result of these face Mining, or in significantly elimi- VA. I had written to her 2 years ago. chases. nating functions of the Department of Her husband and two children, on a The fact is that it is not the police Energy. MMS is not broken, and does Sunday morning, on the way to church, that are the source of the problem, it is not need to be dismembered as pro- were involved in a circumstance where the people who run from the police. posed by this ill conceived devolution. a young fellow who was drunk and But it is also a fact that there are some Mr. President, I am concerned that stole a car was being chased by the po- circumstances where the police should all the good things MMS has achieved lice at high rates of speed. This young not conduct a chase. If a motorist has will be lost if it is dismantled and its fellow, being chased at a high rate of a broken taillight and that results in a functions are spread to the wind. We speed, crashed into the car of the fa- policeman trying to stop that person, are likely to get inconsistent interpre- ther and his two daughters and all and the person takes flight, that does tations, rulings and policies from the three were killed. not justify a 100-mile-an-hour chase States on the few functions they will Of course, the fellow who was drunk through the city streets. be given, while we still have the major and fleeing from the police was not There is an organization called ‘‘inherently federal functions’’ retained hurt so badly. He eventually recovered STOPP, whose board of directors is by the Interior Department. This will and not very much happened to him as meeting today in Washington, DC. And lead to costly litigation and an ineffi- far as court action. By contrast, this I believe one of the members of the cient use of private and public sector Virginia woman lost her husband and board of directors is from the State of resources. two children in a circumstance where the Presiding Officer, the State of In addition, Mr. President, if the OCS there was a high-speed police chase in Pennsylvania. Every one of the folks minerals management function is ab- a city. on that board will tell you a similar sorbed—or more likely buried—else- I wrote her a long letter when I read story. Some member of their family or where in the Department, who will be about it, because I sympathized sub- some friend was an innocent bystander the advocate for the offshore oil and stantially with her. I have written let- or passenger, but yet a victim of a gas program? Who will assure that the ters to others who suffered similar high-speed pursuit. OCS continues to be a vital contributor fates. Now, what ought we do about this? to our Nation’s energy security and en- My mother was killed in a high-speed Well, I think we should do a couple of ergy policy? police chase, and I understand that things. First, I like the system in Eu- The answer, I submit Mr. President, there are others around this country rope, where in most countries people is that no single person and no agency who, when confronted with this, be- who go out to drink understand that will assure that responsibility. The come angry about the chases that one of that group ought not to be President has not assumed responsibil- occur on city streets. I have, for some drinking because they are going to ity for a national energy policy, and years, felt we should do something drive. If you drive and get picked up has no energy security program. The about that. drunk, you are in very serious trouble. President is AWOL—absent without The police are not the villains. It is In this country the consequence has leadership—on our Nation’s energy pol- the folks who run from the police who been all too often sort of a smirk and S 8384 CONGRESSIONAL RECORD — SENATE June 14, 1995 a smack on the wrist. We ought to un- it is legislation that will, I think, save members of our family to drunk driv- derstand in this country that both for lives and families the grief and heart- ers. I lost my mother to an accident drinking, and especially for those who ache of losing loved ones. from police pursuit, a person fleeing are willing to flee from police and take While I am on my feet, let me de- from the police. flight when they are trying to appre- scribe another piece of legislation that I know we are all charged with doing hend you, two things are going to hap- I will introduce, and which I intro- things in our self-interest. Yes, it is my pen. duced before, again without success self-interest, but it is in the self-inter- One, you are going to be put in jail partly because people feel we should est of a lot of people in this country for 3 months, and second, you are going not meddle. who suffer the anguish they should to lose your vehicle. There ought to be Most Members of the Senate will not never have to suffer. They suffer the certainty in this country about that. If probably know that you can reasonably loss of innocent lives because of people you take flight from the police, there drive across this country in a meander- who drink and drive and people who ought to be certainty in every State in ing line and either drink while you flee from the police. As a result of that, this country that you are going to be drive and be perfectly legal, or have police initiate pursuits in city streets put in jail for doing it, and you are other folks in the car drinking and be that end in death, all too often, for in- going to lose your vehicle. perfectly legal. You can do so because nocent Americans. I propose legislation that puts this there are about 10 States in America This is something we can do some- into law. It requires the States to where there is no prohibition against thing about. This is not some mysteri- adopt policies to comply with those the driver drinking. You can get in the ous disease. I hope some of my col- goals. And second, it requires that at car, put a key in the ignition, have one leagues who might be interested in this every law enforcement agency in this hand on the steering wheel and the legislation will join me in finally al- country there be uniform training other on a bottle of whiskey and drink lowing the Senate to make some about police pursuit, when to pursue and drive to your little heart’s content. progress. and when not to pursue. As long as you are not drunk, you Mr. President, one January morning Interestingly, I was talking to a can drive in these States. Well, there in 1993 a high speed chase occurred in county sheriff recently and I was talk- ought not be any State in this country Arlington, VA, where a teenager, driv- ing about my legislation. He said to that does not have a law prohibiting an ing a stolen vehicle and allegedly me, ‘‘It is interesting, because just the open container of liquor, of alcohol in a drunk, fled the police. As the stolen car night before, my deputies found a per- vehicle. There ought not be one. There and police cruiser raced through Falls son who was dead drunk driving in a is no justification in this country to Church, VA, the fleeing teen ran a red very dangerous way on the city streets, allow anybody to move down the high- light and crashed into a car carrying a and my deputy turned on the light and ways in a vehicle, that is a non- family on its way to Sunday morning siren to apprehend this person, and this commercial vehicle, and have drinking church. This high speed chase, one of person took off at an enormous rate of involved in the vehicle. many that occur every year, ended in speed through the city streets. Yet, sadly, there are 10 States in tragedy: One elementary principal and Later on, my deputy saw two small which you can drink and drive and you his two daughters, ages 12 and 8, were children in the back seat. My deputy are perfectly legal. You can start on killed, and the teenager driving the and the person on the radio decided be- the east coast, meander across the fleeing car was hospitalized. tween them that this was not a chase country to the west coast, and either Public outrage erupted after this in- that should continue. They broke off drink yourself or have somebody else cident, with angry citizens calling the the pursuit. in the vehicle drinking, and do so le- police department to say, ‘‘* * * a sto- An hour later, they went and ar- gally. len car is not worth a life.’’ Mr. Presi- rested the person at his home because I also believe we ought to change dent, it seems to me that we need to the police had the license number. that. Some people say that is med- ask ourselves: ‘‘Is a stolen car or a That is all they needed to do. They dling. That is the State’s judgment. traffic violation worth the cost of an could have decided that nobody is Well, I do not want my family, I do not innocent life?’’ Unfortunately, this going to outrun us and that at the end want my friends, driving from one ju- question is not being adequately an- of this, a couple kids are going to be risdiction to another, across a river or swered by hundreds of police officers dead in the street. That probably is across a State line, and discover all of who on a regular basis pursue stolen what would have happened. Fortu- a sudden in this State you can drink cars and law breakers at reckless nately, they made the right decision whiskey and drive. And it is hard to speeds through city streets. because these folks were trained and catch people who are drinking, whether There are countless other tragic ex- used proper procedures. they are drunk or sober. amples, and I want to mention just a The fact is that in a lot of law en- I do not want people to go across few. On November 25, 1994, a car carry- forcement jurisdictions, there is not those lines and discover in this juris- ing a family of 4, on their way to a adequate training about when or when diction you can drive and drink, and it movie in Houston, TX, was struck by a not to pursue. There are not adequate is fine. It is not fine with me. I want to speeding car during a high speed police policies, and there ought to be. I want change that law someday. What I chase. Innocent passengers Laura Ma- uniform training and policies across would like to see is a circumstance drid, Robert Romero, and Maria Torres this country on police pursuits. where we have decided as a country, Romero later died as a result of inju- This issue affects the lives of lit- much of what the European countries ries suffered in the accident. In fact, erally thousands of Americans. I would have already decided, that drinking that same year in Houston, a total of 11 like to see—and my legislation pro- and driving turns drunk people into people were killed, amid 191 hot pursuit vides for it—that in exchange for re- murderers. We ought to do what is nec- chases, prompting the Houston police ceiving the highway safety funds, we essary to tell the American people you department to reexamine and ulti- insist that States meet a list of cri- cannot drink and drive. To do so will mately change its pursuit policy. teria. I simply add to the list one fea- cause severe penalties. In March of this year, police officers ture. That feature is that you shall The legislation I will introduce this collided with a pickup truck while on have certain punishment for those that afternoon, dealing with police pursuit, pursuit, killing three passengers and flee, and the punishment is that they sends a message that is just as strong injuring four others in Los Angeles, will do jail time and lose their vehi- on the issue of fleeing from police. If CA. That same month in Miami, FL, a cles. In turn, my legislation also re- the police are trying to apprehend you woman was killed when a car full of quires a certification that the law en- and you flee from the police, you will burglary suspects being chased by po- forcement jurisdictions have uniform face certain and tough penalties. lice sped off a highway, broad-siding policies and training on police pursuit. I hope we will consider and discuss her car. That very same day, three po- So I intend to offer this legislation such discuss legislation this year. I lice cruisers in Florida City, FL, again, and I well understand that it is know it comes from things that have chased a car at speeds of up to 100 hard to pass legislation like this. But happened in my family. I have lost two miles per hour. The chase began when June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8385 police attempted to pull over a woman still no coordinated effort in this coun- (5) the Federal Government should provide who was actually driving too slowly. try to attack this problem. an incentive for States to enact laws to pre- The woman sped away from the police, The legislation that I am introducing vent high speed motor vehicle pursuits; and eventually veered into oncoming today would require the enactment of (6) to demonstrate leadership in response to the national problem of high speed motor traffic, killing herself and two young State laws making it unlawful for the vehicle pursuits, all Federal law enforcement men in an oncoming car. driver of a motor vehicle to take eva- agencies should— These were senseless deaths that sive action if pursued by police and (A) develop policies and procedures govern- could have—and should have—been would establish a standard minimum ing motor vehicle pursuits; and avoided. All of these deaths the result penalty of 3 months imprisonment and (B) provide assistance to State and local of high speed chases, that simply did the seizure of the driver’s vehicle. In law enforcement agencies in instituting such not justify putting so many innocent addition, my bill would require each policies and procedures and in conducting public agency in every State to estab- training; and lives in the line of fire. Something’s (7) the policies referred to in paragraph (6) got to be done. lish a hot pursuit policy and provide should balance reasonably the need— Approximately hundreds of Ameri- that all law enforcement officers re- (A) to apprehend promptly dangerous cans are killed and many thousands of ceive adequate training in accordance criminals; and people are injured every year as a re- with that policy. (B) to address the threat to the safety of sult of high speed chases that are start- I believe that these requirements, if the general public posed by high speed pur- ed when motorists, whether out of passed, will demonstrate strong Fed- suits. fright, panic, or guilt, flee at high eral leadership in responding to this SEC. 3. MOTOR VEHICLE PURSUIT REQUIRE- problem. I am happy to be able to note MENTS FOR STATE HIGHWAY SAFE- speeds instead of stopping when a po- TY PROGRAMS. that one important aspect of this issue, lice vehicle turns on its lights and Section 402(b)(1) of title 23, United States siren. Some police become determined a severe under reporting of the acci- Code, is amended— to apprehend the fleeing motorist at all dents and deaths caused by police pur- (1) in each of subparagraphs (A) through costs, what is alarming is that about 60 suits, has been addressed under provi- (D), by striking the period at the end and in- to 80 percent of all police pursuits are sions enacted in the Intermodal Sur- serting a semicolon; originated for minor traffic violations. face Transportation Efficiency Act of (2) in subparagraph (E), by striking the pe- The result is that the safety of the gen- 1991. Under that statute, the Secretary riod at the end and inserting ‘‘; and’’; and (3) by adding at the end the following new eral public—the dangers that will be of Transportation is required to begin to collect accident statistics from each subparagraph: created by a high-speed chase in city ‘‘(F) on and after January 1, 1997, have in traffic through stop signs and traffic State, including statistics on deaths effect throughout the State— lights—becomes secondary to catching and injuries caused by police pursuits. ‘‘(i) a law that— someone whose initial offense may Mr. President, the problem of hot ‘‘(I) makes it unlawful for the driver of a have been no greater than driving a car pursuits is not an easy issue to solve. I motor vehicle to increase speed or to take with a broken tail light. Tragically, as understand that it will always be dif- any other deliberately evasive action if a law in the high-speed chase last January in ficult for police officers to judge when enforcement officer clearly signals the driver to stop the motor vehicle; and Virginia, many people are dying unnec- a chase is getting out of hand and the public safety best served by holding ‘‘(II) provides that any driver who violates essarily from these ill advised pursuits. that law shall be subject to a minimum pen- What needs to happen is for every back. However, we can make things alty of— single law enforcement jurisdiction in better if we do everything we can to ‘‘(aa) imprisonment for a period of not less the United States to adopt a reasoned, ensure that police officers are trained 3 months; and well-balanced pursuit policy. Police of- on how best to make these difficult ‘‘(bb) seizure of the motor vehicle at issue; ficers should be trained to comply with judgments and if we send a message to and their departments’ pursuit policies and motorists that if you flee, you will do ‘‘(ii) a requirement that each State agency and each agency of a political subdivision of regularly retrained if needed to guar- time in jail and lose your car. I ask unanimous consent that the the State that employs law enforcement offi- antee that all citizens, both civilians cers who, in the course of employment, may and police, receive the benefit of uni- full text of this bill be printed in the conduct a motor vehicle pursuit shall— form awareness of this problem. A RECORD and I urge my colleagues to ‘‘(I) have in effect a policy that meets re- drive across country should not be a support this important measure. quirements that the Secretary shall estab- pot luck regarding one’s chances of There being no objection, the bill was lish concerning the manner and cir- being maimed or killed by a police pur- ordered to be printed in the RECORD, as cumstances in which a motor vehicle pursuit suit. We must strive for universal at- follows: may be conducted by law enforcement offi- cers; S. 923 tention to this public safety problem. ‘‘(II) train all law enforcement officers of In addition, we need to focus on the Be it enacted by the Senate and House of Rep- the agency in accordance with the policy re- people who are initiating these resentatives of the United States of America in ferred to in subclause (I); and chases—the people who are fleeing Congress assembled, ‘‘(III) for each fiscal year, transmit to the from police. The punishment for flee- SECTION 1. SHORT TITLE. chief executive officer of the State a report ing the police should be certain and se- This Act may be cited as the ‘‘National Po- containing information on each motor vehi- vere. People should be aware that if lice Pursuit Policy Act of 1995’’. cle pursuit conducted by a law enforcement officer of the agency.’’. they flee they will pay a big price for SEC. 2. FINDINGS. doing so. The Congress finds that— SEC. 4. REPORTING REQUIREMENT. (1) accidents occurring as a result of high (a) IN GENERAL.—Not later than 180 days I rise today, Mr. President, to intro- speed motor vehicle pursuits of fleeing after the date of enactment of this Act, the duce the National Police Pursuit Pol- motor vehicles by law enforcement officers Attorney General of the United States, the icy Act of 1995. It is my hope that this are becoming increasingly common across Secretary of Agriculture, the Secretary of legislation, if enacted, will help pre- the United States; the Interior, the Secretary of the Treasury, vent tragic losses like the episode that (2) the extent of the problem of those pur- the Chief of the Capitol Police, and the Ad- occurred in 1993 in Arlington, as well as suits is evident despite significant ministrator of General Services shall each the thousands of other tragedies that underreporting; transmit to the Congress a report contain- (3) because the problem of those pursuits is ing— occur each year all across America, in- extensive, it is essential for all law enforce- (1) the policy of the department or agency cluding my own State of North Dakota. ment agencies to develop and implement headed by that individual concerning motor It’s also my hope that the legislation policies and training procedures for dealing vehicle pursuits by law enforcement officers I introduce today will reverse the trend with high speed motor vehicle pursuits; of that department or agency; and of the past several years of ever in- (4) a high speed motor vehicle pursuit in a (2) a description of the procedures that the creasing high-speed police pursuits community by a law enforcement officer department or agency uses to train law en- that have caused human losses to should be treated in the same manner as the forcement officers in the implementation of steadily mount. firing of a police firearm because a high the policy referred to in paragraph (1). speed motor vehicle pursuit involves the use (b) REQUIREMENT.—Each policy referred to Although we are finally seeing some of a deadly force with the potential for caus- in subsection (a)(1) shall meet the require- initiative being taken by various ing harm or death to pedestrians and motor- ments established by the Secretary of States and local communities, there is ists; Transportation pursuant to section S 8386 CONGRESSIONAL RECORD — SENATE June 14, 1995 402(b)(1)(F)(ii)(I) of title 23, United States idly private sector deployment of ad- ‘‘(C) makes or causes the telephone of an- Code, concerning the manner and cir- vanced telecommunications and infor- other repeatedly or continuously to ring, cumstances in which a motor vehicle pursuit mation technologies and services to all with intent to harass any person at the may be conducted. Americans by opening all tele- called number; or f ‘‘(D) makes repeated telephone calls or re- communications markets to competi- peatedly initiates communication with a ADDITIONAL COSPONSORS tion, and for other purposes. telecommunications device, during which At the request of Ms. MOSELEY- conversation or communication ensues, sole- S. 240 BRAUN the name of the Senator from ly to harass any person at the called number At the request of Mr. DODD, the name Montana [Mr. BURNS] was added as a or who receives the communication; or of the Senator from Kentucky [Mr. cosponsor of amendment No. 1282 pro- ‘‘(2) knowingly permits any telecommuni- FORD] was added as a cosponsor of S. posed to S. 652, supra. cations facility under his control to be used 240, a bill to amend the Securities Ex- for any activity prohibited by paragraph (1) AMENDMENT NO. 1288 change Act of 1934 to establish a filing with the intent that it be used for such ac- At the request of Mr. LEAHY the tivity. deadline and to provide certain safe- names of the Senator from Minnesota guards to ensure that the interests of shall be fined not more than $100,000 or im- [Mr. WELLSTONE] and the Senator from investors are well protected under the prisoned not more than two years, or both.’’; Virginia [Mr. ROBB] were added as co- and implied private action provisions of the sponsors of amendment No. 1288 pro- (2) by adding at the end the following new Act. posed to S. 652, an original bill to pro- subsections: S. 388 vide for a procompetitive, deregulatory ‘‘(d) Whoever— ‘‘(1) knowingly within the United States or At the request of Ms. SNOWE, the national policy framework designed to names of the Senator from Alaska [Mr. in foreign communications with the United accelerate rapidly private sector de- States by means of telecommunications de- STEVENS] and the Senator from Florida ployment of advanced telecommuni- vice makes or makes available any obscene [Mr. MACK] were added as cosponsors of cations and information technologies communication in any form including any S. 388, a bill to amend title 23, United and services to all Americans by open- comment, request, suggestion, proposal, or States Code, to eliminate the penalties ing all telecommunications markets to image regardless of whether the maker of for noncompliance by States with a competition, and for other purposes. such communication placed the call or initi- program requiring the use of motor- ated the communications; or f cycle helmets, and for other purposes. ‘‘(2) knowingly permits any telecommuni- cations facility under such person’s control S. 426 AMENDMENTS SUBMITTED to be used for an activity prohibited by sub- At the request of Mr. WARNER, the section (d)(1) with the intent that it be used name of the Senator from Pennsylva- for such activity; THE TELECOMMUNICATIONS COM- nia [Mr. SANTORUM] was added as a co- shall be fined not more than $100,000 or im- sponsor of S. 426, a bill to authorize the PETITION AND DEREGULATION prisoned not more than two years or both. Alpha Phi Alpha Fraternity to estab- ACT OF 1995 COMMUNICATIONS (e) Whoever— lish a memorial to Martin Luther King, DECENCY ACT OF 1995 ‘‘(1) knowingly within the United States or Jr., in the District of Columbia, and for in foreign communications with the United other purposes. States by means of telecommunications de- EXON (AND OTHERS) AMENDMENT vice makes or makes available any indecent S. 456 NO. 1362 communication in any form including any At the request of Mr. BRADLEY, the comment, request, suggestion, proposal, name of the Senator from Nevada [Mr. Mr. EXON (for himself, Mr. COATS, image, to any person under 18 years of age REID] was added as a cosponsor of S. Mr. BYRD, and Mr. HEFLIN) proposed an regardless of whether the maker of such 456, a bill to improve and strengthen amendment to amendment No. 1288 communication placed the call or initiated the child support collection system, proposed by Mr. LEAHY to the bill (S. the communication; or and for other purposes. 652) to provide for a pro-competitive, ‘‘(2) knowingly permits any telecommuni- cations facility under such person’s control S. 641 de-regulatory national policy frame- work designed to accelerate rapidly to be used for an activity prohibited by para- At the request of Mrs. KASSEBAUM, graph (l) with the intent that it be used for the name of the Senator from Utah private sector deployment of advanced such activity, telecommunications and information [Mr. BENNETT] was added as a cospon- shall be fined not more than $100,000 or im- sor of S. 641, a bill to reauthorize the technologies and services to all Ameri- prisoned not more than two years or both. Ryan White CARE Act of 1990, and for cans by opening all telecommuni- ‘‘(f) Defenses to the subsections (a), (d), other purposes. cations markets to competition, and and (e), restrictions on access, judicial rem- for other purposes; as follows: edies respecting restrictions for persons pro- S. 770 In lieu of the matter to be inserted, insert viding information services and access to in- At the request of Mr. DOLE, the formation services— names of the Senator from Kentucky the following: ‘‘SEC. . OBSCENE OR HARASSING USE OF TELE- ‘‘(1) No person shall be held to have vio- [Mr. FORD] and the Senator from Ten- COMMUNICATIONS FACILITIES lated subsection (a), (d), or (e) solely for pro- nessee [Mr. FRIST] were added as co- UNDER THE COMMUNICATIONS ACT viding access or connection to or from a fa- sponsors of S. 770, a bill to provide for 1934. cility, system, or network over which that the relocation of the United States (a) OFFENSES.—Section 223 (47 U.S.C. 223) is person has no control, including related ca- Embassy in Israel to Jerusalem, and amended— pabilities which are incidental to providing ‘‘(1) by striking subsection (a) and insert- for other purposes. access or connection. This subsection shall ing in lieu thereof: not be applicable to an individual who is SENATE RESOLUTION 103 ‘‘(a) Whoever— owned or controlled by, or a conspirator At the request of Mr. DOMENICI, the ‘‘(1) in the District of Columbia or in inter- with, an entity actively involved in the cre- names of the Senator from New Jersey state or foreign communications ation, editing or knowing distribution of [Mr. BRADLEY] and the Senator from ‘‘(A) by means of telecommunications de- communications which violate this section. vice knowingly— Wisconsin [Mr. KOHL] were added as co- ‘‘(2) No employer shall be held liable under ‘‘(i) makes, creates, or solicits, and sponsors of Senate Resolution 103, a this section for the actions of an employee or ‘‘(ii) initiates the transmission of, agent unless the employee’s or agent’s con- resolution to proclaim the week of Oc- any comment, request, suggestion, proposal, duct is within the scope of this employment tober 15 through October 21, 1995, as image, or other communication which is ob- or agency and the employer has knowledge National Character Counts Week, and scene, lewd, lascivious, filthy, or indecent, of, authorizes, or ratifies the employee’s or for other purposes. with intent to annoy, abuse, threaten, or agent’s conduct. AMENDMENT NO. 1282 harass another person; ‘‘(3) It is a defense to prosecution under At the request of Mr. ROBB his name ‘‘(B) makes a telephone call or utilizes a subsection (a), (d)(2), or (e) that a person has was added as a cosponsor of amend- telecommunications device, whether or not taken reasonable, effective and appropriate conversation or communication ensues, actions in good faith to restrict or prevent ment No. 1282 proposed to S. 652, an without disclosing his identity and with in- the transmission of, or access to a commu- original bill to provide for a procom- tent to annoy, abuse, threaten, or harass any nication specified in such subsections, or petitive, deregulatory national policy person at the called number or who receives complied with procedures as the Commission framework designed to accelerate rap- the communication; may prescribe in furtherance of this section. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8387

