[Congressional Record Volume 141, Number 94 (Friday, June 9, 1995)]
[Senate]
[Pages S8092-S8095]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        TELECOMMUNICATIONS BILL

  Mr. KERREY. Mr. President, I thought we were finished earlier. I 
listened carefully to the senior Senator from Nebraska on this issue. I 
come to make final statements. I do not know if I will take the whole 
15 minutes. I appreciate that the Presiding Officer and others were 
expecting to leave when the senior Senator was done.
  I must say, as I have on a number of other occasions, I am not sure 
most Americans know what it is we are about to do. I expect this bill 
is going to be enacted sometime in the next 4, 5, 6 days. It is 146 or 
so pages long, I believe, and it is going to touch every single 
American. If you have a phone, if you have a cable, if you use 
broadcast, if you buy records, if you are connected at all to the 
information services industry, you will be affected by this law.
  I have said, and I believe it to be the case, that it is not 
something that is occurring as a consequence of Americans saying we 
want to change our laws, we are unhappy with our phone service, we are 
unhappy with our cable service, we are unhappy with what we have. 
Typically, what we do around here is we try to make adjustments 
according to the agendas as we observe Americans saying that they have 
for themselves--the deficit, crime, education, all sorts of things that 
tend to dominate our debates.
  This one is being driven by corporations who have a desire to do 
things they currently are prohibited from doing under our laws. So we 
are rewriting our laws. I do not object to that. In fact, I have been 
an advocate for a number of years of deregulating the 
telecommunications industry, and I am enthusiastic about doing so.
  I just want to make it clear that the laws of this land will have 
ultimately an effect, and this law will have about as large an effect 
on the American people as anything that I have been a part of in the 7 
years that I have been in the U.S. Senate. I do not want anybody to 
suffer under the illusion that we are just dealing with something 
relatively minor here.
  I cannot, and I said it before, support this legislation in its 
current form. The debate that we were having earlier on the Department 
of Justice role--indeed, the compromise that was produced in this 
legislation was produced by the senior Senator from Nebraska in the 
committee to try to give DOJ, the Department of Justice, a role to 
consult as the application for permission to do long distance was being 
processed by a regional Bell operating company or local telephone 
company trying to get into long distance.
  But I must say, of all the things that had provoked interest in and 
by the American people, the title IV provision, the Communications 
Decency Act, sponsored by the senior Senator from Nebraska, has 
received the most interest. I will say directly that my own first 
amendment tendencies to support the first amendment cause me to sort of 
immediately say there must be something wrong with this thing.
  I am not familiar with the things that were available that the senior 
Senator showed earlier in the blue book, but I am a regular user of the 
Internet and I have used E-mail and the computer for last 12 or so 
years and consider myself to be relatively literate, though I will say 
I am not familiar with the items in question.
  I am prepared to acknowledge, and I think we all should acknowledge, 
there is a serious problem here. I have noted with a considerable 
amount of concern, since the senior Senator from Nebraska was 
successful in getting this attached to this bill, that he has been 
subject to a considerable amount of abuse and a considerable amount of 
attacks and a considerable amount of criticism from all sorts of 
sources, I suspect many of whom are not terribly informed what is in 
his bill or what is available over the Internet.
  Not surprisingly, the senior Senator from Nebraska has not withered 
under that fire and has not backed off from a legitimate concern, as I 
say, that may be one of the few real concerns that we are getting from 
the American people.
  If you asked me today in the area of communications what is on 
people's minds, what sort of things are people bothered by, it may, in 
fact, be the violence, indecency in broadcasting that tops the list. It 
may be the only thing.
  I ask my senior colleague, if you went to a townhall meeting, let us 
say in Broken Bow or Omaha, Lincoln, and you just raised the question 
of telecommunications and you define it as the media, telephone, so 
forth and ask them, ``Of all the things about this, what's the problem 
for you,'' they may complain the rates are too high with cable, or they 
have some broadcast problems out in the western part of the State, like 
we had at Scottsbluff a couple years ago. But this one does come up in 
townhall meetings. This issue does get raised. Parents are concerned. 
