Larry Pressler

Mr. PRESSLER

Mr. PRESSLER. Mr. President, I would disagree with my colleague on cellular. I do not think it was AT&T. It was Government regulation. Maybe AT&T went to the Government. Maybe AT&T used Government regulations. But cellular phones were held up by Government regulation, by all accounts. But that is the point. A lot of companies use Government regulation to hold up competition and to hold up deregulation. Also, I would be in disagreement with my friend that the computer industry has lost 150,000 jobs. Maybe they have lost 150,000 but overall they have gained. One measure of the relative market growth is the number of employees. In 1980, there were a little more than 300,000 Americans employed in the computer industry while more than 1 million were engaged in the provision of telephone products. And our statistics show there has been a steady increase. There have been some jobs lost but overall there has been a substantial gain, and I shall put that into the Record. By 1993, computer products and services accounted for more than 1.2 million jobs, a fourfold increase. At the same time, the number of telephone employees had dropped to less than 900,000. So unless those numbers are incorrect, I think we have to say that the computer industry has been an expansive industry operating largely without Government standards and regulation where there has been fierce, free market competition. Indeed, I also serve on the Senate Finance Committee, and every 18 months the computer industry wants to get depreciation; that is, they want their schedule to be 2 or 3 years or less because product cycles change so quickly because there is rigorous competition. This chart tells what we are trying to do with S. 652--The Telecommunications Competition and Deregulation Act of 1995. This is the most comprehensive deregulation of the telecommunications industry in history and it will promote international competitiveness, job growth, productivity, and a better quality of life. It provides open access to full competition. Interconnection and unbundling will put new competitors including cable and long distance on the same footing with former monopolies. Consumers will use the same phone number and dial the same number of digits no matter what local telecommunications companies they choose, and the competitive checklist for compliance with open access will assure certainty and simultaneity. Let me also say that universal service is preserved. All providers contribute. We make subsidies explicit. There have been some people who have said, well, this is like a new tax. In fact, it has been reduced from $10 to $7 billion. But all on a bipartisan basis felt strongly that universal service should be preserved. Removal of restrictions to competition in all markets. Telephone and cable firms are free to compete in each other's markets. For the first time we end this economic apartheid. We let them go into each other's markets and compete and some of them do not like that. But they will have to do it. This is transition to the wireless age, but we have to make them compete. Utility companies free to enter telecommunications markets. And there are some safeguards here, but we need to unleash our utility companies so they will come into the other markets with a burst of energy and will create new jobs, new products, new service offerings. The removal of long distance and manufacturing restrictions for Bell companies. Presently, the Bell companies cannot manufacture in this country, so they go abroad to do it. This will unleash new investment in this country, create jobs in this country, instead of having them send their money overseas. And they will be able to get into the long distance business if they wish. Let me say that some people are worried that the Bell companies are going to become monopolies. We still have Hart-Scott-Rodino. We can change the antitrust laws. That is something I should say here. Everybody has been saying what the Justice Department should and should not do. If we do not like the antitrust laws, we should change the antitrust laws. We should not create a group of bureaucrats over there who are regulators. Let us change the antitrust laws if we wish to. And I would say that regarding the airlines if necessary. Market pricing, not Federal price controls for cable. And I predict that the same thing will happen to television in cable rates as happened in natural gas. We will have video dial tone from regional Bell or some other telephone companies. We will have other cable and video providers coming into the market, plus we will have DBS operator--probably three or four. So you will be able to choose between seven or eight television services. When that happens, the prices are going to go down because there is real competition. But if we do not pass this bill, frequently the average consumer will only have one choice. And that is what competition and deregulation will do. The prices will drop, will just collapse when they have to compete, just as