Until such regulations become effective, it is AMENDMENT NO. 1363 edies respecting restrictions for persons pro- a defense to prosecution that the person has In lieu of the matter to be inserted, insert viding information services and access to in- complied with the procedures prescribed by the following: formation services— regulation pursuant to subsection (b)(3). ‘‘SEC. . OBSCENE OR HARASSING USE OF TELE- ‘‘(1) No person shall be held to have vio- Nothing in this subsection shall be construed COMMUNICATIONS FACILITIES lated subsections (a), (d), or (e) solely for to treat enhanced information services as UNDER THE COMMUNICATIONS ACT providing access or connection to or from a common carriage. 1934. facility, system, or network over which that ‘‘(4) No cause of action may be brought in (a) OFFENSES.—Section 223 (47 U.S.C. 223) is person has no control, including related ca- any court or administrative agency against amended— pabilities which are incidental to providing any person on account of any activity which ‘‘(1) by striking subsection (a) and insert- access or connection. This subsection shall is not in violation of any law punishable by ing in lieu thereof: not be applicable to an individual who is criminal or civil penalty, which activity the ‘‘(a) Whoever— owned or controlled by, or a conspirator person has taken in good faith to implement ‘‘(1) in the District of Columbia or in inter- with, an entity actively involved in the cre- a defense authorized under this section or state or foreign communications ation, editing or knowing distribution of otherwise to restrict or prevent the trans- ‘‘(A) by means of telecommunications de- communications which violate this section. vice knowingly— mission of, or access to, a communication ‘‘(2) No employer shall be held liable under ‘‘(i) makes, creates, or solicits, and specified in this section. this section for the actions of an employee or ‘‘(ii) initiates the transmission of, ‘‘(g) No State or local government may im- agent unless the employee’s or agent’s con- pose any liability for commercial activities any comment, request, suggestion, proposal, duct is within the scope of his employment or actions by commercial entities in connec- image, or other communication which is ob- or agency and the employer has knowledge tion with an activity or action which con- scene, lewd, lascivious, filthy, or indecent, of, authorizes, or ratifies the employee’s or stitutes a violation described in subsection with intent to annoy, abuse, threaten, or agent’s conduct. harass another person; (a)(2), (d)(2), or (e)(2) that is inconsistent ‘‘(3) It is a defense to prosecution under ‘‘(B) makes a telephone call or utilizes a with the treatment of those activities or ac- subsection (a), (d)(2), or (e) that a person has telecommunications device, whether or not tions under this section provided, however, taken reasonable, effective and appropriate conversation or communication ensues, that nothing herein shall preclude any State actions in good faith to restrict or prevent without disclosing his identity and with in- or local government from enacting and en- the transmission of, or access to a commu- tent to annoy, abuse, threaten, or harass any forcing complementary oversight, liability, nication specified in such subsections, or person at the called number or who receives and regulatory systems, procedures, and re- complied with procedures as the Commission quirements, so long as such systems, proce- the communication; ‘‘(C) makes or causes the telephone of an- may prescribe in furtherance of this section. dures, and requirements govern only intra- Until such regulations become effective, it is state services and do not result in the impo- other repeatedly or continuously to ring, with intent to harass any person at the a defense to prosecution that the person has sition of inconsistent rights, duties or obli- complied with the procedures prescribed by gations on the provision of interstate serv- called number; or ‘‘(D) makes repeated telephone calls or re- regulations pursuant to subsection (b)(3). ices. Nothing in this subsection shall pre- Nothing in this subsection shall be construed clude any State or local government from peatedly initiates communication with a telecommunications device, during which to treat enhanced information services as governing conduct not covered by this sec- common carriage. tion. conversation or communication ensues, sole- ‘‘(4) No cause of action may be brought in ‘‘(h) Nothing in subsection (a), (d), (e), or ly to harass any person at the called number any court or administrative agency against (f) or in the defenses to prosecution under or who receives the communication; any person on account of any activity which (a), (d), or (e) shall be construed to affect or ‘‘(2) knowingly permits any telecommuni- is not in violation of any law punishable by limit the application or enforcement of any cations facility under his control to be used criminal or civil penalty, which activity the other Federal law. for any activity prohibited by paragraph (1) person has taken in good faith to implement ‘‘(i) The use of the term ‘telecommuni- with the intent that it be used for such ac- a defense authorized under this section or cations device’ in this section shall not im- tivity, otherwise to restrict or prevent the trans- pose new obligations on (one-way) broadcast shall be fined not more than $100,000 or im- mission of, or access to, a communication radio or (one-way) broadcast television oper- prisoned not more than two years, or both.’’; specified in this section. ators licensed by the Commission or (one- and way) cable service registered with the Fed- (2) by adding at the end the following new ‘‘(g) No State or local government may im- eral Communications Commission and cov- subsections: pose any liability for commercial activities ered by obscenity and indecency provisions ‘‘(d) Whoever— or actions by commercial entities in connec- elsewhere in this Act.’’ ‘‘(1) knowingly within the United States or tion with an activity or action which con- ‘‘(j) Within two years from the date of en- in foreign communications with the United stitutes a violation described in subsection actment and every two years thereafter, the States by means of telecommunications de- (a)(2), (d)(2), or (e)(2) that is inconsistent Commission shall report on the effectiveness vice makes or makes available any obscene with the treatment of those activities or ac- of this section. communication in any form including any tions under this section provided, however, comment, request, suggestion, proposal, or that nothing herein shall preclude any State SEC. . OBSCENE PROGRAMMING ON CABLE TEL- or local government from enacting and en- EVISION. image regardless of whether the maker of such communication placed the call or initi- forcing complementary oversight, liability, Section 639 (47 U.S.C. 559) is amended by and regulatory systems, procedures, and re- striking ‘‘$10,000’’ and inserting ‘‘$100,000’’. ated the communications; or ‘‘(2) knowingly permits any telecommuni- quirements, so long as such systems, proce- SEC. . BROADCASTING OBSCENE LANGUAGE ON cations facility under such person’s control dures, and requirements govern only intra- RADIO. to be used for an activity prohibited by sub- state services and do not result in the impo- Section 1464 of Title 18, United States section (d)(1) with the intent that it be used sition of inconsistent rights, duties or obli- Code, is amended by striking out $10,000’’ and for such activity; gations on the provision of interstate serv- inserting ‘‘$100,000’’. shall be fined not more than $100,000 or im- ices. Nothing in this subsection shall pre- SEC. . SEPARABILITY. prisoned not more than two years or both. clude any State or local government from ‘‘(a) If any provision of this Title, includ- (e) Whoever— governing conduct not covered by this sec- ing amendments to this Title or the applica- ‘‘(1) knowingly within the United States or tion. tion thereof to any person or circumstance is in foreign communications with the United (h) Nothing in subsection (a), (d), (e), or (f) held invalid, the remainder of this Title and States by means of telecommunications de- or in the defenses to prosecution under (a), the application of such provision to other vice makes or makes available any indecent (d), or (e) shall be construed to affect or persons or circumstances shall not be af- communication in any form including any limit the application or enforcement of any fected thereby.’’. comment, request, suggestion, proposal, other Federal law. SEC. . ADDITIONAL PROHIBITION ON BILLING image, to any person under 18 years of age ‘‘(i) The use of the term ‘telecommuni- FOR TOLL-FREE TELEPHONE CALLS. regardless of whether the maker of such cations device’ in this section shall not im- communication placed the call or initiated pose new obligations on (one-way) broadcast the communication; or radio or (one-way) broadcast television oper- EXON (AND COATS) AMENDMENTS ‘‘(2) knowingly permits any telecommuni- ators licensed by the Commission or (one- NOS. 1363–1364 cations facility under such person’s control way) cable service registered with the Fed- to be used for an activity prohibited by para- (Ordered to lie on the table.) eral Communications Commission and cov- graph (1) with the intent that it be used for ered by obscenity and indecency provisions Mr. EXON (for himself and Mr. such activity, elsewhere in this Act.’’ COATS) submitted 2 amendments in- shall be fined not more than $100,000 or im- ‘‘(j) Within two years from the date of en- tended to be proposed by them to prisoned not more than two years or both. actment and every two years thereafter, the amendments to the bill S. 652, supra, as ‘‘(f) Defenses to the subsections (a), (d), Commission shall report on the effectiveness follows: and (e), restrictions on access, judicial rem- of this section. S 8388 CONGRESSIONAL RECORD — SENATE June 14, 1995 SEC. . DISSEMINATION OF INDECENT MATERIAL conversation or communication ensues, sole- ‘‘(4) No cause of action may be brought in ON CABLE TELEVISION ly to harass any person at the called number any court or administrative agency against Section 1464 of title 18, United States Code, or who receives the communication; or any person on account of any activity which is amended by inserting after section 1464 ‘‘(2) knowingly permits any telecommuni- is not in violation of any law punishable by the following: cations facility under his control to be used criminal or civil penalty, which activity the ‘‘(a) Whoever knowingly disseminates any for any activity prohibited by paragraph (1) person has taken in good faith to implement indecent material on any channel provided with the intent that it be used for such ac- a defense authorized under this section or to all subscribers as part of a basic cable tel- tivity, otherwise to restrict or prevent the trans- evision package shall be imprisoned not shall be fined not more than $100,000 or im- mission of, or access to, a communication more than two years or fined under this prisoned not more than two years, or both.’’; specified in this section. title, or both. and ‘‘(g) No State or local government may im- ‘‘(b) As used in this section, the term ‘basic (2) by adding at the end the following new pose any liability for commercial activities cable television package’ means those chan- subsections: or actions by commercial entities in connec- nels provided by any means for a basic cable ‘‘(d) Whoever— tion with an activity or action which con- subscription fee to all cable subscribers, in- ‘‘(1) knowingly within the United States or stitutes a violation described in subsection cluding ‘basic cable service’ and ‘other pro- in foreign communications with the United (a)(2), (d)(2), or (e)(2) that is inconsistent gramming service’ as those terms are defined States by means of telecommunications de- with the treatment of those activities or ac- in section 602 of the Communications Act of vice makes or makes available any obscene tions under this section provided, however, 1934 but does not include separate channels communication in any form including any that nothing herein shall preclude any State that are provided to subscribers upon spe- comment, request, suggestion, proposal, or or local government from enacting and en- cific request, whether or not a separate or image regardless of whether the maker of forcing complementary oversight, liability, additional fee is charged.’’. such communication placed the call or initi- and regulatory systems, procedures, and re- ‘‘(c) CLERICAL AMENDMENT.—The table of ated the communications; or quirements, so long as such systems, proce- sections at the beginning of chapter 71 of ‘‘(2) knowingly permits any telecommuni- dures, and requirements govern only intra- title 18, United states Code, is amended by cations facility under such person’s control state services and do not result in the impo- inserting after the item relating to section to be used for an activity prohibited by sub- sition of inconsistent rights, duties or obli- 1464 the following new item: section (d)(1) with the intent that it be used gations on the provision of interstate serv- ‘‘1464A. Dissemination of indecent material for such activity; ices. Nothing in this subsection shall pre- on cable television.’’. shall be fined not more than $100,000 or im- clude any State or local government from SEC. . OBSCENE PROGRAMMING ON CABLE TEL- prisoned not more than two years or both. governing conduct not covered by this sec- EVISION. ‘‘(e) Whoever— tion. Section 639 (47 .S.C. 559) is amended by ‘‘(1) knowingly within the United States or (h) Nothing in subsection (a), (d), (e), or (f) striking ‘‘$10,000’’ and inserting $100,000’’. in foreign communications with the United or in the defenses to prosecution under (a), (d), or (e) shall be construed to affect or SEC. . BROADCASTING OBSCENE LANGUAGE ON States by means of telecommunications de- RADIO. vice makes or makes available any indecent limit the application or enforcement of any Section 1464 of Title 18, United States communication in any form including any other Federal law. ‘‘(i) The use of the term ‘telecommuni- Code, is amended by striking our $10,000’’ and comment, request, suggestion, proposal, cations device’ in this section shall not im- inserting ‘‘$100,000’’. image, to any person under 18 years of age pose new obligations on (one-way) broadcast SEC. . SEPARABILITY regardless of whether the maker of such communication placed the call or initiated radio or (one-way) broadcast television oper- ‘‘(a) If any provision of this Title, includ- ators licensed by the Commission or (one- ing amendments to this Title or the applica- the communication; or ‘‘(2) knowingly permits any telecommuni- way) cable service registered with the Fed- tion thereof to any person or circumstance is eral Communications Commission and cov- held invalid, the remainder of this Title and cations facility under such person’s control to be used for an activity prohibited by para- ered by obscenity and indecency provisions the application of such provision to other elsewhere in this Act.’’ persons or circumstances shall not be af- graph (1) with the intent that it be used for such activity, ‘‘(j) Within two years from the date of en- fected thereby.’’. actment and every two years thereafter, the SEC. . ADDITIONAL PROHIBITION FOR BILLING shall be fined not more than $100,000 or im- Commission shall report on the effectiveness FOR TOLL-FREE TELEPHONE CALLS. prisoned not more than two years or both. of this section.’’ ‘‘(f) Defenses to the subsections (a), (d), (e) CONFORMING AMENDMENT.—The section and (e), restrictions on access, judicial rem- AMENDMENT NO. 1364 heading for section 223 is amended to read as edies respecting restrictions for persons pro- follows: In lieu of the matter proposed to be in- viding information services and access to in- serted, insert the following: ‘‘SEC. 223. OBSCENE OR HARASSING UTILIZATION formation services— OF TELECOMMUNICATIONS DEVICES SEC. 402. OBSCENE OR HARASSING USE OF TELE- ‘‘(1) No person shall be held to have vio- AND FACILITIES IN THE DISTRICT COMMUNICATIONS FACILITIES lated subsections (a), (d), or (e) solely for OF COLUMBIA OR IN INTERSTATE UNDER THE COMMUNICATIONS ACT providing access or connection to or from a OR FOREIGN COMMUNICATIONS’’. OF 1934. facility, system, or network over which that SEC. 403. OBSCENE PROGRAMMING ON CABLE (a) OFFENSES.—Section 223 (47 U.S.C. 223) is person has no control, including related ca- TELEVISION. amended— pabilities which are incidental to providing Section 639 (47 U.S.C. 559) is amended by (1) by striking subsection (a) and inserting access or connection. This subsection shall striking ‘‘$10,000’’ and inserting ‘‘100,000’’. in lieu thereof: not be applicable to an individual who is SEC. 404. BROADCASTING OBSCENE LANGUAGE ‘‘(a) Whoever— owned or controlled by, or a conspirator ON RADIO. ‘‘(1) in the District of Columbia or in inter- with, an entity actively involved in the cre- Section 1464 of title 18, United States Code, state or foreign communications ation, editing or knowing distribution of is amended by striking out ‘‘$10,000’’ and in- ‘‘(A) by means of telecommunications de- communications which violate this section. serting ‘‘$100,000’’. vice knowingly— ‘‘(2) No employer shall be held liable under SEC. 405. DISSEMINATION OF INDECENT MATE- ‘‘(i) makes, creates, or solicits, and this section for the actions of an employee or RIAL ON CABLE TELEVISION SERV- ‘‘(ii) initiates the transmission of, agent unless the employee’s or agent’s con- ICE. any comment, request, suggestion, proposal, duct is within the scope of his employment (a) IN GENERAL.—Chapter 71 of title 18, image, or other communication which is ob- or agency and the employer has knowledge United States Code, is amended by inserting scene, lewd, lascivious, filthy, or indecent, of, authorizes, or ratifies the employee’s or after section 1464 the following: with intent to annoy, abuse, threaten, or agent’s conduct. ‘‘§ 1464A. Dissemination of indecent material harass another person; ‘‘(3) It is a defense to prosecution under on cable television ‘‘(B) makes a telephone call or utilizes a subsection (a), (d)(2), or (e) that a person has ‘‘(a) Whoever knowingly disseminates any telecommunications device, whether or not taken reasonable, effective and appropriate indecent material on any channel provided conversation or communication ensues, actions in good faith to restrict or prevent to all subscribers as part of a basic cable tel- without disclosing his identity and with in- the transmission of, or access to a commu- evision package shall be imprisoned not tent to annoy, abuse, threaten, or harass any nication specified in such subsections, or more than two years or fined under this person at the called number or who receives complied with procedures as the Commission title, or both. the communication; may prescribe in furtherance of this section. ‘‘(b) As used in this section, the term ‘basic ‘‘(C) makes or causes the telephone of an- Until such regulations become effective, it is cable television package’ means those chan- other repeatedly or continuously to ring, a defense to prosecution that the person has nels provided by any means for a basic cable with intent to harass any person at the complied with the procedures prescribed by subscription fee to all cable subscribers, in- called number; or regulation pursuant to subsection (b)(3). cluding ‘basic cable service’ and ‘other pro- ‘‘(D) makes repeated telephone calls or re- Nothing in this subsection shall be construed gramming service’ as those terms are defined peatedly initiates communication with a to treat enhanced information services as in section 602 of the Communications Act of telecommunications device, during which common carriage. 1934 but does not include separate channels June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8389

that are provided to subscribers upon spe- 203(a) of this Act, a local exchange carrier AMENDMENT NO. 1372 cific request, whether or not a separate or (or any affiliate of such carrier owned by, op- On page 2, line 2, insert ‘‘150 percent of’’ be- additional fee is charged.’’. erated by, controlled by, or under common fore ‘‘the percentage’’. ‘‘(c) CLERICAL AMENDMENT.—The table of control with such carrier) may purchase or sections at the beginning of chapter 71 of otherwise acquire more than a 10 percent fi- AMENDMENT NO. 1373 title 18, United States Code, is amended by nancial interest, or any management inter- On page 2, line 2, insert ‘‘125 percent of’’ be- inserting after the item relating to section est, or enter into a joint venture or partner- fore ‘‘the percentage’’. 1464 the following new item: ship with any cable system described in sub- section (b) within the local exchange car- ‘‘1464A. Dissemination of indecent material AMENDMENT NO. 1374 on cable television.’’. rier’s telephone service area. (b) COVERED CABLE SYSTEMS.—Subsection On page 2, line 2, insert ‘‘175 percent of’’ be- SEC. SEPARABILITY. (a) applies to any cable system serving no fore ‘‘the percentage’’. If any pronoun of this Title, including more than 20,000 cable subscribers of which amendments to this Title or the application no more than 12,000 of those subscribers live AMENDMENT NO. 1375 thereof to any person or circumstance is held within an urbanized area, as defined by the On page 2, line 2, insert ‘‘200 percent of’’ be- invalid, the remainder of this Title and the Bureau of the Census. fore ‘‘the percentage’’. application of such provision to other per- (c) DEFINITION.—For purposes of this sec- sons or circumstances shall not be affected tion, the term ‘‘local exchange carrier’’ has thereby. LEAHY AMENDMENT NO. 1376 the meaning given such term in section 3(kk) of the Communications Act of 1934, as added (Ordered to lie on the table.) FEINGOLD AMENDMENT NO. 1365 by section 8(b) of this Act. Mr. LEAHY submitted an amend- (Ordered to lie on the table.) ment intended to be proposed by him Mr. FEINGOLD submitted an amend- BREAUX AMENDMENT NO. 1368 to amendment No. 1326 proposed by Mr. ment intended to be proposed by him (Ordered to lie on the table.) GORTON to the bill S. 652, supra; as fol- to an amendment to the bill S. 652, Mr. BREAUX submitted an amend- lows: supra; as follows: ment intended to be proposed by him Strike all after the first word and insert in Strike all after the first word of the lan- to an amendment to the bill S. 652, lieu thereof the following: guage proposed to be inserted and insert in supra; as follows: REPORT ON MEANS OF RESTRICTING ACCESS TO UNWANTED MATERIAL IN INTERACTIVE lieu thereof the following: ‘‘nothing in this In the amendment, after the first word, in- subsection shall prevent a State from order- TELECOMMUNICATIONS SYSTEMS.— sert the following: (1) REPORT.—Not later than 150 days after ing the implementation of toll dialing parity ‘‘Notwithstanding any other provisions of the date of the enactment of this Act, the in an intraLATA area by a Bell operating this Act. Attorney General shall submit to the Com- company before or after the Bell operating (ii) Except for single-LATA States, a State mittees on the Judiciary of the Senate and company has been granted authority under may not require a Bell operating company to the House of Representatives a report con- this subsection to provide interLATA serv- implement toll dialing parity in an intra- taining— ices in that area. LATA area before a Bell operating company (A) an evaluation of the enforceability has been granted authority under this sub- with respect to interactive media of current HEFLIN AMENDMENT NO. 1366 section to provide inter-LATA services in criminal laws governing the distribution of that area or before three years after the date Mr. HEFLIN submitted an amend- obscenity over computer networks and the of enactment of the Telecommunications creation and distribution of child pornog- ment intended to be proposed by him Act, whichever is earlier. Nothing in this raphy by means of computers; to an amendment to the bill S. 652, clause precludes a State from issuing an (B) an assessment of the Federal, State, supra; as follows: order requiring toll dialing parity in an and local law enforcement resources that are At the appropriate place in the amend- intra-LATA area prior to either such date so currently available to enforce such laws; ment, insert the following: long as such order does not take effect until (C) an evaluation of the technical means after the earlier of either such dates.’’ SEC. ———. AUTHORITY TO ACQUIRE CABLE SYS- available— TEMS. (i) to enable parents to exercise control (a) IN GENERAL.—Notwithstanding the pro- STEVENS AMENDMENT NO. 1369 over the information that their children re- visions of section 613(b)(6) of the Commu- ceive by interactive telecommunications (Ordered to lie on the table.) systems so that children may avoid violent, nications Act of 1934, as added by section Mr. STEVENS submitted an amend- 213(a) of this Act, or any other provision of sexually explicit, harassing, offensive, and law, a local exchange carrier (or any affiliate ment intended to be proposed by him other unwanted material on such systems; of such carrier owned by, operated by, con- to an amendment to the bill S. 652, (ii) to enable other users of such systems trolled by, or under common control with supra; as follows: to exercise control over the commercial and such carrier) may obtain a controlling inter- On page 6 of amendment number 1300, be- noncommercial information that they re- est in, management interest in, or enter into ginning with ‘‘Further,’’ on line 23, strike all ceive by such systems so that such users a joint venture or partnership with any cable through the end of line 1 on page 7. may avoid violent, sexually explicit, system described in subsection (b). harassing, offensive, and other unwanted ma- (b) COVERED CABLE SYSTEMS.—Subsection terial on such systems; and (a) applies to any cable system that serves STEVENS AMENDMENT NO. 1370 (iii) to promote the free flow of informa- incorporated or unincorporated places or ter- (Ordered to lie on the table.) tion, consistent with the values expressed in ritories having fewer than 50,000 inhabitants Mr. STEVENS submitted an amend- the Constitution, in interactive media; and if more than ——— percent the subscriber ment intended to be proposed by him (D) recommendations on means of encour- base of such system serves individuals living aging the development and deployment of to an amendment submitted by him to technology, including computer hardware outside an urbanized area, as defined by the the bill, S. 652, supra; as follows: Bureau of the Census. and software, to enable parents and other (c) DEFINITION.—For purposes of this sec- On line 2 of amendment number 1303, after users of interactive telecommunications sys- tion, the term ‘‘local exchange carrier’’ has ‘‘costs’’ insert ‘‘(which shall be determined tems to exercise the control described in the meaning given such term in section 3(kk) without reference to a rate-of-return or clauses (i) and (ii) of subparagraph (C). of the Communications Act of 1934, as added other rate-based proceeding, and shall take (2) CONSULTATION.—In preparing the report by section 8(b) of this Act. into account the price structure of tele- under paragraph (1), the Attorney General communications services within the State, shall consult with the Assistant Secretary of and which may include a reasonable profit)’’. Commerce for Communications and Informa- HEFLIN AMENDMENT NO. 1367 tion. Mr. HEFLIN proposed an amendment LEAHY AMENDMENTS NOS. 1371– to an amendment to the bill S. 652, 1375 LEAHY (AND OTHERS) supra; as follows: (Ordered to lie on the table.) AMENDMENT NO. 1377 Mr. LEAHY submitted five amend- (Ordered to lie on the table.) At the appropriate place in the amend- ments intended to be proposed by him Mr. LEAHY (for himself, Ms. ment, insert the following: to amendments to the bill, S. 652, MOSELEY-BRAUN, Mr. FEINGOLD, and SEC. . AUTHORITY TO ACQUIRE CABLE SYS- TEMS. supra; as follows: Mr. KERREY) submitted an amendment (a) IN GENERAL.—Notwithstanding the pro- AMENDMENT NO. 1371 intended to be proposed by them to an visions of section 613(b)(6) of the Commu- On page 2, line 2, insert ‘‘300 percent of’’ be- amendment to the bill, S. 652, supra; as nications Act of 1934, as added by section fore ‘‘the percentage’’. follows: S 8390 CONGRESSIONAL RECORD — SENATE June 14, 1995

Strike out the matter proposed to be in- AMENDMENT NO. 1379 (D) recommendations on means of encour- serted and insert in lieu thereof the follow- On page 1, line 7, strike all after ‘‘program- aging the development and deployment of ing: ming.’’ and insert the following: technology, including computer hardware (1) in subsection (a), by striking out ‘‘sec- ‘‘The Commission shall, to the extent pos- and software, to enable parents and other tion’’ and inserting in lieu thereof ‘‘sub- sible, rely on standards originating in the users of interactive telecommunications sys- section’’; and private sector.’’ tems to exercise the control described in (2) by striking out ‘‘$50,000’’ each place it clauses (i) and (ii) of subparagraph (C). appears and inserting in lieu thereof AMENDMENT NO. 1380 (2) CONSULTATION.—In preparing the report ‘‘$100,000’’. Strike all after the first word and insert in under paragraph (1), the Attorney General (b) REPORT ON MEANS OF RESTRICTING AC- lieu thereof the following: shall consult with the Assistant Secretary of CESS TO UNWANTED MATERIAL IN INTERACTIVE ‘‘Notwithstanding any other provision of Commerce for Communications and Informa- TELECOMMUNICATIONS SYSTEMS.— law, the Commission shall have the author- tion. (1) REPORT.—Not later than 150 days after the date of the enactment of this Act, the ity to prescribe technical standards for the Attorney General shall submit to the Com- digital transmission and reception of the sig- LEAHY (AND OTHERS) mittees on the Judiciary of the Senate and nals of video programming for the purposes AMENDMENT NO. 1383 of promoting compatibility or competitive the House of Representatives a report con- (Ordered to lie on the table.) taining— availability of consumer electronics devices. (A) an evaluation of the enforceability The Commission shall, to the extent, pos- Mr. LEAHY (for himself, Ms. with respect to interactive media of current sible, rely on standards originating in the MOSLEY-BRAUN, Mr. FEINGOLD, and Mr. criminal laws governing the distribution of private sector.’’. KERREY) submitted an amendment in- obscenity over computer networks and the tended to be proposed by them to creation and distribution of child pornog- AMENDMENT NO. 1381 amendment No. 1280 submitted by Mr. On page 1, line 7, strike all after ‘‘program- raphy by means of computers; ROBB to the bill S. 652, supra; as fol- ming.’’ and insert the following: (B) an assessment of the Federal, State, lows: and local law enforcement resources that are ‘‘Notwithstanding any other provision of currently available to enforce such laws; law, the Commission shall have the author- Strike out the last word proposed to be in- (C) an evaluation of the technical means ity to prescribe technical standards for the serted and insert in lieu thereof the follow- available— digital transmission and reception of the sig- ing: (i) to enable parents to exercise control nals of video programming for the purposes transmission or file over the information that their children re- of promoting compatibility or competitive (e) REPORT ON MEANS OF RESTRICTING AC- ceive by interactive telecommunications availability of consumer electronics devices. CESS TO UNWANTED MATERIAL IN INTERACTIVE systems so that children may avoid violent, The Commission shall, to the extent, pos- TELECOMMUNICATIONS SYSTEMS.— sexually explicit, harassing, offensive, and sible, rely on standards originating in the (1) REPORT.—Not later than 150 days after other unwanted material on such systems; private sector.’’. the date of the enactment of this Act, the (ii) to enable other users of such systems Attorney General shall submit to the Com- to exercise control over the commercial and LEAHY (AND OTHERS) mittee on the Judiciary of the Senate and noncommercial information that they re- AMENDMENT NO. 1382 the House of Representatives a report con- ceive by such systems so that such users taining— may avoid violent, sexually explicit, (Ordered to lie on the table.) (A) an evaluation of the enforceability harassing, offensive, and other unwanted ma- Mr. LEAHY (for himself, Ms. with respect to interactive media of current terial on such systems; and MOSELEY-BRAUN, Mr. FEINGOLD, and criminal laws governing the distribution of (iii) to promote the free flow of informa- Mr. KERREY) submitted an amendment obscenity over computer networks and the tion, consistent with the values expressed in intended to be proposed by them to creation and distribution of child pornog- the Constitution, in interactive media; and raphy by means of computers; (D) recommendations on means of encour- amendment No. 1328 submitted by Mr. (B) an assessment of the Federal, State, aging the development and deployment of EXON to the bill S. 652, supra; as fol- and local law enforcement resources that are technology, including computer hardware lows: currently available to enforce such laws; and software, to enable parents and other Strike out all matter proposed by the (C) an evaluation of the technical means users of interactive telecommunications sys- amendment and insert in lieu thereof the fol- available— tems to exercise the control described in lowing: (i) to enable parents to exercise control clauses (i) and (ii) of subparagraph (C). (a) not amended; over the information that their children re- (2) CONSULTATION.—In preparing the report (b) REPORT ON MEANS OF RESTRICTING AC- ceive by interactive telecommunications under paragraph (1), the Attorney General CESS TO UNWANTED MATERIAL IN INTERACTIVE systems so that children may avoid violent, shall consult with the Assistant Secretary of TELECOMMUNICATIONS SYSTEMS.— sexually explicit, harassing, offensive, and Commerce for Communications and Informa- (1) REPORT.—Not later than 150 days after other unwanted material on such systems; tion. the date of the enactment of this Act, the (ii) to enable other users of such systems Attorney General shall submit to the Com- to exercise control over the commercial and LEAHY AMENDMENT NO. 1378 mittees on the Judiciary of the Senate and noncommercial information that they re- the House of Representatives a report con- (Ordered to lie on the table.) ceive by such systems so that such users taining— may avoid violent, sexually explicit, Mr. LEAHY submitted an amend- (A) an evaluation of the enforceability harassing, offensive, and other unwanted ma- ment intended to be proposed by him with respect to interactive media of current terial on such systems; and to an amendment to the bill S. 652, criminal laws governing the distribution of (iii) to promote the free flow of informa- supra; as follows: obscenity over computer networks and the tion, consistent with the values expressed in Strike all after the first word and insert in creation and distribution of child pornog- the Constitution, in interactive media; and lieu thereof the following: raphy by means of computers; (D) recommendations on means of encour- ‘‘Notwithstanding any other provision of (B) an assessment of the Federal, State, aging the development and deployment of law, the Commission shall have the author- and local law enforcement resources that are technology, including computer hardware ity to prescribe technical standards for the currently available to enforce such laws; and software, to enable parents and other digital transmission and reception of the sig- (C) an evaluation of the technical means users of interactive telecommunications sys- nals of video programming for the purposes available— tems to exercise the control described in of promoting compatibility or competitive (i) to enable parents to exercise control clauses (i) and (ii) of subparagraph (C). availability of consumer electronics devices. over the information that their children re- (2) CONSULTATION.—In preparing the report The Commission shall, to the extent, pos- ceive by interactive telecommunications under paragraph (1), the Attorney General sible, rely on standards originating in the systems so that children may avoid violent, shall consult with the Assistant Secretary of private sector.’’. sexually explicit, harassing, offensive, and Commerce for Communications and Informa- other unwanted material on such systems; tion. (ii) to enable other users of such systems LEAHY AMENDMENTS NOS. 1379– to exercise control over the commercial and 1381 noncommercial information that they re- LEAHY AMENDMENT NO. 1384 (Ordered to lie on the table.) ceive by such systems so that such users (Ordered to lie on the table.) Mr. LEAHY submitted three amend- may avoid violent, sexually explicit, Mr. LEAHY submitted an amend- harassing, offensive, and other unwanted ma- ments intended to be proposed by him terial on such systems; and ment intended to be proposed by him to amendment No. 1319 submitted by (iii) to promote the free flow of informa- to amendment No. 1281, proposed by Mr. BROWN to the bill S. 652, supra; as tion, consistent with the values expressed in Mr. EXON, to the bill, S. 652, supra; as follows: the Constitution, in interactive media; and follows: June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8391

Strike out the matter proposed to be in- fense to prosecution that the person has Mr. KERREY) submitted an amendment serted and insert in lieu thereof the follow- complied with the procedures prescribed by intended to be proposed by them to ing: regulation pursuant to subsection (b)(3). amendment No. 1328 submitted by Mr. ‘‘(1) by striking subsection (a) and insert- Nothing in this subsection shall be construed EXON to the bill S. 652, supra; as fol- ing in lieu thereof: to treat enhanced information services as ‘‘(a) Whoever— common carriage. lows: ‘‘(1) in the District of Columbia or in inter- ‘‘(4) No cause of action may be brought in Strike out all matter proposed by the state or foreign communications any court or administrative agency against amendment and insert in lieu thereof the fol- ‘‘(A) by means of telecommunications de- any person on account of any activity which lowing: vice knowingly— is not in violation of any law punishable by (a) not amended; ‘‘(i) makes, creates, or solicits, and criminal or civil penalty, which activity the (b) REPORT ON MEANS OF RESTRICTING AC- ‘‘(ii) initiates the transmission of, person has taken in good faith to implement CESS TO UNWANTED MATERIAL IN INTERACTIVE any obscene, lewd, lascivious, filthy or inde- a defense authorized under this section or TELECOMMUNICATIONS SYSTEMS.— cent comment, request, suggestion, proposal, otherwise to restrict or prevent the trans- (1) REPORT.—Not later than 150 days after image, or other communication with knowl- mission of, or access to, a communication the date of the enactment of this Act, the edge that such communication is obscene, specified in this section. Attorney General shall submit to the Com- lewd, lascivious, filthy, or indecent, with in- (h) Nothing in subsection (a), (d), or (f) or mittees on the Judiciary of the Senate and tent to abuse, threaten, or harass another in the defenses to prosecution under (a) or the House of Representatives a report con- (d) shall be construed to affect or limit the person; taining— (A) an evaluation of the enforceability ‘‘(B) makes a telephone call or utilizes a application or enforcement of any other Fed- eral law. with respect to interactive media of current telecommunications device, whether or not ‘‘(i) The use of the term ‘telecommuni- criminal laws governing the distribution of conversation or communication ensues, cations device’ in this section shall not im- obscenity over computer networks and the without disclosing his identity and with in- pose new obligations on (one-way) broadcast creation and distribution of child pornog- tent to abuse, threaten, or harass any person radio or (one-way) broadcast television oper- raphy by means of computers; at the called number or who receives the ators licensed by the Commission or (one- (B) an assessment of the Federal, State, communication; way) cable service registered with the Fed- and local law enforcement resources that are ‘‘(C) makes or causes the telephone of an- eral Communications Commission and cov- currently available to enforce such laws; other repeatedly or continuously to ring, ered by obscenity and indecency provisions (C) an evaluation of the technical means with intent to harass any person at the elsewhere in this Act.’’ available— called number; or ‘‘(j) Within two years from the date of en- (i) to enable parents to exercise control ‘‘(D) makes repeated telephone calls or re- actment and every two years thereafter, the over the information that their children re- peatedly initiates communication with a Commission shall report on the effectiveness ceive by interactive telecommunications telecommunications device, during which of this section. systems so that children may avoid violent, conversation or communication ensues, sole- REPORT ON MEANS OF RESTRICTING ACCESS sexually explicit, harassing, offensive, and ly to harass any person at the called number TO UNWANTED MATERIAL IN INTERACTIVE other unwanted material on such systems; or who receives the communication; or TELECOMMUNICATIONS SYSTEMS.— (ii) to enable other users of such systems shall be fined not more than $100,000 or im- (1) REPORT.—Not later than 150 days after to exercise control over the commercial and prisoned not more than two years, or both.’’; the date of the enactment of this Act, the noncommercial information that they re- and Attorney General shall submit to the Com- ceive by such systems so that such users (2) by adding at the end the following new mittees on the Judiciary of the Senate and may avoid violent, sexually explicit, subsections: the House of Representatives a report con- harassing, offensive, and other unwanted ma- ‘‘(d) Whoever— taining— terial on such systems; and ‘‘(1) knowingly within the United States or (A) an evaluation of the enforceability (iii) to promote the free flow of informa- in foreign communications with the United with respect to interactive media of current tion, consistent with the values expressed in States by means of telecommunications de- criminal laws governing the distribution of the Constitution, in interactive media; and vice makes available any obscene commu- obscenity over computer networks and the (D) recommendations on means of encour- nication, knowing that such communication creation and distribution of child pornog- aging the development and deployment of is obscene, in any form including any com- raphy by means of computers; technology, including computer hardware ment, request, suggestion, proposal, or (B) an assessment of the Federal, State, and software, to enable parents and other image regardless of whether the maker of and local law enforcement resources that are users of interactive telecommunications sys- such communication placed the call or initi- currently available to enforce such laws; tems to exercise the control described in (C) an evaluation of the technical means ated the communications; or clauses (i) and (ii) of subparagraph (C). available— shall be fined not more than $100,000 or im- (i) to enable parents to exercise control (2) CONSULTATION.—In preparing the report prisoned not more than two years or both. over the information that their children re- under paragraph (1), the Attorney General ‘‘(f) Defenses to the subsections (a) and (d) ceive by interactive telecommunications shall consult with the Assistant Secretary of restrictions on access, judicial remedies re- systems so that children may avoid violent, Commerce for Communications and Informa- specting restrictions for persons providing sexually explicit, harassing, offensive, and tion. (3) ACTION.—The Senate shall act upon the information services and access to informa- other unwanted material on such systems; tion services— (ii) to enable other users of such systems recommendations in the report referred to is ‘‘(1) No person shall be held to have vio- to exercise control over the commercial and under paragraph (1) within three months of lated subsections (a) or (d), solely for provid- noncommercial information that they re- receipt. ing access or connection to or from a facil- ceive by such systems so that such users ity, system, or network over which that per- may avoid violent, sexually explicit, LEAHY (AND OTHERS) son has no control, including related capa- harassing, offensive, and other unwanted ma- AMENDMENTS NOS. 1386–1387 bilities which are incidental to providing ac- terial on such systems; and cess or connection. This subsection shall not (iii) to promote the free flow of informa- (Ordered to lie on the table.) be applicable to an individual who is owned tion, consistent with the values expressed in Mr. LEAHY (for himself, Ms. or controlled by, or a conspirator with, an the Constitution, in interactive media; and MOSELEY-BRAUN, Mr. FEINGOLD, and entity actively involved in the creation, ed- (D) recommendations on means of encour- Mr. KERREY) submitted two amend- iting or knowing distribution of communica- aging the development and deployment of ments intended to be proposed by them tions which violate this section. technology, including computer hardware to amendment No. 1281 submitted by ‘‘(2) No employer shall be held liable under and software, to enable parents and other this section for the actions of an employee or users of interactive telecommunications sys- Mr. EXON to the bill S. 652, supra; as agent unless the employee’s or agent’s con- tems to exercise the control described in follows: duct is within the scope of his employment clauses (i) and (ii) of subparagraph (C). AMENDMENT NO. 1386 or agency and the employer has knowledge (2) CONSULTATION.—In preparing the report Strike out the matter proposed to be in- of, authorizes or ratifies the employee’s or under paragraph (1), the Attorney General serted and insert in lieu thereof the follow- agent’s conduct. shall consult with the Assistant Secretary of ing: ‘‘(3) It is a defense to prosecution under Commerce for Communications and Informa- (1) in subsection (a), by striking out ‘‘sec- subsection (a), that a person has taken rea- tion. tion’’ and inserting in lieu thereof ‘‘sub- sonable, effective and appropriate actions in section’’; and good faith to restrict or prevent the trans- LEAHY (AND OTHERS) (2) by striking out ‘‘$50,000’’ each place it mission of, or access to a communication AMENDMENT NO. 1385 appears and inserting in lieu thereof specified in such subsections, or complied ‘‘$100,000’’. with procedures as the Commission may pre- (Ordered to lie on the table.) (b) REPORT ON MEANS OF RESTRICTING AC- scribe in furtherance of this section. Until Mr. LEAHY (for himself, Ms. CESS TO UNWANTED MATERIAL IN INTERACTIVE such regulations become effective, it is a de- MOSELEY-BRAUN, Mr. FEINGOLD, and TELECOMMUNICATIONS SYSTEMS.— S 8392 CONGRESSIONAL RECORD — SENATE June 14, 1995

