J. Kerrey

Mr. KERREY

Mr. KERREY. Mr. President, I yield 5 minutes to the distinguished Senator from Virginia.

Mr. KERREY. Mr. President, I, too, come reluctantly and with considerable regret to vote ``no'' on this conference report. All of us have come to the floor and talked about the deficit and what it does. There is no question that the deficit reduces savings in America, reduces productivity, the standard of living; and perhaps as significantly as anything, it reduces Americans' confidence and hope and reduces the world's confidence in the United States' capacity to lead. So I applaud the distinguished chairman of the committee, the courageous Senator from New Mexico, for saying to the United States of America, and to this Congress, that we have to change courses and go in a different direction. That changed course is going to require different kinds of attitudes and different kinds of behavior. It is going to require political courage to do things that will be unpopular. It is going to require hard choices and tough work. It is going to require deferred gratification, and, most important, it is going to require us to say to the American people that we are moving in the direction of becoming an entitlement society and we need to start moving in the direction, once again, of becoming an endowment society, which our country was when my parents' generation was in charge. I regret voting ``no'' on the straw that broke this small camel's back, which was the desire, as I see it, to do something that is much easier and more popular, that is to cut taxes for some individuals in some businesses. It was done in the name of growth and in the name of the American family. Far better, I must say, in the name of both growth and family security, would have been for us to have taken the proposal of the Senator from New Mexico and the Senator from Georgia, Senators Domenici and Nunn, for a U.S.A. tax that would have eliminated the income tax altogether and been a powerful incentive for all American families to acquire wealth. We have missed an opportunity, in my judgment, Mr. President, to produce a truly bipartisan conference report. I was willing to cross and make it bipartisan and to defend against a tax, and will still, in some key and difficult areas. Mr. President, in addition to deficits growing and debt growing in the United States of America and us moving in the direction of becoming an entitlement society, there are two other trends we must face directly that are bad for free enterprise capitalism and for a liberal democracy, such as the United States of America. Trend No. 1 is a decline in real wages, salaries, and benefits as a proportion of U.S. output. Trend No. 2 is an increased concentration of wealth. I argue, Mr. President, that in order to be able to constructively reverse both of those trends, we have to do a number of things. One, we have to fix the cost of entitlements in the United States--our Federal entitlement programs--at some percentage that we all decide is an agreeable and appropriate amount, [[Page S 9385]] and then allow the balance of our budget to go for those things that will give us the opportunity of lifting wages, salaries, and benefits. Mr. President, I heard many people come to the floor and say, ``I am against the cuts in Medicare, cuts in education, but I am for deficit reduction.'' It is going to be impossible for us to do both of those things. One of the biggest flaws of this budget resolution is that we go from 34 percent of our budget, going to domestic programs, to 25 percent. If you extend it out beyond retirement of the baby boom generation, which begins in 2008, we eventually get to a point where 8 percent of our budget is for domestic spending and 92 percent is for entitlements. That will require us to do something that very few want to do, that is to put retirement on the table. It is our biggest spending program. Those who say that the previous generation--the generation that won World War II and the cold war--is unwilling to participate in deficit reduction to provide opportunities for our children, I believe, are misjudging that generation. We are pandering, responding in political fear of what happened in 1985 or 1986. Mr. President, we have to put retirement on the table, or we cannot fix entitlements as a percent of our budget, and we will never have the money we need to invest in education, transportation, infrastructure, research and technology, and all the things that a majority of Republicans and Democrats acknowledge will, if we get them out there, help Americans lift their standards of living, wages, salaries, and benefits. Second, on the trend to increase concentration of wealth, again, we have to reform our retirement programs. They are not a savings program, Mr. President. As a consequence, Americans do not enjoy the benefits of that 12.4 percent payroll tax. Senator Simpson and I have a proposal that would create a 2 percent personal investment plan. Not only does our proposal help fix the cost of entitlement programs but, in addition, it generates a trillion dollars of new wealth, Mr. President, new wealth owned by 137 million people in the work force. We do not just have to end the course we are on of deficits and rising debts, but the increasing concentration of wealth and decline of real wages and benefits and salaries of American working people ought to alarm anybody who believes that the United States of America needs to continue to lead with our example of free enterprise capitalism and liberal democracy. Mr. President, I was going to talk only until Senator Nunn came to the floor.