Citizens at the local level are concerned about this particular 
subject.
  I do not know exactly where the efforts to amend this legislation 
will go. I have not looked at the details of the changes the senior 
Senator has proposed, but I am not unmindful, at least in this 
particular area, of all the things we are debating, this is something 
regarded by citizens as something that needs to be addressed.
  Earlier in the comments of Senator Exon, he used the word ``punt'' 
and brought up the Nebraska football team. After Nebraska won the 
national championship, Senator Exon just sort of clapped his hands and 
thunderously here comes the team to Washington, down to the White 
House.
  It was a very moving moment for those of us who waited a long time 
for this to happen. In a conversation with Coach Osborne that I had 
that day at the White House, I asked Coach Osborne--he is the football 
coach for the University of Nebraska. He has been giving many speeches 
and expressed some real concern of what is going on with young people 
today, particularly in Nebraska but throughout the country, since he 
recruits throughout the country.
  I do not know if the senior Senator had just introduced the bill at 
that time, but he said he did not know if this particular piece of 
legislation was good or not because he had not read the details of it, 
but it addressed a problem that he thought was real and present at the 
local community. It addressed a problem that he himself is personally 
terribly concerned about.
  Mr. President, I hope that in the process starting Monday, Tuesday, 
Wednesday--whenever it is we reach a final vote--that we will begin to 
generate some enthusiasm amongst Americans to pay attention to these 
146 pages that we are about to enact in some shape or form.
  I personally hope, though I know it is going to be difficult to do, 
and I am here to put out an appeal to the Presiding Officer and the 
senior Senator from Nebraska who were very much a part of the 
committee's deliberation--I am not on the Commerce Committee; I was 
allowed to have a staffer sit in on much of the deliberation--I hope 
that we can get a good-faith effort to narrow the differences between 
the Dorgan amendment and the Thurmond amendment on this DOJ role.
  It is a very serious matter. It is a very serious matter to me 
personally. I cannot support this legislation unless there is a role 
for the Department of Justice. I intend to oppose it strongly unless 
there is.
  I am very much concerned about what is going to happen to the 
American consumer as we move from a regulated monopoly at the local 
level to competition at the local level--very much concerned about it.
  As I paid attention, I must say, this has been my dominant concern 
right from the opening bell. I do not know if the senior Senator from 
Nebraska has any way to try to help us bring Senator Thurmond and 
Senator Dorgan together and maybe perhaps bring a majority around some 
increase in strength in the role for DOJ, but it seems to me we can do 
it in a fashion that addresses the concerns of the senior Senator from 
South Dakota.
  The chairman of the committee has expressed over and over concerns 
for duplication, excess bureaucracy. We drafted at least that portion 
of the [[Page S8093]] amendment that deals with bureaucracy, so there 
is a time period, a 90-day commitment.
  The Senator from South Carolina, Senator Thurmond, has decreased some 
of the role for the FCC, not dramatically but enough.
  It seems to me what we are trying to do is address the problems that 
some have, and I think they are legitimate concerns, for tying down and 
tying up companies too much as they try to get into long distance.
  But, Mr. President, if the consumers of America, who are truly, in my 
judgment, likely to be unaware of what we are about to do, if they are 
really going to benefit from the corporations' new rights to get into 
long distance, if they are truly going to benefit from competition, 
then the benefits are going to have to come from entrepreneurs that do 
not exist today, businesses that will be startup businesses, that will 
be coming into households and offering services that will be packaged.
  The only way, in my judgment, that we are going to get decreased 
prices and increased quality is if you get ferocious competition at the 
local level. As much as I am enthusiastic about the 14 points that are 
required, the 14 actions that are required by the Bell operating 
companies before they can make an application, I am troubled that we do 
not have any case law on it. I fear we are going to have lots of 
litigation on it.
 And I fear as well that rather than having immediate competition, you 
are going to have a slowing of entry into competition, and, as a 
consequence, we are going to find ourselves with consumers, citizens, 
voters, taxpayers, who are not terribly pleased with the net result.