(1) REPORT.—Not later than 150 days after harassing, offensive, and other unwanted ma- ‘‘(G) Nothing in this subsection shall be in- the date of the enactment of this Act, the terial on such systems; and terpreted as diminishing the authority of the Attorney General shall submit to the Com- (iii) to promote the free flow of informa- Commission to engage in any lawful proceed- mittees on the Judiciary of the Senate and tion, consistent with the values expressed in ing in furtherance of the objectives of this the House of Representatives a report con- the Constitution, in interactive media; and section to enhance compatibility and com- taining— (D) recommendations on means of encour- petitiveness with respect to services and de- (A) an evaluation of the enforceability aging the development and deployment of vices.’’. with respect to interactive media of current technology, including computer hardware criminal laws governing the distribution of and software, to enable parents and other AMENDMENT NO. 1390 obscenity over computer networks and the users of interactive telecommunications sys- On Page 3, strike out line 6 and all that fol- creation and distribution of child pornog- tems to exercise the control described in lows through page 3, line 15, and insert in raphy by means of computers; clauses (i) and (ii) of subparagraph (C). lieu thereof the following: (B) an assessment of the Federal, State, (2) CONSULTATION.—In preparing the report ‘‘(D) to ensure, consistent with paragraph and local law enforcement resources that are under paragraph (1), the Attorney General (1)(B), that any standards or regulations pre- currently available to enforce such laws; shall consult with the Assistant Secretary of scribed under this section to assure compat- (C) an evaluation of the technical means Commerce for Communications and Informa- ibility between televisions, video cassette re- available— tion. corders, and multichannel video program- (i) to enable parents to exercise control ming distribution systems do not unfairly over the information that their children re- LEAHY AMENDMENTS NOS. 1388– impair competition in the markets for home automation, computer network services, and ceive by interactive telecommunications 1395 systems so that children may avoid violent, telecommunications interface equipment.’’ sexually explicit, harassing, offensive, and (Ordered to lie on the table.) and other unwanted material on such systems; Mr. LEAHY submitted eight amend- (C) by inserting after new subparagraph (F) (ii) to enable other users of such systems ments intended to be proposed by him the following new subparagraph (G): ‘‘(G) Nothing in this subsection shall be in- to exercise control over the commercial and to amendments to the bill, S. 652, terpreted as diminishing the authority of the noncommercial information that they re- supra; as follows: Commission to engage in any lawful proceed- ceive by such systems do that such users AMENDMENT NO. 1388 ing in furtherance of the objectives of this may avoid violent, sexually explicit, section to enhance compatibility and com- harassing, offensive, and other unwanted ma- On page 3, strike out line 6 and all that fol- petitiveness with respect to services and de- terial on such systems; and lows through page 3, line 15, and insert in vices.’’. (iii) to promote the free flow of informa- lieu thereof the following: (D)(1) The Office of the United States tion, consistent with the values expressed in Trade Representative, the Department of AMENDMENT NO. 1391 the Constitution, in interactive media; and Commerce, the Federal Communications Strike all after the first word and insert (D) recommendations on means of encour- Commission and other appropriate federal the following: aging the development and deployment of agencies and departments, when engaging in ‘‘(D) to ensure, consistent with paragraph technology, including computer hardware consultations, negotiations or other inter- (1)(B), that any standards or regulations pre- and software, to enable parents and other national discussions, shall pursue policies scribed under this section to assure compat- users of interactive telecommunications sys- and advocate objectives with the aim of se- ibility between televisions, video cassette re- tems to exercise the control described in curing non-discriminatory export opportuni- corders, and multichannel video program- clauses (i) and (ii) of subparagraph (C). ties for U.S. exporters of telecommuni- ming distribution systems do not unfairly (2) CONSULTATION.—In preparing the report cations products and services, information impair competition in the markets for home under paragraph (1), the Attorney General automation, computer network services, and shall consult with the Assistant Secretary of content and information appliances. Meas- ures which deny non-discriminatory export telecommunications interface equipment.’’ Commerce for Communications and Informa- and tion. opportunities, include measures which: (a) hinder or impede competition among (C) by inserting after new subparagraph (F) technologies, providers, content and media, the following new subparagraph (G): AMENDMENT NO. 1387 ‘‘(G) Noting in this subsection shall be in- based on national origin; terpreted as diminishing the authority of the Strike out the matter proposed to be in- (b) encumber or retard the rapid develop- Commission to engage in any lawful proceed- serted and insert in lieu thereof the follow- ment of the global information and commu- ing in furtherance of the objectives of this ing: nications infrastructure; or (1) in subsection (a), by striking out ‘‘sec- (c) unfairly deny access to users and ven- section to enhance compatibility and com- tion’’ and inserting in lieu thereof ‘‘sub- dors of products, content and services. petitiveness with respect to services and de- section’’; and (2) The Secretary of Commerce, in con- vices.’’. (2) by striking out ‘‘$50,000’’ each place it sultation with the United States Trade Rep- AMENDMENT NO. 1392 appears and inserting in lieu thereof resentative and the Federal Communications ‘‘$100,000’’. Commission, shall conduct a study of the Strike all after the first word of the lan- guage proposed to be inserted and insert in (b) REPORT ON MEANS OF RESTRICTING AC- competitiveness of the United States in the lieu thereof the following: CESS TO UNWANTED MATERIAL IN INTERACTIVE global information infrastructure and the ef- (1) The Office of the United States Trade TELECOMMUNICATIONS SYSTEMS.— fects of foreign policies, practices and meas- Representative, the Department of Com- (1) REPORT.—Not later than 150 days after ures affecting such U.S. competitiveness, in merce, the Federal Communications Com- the date of the enactment of this Act, the order to assist the Congress and the Presi- mission and other appropriate federal agen- Attorney General shall submit to the Com- dent in determining what actions might be cies and departments, when engaging in con- mittees on the Judiciary of the Senate and needed to promote and preserve the competi- sultations, negotiations or other inter- the House of Representatives a report con- tiveness of United States information indus- national discussions, shall pursue policies taining— tries. The Secretaries shall, no later than and advocate objectives with the aim of se- (A) an evaluation of the enforceability one year after the date of enactment of this curing non-discriminatory export opportuni- with respect to interactive media of current Act, submit to the Congress and the Presi- ties for U.S. exporters of telecommuni- criminal laws governing the distribution of dent a report on the findings and rec- cations products and services, information obscenity over computer networks and the ommendations reached as a result of the content and information appliances. Meas- creation and distribution of child pornog- study. ures which deny non-discriminatory export raphy by means of computers; opportunities, include measures which: (B) an assessment of the Federal, State, AMENDMENT NO. 1389 (a) hinder or impede competition among and local law enforcement resources that are On page 3, strike out line 6 and all that fol- technologies, providers, content and media, currently available to enforce such laws; lows through page 3, line 15, and insert in based on national origin; (C) an evaluation of the technical means lieu thereof the following: (b) encumber or retard the rapid develop- available— ‘‘(D) to ensure, consistent with paragraph ment of the global information and commu- (i) to enable parents to exercise control (1)(B), that any standards or regulations pre- nications infrastructure; or over the information that their children re- scribed under this section to assure compat- (c) unfairly deny access to users and ven- ceive by interactive telecommunications ibility between televisions, video cassette re- dors of products, content and services. systems so that children may avoid violent, corders, and multichannel video program- (2) The Secretary of Commerce, in con- sexually explicit, harassing, offensive, and ming distribution systems do not unfairly sultation with the United States Trade Rep- other unwanted material on such systems; impair competition in the markets for home resentative and the Federal Communications (ii) to enable other users of such systems automation, computer network services, and Commission, shall conduct a study of the to exercise control over the commercial and telecommunications interface equipment.’’ competitiveness of the United States in the noncommercial information that they re- and global information infrastructure and the ef- ceive by such systems so that such users (C) by inserting after new subparagraph (F) fects of foreign policies, practices and meas- may avoid violent, sexually explicit, the following new subparagraph (G): ures affecting such U.S. competitiveness, in June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8393 order to assist the Congress and the Presi- Mr. LEAHY submitted two amend- (A) an evaluation of the enforceability dent in determining what actions might be ments intended to be proposed by him with respect to interactive media of current needed to promote and preserve the competi- to amendment No. 1346, proposed by criminal laws governing the distribution of tiveness of United States information indus- obscenity over computer networks and the Mr. HEFLIN, to the bill, S. 652, supra; as tries. The Secretary shall, no later than one creation and distribution of child pornog- year after the date of enactment of this Act, follows: raphy by means of computers; submit to the Congress and the President a AMENDMENT NO. 1396 (B) an assessment of the Federal, State, report on the findings and recommendations Strike all after the first word in the pend- and local law enforcement resources that are reached as a result of the study. ing amendment and insert the following: currently available to enforce such laws; ‘‘(2) UNREASONABLE RATES.— (C) an evaluation of the technical means AMENDMENT NO. 1393 ‘‘(A) STANDARDS.—The Commission may available— Strike all after the first word of the lan- only consider a rate for cable programming (i) to enable parents to exercise control guage proposed to be inserted and insert in services to be unreasonable if it substan- over the information that their children re- lieu thereof the following: tially exceeds the national average rate for ceive by interactive telecommunications systems so that children may avoid violent, ‘‘; provided, however, that comparable programming services in cable sexually explicit, harassing, offensive, and (A) any state that has issued an order with systems subject to effective competition. other unwanted material on such systems; respect to intraLATA toll dialing parity as ‘‘(B) RATES OF SMALL CABLE COMPANIES.— ‘‘(i) IN GENERAL.—The regulations pre- (ii) to enable other users of such systems of June 12, 1995 may implement any order re- scribed under this subsection shall not apply to exercise control over the commercial and quiring the provision of such dialing parity; noncommercial information that they re- (B) any state that has not issued an order to the rates charged by small cable compa- ceive by such systems so that such users by June 12, 1995 with respect to intraLATA nies for the cable programming services pro- may avoid violent, sexually explicit, toll dialing parity may not implement any vided by such companies. ‘‘(ii) DEFINITION.—As used in this subpara- harassing, offensive, and other unwanted ma- order requiring the provision of such dialing graph, the term ‘small cable company’ terial on such systems; and parity for 36 months following the enact- means the following: (iii) to promote the free flow of informa- ment of this Act; and ‘‘(I) A cable operator whose number of sub- tion, consistent with the values expressed in (C) any state that contains no more than scribers is less than 35,000. the Constitution, in interactive media; and one LATA shall be exempt from this sub- ‘‘(II) A cable operator that operates mul- (D) recommendations on means of encour- section. tiple cable systems, but only if the total aging the development and deployment of number of subscribers of such operator is technology, including computer hardware AMENDMENT NO. 1394 less than 400,000 and only with respect to and software, to enable parents and other Strike all after the first word of the lan- each system of the operator that has less users of interactive telecommunications sys- guage proposed to be inserted and insert in than 35,000 subscribers.’’. tems to exercise the control described in lieu thereof the following: clauses (i) and (ii) of subparagraph (C). ‘‘; provided, however, that AMENDMENT NO. 1397 (2) CONSULTATION.—In preparing the report (A) any state that has issued an order with Strike the last word in the pending amend- under paragraph (1), the Attorney General respect to intraLATA toll dialing parity as ment and insert the following: shall consult with the Assistant Secretary of of June 12, 1995 may implement any order re- (d) Insert the word ‘‘act’’ at the end of the Commerce for Communications and Informa- quiring the provision of such dialing parity; definition section. tion. (B) any state that has initiated a proceed- ‘‘(2) UNREASONABLE RATES.— ing with respect to intraLATA toll dialing ‘‘(A) STANDARDS.—The Commission may LEAHY AMENDMENT NO. 1399 parity as of June 12, 1995 may complete such only consider a rate for cable programming proceeding but shall not implement any services to be unreasonable if it substan- (Ordered to lie on the table.) order requiring the provision of such dialing tially exceeds the national average rate for Mr. LEAHY submitted an amend- parity for 24 months following the enact- comparable programming in cable systems ment intended to be proposed by him ment of this Act; subject to effective competition. to an amendment to the bill, S. 652, (C) any state that has neither issued an ‘‘(B) RATES OF SMALL CABLE COMPANIES.— supra; as follows: order nor initiated a proceeding on June 12, ‘‘(i) IN GENERAL.—The regulations pre- On page 3, strike out line 6 and all that fol- 1995 with respect to intraLATA toll dialing scribed under this subsection shall not apply lows through page 3, line 15, and insert in parity may not implement any order requir- to the rates charged by small cable compa- ing the provision of such dialing parity for 36 lieu thereof the following: nies for the cable programming services pro- ‘‘(D) to ensure, consistent with paragraph months following the enactment of this Act; vided by such companies. and (1)(B), that any standards or regulations pre- ‘‘(ii) DEFINITION.—As used in this subpara- scribed under this section to assure compat- (D) any state that contains no more than graph, the term ‘small cable company’ one LATA shall be exempt from this sub- ibility between televisions, video cassette re- means the following: corders, and multichannel video program- section. ‘‘(I) A cable operator whose number of sub- ming distribution systems do not unfairly scribers is less than 35,000. impair competition in the markets for home AMENDMENT NO. 1395 ‘‘(II) A cable operator that operates mul- automation, computer network services, and Strike all after the first word of the lan- tiple cable systems, but only if the total telecommunications interface equipment.’’ guage proposed to be inserted and insert in number of subscribers of such operator is and lieu thereof the following: less than 400,000 and only with respect to (C) by inserting after new subparagraph (F) each system of the operator that has less ‘‘; Provided, however, that the following new subparagraph (G): (A) any state that has issued an order with than 35,000 subscribers.’’. ‘‘(G) Nothing in this subsection shall be in- respect to intraLATA toll dialing parity as terpreted as diminishing the authority of the of June 12, 1995 may implement any order re- LEAHY (AND OTHERS) Commission to engage in any lawful proceed- quiring the provision of such dialing parity; AMENDMENT NO. 1398 ing in furtherance of the objectives of this (B) any state that has initiated a proceed- section to enhance compatibility and com- ing with respect to intraLATA toll dialing (Ordered to lie on the table.) petitiveness with respect to services and de- parity as of June 12, 1995 may complete such Mr. LEAHY (for himself, Ms. vices.’’. proceeding but shall not implement any MOSELEY-BRAUN, Mr. FEINGOLD, and order requiring the provision of such dialing Mr. KERREY) submitted an amendment LEAHY AMENDMENT NO. 1400 parity for twelve months following the en- intended to be proposed by them to actment of this Act; (Ordered to lie on the table.) (C) any state that has neither issued an amendment No. 1327 submitted by Mr. EXON to the bill S. 652, supra; as fol- Mr. LEAHY submitted an amend- order nor initiated a proceeding on June 12, ment intended to be proposed by him 1995 with respect to intraLATA toll dialing lows: to amendment No. 1346, proposed by parity may not implement any order requir- Strike out the matter proposed to be in- ing the provision of such dialing parity for serted on page 2 of the Exon Amendment and Mr. HEFLIN, to the bill, S. 652, supra; as twenty four months following the enactment insert in lieu thereof the following: follows: of this Act; and (c) REPORT ON MEANS OF RESTRICTING AC- Strike the last word in the pending amend- (D) any state that contains no more than CESS TO UNWANTED MATERIAL IN INTERACTIVE ment and insert the following: one LATA shall be exempt from this sub- TELECOMMUNICATIONS SYSTEMS.— (d) Insert the word ‘‘Act’’ at the end of the section. (1) REPORT.—Not later than 150 days after definition section (1) The Office of the Unit- the date of the enactment of this Act, the ed States Trade Representative, the Depart- LEAHY AMENDMENTS NOS. 1396– Attorney General shall submit to the Com- ment of Commerce, the Federal Communica- mittees on the Judiciary of the Senate and tions Commission and other appropriate fed- 1397 the House of Representatives a report con- eral agencies and departments, when engag- (Ordered to lie on the table.) taining— ing in consultations, negotiations or other S 8394 CONGRESSIONAL RECORD — SENATE June 14, 1995 international discussions, shall pursue poli- Mr. LEAHY submitted three amend- Strike all after the first word of the lan- cies and advocate objectives with the aim of ments intended to be proposed by him guage proposed to be inserted and insert in securing non-discriminatory export opportu- to amendment No. 1305, proposed by lieu thereof the following: ‘‘Nothing in this nities for U.S. exporters of telecommuni- subsection shall prevent a State from order- Mr. DASCHLE, to the bill, S. 652, supra; cations products and services, information ing the implementation of toll dialing parity content and information appliances. Meas- as follows: in an intraLATA area by a Bell operating ures which deny non-discriminatory export AMENDMENT NO. 1402 company before or after the Bell operating opportunities, include measures which: Strike all after the first word of the lan- company has been granted authority under (a) hinder or impede competition among guage proposed to be inserted and insert in this subsection to provide interLATA serv- technologies, providers, content and media, lieu thereof the following: ices in that area. based on national origin; ; provided however, that (b) encumber or retard the rapid develop- (A) any state that has issued an order with ment of the global information and commu- LEAHY AMENDMENT NO. 1406 respect to intraLATA toll dialing parity as nications infrastructure; or of June 12, 1995 may implement any order re- (Ordered to lie on the table.) (c) unfairly deny access to users and ven- quiring the provision of such dialing parity; Mr. LEAHY submitted an amend- dors of products, content and services. ment intended to be proposed by him (2) The Secretary of Commerce, in con- (B) any state that has initiated a proceed- sultation with the United States Trade Rep- ing with respect to intraLATA toll dialing to amendment No. 1305, proposed by resentative and the Federal Communications parity as of June 12, 1995 may complete such Mr. DASCHLE, to the bill, S. 652, supra; Commission, shall conduct a study of the proceeding but shall not implement any as follows: order requiring the provision of such dialing competitiveness of the United States in the Strike all after the first word of the lan- parity for twelve months following the en- global information infrastructure and the ef- guage proposed to be inserted and insert in actment of this Act; fects of foreign policies, practices and meas- lieu thereof the following. ures affecting such U.S. competitiveness, in (C) any state that has neither issued an order nor initiated a proceeding on June 12, ’’; provided, however, that order to assist the Congress and the Presi- (A) any state that has issued an order with dent in determining what actions might be 1995 with respect to interLATA toll dialing parity may not implement any order requir- respect to intraLATA toll dialing parity as needed to promote and preserve the competi- of June 12, 1995 may implement any order re- tiveness of United States information indus- ing the provision of such dialing parity for twenty-four months following the enactment quiring the provision of such dialing parity; tries. The Secretary shall, no later than one (B) any state that has initiated a proceed- year after the date of enactment of this Act, of this Act; and (D) any state that contains more than one ing with respect to intraLATA toll dialing submit to the Congress and the President a LATA shall not be subject to this subsection. parity as of June 12, 1995 may complete such report on the findings and recommendations proceedings but shall not implement any reached as a result of the study. AMENDMENT NO. 1403 order requiring the provision of such dialing parity for 12 months following the enact- Strike all after the first word of the lan- LEAHY AMENDMENT NO. 1401 ment of this Act; guage proposed to be inserted and insert in (C) any state that has neither issued an (Ordered to lie on the table.) lieu thereof the following: order nor initiated a proceeding on June 12, Mr. LEAHY submitted an amend- ; provided, however, that 1995 with respect to intraLATA toll dialing ment intended to be proposed by him (A) any state that has issued an order with parity may not implement any order requir- to an amendment to the bill, S. 652, respect to intraLATA toll dialing parity as ing the provision of such dialing for 24 supra; as follows: of June 12, 1995 may implement any order re- months following the enactment of this Act; On page 3, strike out line 6 and all that fol- quiring the provision of such dialing parity; and lows through page 3, line 15, and insert in (B) any state that has not issued an order (D) any state that contains no more than lieu there of the following: nor initiated a proceeding on June 12, 1995 one LATA shall not be subject to this sub- (D)(1) The Office of the United States with respect to intraLATA toll dialing par- section. Trade Representative, the Department of ity may not implement any order requiring the provision of such dialing parity for 36 Commerce, the Federal Communications LEAHY AMENDMENT NO. 1407 Commission and other appropriate federal months following the enactment of this Act; agencies and departments, when engaging in and (Ordered to lie on the table.) consultations, negotiations or other inter- (C) any state that contains no more than Mr. LEAHY submitted an amend- national discussions, shall pursue policies one LATA shall be exempt from this sub- ment intended to be proposed by him and advocate objectives with the aim of se- section. to an amendment to the bill, S. 652, curing non-discriminatory export opportuni- supra; as follows: ties for U.S. exporters of telecommuni- AMENDMENT NO. 1404 Strike all after the first word and insert cations products and services, information Strike all after the first word of the lan- the following: content and information appliances. Meas- guage proposed to be inserted and insert in ures which deny non-discriminatory export lieu thereof the following: (D)(1) The Office of the United States Trade Representative, the Department of Com- opportunities, include measures which: ; provided, however, that merce, the Federal Communications Com- (a) hinder or impede competition among (A) any state that has issued an order with mission and other appropriate federal agen- technologies, providers, content and media, respect to intraLATA toll dialing parity as cies and departments, when engaging in con- based on national origin; of June 12, 1995 may implement any order re- sultations, negotiations or other inter- (b) encumber or retard the rapid develop- quiring the provision of such dialing parity; ment of the global information and commu- (B) any state that has initiated a proceed- national discussions, shall pursue policies nications infrastructure; or ing with respect to intraLATA toll dialing and advocate objectives with the aim of se- (c) unfairly deny access to users and ven- parity as of June 12, 1995 may complete such curing non-discriminatory export opportuni- dors of products, content and services. proceeding but shall not implement any ties for U.S. exporters of telecommuni- (2) The Secretary of Commerce, in con- order requiring the provisions of such dialing cations products and services, information sultation with the United States Trade Rep- parity for 24 months following the enact- content and information appliances. Meas- resentative and the Federal Communications ment of this Act; ures which deny non-discriminatory export Commission, shall conduct a study of the (C) any state that has neither issued an opportunities, includes measures which: competitiveness of the United States in the (a) hinder or impede competition among order nor initiated a proceeding on June 12, global information infrastructure and the ef- technologies, providers, content and media, 1995 with respect to intraLATA toll dialing fects of foreign policies, practices and meas- based on national origin; parity may not implement any order requir- ures affecting such U.S. competitiveness, in (b) encumber or retard the rapid develop- ing the provision of such dialing parity for 36 order to assist the Congress and the Presi- ment of the global information and commu- months following the enactment of this Act; dent in determining what actions might be nications infrastructure; or and (c) unfairly deny access to users and ven- needed to promote and preserve the competi- (D) any state that contains no more than dors of products, content and services. tiveness of United States information indus- one LATA shall not be subject to this sub- (2) The Secretary of Commerce, in con- tries. The Secretary shall, no later than one section. year after the date of enactment of this Act, sultation with the United States Trade Rep- submit to the Congress and the President a resentative and the Federal Communications report on the findings and recommendations LEAHY AMENDMENT NO. 1405 Commission, shall conduct a study of the reached as a result of the study. (Ordered to lie on the table.) competitiveness of the United States in the global information infrastructure and the ef- Mr. LEAHY submitted an amend- LEAHY AMENDMENTS NOS. 1402– fects of foreign policies, practices and meas- ment intended to be proposed by him ures affecting such U.S. competitiveness, in 1404 to an amendment to the bill, S. 652, order to assist the Congress and the Presi- (Ordered to lie on the table.) supra; as follows: dent in determining what actions might be June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8395 needed to promote and preserve the competi- endar days after the submission date referred mittees on the Judiciary of the Senate and tiveness of United States information indus- to in (3), such committee may be discharged the House of Representatives a report con- tries. The Secretary shall, no later than one from further consideration of such bill in the taining— year after the date of enactment of this Act, Senate upon a petition supported in writing (A) an evaluation of the enforceability submit to the Congress and the President a by 30 Members of the Senate and in the with respect to interactive media of current report on the findings and recommendations House upon a petition supported in writing criminal laws governing the distribution of reached as a result of the study. by one-fourth of the Members duly sworn obscenity over computer networks and the and chosen or by motion of the Speaker sup- creation and distribution of child pornog- LEAHY (AND OTHERS) ported by the Minority Leader, and such res- raphy by means of computers; olution shall be placed on the appropriate (B) an assessment of the Federal, State, AMENDMENT NO. 1408 calendar of the House involved. and local law enforcement resources that are (Ordered to lie on the table.) ‘‘(5) FLOOR CONSIDERATION.— currently available to enforce such laws; Mr. LEAHY (for himself, Ms. ‘‘(d) IN GENERAL.—When the committee to (C) an evaluation of the technical means MOSELEY-BRAUN, Mr. FEINGOLD, and which such a bill is referred has reported, or available— (i) to enable parents to exercise control Mr. KERREY) submitted an amendment when a committee is discharged (under (4)) over the information that their children re- intended to be proposed by them to an from further consideration of such bill, it is at any time thereafter in order (even though ceive by interactive telecommunications amendment to the bill S. 652, supra; as a previous motion to the same effect has systems so that children may avoid violent, follows: been disagreed to) for a motion to proceed to sexually explicit, harassing, offensive, and Strike out the matter proposed to be in- the consideration of the bill. The motion is other unwanted material on such systems; serted and insert in lieu thereof the follow- not subject to amendment, or to a motion to (ii) to enable other users of such systems ing: postpone, or to a motion to proceed to the to exercise control over the commercial and (1) in subsection (a), by striking out ‘‘sec- consideration of other business. A motion to noncommercial information that they re- tion’’ and inserting in lieu thereof ‘‘sub- reconsider the vote by which the motion is ceive by such systems so that such users section’’; and agreed to or disagreed to shall not be in may avoid violent, sexually explicit, (2) by striking out ‘‘$50,000’’ each place it order. If a motion to proceed to the consider- harassing, offensive, and other unwanted ma- appears and inserting in lieu thereof ation of the bill is agreed to, the bill shall re- terial on such systems; and ‘‘$100,000’’. main the unfinished business of the respec- (iii) to promote the free flow of informa- (b) REPORT ON MEANS OF RESTRICTING AC- tive House until disposed of. tion, consistent with the values expressed in CESS TO UNWANTED MATERIAL IN INTERACTIVE ‘‘(b) FINAL PASSAGE.—Immediately follow- the Constitution, in interactive media; and TELECOMMUNICATIONS SYSTEMS.— ing the conclusion of the debate on such a (D) recommendations on means of encour- (1) REPORT.—Not later than 150 days after bill described in subsection (3), and a single aging the development and deployment of the date of the enactment of this Act, the quorum call at the conclusion of the debate technology, including computer hardware Attorney General shall submit to the Com- if requested in accordance with the rules of and software, to enable parents and other mittees on the Judiciary of the Senate and the appropriate House, the vote on final pas- users of interactive telecommunications sys- the House of Representatives a report con- sage of the bill shall occur. tems to exercise the control described in taining— ‘‘(c) APPEALS.—Appeals from the decisions clauses (i) and (ii) of subparagraph (C). (A) an evaluation of the enforceability of the Chair relating to the application of (2) CONSULTATION.—In preparing the report with respect to interactive media of current the rules of the Senate or the House of Rep- under paragraph (1), the Attorney General criminal laws governing the distribution of resentatives, as the case may be, to the pro- shall consult with the Assistant Secretary of obscenity over computer networks and the cedure relating to a bill described in (3) shall Commerce for Communications and Informa- creation and distribution of child pornog- be decided without debate. tion. raphy by means of computers; ‘‘(6) CONSTITUTIONAL AUTHORITY.—This sec- (B) an assessment of the Federal, State, tion is enacted by Congress— and local law enforcement resources that are LEAHY (AND OTHERS) ‘‘(a) as an exercise of the rulemaking AMENDMENT NO. 1410 currently available to enforce such laws; power of the Senate and House of Represent- (C) an evaluation of the technical means atives, respectively, and as such it is deemed (Ordered to lie on the table.) available— a part of the rules of each House, respec- Mr. LEAHY (for himself, Mr. (i) to enable parents to exercise control tively, but applicable only with respect to FEINGOLD, Mr. SIMPSON, Mr. KERREY, over the information that their children re- the procedure to be followed in that House in ceive by interactive telecommunications and Mr. KOHL) submitted an amend- the case of a bill described in (3), and it su- ment intended to be proposed by them systems so that children may avoid violent, persedes other rules only to the extent that sexually explicit, harassing, offensive, and to an amendment to the bill S. 652, it is inconsistent with such rules; and supra; as follows: other unwanted material on such systems; ‘‘(b) with full recognition of the constitu- (ii) to enable other users of such systems tional right of either House to change the Strike all after the first word of the lan- to exercise control over the commercial and rules (so far as relating to the procedure of guage proposed to be inserted and insert in noncommercial information that they re- that House) at anytime, in the same manner, lieu thereof the following: ‘‘Nothing in this ceive by such systems so that such users and to the same extent as in the case of any subsection shall prevent a State from order- may avoid violent, sexually explicit, other rule of that House.’’ ing the implementation of toll dialing parity harassing, offensive, and other unwanted ma- in an intraLATA area by a Bell operating terial on such systems; and company before the Bell operating company (iii) to promote the free flow of informa- LEAHY (AND OTHERS) has been granted authority under this sub- tion, consistent with the values expressed in AMENDMENT NO. 1409 section to provide interLATA services in the Constitution, in interactive media; and that area.’’. (D) recommendations on means of encour- (Ordered to lie on the table.) aging the development and deployment of Mr. LEAHY (for himself, Ms. technology, including computer hardware MOSELEY-BRAUN, Mr. FEINGOLD, and LEAHY AMENDMENT NO. 1411 and software, to enable parents and other Mr. KERREY) submitted an amendment (Ordered to lie on the table.) users of interactive telecommunications sys- intended to be proposed by them to Mr. LEAHY submitted an amend- tems to exercise the control described in amendment No. 1268 submitted by Mr. ment intended to be proposed by him clauses (i) and (ii) of subparagraph (C). EXON to the bill S. 652, supra; as fol- (2) CONSULTATION.—In preparing the report to an amendment to the bill, S. 652 under paragraph (1), the Attorney General lows: supra; as follows: shall consult with the Assistant Secretary of Strike out the matter proposed to be in- Strike all after the first word and insert Commerce for Communications and Informa- serted and insert in lieu thereof the follow- the following: tion. ing: (1) REPORT ON MEANS OF RESTRICTING AC- ‘‘(3) IN GENERAL.—Any legislative proposal (1) in subsection (a), by striking out ‘‘sec- CESS TO UNWANTED MATERIAL IN INTERACTIVE in the report described in (1) shall be intro- tion’’ and inserting in lieu thereof ‘‘sub- TELECOMMUNICATIONS SYSTEMS.— duced by the Majority Leader of his designee section’’; and (1) REPORT.—Not later than 150 days after as a bill upon submission and referred to the (2) by striking out ‘‘$50,000’’ each place it the date of the enactment of this Act, the committees in each House of Congress with appears and inserting in lieu thereof Attorney General shall submit to the Com- jurisdiction. Such a bill may not be reported ‘‘$100,000’’. mittees on the Judiciary of the Senate and before the eighth day after the date upon (b) REPORT ON MEANS OF RESTRICTING AC- the House of Representatives a report con- which it was submitted to the Congress as a CESS TO UNWANTED MATERIAL IN INTERACTIVE taining— legislative proposal. TELECOMMUNICATIONS SYSTEMS.— (A) an evaluation of the enforceability ‘‘(4) DISCHARGE.—If the committee to (1) REPORT.—Not later than 150 days after with respect to interactive media of current which is referred a bill described in (3) has the date of the enactment of this Act, the criminal laws governing the distribution of not reported such bill at the end of 20 cal- Attorney General shall submit to the Com- obscenity over computer networks and the S 8396 CONGRESSIONAL RECORD — SENATE June 14, 1995

