Fritz Hollings

Mr. HOLLINGS

Mr. HOLLINGS. Will the distinguished Senator yield?

Mr. HOLLINGS. I am willing to be educated and go along. In my mind, like Government, we do not have anything to give that we do not take. You and I have the same idea in mind. If that is what the Senator says and that is what they do, I am not the head of the company, but I think I could make it appear that the ratepayers were not paying for it. But come what may, I am afraid they would be.

Mr. HOLLINGS

Mr. HOLLINGS. Sure. (The remarks of Mr. Domenici pertaining to the introduction of S. 917 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'') Several Senators addressed the Chair.

Mr. HOLLINGS. I object.

Mr. HOLLINGS. I move to table the McCain amendment, and I ask for the yeas and nays.

Mr. HOLLINGS. Reserving the right to object, Mr. President, do I understand the Senator moved to table the McCain amendment?

Mr. HOLLINGS. Mr. President, if the distinguished Senator from Nebraska is waiting for a response from this side, there is an amendment on interLATA rates which I discussed with the distinguished Senator at the time. We wanted to make absolutely clear that we did not open up a big loophole. The distinguished Senator now has it limited. It is dedicated, and I think in good order. We are prepared to accept the amendment on this side.

Mr. HOLLINGS. Mr. President, I feel like Frank Clement at the 1956 convention. How long, 0, America, how long will we continue to debate and not act? I share the same frustration that the distinguished Senators from Connecticut and North Dakota share on this particular score. Over 2 years ago, getting right to one of the main points about the least intrusive manner--and the Senator from North Dakota is right on target there relative to constitutionality because he has read the cases, and we have all studied them, and that is what you have to do in order to qualify constitutionally in this particular measure--the least intrusive measure is with respect to children. Yes, the courts have held you could not regulate violence with respect to the distinguished Presiding Officer and this particular Senator as adults. It is unconstitutional to try to even attempt it. So we found that you could do it with children. So having found that it could be done with children, then the least intrusive measure is not as suggested in this particular amendment, plus its perfection by the Senator from Connecticut; the least intrusive is limited to that period of time during the day when children are a substantial or majority portion of the viewing audience. That does not get them all. I feel, as the Senator sponsoring this measure, that I would like to get it all. I would like to get it all the time, but constitutionally I cannot. I think there is too much violence for all of us. But constitutionally, not being able to, that would be one particular defect, as I see it, in the approach that has been brought out in hearings heretofore, and hearings heretofore incidentally back in 1993 that we had the present Attorney General study S. 470, which is now before our committee, a bill by Senator Inouye, myself, and others. And Attorney General Reno attested to the fact that she thought it would definitely pass constitutional muster. There is another feature with respect to this--and I am not just nit- picking because, if they call the amendment and we vote it, I would still vote for the amendment, I say to the Senator. Do not worry about that. But what happens is you have a fee in here, also. When we had a fee 2 years ago, Senator Bentsen--no, this was 4 years ago, because 2 years ago he was the Secretary of Treasury--but 4 years ago when we had a similar hearing, he said, ``Wait a minute, the fee belongs in the Finance Committee,'' and someone later on would raise that point. I would still vote for it. There are these kinds of misgivings. I remember the distinguished chairman of the Communications Subcommittee on the House side--the distinguished Presiding Officer would know and be familiar with the honorable Congressman Ed Markey, of Massachusetts. He had what he called then the V-chip. They are calling this the choice chip. He ran into these similar problems. But it is not my argument. So we have had problems. Like I said, how long, America, are we going to consider and do nothing because there is a problem for every solution? I would prefer--it would be up to the sponsors of the bill; I am confident our distinguished chairman would prefer--to take these perfecting amendments, with a matter of a fee there, and otherwise, to have a hearing on this and guarantee we will bring out a bill of some kind that we think is constitutional. I do not want them to think it is a putoff. I do know there is an inherent danger here that I immediately feel, having been in this particular discipline now for a long time. I started off last week in the opening statement I made that evening--I think it was last Wednesday evening--that any particular entity or discipline in communications has the power to block the bill. I can see the broadcasters, when they see fees, running around trying to block this bill. That, again, is not necessarily a valid argument against the amendments of the Senators from North Dakota and Connecticut. But there are these inherent dangers that immediately arise. I can think of several others. I have the opportunity to distinguish what we have pending before the committee. I implore the authors to go along with it, but if they want to vote, I am convinced the majority leader is ready to vote for them. Is it the desire of these Senators, irregardless, as my Congressman Rivers used to say down home, irregardless, you are going to want to vote one way or the other, period, because I do not know whether it is our duty to argue further, I say to the chairman. I yield the floor.