Mr. KERREY

Mr. KERREY. Mr. President, it has been 2 months since a bomb exploded at 9:02 a.m. April 19 in Oklahoma City. The rescue is over but we are still in shock, still grieving, and still trying to understand this tragedy. I come to the floor today with a profound sense of sadness. My heart goes out to the families of the fine people whose lives have been tragically taken by this horrific act. I feel that it is my duty as the ranking member of the Appropriations Subcommittee which funds the Department of Treasury that I share my thoughts on Treasury law enforcement and their losses. All law enforcement--agent and personnel alike--live with the threat of losing a colleague, but no matter how dangerous the job, no matter how families and the law enforcement community prepare themselves, it is never enough. It is particularly devastating to have the lives of law enforcement lost in this manner--helpless, unaware, and going about their daily business as were the rest of the employees in the Alfred P. Murrah Federal Building. Wednesday, April 19, 1995, 9:02 a.m., was a sad day for all Americans across the United States. It was also the day that the U.S. Secret Service suffered the largest loss in its history. Assistant special agent in charge, Alan G. Whicher, age 40; office manager, Linda G. McKinney, age 48; special agent, Cynthia L. Brown, age 25; special agent, Mickey B. Maroney, age 50; special agent, Donald R. Leonard, age 50; and investigative assistant, Kathy L. Siedl, age 39. In addition, the U.S. Customs Service lost two senior special agents, Claude A. Meaderis, age 41; and Paul D. Ice, age 42. Let me just say a few words about these fine people. Alan Whicher, appointed as a special agent to the U.S. Secret Service on April 12, 1976 in the Washington field office, known by his friends as Al, was a devoted father and husband. His career, which spanned two decades, included the Vice Presidential Protective Division during the Reagan administration and the Presidential Protective Division of two Presidents. He is survived by his wife Pamela Sue Whicher and their three children, Meredith, Melinda, and Ryan. Linda G. McKinney, was appointed to the Secret Service on June 28, 1981 in Oklahoma City. Linda served as the office manager. She is survived by her husband Danny, and son Jason Derek Smith, age 22. Her mother, Minnie J. Griffon, also survives her. I know she will be sorely missed as a daughter, wife, and mother. Cynthia L. Brown, who had celebrated her first year as a rookie agent and was married only 40 days to Secret Service Special Agent Ron Brown of the Phoenix field office. They were both waiting for transfers so they could be together. Cindy was only 25, a bright future ahead of her both in her career and in her new life with Ron. Mickey Maroney, was appointed as a special agent to the U.S. Secret Service in the Fort Worth office on June 14, 1971. Mickey's distinguished career included the Johnson Protective Division and Lady Bird Johnson's protective detail. Mickey is survived by his wife Robbie, and children Alice, age 27, and Mickey Paul, age 23. I know he will be missed by those whose lives he touched. Don Leonard, was appointed as a special agent to the U.S. Secret Service in Oklahoma City on November 16, 1970. His career spanned over two decades including assignments in the Tulsa resident office, the Protective Support Division, the Vice Presidential Protective Division and the St. Louis field office. Don is survived by his wife Diane, and sons, Eugene, age 26, Jason, age 23, and Timothy, age 22. Kathy Siedl, was appointed to the U.S. Secret Service on March 17, 1985, as an investigative assistant. She served her country for over a decade. Kathy is survived by her husband Glenn and her son Clint, who I understand collects Secret Service pins. In addition, she is survived by her parents, Dallas and Sharon Davis, and Carol Reiswig, her sister, who works for the Internal Revenue Service in Oklahoma City. Paul D. Ice, born and raised in Oklahoma, was a senior special agent for the U.S. Customs Service and had a lengthy record of Government service. He began his career as a Marine jet pilot and spent 5 years with the IRS as an agent in the Criminal Investigation Division before transferring to Customs as a special agent. He was one of the first special agents assigned to the resident agent office in Oklahoma City and had been there for 7 years. He was a member of the Marine Corps Reserve for 20 years, retiring last year with the rank of lieutenant colonel. Paul is survived by his daughters, Sara and Miranda, their mother Faith, and his parents Jack and Neva Ice. Claude A. Medearis was a senior special agent for the U.S. Customs Service and also a native of Oklahoma and a veteran of public service. Before coming to the Customs Service he served in the military and in the Oklahoma State probation and parole office. He began his career with Customs in Del Rio, TX, before transferring to Oklahoma City in 1992. He was recently promoted to senior special agent status. Claude is survived by his wife Sharon and daughter Kathy. Mr. President, in light of all that has happened since the bombing, I would simply like to remind us of this simple fact--these brave people who worked in Federal law enforcement were members of the Oklahoma City community. They were mothers and fathers, sons and daughters, they shared the same dreams and goals for their children that their neighbors did--they were little league coaches and volunteers in their community. They were willing to give the supreme sacrifice to their Nation and community--we should not tarnish their families' memories by vilifying them. They are not faceless, nameless robots. They hurt like you when they lose a loved one, as their families hurt now from losing them.

Mr. KERREY

Mr. KERREY. I yield the floor.