creation and distribution of child pornog- ‘‘(6) CONSTITUTIONAL AUTHORITY.—This sec- creation and distribution of child pornog- raphy by means of computers; tion is enacted by Congress— raphy by means of computers; (B) an assessment of the Federal, State, ‘‘(a) as an exercise of the rulemaking (B) an assessment of the Federal, State, and local law enforcement resources that are power of the Senate and House of Represent- and local law enforcement resources that are currently available to enforce such laws; atives, respectively, and as such it is deemed currently available to enforce such laws; (C) an evaluation of the technical means a part of the rules of each House, respec- (C) an evaluation of the technical means available— tively, but applicable only with respect to available— (i) to enable parents to exercise control the procedure to be followed in that House in (i) to enable parents to exercise control over the information that their children re- the case of a bill described in (3), and it su- over the information that their children re- ceive by interactive telecommunications persedes other rules only to the extent that ceive by interactive telecommunications systems so that children may avoid violent, it is inconsistent with such rules; and systems so that children may avoid violent, sexually explicit, harassing, offensive, and ‘‘(b) with full recognition of the constitu- sexually explicit, harassing, offensive, and other unwanted material on such systems; tional right of either House to change the other unwanted material on such systems; (ii) to enable other users of such systems (ii) to enable other users of such systems rules (so far as relating to the procedure of to exercise control over the commercial and to exercise control over the commercial and that House) at anytime, in the same manner, noncommercial information that they re- noncommercial information that they re- and to the same extent as in the case of any ceive by such systems so that such users ceive by such systems so that such users other rule of that House.’’ may avoid violent, sexually explicit, may avoid violent, sexually explicit, harassing, offensive, and other unwanted ma- harassing, offensive, and other unwanted ma- terial on such systems; and LEAHY AMENDMENT NO. 1412 terial on such systems; and (iii) to promote the free flow of informa- (iii) to promote the free flow of informa- tion, consistent with the values expressed in (Ordered to lie on the table.) tion, consistent with the values expressed in the Constitution, in interactive media; and Mr. LEAHY submitted an amend- the Constitution, in interactive media; and (D) recommendations on means of encour- ment intended to be proposed by him (D) recommendations on means of encour- aging the development and deployment of to amendment No. 1305, proposed by aging the development and deployment of technology, including computer hardware Mr. DASCHLE, to the bill, S. 652, supra; technology, including computer hardware and software, to enable parents and other as follows: and software, to enable parents and other users of interactive telecommunications sys- users of interactive telecommunications sys- tems to exercise the control described in Strike all after the first word of the lan- tems to exercise the control described in clauses (i) and (ii) of subparagraph (C). guage proposed to be inserted and insert in clauses (i) and (ii) of subparagraph (C). (2) CONSULTATION.—In preparing the report lieu thereof the following: (2) CONSULTATION.—In preparing the report under paragraph (1), the Attorney General ‘‘; provided, however, that under paragraph (1), the Attorney General shall consult with the Assistant Secretary of (A) any state that has issued an order with shall consult with the Assistant Secretary of Commerce for Communications and Informa- respect to intraLATA toll dialing parity as Commerce for Communications and Informa- tion. of June 12, 1995 may implement any order re- tion. ‘‘(3) IN GENERAL.—Any legislative proposal quiring the provision of such dialing parity; included in the report described in (1) shall (B) any state that has initiated a proceed- LEAHY AMENDMENT NO. 1414 be introduced by the Majority Leader or his ing with respect to intraLATA toll dialing designee as a bill upon submission and re- parity as of June 12, 1995 may complete such (Ordered to lie on the table.) ferred to the committees in each House of proceeding but shall not implement any Mr. LEAHY submitted an amend- Congress with jurisdiction. Such a bill may order requiring the provision of such dialing ment intended to be proposed by him not be reported before the eighth day after parity for 24 months following the enact- to amendment No. 1305, proposed by the date upon which it was submitted to the ment of this Act; Mr. DASCHLE, to the bill, S. 652, supra; Congress as a legislative proposal. (C) any state that has neither issued an as follows: ‘‘(4) DISCHARGE.—If the committee to order nor initiated a proceeding on June 12, which is referred a bill described in (3) has Strike all after the first word of the lan- 1995 with respect to intraLATA toll dialing guage proposed to be inserted and insert in not reported such bill at the end of 20 cal- parity may not implement any order requir- endar days after the submission date referred lieu thereof the following: ‘‘Nothing in this ing the provision of such dialing parity for 36 subsection shall prevent a State from order- to in (3), such committee may be discharged months following the enactment of this Act; from further consideration of such bill in the ing the implementation of toll dialing parity and in an intraLATA area by a Bell operating Senate upon a petition supported in writing (D) any state that contains no more than by 30 Members of the Senate and in the company before or after the Bell operating one LATA shall not be subject to this sub- company has been granted authority under House upon a petition supported in writing section. by one-fourth of the Members duly sworn this subsection to provide interLATA serv- and chosen or by motion of the Speaker sup- ices in that area. ported by the Minority Leader, and such res- LEAHY (AND OTHERS) olution shall be placed on the appropriate AMENDMENTS NO. 1413 WELLSTONE AMENDMENTS NOS. calendar of the House involved. (Ordered to lie on the table.) 1415–1416 ‘‘(5) FLOOR CONSIDERATION.— ‘‘(a) IN GENERAL.—When the committee to Mr. LEAHY (for himself, Ms. (Ordered to lie on the table.) which such a bill is referred has reported, or MOSELEY-BRAUN, Mr. FEINGOLD, and Mr. WELLSTONE submitted two when a committee is discharged (under (4)) Mr. KERREY) submitted an amendment amendments intended to be proposed from further consideration of such bill, it is intended to be proposed by them to by him to the bill, S. 652, supra; as fol- at any time thereafter in order (even though amendment No. 1268 submitted by Mr. lows: a previous motion to the same effect has EXON to the bill S. 652, supra; as fol- AMENDMENT NO. 1415 been disagreed to) for a motion to proceed to lows: At an appropriate place insert the follow- the consideration of the bill. The motion is ing: not subject to amendment, or to a motion to Strike out the matter proposed to be in- serted and insert in lieu thereof the follow- ‘‘SEC. . EXPEDITED CONGRESSIONAL REVIEW postpone, or to a motion to proceed to the PROCEDURE. ing: consideration of other business. A motion to ‘‘(a) REQUIREMENT OF LEGISLATIVE PRO- (1) in subsection (a), by striking out ‘‘sec- reconsider the vote by which the motion is POSAL.—The report on means of restricting agreed to or disagreed to shall not be in tion’’ and inserting in lieu thereof ‘‘sub- access to unwanted material in interactive order. If a motion to proceed to the consider- section’’; and telecommunications systems shall be accom- ation of the bill is agreed to, the bill shall re- (2) by striking out ‘‘$50,000’’ each place it panied by a legislative proposal in the form main the unfinished business of the respec- appears and inserting in lieu thereof of a bill reflecting the recommendations of tive House until disposed of. ‘‘$100,000’’. the Attorney General as described in the re- ‘‘(b) FINAL PASSAGE.—Immediately follow- (b) REPORT ON MEANS OF RESTRICTING AC- port. ing the conclusion of the debate on such a CESS TO UNWANTED MATERIAL IN INTERACTIVE ‘‘(b) IN GENERAL.—A legislative proposal bill described in (3), and a single quorum call TELECOMMUNICATIONS SYSTEMS.— described in (a) shall be introduced by the at the conclusion of the debate if requested (1) REPORT.—Not later than 150 days after Majority Leader or his designee as a bill in accordance with the rules of the appro- the date of the enactment of this Act, the upon submission and referred to the commit- priate House, the vote on final passage of the Attorney General shall submit to the Com- tees in each House of Congress with jurisdic- bills hall occur. mittees on the Judiciary of the Senate and tion. Such a bill may not be reported before ‘‘(c) APPEALS.—Appeals from the decisions the House of Representatives a report con- the eighth day after the date upon which it of the Chair relating to the application of taining— was submitted to the Congress as a legisla- the rules of the Senate or the House of Rep- (A) an evaluation of the enforceability tive proposal. resentatives, as the case may be, to the pro- with respect to interactive media of current ‘‘(c) DISCHARGE.—If the committee to cedure relating to a bill described in (3) shall criminal laws governing the distribution of which is referred a bill described in sub- be decided without debate. obscenity over computer networks and the section (a) has not reported such bill at the June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8397 end of 20 calendar days after the submission ‘‘(i) to enable parents to exercise control the rules of the Senate or the House of Rep- date referred to in (b), such committee may over the information that their children re- resentatives, as the case may be, to the pro- be discharged from further consideration of ceive by interactive telecommunications cedure relating to a bill described in (2) shall such bill in the Senate upon a petition sup- systems so that children may avoid violent, be decided without debate. ported in writing by 30 Members of the Sen- sexually explicit, harassing, offensive, and ‘‘(5) CONSTITUTIONAL AUTHORITY.—This sec- ate and in the House upon a petition sup- other unwanted material on such systems; tion is enacted by Congress— ported in writing by one-fourth of the Mem- ‘‘(ii) to enable other users of such systems ‘‘(A) as an exercise of the rulemaking bers duly sworn and chosen or by motion of to exercise control over the commercial and power of the Senate and House of Represent- the Speaker supported by the Minority Lead- noncommercial information that they re- atives, respectively, and as such it is deemed er, and such resolution shall be placed on the ceive by such systems so that such users a part of the rules of each House, respec- appropriate calendar of the House involved. may avoid violent, sexually explicit, tively, but applicable only with respect to ‘‘(d) FLOOR CONSIDERATION.— harassing, offensive, and other unwanted ma- the procedure to be followed in that House in ‘‘(1) IN GENERAL.—When the committee to terial on such systems; and the case of a bill described in (2), and it su- which such a bill is referred has reported, or ‘‘(iii) to promote the free flow of informa- persedes other rules only to the extent that when a committee is discharged (under sub- tion, consistent with the values expressed in it is inconsistent with such rules; and section (c)) from further consideration of the Constitution, in interactive media; and ‘‘(B) with full recognition of the constitu- such bill, it is at any time thereafter in ‘‘(D) recommendations on means of encour- tional right of either House to change the order (even though a previous motion to the aging the development and deployment of rules (so far as relating to the procedure of same effect has been discharged to) for a mo- technology, including computer hardware that House) at anytime, in the same manner, tion to proceed to the consideration of the and software, to enable parents and other and to the same extent as in the case of any bill. The motion is not subject to amend- users of interactive telecommunications sys- other rule of that House.’’ ment, or to a motion to postpone, or to a tems to exercise the control described in motion to proceed to the consideration of clauses (i) and (ii) of subparagaph (C). KERRY AMENDMENTS NOS. 1417– ‘‘(2) CONSULTATION.—In preparing the re- other business. A motion to reconsider the 1418 vote by which the motion is agreed to or dis- port under paragraph (1), the Attorney Gen- agreed to shall not be in order. If a motion eral shall consult with the Assistant Sec- (Ordered to lie on the table.) to proceed to the consideration of the bill is retary of Commerce for Communications and Mr. KERRY submitted two amend- agreed to, the bill shall remain the unfin- Information. ments intended to be proposed by him ished business of the respective House until ‘‘(c) EXPEDITED CONGRESSIONAL REVIEW to amendments to the bill, S. 652, PROCEDURE.— disposed of. supra; as follows: ‘‘(2) FINAL PASSAGE.—Immediately follow- ‘‘(1) REQUIREMENT OF LEGISLATIVE PRO- AMENDMENT NO. 1417 ing the conclusion of the debate on such a POSAL.—The report on means of restricting bill described in subsection (a), and a single access to unwanted material in interactive Strike all beginning with the words ‘‘Part quorum call at the conclusion of the debate telecommunications systems shall be accom- II’’ on line 4 of page 1 of the amendment and if requested in accordance with the rules of panied by a legislative proposal in the form insert the following: the appropriate House, the vote on final pas- of a bill reflecting the recommendations of Part II of title II (47 U.S.C. 251 et seq.), as sage of the bill shall occur. the Attorney General as described in the re- amended by this Act, is amended by adding after section 264 the following new section: ‘‘(3) APPEALS.—Appeals from the decisions port. of the Chair relating to the application of ‘‘(2) IN GENERAL.—A legislative proposal ‘‘SEC. 265. PROVISION OF PAYPHONE SERVICES the rules of the Senate or the House of Rep- described in (1) shall be introduced by the AND TELEMESSAGING SERVICES. resentatives, as the case may be, to the pro- Majority Leader or his designee as a bill ‘‘(a) NONDISCRIMINATION SAFEGUARDS.—On cedure relating to a bill described in sub- upon submission and referred to the commit- the date that the regulations issued pursuant section (b) shall be decided without debate. tees in each House of Congress with jurisdic- to subsection (b) take effect, any Bell oper- tion. Such a bill may not be reported before ating company that provides payphone serv- ‘‘(e) CONSTITUTIONAL AUTHORITY.—This sec- tion is enacted by Congress— the eighth day after the date upon which it ices or telemessaging services— ‘‘(1) shall not subsidize its payphone serv- ‘‘(1) as an exercise of the rulemaking power was submitted to the Congress as a legisla- ices or telemessaging services directly or in- of the Senate and House of Representatives, tive proposal. ‘‘(3) DISCHARGE.—If the committee to directly with revenue from its telephone ex- respectively, and as such it is deemed a part which is referred a bill described in para- change services or its exchange access serv- of the rules of each House, respectively, but graph (1) has not reported such bill at the ices; and applicable only with respect to the procedure end of 20 calendar days after the submission ‘‘(2) shall not prefer or discriminate in to be followed in that House in the case of a date referred to in (2), such committee may favor of its payphone services or bill described in subsection (b), and it super- be discharged from further consideration of telemessaging services. sedes other rules only to the extent that it is such bill in the Senate upon a petition sup- ‘‘(b) REGULATIONS.— inconsistent with such rules; and ported in writing by 30 Members of the Sen- ‘‘(1) In order to promote competition ‘‘(2) with full recognition of the constitu- ate and in the House upon a petition sup- among payphone service providers and pro- tional right of either House to change the ported in writing by one-fourth of the Mem- mote the widespread deployment of rules (so far as relating to the procedure of bers duly sworn and chosen or by motion of payphone services to the benefit of the gen- that House) at anytime, in the same manner, the Speaker supported by the Minority Lead- eral public, the Commission shall conduct a and to the same extent as in the case of any er, and such resolution shall be placed on the rulemaking, with such rulemaking to be con- other rule of that House.’’ appropriate calendar of the house involved. cluded not later than six months after the ‘‘(4) FLOOR CONSIDERATION.— date of enactment of this section and with AMENDMENT NO. 1416 ‘‘(A) IN GENERAL.—When the committee to all such rules as the Commission may adopt Strike out all matter proposed by the which such a bill is referred has reported, or in such rulemaking to take effect concur- amendment and insert in lieu thereof the fol- when a committee is discharged (under para- rently no later than nine months after the lowing: graph (3)) from further consideration of such date of enactment of this section, in which ‘‘On page 144, strike lines 4 through 17 and a bill, it is at any time thereafter in order the Commission shall determine how each insert the following: (even though a previous motion to the same payphone service provider shall be com- ‘‘(b) REPORT ON MEANS OF RESTRICTING AC- effect has been disagreed to) for a motion to pensated for all completed interstate and CESS TO UNWANTED MATERIAL IN INTERACTIVE proceed to the consideration of the bill. The intrastate calls placed on its payphones. In TELECOMMUNICATIONS SYSTEMS.— motion is not subject to amendment, or to a the rulemaking, the Commission shall deter- ‘‘(1) REPORT.—Not later than 150 days after motion to postpone, or to a motion to pro- mine— the date of the enactment of this Act, the ceed to the consideration of other business. ‘‘(A) the type of compensation plan that Attorney General shall submit to the Com- A motion to reconsider the vote by which best ensures fair compensation to payphone mittees on the judiciary of the Senate and the motion is agreed to or disagreed to shall services providers for completed interstate the House of Representatives a report con- not be in order. If a motion to proceed to the and intrastate calls, except emergency calls taining— consideration of the bill is agreed to, the bill and telecommunications relay service calls ‘‘(A) an evaluation of the enforceability shall remain the unfinished business of the for hearing-impaired individuals which shall with respect to interactive media of current respective House until disposed of. not be subject to such compensation, and criminal laws governing the distribution of ‘‘(B) FINAL PASSAGE.—Immediately follow- whether the current intrastate and inter- obscenity over computer networks and the ing the conclusion of the debate on such a state carrier access charge payphone service creation and distribution of child pornog- bill described in (1), and a single quorum call elements and payments should be continued raphy by means of computers; at the conclusion of the debate if requested or should be discontinued and replaced; ‘‘(B) an assessment of the Federal, State, in accordance with the rules of the appro- ‘‘(B) whether to prescribe a set of non- and local law enforcement resources that are priate House, the vote on final passage of the structural safeguards for Bell operating com- currently available to enforce such laws; bill shall occur. pany payphone services to implement the ‘‘(C) an evaluation of the technical means ‘‘(C) APPEALS.—Appeals from the decisions provisions of paragraphs (1) and (2) of sub- available— of the Chair relating to the application of section (a), which safeguards, if prescribed, S 8398 CONGRESSIONAL RECORD — SENATE June 14, 1995