Mr. HOLLINGS. Mr. President, I suggest the absence of a quorum.

Mr. HOLLINGS

Mr. HOLLINGS. Mr. President, I ask unanimous consent that the time for the proponents be managed by the distinguished Senator from North Dakota and the Senator from South Carolina, Senator Thurmond. They are the proponents.

Mr. HOLLINGS. Mr. President, as I understand it, time is divided between the two managers. I take it on this side we would manage the 30 minutes for the proponents. In no way do I propose this amendment. I hope to kill it. But I yield such time as the Senator wishes.

Mr. HOLLINGS. Mr. President, I move to reconsider the vote.

Mr. HOLLINGS. If the Senator will yield. The distinguished Senator from Mississippi is really analyzing in a most cogent fashion what discourages this Senator even further. I wondered if the Senator from Mississippi agrees that it will not only bring in the Department of Justice in a regulatory fashion and responsibility, but they actually eliminate the Federal Communications Commission measuring of market competition. Listening to the language: ``In making its determination whether the requested authorization is consistent with the public interest, convenience, and necessity, the Commission shall not consider the antitrust effects of such authorization in any market for which authorization is sought.'' So when they say antitrust, that means competitive effects. They lock out the word on competition, but that is the intent. You can see how it has been drawn. ``* * * shall not consider the * * * effects of such authorization'' on competition. So they insert the word ``antitrust'' and do not put in ``competition''. But that is the intent. So where you have the most recent and leading decision here, the U.S. Court of Appeals in Warner versus Federal Communications Commission, where they stated right to the point, ``The Commission struck an appropriate balance between the competing interests of the cable companies and their subscribers,'' giving the good government award to the FCC on measuring market competition. You see, the thrust of this amendment, where they get this idea, is that somehow the expertise is over in the Department of Justice, and none whatever, no experience or track record whatever in the Federal Communications Commission, which is totally false. They have been doing it. I listed numerous competitive initiatives by the FCC in the past 10 years. And right to the point here, when we told them, look, in regulating the cable TV folks, find out whether or not effective competition has developed within the market. Once the market is permeated with effective competition, no longer is regulation necessary. So my question is not just the matter of putting the nose of the camel under the tent, he is putting the whole blooming camel in and crowds out the FCC. It said, look, we do not want the FCC measuring competition and the market. ``Shall not.'' Now, say I am a communications lawyer, so I read that and I say, the FCC is doing it, but the law says, by the Congress, you have this betwixt and between. It is really confusion. Do you not see it a danger to the fundamental authority and responsibility of the FCC?

Mr. HOLLINGS

Mr. HOLLINGS. I move to lay that motion on the table. The motion to lay on the table was agreed to. Mr. PRESSLER addressed the Chair.

Mr. HOLLINGS

Mr. HOLLINGS. Let me join in the remarks of the distinguished Senator from South Dakota with respect to amendments. We killed the day looking for amendments. We started on this bill last Wednesday. I have been in the vanguard of opposing cloture, but I would have to support it in this particular instance because we cannot get amendments drawn and presented and voted upon. So a day passes by and everybody talks about how they would like to get out early and do these other things. [[Page S8170]] This is the Senate's business. We hope that we can move along now expeditiously on this side of the aisle. If there are any amendments, we do appreciate the Senator from California, ready and willing and able to present the next amendment. Beyond that, I hope we can get some other amendments. I yield the floor. Amendment No. 1270 (Purpose: To strike the authority of the Federal Communications Commission to preempt State or local regulations that establish barriers to entry for interstate or intrastate telecommunications services)

Mr. HOLLINGS. Right.

Mr. HOLLINGS. Right.