Mr. KERREY. Mr. President, I come to the floor this afternoon to speak and vote against the Telecommunications Competition and Deregulation Act of 1995. I am deeply disappointed that I am not able to speak and vote in favor of it. For the past 10 years, I have been arguing for a radical overhaul of our telecommunications laws. They have not been changed significantly in the past 60 years, a time of unprecedented, breathtaking and, for many of us, I must confess, nearly incomprehensible change in the technologies of communication. The short description of what has happened in the past six decades since the 1934 Communications Act was passed is this: The need to continue monopoly franchises and the line of business restrictions has evaporated. The heat which turned the water of our law into steam is technology. Our laws have been overrun by changes in technology. Failure to acknowledge this and to liberate the businesses to compete has been detrimental to the consumer. Thus, the time for rewriting the people's law is long overdue. However, Mr. President, technology does not have a vote, people do, and the American people have a love-hate relationship with technology. They love it when it entertains or amuses, but they hate it when amusement turns violent, pornographic or threatening. They love it when they have the skills needed to survive the downsizing chain saw but hate it when a lifetime of dedication to doing a job well ends with a pink slip. Not only do the American people have mixed feelings about technology, but the attitude of the people and the attitude of corporations toward technology is decidedly different. Successful communication corporations must follow technology wherever it takes them. Successful communication corporations treat technology as if its status were somewhere between King and God. As people, we have learned the hard way that to worship technology is to select a graven image with a double-edge potential of doing grave harm and great good. All of this is said, Mr. President, to put a brake on the wild and woolly expressions of enthusiasm for the glory of these new technologies. No doubt they can serve us well, no doubt they can expand our reach and improve our capacity to produce, to learn and to govern ourselves. However, there is also no doubt they can lead us astray if we do not think carefully about where we want to go. We, the people, in our minds and our hearts, must drive these new technological wonders, or, most assuredly, they will drive us. Regrettably, the rewriting of our law we have witnessed has created the perception that this was not paramount in our deliberation. Indeed, the amendment before us now reinforces that perception. The perception is that the law was not done for or by the people of the United States of America. The perception has been created that it was done by and for the telecommunications corporations of America. Rather than being a Contract With America, this legislation looks like a contract with corporations. This is one reason Americans feel they have no power over their Government. Indeed, despite the scope of its impact on their lives, Americans neither asked for this bill, nor do many of them even know we engaged in this debate. To be clear, I have nothing against corporations, or the people who temporarily run them. Indeed, most Americans work for a corporation. However, corporations--particularly public corporations--are not people. Incorporation is a charter granted by the people's laws to an organization, usually for the purpose of ensuring perpetual life and providing many of the beneficial powers of an individual, like entering into contracts, buying and selling property, while shielding the organizations from many of the detrimental liabilities of being an individual, such as conscience and public responsibility. Public corporations provide first for shareowners and investors. If the analysts say that a CEO did the right thing by laying off 10,000 employees with no severance pay, health care, or retirement, then a CEO would be judged incompetent not to make this move. If plant closings and downsizing are judged to be sound business decisions, the market will bid up the value of the stock and the salary of the responsible CEO. If selling products that turn America into a society of efficient players of electronic games and selectors of video programs is good for business, then a corporate board would fire any CEO whose conscience interfered with the need to produce revenue. This is not to say the managers of the leading telecommunications companies--who must be given credit for crafting and enacting this legislation--are heartless. They are not. This is not to say they are not concerned about the future of America or the quality of life in our country. They are. Nor does it mean that America does not benefit when tough-minded business executives make tough-minded business decisions. We do. However, it is to say that we should take care when corporations appeal for changes in the law on eleemosynary grounds. When they tell us the new law is going to be good for America and American consumers, we should take care to remember who it is that butters their bread: their share owners. And we should take care and remember who butters ours: American consumers, citizens, and voters. Over and over in this debate, we heard the phrase, ``We have struck a delicate balance between the various corporate interests,'' used in defense of a specific provision. Over and over when changes were proposed which would have given consumers and citizens some protection, this ``balancing of corporate concern'' was raised as a barrier. Regrettably, this has resulted in a law which will not guarantee that American households will have robust, competitive choices which would have ensured lower prices and higher quality. Regrettably, this law gives the power to those monopolies who already have the power to control the market and who will give consumers two choices: Take it or leave it. The regret I feel is a child of lost opportunity. We have lost an opportunity to seize a three-part promise. The promise I see with the technologies of communication is to create jobs, improve the performance of America's students, and strengthen democracy by helping our citizens become better informed. And while this legislation will undoubtedly produce some gains in all three areas, narrow corporate concerns prevented us from doing all that was possible. [[Page S8444]] The regret I feel, as well, is also a consequence of believing that telecommunications is much more than just another business. Telecommunications defined is to communicate across a geographical space, across distances. Communication defined is one human being telling a story or delivering information to another. To communicate is to define what it means to be a human being. We are not just deregulating another business with this law. We are deregulating businesses which have been granted the right to control what we read, hear, and see. They decide what is news and what stories are worth telling. When it comes to defining who we are as people, it is not an exaggeration to suggest that these businesses are as powerful an influence as parents or religious leaders or teachers. What are the flaws of this bill which cause me to withhold an affirmative vote? The most important occurred before we started writing the legislation. The most important flaw was our attitude. We worried too much about liberating businesses and not enough about liberating people. As a consequence, we made a crucial error when we wrote the law. The most important flaw is that we did not give the Antitrust Division of the U.S. Department of Justice a determinative role in ensuring that robust competition occurs at the local