shall at a minimum include nonstructural already providing or has proposed to provide ‘‘(5) SEPARATIONS RULES.—Nothing in the safeguards equal to those adopted in the the service. amendments made by the Telecommuni- Computer Inquiry-III, CC Docket No. 90–623, The Commission shall provide for public cations Competition and Deregulation Act of proceeding; and comment on the adequacy of the carrier’s 1995 to this Act shall affect the Commission’s ‘‘(C) if Bell operating company payphone proposed service area on the basis of the re- separations rules for local exchange carriers service providers should have the right to ne- quirements of this section.’’ or interexchange carriers in effect on the gotiate an agreement with any one or more date of enactment of this section. payphone location providers which would HOLLINGS AMENDMENT NO. 1419 ‘‘(6) UNIVERSAL SERVICE PRINCIPLES.—The permit said Bell operating company Joint Board and the Commission shall base payphone service providers to select and con- (Ordered to lie on the table.) policies for the preservation and advance- tract with the carriers that carry interLATA Mr. HOLLINGS submitted an amend- ment of universal service on the following calls to carry interLATA calls from that ment intended to be proposed by him principles: payphone location provider’s payphones and to an amendment to the bill, S. 652, ‘‘(A) Quality services are to be provided at to select and contract with the carriers that supra; as follows: just, reasonable, and affordable rates. carry intraLATA calls to carry intraLATA ‘‘(B) Access to advanced telecommuni- At the end of the amendment, add the fol- calls from that payphone location provider’s cations and information services should be lowing: payphones; provided that nothing in this sec- provided in all regions of the Nation. ‘‘(c) UNIVERSAL SERVICE; ESSENTIAL TELE- tion or in any regulation adopted by the ‘‘(C) Consumers in rural and high cost COMMUNICATION CARRIERS.— Commission shall affect any contracts be- areas should have access to telecommuni- ‘‘(1) APPLICABILITY.—Notwithstanding sec- tween location providers and payphone serv- tions 103 and 104 of the Telecommunications cations and information services, including ice providers or between payphone location Competition and Deregulation Act of 1995, interexchange services, that are reasonably providers and interLATA or intraLATA car- the provisions of this subsection shall govern comparable to those services provided in riers that are in force and effect as of the universal service and essential telecommuni- urban areas. date of enactment of this section. cations carriers, respectively. ‘‘(D) Consumers in rural and high cost ‘‘(c) STATE PREEMPTION.—To the extent areas should have access to telecommuni- that the requirements of any State are in- ‘‘(2) FINDINGS.—The Congress finds that— ‘‘(A) the existing system of universal serv- cations and information services at rates consistent with the Commission’s regula- ice has evolved since 1930 through an ongoing that are reasonably comparable to rates tions adopted in the rulemaking conducted dialogue between industry, various Federal- charged for similar services in urban areas. pursuant to subsection (b), the Commission’s State Joint Boards, the Commission, and the ‘‘(E) Consumers in rural and high cost regulations on such matters shall preempt courts; areas should have access to the benefits of such State requirements. ‘‘(B) this system has been predicated on advanced telecommunications and informa- ‘‘(d) RULEMAKING FOR TELEMESSAGING.—In tion services for health care, education, eco- a separate proceeding, the Commission shall rates established by the Commission and the States that require implicit cost shifting by nomic development, and other public pur- determine if, in order to enforce the require- poses. ments of this section, it is appropriate to re- monopoly providers of telephone exchange service through both local rates and access ‘‘(F) There should be a coordinated Fed- quire the Bell operating companies to pro- eral-State universal service system to pre- vide telemessaging services through a sepa- charges to interexchange carriers; ‘‘(C) the advent of competition for the pro- serve and advance universal service using rate subsidiary that meets the requirements vision of telephone exchange service has led specific and predictable Federal and State of Section 252. to industry requests that the existing sys- mechanisms administered by an independ- ‘‘(e) MODIFICATION OF FINAL JUDGMENT.— tem be modified to make support for univer- ent, non-governmental entity or entities. Notwithstanding any other provision of law, ‘‘(G) Elementary and secondary schools or any prior prohibition or limitation estab- sal service explicit and to require that all telecommunications carriers participate in and classrooms should have access to ad- lished pursuant to the Modification of Final vanced telecommunications services. Judgment, the Commission is directed and the modified system on a competitively neu- ‘‘(7) DEFINITION.— authorized to implement this section. tral basis; and ‘‘(D) modification of the existing system is ‘‘(A) IN GENERAL.—Universal service is an ‘‘(f) DEFINITIONS.—As used in this section— evolving level of intrastate and interstate ‘‘(1) The term ‘payphone service’ means the necessary to promote competition in the pro- telecommunications services that the Com- provision of public or semi-public pay tele- vision of telecommunications services and to mission, based on recommendations from the phones, the provision of inmate telephones allow competition and new technologies to public, Congress, and the Federal-State in correctional institutions, and ancillary reduce the need for universal service support Joint Board periodically convened under this services. mechanisms. ‘‘(2) The term ‘telemessaging services’ ‘‘(3) FEDERAL-STATE JOINT BOARD ON UNI- subsection, and taking into account ad- means voice mail and voice storage retrieval VERSAL SERVICE.— vances in telecommunications and informa- services provided over telephone lines, any ‘‘(A) Within one month after the date of tion technologies and services, determines— live operator services used to retranscribe or enactment of this section, the Commission ‘‘(i) should be provided at just, reasonable, relay messages (other than telecommuni- shall institute and refer to a Federal-State and affordable rates to all Americans, in- cation relay services for the hearing-im- Joint Board under section 410(c) of this Act cluding those in rural and high cost areas paired), and ancillary services offered in a proceeding to recommend rules regarding and those with disabilities; combination with these services.’’ the implementation of section 253 of this ‘‘(ii) are essential in order for Americans Act, including the definition of universal to participate effectively in the economic, AMENDMENT NO. 1418 service. The Joint Board shall, after notice academic, medical, and democratic processes of the Nation; and At the end of the amendment, add the fol- and public comment, make its recommenda- ‘‘(iii) are, through the operation of market lowing: tions to the Commission no later than 9 months after the date of enactment of this choices, subscribed to by a substantial ma- SEC. . PROHIBITION ON EXCLUSION OF AREAS jority of residential customers. FROM SERVICE BASED ON RURAL section . LOCATION, HIGH COST, OR INCOME. ‘‘(B) The Commission may periodically, ‘‘(B) DIFFERENT DEFINITION FOR CERTAIN Part II of title II (47 U.S.C. 201 et seq.) as but no less than once every 4 years, institute PURPOSES.—The Commission may establish a amended by this Act, is amended by adding and refer to the Joint Board a proceeding to different definition of universal service for after section 261 the following: review the implementation of section 253 of schools, libraries, and health care providers this Act and to make new recommendations, for the purposes of this section. ‘‘SEC. 262. PROHIBITION ON EXCLUSION OF AREAS FROM SERVICE BASED ON as necessary, with respect to any modifica- ‘‘(8) ALL TELECOMMUNICATIONS CARRIERS RURAL LOCATION, HIGH COSTS, OR tions or additions that may be needed. As MUST PARTICIPATE.—Every telecommuni- INCOME. part of any such proceeding the Joint Board cations carrier engaged in intrastate, inter- The Commission shall prohibit any tele- shall review the definition of, and adequacy state, or foreign communication shall par- communications carrier from excluding from of support for, universal service and shall ticipate, on an equitable and nondiscrim- any of such carrier’s services any high-cost evaluate the extent to which universal serv- inatory basis, in the specific and predictable area, or any area on the basis of the rural lo- ice has been protected and advanced. mechanisms established by the Commission cation or the income of the residents of such ‘‘(4) COMMISSION ACTION.—The Commission and the States to preserve and advance uni- area; provided that a carrier may exclude an shall initiate a single proceeding to imple- versal service. Such participation shall be in area in which the carrier can demonstrate ment recommendations from the initial the manner determined by the Commission that— Joint Board required by paragraph (3) and and the States to be reasonably necessary to (1) there will be insufficient consumer de- shall complete such proceeding within 1 year preserve and advance universal service. Any mand for the carrier to earn some return after the date of enactment of this section. other provider of telecommunications may over the long term on the capital invested to Thereafter, the Commission shall complete be required to participate in the preservation provide such service to such area, and— any proceeding to implement recommenda- and advancement of universal service, if the (2) providing a service to such area will be tions from any further Joint Board required public interest so requires. less profitable for the carrier than providing under paragraph (3) within one year after re- ‘‘(9) STATE AUTHORITY.—A State may adopt the service in areas to which the carrier is ceiving such recommendations. regulations to carry out its responsibilities June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8399 under this subsection, or to provide for addi- versal service under this Act. Further, noth- the provision of such service in a manner tional definitions, mechanisms, and stand- ing in this subsection shall be construed to that ensures that the carrier whose facilities ards to preserve and advance universal serv- require or prohibit the adoption of any spe- are being resold is adequately compensated ice within that State, to the extent that cific type of mechanism for the preservation for their use, taking into account the impact such regulations do not conflict with the and advancement of universal service. of the resale on that carrier’s ability to Commission’s rules to implement this sub- ‘‘(16) EFFECTIVE DATE.—This subsection maintain and deploy its network as a whole. section. A State may only enforce additional takes effect on the date of enactment of the The Commission shall also establish, based definitions or standards to the extent that it Telecommunications Act of 1995, except for on the recommendations of the Federal- adopts additional specific and predictable paragraphs (8), (9), (10), (11), and (14) which State Joint Board instituted to implement mechanisms to support such definitions or take effect one year after the date of enact- this paragraph, rules to permit a carrier des- standards. ment of that Act.’’. ignated as an essential telecommunications ‘‘(10) ELIGIBILITY FOR UNIVERSAL SERVICE ‘‘(17) ESSENTIAL TELECOMMUNICATIONS CAR- carrier to relinquish that designation for a SUPPORT.—To the extent necessary to pro- RIERS— specific service area if another telecommuni- vide for specific and predictable mechanisms ‘‘(A) DESIGNATION OF ESSENTIAL CARRIER.— cations carrier is also designated as an es- If one or more common carriers provide tele- to achieve the purposes of this subsection, sential telecommunications carrier for that communications service to a geographic the Commission shall modify its existing area. The rules— area, and no common carrier will provide rules for the preservation and advancement ‘‘(i) shall ensure that all customers served universal service to an unserved community of universal service. Only essential tele- by the relinquishing carrier continue to be or any portion thereof that requests such communications carriers designated under served, and shall require sufficient notice to service within such area, then the Commis- section 214(d) shall be eligible to receive sup- permit the purchase or construction of ade- sion, with respect to interstate services, or a port for the provision of universal service. quate facilities by any remaining essential State, with respect to intrastate services, Such support, if any, shall accurately reflect telecommunications carrier if such remain- shall determine which common carrier serv- what is necessary to preserve and advance ing carrier provided universal service ing that area is best able to provide univer- universal service in accordance with this through resale of the facilities of the relin- sal service to the requesting unserved com- subsection and the other requirements of quishing carrier; and munity or portion thereof, and shall des- this Act. ‘‘(ii) shall establish criteria for determin- ignate that common carrier as an essential ‘‘(11) UNIVERSAL SERVICE SUPPORT.—The ing when a carrier which intends to utilize telecommunications carrier for that Commission and the States shall have as resale to meet the requirements for designa- unserved community or portion thereof. their goal the need to make any support for tion under this paragraph has adequate re- ‘‘(B) ESSENTIAL CARRIER OBLIGATIONS.—A universal service explicit, and to target that sources to purchase, construct, or otherwise common carrier may be designated by the support to those essential telecommuni- obtain the facilities necessary to meet its Commission, or by a State, as appropriate, cations carriers that serve areas for which obligation if the reselling carrier is no as an essential telecommunications carrier such support is necessary. The specific and longer able or obligated to resell the service. predictable mechanisms adopted by the Com- for a specific service area and become eligi- ble to receive universal service support ‘‘(E) ENFORCEMENT.—A common carrier mission and the States shall ensure that es- designated by the Commission or a State as sential telecommunications carriers are able under section 253. A carrier designated as an essential telecommunications carrier shall— an essential telecommunications carrier to provide universal service at just, reason- that refuses to provide universal service able, and affordable rates. A carrier that re- ‘‘(i) provide through its own facilities or through a combination of its own facilities within a reasonable period to an unserved ceive universal service support shall use that community or portion thereof which re- support only for the provision, maintenance, and resale of services using another carrier’s facilities, universal service and any addi- quests such service shall forfeit to the Unit- and upgrading of facilities and services for ed States, in the case of interstate services, which the support is intended tional service (such as 911 service) required by the Commission or the State, to any com- or the State, in the case of intrastate serv- ‘‘(12) INTEREXCHANGE SERVICES.—The rates ices, a sum of up to $10,000 for each day that charged by any provider of interexchange munity or portion thereof which requests such service; such carrier refuses to provide such service. telecommunications service to customers in In determining a reasonable period the Com- rural and high cost areas shall be no higher ‘‘(ii) offer such services at nondiscrim- inatory rates established by the Commission, mission or the State, as appropriate, shall than those charged by such provider to its consider the nature of any construction re- customers in urban areas. for interstate services, and the State, for intrastate services, throughout the service quired to serve such requesting unserved ‘‘(13) SUBSIDY OF COMPETITIVE SERVICES community or portion thereof, as well as the PROHIBITED.—A telecommunications carrier area; and ‘‘(iii) advertise throughout the service area construction intervals normally attending may not use services that are not competi- such construction, and shall allow adequate tive to subsidize competitive services. The the availability of such services and the rates for such services using media of gen- time for regulatory approvals and acquisi- Commission, with respect to interstate serv- tion of necessary financing. ices, and the States, with respect to intra- eral distribution. ‘‘(F) INTEREXCHANGE SERVICES.—The Com- state services, shall establish any necessary ‘‘(C) MULTIPLE ESSENTIAL CARRIERS.—If the mission, for interstate services, or a State, cost allocation rules, accounting safeguards, Commission, with respect to interstate serv- for intrastate services, shall designate an es- and guidelines to ensure that services in- ices, or a State, with respect to intrastate sential telecommunications carrier for cluded in the definition of universal service services, designates more than one common interexchange services for any unserved bear no more than a reasonable share of the carrier as an essential telecommunications community or portion thereof requesting joint and common costs of facilities used to carrier for a specific service area, such car- such services. Any common carrier des- provide those services. rier shall meet the service, rate, and adver- ignated as an essential telecommunications ‘‘(14) CONGRESSIONAL NOTIFICATION RE- tising requirements imposed by the Commis- carrier for interexchange services under this QUIRED.— sion or State on any other essential tele- ‘‘(A) IN GENERAL.—The Commission may communications carrier for that service subparagraph shall provide interexchange not take action to require participation by area. A State shall require that, before des- services included in universal service to any telecommunications carriers or other provid- ignating an additional essential tele- unserved community or portion thereof ers of telecommunications under paragraph communications carrier, the State agency which requests such service. The service (8), or to modify its rules to increase support authorized to make the designation shall shall be provided at nationwide geographi- for the preservation and advancement of uni- find that— cally averaged rates for interstate versal service, until— ‘‘(i) the designation of an additional essen- interexchange services and at geographically ‘‘(i) the Commission submits to the Com- tial telecommunications carrier is in the averaged rates for intrastate interexchange mittee on Commerce, Science, and Transpor- public interest and that there will not be a services, and shall be just and reasonable and tation of the Senate and the Committee on significant adverse impact on users of tele- not unjustly or unreasonably discrimina- Commerce of the House of Representatives a communications services or on the provision tory. A common carrier designated as an es- report on the participation required, or the of universal service; sential telecommunications carrier for increase in support proposed, as appropriate; ‘‘(ii) the designation encourages the devel- interexchange services under this subpara- and opment and deployment of advanced tele- graph that refuses to provide interexchange ‘‘(ii) a period of 120 days had elapsed since communications infrastructure and services service in accordance with this subparagraph the date the report required under clause (i) in rural areas; and to an unserved community or portion thereof was submitted. ‘‘(iii) the designation protects the public that requests such service within 180 days of ‘‘(B) NOT APPLICABLE TO REDUCTIONS.—This safety and welfare, ensures the continued such request shall forfeit to the United paragraph shall not apply to any action quality of telecommunications services, or States a sum of up to $50,000 for each day taken to reduce costs to carriers or consum- safeguards the rights of consumers. that such carrier refuses to provide such ers. ‘‘(D) RESALE OF UNIVERSAL SERVICE.—The service. The Commission or the State, as ap- ‘‘(15) EFFECT ON COMMISSION’S AUTHOR- Commission, for interstate services, and the propriate, may extend the 180-day period for ITY.—Nothing in this subsection shall be con- States, for intrastate services, shall estab- providing interexchange service upon a strued to expand or limit the authority of lish rules to govern the resale of universal showing by the common carrier of good faith the Commission to preserve and advance uni- service to allocate any support received for efforts to comply within such period. S 8400 CONGRESSIONAL RECORD — SENATE June 14, 1995 ‘‘(G) IMPLEMENTATION.—The Commission S. RES. 133 the Child.’’ I have received only one may, by regulation, establish guidelines by Whereas the Senate affirms the commit- letter in support of this proposed trea- which States may implement the provisions ment of the United States to work with ty. The consensus is so evident in this of this paragraph. other nations to enhance the protection of mass of letters. It is stated, as a mat- children, the advancement of education, the ter of fact, by Ron Christensen, of Ful- INOUYE AMENDMENT NO. 1420 eradication of disease, and the protection of lerton, NE, who put it this way: ‘‘Every human rights; (Ordered to lie on the table.) Whereas the Constitution and laws of the facet of our life is already being regu- Mr. INOUYE submitted an amend- United States are the best guarantees lated by some ‘politically correct’ do- ment intended to be proposed by him against mistreatment of children in our gooder. Our freedom is gradually being to amendment No. 1303, proposed by country; eroded under the pretext of ‘protecting Whereas the laws and traditions of the Mr. STEVENS, to the bill S. 652, supra; us.’ This Convention, if ratified, would United States affirm the right of parents to as follows: give children rights and privileges that raise their children and to transmit to them they are not mature enough to handle, On line 1, strike ‘‘reflecting’’ and all that their values and religious beliefs; follows through the end of line 3 and insert Whereas the United Nations Convention on and would make any guidance and dis- in lieu thereof ‘‘at charges that are based on the Rights of the Child, if ratified, would be- cipline from parents extremely dif- the cost (determined without reference to a come the supreme law of the land, taking ficult.’’ That was Ron Christensen of rate-of-return or other rate-based proceed- precedence over State and Federal laws re- Fullerton, NE. ing) of providing the unbundled element, garding family life; Mr. President, the truth is, the non-discriminatory, individually-priced to Whereas that Convention establishes a American people are just not buying the smallest element that is technically fea- ‘‘universal standard’’ which must be met by this bag of worms. sible and economically reasonable to provide all parties to the Convention, thereby inhib- and based on providing a reasonable profit to iting the rights of the States and the Federal This proposed treaty is yet another the Bell operating company,’’. Government to enact child protection and attempt, in a growing list of United support laws inconsistent with that stand- Nations ill-conceived efforts, to chip ard; and away at the U.S. Constitution. If rati- BREAUX (AND LEAHY) Whereas the Convention’s intrusion into AMENDMENT NO. 1421 fied, this treaty would leave the United national sovereignty was manifested by the States open to hostile attacks on sev- Mr. BREAUX (for himself and Mr. Convention’s 1995 committee report faulting eral fronts, particularly for any res- the United Kingdom for permitting parents LEAHY) proposed an amendment to the ervations to the treaty placed to try to bill S. 652, supra; as follows: to make decisions for their children without consulting those children: Now, therefore, be safeguard U.S. Constitutional liberties. On page 93, strike lines 7–12 and insert the it And from whom would those attacks following: Resolved, That it is the sense of the Senate come? From such gentle souls as Sad- ‘‘(ii) Except for single-LATA States and that— dam Hussein and Fidel Castro, and States which have issued an order by June 1, (1) the United Nations Convention on the other tyrants, who are just some of the 1995 requiring a Bell operating company to Rights of the Child is incompatible with the implement toll dialing parity, a State may parties who are signatories to that God-given right and responsibility of parents treaty. not require a Bell operating company to im- to raise their children; plement toll dialing parity in an intra-LATA (2) the Convention has the potential to se- Mr. President, let me state just one area before a Bell operating company has verely restrict States and the Federal Gov- example. Recently, a United Nations been granted authority under this subsection ernment in their efforts to protect children committee—(established under another to provide inter-LATA services in that area and to enhance family life; human rights treaty, The U.N. Cov- or before three years after the date of enact- (3) the United States Constitution is the enant on Civil and Political Rights)— ment of the Telecommunications Act of 1995, ultimate guarantor of rights and privileges issued a document that would rewrite whichever is earlier. Nothing in this clause to every American, including children; and international law by reserving for it- precludes a State from issuing an order re- (4) the President should not sign and trans- quiring toll dialing parity in an intra-LATA mit to the Senate that fundamentally flawed self the right to approve reservations area prior to either such date so long as such Convention. to treaties approved by the U.S. Sen- order does not take effect until after the ear- Mr. HELMS. Mr. President, every so ate. As the saying goes, ‘‘how do you lier of either such dates. like them apples?’’ General comment ‘‘(iii) In any State in which intra-LATA often around this place we are asked to confront an idea whose time should No. 24 issued by the United Nations toll dialing parity has been implemented committee arrogantly states, prior to the earlier date specified in clause never come, and the Senate resolution (ii), no telecommunications carrier that that I shall shortly send to the desk for It necessarily falls to the United Nations serves greater than five percent of the na- appropriate reference is one of those committee to determine whether a specific tion’s presubscribed access lines may jointly very, very bad ideas. reservation is compatible with the object market inter-LATA telecommunications and purpose of the covenant. This is in part Eighteen other Senators feel the because it is an inappropriate task for States services and intra-LATA toll telecommuni- same way about the proposed treaty cations services in a telephone exchange parties in relation to human rights treaties, area in such state until a Bell operating called ‘‘The United Nations Convention and in part because it is a task that the company is authorized under this subsection on the Rights of the Child.’’ Committee cannot avoid in the performance to provide inter-LATA services in such tele- In addition to the Senator from of its functions. phone exchange area or until three years North Carolina, other cosponsors are It goes on to say, after the date of enactment of the Tele- Senators LOTT, ABRAHAM, ASHCROFT, The normal consequence of an unaccept- communications Act of 1995, whichever is COATS, CRAIG, DEWINE, FAIRCLOTH, able reservation is not that the covenant earlier.’’. FRIST, GRAMM, GRAMS, HATCH, will not be in effect at all for a reserving f KEMPTHORNE, MCCONNELL, MURKOWSKI, party. Rather, such a reservation will gen- NICKLES, SANTORUM, SMITH and THUR- erally be severable, in the sense that the cov- SENATE RESOLUTION 133—REL- MOND. I am honored to stand with such enant will be operative for the reserving ATIVE TO THE UNITED NATIONS a distinguished group of Senators who party without the benefit of the reservation. CONVENTION ON THE RIGHTS OF feel, as I do, that President Clinton— Bullfeathers, Mr. President. These THE CHILD indeed no PresidenT—should sign and reservations attached to treaties by Mr. HELMS (for himself, Mr. LOTT, transmit such a document to the U.S. the U.S. Senate are put there to pro- Mr. ABRAHAM, Mr. ASHCROFT, Mr. Senate. If the President does attempt tect the rights of the American citizens COATS, Mr. CRAIG, Mr. DEWINE, Mr. to push this unwise proposal through and protect the meaning of the U.S. FAIRCLOTH, Mr. FRIST, Mr. GRAMM, Mr. the Senate, I want him to know, and I Constitution. Yet, the United Nations GRAMS, Mr. HATCH, Mr. KEMPTHORNE, want the Senate to know, that I intend claims for itself the right to strip U.S. Mr. MCCONNELL, Mr. MURKOWSKI, Mr. to do everything possible to make sure reservations to any treaty, and never- NICKLES, Mr. SANTORUM, Mr. SMITH, that he is not successful. theless hold the U.S. bound to all of and Mr. THURMOND) submitted the fol- Mr. President, more than 5,000 letters the obligations of the treaty. This at- lowing resolution; which was referred from across this country have poured tempt by the United Nations under- to the Committee on Foreign Rela- into my office in opposition to the so- mines the U.S. Constitution and is an tions: called ‘‘Convention on the Rights of outrage. I cannot believe any Senator June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8401 is naive enough to subscribe to such the child to express his or her opinion is not the Fir Room, 2300 Evergreen Park nonsense. solicited. Thereby the opinion of the child Drive, Olympia, Washington, 98502. The Anybody wanting to know why may not be given due weight and taken into purpose of this oversight hearing is to: Americans are becoming increasingly account as required under article 12 of the First, review the Forest Service’s use Convention. fed up with the United Nations need of the RPA Timber Assessment for de- only consider the words of one U.N. of- Does this mean, Mr. President, that veloping timber harvest programs and ficial who said, regarding the U.S. American parents will be forced to budgets; and second, determine if the human rights report to the United Na- allow their children to attend sex edu- process adequately addresses ways to tions, ‘‘The United States Constitution cation classes? solve emerging international environ- was not sacrosanct and had required The constituent whom I quoted when mental impacts as a result of domestic some amendment over the years. The I began these remarks lamented the timber supply shortages. possibility of more politically correct judiciary must be made aware of the Because of the limited time available do-gooders regulating every facet of evolving legal standards coming out of for the hearings, witnesses may testify our lives. The American people do not the application of the Covenant.’’ by invitation only. It will be necessary need yet another body determining So, Mr. President, the United Na- to place witnesses in panels and place what is in the best interest of U.S. fam- tions’ view of the U.S. Constitution time limits on oral testimony. Wit- ilies. And the Senate should not inflict and the U.S. Senate reservations to nesses are requested to submit one one on them. The U.N. Convention is human rights treaties is quite clear. copy of their testimony to the commit- incompatible with God-given rights The United Nations, not the U.S. Sen- tee by close of business Friday, June and responsibilities of parents to raise ate, claims to know what is best for 30, 1995, and to bring three copies of their children. It is grotesque even to Americans. To which the majority of their testimony with them on the day imagine handing this important privi- Americans will reply, and I say again: of the hearing. lege over to U.N. bureaucrats. The laws ‘‘Bullfeathers.’’ The hearing record will remain open and traditions of the United States af- In light of these statements and this for two weeks following each hearing. firm the right of parents to raise their insane interpretation of international If you wish to submit a written state- children and to transmit to them their law, any Senate reservation to the U.N. ment for the hearing record, please values and religious beliefs. Convention on the Rights of the Child send one copy of your statement to the Mr. President, the United States Sen- regarding, say, the death penalty, or Committee on Energy and Natural Re- ate must not dignify this strange docu- routine protections of the constitu- sources, U.S. Senate, Washington, DC ment by allowing the U.N. Convention tional liberties, very well could unilat- 20510. on the Rights of the Child to be consid- erally be discarded by the United Na- f tions, leaving the United States open ered. That is why my distinguished col- leagues and I are pleased to offer this to attack for failing to ‘‘compl’’ with AUTHORITY FOR COMMITTEES TO Resolution requesting that the Presi- the treaty. This treaty must be re- MEET jected on its merits, or lack thereof. dent refrain from any temptation to COMMITTEE ON AGRICULTURE, NUTRITION AND The United Nations’ absurd posture re- submit this proposed treaty to the Sen- FORESTRY garding the Senate reservations to ate. treaties is enough to dismiss any possi- f Mr. PRESSLER. Mr. President, I ask unanimous consent that the Commit- bility of U.S. ratification of any United NOTICE OF HEARING Nations human rights treaty. tee on Agriculture, Nutrition, and For- I will say parenthetically, Mr. Presi- SUBCOMMITTEE ON FORESTS AND PUBLIC LAND estry be allowed to meet during the dent, as long as I am chairman of the MANAGEMENT session of the Senate on Wednesday, Senate Committee on Foreign Rela- Mr. CRAIG. Mr. President, I would June 14, 1995, at 9 a.m., in SR–332, to tions, it is going to be very difficult for like to announce for the information of mark up welfare reform. this treaty even to be given a hearing. the Senate and the public that three The PRESIDING OFFICER. Without As for specifics of this treaty, Mr. field hearings have been scheduled be- objection, it is so ordered. President, Article 12 of the Convention fore the Subcommittee on Forests and COMMITTEE ON ARMED SERVICES on the Rights of the Child requires that Public Land Management. Mr. PRESSLER. Mr. President, I ask States Parties ‘‘shall assure to the The first hearing will take place on unanimous consent that the Commit- child who is capable of forming his or Wednesday, July 5, 1995, at 9 a.m. at tee on Armed Services be authorized to her own views the right to express the Senior Citizen’s Center, County meet at 10 a.m. on Wednesday, June 14, those views freely in all matters affect- Road Route 1, Grangeville, Idaho, 83530. 1995, in open session, to receive testi- ing the child, the views of the child The purpose of the hearing is to: First, mony on the situation in Bosnia. being given due weight in accordance review and assess the nature and ex- The PRESIDING OFFICER. Without with the age and maturity of the tent of impacts—both immediate and objection, it is so ordered. long term—on local communities child.’’ What on earth does this mean? COMMITTEE ON BANKING, HOUSING, AND URBAN caused by significant changes in Forest Will the U.S. be censured because a AFFAIRS Service programs; and second, deter- parent did not leave it to a child to Mr. PRESSLER. Mr. President, I ask mine to what extent, if any, the Forest choose which school to attend? Will the unanimous consent that the Commit- Service takes these impacts into ac- U.S. be censured because a parent did tee on Banking, Housing, and Urban count in initiating program changes. not allow a child to decide whether to Affairs be authorized to meet during The hearing also will evaluate the For- accompany the family to church? Will the session on the Senate on Wednes- est Service’s record in setting and the U.S. be censured because a parent day, June 14, 1995, to conduct a hearing achieving output goals, and the reasons did not consult a child before requiring on S. 648, the D’oench Duhme Reform for significant problems in this area. that he or she complete family chores? Act. These are not Jesse Helms’ hypo- The second hearing will also take place on Wednesday, July 5, 1995, and The PRESIDING OFFICER. Without thetical questions. A report by a Com- objection, it is so ordered. mittee, established under the Conven- will begin at 2 p.m. at the Clearwater COMMITTEE ON LABOR AND HUMAN RESOURCES tion, indicates that failure to consult a River Room; Williams Conference Cen- Mr. PRESSLER. Mr. President, I ask child in the previously mentioned areas ter; Lewis-Clark State College, 500 8th unanimous consent that the Commit- are potential violations of the Conven- Avenue, Lewiston, Idaho, 83501. The tee on Labor and Human Resources be tion. That report stated: purpose of the hearing will be to re- ceive testimony on a property line dis- authorized to meet for an executive In relation to the possibility for parents in pute within the Nez Perce Indian res- session, during the session of the Sen- England and Wales to withdraw their chil- dren from parts of the sex education pro- ervation in Idaho. ate on Wednesday, June 14, 1995, at 9:30 grams in schools, the Committee is con- The third field hearing will take a.m. cerned that in this and other decisions, in- place on Friday, July 7, 1995, at 9:30 The PRESIDING OFFICER. Without cluding exclusion from school, the right of a.m. at the Quality Inn, Westwater, in objection, it is so ordered. S 8402 CONGRESSIONAL RECORD — SENATE June 14, 1995