Mr. HOLLINGS. Mr. President, let me join in the desire of our chairman here to get a vote this evening. When we broke on Friday the understanding was we would vote at 5 o'clock, perhaps. Not specifically on this amendment. We would have votes. This is the amendment that is up. We discussed it some, actually, on Thursday; all day Friday. This has been a crucial amendment. I guess the world is not going to end if we put it over to tomorrow morning for this particular Senator. But you could not call a vote at 6 o'clock, or 7 o'clock, or this evening at all, unreasonable. Because we have debated. We look for the Members to come and join in. In fact, it has been debated on the telephone all weekend long. Because the pressure has been on. As a result, now, the Senator from North Dakota and the senior Senator from South Carolina have gotten together on the one amendment to get the best vote, I take it, possible on this particular issue. With respect to the issue, Mr. President, I hearken back to the hearings we had over a year ago. We commenced with the Secretary of Commerce, Secretary Ron Brown. The reason I refer to this is we are constantly being admonished: Wait a minute, you voted for this last year. Wait a minute, you voted for this last year. I wish I could be as charming as the distinguished Senator from Illinois, the former minority leader--momentarily I think he may have been majority leader but he was mostly minority leader, Senator Everett Dirksen. And he said--I think he was quoting Emerson, ``Consistency is the hobgoblin of little minds.'' So, yes, the Senator from South Carolina voted for this last year. However, the Senator from South Carolina, and referring to Secretary Brown's appearance in February of last year--I refer on page 40: Secretary Brown. Well, I certainly respect that view, Senator Danforth, and the one expressed by the Chairman. It is our view that VIII(c), administered by the Department of Justice, which has a good deal of experience, as the Chairman points out, would achieve the purposes of the committee and achieve the purposes of S. 1822. That is the only difference we have. We have the same goal. Mind you me, S. 1822 did not have the Department of Justice as a checkoff at all when I introduced S. 1822, after much discussion with many of the Members. ``The Chairman,'' as I was acting chairman at that particular time: You are suggesting that this be administered by the FCC and the Department of Justice? Secretary Brown. That is correct, Senator. The Chairman. Well, that is the basic difference, then. You want two entities to start administering communications. Going on over two or three pages at the bottom of page 43, because here we have at the present time the law with respect to telecommunications is unchanged, as respects the Department of Justice. Section 2 of the Sherman Antitrust Act is untouched, absolutely untouched. Let me emphasize that. That is where the so-called Department of Justice got all of this wonderful experience that we keep hearing about. They have all of the experience over the years and they have the marketing expertise and what have you. So, on page 8 of the bill, if you follow now, on 8 of the bill down at the bottom on section 7, Effect On Other Law . . . nothing in this Act shall be construed to modify, impair, or supersede the applicability of any antitrust law. Mr. President, you cannot say it more clearly than that. I elaborated on it in the committee report and I turn to page 43 wherein: The FCC is required to consult with the Attorney General regarding the application during that 90 day period. The Attorney General may analyze a Bell operating company application under any legal standard (including the Clayton Act, Sherman Act, other antitrust laws, section VIII(c) the [modified final judgment], the Robinson-Patman Act, or any other standard). You see, that had not changed and is not changed by S. 652. So what we were trying to do, and as I pointed out as we started out on S. 1822, was to cut out the duplication, and certainly not give authority for regulation to the Department of Justice. The Department of Justice is a law enforcement department. In fact, under Sherman, Section 2 of the Sherman Antitrust Act, are civil and criminal penalties. I said when we started on this last week the telephone companies were not a bunch of criminals and there was not any reason to start getting them-- yes, there is a difference. My distinguished colleague from Nebraska says get a different lawyer. You bet your boots you get a different set of lawyers. It is just like going to a doctor for a broken arm, on the one hand, and going to a doctor, on the other hand, for diabetes. They do not know anything in broken arms about diabetes, and diabetes cannot set any broken arms. Similarly, in the legal profession, if you are going before antitrust, I can tell you now as I have had to face antitrust lawyers and this particular attorney was not expert, I had to go up to VanSeiss, in New York, for a solid week seminar, because we did not have any particular antitrust lawyers in Charleston, SC, at the time that were willing to take this case. I told the prospective client, I said, ``Wait a minute I am not an antitrust lawyer. I am not steeped in that particular discipline.'' I had met VanSeiss and he had a seminar, and we buddied off, my law partner and myself, for a week's seminar and came back and figured we learned enough not only to defend but to prevail. But that is another story. But I can tell you from hard experience, the answer is ``yes.'' You do not get the same lawyers before the FCC, necessarily, and the same lawyers before Justice and the Criminal Division of section 2 of the Sherman Antitrust Act. The Clayton Act, in all fairness to the amendment of the Senator from South Carolina, Senator Thurmond, that deals strictly with civil penalties, with the matter of measuring whether there is excessive competition that could lead to extensive--not competition but monopolistic practices. But in any event, let me refer back to page 43 of the hearing committee record so everybody who is interested about how we change-- you are going to tell how change comes about. The chairman, which was Senator Hollings, said, and I quote: Well, let me just comment on the matter about antitrust because I did discuss with Anne Bingaman this particular bill before it was introduced. And I made it known to her that, and she well knows I recommended her for the position of Assistant Attorney General in charge of the Antitrust Division. She is a breath of fresh air. I am the appropriations chairman of the Antitrust Division of the Justice Department. I have been dealing with the moneys for this