telephone prices will as well. When there are more providers, those telephone calls are only going to cost a few cents and long distance calls are only going to cost a few cents. That is all that they should be costing. Next, rate of return regulations for large telcos eliminated. New flexibilities for broadcasters who offer digital service. End arbitrary limits on broadcast ownership because they are really out of date. And I know that we have increased to 35 percent the amount of the national audience one television broadcast group can have. I would like to raise it to 50 or 100 percent if I could do it. In my original chairman's mark, it did. There will be an effort tomorrow to lower it to 25 percent. I think the old line networks are trying to use Government regulation to avoid competition. They need to get in there and compete instead of coming to Washington to the FCC and to Congress for limits on what can be owned, and so forth, because it will take care of itself. Just as in computers we saw this immense resurgence and regurgitation and these bursts of energy from new companies, we will see the same thing in media and telecommunications. Extend broadcast license term to 10 years with expedited renewal procedures. Most of the broadcast limitations, in my opinion, are obsolete and should be eliminated. State and local barriers to market entry repealed. I hope we can hold on to that one tomorrow. We have another crucial vote tomorrow afternoon on preemption of local barriers to entry. Because we cannot allow States and cities to just grant monopoly franchises if we are going to have real competition. Now, also we are working on investment and growth in the global markets. We open U.S. telecommunications markets for more investment on a fair and reciprocal basis. A reciprocal basis. This is international law at its best. We will allow other countries to invest here on the same basis that they permit U.S. invest there. U.S. comparative advantage in products, services, and software with no domestic content provision. That is a very significant change from last year. Let me explain that. Some of our large unions want to have a domestic content provision but that is anticompetitive. Through GATT and these other international trade agreements we want international competition. We want deregulation and competition. And we did not put the domestic content provision in this year's bill. And that is what Mickey Kantor and members of the administration say they want--members of the administration should be supporting this bill. These are all things that, as I understood it, Al Gore and the administration are for. Mickey Kantor came up last fall and told us in the Commerce Committee that he did not like the bill last year because it had domestic content in it, and we took domestic content out this year. This is deregulatory. We are making some progress toward being an international competitor, and we cannot go on demanding domestic product content and say that we are for international trade. Next we have sunset for regulation. Biennial review of all remaining Federal, State, and local rules, regulations and restrictions. It is time we reduce the Federal bureaucracy. We are going to have systematic regulatory review and reform through S. 652. This means every 2 years after reviewing every regulation, we will do away with as many as we can. Inside the beltway, these agencies grow and grow, and they do not want to give up their turf. That is what we have, a turf battle. The Justice Department wants to do the same thing the FCC is doing, and some big companies say, ``That is good, because that will slow down competition.'' They are running full-page ads supporting that concept. Next we have regulatory forbearance authority ordered, then deregulatory parity for telecommunications providers offering similar services, so that we can get them all competing. So there it is. That is what we are trying to do. That is what is in this bill. It is not a perfect bill, but it passed the Commerce Committee 17 to 2. We had two Republicans who had some concerns. They wanted it to be more deregulatory, and I sympathize with them. Every Democrat on the committee voted for it. Now the White House says it has concerns. I took this draft over to Al Gore in January. I gave it to him and asked for his help. We need the administration's help when we get into conference on this bill. It really delivers on all the reform ideas we hear them talk about all the time. This is what the President says he is for. This is what the Vice President says he is for. Let us pass it. Tomorrow we have two crucial votes. We have to defeat the Dorgan amendment, which would add another level of bureaucracy. We also have to beat back the effort to erect new State and local barriers when we are tearing down Federal barriers. So, Mr. President, I will conclude by thanking the Members of the Senate for the debate today. I have tried to accelerate the pace of this bill. I do not see any other Senators who wish to speak.