level before allowing the monopoly to enter other lines of businesses. Competitive choice means that households have the power to tell a company they do not like the price or quality of the service. Consumers must be able to buy from someone else before they have real power over the seller. Substituting a checklist for the Antitrust Division of the Department of Justice is not an equal trade. A corporation could easily satisfy the checklist without giving the consumer competitive choice. And without competitive choice, this law will concentrate power away from the consumer. Last year, under the leadership of Senator Hollings of South Carolina, the Senate Commerce Committee reported a bill I could have supported. All but two members of the committee voted for a bill which gave the Department of Justice this determinative role. Unfortunately, in the distance and time traveled from November 8, 1994, to June 15, 1995, the law was changed, and I can no longer support it. Why is it so important, Mr. President, to American consumers to have the Department of Justice with a determinative role? The answer can be found by following one of the most frequently used arguments in support of this bill: Consumers benefited when AT&T was forced to compete in 1982. Well, guess who was responsible for forcing them to compete? Was it the Congress? Was it the Federal Communications Commission? Listening to the arguments against the Department of Justice role, or looking at the law itself, you might assume that the answer would be that Congress or the FCC made them compete. If you did, Mr. President, you would be wrong. It was the Antitrust Division of the Department of Justice that sued AT&T. It was the Antitrust Division of the Department of Justice that forced AT&T to compete. It was the Antitrust Division of the Department of Justice that should be given credit by consumers for the lower prices and higher quality service in long distance. Neither Congress nor the Federal Communications Commission had the guts or the power to take on AT&T. So I guess it should not be surprising that under the banner of competition and deregulation, we pass a law that perpetuates the power of the monopolies. Mr. President, this legislation is not without merit. It will help America's schools and America's school children take advantage of the technologies information age by ensuring affordable infrastructure, connectivity, and rates. It does preserve the goal of universal service for all of America's communities. It does encourage some competition by smaller carriers at the local level through joint marketing, a strong section favoring network interoperability and good interconnection and unbundling requirements in section 251. It contains strengthened provisions for rural customers: Comparable services at comparable rates; geographic toll rate averaging; evolving national definition of universal service; support for essential telecommunications providers; waivers and modifications of interconnection requirements for rural telephone companies, and infrastructure sharing. We fought for and succeeded in including in the law some protections for consumers including the prohibition of cable/telco joint ventures and buyouts except in rural markets of 50,000 or less, allowing State regulators to consider profits of telephone companies when using rate regulation methods other than rate of return, ensuring that price flexibility should not be used to allow revenues from noncompetitive services to subsidize competitive services, and protecting ratepayers from paying civil penalties, damages, or interest for violations by local exchange carriers. With all of these good things, Mr. President, I regret the absence of a Department of Justice determinative role all the more. With the Department of Justice ensuring competition, consumers would not have to doubt that they would have a courageous, procompetitive Federal force on their side. Without it, we must trust that the corporations will do the right thing. Mr. President, this legislation burdens trust too much. Ultimately this bill is about power. The bottom line is that in this case, corporations have it and consumers do not. Accordingly, I must vote ``no''. Some things have been said in the heat of debate about the Department of Justice and the Antitrust Division that just are not true, and I would like to take this opportunity to correct the record. For example, it has been said that the Antitrust Division has 800 or 900 attorneys. It has been said that it has several hundred lawyers acting as regulators. The fact is that the Antitrust Division had 323 attorneys total--to carry out all of its responsibilities--at the end of fiscal year 1994. This number is about 30 percent lower than the number of attorneys the Antitrust Division had in 1980 and is about equal to the number that it had more than 20 years ago during the Nixon administration, when the economy was much smaller, less global and less complex and when antitrust enforcement was less challenging. When we talk about growth of bureaucracy, we certainly cannot reasonably mean the Antitrust Division. The Antitrust Division has for years been doing what we now ask of all Government agencies--carrying out vital missions more effectively, more efficiently and with fewer resources. With its relatively limited number of attorneys, the Antitrust Division has pursued vigorously criminal enforcement of the antitrust laws, a strong merger review program, civil antitrust enforcement and all of its other responsibilities. It has been said that DOJ has failed to comply with a court order to review MFJ waiver requests within 30 days. The fact is that Judge Greene in 1984 issued instructions regarding how DOJ should handle specified waivers then pending and established a schedule under which DOJ had 30 days to handle those specific waivers. Those waivers, incidentally, were far less complex and sensitive than the waivers pending today. DOJ complied with that order and has fully complied with all schedules set by Judge Greene. It has been said that DOJ has refused to conduct triennial reviews. In 1989, while the appeal of the first triennial review was still pending--it would not be finally resolved until 1992--Judge Greene gave DOJ complete discretion whether and when to file any subsequent triennial reviews. He noted that the need for triennial reviews was not as great as had been anticipated when originally conceived. As it turned out, Judge Greene observed, there had been ``a process of almost continuous review generated by an incessant stream of regional company motions and requests dealing with all aspects of the line of business restrictions.'' United States versus Western Electric Co., slip op. at 1, July 17, 1989, [emphasis added]. Judge Greene pointed out that he had ``repeatedly considered broad issues regarding information services, manufacturing, and even long distance.'' Id. He explained that ``as soon as there is a change, real or imaginary, in the in- of the issue are reviewed in dozens of briefs.'' Id. at n.2. Further triennial reviews thus would have been duplicative of work that was already being done. Judge Greene's observations are still valid. Over the life of the MFJ, incredible as it sounds, the Bell companies have filed an average of one waiver request every 2 weeks. They have buried the Department of Justice in an avalanche of paper--something never expected when the MFJ was entered. Now, some say they are ``shocked, shocked'' that the Bells do not expeditiously receive the approval they claim their requests merit. And in fact, what amounts to a triennial review is underway right now, as DOJ investigates a motion pursued by three Bell companies to vacate the entire decree without any of the safeguards in S. 