Antitrust Division of the Justice Department for numerous years, and I can tell you categorically we are way behind the curve in this particular field. And she has got more . . . grace . . . the FCC has its responsibility. On that basis, trying to eliminate lawyering, trying to eliminate the delays, trying to simplify the procedure, we really do not need more of a role for the Department of Justice other than consultation. Well, there is an egregious situation of monopolization . . . they do consult, and we put that in there. But otherwise we did not want to get into Justice and get into the Judiciary Committee and get bogged down. That is exactly where we had intended, as I said at the very beginning, the one-stop shopping. But the White House disagreed, and the Justice Department disagreed, and numerous Senators disagreed, and the task of a chairman of a committee is to get the best product you possibly can so long as you do not do injury to the overall goal of deregulation and fostering competition. So I went on in the bill S. 1822. But those who continually say, ``Well, you voted, you voted--last year. You should be admonished.'' Rather than admonishing me, my original intent as the chairman of the committee was to do just as Senator Pressler has provided in S. 652. So in S. 652 we provided the one-stop shopping at the Federal Communications Commission. The Department of Justice is totally unhindered and unaffected with respect to their antitrust responsibilities and authority. There is no question about that. No one has raised that question. They are seeking in the amendment additional authority and responsibility, which I think very positively confuses the situation and constitutes a bad amendment. Why do I say that? I say that for this language here in the Thurmond- Dorgan amendment. It says the ``FCC, in making its determination whether the requested authorization is consistent [[Page S8155]] with the public interest, convenience and necessity, the Commission shall not consider''--listen to this--``the Commission shall not consider the antitrust effects of such authorization in any market for which authorization is sought.'' I am your lawyer. You have a communications company. You come to the lawyer and say, ``Lawyer, tell me. What about this thing?'' I say, ``Well, it says it should not have any authority at the FCC over any antitrust section of marketing, in any market for which authorization is sought. However, we know marketing forces and we know forces of competition. And we know measuring market competition. You have an affirmative action responsibility empowered in the FCC by S. 652.'' I say, ``It is the present law,'' or the law as my client would come to me. And I say, ``They have to do all of this unbundling, dialing parity, interconnection, number portability.'' And I list all of these particular things. ``You have the public interest section in here about marketing. Yet, you have a section in there that says you cannot touch the marketing thing if they reflect antitrust. Well, marketing competition, antitrust marketing competition, could be, as we lawyers say, the mime shows, or the same thing.'' I can tell you here and now you have a bad amendment where they are jockeying around to get Justice into this and mess it up. I can tell you, leave the Justice Department Antitrust Division, leave section 2 of Sherman antitrust, leave section 7 of the Clayton Act, leave all of those things as they are. S. 652 does. But do not come wandering down the road with dual committee jurisdiction, dual jurisdiction, two types of attorneys, and everything else. And about the time, if you were going at the same time and think you are making progress now with respect to the Federal Communications Commission, after, say, two or three hearings, some antitrust lawyer gives out a release, saying, ``Well, we are concerned about the XYZ communications company getting into this section 2 of the Antitrust Division,'' it will stop. Boom. It goes right straight on down because you have the criminal department of the Justice Department, the law enforcement department, it is not regulatory, the public is confused, the market is confused, the Congress is confused. It is a bad, bad amendment. And let us not talk about where the expertise is. I want to relate to the function now of the Federal Communications Commission. The Federal Communications Commission for year on end was to maintain a monopoly. They were there to protect AT&T and its monopolistic Bell companies. Today, we are supposed to protect the RBOC's in a general sense. That has been the primary function in the Federal Communications Commission. But getting in the 1960's, due to the pressure of Congress, the market and the evolving technology, in 1969 the Federal Communications Commission separated out the equipment from services somewhat as was later done with the modified final judgment in AT&T. We began to sort of measure competition and market forces. Then in 1971, the Federal Communications Commission allowed competition for long distance services. Then in 1980, for the computer industry to get in, they provided competition for information services. That is the computer services and information. Then in 1990, the Federal Communications Commission approved video dial tone in competition for the cable companies, which, in short, allowed the telephone companies to get into the cable business. Most recently, last week--I will get that decision because we have it all lined out here--I think this is powerfully interesting, the Federal Communications Commission was taken to the Circuit Court of Appeals for the District of Columbia in the case of the Warner Entertainment Co., petitioners, versus the Federal Communications Commission. I wish you could read the lawyers. They are talking about lawyers. This is what we are trying to do. Look. They have three pages of lawyers in this thing; three, four pages, lawyers upon lawyers upon lawyers. I could interest the U.S. Senate no end about the lawyers for Warner Entertainment Co., for the Cable Television Association, Inc., for petitioners from the city of Austin and Dayton and King County, WA; Miami Valley Cable; Montgomery County, MD; St. Louis, MO, and the lawyers for the Cable Telecommunications Co.; Larry Tribe, and everybody else for Bell Atlantic, and on and on. You talk about not getting lawyers in the Justice Department. There are lawyers coming out of my ears in one decision. Guess what the court said in this decision. With respect to rate regulation, Congress determined that local governments should be permitted to regulate only the basic service rates of those cable systems that are not subject to effective competition. Yes. Measuring