  Once again, I look forward next week to the continuation of this 
debate. I hope it is constructive and that it does, in the end, lead to 
a piece of legislation that I am able to enthusiastically support.
  Mr. President, I yield the floor.
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska [Mr. Exon] is 
recognized.
  Mr. EXON. Mr. President, I am going to be very brief. I thank my 
friend and colleague from Nebraska for his remarks. I simply say that I 
did not use coach Tom Osborne's name. He has called me on the telephone 
and written me a letter. He does support this legislation. And for 
whatever that is worth, I think you and I have the highest respect for 
Tom Osborne, the man, as well as Tom Osborne, the football coach, and 
for what he has done for young people.
  I want to ask my colleague from Nebraska a question with regard to 
the matter that he just brought up. We are going to vote next week on 
the amendments being offered by the Senator from North Dakota, and I 
think cosponsored by my colleague from Nebraska, with regard to the 
Justice Department.
  I have been following this, and I am not quite sure I understand the 
Senator's objections. I had a great deal to do with this during the 
last 2 years--the whole bill, in the Commerce Committee.
  On page 8 of S. 652, there was specifically put in the legislation on 
line 20, section 7:

       Effect on other law. A, antitrust laws. Except as provided 
     in subsection B and C, nothing in this act shall be construed 
     to modify, impair, or supersede the actions of the antitrust 
     laws.

  I am sure that my colleague from Nebraska knows of that provision. I 
have always thought that was put in there specifically to make certain 
that the Justice Department of the United States would maintain their 
traditional role of enforcing the antitrust laws in America. Does that 
not satisfy the concerns of the Senator from Nebraska, or does he feel 
that that particular quote from the law impairs, in any way, the 
responsibility that the Justice Department has under the antitrust 
laws, that they will have the full right, as I understand it, to pursue 
in the future as they have in the past?
  Mr. KERREY. That provision is very important. That language the 
Senator mentioned is a very important provision. It would make certain 
that the Department of Justice continues to have its historical 
antitrust role. That is very important.
  The problem that I have with that being sufficient is that it does 
not go as far as 1822 did last year, in that it is after the fact.
  In other words, let us pick the regional Bell operating company in 
our area, U.S. West. Let us say U.S. West now does all 14 of the things 
that are required in order to get into the interLATA, in order to do 
the long distance, and they come to the FCC and get permission to do 
long distance service. Well, the problem is, if the Department of 
Justice wants to take action, they have to take action after the fact, 
after permission is granted; after they are in long distance, then they 
have to come and take action. What I would feel more comfortable with 
is if we had DOJ involved, as 1822 did, in a parallel fashion, not in 
addition to. What I was most interested in was making sure that there 
was a parallel process with a time certain. And in the language of the 
Dorgan amendment, as amended, as well by the Senator from South 
Carolina, there is a 90-day time certain, and a parallel process 
occurs. You do not file to one and then go to the other.
  The precedent that I am trying to use repeatedly--and I think it is a 
good one--is that in 1984 the Department of Justice was the one that 
managed the transition from a monopoly to a competitive environment in 
long distance.
  Mr. PRESSLER. Mr. President, I would like to be able to enter into 
this colloquy. What is the parliamentary situation?
  The PRESIDING OFFICER. At present, if I might state it, there is a 
previous order that we were to recess after the senior Senator from 
Nebraska completed his statement, which has been completed.
  Mr. KERREY. Should I be asking unanimous consent to speak until the 
presiding officer has to leave?
  Mr. PRESSLER. Mr. President, I would like to get into this colloquy.
  Mr. KERREY. I ask unanimous consent that the earlier unanimous-
consent order be revised and that we will go out at 4:30.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. PRESSLER. Will my friend yield so I can get a question in?
  Mr. KERREY. Yes, if I can first finish the answer I was giving to 
Senator Exon.