Mr. PRESSLER. Mr. President, I would like to say that, first of all, in the drafting of this bill, it was done by Senators and staff. But Republican and Democratic staff sat down together. I do not know if that has ever been done before with a bill. This bill was not drafted by industry. It was drafted by Senators and staff here in the Senate. They negotiated and worked, and met with Senators with the product of their work, and invited the input from other Senators, and came up with the competitive checklist, which was not proposed by industry. It was proposed by staff as a compromise between the ``actual and demonstrable'' and VIII(c) tests that had been used last year and the concept of a date certain standard which was utilized by my initial chairman's draft--to find a way in this complex telecommunications arena to have a test of when markets are open. This has not been easy. For instance, let us say you are in the spaghetti business and you have to have somebody else deliver your spaghetti for you. Can you imagine what shape it is going to be in when it is delivered? Especially when the person delivering it is your competitor. But in this telecommunications area it is so complicated to get competition in because you have to depend frequently on your competitors' wires to get to where you are going. That is why we still need some level of regulation. That is why we still need an FCC at this point. Although I hope in the very near future we can see the FCC reduced a great deal and ultimately whither away. This bill was drafted with the public interest in mind. This bill continues to have universal service, which will assure that those high cost areas and regions of the country will have telecommunications. Our antitrust laws continue under this bill. In fact, the Justice Department has a major role. But assigning a decisionmaking role, as the Dorgan-Thurmond amendment does, to the Justice Department, is unprecedented. The Department is always required to initiate a lawsuit in the event it concludes the antitrust laws were violated. It has no power to disapprove transactions or issue orders on its own, generally speaking. Indeed, Judge Greene's court kept the power to make the decisions through all these years. The people who work there really work for him, or for his court. This would be the first time we are giving the Justice Department this kind of regulatory power--a decisionmaking role. If you look at history, the law, regulation and history of railroads closely mirrors that of telephony. The Telecommunications Act of 1934 was modeled on the Interstate Commerce Act of 1887. The Federal Communications Commission was modeled on the Interstate Commerce Commission. Both industries involved common carriage, and the establishment of networks. Both industries have been required to provide essential service to rural areas. Both industries have been regarded as monopolies. They share issues related to captive customers, competitive access, the desire to enter related lines of business, and the loss of traffic to alternative carriers. Congress has delegated exclusive Federal authority to the Interstate Commerce Commission to decide whether a railroad should be permitted to enter into new lines of business. The Department of Justice may file comments in the proceeding but is given no specific statutory role. Even in proceedings involving mergers, acquisitions and other transactions between two class I railroads, Justice has no specific statutory role. Although the Department can and usually does submit its views on the excessive effects of a proposed transaction, the ICC can approve a merger over the objections of Justice. Indeed, the potential adverse effect of competition is only one of five factors considered by the ICC in its determination whether to permit a proposed merger or acquisition between the Nation's largest railroads. Congress has given the ICC a broader mandate than has directed it to balance transportation and employee interests, among others, with competitive concerns and to accord substantial weight--not to recommendations of Justice--but to any recommendation of the Secretary of Transportation. Justice is not even mentioned in the statutory mechanism. I could go on through various other areas. But the point is, it is the intent of our structure that this be done at the FCC. What we in Congress want the FCC to do, if it is universal service or whatever it is, or if it is compensation or whatever is decided, the idea is that the representatives of the people are supposed to decide, not the courts. And if it is good or bad, Congress should be thrown out of office or held accountable for it. Presently we have no one here who is accountable for what is happening in telecommunications because the courts have taken it over. And that is a major part of this bill, to put Congress back in charge of telecommunications and information policymaking and to let the people make judgments on us as they do in elections. That is the basis of democracy. That is what democracy is about. So, the Federal Communications Commission regulates the communication industry. It should. The Department of Justice should enforce the antitrust laws. Or we can change the antitrust laws if we want. But to create a group of regulators over at the Department of Justice is not wise. Legislation pending before Congress supersedes the provisions of the modification of final judgment that governed Bell company entry into business now prohibited to them. Once legislation is signed into law, a continued Department of Justice role in telecommunications policy is no longer necessary except in the area of enforcing the law. DOJ does not need an ongoing regulatory role as part of an update of our Nation's communications policy. Such a role would be duplicative of the FCC's authority. Actual regulatory oversight is not what DOJ is equipped to provide. DOJ's claim that it ``alone among Government agencies understands marketplace issues as opposed to regulatory issues'' is inaccurate. I agree with many of the objectives as my