SELECT COMMITTEE ON INTELLIGENCE uation of the Individuals with Disabilities dents into the least restrictive environment. Mr. PRESSLER. Mr. President, I ask Education Act (IDEA). Letters were sent to A few mentioned the practice of inclusion, unanimous consent that the Select Oregon education agencies, professional or- however many more were concerned about Committee on Intelligence be author- ganizations, advocacy groups, parents, and the recent trend by the courts to require in- clusion for ALL students. ized to meet during the session of the school districts. More than 100 responses were received. The following is a summary of Many people felt that Special Ed students Senate on Wednesday, June 14, 1995, at the comments and suggestions made by are over protected when it comes to causing 2 p.m. to hold an open hearing on the these constituents. Only those components hazardous situations. Schools should be al- nomination of George Tenet to be Dep- of IDEA that were the most frequently iden- lowed to remove violent students for long pe- uty Director of Central Intelligence. tified are included in this report. riods of time, regardless of their disabilities. There should not be two sets of standards for The PRESIDING OFFICER. Without POLICIES AND PROCEDURES objection, it is so ordered. schools when it comes to handling dangerous The policies and procedures implemented students. SUBCOMMITTEE ON IMMIGRATION by IDEA were identified as positive factors Another area of concern involved the class- Mr. PRESSLER. Mr. President, I ask by many writers. Many letters from parents, room practices for deaf students. Deaf stu- unanimous consent that the Sub- support groups, and friends indicated that dents and parents are often not informed of committee on Immigration, of the they feel the policies and procedures are ba- the many options available to educate deaf sically working and do help families with the Committee on the Judiciary, be au- students. Schools tended to offer only ‘‘sign- education of disabled children. Many ex- ing’’ and ignored other forms of training. thorized to hold a business meeting pressed that the involvement of parents was Alternative placements and programs during the session of the Senate on valuable and the MDT (Multi-Disciplinary should be offered and considered by the Wednesday, June 14, 1995, at 9:30 a.m., Team) approach was beneficial. Building ac- placement team for deaf students. to consider S. 269. cess was also mentioned as one of the bene- TEACHERS AND STAFF The PRESIDING OFFICER. Without fits of IDEA. Many letters from parents praised the Many constituents listed litigation as a objection, it is so ordered. dedication and hard working teachers and re- primary concern. It is costly in time, re- SUBCOMMITTEE ON WESTERN HEMISPHERE AND lated staff. sources, and money. Parents and profes- PEACE CORPS AFFAIRS Education institutions reported that the sionals often do not have a strong relation- amount of paper work is horrendous. Time Mr. PRESSLER. Mr. President, I ask ship at school. The legal system has made unanimous consent that the Sub- requirements (doing reports and attending the relationship adversarial rather than co- meetings, hearings, and conferences) on the committee on Western Hemisphere and operative. part of teachers is burdensome. Burnout and Peace Corps Affairs of the Committee Suggestions were made for Congress to drop-outs are common with Special Ed on Foreign Relations be authorized to limit litigation by requiring mediation prior teachers and staff. meet during the session of the Senate to due process, to create a parent/profes- Teachers should be allowed flexibility in on Wednesday, June 14, 1995, at 10:30 sional relationship by mandating in-services meeting the needs of students in a more ex- for parents and professionals working to- peditious fashion, i.e., the parental notifica- a.m. to hear testimony on the Cuban gether, and to make the law less adversarial. Liberty and Democratic Solidarity tion requirements should be streamlined. The disproportionate amounts of money Focus should be on outcomes and successes Act. being spent on a relatively few handicapped and less on the legal technicalities. The PRESIDING OFFICER. Without students is a serious source of conflict be- Another weakness that was mentioned in objection, it is so ordered. tween the Special Ed and general education several of the communications concerned the f groups—particularly parents. Some contend regular classroom teacher. It was felt that that students suffer in overloaded and under- many of these teachers do not have the THE REAUTHORIZATION OF INDI- funded classrooms because of the high costs training needed to cope with the needs of VIDUALS WITH DISABILITY EDU- of Special Ed. special ed students. Teachers should be CATION ACT [IDEA] Congress should consider a limit or elimi- trained in communication skills and in the nation of the disproportionate areas of fund- needs of Special Ed youngsters. ∑ Mr. HATFIELD. Mr. President, soon ing of the law, limit parent claims or cap the CONCLUSIONS this Congress will consider the reau- amount that can be spent on one child, and Most of the comments were supportive of thorization of what we used to know as work to eliminate or reduce the high cost of the intent and operation of the current law. special education, and is now referred litigation and high cost services. However, many had serious problems with to as the Individuals With Disability FUNDING certain key aspects. The concern most fre- Education Act or IDEA. The lack of adequate funding was fre- quently mentioned was with the safety issue In an effort to determine how well quently mentioned. The financial burden of when Special Ed children were dangerous to IDEA is accomplishing its purpose and IDEA on the local district is egregious. the classroom environment. This received to learn of possible improvements in The Federal government needs to increase the most serious discussion and emotional level of funding. Mandates without funding responses. the existing law, I recently requested should be seriously reviewed and reconsid- Following closely behind was the issue of input from my constituents on this im- ered. Regulations should restrict or limit the litigation. School districts are concerned portant piece of legislation. As a result funds available to lawyers, for private treat- with the costs of this process, both in time of this request, I have received more ments and schools, and costs of Special Ed. and money, to the district. The conclusion of than 100 responses including letters, INDIVIDUAL EDUCATION PLANS [IEP’S], due process is often not in the best interest phone calls, faxes, and visits. I have in- EVALUATION, AND TRANSITION of the child but satisfies the parents and law- yers. Litigation is also responsible for the cluded with this floor statement a sum- Many letters supported the IEP’s as being adversarial nature of the relationship be- mary of the comments from Oregoni- worthwhile. The IEP system is working and tween families and the district. However, is a great help to parents and students. How- ans. families feel that the threat of due process ever, many writers expressed dissatisfaction I have a longstanding interest in forces the district to seriously consider the over the structure of the form stating that flexibility in the application of Federal needs of the Special Ed child and gives par- the IEP’s are not appropriately structured education regulations. IDEA is one of ents needed clout. now, especially for high school students. Another major concern is the lack of fund- the most heavily regulated education IEP’s may also inhibit a teachers approach ing for this mandated program. The Federal programs provided by the Federal Gov- and often do not involve parents. IEP’s are share is only a very small part of the re- ernment. As Congress begins to review labor intensive and require extensive quired costs. As was mentioned above, litiga- the authorization for IDEA, I am hope- amounts of time on the part of personnel tion has become an ever increasing cost to who should be serving the child. ful we will examine flexibility which the districts. The fear of due process hear- It was suggested that high school IEP’s can be provided to improve its imple- ings and the associated costs are forcing dis- should reflect the high school educational mentation. tricts into expensive procedures to please system and requirements. Teachers should I ask that this report be printed in parents to avoid court. Of concern to dis- be allowed to focus on outcomes and be al- tricts is the tremendous cost to the district the RECORD following my remarks. lowed flexibility. One suggestion was to to provide Special Ed services to one child The report follows. eliminate the short-term instructional ob- resulting in a lack of services to the major- f jectives. Regulations should ease technical- ity of students. COMMENTS ON REAUTHORIZATION OF THE INDI- ities and make teachers and parents more a The burnout and dropout of teachers in VIDUALS WITH DISABILITY EDUCATION ACT part of the IEP process. Special Ed programs is a major concern of (IDEA) CURRENT CLASSROOM PRACTICES those in the profession. The pressure of pos- In February, the office of Senator Mark O. One of the classroom practices praised sible and actual litigation, the required pa- HATFIELD sent out letters requesting an eval- most often is the placement of disabled stu- perwork, the lack of funds, the time required June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8403 for meetings, and the process of inclusion all the past. Measuring yields as we har- and Raye Brooks, live in Bellevue. He work to drive qualified teachers from this vest. Being able to collect soil samples is married with a 4-year-old daughter, area of education. Many districts are now on a very small pilot basis and apply and will continue his service aboard finding it impossible to fill Special Ed vacan- prescribed corrective measures on the the U.S.S. Kearsarge until October. cies with qualified applicants. It is antici- pated that this trend will continue with new go. All of these things are possible. Glenn Miller graduated from teachers taking Special Ed teaching jobs to They are being done on an experi- Greeneville High School in 1992. Before enter the profession, then moving to the reg- mental basis in many locations. Some joining the Marines, he attended ular classroom as opportunities arise, and producers have adopted the new tech- Northeast State Technical College near the Special Ed teaching position left open to nology and are using it. Blountville. His mother, Nancy Miller, try to fill again.∑ Precision farming is, in its simplest lives in Greeneville. f sense, a management system for crop This week, I talked with each of their production that uses site-specific data parents, and asked them to convey to PRECISION AGRICULTURE to maximize yields and more effi- their sons my congratulations and the ∑ Mr. MCCONNELL. Mr. President, ciently use inputs. The technology is best wishes of the entire U.S. Senate emerging technologies in production quickly gaining acceptance and use by for a job well done. They should be agriculture are changing and improv- producers, farm suppliers, crop consult- proud of their continued service to our ing the way farmers produce food and ants, and custom applicators. Nation. fiber in this country. New technologies Precision farming links the data- Sergeant Brooks’ and Corporal Mil- such as global positioning satellite management abilities of computers ler’s bravery and heroism in locating field mapping, geo-reference informa- with sophisticated farm equipment our missing pilot have made the entire tion systems, grid soil sampling, vari- that can vary applications rates and State of Tennessee proud. Today, Mr. able rate seeding and input applica- monitor yields throughout a field. President, on behalf of all Tennesseans tions, portable electronic pest scout- In my home State of Kentucky, the and all Americans, I would like to ing, on-the-go yield monitoring, and University of Kentucky has been in- thank them for their patriotism and computerized field history and record volved in research and application of service to this great country.∑ keeping are just a few of the next gen- global positioning systems and yield eration technological tools in use mapping capability and will be dem- COL. LARRY R. SLOAN today. onstrating these technologies at the ∑ Mr. WARNER. Mr. President, I rise These technologies allow the agri- University of Kentucky’s biannual today to honor Col. Larry R. Sloan, culture producer to adjust hundreds of Field Day, July 20. U.S. Army, on the occasion of his re- variables in the farm field, from soil These space-age technologies that tirement from the military following pH to nutrient levels to crop yield, on allow farmers nationwide to increase 26 years of honorable and distinguished a 2-foot-by-2-foot grid that were pre- yields while protecting the environ- service to the Nation. viously far too costly calculate for ment will be on display June 19, from 9 The majority of Colonel Sloan’s serv- each field. Today, these technologies a.m. to 4 p.m. at the Congressional ice has been within the realm of Army can map these variables and data in- Field Day on Precision Agriculture at and Special Operations Forces avia- stantaneously as an applicator or com- the USDA Agriculture Research Center tion, where he flew numerous combat bine drives across the field. In short, in Beltsville, MD.∑ missions spanning two different con- each farm field using precision tech- flicts. In Vietnam, he served as an OH– nology becomes a research pilot. And SALUTE TO TENNESSEANS FOR 6 pilot, performing numerous perilous in the down months or winter season a VALIANT RESCUE EFFORT scout missions, during which he was farmer can collect the data from the ∑ Mr. FRIST. Mr. President, I rise often exposed to intense enemy fire. previous growing season and adjust today to commend two Tennesseans for Then in 1982, as a member of the dozens of important agronomic vari- their heroic effort in rescuing Air Army’s Special Operations Force, he ables to maximize the efficient use of Force Capt. Scott O’Grady last week. flew missions in the early stages of Op- all the farmers inputs: time, fuel, com- Marine S.SGT. Michael Robert Brooks eration Urgent Fury in Grenada. Dur- mercial inputs, seed rate, irrigation— and Marine Lance Cpl. Glenn Miller ing that action, Colonel Sloan sus- the light goes on and on. both participated in the helicopter res- tained wounds for which he was award- These precision farming tools are al- cue mission in hostile Bosnian terri- ed the Purple Heart. ready proving to help farmers increase tory, and they deserve our greatest During his 26 years as an officer and field productivity, improve input effi- thanks. soldier, Colonel Sloan has performed in ciency, protect the environment, maxi- Not only did Sergeant Brooks and a number of critical jobs of increasing mize farm profitability, and create Corporal Miller display tremendous responsibility, including leading troops computerized field histories that may valor in their service to the United at all levels up to battalion command. help increase land values. Collectively, States, but their participation, as well During the past 5 years Colonel Sloan these and other emerging technologies as Captain O’Grady’s will to survive, has served as the Director of Legisla- are being used in a holistic, site-spe- helped restore confidence in our mili- tive Affairs for the U.S. Special Oper- cific systems approach called precision tary readiness, and finally brought a ations Command. In that capacity, agriculture. Progressive and produc- small bit of good news from this war Colonel Sloan has established a solid tion minded farmers are already using torn part of the world. reputation, among members and staff, these technologies. In a decade they Based aboard the U.S.S. Kearsarge, as a knowledgeable, candid and totally may be as common place on the farm both Miller and Brooks had been spe- professional representative of both the as air conditioned tractor cabs and cially trained for missions like this military and the special operations power steering. one. That training helped them to suc- community. His consummate expertise Precision farming seems to offer cessfully locate O’Grady in the heavily and ‘‘can do’’ attitude have played a great promise for improving production forested Bosnian countryside and to significant role in giving our Special performance. Inherently, it just sounds dodge at least one anti-aircraft missile Operations Forces strong credibility on very appealing to be able to evaluate as the helicopter returned to its base. Capitol Hill. production conditions on an individual Regardless of whether the United I trust that my colleagues will join square foot, yard or acre basis rather States’ involvement in the war in me in commending and extending the than that of a whole field. It would Bosnia is right or wrong, Tennesseans appreciation of the U.S. Senate to seem that we should be able to treat and all Americans can look to Brooks Colonel Sloan for his distinguished any situation more appropriately the and Miller as true heroes. And as Inde- service to the people of the United smaller the plot we are considering. pendence Day nears, they and their col- States. I wish him well for continued There have been great strides in meas- leagues remind us of the soldiers who success in all his future endeavors.∑ uring things on the basis of smaller have gone before them, those who have and smaller units on the ground than fought and those who have given their PRESSLER AMENDMENT TO THE we have ever realistically envisioned in lives to preserve our freedoms, lib- CONCURRENT BUDGET RESOLU- erties, and well-being. TION Mike Brooks graduated from ∑ Mr. MCCONNELL. Mr. President, I Hillwood High School in West Nash- rise to clarify my vote on the Pressler ville in 1982. His parents, James Robert amendment #1178 (rollcall vote No. 212) S 8404 CONGRESSIONAL RECORD — SENATE June 14, 1995 to the concurrent budget resolution op- Those values—freedom, liberty, and the sting of Federal taxation for those posing the sale of Power Marketing Ad- independence, remain vital to every who weren’t making a lot of money. ministrations [PMA’s]. I did not intend American, regardless of race, creed, Today the program needs to be re- to cast my vote in favor of the sale of color, cultural heritage, or national or- formed for three primary reasons: the PMA’s. However, my vote would igin. The first reason is because over the not have affected the final outcome. Our country has undergone many years the EITC has been a target for Mr. President, I have subsequently changes over the centuries, some sub- those who would commit fraud and joined 18 of my colleagues in cosigning tle and some drastic. Our flag has also abuse the original intent of the pro- a letter by Senator PRESSLER request- changed since its birth over 200 years gram. It’s hard to put an exact number ing the Senate Budget Conferees honor ago, yet it has remained a symbol of on how much money is being lost to the recommendation of the Senate on justice and freedom recognized around fraud and abuse. Treasury estimates this matter. I ask that a copy of the the globe. that today the losses are in the billions Pressler letter be printed in the These reasons are exactly why we of dollars per year—in fact, up to $5 bil- RECORD. need an amendment to the Constitu- lion a year—and the GAO has esti- The letter follows: tion enabling Congress and the States mated that some $25 billion has been U.S. SENATE, to protect our flag. We owe it to those lost since the program began. Washington, DC, June 9, 1995. men and women who fought under the The second reason the program needs Hon. PETE V. DOMENICI, flag to protect our country and our to be reformed is because it, like many Chairman, Committee on the Budget, U.S. Sen- freedoms. We owe it to those who are other Government programs, has ate, Washington, DC. fighting for freedom around the world, grown out of control. In 1982, the pro- DEAR MR. CHAIRMAN: During consideration inspired by American ideals embodied gram cost less than $2.1 billion. By of the FY 1996 Concurrent Resolution on the 1988, the price tag was $5.6 billion. Budget, the Senate overwhelmingly sup- in the flag. We owe it to our future ported an amendment which opposed the sale generations. After President Clinton expanded the of the Power Marketing Administrations Mr. President, I hope my colleagues program—claiming it as a middle-class (PMAs) within the 48 contiguous states. The will join me in celebrating our flag— tax break—it grew to $15 billion, and is purpose of this letter is to ask you to honor not just on this Flag Day 1995, but expected to cost our taxpayers $36 bil- that recommendation and refrain from in- every day.∑ lion by 2002. In fact, in the last 10 cluding any language regarding PMA sales in f years, the program has grown an in- the final Budget Resolution and adjust the credible 1,425 percent. In all this, the current instructions to the authorizing com- FLAG DAY, JUNE 14, 1995 original intent of the program has been mittees accordingly. As you know, the PMAs provide affordable ∑ Mr. D’AMATO. Mr. President, I rise lost as the EITC has been turned into and reliable electricity to small cities and today to celebrate an important holi- another Federal giveaway program. rural communities throughout the U.S. with- day in this country, Flag Day. Since Yearly expenses associated with the out adding to the federal deficit. In fact, the the birth of our Nation, the flag has EITC have grown more than five-fold PMAs provide a steady revenue stream to waved in triumph over tyranny. It has since 1988 alone. Today, one in five the Federal Treasury. The Treasury will net been the symbol for freedom and de- American families collect the EITC. It more than $240 million from the PMAs this mocracy across the world. For genera- is the fastest growing entitlement pro- year, and has realized more than $9 billion in tions, Americans have proudly and gram in America. This growth—the interest payments during the life of federal investment in the PMAs. Far from being a fiercely fought for our flag and the sheer size of the program—makes the drain on the Treasury, the PMAs contribute freedom that it represents. EITC even a more attractive target for revenue. In 1916, President Woodrow Wilson fraud and abuse. In addition, sale of the PMAs would mean decided that our flag deserved a day of And the third reason the program electric rate increases for consumers. While recognition. Proclaiming June 14th as needs to be reformed is because over estimates of rate increases vary from 30 per- Flag Day, the stars and stripes gained the years Congress and the President cent to 300 percent, any increase would the respect that it deserved. Every have opened the EITC to those who do amount to nothing more than a backdoor tax year since, Senators have come to the not even need the Federal welfare as- on the middle class. Higher electric rates sistance. President Clinton has called also would adversely impact homeowners, floor to express their devotion to the small businesses, farmers, ranchers who irri- flag and to pay respects for those who his opening of the EITC a middle-class gate, and school districts—people who can ill have fought to defend it. For all the tax break. But this is a misleading def- afford another hit to their pocketbook by soldiers who gave their lives and for inition. This program actually hits the the Federal Government. their families who lost a loved one, the middle class with higher taxes, and The PMAs are a vital part of our Nation’s flag should be cherished and revered, transfers that wealth to any and all utility infrastructure. Therefore, we urge the not burned and trashed merely as a who can simply meet Federal require- conferees not to include the sale of the PMAs means of expression. ments. The people meeting those Fed- in the final version of the Congressional On Flag Day, I would like to renew budget resolution and to adjust the present eral requirements may actually be en- instructions to the authorizing committees my pledge to support efforts to protect joying a higher standard of living than accordingly. our Nation’s flag.∑ those who get taxed to pay for their Thank you for your attention to this mat- f welfare benefit. In fact, millionaires ter of great importance to PMA providers can qualify for EITC assistance, if their and consumers.∑ EARNED INCOME TAX CREDIT wealth is held in assets such as a mil- f ∑ Mr. ROTH. Mr. President, I join Sen- lion-dollar home. ator NICKLES to introduce legislation This is not what the program in- REMEMBER THE FLAG to reform fraud, abuse, and runaway tended. For example, under the pro- ∑ Mr. CRAIG. Mr. President, today is a spending in the Federal Earned Income gram as it is currently in law, a family day of remembrance and a day of re- Tax Credit [EITC] Program. of four, living in Wilmington, DE, earn- flection. Today is a day to rejoice that As you know, the EITC Program was ing $29 thousand a year gets taxed so we are citizens of the United States. created back in the seventies as an al- the Federal Government can give their Today is Flag Day. ternative to President Nixon’s proposal money to a family making just a cou- Many flags are flown on numerous to provide cash welfare to poor two- ple of thousand less a year, even occasions throughout the year, on parent families; later, it was expanded though the second family lives in a buildings, houses, and lodges. Many to encourage the working poor to re- part of America that has a much lower Americans proudly wear the flag every main working—to get off welfare, alto- cost of living. Their money could go to day on a pin or necklace. However, the gether. The original purpose of the an individual or family who have mil- American flag is not just a piece of EITC was to help poor families—fami- lions of dollars in real estate or other cloth, metal, or plastic. It is a symbol lies with children—pay their regressive assets, but who keep their annual in- of America and what she stands for. It Social Security taxes. It was a modest come below the qualifying income is a symbol of the values our Founding program in the beginning. The credit level. Their money could also go to a Fathers protected in our Constitution. maximum was $400, and it helped offset graduate student who works during the June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8405 summer, makes less than $9 thousand, nally intended to assist our Nation’s S. 899—and its summary, follow my re- and claims EITC assistance when filing children, and we must get back to that marks in the RECORD. his or her income tax. In fact, their most basic of requirements. We also The material follows: money, under current law, could even add significant compliance rules in go to pay EITC to illegal aliens. This order to help the IRS wring the fraud EITC REFORM PROPOSALS SUMMARY money comes from hard-working, mid- and abuse out of this program. 1. Deny the EITC to Illegal Aliens: Under dle-class Americans—men, women, and These measures, Mr. President, ac- this proposal, only individuals who are au- families who, in many cases, are not cording to the Joint Committee on thorized to work in the U.S. would be eligi- any better off than the folks receiving Taxation, would save our taxpaying ble for the EITC. Taxpayers claiming the the welfare assistance from the EITC. families some $125 billion over 10 EITC would be required to provide a valid so- These abuses are not what we in- years—$125 billion—a significant cial security number for themselves, their tended when the program was passed in amount of money, especially in this spouses, and qualifying children. Social secu- the mid-1970’s. The program was in- time of budget constraints and in- rity numbers would have to be valid for em- tended to assist families with children. creased fiscal responsibility. This bill ployment purposes in the U.S. In addition, Our effort with this bill is to get the is a good first shot not only at tax re- the IRS would be authorized to use the program back to this mission. form, but welfare reform. It is fair. It math-error procedures, which are simpler than deficiency procedures, to resolve ques- Under our bill, the growth rate of the will help promote honesty and restore tions about the validity of a social security EITC program would be slowed; the top integrity to what is an important Fed- number. Under this approach, the failure to income eligibility level would be re- eral program, while retaining the full provide a correct social security number tained—rather than increased—to con- program for those most in need. would be treated as a math error. Taxpayers centrate the program on the poor and Both the working poor who receive would have 60 days in which they could ei- reduced waste, fraud, and abuse. Our the tax credit and taxpayer who pays ther provide a correct social security num- bill would deny the tax credit to illegal for it, deserve an earned income tax ber, or request that the IRS follow the cur- aliens and include nontaxed sources of credit program that works efficiently rent-law deficiency procedures. If a taxpayer income and substantial amounts of and effectively. This bill is a strong failed to respond within this period, he or she would be required to refile with correct wealth to determine eligibility. Our step in the right direction. I encourage social security numbers in order to obtain measure would also repeal the 1993 ex- my colleagues to join us to see it the EITC. Effective date of enactment. tension of the credit to taxpayers with- passed, and I ask that a few articles (From President Clinton’s FY 1996 Budget out children. The program was origi- outlining the EITC, a copy of our bill— proposals) JCT REVENUE ESTIMATE [In billions of dollars, in fiscal years]

10 year 1995 1996 1997 1998 1999 2000 5 year total total

Math-error procedure ...... 007 .137 .142 .142 .144 0.571 1.301 Require SSNs work-related for primary and secondary taxpayers ...... 004 .082 .085 .088 .091 0.350 0.858

2. Repeal the Childless Portion of the therefor primarily a welfare program, and of only $314 in 1995, and begins to phase-out EITC: In the 1993 Budget Reconciliation bill, since welfare programs have traditionally at as little as $5,140, and therefor is of such effective beginning in 1994, the EITC was ex- been aimed at helping children rather than insignificance as to offer little or no real panded to include taxpayers with no qualify- able-bodied adults, this part of the program work incentive. Since the EITC is designed ing children for the first time. Since about should be eliminated. In addition, this part primarily as a ‘‘work incentive,’’ this part of 85% of the EITC is a ‘‘budget outlay,’’ and of the EITC provides for a maximum credit the program should be eliminated. JCT REVENUE ESTIMATE [In billions of dollars, in fiscal years]

10 year 1995 1996 1997 1998 1999 2000 5 year total total

Repeal of childless EITC ...... 031 .616 .641 .669 .702 2.659 6.636

3. Freeze EITC at 1995 Levels to Reduce by the person making the claim. Accord- offset taxes paid by EITC beneficiaries is not Fraud: Just since 1988, the EITC expendi- ingly, given our self-assessment tax system, valid. As a result, the EITC should not be al- tures have grown five-fold. In addition, fraud it is just too easy to file a fraudulent claim lowed to continue to increase annually, since and error rates have consistently remained that is virtually undetectable by the IRS. the tax burden on EITC recipients is not in- in the range of 30 to 40% of expenditures for Suspending the rate of the credit at a maxi- creasing. about 15 years—since studies began on the mum 36% (reducing it slightly to 35% in 1996) In addition, the phase-out range for the issue. Until 1990, the credit was limited to a will discourage fraud artists, and also slow credit has increased from 20,264 in 1990, to a maximum rate of 14%, but since that time the growth of this program, which is by far scheduled level of $28,553 in 1996—for an in- the maximum rate of the EITC under the law the fastest growing entitlement in the fed- crease of over 40% in just 6 years, which is has been increased to a maximum of 40% be- eral budget. about twice the rate of inflation over the pe- ginning in 1996—or almost three-fold. When Some have argued that the EITC is merely riod. Because this growth is unprecedented the level of the credit was closer to the pay- a refund of social security taxes, income during a period of high budget deficits the roll tax level (7.65/15.30%) there was consider- taxes and excise taxes. However, almost all outlays for this program’s growth should be ably less incentive for tax cheats and fraud of the EITC is a ‘‘refundable’’ amount in ex- suspended, to allow true inflation to catch artists to game the system, however, as a re- cess of income taxes actually paid (approxi- up. If later Congress should decide to in- sult of the dramatic increase in the level of mately 85% of the EITC). In addition, neither crease the size of the program, when budgets the credit, the fraud incentives are signifi- social security taxes, nor excise tax burdens allow, then the inflation growth factor in cantly higher. Under current law, the size of are increasing for those eligible for the this welfare program could be voted on at the benefit available from the program no EITC. Thus, the argument that further in- that time. Under this amendment, EITC in- longer bears any relationship to taxes owed creases in the EITC are necessary in order to dexing would be suspended indefinitely. ICT REVENUE ESTIMATE [In billions of dollars, in fiscal years]

10 year 1995 1996 1997 1998 1999 2000 5 year total total

Freeze EITC rates in phaseout at 1995 Level ...... 192 3.918 5.625 7.457 9.407 24.835 91.911

4. Increased Scrutiny for Wealth Tests: As and concerns from several Congressional of- to attempt to restrict the EITC to truly low- a result of the President’s budget proposals fices, changes were passed as part of H.R. 831 income working Americans. Under current S 8406 CONGRESSIONAL RECORD — SENATE June 14, 1995 law, many wealthier Americans can claim ness assets and net capital gains to the erous compared to the AFDC rules, would be the EITC resulting in the unfair result of wealth test. In addition, the current level of more appropriate than the current wealth poorer Americans paying taxes to pay wel- $2,350 equates to financial assets of about test. The value of homes, cars and other per- fare benefits to those wealthier than they $40,000 based on a 6% simple annual realized sonal assets would still remain outside of are. Substantial progress was made by deny- return, which is much higher than asset/ this asset test. If this wealth test is not sub- ing the EITC to taxpayers with aggregate wealth tests for other welfare programs. For stantially improved, the result will continue ‘‘disqualified income’’ exceeding $2,350. This example, under the AFDC program, if a fam- to be that taxpayers with significantly less income includes: (1) interest and dividends, ily has more than $1,000 in assets they lose wealth will be paying taxes into a system their welfare benefits. While under this pro- (2) tax-exempt interest income, and (3) net which will redistribute the income to those income from rents and royalties. posal, a threshold of $1,000 of income would with greater wealth under this welfare pro- This proposal would go further in tighten- equate to a presumed value of underlying as- gram, resulting in more unfairness in the in- ing this loophole by adding net estate and sets of about $16,700 (assuming a 6% simple trust income, net passive income from busi- annual realized return), which although gen- come tax system than otherwise would exist. JCT REVENUE ESTIMATE [In billions of dollars, in fiscal years]

10 year 1995 1996 1997 1998 1999 2000 5 year total total

Add estate and trust income, net passive business income and net capital gains income ...... 006 .115 .123 .136 .150 0.529 1.468 Reduce threshold to $1,000 ...... 019 .385 .400 .427 .464 1.696 4.200

5. Fairness Requires Equal Income Tests: welfare programs like the EITC should not (3) tax-exempt interest, and (4) non-taxable Under the EITC, the credit is phased-out as be paid to beneficiaries who are financially private pension distributions. the taxpayer receives more ‘‘earned in- better off than other taxpayers who may be In addition, Treasury would be asked to come,’’ or as the taxpayer’s adjusted gross less well off. Particularly if those less well undertake a study to determine if the cur- income (AGI) increases. The phase-out off are still paying income taxes to the Fed- rent law tax treatment of child support pay- ranges for both tests are the same. In addi- eral Government. ments is appropriate, or if alternatives tion to earned income, AGI includes income Under this proposal, the AGI test under the from other sources, such as investment, ali- EITC would be expanded to include other should be considered to encourage payment mony and unemployment. However, AGI forms of income offering substantial non- of child support liabilities by parents of the does not include other sources of income taxed, economic benefits to families. These child, and what alternatives would make that nevertheless provide financial support other sources would be: (1) non-taxable social both parents more responsible for the child’s and economic income to families. In general, security income, (2) child support payments, economic well-being. JCT REVENUE ESTIMATE [In billions of dollars, in fiscal years]

10 year 1995 1996 1997 1998 1999 2000 5 year total total

Modify AGI to include non-taxed Society Security income, child support payments, tax-exempt interest and non-taxed private pensions ...... 102 2.037 2.125 2.205 2.327 8.797 21.668

6. Deny or Delay the EITC Until the IRS the case of a self-employed taxpayer. If quar- itoring facilities. Within one year of passage has a Matching W–2: This rule would pre- terly payroll taxes have been filed, or once the Treasury would be required to report to clude a taxpayer from receiving the refund- W–2s have been filed by an employer, the IRS the Congress likely time delays that would able portion of EITC unless the taxpayer’s could refund the EITC. This program would result for refundable earned income tax cred- earnings are listed on a W–2 form, or for not take effect until 1997 in order to allow its. which self-employment tax has been paid in the IRS to put into place the proper mon- JCT REVENUE ESTIMATE [In billions of dollars, in fiscal years]

10 year 1995 1996 1997 1998 1999 2000 5 year total total

W–2 Match Requirement ...... ? ? ? ? ? ? ?

7. Electronic Return Originators Must be applications this year that had to undergo sands of EROs from prior years are still in Checked: During the 1995 filing season, the suitability checks, 1,500 applicants were re- the system have not been checked. This IRS instituted fingerprint and credit checks jected because of failure to meet the admis- change would require that all EROs have on new ERO applicants to better ensure that sion requirements. This provision would re- this minimum check completed before elec- only appropriate and responsible individuals quire that IRS complete these same tests for tronic returns are processed by the IRS. participate in electronic filing. Of the 33,000 all EROs, and not just new applicants. Thou- JCT REVENUE ESTIMATE [In billions of dollars, in fiscal years]

10 year 1995 1996 1997 1998 1999 2000 5 year total total

ERO Background Check ...... ? ? ? ? ? ? ?

TOTAL PACKAGE 1–7 JCT ESTIMATE [In billions of dollars, in fiscal years]