  I deeply hope that this colloquy can result in you helping me. I am 
not trying to get you to necessarily say, gee, yes, I am going to vote 
for this amendment. But I am trying to enlist your help in getting a 
larger role for DOJ to allay the concerns that I have that permission 
is going to be granted to get into the long distance service, and then 
the only opportunity that consumers would have to make sure that there 
is competition is to be for an action to be filed after the fact.
  Again, what I am expressing is a concern that we may not have real 
local competition. What the committee did--and I think it was good 
work--was come up with this 14-part checklist and say this is going to 
replace the VIII(c) test we had in last year's legislation. This will 
be sort of in lieu of. It is quite good. It does not give me 
confidence. I know that the senior Senator understands this as well, 
that when it comes time to starting a business as an entrepreneur, 
typically, you do not have enough money to be able to hire your own 
lawyer. These larger companies have whole dump trucks full of lawyers 
that work for them.
  When you are dealing in that kind of environment, I want to make sure 
that this entrepreneur that wants to come to Omaha, Grand Islands, or 
Hastings, or Scottsbluff, and come to the household and say I want to 
deliver a competitive information product, which the playing field 
allows them to do it, I want to make sure they have the Department of 
Justice signing off in a parallel process to do so.
  Mr. PRESSLER. If my friend will yield for a question, is there 
another area of the Justice Department where they have a decisionmaking 
role? Earlier this year, we had this process that we went through, and 
both Senators from Nebraska had their staffs there and could have been 
their personally, night after night, and they both did a good job. They 
wrestled with this Justice Department thing over and over and could not 
find another area of American life where the Justice Department has a 
decisionmaking role, such as this amendment wants to add.
  Mr. KERREY. You have asked me a question; let me answer. We have had 
[[Page S8094]] this colloquy a couple of times before. My answer, with 
great respect--and I am not trying to argue--I am trying to, hopefully, 
get some change that enables me to support the legislation. What I said 
before I will say again--we had a role with the Department of Justice 
when we did this thing once before 10 years ago. The Department of 
Justice had the most important role in taking us from a monopoly in 
long distance to a competitive marketplace.
  The answer to your question is that the Department of Justice had the 
principal role. We are not asking the--in this proposal we are not 
giving the Department of Justice the ability to manage this thing 
unnecessarily. We are simply saying that there is a review process and 
they have the authority to sign off on it, and they have to answer in a 
90-day period.
  Mr. PRESSLER. If my friend will yield, there is no other area of 
American economy--and it is true since Judge Greene's order, and he has 
200 staff attorneys over there, basically. But there is no need to 
continue having that just for one sector of our economy in the Justice 
Department, a decisionmaking role.
  Mr. KERREY. If there is a need for this law--the law is 
unprecedented. We are doing something extremely unprecedented. Ask the 
ratepayers, the taxpayers and citizens in the households. We are taking 
your comfortable telephone service, your comfortable cable service--you 
have it now and it is a monopoly, you know it is there--and subsidize 
rates and keep the rates down in residential. We are transitioning 
where those protections are not going to be there any longer. It is an 
unprecedented move from a monopoly to a competitive environment.
  I am suggesting that because of that lack of precedent, it is 
reasonable to look for an unprecedented way to manage, as the bill 
itself describes--manage from that monopoly situation to a competitive 
situation. I believe that it is possible and perhaps, even desirable, 
to put some limitations, if you want to, on what the Department of 
justice can do.
  There have been earlier suggestions on how to do that. But to give 
them only a consultative role, I just genuinely, sincerely believe that 
that risks this entire venture. It places this entire venture into the 
hands of corporations to say we know that you want to do the right 
thing, so we know you are going to allow competition. I think it is 
more than reasonable to expect of anybody. If I am a business--even a 
small business--I can talk all I want to about competition and how I 
favor it. But the truth of the matter is, given a choice, I would 
rather not have it.
  Mr. PRESSLER. Under the consent decree that broke up AT&T, DOJ is not 
the decisionmaker; it was the court, Judge Greene. Now we are making 
DOJ the decisionmaker under the Dorgan proposed amendment.