652, even in States where local competition is still illegal. This investigation will be completed in the next few months, with a report that will provide a comprehensive review of the need for continuing the line of business restrictions. It has been said that the Bell companies' so-called generic request-- that is, a consolidated request joined by all the Bell companies--for a wireless waiver is still awaiting action. In fact, Judge Greene has approved that request. A colleague referred to that wireless waiver as simple. It was not. The initial request was very broad. It attracted a tremendous amount of comment and concern at the outset and each time it changed substantially. And change it did--it went from a very broad waiver to one carefully tailored and conditioned to protect competition. The long distance companies and the Bell companies disagreed with DOJ's ultimate recommendation to Judge Greene. That is not unusual. But Judge Greene adopted most of the provisions that DOJ recommended. DOJ exercises its responsibility by doing what is best for competition, not what one industry or another prefers. It has been said that DOJ has not acted on a request for a waiver that would allow the Bell companies to offer long distance service in connection with information services. In fact, DOJ has recommended to Judge Greene that he approve the request, as modified after extensive negotiations between DOJ and the Bell companies. The case of the information services waiver illustrates how any purported delay in resolving waiver requests relates to the overbreadth of the original Bell companies' requests. Much of the time between the filing of the initial waiver and DOJ's recommendation in favor of a heavily modified waiver occurred after DOJ rendered a decision based on the original waiver and informed the Bell companies that it would not support the waiver. The details of the information services case are worth recounting at some length, because they belie some of the charges that have been leveled over the past several days. In 1987, DOJ asked Judge Greene to eliminate the restriction on the Bell companies' provision of information services. DOJ did so over intense opposition from the information services industry, because of DOJ's conclusion that eliminating the restriction would promote competition in the information services market. But DOJ's focus was on competition and consumers. DOJ was not trying to protect vested industry interests or some role as a regulator. DOJ's position was initially rejected by Judge Greene, but after a reversal and remand by the Court of Appeals, the information services restriction was removed in 1992. While seeking to lift the information services restriction, DOJ did not support authorizing the Bell companies to bundle interexchange service with their information services. The reason for this is that there is no clear distinction between information services and conventional telephone services. The FCC has been struggling for nearly two decades to define and enforce such a distinction in its Computer I, Computer II, and Computer III proceedings, which have tried to distinguish between basic services--including interexchange voice services--which are regulated, and enhanced services--or information services--which are unregulated. This has been one of the most prolonged and difficult proceedings in the history of the FCC. Because there is no clear distinction between information services and basic services, a decision to allow the Bell companies to bundle interexchange services would substantially eliminate the core MFJ prohibition against their provision of interexchange service. The Bell companies tried to argue in court that the court's decision to lift the information services restriction meant that they could engage in such bundling, without any restrictions or safeguards. This interpretation by the Bell companies would have given them much more freedom than S. 652 proposes to do today. But that argument was firmly rejected by DOJ, Judge Greene and a unanimous panel of the Court of Appeals. Judge Silberman of the Court of Appeals concluded that the Bell companies ``urge a rather strained interpretation of the language of the decree--The Bell companies' interpretation--it seems rather obvious, would create an enormous loophole in the core restriction of the decree.'' 907 F.2d 160, at 163 Against this background, the Bell companies filed a waiver request in June 1993 that would have allowed them to bundle their information services with interexchange service. In doing so, they again sought to create what Judge Silberman had described as an enormous loophole in the interexchange restriction. In effect, they would have been able to offer interexchange service without the safeguards that are required by S. 652. The Bell companies' waiver request naturally provoked strong opposition from the interexchange carriers and information services providers. DOJ gave the Bell companies an opportunity to respond to the arguments against their waiver, and the Bell company responses were filed in February 1994. After reviewing the Bell companies' arguments and the many arguments that had been submitted in opposition to the request, the DOJ told the Bell companies that it would not support the waiver request. The Bell companies were free at that time to challenge the DOJ decision in court. But presumably because they recognized that they had little chance of winning in the face of a clear decision by the Court of Appeals, the Bell companies chose to narrow their original waiver request to seek a more reasonable waiver. The Bell companies submitted a somewhat narrower proposal to DOJ soon thereafter. DOJ again rejected the proposal, because it still did not deal with the loophole that the Court of Appeals had identified. The Bell companies finally submitted a third proposal that was substantially narrower. This time, DOJ indicated that it would support the proposal. This last proposal has now been briefed and is awaiting decision by Judge Greene. The reason for the delay in processing this waiver was that the Bell companies submitted--not once but twice--a waiver request that was very broad. Their proposal would have resulted in an enormous loophole in the core restriction of the MFJ. As a practical matter, this loophole would have given them much of the relief that S. 652 would give them, but without any of the safeguards that accompany such relief in S. 652. It does not make sense to criticize the Department of Justice for refusing to give the Bell companies what the authors of S. 652 certainly do not intend to give them in S. 652. DOJ acted to protect competition and consumers. When DOJ supported the removal of the information services restriction in 1987, it did so over strong opposition from the information services industry. DOJ's support for the recent information services waiver has been strongly opposed by the interexchange carriers and by information services providers. DOJ isn't protecting industry turf; it's doing what's right for competition. As the information services case demonstrates, the Department always has been willing to take the time to work with the Bell companies to fix waiver requests so that the Bell companies can get as much MFJ relief as is consistent with the consent decree's protection of competition in markets that the Bell companies seek to enter. Of the waivers approved by the Court in 1993-94 that were not mere duplicates of waivers filed by another Bell company, fully 60 percent were the product of negotiations between DOJ and the Bell companies that resulted in To be sure, these complex, negotiated requests generate a lot of public comment and concern. The number of comments per waiver for waivers filed in 1993-1994 is nearly six times