friend from Nebraska. Indeed, I think the Senator from Nebraska and I have the same objectives. But we have carefully crafted this bill over months of work, included universal service, included more competition, included more deregulation, included more freedom. It has been a very delicate balance. Dual Department of Justice and FCC bureaucracies to regulate the communications industry delay the benefits competition brings consumers. These benefits include lower prices, new services, and more choices for communications services. I have already gone through the length of time and the cost, and ultimately these costs are paid by consumers. You know you can do more for a senior citizen by helping them have lower gas prices to heat their home in the winter than you can by giving them a check, frequently. For example, when we deregulated natural gas in the late 1970's, early 1980's-- I must say that it was a Democratic President who took the lead on that-- and we followed through with a Republican President. But when that occurred I was over in the House and coming to the Senate. I heard all the speeches about how, if we deregulate natural gas prices will skyrocket, the companies will gouge the public, and senior citizens will need subsidies to pay their heating bills. Look at what has happened with natural gas prices. They collapsed. They have been low. They almost give the stuff away there is so much competition. Senior citizens have had cheaper gas bills, and farmers have had cheaper bills in drying corn. Some people think you are compassionate if you give checks out to people, if the Federal Government gives a senior citizen a check every month. That is nice, if we can afford it, and it is needed in some cases. But I say that you do just as much for consumers in this country of providing competition for cheaper products and new innovations. Let us take the computer industry. Forty percent of our homes have a personal computer. The price is dropping and dropping. There is new technology of every 18 months because there is not Government regulation, because there is competition. Some people would say the Government should set standards for computers or provide for regulation of the computer industry. Then it would take 10 years to get a new computer. Some people would say why not model the computer industry on the telecommunications model. But the fact is that prices are dropping, technological innovation flourishing and America's leading the world because of the fierce free market competition in the computer industry. So I say let us model the telecommunications sector on the computer model. Let us look at cellular telephones, for example. That is one of the few parts of the information highway that we have. Everybody talks about the so-called information superhighway. What is it? It is cable TV, it is some cellular, and some computer Internet. But in reality we have not gotten much of it yet, whatever it is going to be. But it is going to be invented and sold when we have competition and deregulation. Cellular technology was invented in the late fifties. Then Government regulation took 30 years before it was approved for sale. Government regulation said it could only be sold in certain areas by certain people. It was not until the 1990's that we finally got full deregulation and competition in cellular phones. And within a few years, everybody is carrying a cellular phone. They are getting smaller and smaller. Government regulation is off. But it was delayed from the late 1950's until the late 1980's--30 years of delay because of Government regulation. We could have had this in the 1960's or the 1970's. It is estimated that that delay cost American consumers $89 billion. That stimulates our economy when people can communicate better, and do business deals faster. They can be safer. A senior citizen can push a button on an emergency communications device in their bathroom and have an emergency call placed. These things were not available. They were known since the 1950's but because of Government regulation they did not come into being until very recently. So I could cite computers. I could cite cellular phones. I could go on and cite many other areas. But in this particular area of telecommunications we are going to see a boom of new devices, and a dropping of prices. We are going to see telephone prices drop substantially. We are going to see long distance rates drop. We are going to see cable television rates drop. Presently people are paying too much for telephone calls. As I have indicated in an earlier stage of this debate, based on the same ratio as how much computer prices have dropped and processing power increased, you should be paying only a few cents for most long distance calls and fewer cents for most local calls. That is the fact. So we need competition and deregulation. This bill has it in it but it is being opposed. Talk about corporate interest, the companies who are supporting the Dorgan amendment have been running full-page ads in our newspapers. That is fine. They can do so. But this idea that one side is all corporate interests and the other side is not is not true. There are large corporations on both sides of this amendment. But the people supporting the Dorgan amendment have been spending millions on lobbyists and full-page ads just like the opposition has been. So those people who cry corporate interests, pick up yesterday's newspapers and read the full-page ads. Both sides have done it. But lately, all the spending has been done by people who supported the Department of Justice role because they want to slow competition down and game the process. So there is corporate interests on both sides of this. I do not like pontificating by either side. I hope I am not pontificating. But the point is, look at the newspapers of last week and see who was buying the full-page ads. So, Mr. President, I conclude by saying that I think we have a good bill. I hope that we hold it together. I am confident we will pass this bill with overwhelming bipartisan support. I yield the floor.