  Mr. KERREY. No.
  Mr. PRESSLER. They will make the final decision.
  Mr. KERREY. It does exactly what the consent decree did, as well.
  It basically says, ``You are going to have multiple consent 
decrees.'' What happens when, say U.S. West buys a long-distance 
company. What happens then? I tell you what happens. The Justice 
Department has to approve it. The Department of Justice would have to 
approve a merger of a local company acquiring a long-distance company.
  The senior Senator from South Dakota would not object to that.
  Mr. PRESSLER. But under the Clayton and Sherman Acts, as my 
distinguished friend pointed out, the language in the bill, they 
already have antitrust power.
  We are setting up a permanent administrative bureaucracy in the 
Department of Justice that is supposed to be done over at the FCC, and 
we have it done in the FCC in two ways. One is the public interest 
convenience and necessity; and two is the checklist that Senator 
Hollings and Senator Exon and Senator Kerrey of Nebraska had there with 
staff.
  This was all worked out. We spent night after night. Never has there 
been a more bipartisan effort in this Senate, preparing a bill, if I 
may say so. We invited everybody. I talked to all 100 Senators.
  There is an implication by the Senator from Nebraska that all this 
was sprung upon him suddenly.
  Mr. KERREY. I knew precisely what was in the bill. If I were in the 
committee, I would vote ``no'' entirely based on that provision.
  Mr. PRESSLER. There is an implication that the bill is driven by 
corporate interests.
  Mr. KERREY. It unquestionably is, Senator. That is very difficult not 
to deny.
  I do not say that there is a dark and mysterious and evil aspect to 
that at all.
  Mr. PRESSLER. From this Senator's point of view, the public interest 
is very much at heart throughout these considerations. I think all the 
Senators who worked on this bill have had the public interest. I do not 
accept that conclusion about the Senate of the United States.
  Mr. KERREY. There is nothing wrong with the Senate of the United 
States considering and worrying about what corporate America wants. I 
am not saying that just because corporate America is asking for this 
that corporate America somehow is bad. I am not implying they are bad 
at all.
  I am saying when I talk to people about this issue, when I get phone 
calls on this issue, it is rarely a citizen that is calling up and 
saying, ``Senator, I really am concerned. I heard you talk about the 
Justice Department having a role in the application for interLATA 
freedom.'' Citizens do not ask about interLATA.
  Mr. PRESSLER. Your staff was in the room where the bill was drafted.
  Mr. KERREY. I am not a member of the committee and I did not vote on 
this. I am approaching a moment where I will have an opportunity to 
vote. I understand that my staff was involved in the deliberations. I 
appreciate that opportunity.
  Mr. PRESSLER. I want to say how hard that staff and Senators involved 
worked through the weekends. A lot of Members have not had a day off 
since Christmas.
  I find the suggestion that this bill is a result of corporate 
interests in the Senate of these United States, when we had a 
discussion this morning about assuming language, or whatever people are 
saying, and so forth, and maybe I misspoke. I do not know. I raised 
some points. I consider the Senator from Nebraska a good friend.
  We have done everything we can to do what is right for the American 
people. If we do not pass this bill in this Congress, it will fall over 
to 1997 and we will lose 2 years of jobs and creativity.
  This is not a perfect bill. I welcome the participation of the 
Senator from Nebraska.
  Mr. KERREY. I think this bill will pass. It has a lot of steam behind 
it, and I think it is likely to pass. I am just saying it will not have 
my vote unless there is a strong Justice Department role.
  I do not think what I am asking for is unreasonable.
  Mr. PRESSLER. I find it unreasonable for the suggestion that this is 
a bill of corporate interests. I believe the Senators involved have 
acted in the public interest.
  Mr. KERREY. I do not doubt they are acting in the public interest or 
that the senior Senator from Nebraska is acting in the public interest. 
I do not doubt that. That is not the point I am making.
  I am saying, look out there for who it is that is asking for change. 
It is corporate America.