the comments per waiver in 1984-1992. This is not surprising, as the more recent waivers go to the MFJ's core restrictions. This modification and comment process works to obtain workable waiver proposals while still protecting competition, as the information services case illustrates. The fundamental point is that DOJ acted to protect competition and consumers. DOJ's support for the revised information services waiver has been strongly opposed by long distance and information services providers. But again, DOJ doesn't protect industry turf--it does what is right for competition. Of course, no discussion of purported delay in the waiver process would be complete without noting the Bell companies' filing of overlapping and duplicative waiver requests. For example, several Bell companies filed a request to vacate the MFJ, seeking to completely eliminate its restrictions without replacing those restrictions with any safeguards or requirements, such as those contained in S. 652. Once again, the Bell companies sought relief that the Congress likely would not approve. The Bell companies argued that this motion was critically important to them, and urged prompt action on it. DOJ agreed that it would make this request its first priority. But less than a week after submitting the request to vacate the MFJ entirely, one of the companies filed a separate waiver request for so- called out-of-region relief. But that request is completely subsumed in the motion to vacate. And the other Bell companies that had filed the sweeping motion to vacate the MFJ apparently delayed and stalled in producing documents that DOJ required in order to evaluate the merits of the motion. The AirTouch story that has been repeated during this debate is also not nearly as simple as has been suggested. Loosely casting aspersions on the independence and integrity of the Department of Justice in relation to its position on the AirTouch matter is deeply wrong. DOJ has enforced the terms of the MFJ through Republican and Democratic administrations of vastly different ideologies. The Department has explained its position on the AirTouch matter in a letter to House Commerce Committee Chairman Bliley. Regardless of what one thinks of the merits, the bottom line is that the Department has a responsibility under existing law to uphold the terms of the MFJ that differs from that of Congress, which can write new laws. I will include that letter in the Record. It has been said on the Senate floor that DOJ has repudiated the VIII(C) test of the MFJ through the Ameritech plan, which I have supported since Ameritech introduced its Customers First program. The Ameritech Plan is completely consistent with the standard established by Section VIII(C) of the MFJ, because it builds on the idea that one possible basis for satisfying VIII(C) is if the development of local competition removes the ability of the Bell company to use the local monopoly to hurt competition in long distance. I encourage colleagues to read the Department's Ameritech brief, which the distinguished Senator from South Carolina put in the Record a few weeks ago. The plan does not preclude Ameritech or any other Bell company from seeking VIII(C) relief in spite of the continued existence of the local monopoly. In fact, DOJ has supported numerous waiver requests where--in spite of the existence of the local monopoly--safeguards or other constraints ensured that there was no substantial possibility that the Bell company could use the local monopoly to impede competition in the market it sought to enter. Most recently--and after it outlined the approach of the Ameritech plan--DOJ supported the Bell companies' request for a waiver to provide long distance service in connection with information services. It has been said that DOJ forced the Ameritech plan on Ameritech. In fact, the Ameritech plan originated with Ameritech itself. The plan now enjoys an unprecedented breadth of support among interested parties. It is supported by a Bell company, AT&T, Sprint, other long distance competitors, local competitors like MFS, consumer groups, the FCC, state regulators from all the States in Ameritech's territory, the Republican governor of Illinois and numerous other industry participants. In joint comments filed with the court in support of the plan, which I will include in the Record, the regulatory commissions from Illinois, Indiana, Ohio, and Wisconsin praised the proposal as a decisive step toward the goal of a competitive telecommunications market. This remarkable consensus is a lot more than S. 652 has attracted, and I commend Ameritech for taking this historic step. DOJ has been criticized in this debate because the draft Ameritech order is 40 pages long. Forty pages doesn't seem like too much, when one considers that the order seeks to do something that has never been done before by anticipating the opening of a complex, monopolized market to competition and allowing a Bell company to enter a long distance market measured in the billions of dollars. But this criticism is especially ironic because it comes in a debate over a bill that seeks to do much the same thing as the Ameritech proposal--but that is some 150 pages long and getting longer as we speak. And while this 150- page bill has been the subject of much debate--to say the least--the 40-page Ameritech order enjoys unprecedented support from a broad array of interested parties. It has been said that the Ameritech plan will shift power from State and Federal regulators to the Department of Justice. In fact, the implementation of the market opening provisions agreed to by Ameritech will be handled by State regulators and industry participants. The DOJ's role is to assess the end result: the marketplace effects of those market opening provisions. The plan fully preserves the traditional functions of State and Federal regulators, as evidenced by the fact that the plan enjoys the support of all the State regulatory commissions in Ameritech's region and of the FCC. Moreover, the plan has the sort of safeguards and standby authority for DOJ that are well suited to an untried and groundbreaking initiative. I have here, Mr. President, a letter to Assistant Attorney General Bingaman from Craig Glazer, the chairman of the Ohio Public Utilities Commission. Writing on behalf of all the State regulatory commissions in the Ameritech region, he praises the Department of Justice for its efforts in negotiating the Ameritech plan. Mr. Glazer writes, in part, that ``the willingness of the Department of Justice to work with and specifically accommodate a number of State concerns represented an exemplary level of cooperation and teamwork between the Department and the State commissions.'' I will include the entire letter in the Record. The point that comes through loud and clear from this letter and from the briefs that State officials have filed with Judge Greene in support of the Ameritech plan is that DOJ is not trying to displace regulators or become a regulator itself. Governor Edgar of Illinois, for example, lauded ``the Proposed Order's reliance on State regulators to complement the Department's supervisory role of the proposed trial.'' I will conclude Governor Edgar's comments in the Record. DOJ has proposed a well-crafted plan that maintains the traditional roles of all involved agencies. The State regulators and the FCC regulate; the Department of Justice assesses competition. Mr. President, this bill deals with complicated issues, and there is a lot of room for reasonable people to disagree. But a lot of the things said about the Department of Justice were just plain wrong. I appreciate this opportunity to correct the record. Mr. President, I ask unanimous consent to have the letters and other material printed in the Record.