market forces, measuring market competition. You have heard all afternoon, ``Wait a minute now. The Department of Justice is the expert on measuring market competition. The FCC over here is with megahertz, some kind of radio technicians and TV aerial boys. They do not know anything about marketing competition.'' That is absolute nonsense. Here is the most recent decision on measuring market competition saying that they did an outstanding job. The Federal Communications Commission struck an appropriate balance between the competing interests of the cable companies and their subscribers in violation neither of the 1992 Cable Act nor of the Administrative Procedures Act. It is listed as one of the FCC's most significant legal victories because it is stated here--and it is the best wording I thought--that not only the Government--I will have to read that part. I wanted to refer to it. But they did an outstanding job in substance, take my word, and we will put the decision in the Record. The Federal Communications Commission did an outstanding job in measuring competition--that is everybody in the world about measuring market competition. I think it is highly significant that we do not start dividing the roles in your mind. The role of the Justice Department and the Antitrust Division is law enforcement, antitrust law enforcement, under 2 of Sherman, civil and criminal, civil and criminal penalties. I can tell you here and now that is the fundamental basis of the modified final judgment. That is untouched by S. 652. What is suggested by the amendment is that we want to start superimposing a whole new series of hearings. About the time you think you can get through the FCC, here is the Congress that has come to town and said we are going to reregulate, we are going to let market forces operate but, oh, by the way, we are going to put the law enforcement into the regulatory and have two regulatory bodies. Here we are getting rid of the ICC because other than railroad mergers it has become deregulated--and the trucking industry. Here we have done away in a general sense with the Civil Aeronautics Board. Mergers, that is under the Justice Department, but under regular routes and approvals and gates and slots and safety we have the Department of Transportation and the Federal Aviation Administration. In communications, we have the Federal Communications Commission and they have talent coming out of their ears over there on measuring market competition. So the section 7 of Clayton under the Thurmond amendment of trying to determine substantially lessening competition is another market measure that the FCC has to make. That is why we wrote this bill this way. We are trying to get market competition. And we certainly do not want another division of government coming in. At one time they had it written so you had the Federal Trade Commission because under section 7 of Clayton you have both the Federal Trade Commission and the Justice Department. And for a while, reading this thing, they had the Federal Trade Commission, the Justice Department, and the Federal Communications Commission, and then refer it to Congress and let them have a hearing and the Congress will say let us get a commission and study like we have done with Medicare. Come on. Let us kill this amendment here once and for all and do not act like it is anything other than what it is. We have not affected the fundamental responsibility and authority of the Department of Justice. The amendment is a [[Page S8156]] jerry-built amendment of two interested Senators trying to get the Judiciary Committee on the Senate and House side with a say-so. They had a similar move over there. They have not reconciled it over on the House side. But it is bureaucracy at its worst. That is why you cannot come to the Government and you need a Senator to go through and lead you through here and lead you through there and everything else of that kind. Let us just get the one place, the one-stop shopping and say come in and here is what you have to prove and here is the entity that has the expertise and they will have it. And we will have the money for them. They made 7 billion bucks the other day in an auction so we have plenty of money at the Federal Communications Commission to do this unbundling, dial parity, nonportability, interconnection, public interest standard, measuring market forces and its competitive nature. We have all that and let us put it in one place. Let the lawyers get this in one place. Let them get a formative decision. And if at any time the Justice Department finds, as they did against AT&T in the 1970's, and they started in and they went with the antitrust procedures and everything else of that kind on law enforcement enforcing the antitrust laws, fine business. I admire the Justice Department, particularly the Antitrust Division, particularly Assistant Attorney General, Ms. Bingaman, who has been in charge. She has done wonderful things with Microsoft and many of the other cases, and she has plenty of work to do without adding more on now to have another regulatory commission or body resolved into the Antitrust Division of the Department of Justice and come in, walking down the same street, measuring market forces and everything else. There is no separation, as they say, where we have the technology and the technicians and the experts with respect to megahertz and TV towers and radio frequencies and all of these other things, whereas they measure the market. On the contrary, the FCC has not only measured the market but measured it most successfully according to the circuit court of appeals just last week. I think we ought not to come in particularly with this phrase in here, where here we have the FCC with responsibility and they come in with the phrase that is devastating. It says here--people do not study these amendments that you have to read. Look at that amendment. I hope they can get a picture of that thing. You need a civil engineer and a compass, not just a lawyer. But it says here: In making its determination whether the requested authorization is consistent with the public interest, convenience and necessity, the Federal Communications Commission shall not consider the antitrust effects of such authorization in any market for which authorization . . . Well, the antitrust affects all within the marketing measurements that we have in here with the unbundling and the checklist and everything else, plus the public interest. So how in the world can they do half a haircut at one department and another half a haircut at another department and call this good law? It is a terrible amendment and it ought to be killed. Mr. ASHCROFT addressed the Chair.