10 year 1995 1996 1997 1998 1999 2000 5 year total total

Totals ...... 361 7.290 9.141 11.124 13.285 39.437 128.042

[From The Tax Racket—Government see how much we can take out of their pock- The fastest wrinkle in this nefarious plan Extortion from A to Z] ets, say Washington tax experts, and give it is the Earned Income Tax Credit, a gimmick CHAPTER 8—EARNED INCOME TAX CREDIT away to everybody else. that Washington propagandists have labeled To whom? It makes no difference as long a boon to taxpayers. (By Martin L. Gross) as we hit the cash cow, the working families Let’s say you live in Little Rock, Arkan- Washington has had the middle class in its who make from $30,000 to $90,000 a year and sas, and earn only $24,000 a year. Chances are fiscal gunsights for the longest time. Let’s pay most of the individual income taxes. you’re not so bad off. After all, even the full- June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8407 -time lieutenant governor of the state makes ideas. It started out reasonably in 1975 to which will take more tax billions from mid- only $29,000. help poor families pay their regressive Social dle-class families. You’ve got a $75,000 three-bedroom house Security taxes. The credit maximum was 5. Eureka! We now learn that Washington and your property tax is only $950, a real $400, welcome help for working people. has been sending EITC tax credits and cash laughter. (It’s closer to $500 in the rest of the But now? Washington went into its usual to illegal immigrants all these years. Fright- state.) You’ve got enough money for a decent overdrive, and EITC is the fastest growing of ened by Proposition 187 in California, embar- life, even for a good $6 dinner. all federal programs. In 1982, it cost less than rassed former Treasury secretary Lloyd Still, Uncle Sam feels sorry for you. In $2 billion. By 1988, it took $5.6 billion out of Bentsen stated that the IRS will try to fact, you’re eligible for a reverse tax—a bur- the treasury. In 1993, the tab was $15 bil- eliminate the program for non-Americans. geoning welfare program called Earned In- lion—which is just the beginning. By 1996, it They should be cut off forthwith. come Tax Credit, which grants tax credits, will cost $28 billion and still be growing! 6. Here’s a total solution to the whole EITC even delivers checks from the IRS. This is Congress has continuously raised the eligi- tax fiasco—one that will solve the tax prob- not peanuts. The EITC bonanza will soon run bility income limits. In 1987, it was $15,432 lem of hard-pressed families with children, as high as $3,370 per family and cost us $28 for a family of four, then rose to $20,264 in poor or middle class. billion a year annually! 1990 and is now a ridiculous $27,000. This de- Immediately eliminate the EITC. Instead Is this government tax scheme, which was spite the fact that the typical American pay- give every man, woman, and child an addi- enormously expanded by President Clinton check is only $25,000 a year. tional $2,500 personal deduction regardless of in 1994, just for the poorest of the poor? With the continuous lifting of the income income, the system under Harry Truman. Hardly. In fact, the Little Rock home- ceiling, millions flocked into EITC. From Forget the class-conscious means test and owner, who needs no federal handout, is in- less than 2 million, it expanded to 15 million remember that we’re all Americans. cluded in the EITC dole. By 1996, it will go to families by 1993, and will take in 21 million That deduction will not only help poor families of four making as much as $27,000. by 1996. families (a $10,000 deduction for four) more Is EITC just for a handful of Americans? If we don’t stop it, and its drain on the than the EITC, but it will stop the unfair Hardly. In 1995, credits and checks will go middle class, we can easily project that 35 transfer of money from the middle class, who out to some 17 million American families—or million families, or some 100 million Ameri- can’t take it anymore. And the way the EITC some 55 million people. And beginning this cans, will be on this IRS dole by the year tax dole is growing, my plan will end up year, families without children and even sin- 2000—taking tax money from the people just being cheaper. gle folks will be eligible—the opposite of the barely above them in earnings, and often Scream at your member of Congress. Tell family program’s intent. below them in purchasing power. him you want tax relief for everyone and not So what, you say? Isn’t it a good idea that And the size of the EITC checks and cred- crazy tax transfers that always hit middle- keeps the working poor off welfare? its are growing apace. Just as recently as class families the hardest. That was the concept. It’s OK at first 1990, the EITC maximum given by the IRS What, you say, he doesn’t listen? Just re- glance, but the closer you get the more it was $953. In 1996, it will be $3,370 a year per mind him of the 1994 election and that looks like a tax scandal that takes money family and rising. there’s another one just like it coming up. from the already-drained middle class and What if the EITC beneficiary wants to get Do you have a personal alternative? moves it, wholesale, from one part of the his hand on some of your tax money before country to the other, and from high-cost the end of the year? Easy. The new Clinton Yes, you can pack up, leave the high-cost, suburbs to cheaper rural areas, and even plan allows him to claim 60 percent of the high-tax areas and move to Little Rock. Or from one neighbor in a town to the other. credit, or cash, and have it added to his pay- better still, go to clean, low-cost Boise, It’s the biggest geographic transfer swindle check by the IRS. Idaho, or even rural Montana, where life will in the history of the nation, and one of the Poverty has been defined by the Census be cheaper and better, if a little chillier in many hidden taxes invented by Washington. Bureau as $14,700 for a family of four. But winter. The truth is that the EITC money for the when it comes to the EITC, the limits are al- And until the president and the Congress Arkansas family (and people in other low- most double that. Even the $14,700 poverty regain their sanity, you might be able to get cost, low-tax states) comes from the taxes level is meaningless geographically. In rural on the EITC tax dole yourself. and out of the pocket of the very same type Mississippi, you can eat fine on that. In a of family, living in the same kind of house, New York or Chicago suburb, you’d better [From Tax Notes, March, 1995] but in a more expensive part of the country. get on a fast-moving soup kitchen line. ECONOMIC PERSPECTIVE The new tax sucker may have a larger in- And do people try to cheat on the EITC? (By Gene Steuerle) come on paper, but because of his higher cost You bet they do, shamelessly. of living, including higher local and state The government rejects some 30 percent of On February 27, IRS Commissioner Mar- taxes, he’s actually much poorer than many claims because they’re not eligible. On top of garet Milner Richardson was grilled over dif- people getting EITC tax relief. He has a mis- that, EITC is the largest center of fraud in ficulties that have arisen in the 1995 tax fil- erable fiscal existence, and he’s the one pay- the tax system. In 1995, the IRS held up mil- ing season. The president of HR Block called ing for the EITC! lions of tax refund checks while they took a the season the worst in 40 years, at least in Let’s look at the Smith family on Long Is- closer look for EITC connivers who pur- terms of ‘‘internal preparations and cus- land, New York. They’re making $33,000 a posely understate their income. tomer dissatisfaction.’’ (See Tax Notes, Mar. year, the average national household in- Surprisingly, you don’t even have to apply 6, 1995, pp. 1380–1382.) At one level, accusa- come, but they’re not eligible for EITC. They for EITC. The IRS, which can hound middle- tions are traded back and forth: private lend- live in the same size house as the family in class taxpayers into a nervous breakdown for ing institutions and members of Congress Arkansas, but instead of costing $75,000, the $20, will graciously go over the tax return criticize the IRS while the IRS argues it is house set them back $200,000. And instead of and send the filer a credit, or a check, with- not in business to help private firms make a under $1,000 property taxes as in Little Rock, out his ever asking for it! profit. At another level, the debate focuses they’re paying, so help me God, six times as How can we bring some reason to this asi- on arcane terms like refund anticipation much. They’re also saddled with higher state nine runaway program? loans and direct deposit indicators. The real income taxes. Easy as pie. We can be both compassionate issue—designing policy that is administrable Yet that New York suburbanite, who can’t and reasonable, and still make the ridiculous in the first place—is swept under the table. make ends meet, is dispatching some of his tax code saner. In the 1990 budget agreement, Congress and sweat money all around America, courtesy of 1. Limit EITC tax welfare to truly poor the previous administration for the first the U.S. Congress, the president of the Unit- families. Use the government’s own poverty time increased the rate of credit in the ed States, and their faithful tool, the IRS, level of $15,000 as an upper limit. Let’s not earned income tax credit (EITC) above the and its crazy tax code. take tax money from people making $33,000 combined employer and employee Social Se- Go figure. in high-income areas and give it to richer curity tax rate. In the 1993 budget agree- Who’s going to pay for it all? Guess? The people making $27,000 in poorer areas. ment, that rate was increased even further, middle class, the true targets of the green 2. Figure the poverty level state by state, so that a household with modest earnings eyeshade guys in the basement of the Treas- as we do with some welfare programs. $20,000 could receive a net credit (that is, credit less ury building. might be the poverty level in the New York all taxes paid) of nearly 15 percent in 1994, In effect, Washington is ripping off Mr. and metropolitan area, and $10,000 in rural Ar- rising to nearly 25 percent in 1996. As the Mrs. Taxpayer in New York, Michigan, Cali- kansas, with $15,000 as an average. That will rate of credit has grown, so have the gains fornia, Massachusetts, New Jersey, Connecti- stop bleeding the budget and be fairer as from overdeclaring income on the tax return. cut, et al., and sending it, in the greatest well. Several years ago, I began noting the prob- money transfer in American history, to fam- 3. Generous (with your money) President lems that were inevitably going to arise with ilies in the poorer states who may be living Clinton has extended EITC to couples with- the incentive for overreporting income in much better on much less. EITC is just the out children. That violates the spirit of the this new ‘‘superterranean economy’’—an latest assault on the great, disappearing, plan and should be discontinued imme- economy that works in the opposite direc- abused American middle class. diately. tion from the historic subterranean economy The EITC program began quite modestly, 4. Cut out all EITC credits and payments where the taxpayer or welfare recipient as do most of Washington’s nonsensical to single people, a program now clicking in gains by underreporting income. I warned S 8408 CONGRESSIONAL RECORD — SENATE June 14, 1995 then that in the long run the EITC was in making it appear that a policy problem is To receive the money, people must file a jeopardy unless some policy changes were only one of administrative failure in the tax return. The IRS then sends out a check— made to counteract this problem. past, and maybe the future, but not today. just like a tax refund. There is none of the Since these warnings have gone unheeded, Congress only delays the day of reckoning, stigma of going to the welfare office. But I view the debate over the filing season as not a new phenomenon. The tax preparer and millions of those checks could be held up just the latest of ways that these problems lender community know that there business this year, as the IRS tries to stamp out fraud are playing themselves out. The growth in cannot depend for long on a part of the code and overpayment. fraud was predictable, as was the IRS’s rear that is unenforceable, and they only encour- That’s because the EITC has become a fa- guard reactions to try to contain it, as were age Congress to enact more sweeping reform vorite target for crooks. the reactions of parts of the private sector to that would remove the individual more com- Nickel-and-dime con artists lie about their the costs of those rear guard actions. Inter- pletely from filing responsibilities. The wel- dependents and bilk the government out of estingly, however, almost no one is talking fare reform community does little to en- $1,000 or $2,000. Million-dollar criminal entre- about the basic problem. There are reasons hance the long-term prospects for subsidiz- preneurs file thousands of false EITC claims why many interested parties can’t or won’t ing work as long as stories of abuse and by computer, hoping to reap a harvest of deal with the problem at a more fundamen- fraud are allowed to surround current sub- checks from the IRS. tal level. sidies. And the government has sent out billions Start with the current administration. So the story behind the story is that there of dollars in EITC overpayments over the When it advocated an increase in the rate of is no filing season foul-up, but, instead, a years, due mainly to taxpayer errors involv- the EITC, it decided not to deal with the new policy failure to make the tough choices nec- ing the complicated rules for qualifying for incentives for fraud and abuse that had been essary to make the EITC administrable. Is benefits. created before then and that would be en- anyone interested? A survey by the IRS last year found that 29 hanced. The president, moreover, likes to percent of taxpayers who put in for the EITC claim the 1993 EITC changes as among the [From the Philadelphia Inquirer Washington claimed too large a credit, including 13 per- great successes of his administration. Even Bureau] cent of taxpayers who appeared to be inten- though the problem was initially created FRAUD CASTS A SHADOW ON TAX CREDIT FOR tionally inflating their claim. Congressional with EITC rate increases scheduled by the POOR auditors suspect the actual rates of error and fraud are higher. 1990 budget agreement with President Bush, (By R.A. Zaldivar) the current administration has for some During the 1980s, IRS studies estimated WASHINGTON.—It was meant to be a dif- time avoided sharing credit for recent rate that anywhere from 29 percent to 37 percent ferent kind of federal program—one that increases, so it has trouble simultaneously of the benefits were paid out erroneously. By would help struggling families without fos- trying to share blame for the administrative comparison, welfare and food stamps had ex- tering dependency and inviting abuse. cessive claims rates in 1990 of 6 percent and problems that have arisen. Called the Earned Income Tax Credit The IRS, of course, hasn’t been able to say 7 percent, respectively. (EITC), the program uses the tax system to much for some time now. It is very reluctant Not even the IRS has been immune from pay low-income families up to $2,528 a year to provide information that may appear crit- mistakes. In 1992, the agency tried an experi- to supplement their earnings. The goal: Re- ical of a current administration’s policy, and ment: It would pay EITC benefits to tax- ward the working poor and encourage them the past two administrations together have payers who had not claimed the credit, but to stay off welfare. supported the increases that created the IRS seemed to be entitled. Later checking But with one in five American families showed that IRS made the wrong call in 45 dilemma. Its job, moreover, is administra- now getting EITC payments, fraud is costing tion, not policy. So it talks around the prob- percent of the cases, sending out $175 million taxpayers an estimated $1 billion a year. Er- to taxpayers who should not have gotten a lem, always indicating new procedures and roneous overpayments are costing at least as methods it will apply to try to reduce the dime. The experiment was shut down. much. Part of the reason the EITC has run into level of noncompliance. The verdict on those Fraud has become a critical issue for the new methods, however, usually will not be trouble is that presidents and lawmakers of program, which has had a politically both parties have enthusiastically expanded known for some time, often years, at which charmed life. It now stands at almost $20 bil- point more new procedures will be tried. the program without taking a clear-eyed lion a year—and growing. look at how well it was working. Congress isn’t sure it wants to tackle the Spending on the EITC increased tenfold basic problem either. Almost any policy under Presidents Reagan, Bush and Clinton. * * * * * change is likely to create losers. In this case, It is growing faster than any other program But debate is brewing over how well the for instance, it is almost impossible to mon- for the poor, including welfare, Medicaid and program accomplishes its control goal of en- itor claims of self-employment income from food stamps. Indeed, the federal government couraging work. painting, baby-sitting, and similar activi- now spends nearly as much on EITC as it and At conservative think tanks around Wash- ties. Suppose the EITC were limited to the states spend on Aid to Families With De- ington—idea mills for the Republican Con- amounts of tax paid by the firm hiring the pendent Children, the main welfare program. gress—analysts are worried that the EITC worker. The employer would be pulled into ‘‘The only way to keep support for a pro- may actually discourage work. an indirect role of monitoring the credit, a gram like this is to make sure you address That’s because 61 percent of EITC bene- job that many would be willing to take, but the issue of fraud,’’ said Laura D’Andrea ficiaries fall into the income range where some would not. Most individuals would still Tyson, a top Clinton economic adviser. ‘‘If benefits are being phased out. Benefits peak get an EITC and complain little, but some you don’t do that, you will see the political at about $8,000 of income and are gradually currently eligible could lose the credit. support dissipate.’’ eliminated for families making between There are many alternatives that might also This tax season, the Internal Revenue $11,000 and $25,000. be considered, but each of them involves Service is trying to crack down on fraud. * * * * * equally difficult choices. And Sen. William V. Roth Jr. (R., Del.) plans And if EITC fraud is bad now, it could get When tax preparer services and lenders to hold hearings soon in the watchdog Gov- much worse with planned increases in the complain about dealing with the IRS, they ernmental Affairs Committee, which he size of the program. often comment fairly on some of their cli- chairs. ‘‘It gets much scarier as the credit is being ents’ difficulties. Some types of policy re- With the future of all federal programs for expanded,’’ said University of Wisconsin form, however, could reduce demand for the poor now at stake on Capitol Hill, the economist John Karl Schoiz, a supporter of their services. Their comments, therefore, EITC is a study in contrasts. the program who is critical of its vulner- will seldom be addressed to the policy issues It shows how a government benefit can do ability to fraud. ‘‘By 1996, the amounts of but, instead, focus criticism on the IRS—an great good and invite brazen abuse at the money available will be much, much larger. action likely to meet with popular approval, same time. People filing false claims will all of a sudden as well. The positive effect of the tax credit is un- stand to gain much more.’’ Finally, there is a community of individ- deniable. It provides powerful, life-changing The EITC began as a modest program in uals interested in reforming welfare by in- help to working families in financial dis- 1975, but about 18 million families now re- creasing subsidies to work relative to more tress: a reprieve from foreclosure for a work- ceive EITC payments, compared with five traditional welfare. To be honest, I include ing mother in Minnesota; or money to pour million families on welfare. The EITC cost myself in this community. Many in this a concrete floor for a Texas farm-worker $19.6 billion in 1994, while the federal share of community, however, are afraid of discussing family living in a ram-shackle cabin with a AFDC was $12.5 billion. States paid an addi- abuse of existing provisions, for fear that the dirt floor. tional $10.2 billion to AFDC. subsidies would be pared. Nearly 70 percent of benefits go to single- For Clinton, the EITC is a cornerstone of It is not hard to argue that each of these parent families, with an average check this his effort to ‘‘make work pay’’ for all Ameri- groups is serving only its short-run interests. year of $1,088. Families with one child can cans. The President has declared the EITC An administration is hardly going to be get up to $2,038. Families with two or more ‘‘the most significant thing done in the last given historical credit for ‘‘reform’’ if it is children can get the maximum benefit of 20 years to make the tax code fairer to work- not made to work or is eventually over- $2,528. This year, for the first time, childless ing people.’’ turned because of inattention to detail. The workers with very low incomes can get up to Clinton pushed a major expansion of EITC IRS only reduces its long-term credibility by $306. benefits through Congress in his first year in June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8409 office, more than doubling the maximum numbers on EITC claims, and by using com- The EITC is structured to subsidize low in- benefit to a projected $3,560 by 1996. puter analysis and profiles to identify sus- comes, regardless of how much or little re- The program is expected to grow to $22.8 pect returns. cipients work. University of Oklahoma Law billion this year and $25 billion in 1996. * * * * * Prof. Jonathan Forman observed in Tax That meant the EITC could offer more help Notes, ‘‘The maximum earned income credit to cash-strapped families. But it also made is equally available to both a salesclerk who the program a juicier target for con artists, [From the Wall Street Journal, May 10, 1994] works 2,000 hours per year at $5.00 per hour particularly in the age of quick-refund, elec- CLINTON’S BIGGEST WELFARE FRAUD and a part-time lobbyist who works 100 hours tronic tax filing. (By James Bovard) per year at $100 per hour.’’ ‘‘In the electronic era, it’s particularly a The EITC has long been a gravy train for President Clinton has declared that the ex- con artists. GAO noted last year that, before program because of the speed with which you pansion of the earned income tax credit in can get your money,’’ said George Yin, a the 1990 expansion of the program, ‘‘about a August was ‘‘the most significant pro-work, third of the taxpayers who received the cred- University of Virginia law professor who be- pro-family economic reform we have enacted lieves the EITC needs reforms. ‘‘If you’re of it were not entitled to it.’’ The IRS esti- in 20 years.’’ In fact, the EITC program is the mates that between 30% and 40% of EITC the criminal mind . . . the electronic system nation’s most politically popular, fastest cuts your exposure considerably.’’ benefits are given in violation of federal tax growing, and most fraud-prone welfare pro- law. Johnny Rose, IRS criminal investiga- * * * * * gram—and one that is a building block of the tion chief for the Arkansas-Tennessee dis- An EITC check saved Kathy Spagenske’s Clinton welfare reform. trict, declared in January: ‘‘Today, nearly home from foreclosure last year in the mid- The EITC was created in 1975 to provide re- all fraudulent returns involve two things: (1) dle of the Minnesota winter. bates of Social Security taxes to low-income claiming the EITC and (2) filing electroni- Spagenske, who lives near Minneapolis and workers, thereby counteracting the antiwork cally through a business that offers a quick works in telephone sales, separated from her incentives of Social Security payroll taxes. loan against the refund.’’ husband in 1993. She and her two sons kept But following sharp expansions in 1990 and Recently Rep. Dan Rostenkowski and the house, but she soon started falling be- 1993, the EITC is now far more of a direct three ranking members of the House Ways hind on payments. She was finally given a handout than a tax refund. The program will and Means Committee wrote to Treasury deadline of Jan. 20, 1994, to come up with cost more than $16 billion this year—more Secretary Lloyd Bentsen that ‘‘the federal money or lose the house. than the federal cost of Aid to Families with government has an extremely serious and Desperate, she called HOME Line, a local Dependent Children. Almost one-fifth of all growing problem in the area of tax refund community service program that helps peo- tax returns claimed the benefit for 1993, and fraud.’’ Rep. Bill Archer, one of the signato- ple in foreclosure. A counselor told her about the Internal Revenue Service mailed out ries, observed that the EITC is by far the the EITC. It was the first time she had heard more than 10 million letters April 22 encour- biggest source of fraudulent return losses, about it. aging more people to sign up for the pro- with the average EITC fraud estimated at ‘‘It was pure luck,’’ said Spagenske. gram. In Mississippi, 45.1% of families will $1,800. Yet the IRS makes almost no effort to She filed her taxes immediately, via com- become eligible for the EITC by 1996; in the require people to pay back undeserved or puter. An EITC payment of $1,300 enabled her District of Columbia, 42.3% of families will fraudulently received EITC benefits. to leverage additional aid from the county qualify. Moreover, Mr. Clinton’s new EITC creates government. The money arrived in the nick While Mr. Clinton claims that the EITC re- perhaps the harshest marriage penalty in the of time. She got the check to her lender on wards work, the details prove otherwise. history of the U.S. tax code. An unmarried deadline day. Households with children with earned in- couple, each with two children and $11,000 in ‘‘Thank God,’’ says Spagenske. ‘‘My kids come below $25,300 (not counting welfare re- income, would lose $5,686 in EITC benefits by had gone through enough changes for a ceived) are eligible for EITC benefits of up to marrying, according to Tax Notes magazine. while.’’ $2,528. Families earning up to $8,425 receive So much for a pro-family policy. On the other side of the EITC spectrum is an EITC handout equal to 30% of earnings. Mr. Clinton declared in February: ‘‘When the case of Charles Hunter and Brenda Jean Those earning between $8,425 and $11,000 get tax bills come due this April, 15 million fam- Noiles. The couple were arrested in Wichita, a flat $2,528. And families earning between ilies with a total of about, we estimate, 50 Kan., Jan. 31 by IRS agents and charged with $11,000 and $25,300 receive $2,528 minus 17.68 million Americans, will be lifted beyond the making false claims against the government. cents for each dollar they earn above $11,000. poverty line by getting tax reductions under According to court papers, it all started While people in the lowest tier receive a the earned-income tax credit.’’ But the GAO with a tip from an H&R Block employee. bonus for each additional dollar they earn, found that the EITC has been a dismal fail- Noiles had filed a tax return with a W–2 the EITC benefit schedule effectively im- ure at raising people out of poverty. In 1991, earnings statement that appeared to be doc- poses a punitive tax on those earning over the EITC decreased the poverty rate by less tored. And Hunter’s W–2 was strikingly simi- $11,000—slashing their benefits for each extra than one percentage point. And, even when lar. dollar they earn. American Enterprise Insti- the EITC lifts families out of poverty, re- Hunter claimed a refund of $3,315, includ- tute economist Marvin Kosters estimated ceiving the credit does not affect eligibility ing an EITC of $2,258. Noiles claimed a refund last year that almost three times more EITC or benefit levels for families already receiv- of $3,421, including $2,523 from the EITC. recipients are in the phase-out range than in ing food stamps, housing subsidies or AFDC. They filed by computer, hoping for a quick the phase-in range. Thus, the EITC discour- According to Assistant Treasury Secretary refund. ages work for far more low- and moderate-in- Alicia Munnell, August’s EITC increase is IRS agents investigated and found that the come people than it rewards work. (Benefits the first step toward the Clinton welfare re- W–2 forms were forged. Hunter and Noiles and eligibility limits are scheduled to rise form plan. Ms. Munnell declared last Novem- were arrested when they came to the local sharply through 1996.) ber: ‘‘We are already looking at consolidat- IRS office to pick up their checks. The General Accounting Office noted in a ing the application for food stamps and the Prosecutor Richard Schodorf alleged the 1993 report: ‘‘Before qualifying for the credit, EITC. This would reduce transaction costs two had claimed dependent children for a worker may view taking a second job as and eliminate any stigma that may accom- whom they were not providing support. worth the sacrifice of forgoing leisure time. pany participation.’’ But reducing the stig- Other cases have made news: But after qualifying for the credit, the extra ma on welfare recipients is not the same as Federal prosecutors in Houston indicted income the credit offers partly replaces the making people self-reliant. Designing government handout programs eight people this January on charges of fil- income the worker would lose if he or she to encourage people to work is the ultimate ing 800 computerized tax returns claiming were to quit the second job. * * * Also, full- liberal pipedream. Instead of glorifying new bogus EITC benefits, with refunds totaling time workers may shift to part-time jobs to benefits for low- to moderate-income groups, $1.9 million. The case is allegedly part of a get the leisure time they now prefer.’’ GAO the Clinton administration should devote its conspiracy going back to 1990 and involved 24 estimated that hours worked by EITC bene- attention to lowering the burden of taxes on other defendants. ficiaries may have been cut by 3.6% overall, all working Americans. IRS agents in New York City arrested four and by more than 10% for working wives, as people last year suspected of filing 11,000 a result of this subsidy in 1988. The disincen- [From the Washington Post, June 26, 1994] fraudulent tax returns claiming EITC bene- tive to work is probably much greater now, THE MYTH OF THE WORKING POOR fits, with refunds totaling $13.6 million. The as the benefits are much higher. returns were filed on behalf of women on Clinton chief economic adviser Laura FACE IT, CLINTON. VERY FEW POOR PEOPLE ARE welfare who did not work and were not enti- Tyson declared on April 15 that the earned HARD-WORKING WORTHIES tled to EITC. The government was able to income credit is ‘‘a way to reward hard- (By Bradley R. Schiller) stop all but $80,000 of the money from going working Americans who work full-time.’’ No one who works 40 hours a week should out. Yet, GAO found that the average EITC recip- have a family in poverty. This concept, fre- After years of working under orders to get ient worked only 1,300 hours, compared with quently articulated by President Clinton, is the EITC checks out, IRS began clamping a normal work year of 2,000 hours. Last one of this administration’s foremost domes- down last tax season. This year, the agency month, one nonprofit organization informed tic goals. From health-care reform to a high- is trying to wring fraud and error out of the potential beneficiaries that they could qual- er minimum wage to more training opportu- program by verifying all Social Security ify if they worked only one day a year. nities to increased earned income tax credits S 8410 CONGRESSIONAL RECORD — SENATE June 14, 1995 to mandatory fringe benefits, the Clinton ad- poor persons classified as ‘‘full-time, year- [From the National Review, Apr. 17, 1995] ministration wants to increase dramatically round workers’’ actually worked part-time THE CHECKS ARE IN THE MAIL the income security of the more than 6 mil- during at least six weeks of the year. (By Roy Beck) lion American adults that it classifies as the This overcount of YR–FT workers not only ‘‘working poor.’’ exaggerates the number of working poor per- WASHINGTON, DC.—Once again it is the sea- Who are these legions of working poor, by sons, but also tends to understate actual son when the Internal Revenue Service takes the Clinton administration count? Consider wages. As incredible as it may seem, the money sent in by Americans and mails some these possibilities: Census does not ask what hourly wage rate of it back to illegal aliens as a kind of end- Barden, a catfish farmer in Mississippi. workers were paid. Instead, hourly wage of-the-year bonus through the Earned In- Several years ago he spent over $1 million to rates are imputed by dividing annual earn- come Credit program. convert his cotton farm into a commercial ings by the estimated (‘‘usual’’) hours em- When IRS officials first confirmed this catfish operation. Intense competition has long-standing practice to me last spring, depressed catfish prices, however, causing ployed. If hours of employment for YR–FT workers are overestimated, then imputed they said they had no other option because Barden to lose over $100,000 in 1993. Congress had never prohibited it. Senator Barbara, a single mother living on Capitol hourly wages are consistently underesti- mated. In Hector’s case, his wage will be es- William Roth requested a study by the Gen- Hill. She worked 35 hours per week as a $5- eral Accounting Office, which reported last an-hour receptionist all of last year. In Jan- timated by dividing his annual income ($9,580) by the hours of a YR–FT worker fall that illegal aliens can receive direct cash uary, she went on maternity leave and gave payments of up to $2,528. Foreign nationals birth to a girl in February. (2,080). The implied wage rate of $4.60 an who are working illegally in this country Hector, who graduated from college in May hour, though not factual, will be used as the can get the checks if they have a dependent 1993. While in school, he was working 16 justification for greater ‘‘worker security’’ hours per week to augment the education initiatives. child and make less than $23,755 a year. The GAO report was ignored or overlooked loans he and his wife received. Within one A perfunctory look at Census data on the by the news media. But it caught the atten- month of graduating he landed a public rela- working poor reveals the kinds of tion of then Treasury Secretary Lloyd Bent- tions job that pays $15,000 a year to start. misperceptions that result from these statis- sen, who said the practice should cease. Johnnie, who dropped out of high school in tical procedures. Nearly half a million unre- Tucked inside the Clinton Administration’s 1992 and has been working at the federal lated individuals are officially counted latest recommendations on tax policy is a minimum wage ever since. among the ranks of the working poor. Yet, provision to stop the subsidy for illegal low- Who among these should we count as the true YR–FT experience would entail at least wage workers—but not until next year. working poor? The official answer is Barden 1,750 hours of employment (50 weeks of 35 To assume that these bonuses will soon be the catfish farmer, Barbara the single moth- hours each) and more commonly 2,080 hours ended is to underestimate the resilience of a er and Hector the college graduate. The only (52 weeks of 40 hours each). Accordingly, a pervasive system of incentives and loopholes one not counted as ‘‘working poor’’ is job paying just the federal minimum wage of Johnnie, the high school dropout who con- that the United States provides for citizens $4.25 an hour would be sufficient to keep any tinues to toil away at the minimum wage. of other nations to violate our immigration unrelated individual working YR–FT above Several features of the way in which the U.S. laws. It was public cynicism about the gov- the poverty line, which is $7,500 for an indi- Census Bureau compiles its official poverty ernment’s good faith in ending this system vidual. One must conclude that either the counts help produce this bizarre enumera- that fueled the overwhelming passage of Census depiction of sub-poverty work experi- tion. Among them are: California’s Proposition 187 last fall and ence is exaggerated or that these individuals Equating Business Income and Wages—The spurs imitators today. catfish farmer gets counted because the Cen- are being paid wages far below the federal minimum. The Earned Income Credit program was set sus Bureau lumps together both people who up in 1975 as a work incentive for Americans work for wages and those who operate their Even if we ignored these and other tech- with low-paying jobs. The credit sometimes own businesses. More than 250,000 of the fam- nical problems, however, the image of low- works like most tax credits, reducing the tax ilies counted as poor by the Census actually paid parents unable to lift their families out owed. But the program often requires the have negative incomes, as Barden does. of poverty by working would still be dis- IRS to send recipients a check for consider- These negative incomes most certainly re- torted. The Clinton administration repeat- ably more money than was withheld by their sult from self-employment and not from a edly cites the 6 million people in families employers (if indeed any was withheld) the bad wage contract. Indeed, more than 1 out who work yet remain poor. Of these 6 million previous year. ‘‘We regard EIC as a form of of 4 individuals officially counted as year- ‘‘working poor,’’ however, only half are welfare,’’ says Mark Mullett, an aide to Sen- round, full-time members of the ‘‘working ‘‘householders’’ in families with children. ator Roth. poor’’ class report that they are self-em- The Census Bureau says that only one-third The Federal Government tries to make ployed and may actually have substantial as- of these householders work year-round, full- sure that illegal aliens don’t miss out on sets to draw upon. time. Hence, even if one were to accept the these payments. David Simcox, a fellow at Changing Family Composition—Barbara flawed Census estimates as an approximation the Center for Immigration Studies, says gets counted as one of America’s working of reality, only 1 million householders would federal funds are provided to religious and poor because she had a baby in February and be counted among the ranks of the working the Census Bureau does its household income immigrant-aid groups to persuade and assist poor. In reality, the number would be far immigrants (whether legal or illegal) to file survey in March. In 1993, Barbara earned smaller, for all the reasons discussed above. $9,100, which was not a lot of money but was for the EIC checks. Publications for immi- The number of working poor would shrink gration lawyers advise them that immigra- comfortably above the official poverty line even further if we adjusted official Census for a single individual (about $7,500). By the tion status is irrelevant in filing for the ben- estimates for other well-known short- efit. time of the March survey, however, Barbara comings including the omission of in-kind The IRS does not know for certain which was no longer a one-person household. The income (e.g., Food Stamps, Medicaid, hous- applicants for EIC checks are illegal aliens, Census Bureau concludes that she is one of ing subsidies), the Earned Income Tax Credit but it has a fairly good idea that they ac- America’s ‘‘working poor’’ because her 1993 not counted by the Census and intentional count for most of the applications lacking income does not exceed the poverty thresh- underreporting of income. old ($9,700) for the two-person household she valid Social Security numbers. (Virtually Where does this leave us? This exploration has in March 1994. Because the Census Bu- every legal resident over the age of one year of Census data and methods is not intended reau compares last year’s income to this has a valid number, according to Social Se- to deny the co-existence of work and pov- year’s household size, it exaggerates the pov- curity spokeswoman Lynn Shiller.) Forms erty, much less a broad swath of deprivation erty of growing (younger) households. without valid numbers are sent to the The Illusion of Full-Time Work—Hector in an otherwise affluent America. One can- ‘‘Unpostable Unit’’ at one of the ten IRS gets counted as poor because the $9,580 he ac- not avoid the conclusion, however, that service centers, where a bureaucrat assigns tually earned last year fell just short of the there are far fewer working poor Americans them temporary Taxpayer Identification two-person poverty line. What makes this than the White House perceives and thus less Numbers, which look like Social Security case misleading is that the Census Bureau justification for so many new and expensive numbers. That enables the IRS to keep its counts Hector as a year-round, full-time worker security initiatives. It may be true paperwork organized so that it can proceed (YR–FT) worker. The Census Bureau doesn’t that over 60 percent of the poverty popu- to send checks to filers who are probably il- ask how many hours Hector actually worked lation lives in families where at least one legal aliens. (1,386). It instead asks whether Hector ‘‘usu- person had some work experience during the Federal law forbids anyone who is not a ally’’ worked at least 35 hours per week when year. The amount of work experience is often U.S. citizen to enter the country without employed. When Hector’s wife (the likely re- minimal, however, and the self-reported rea- government approval and to stay longer than spondent to the household survey) replies in sons for not working are typically personal his visa allows. If a foreigner succeeds in vio- the affirmative, Hector statistically became rather than market based. lating the law, 1986 legislation makes it a a YR–FT worker, the quintessential White Not working is the proximate cause of crime for that person to be hired. Nonethe- House example of the working poor. most poverty. What the country needs to less, if a foreign worker succeeds in violating Hector’s case is not unique: Previous stud- cure poverty is not so much more ‘‘worker both laws without getting caught, the IRS ies of Census data reveal that roughly 1 in 10 security’’ programs, but more workers. will send him a cash bonus. June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8411 Even if this practice is halted in a quick cans living in the border area rent U.S. post- As if that weren’t enough, postal authori- display of bipartisanship, at least three trou- office boxes to communicate with relatives ties saw a real jam when more than 13,000 tax bling issues remain: in this country, because mail moves much returns were filed by April 15 for the 1993 tax 1. Resourceful illegal aliens can continue faster in the United States than in Mexico. year. The Internal Revenue Service also took to get the annual EIC bonus if they obtain In 1988, Rodriguez said, she added two dou- more than a passing interest, because the valid Social Security cards by using fraudu- ble-wide trailers to the back of the post of- 1990 census listed only 3,700 people older than lent birth certificates. Dan Stein of the Fed- fice, thinking that would be space enough for 16 living in San Luis. eration for American Immigration Reform well into the next century. Bill Brunson of the Phoenix IRS office said suggests that the only lasting solution is to But it was all gone within three years, and virtually all the tax returns were filed elec- adopt a form of the proposal of Barbara Jor- the waiting list for boxes is now 400 names tronically and requested an earned-income dan and her Immigration Reform Commis- long. credit, a refund for those who live more than sion: establish a national computer verifica- Rodriguez sorts thousands of government six months during the year in the United tion system to coordinate birth and death envelopes containing welfare checks, unem- States, have a minor child residing with records of all fifty states. ployment checks and food stamps each them and gross less than $23,050 a year. 2. Congress should consider changing the month. Add to that the 13,500 income-tax re- Many returns were filled with math errors, presumption that all government programs funds that came to San Luis last year. omitted information about dependent chil- and benefits are intended to extend to illegal ‘‘It’s just totally out of control,’’ dren and were suspected of containing false aliens unless otherwise specified. Congress Rodriguez said. ‘‘We have the volume of mail information about employment, Brunson might pass legislation that prohibits illegal of a large city. And a large part of it is U.S. said. So the IRS delayed 3,000 refunds, send- aliens from participating in any federal pro- government checks that end up in Mexico.’’ ing letters to the filers in Spanish and Eng- gram or benefit unless specifically included. Former San Luis Mayor Elias Bermudez lish requesting meetings with them. 3. As usual, the cumulative costs from said there are ‘‘easily 5,000 people on the The agency received fewer than 100 re- legal immigration tower over those from il- Mexican side’’ in San Luis, Sonora, a city of sponses, Brunson said, and dispatched a team legal. Simcox says his studies of IRS records about 180,000 people, who are receiving U.S. of investigators to San Luis. They were indicate some $250 million in EIC subsidies government assistance under false pretenses. greeted by sign-carrying Mexican protesters for illegal aliens in 1990. But he found five ‘‘And I’m just counting one Mexican per who claimed they had been victimized by un- times that amount going to legal immi- post-office box on this side,’’ Bermudez said. scrupulous tax preparers. grants. ‘‘EIC has become another case study ‘‘When you consider that some of those The brouhaha affected all Yuma County in the baffling dilemma of operating and boxes have 10 to 15 people using them, taxpayers, said David Cline of Classic Ac- funding complex income-transfer programs there’s no telling how much fraud is going on counting, a Yuma tax-preparation firm. for poor residents, while the number of these down here.’’ Cline said that many of his clients had to residents is continuously being expanded by Jim Wombacher, former superintendent of wait months to receive their income-tax re- mass illegal and legal immigration and refu- the Gadsden School District, says it’s a lot. funds because the IRS had targeted all Yuma gee policies which import about half a mil- The way the deception works, Wombacher County returns for review. lion additional needy people each year,’’ said, is that a Mexican mother will bring her Clyde Cummins, a longtime Yuma County Simcox says. children across the border and enroll them in supervisor who represents the San Luis area, If Congress does focus on the taxpayer-pro- the Gadsden School District, using the ad- says it’s about time the federal government vided bonus checks for illegal aliens, it dress of a relative in Arizona as the family takes action. should also consider a larger question: Why home. At that point, the family applies for ‘‘I’d say that more than half the farm should the government continue to allow social services using false documents. workers around here have two or more So- legal entry of hundreds of thousands of low- Investigators will visit the residence, and cial Security numbers for welfare purposes,’’ skilled foreign workers when U.S. taxpayers the relative will vouch that the family is re- he said. end up subsidizing them (and their employ- siding there. A U.S. Supreme Court decision ‘‘Another big thing is for a bunch of them ers) because they cannot command high prohibits school officials from asking the na- to get together and claim only one income, enough wages to pay the taxes that would tionality of the parents or students. then qualify for subsidized housing. cover their share of infrastructure and social ‘‘Right after that, we get calls from the ‘‘We’ve had a lot of government agencies services? Eliminating future importations of (state) Department of Economic Security down here say they just don’t care about low-wage workers would not only reduce EIC asking if the kids are properly enrolled in this. But, for the sake of the American tax- payments that otherwise would go to them school,’’ Wombacher said. ‘‘We have to say payer, they better start caring.’’ but might also reduce EIC expenditures for yes, and that qualifies them for all the pro- American laborers who, without competition grams like WIC (a nutrition program for [From the Washington Post, Feb. 9, 1995] from immigrants, would be more likely to pregnant women and infants), AFDC (Aid to A HARDER LOOK AT REFUND CLAIMS Families with Dependent Children) and the earn nonpoverty wages. IRS TO CHECK SOCIAL SECURITY NUMBERS IN supplemental food program.’’ CRACKDOWN ON FRAUD [From the Arizona Republic] And that means another San Luis post-of- fice box for delivery of the checks. (By Albert B. Crenshaw) BORDER WELFARE BOUNTY ‘‘We know things like this are wide- The Internal Revenue Service, which has MEXICANS GET U.S. CHECKS spread,’’ Wombacher said. ‘‘All the time we been losing as much as $5 billion a year to (By Mark Shaffer) had instances of children getting sick and refund fraud, this year is checking every So- SAN LUIS.—This dusty pueblo where the ir- our workers would take them to where we cial Security number on every return that rigated lettuce fields stop against the Mexi- thought they lived. But they would point seeks a refund, and will hold up payment if can border could be the fraud capital of the south and say ‘otro lado’ (across the border) the names and numbers don’t match. Southwest. when we got there. The procedure will cause delays in refunds Its postmistress and vice mayor, Josefina Wombacher said he got so frustrated in for about 7 million taxpayers out of the 86 Rodriguez, would be the last to disagree. 1990 that he went to the border early one million who will file for refunds this spring, Around the first of every month, she sees school morning and videotaped 250 high- IRS officials said yesterday. thousands of government checks arrive and a school students on the Mexican side waiting ‘‘Some of those [refunds] will never go out, flow of people crossing the border to collect for school buses. Then, he filmed 200 to 300 some of those will eventually go out over a them. junior-high and elementary students walking period of time, some of those will go out Rodriguez considered it a little weird when across the border to classes in San Luis, after there’s been an examination to deter- she took over the postmistress job 10 years Ariz. mine whether the claim is in fact correct or ago and found that the town had as many That tape drew lots of attention—and vot- not correct,’’ said Phil Brand, IRS chief com- P.O. boxes as people. ers remembered. During a countywide bond pliance officer. Then it dawned on her: A large number of election last May, voters turned down by a 3– The new program is made possible in part Mexicans were using Arizona postal boxes to 1 ratio a proposal to build a high school in by improved computer capacity and in part receive U.S. government checks through San Luis. by the agency’s decision to shift more people fraud. This time of year, the problem is ‘‘The dominant issue was, ‘We want to do to the refund program, officials said. compounded as income-tax refunds make the something about those kids coming from The IRS staff will type into a computer the rounds. across the border,’ ’’ Wombacher said. Social Security number from a newly filed The mailbox squeeze has gotten a lot worse Rodriguez has her own worries, like deliv- return, and look for discrepancies with the during the past decade. Now there are 8,100 ering the almost 500 pieces of mail contain- Social Security Administration database to post-office boxes, more than twice San Luis’ ing food stamps each week. And the 3,000 see if the number exists and if it goes with estimated population of 4,000. About three- checks for unemployment each month. the name on the return—a privilege allowed fourths of the post-office boxes are rented by ‘‘When those unemployment checks come by privacy laws. In the past, this process has Mexicans, Rodriguez said. in, people are packed like sardines in this been such a major time consumer that the She can’t say how many of the mailboxes place. I made a tape of it, and that’s when we agency made only spot checks, officials said. are being used by Mexicans for legitimate decided we had to expand this post office,’’ Those returns, that are legitimate will be reasons and how many aren’t. Many Mexi- Rodriguez said. processed as quickly as possible, officials S 8412 CONGRESSIONAL RECORD — SENATE June 14, 1995