Mr. KERREY

Mr. KERREY. Mr. President, I acknowledge those are reasonable objections. I suspect the Senator from South Carolina in particular has had experience as a Governor. Very often a statute ends up saying you have to have one from this legislative district, four Republicans, three Democrats, or vice versa. Very often in the legislative process you get quite detailed in trying to narrow down or debate who is going to be on this board. I am not doing that. Indeed, this provision is in H.R. 1555. It is in the House bill. So I am not asking we come in and designate that you have ``x'' number of corporate members and this number of Democrats and this number of Republicans. I am merely saying there should at least be one consumer advocate. As I said, it is consistent with what is already in the House bill. Philosophically I am with both the Senator from South Dakota and South Carolina. I think any amendment that would come in and say with specific language here how each one of these board members have to look before you can appoint them would complicate the matter and not likely result in the kind of board that is going to be needed. I merely argue, with respect, that this conforms with the language of the House bill. I would have loved to have a situation where I was appointing boards where this is all I had to worry about, only appointing one consumer advocate as opposed to all the typical balancing requirements that are specified in legislation.

Mr. KERREY. No.

Mr. KERREY. Mr. President, which page are you going to read?

Mr. KERREY. Mr. President, this is an amendment to section 255 of the Communications Act of 1934. I discussed it with the managers of the bill. I will briefly describe it. The requirement of the current provision is an attempt to deal with actually section 251 as well by saying that my concern with 255 is that it might allow a local telephone company to get into interLATA after having satisfied in a very minimal fashion the interconnection requirement either of the competitive checklist or of 251. The requirement of the current provision should be satisfied as a local telephone company reached an interconnection agreement with only a single telecommunications carrier, although in many markets a substantial number of carriers will request interconnection. Under the current provision, a Bell company needs only a single entity requesting interconnection without regard to whether the requesting company is weak, undercapitalized, or lacking in other expertise or business planning. This amendment would ensure that a local telephone company which enters into more than one interconnection agreement, that the agreement includes telecommunications carriers capable of serving a substantial portion of the business in a residential local telephone market. Although it could not ensure that competition will develop, it ensures the interconnection agreements are reached before the long distance entry of the company capable of providing local services to both business and residential customers. This amendment would remedy a provision in the bill which concerns me, a provision which I believe is very dangerous and susceptible to interpretation in a manner counter to the overall intentions of S. 652. Under the current provision, a Bell operating company could gain entry into the long distance market on the basis of one interconnection agreement with a competitor. It would not matter whether that competitor was weak, undercapitalized, or lacking either expertise or a business plan--that one competitor could facilitate Bell entry into markets which at that time may, or may not, be competitive. One of the goals of this bill is to open the door, to provide incentives to facilitate local competition. Unless amended, this provision may counter that intended goal, in fact removing incentives for the Bells to reach agreement quickly with their strongest potential competitors. If the Bells think that they can gain entry without having to complete more than one agreement, we are in fact inviting them to game the process. Instead of helping to facilitate local competition, they might gain entry at a time when they still monopolize their local markets, perhaps both stunting the development of local competition and endangering the gains that have been made over the past decade in the increasingly competitive long distance industry. This amendment would clarify the current provision and move it into line with the bill's overall intentions by ensuring that a BOC enters into more than one interconnection agreement and by ensuring that those agreements are reached with telecommunications carriers capable of serving a substantial portion of the business and residential loop telephone markets. This clarification strengthens the incentives and the conditions for competition to develop. The requirement in the current provision could be satisfied after a BOC reached an interconnection agreement with only a single telecommunications carrier, although in many markets it is probable that a substantial number of carriers will request interconnection. Under the current provision, a BOC need reach agreement with only a single entity requesting interconnection, without regard to whether the requesting company is weak, undercapitalized, and lacking either expertise or a business plan. The amendment would ensure that a BOC enters into more than one interconnection agreement and that the agreements include telecommunications carriers capable of serving a substantial portion of the business and residential local telephone markets. Although this does not ensure that competition will develop, it does ensure that interconnection agreements are reached before long distance entry with companies capable of providing local service to a substantial number of both business and residential customers. Mr. President, it is a pretty straightforward, clarifying amendment. As I have said on a number of occasions, as the managers have as well, this piece of legislation is unprecedented. We are monopoly into a competitive arena. It is very difficult to do. What we have established is in section 251, be it a long distance company or other carrier, it can be anybody who wants to get into local business, they can either negotiate an agreement or satisfy, I believe, 10 things in section 251; that is to say, the Communications Act of 1934, section 251. Once they have satisfied those agreements--they have to satisfy those agreements in order to satisfy the law--251 describes what they have to do when somebody comes and says, ``I want to get into local service, I want to approach your customers.'' Section 251 says what they have to do. In addition, in 255, there is a 14-part competitive checklist before the local Bell company can get into interLATA to provide long distance service. This amendment provides language to make certain that we do not end up with an application occurring after having satisfied a minimal requirement. In other words, I have competition but it is a relatively small company. They really are not effective competition. This attempts to strengthen the competitive requirement prior to the FCC giving interLATA approval. Mr. President, I yield the floor. Mr. STEVENS addressed the Chair.