Mr. HOLLINGS. Mr. President, you have to be sure of foot to be opposing two distinguished former mayors. The Senator from California is the former mayor of San Francisco, and the distinguished Senator from Idaho is a former mayor of Boise. Both had outstanding records. But let me suggest that what they have read into the preemption section is a requirement and an idea that just does not exist at all. I will have to agree with them in a flash that the Federal Communications Commission has no idea of coordinating, as the Senator from Idaho has outlined, the digging up in front of all of the sidewalks and stores and everything else, putting in the regular necessary conduit, refirming the soil and the sidewalks again in front. We have no idea of the FCC doing it. Let us tell you how this comes about. Section 254 is the removal of the barriers to entry, and that is exactly the intent of the Congress, and it says no Government in Washington should, well, vote against it. But I think the two distinguished Senators are not objecting to the removal of the barriers to entry. What we are trying to do is say, now, let the games begin, and we do not want the States and the local folks prohibiting or having any effect of prohibiting the ability of any entity to enter interstate or intrastate telecommunications services. When we provided that, the States necessarily came and said, wait a minute, that sounds good, but we have the responsibilities over the public safety and welfare. We have a responsibility along with you with respect to universal service. So what about that? How are we going to do our job with that overencompassing general section (a) that you have there. So we said, well, right to the point: ``Nothing in this section shall affect the ability of a State to impose on a competitively neutral basis''--those are the key words there, the States on a competitively neutral basis, consistent with opening it up--``requirements necessary.'' We did not want and had no idea of taking away that basic responsibility for protecting the public safety and welfare and also providing and advancing universal service. So that was written in at the request of the States, and they like it. The mayors came, as you well indicate, and they said we have our rights of way and we have to control--and every mayor must control the rights of way. So then we wrote in there: Nothing shall affect the authority of a local government to manage the public rights of way or to acquire fair and reasonable compensation . . . on a competitively neutral and nondiscriminatory basis. ``Competitively neutral and nondiscriminatory basis.'' Then we said finally, indeed, if they do not do it on a competitively neutral or nondiscriminatory basis, we want the FCC to come in there in an injunction. We do not want a district court here interpreting here and a district court in this hometown and a Federal court in that hometown and another Federal court with a plethora of interpretations and different rulings and everything else. We are trying to get uniformity, understanding, open competition in interstate telecommunications--and intrastate, of course, telecommunications. Now, that was the intent and that is how it is written. And if our distinguished colleagues have a better way to write it, we would be glad and we are open for any suggestion. But somewhere, sometime in this law when you say categorically you are going to remove all the barriers to entry, we went, I say to the Senator, with the experience of the cable TV. I sat around this town--I was in an advantaged section up near the cathedral. I had the cable TV service, but two-thirds of the city of Washington here did not have it for years on end because we know how these councils work. We know how in many a city the cable folks took care of just a couple of influential councilmen, and they would not give service or could give service or run up the price and everything else of that kind. We have had experience here with the mayors coming and asking us. And this is the response. That particular section (c) is in response to the request of the mayors. If they do not do that, if they put it, not in a competitively neutral basis or if they put it in a discriminatory basis, then who is to enjoin? And we say the FCC should start it. Let us not go through the Administrative Procedures Act. Let us not go through every individual. Yes, we want those mayors and all to come here and everybody to understand rules are rules and we are going to play by the rules and the rules protect those mayors to develop, to administer, to coordinate. I agree 100 percent, I say to the Senator from Idaho, that the FCC has never performed the job of a city mayor. But they shall and must perform this job here of removing the barriers to entry. And if we do not have them doing it, then I will yield the floor and listen to what suggestion they have. But do not overread the preemption section to other than centralizing the authority and responsibility in the FCC to make sure, like they have in administering all the other rules relative to communications here and all the other entities involved in telecommunications, they have that authority to make sure while the cities got their rights of way, while the States have got their public welfare and public interest sections to administer, that it is done on a nondiscriminatory basis. Mr. KEMPTHORNE addressed the Chair.