said. Those that are not may lead to crimi- income tax credit) is amended by adding at (2) CONFORMING AMENDMENT.—Paragraph nal investigations. the end the following new subparagraph: (1) of section 32(i) is amended by striking Officials said checking Social Security ‘‘(F) IDENTIFICATION NUMBER REQUIRE- ‘‘subsection (b)(2)(A)’’ and inserting ‘‘sub- numbers will catch taxpayers who claim MENT.—The term ‘eligible individual’ does section (b)(2)’’. nonexistent dependents as well as more so- not include any individual who does not in- (b) INFLATION ADJUSTMENTS TERMINATED.— phisticated scams, such as creating a ficti- clude on the return of tax for the taxable Section 32(j) (relating to inflation adjust- tious taxpayer and claiming a refund on his year— ments) is amended by adding at the end the or her behalf. ‘‘(i) such individual’s taxpayer identifica- following new paragraph: Typically, the IRS processes paper tax re- tion number, and ‘‘(3) TERMINATION.—This subsection shall turns and mails out refunds in about six ‘‘(ii) if the individual is married (within not apply to any taxable year beginning weeks, faster in the early part of the year the meaning of section 7703), the taxpayer after December 31, 1995.’’ when the load is less, officials said. Returns identification number of such individual’s (c) EFFECTIVE DATE.—The amendments filed electronically are usually done in three spouse.’’ made by this section shall apply to taxable weeks or so. Most returns from legitimate (b) SPECIAL IDENTIFICATION NUMBER.—Sec- years beginning after December 31, 1995. taxpayers with correct Social Security num- tion 32 is amended by adding at the end the SEC. 5. RULES RELATING TO DENIAL OF EARNED bers should not be affected, officials said. following new subsection: INCOME CREDIT ON BASIS OF DIS- A return that the IRS deems questionable ‘‘(l) IDENTIFICATION NUMBERS.—Solely for QUALIFIED INCOME. but is in fact legitimate could be delayed as purposes of paragraphs (1)(F) and (3)(D) of (a) DEFINITION OF DISQUALIFIED INCOME.— much as eight weeks, officials said. An ex- subsection (c), a taxpayer identification Paragraph (2) of section 32(i) (defining dis- ample of this could be a woman who marries number means a social security number is- qualified income) is amended by striking and starts using her husband’s name, they sued to an individual by the Social Security ‘‘and’’ at the end of subparagraph (B), by said. Administration (other than a social security striking the period at the end of subpara- ‘‘There will be some individuals who are number issued pursuant to clause (II) (or graph (C) and inserting ‘‘, and’’ and by add- held up who are fully entitled to the refund,’’ that portion of clause (III) that relates to ing at the end the following new subpara- Brand said. ‘‘It’s the unfortunate part about clause (II)) of section 205(c)(2)(B)(i) of the So- graphs: a process like this,’’ but ‘‘what you say is, cial Security Act).’’ ‘‘(D) capital gain net income, ‘I’ve got to weigh the balance’ ’’ against (c) EXTENSION OF PROCEDURES APPLICABLE ‘‘(E) the excess (if any) of— fraud losses. TO MATHEMATICAL OR CLERICAL ERRORS.— ‘‘(i) the aggregate income from all passive IRS officials said about 1,300 agency em- Section 6213(g)(2) (relating to the definition activities for the taxable year (determined ployees at service centers throughout the of mathematical or clerical errors) is amend- without regard to any amount described in a country have been assigned to check ques- ed by striking ‘‘and’ at the end of subpara- preceding subparagraph), over tionable refunds. graph (D), by striking the period at the end ‘‘(ii) the aggregate losses from all passive The IRS has been under heavy pressure of subparagraph (E) and inserting ‘‘, and’’, activities for the taxable year (as so deter- from Capitol Hill to deal with incorrect or and by inserting after subparagraph (E) the mined), and fraudulent refunds. Programs such as the following new subparagraph: ‘‘(F) amounts includible in gross income earned-income tax credit, which provide ‘‘re- ‘‘(F) an omission of a correct taxpayer fundable’’ credits—meaning that the tax- under section 652 or 662 for the taxable year identification number required under section payer can get back cash beyond mere with- to the extent not taken into account under 23 (relating to credit for families with young- holding—have been especially hard hit in re- any preceding subparagraph. er children) or section 32 (relating to the cent years. For purposes of subparagraph (E), the term Many scams have involved electronic re- earned income tax credit) to be included on ‘passive activity’ has the meaning given such turns. A man who had signed up with the a return.’’ term by section 469.’’ (d) EFFECTIVE DATE.—The amendments IRS to prepare electronic returns told a (b) DECREASE IN AMOUNT OF DISQUALIFIED made by this section shall apply to taxable House hearing last year that he had filed INCOME ALLOWED.—Paragraph (1) of section years beginning after December 31, 1995. thousands of false W–2 forms indicating that 32(i) (relating to denial of credit) is amended wages had been withheld for a worker, and SEC. 3. REPEAL OF EARNED INCOME CREDIT FOR by striking ‘‘$2,350’’ and inserting ‘‘$1,000’’. then claimed refunds for them. INDIVIDUALS WITHOUT CHILDREN. (c) EFFECTIVE DATE.—The amendments Brand said the new system especially will (a) IN GENERAL.—Subparagraph (A) of sec- made by this section shall apply to taxable watch for systematic efforts to bilk the sys- tion 32(c)(1) (defining eligible individual) is years beginning after December 31, 1995. tem. He said that in addition to checking So- amended to read as follows: SEC. 6. MODIFICATION OF ADJUSTED GROSS IN- cial Security numbers, the IRS will be pay- ‘‘(A) IN GENERAL.—The term ‘eligible indi- COME DEFINITION FOR EARNED IN- COME CREDIT. ing visits to suspicious return preparers. ‘‘As vidual’ means any individual who has a (a) IN GENERAL.—Subparagraph (B) of sec- we identify schemes we will be moving to qualifying child for the taxable year.’’ (b) CONFORMING AMENDMENTS.—Each of the tion 32(a)(2) (relating to limitation) is make arrests or anything else that is appro- tables contained in paragraphs (1) and (2) of amended by striking ‘‘adjusted gross in- priate,’’ he said. The IRS already has announced other steps section 32(b) are amended by striking the come’’ and inserting ‘‘modified adjusted to combat fraud, including elimination of items relating to no qualifying children. gross income’’. (c) EFFECTIVE DATE.—The amendments (b) MODIFIED ADJUSTED GROSS INCOME DE- the ‘‘direct deposit indicator,’’ an acknowl- made by this section shall apply to taxable FINED.—Section 32(c) (relating to definitions edgment to someone filing electronically years beginning after December 31, 1995. and special rules) is amended by adding at that a refund could be expected. The indica- the end the following new paragraph: tor was heavily relied on by banks and oth- SEC. 4. DECREASE IN EARNED INCOME CREDIT AMOUNTS AND PHASEOUT RANGES. ‘‘(5) MODIFIED ADJUSTED GROSS INCOME.— ers that make refund anticipation loans, and (a) DECREASE IN CREDIT RATE.— The term ‘modified adjusted gross income’ they are unhappy with the change. (1) IN GENERAL.—Subsection (b) of section However, Brand said those lenders should means adjusted gross income, increased by 32, as amended by section 3(b), is amended to ‘‘make a business decision’’ on whether to the sum of— read as follows: make a refund anticipation loan and not rely ‘‘(A) social security benefits (as defined in ‘‘(b) PERCENTAGES.— on the IRS for reassurance. section 86(d)) received to the extent not in- ‘‘(1) IN GENERAL.—The credit percentage cludible in gross income, S. 899 and the phaseout percentage shall be deter- ‘‘(B) amounts received by (or on behalf of) mined as follows: Be it enacted by the Senate and House of Rep- a spouse pursuant to a divorce or separation resentatives of the United States of America in The cred- The instrument (as defined in section 71(b)(2)) ‘‘In the case of an eligible in- it per- phaseout Congress assembled, which, under the terms of the instrument, dividual with: centage percent- are fixed as payable for the support of the SECTION 1. SHORT TITLE; AMENDMENT OF 1986. is: age is: children of the payor spouse (as determined (a) SHORT TITLE.—This Act may be cited as 1 qualifying child ...... 34 15.98 under section 71(c)), the ‘‘Earned Income Tax Credit Fraud Pre- 2 or more qualifying children 36 20.22 ‘‘(C) interest received or accrued during vention Act’’. In the case of taxable years beginning in the taxable year which is exempt from tax (b) AMENDMENT OF 1986 CODE.—Except as 1996, the credit percentage for eligible indi- otherwise expressly provided, whenever in imposed by this chapter, and viduals with 2 or more qualifying children ‘‘(D) any amount received by a participant this Act an amendment or repeal is ex- shall be 35 percent. pressed in terms of an amendment to, or re- or beneficiary under a qualified retirement ‘‘(2) AMOUNTS.—The earned income amount peal of, a section or other provision, the ref- plan (as defined in section 4974(c)) to the ex- and the phaseout amount shall be deter- tent not includible in gross income. erence shall be considered to be made to a mined as follows: section or other provision of the Internal Subparagraph (D) shall not apply to any The amount received if the recipient transfers Revenue Code of 1986. earned The SEC. 2. EARNED INCOME CREDIT DENIED TO IN- ‘‘In the case of an eligible in- phaseout such amount in a rollover contribution de- dividual with: income amount DIVIDUALS NOT AUTHORIZED TO BE amount is: scribed in section 402(c), 403(a)(4), 403(b)(8), or EMPLOYED IN THE UNITED STATES. is: 408(d)(3).’’ (a) IN GENERAL.—Section 32(c)(1) (relating 1 qualifying child ...... $6,000 $11,000 (c) STUDY.—The Secretary of the Treasury to individuals eligible to claim the earned 2 or more qualifying children $8,425 $11,000.’’ shall conduct a study of the Federal tax June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8413 treatment of child support payments to de- TELECOMMUNICATIONS COMPETI- telecommunications. The best known termine whether or not changes in such TION AND DEREGULATION ACT of them was the historic break up of treatment are necessary. The Secretary shall The Senate continued with the con- AT&T in 1982, when our antitrust laws report to the Committee on Finance of the acted as the basis for ending a mam- Senate and the Committee on Ways and sideration of the bill. Means of the House of Representatives the Mr. ROCKEFELLER. Mr. President, I moth monopoly in telephone service. results of the study, including recommenda- know the American people have some The bill before us is the work of sev- tions (if any) which the Secretary deter- pretty serious questions these days eral years and the intense work of the mines appropriate to encourage payment of about Congress. Questions like, why is recent months, to chart another his- child support liabilities by parents and to there so much partisan fighting? Why toric change in telecommunications make both parents more responsible for a can we not get more done? Why all this policy. This bill provides a new frame- child’s economic well-being. talk about issues that do not really work to replace much of the regulation (d) EFFECTIVE DATE.—The amendments matter in people’s daily lives? and restraints now governing the tele- made by this section shall apply to taxable When I hear the questions from West communications industry with some- years beginning after December 31, 1995. Virginians, obviously I respect them thing which we have decided to call SEC. 7. EARNED INCOME CREDIT NOT ALLOWED and I remember them as I try to do my ‘‘the ability to compete.’’ The idea is UNTIL RECEIPT OF EMPLOYER’S WITHHOLDING STATEMENT. work here in the Senate. the Federal Government no longer I say that all of this is to highlight (a) IN GENERAL.—Section 6401(b) (relating needs to micromanage who can provide to excessive credits treated as overpay- the way the chairman of the Commerce what kind of service to America’s ments) is amended by adding at the end the Committee, Senator PRESSLER, and the households and to America’s busi- following new paragraph: ranking member, Senator HOLLINGS, nesses; that, as technology develops to ‘‘(3) SPECIAL RULE FOR EARNED INCOME have pursued this legislation to mod- give Americans incredible choices and CREDIT.—For purposes of paragraph (1), the ernize our Nation’s laws affecting tele- incredible opportunities from the ba- earned income credit allowed under section communications. sics of telephone service to the endless 32 shall not be treated as a credit allowable It has, as the Presiding Officer possibilities of computers, the private under subpart C of part IV of subchapter A of knows, not been an easy task. Never- chapter 1 unless the Secretary is able to ver- sector should be able to compete for ify the amount of such credit by comparing theless, we had a bipartisan consensus customers, for business and for profits. it with— from the Commerce Committee. That The idea of this legislation is not just ‘‘(A) information returns filed with the was good. My vote was one in favor of to make the telecommunications com- Secretary under section 6051(d) by employees this bill. panies of America the winners. That is of the individual claiming the credit, I think it is entirely valid that some not the idea of this at all. We want to ‘‘(B) self-employment tax returns filed of our colleagues have insisted, in fact, shift from regulation and various kinds with the Secretary under section 6017, or on spending some thoughtful time here of monopolies in cable and phone serv- ‘‘(C) both. on the Senate floor to dissect this bill ice towards competition; in fact, to The preceding sentence shall apply to any and to air whatever differences we have advanced payment of the earned income competition, in a way that will benefit and to consider rescissions. the American people. When companies credit under section 3507.’’ I refer to my fellow rural colleague (b) EFFECTIVE DATE; STUDY.— actually compete for customers they from Nebraska, Senator KERREY, who are going to have to try to offer a bet- (1) IN GENERAL.—The amendment made by has been vocal about some of the this section shall apply to taxable years be- ter price for better service. Americans ginning after December 31, 1996. changes we are considering in this bill. know all too well that monopolies pro- (2) STUDY.—The Secretary of the Treasury I think he has done the Senate a serv- tected from competition grow very lazy shall conduct a study to determine the ice and our country a service. and sloppy. I represent a small rural State, West delays (if any) which would result in the Another goal in this legislation is to processing of Federal income tax returns by Virginia, that does not want to be ex- make sure the United States remains reason of the amendment made by this sec- cluded from any future involving new number 1 in an industry that, frankly, tion. Not later than 1 year after the date of technologies and new forms of commu- generates a lot of jobs, a lot of profits, the enactment of this Act, the Secretary nication. shall report the results of the study to the I want to make absolutely sure for a great deal of trade, and the economic Committee on Finance of the Senate and the dividends that have a huge impact on Committee on Ways and Means of the House my State that this legislation serves the general public’s interest, not just the people we represent. We want the of Representatives, including recommenda- jobs to stay here and we want to be the tions (if any) on ways to shorten any delay. the big States and the big cities. The results, I think, of this legisla- country that wires and services other SEC. 8. PREVENTION OF FRAUD IN ELECTRONIC countries with our know-how and our RETURNS. tion are very relevant to the people that we represent, that I represent, and products. We have this opportunity. (a) IN GENERAL.—The Secretary of the This is graduation season and I want Treasury shall provide that any person ap- are personal and familiar to West Vir- plying to be an electronic return originator ginians and to our fellow Americans. the graduates of West Virginia’s high on or after the date of the enactment of this That is why I have taken this legisla- schools and colleges to know that their Act shall not be approved unless the appli- tion very seriously. The telecommuni- studies, their plans for getting an engi- cant provides fingerprints and credit infor- cations industry is one of America’s neering degree or something similar, mation to the satisfaction of the Secretary. engines for jobs, for new products, for will pay off in the form of job opportu- (b) PAST APPLICANTS.—The Secretary of cutting-edge research and new tech- nities. I want them to have that con- the Treasury shall apply the requirements nologies. This bill is needed and it is fidence. And they will be able to have described in subsection (a) to electronic re- needed now. And I think we are going that confidence in one of the many turn originators whose applications were ap- fields of telecommunications, as it just proved before the date of the enactment of to get it because the industry is still this Act without fingerprints and credit bound by the restraints of the law, the opens up and explodes over the next check information being provided.∑ Communications Act of 60 years ago, decade or so. 1934. Just stop and think about how The bill contains a series of provi- f much has changed in telecommuni- sions to guide the transition from the ORDER FOR RECESS cations over the past 60 years, espe- rules that have piled up over the last 60 cially over the past 10 years: Personal years to a new playing field designed Mr. LOTT. Mr. President, if no fur- computers, software, hardware, cable for the 1990’s. And I think it is fair. ther business is to come before the television, cellular, mobile phones—all On top of continuing the guarantee of Senate, I ask unanimous consent that of these have exploded into our offices, universal telephone service, there is a after the Senator from West Virginia, into our homes, into our lives and store section in this bill that modernizes Senator ROCKEFELLER, speaks for not shelves in every corner of the country. that concept and promises affordable to exceed 15 minutes, the Senate stand Since 1934, all kinds of statutory, rates to a very special category of in recess as under the previous order. regulatory, and judicial measures and American institutions, to wit, elemen- The PRESIDING OFFICER. Without rulings have also come along to spell tary and secondary schools, libraries, objection, it is so ordered. out the policy on various aspects of rural health care providers and rural S 8414 CONGRESSIONAL RECORD — SENATE June 14, 1995 hospitals. We had a very vigorous de- . . . the deregulatory amendment would screens, to those that design and sell bate in committee over this so-called completely eliminate rate regulation for the computer programs and games, to community user section that Senator cable operators who serve less than 35,000 the companies that transmit all of this [people] in one franchise area, and do not OLYMPIA SNOWE from Maine and I into households and onto the television serve more than 1 percent of all subscribers amended into the bill, and a even more nationwide. screens, to assume your share of civic vigorous debate last Thursday on the duty and accountability. floor of this Senate when an effort was The amendment was packaged as an There is a dark side to this explosion made to remove that same section. effort to provide ‘‘greater deregulation of messages and images pervading our At a time when Americans and this for small cable TV.’’ That is worthy as communities with too much violence body are also gravely concerned about a goal and I know from some of our and too much degrading material. If a crisis of values that we perceive, I small cable operators and owners in my the industry resists the temptation to would argue this section of the bill is State, that they have valid complaints hide behind excuses and shoulders its exactly the kind of effort we should be about the paperwork and some of the part of the citizenship in our democ- taking to strengthen the human fabric hassles of the regulations they are sub- racy that depends on its people, we can and values of America. ject to. And regulatory relief for small spend more time celebrating the good Let me explain. We deliberately tar- cable operators should get done. that this new world of telecommuni- get the institutions in our towns and To conclude, I congratulate every- cations is all about instead of being communities that promote community, body in this body. Senators and their forced to fight, as we will then have to, where children and adults learn to- staffs, who put in the incredible intel- and will, to stop the bad. gether, gather together, work together. lectual and physical energy to work on Mr. President, I appreciate the indul- In West Virginia our classrooms and these most difficult of all issues. The gence of the Presiding Officer and our libraries are often the only way telecommunications industry in Amer- those in this Chamber. that our children and citizens can tap ica is an arena of enormous possibili- I yield the floor. into the wonders of computers and, ties and opportunities. It also is made Mr. PRESSLER. Mr. President, I ask therefore, the links to a vast world of up of factions and sectors determined unanimous consent to proceed for 5 information and knowledge now avail- to get the upper hand. That is the minutes. able through something we call tele- other side of competition, and it makes The PRESIDING OFFICER. Without communications. it very hard to craft public policy that objection, it is so ordered. This part of the bill also rewards is truly balanced and in the people’s Mr. PRESSLER. Mr. President, I learning, education, and the art of broadest interests. want to commend the Senator from healing. We want schools to be a place Representing West Virginia, I have West Virginia, my friend, Senator where children delve into computers been guided by my desire to unleash an ROCKEFELLER. He has been one of the and hope that distracts them from be- industry that employs our people, in- architects of this bill, and he deserves havior which is far less useful to them. vests in research and technology, and much credit for his hard work. We We want libraries to be vibrant centers will redefine how our children and our thank him very, very much for what I of learning for families. We want rural citizens learn and communicate and consider was a great speech. clinics and larger teaching hospitals to work together in the years unfolding Mr. President, I would like to sort of band together and use telecommuni- before all of us. To me, it has been very bring the business of the day to a close cations to transfer the best of health important that the bill take certain by saying that in this bill, which I hope care into the most distant places. principles and values very seriously, we will pass tomorrow—I am confident The Presiding Officer as well as the especially the idea that West Vir- that we will—is the result of a biparti- junior Senator from West Virginia un- ginians are included on the informa- san effort that has been going on for a derstand the importance of tion superhighway and this time we do long time. telemedicine to West Virginia, Mon- not get left on the back roads, trying This is a major bill. It affects a vast tana and other rural States. to catch up. array; it affects every household in Mr. President, I also want to take a Mr. President, I would in fact say America. It affects all of our broad- moment to explain my vote on Friday that amendment, the Snowe-Rocke- casts, all of our cable companies and against the amendment offered by the feller amendment, when this bill cable customers. It affects all of our majority leader and the Democratic passes—I hope it will tomorrow—will local television, and our long distance. leader to change aspects of this bill represent, as far as this Senator is con- It affects our utilities, our direct dealing with cable services. Some ele- cerned, one of the most important broadcast satellites, and lots of other ments in the leaders’ so-called amend- parts of public service that I have ren- areas that would be too numerous to ment had merit, no question about dered, in my judgment at least, to the mention—publishing and their elec- that. But my vote against it was to people that I represent, past, present, tronic subdivisions, burglar alarm peo- protest one very specific change that I or future. I am profoundly moved by ple, the companies, and customers who think has no business being a part of the importance of that part of the bill. use telephone lines to transmit infor- this bill. Telecommunications policy is I further conclude with the hope that mation. complicated. The language is different. we will indeed see the dividends and In this bill there are vast other issues The issues are contentious. Perspec- benefits that we have all fought for in such as the percentage of national mar- tives vary, to say the least, on where this legislation. kets that one television group can the right balance is between giving the One last point about power. With or reach, and many other subjects, even industry a free hand on one side and without this bill, the power that Amer- the maritime satellite issues that af- making sure that the American peo- ican communications industry holds fects our ships at sea. ple’s interests are best served on the with its technology in connection to So this is a vast bill, and we are try- other. our people, a theme running through ing to get everybody else in the busi- However, it does not take a Ph.D. to the entire debate on this legislation ness as much as possible. We are trying understand how our constituents feel and in the public dialog, is the concern to end the regulatory apartheid that about their cable rates. And speaking about exactly what is being transmit- was set up in the 1930’s. We are trying for myself at least, it is not very dif- ted and communicated over all of these to have competition, and deregulation. ficult to recognize what a tele- lines, fiber optics, airwaves, and the I believe telephone prices will drop communications bill should say about like. America is traditionally at its substantially, if we pass this bill. I be- the public interest when it comes to best whenever part of our society lieve that cable rates will drop. I also cable rates. This is the reason I in- shoulders some part of the responsibil- believe that there will be an explosion sisted on a vote on the DOLE-DASCHLE ity for our children and for our moral of new jobs and new technologies avail- amendment and, therefore, to be able fabric. able to our people. I compare this to to go on record in opposition to the I urge every last element of this in- the Oklahoma land rush in terms of in- provision that is summarized in the dustry, from those that write the pro- vestment. Our people needed a road following words: grams on television, and the movie map. They need a road map for the June 14, 1995 CONGRESSIONAL RECORD — SENATE S 8415 next 10 or 15 years until we get into the small business, new small businesses, RECESS UNTIL 9 A.M. TOMORROW wireless age. That is what this tele- to be formed. There will be small busi- communications bill is. nesses in the local telephone service The PRESIDING OFFICER. Under I am also very proud that the White exchanges. There will be small busi- the previous order, the Senate stands House Conference on Small Business, nesses springing up, and new competi- in recess until 9 a.m. tomorrow. the participants, over 500 of them, tion. This is a jobs bill of the highest Whereupon, the Senate, at 9:16 p.m., today supplied me with letters urging priority. recessed until tomorrow, Thursday, President Clinton to support the Sen- So, Mr. President, I conclude by June 15, 1995, at 9 a.m. ate bill on telecommunications, and thanking all Senators. I think we have also saying that on behalf of small made great progress today. I look for- f business they want the Senate bill to ward to the vote on the amendments, pass. and final passage of this bill tomorrow. NOMINATION There has been some talk about this I pay special tribute to the Senator Executive nomination received by the Sen- as a corporate bill, this or that. These in the Chair, Senator BURNS, who has ate June 14, 1995: are small business representatives from provided great leadership on this sub- all across the United States. Small ject. He is one of the acknowledged ex- MERIT SYSTEMS PROTECTION BOARD business supports this bill. perts in the Senate. BETH SUSAN SLAVET, OF MASSACHUSETTS, TO BE A MEMBER OF THE MERIT SYSTEMS PROTECTION BOARD Our effort is to get everybody into I salute him for his contribution. FOR THE TERM OF 7 YEARS EXPIRING MARCH 1, 2002, VICE everybody else’s business, to allow I yield the floor. JESSICA L. PARKS, TERM EXPIRED.