Mr. KERREY. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. KERREY. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. KERREY. I ask unanimous consent to withdraw amendment No. 1310.

Mr. KERREY. Mr. President, what is the pending business?

Mr. KERREY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KERREY. I will be glad, Mr. President, in a quorum call to sit down and look at the language in here. I understand there may be some potential confusion over precisely what it is doing. I will say again for emphasis, the intent here is to make certain when we open up competition, we are basically saying to a company that right now is trying--I have heard the Senator from South Dakota talk about it as well, so I think we are basically on the same wavelength. If there is some confusion, it may be that in drafting this I have problem, I am perfectly willing to modify the amendment to make the language clear. But my intent is to create a situation where we say to a local company, as I think we should by the way, OK, meet the competitive alternative. Go ahead and price your service and meet that competitive alternative. I just want to make certain in a noncompetitive environment the revenue stream does not end up being higher as a consequence of liberating, allowing that competition to be met.

Mr. KERREY. I would be pleased to.

Mr. KERREY. I mean shifting the cost of the service, the revenue that would be required to be paid in that noncompetitive environment. So the noncompetitive guy ends up paying a higher rate as a consequence of my being able now to go out and say I will meet the competition; I will lower the price; I will give you a lower price. This amendment attempts to prevent the use of that revenue in a noncompetitive environment.

Mr. KERREY. Right. That is exactly right. Let us say I am the Acme Telephone Co., and I am currently given a regulatory monopoly at the local level. If I am the CEO of that company and I am performing for my shareowners, I am sitting there right now saying I have all kinds of companies that are coming into my local market. They are trying to get my high-end users. So I go to that high-end business user and say I will meet that price. I am now liberated in a competitive environment. I will meet that price. What I am trying to do with this language is to prevent the use of that kind of revenue to keep, in an artificial fashion, the price for that noncompetitive service higher.

Mr. KERREY. The concern I have is that I can keep my noncompetitive prices higher than I otherwise would, that I could keep the prices in a noncompetitive environment higher. If I am a company with, let us say, $1 billion of cash flow a year and the law now allows me at the local level to meet a competitive alternative and price in order to be able to get the business, and now I have that business, what I am concerned about is shifting that revenue in a fashion that enables me to keep my noncompetitive prices higher than I otherwise would. That is the intent of the amendment.

Mr. KERREY. Mr. President, I consider this to be one of the most important questions that should be asked repeatedly on the floor. I consider competitive service to mean a choice. When I as a consumer-- whether I am a business person, whether I am in my household, regardless of where I am--I have choice. I do not like the service that the company is providing. I do not like the price. So I am going to shift and go someplace else. I have alternatives to what I have right now. Right now, I have very few alternatives at the local level. It is a very important question. What will happen, I suspect, initially is that you are going to get competition at the higher end, as we currently do, in fact. We have, as the Senator knows, all kinds of competition coming into the local level, a relatively small percent of the overall pie, but we are starting to get competition at the local level at that higher end.

Mr. KERREY. Generally speaking, what I am trying to do with the language, I say to the Senator from South Dakota, Mr. President, is to prevent a continuation of a pricing scheme that allows a shifting of revenue and in a noncompetitive environment prices to be higher than they otherwise would be. That is the intent.

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

Mr. KERREY. Mr. President, I failed to ask unanimous consent to modify this amendment. It says page 112 and it should be page 113. So I ask unanimous consent for that now.

Mr. KERREY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KERREY. The Senator is correct; that we do not end up with noncompetitive rates.