Mr. PRESSLER. Mr. President, I would like to summarize where we are with this bill and take a look at tomorrow and finishing this bill, which I hope we will be able to do. We have a very tough vote coming up tomorrow regarding adding the Department of Justice to the regulatory scheme. I would just like to point out that referral to the Department in the past precludes timely resolution, because the Department does not take timely action. Now, the Department is filled with very brilliant lawyers and they have a reputation of moving very slowly on these waiver applications. I will show a couple of charts that illustrate how slow the Department has been. In the original 1982 MFJ, it was suggested that the Department complete its work on each waiver request within 30 days. And, although the decree itself contemplates that waiver requests will be filed directly with the court, in July 1984 the court announced that it would consider application for waivers of the line of business restrictions only after review by the Department of Justice. This procedure was imposed after only 7 months' experience with the waiver process and was not expected substantially to delay the processing of waiver requests. To the contrary, in establishing this procedure, the court noted the length of time that previously filed waiver requests have been pending and accordingly directed the Department to endeavor to return those requests to the court with its views within 30 days. I am going to repeat that because I think it is very important. The court noted how slow the Justice Department was moving on these waivers and told them the length of time requests had been pending and accordingly directed the Department to endeavor to return these requests to the court with its views within 30 days. So the framework for what I am saying is that the Justice Department was asked to do this within 30 days; not 90 days, as my friends have put into their bill. But what actually happened? Let us look at the facts. Let us go to the videotape, so to speak. Contrary to the court's expectations, delays in administrative processing of waiver requests soon began to grow. In 1984 the Department disposed of 23 waivers. The average age of waivers pending before it was a little under 2 months. By 1988 the average age of pending waivers topped 1 year. Then, in 1993, when the Department disposed of only seven waivers, the average age of pending waivers at year end had increased to 3 years. More recently, in 1994, the Department disposed of only 10 waivers. This left over 30 waivers with an average of 2\1/2\ years still pending. The Department now takes almost as long on the average to consider a single waiver request as the total time intended to elapse before comprehensive triennial reviews--which the Department has refused to conduct. This has occurred notwithstanding significant decreases in the number of waiver requests. While requests have decreased substantially since 1986, the Department had not even made a dent in the backlog. To the contrary, because the Department disposes of fewer and fewer waiver requests each year, the number of pending requests continues to grow. No matter how few waiver requests the BOC's file, the Department simply cannot keep up. In light of the multiyear delays in processing waiver requests, it is remarkable the court originally directed Department review within weeks, not months or years. So the court directed the Department of Justice to act within a few weeks. And it has taken it years to act. So the point is, if we adopt the Dorgan-Thurmond amendment, we will be adding probably 2 or 3 years to this so-called deregulatory process, because that is what has happened in the past. More significantly, the court ordered virtually immediate Department action because of prior delays that now seem comparatively minor. The eight waivers at issue since July of 1984 had been pending just an average of 5 months, with none more than 6 months old. Today, a waiver request rarely makes it through the Department in less than a year, and 2\1/2\ years is the mean. Think about that; it takes 2\1/2\ years for the Department of Justice to approve or disapprove a waiver request that originally the district court thought could be done in 30 days. What is going on? Why is that? As AT&T argued in 1986, and the court noted in 1988, the Department is clearly overwhelmed by its decree responsibilities. Aware of this, the Bell operating companies several years ago attempted to reform waiver procedures within the limits of the court's orders to eliminate the mounting backlog of pending requests. Following consultation with the Department, during 1991 the Bell operating companies agreed to consolidate the large number of pending waiver requests into a handful of generic requests and to limit their filings of new individual waiver requests. In