  If I polled the people of Nebraska to rank this on their agenda, the 
only thing they would mention is probably the Communication Decency 
Act.
  Mr. PRESSLER. There is a large part of corporate America for the 
Justice Department review which the Senator is supporting.
  Mr. KERREY. That is true.
  Mr. PRESSLER. But I am not accusing the Senator of responding to 
corporate America. I think we are asking, in the public interest.
  Mr. KERREY. That is my point, Senator.
  Corporate America has weighed in on this issue. Corporate America has 
contacted me on this particular issue, as they have contacted the 
Senator.
  The point I am trying to make is that the dominant interest in this 
piece of legislation is a relatively small group of corporations that 
are currently regulated and that want to do something that the current 
law does not allow them to do. That is the point [[Page S8095]] I have 
made before, that I will continue to make.
  Mr. PRESSLER. Some of the biggest corporations in America want a 
Justice Department review.
  Mr. KERREY. I agree, some of the biggest corporations in America do 
not want the Justice Department review.
  That merely makes the point that this is largely the kind of an 
argument driven by concerns of corporations who either want to do 
something or do not want somebody else to do something in this area.
  The PRESIDING OFFICER. I notify all Senators that it is now 4:30. 
Based on the previous agreement, all discussion was to cease at 4:30.
  Mr. EXON. I ask unanimous consent I be allowed to continue for 5 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. EXON. First, to be facetious, I would like to advise my colleague 
from Nebraska that unless he misspoke or unless I heard him wrong, he 
said something to the effect that he sees nothing wrong with the U.S. 
Senate. If somebody would take that out of context, it would be the end 
of his political career. It might be a good time to ask that be 
stricken from the record.
  Seriously speaking, I had cited earlier the section on page 8. I 
would also like to cite an additional paragraph from page 89 of the 
same act which says ``before making any determination under this 
subparagraph, the commission shall consult with the Attorney General 
regarding the application.''
  I would simply advise both of my colleagues that this Senator has had 
considerable experience over the years in dealing with the bureaucracy. 
We have dealt for a long time, and my colleague from Nebraska has been 
involved in many of the interstate commerce decisions.
  In no case does the Justice Department have prior consideration with 
regard to the Interstate Commerce Commission. Therefore, I think the 
point the Senator from South Dakota is trying to make is that we are 
treating the various agencies of the Federal Government--either 
independent agencies or agencies under the direct control of the 
President--the same as we have treated them previously.
  I think that my colleague from Nebraska makes a pretty good point. I 
think I understand his concern.
  I just want to say, as one involved in S. 1822, the predecessor of 
this, and this piece of legislation, the original draft that came to 
the committee after our distinguished colleague from South Dakota 
became chairman, contained no information or statement whatever to help 
address the concerns that have been raised, and I think to some degree, 
legitimately raised by my colleague from Nebraska.
  It had nothing in there at all. That proposal came that would have, 
for all practical purposes, ignored the Justice Department.
  I have cited two instances where, during the cooperation, during the 
discussion, during the compromise that we worked very hard to maintain, 
we came up with something that I think would allow the Justice 
Department to play a key role.
  One thing I would suggest might be wrong, to go back to the 
illustration used by my colleague from Nebraska, U.S. West, for 
example, wanted to go into some kind of a network they had not 
previously been allowed to do.
  According to the feelings, unless they were spelled out in the law, 
they would have to act after the fact. Of course, that is the way they 
always do, act after the fact.
  The problem that the company, in that particular situation, I am 
fearful, was that they would have two different agencies of the Federal 
Government to go to for clearance, the Justice Department on one hand 
and the Federal Communications Commission on the other.
  I simply say that I happen to feel that the hard-driven compromise 
that was worked on this by members of the committee may not be perfect, 
but as both Senators know, I have never voted for a perfect law since I 
have been here.
  I will study the matter over the weekend further. I appreciate the 
discussion I had with my good friend and colleague from Nebraska and my 
colleague from the State to the north, South Dakota, where I was born. 
Thank you both very much.


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