Mr. HOLLINGS. Mr. President, I ask unanimous consent that Laura Philips, a fellow in the office of Senator Lieberman, be permitted privilege of the floor during consideration of the bill.

Mr. HOLLINGS. Mr. President, on the adoption of the Feinstein amendment, I move to reconsider the vote.

Mr. HOLLINGS. Mr. President, I ask for the yeas and nays on the Feinstein amendment.

Mr. HOLLINGS. Mr. President, the distinguished colleague from Idaho said ``came so late in the process.'' I want to correct that thought. I am referring back over a year ago to a bill with 19 cosponsors, this same language: * * * the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates or is inconsistent with this subsection, the Commission shall immediately preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency. It did not come late in the process. We have been working with mayors and we have several former mayors who were cosponsors. That was S. 1822. So this is S. 652, which is, of course, over a year subsequent thereto. Is it the language that is inconsistent with this subsection? Is that the bothersome part? It sort of bothers this Senator. I think if you are going to violate your authority with respect to being neutral and nondiscriminatory and you have to have somewhere this authority, in the entity of the FCC, to do it rather than the courts, each with a plethora of different interpretations and law, I would think if we could take that, maybe that would satisfy the distinguished Senator from California and the Senator from Idaho. I yield the floor. I make that as a suggestion. Mr. KEMPTHORNE addressed the Chair.

Mr. HOLLINGS

Mr. HOLLINGS. Will the Senator from Nebraska yield? Could it be then at the conclusion of the time that we could just have an up-or-down vote on the amendment?

Mr. HOLLINGS. Mr. President, in just the minute yielded to me, we have reviewed the amendment and it is an incidental. The ``incidental'' amendment is incidental. It corrects a good part of it, and on this side we would approve the amendment.