exchange, the Department committed to acting promptly on generic waiver motions. Once again the Department has not kept its part of the bargain. Four generic waiver requests have been filed. The first covered international communications. It was filed with the Department in December 1991 but did not receive departmental approval for 7 months, even though AT&T indicated within 3 months of the waiver request that it had no objection. Thus, we have a circumstance where the company, AT&T--a party to the consent decree-- [[Page S8189]] said, after 3 months, we have no objection. It still took them 7 months to issue it. And the amendment proposes to add this bureaucracy to the present FCC review. That would lead to costs and delays. It has in the past. As I stated before, the court suggested 30 days and it has taken an average of 2\1/2\ years. In the example I just cited there was no controversy. After 3 months, AT&T said it had no objection. It still took the Department of Justice 7 months to issue that. It is tortuously slow, and businessmen waiting for that paperwork have been torturously treated, because they sit there with that investment ready to go, there is no objection, and they wait and wait. This huge bureaucracy with all these brilliant lawyers cannot produce the paper. The second generic request, which consolidated 23 then-pending waivers, covered interLATA wire services such as cellular phones, two- way paging, and vehicle locators. It, too, was filed in December 1991. It then languished before the Department for 3 years before finally being submitted to this court. Now, 4 years after it was originally filed, the waiver is still pending; 4 years, a simple waiver in that Department of Justice--the same department that the Assistant Attorney General for Antitrust is asking this body to give an additional review--that would simply hold things up. I think that would be a very great mistake. The period for public comment and investigation spent in connection with the generic wireless waiver request alone is more than three times as long as the period allowed by the court for public comment and review of the entire decree in 1982. It is also eight times longer than it took for AT&T to get a factually and theoretically correct request processed. When AT&T sought relief in connection with the cellular properties in McCaw Communications, it was able to file its requests directly with the court and obtain a decision in just 7 months. During those 7 months, however, the BOC's motion for generic wireless relief continued to languish before the Department, just as it had for the 3 years before. This is 3 years waiting for one simple piece of paper. Surely the referral procedures were not intended to bring about such disparate treatment of the BOC and AT&T when they made similar requests. The remaining BOC generic requests have followed the same path of delay upon delay. The third request covering delivery of information services across LATA boundaries was submitted in June 1993 and, now, 20 months later, still awaits Department action. So I will go on to a fourth. The fourth, covering interexchange services provided outside of SBC's region, was filed in July 1994 and was fully briefed before the Department by September 27, 1994. The blame for these delays simply cannot be laid at the BOC's feet. The number of requests filed with the Department held steady at roughly 20 to 30 per year from 1987 through 1991 and dropped sharply thereafter. More important, none of these requests have been frivolous and virtually every one of them has been granted. I have identified 266 waiver applications that have been presented to the court either directly or in the form of a consolidated generic waiver. Of these, the court has approved 249 in their entirety and 5 in part. The court has denied only six, and another six remain pending. So, while the record is clear about the failure of the Justice Department to act in a timely manner, the Department of Justice is here now, on the Hill, lobbying for still more power and authority and an unprecedented decisionmaking role. Whatever the excuses one may offer as to why delay has taken place, the facts are undeniable. Referral to the Department of Justice precludes timely resolution because the Department does not take timely action, even if ordered to do so. Now my friends who are offering this amendment tomorrow, which will be voted on, and I think it is one of the key votes of this session, glibly say we have a requirement that everything has to be offered and dealt with within 90 days. Well, the district court had a requirement that they be dealt with within 30 days. This is notwithstanding all the efforts to speed them up. I think Senator Exon of Nebraska has eloquently explained that Congress has passed many deregulation measures--for airlines, trucking, railroads, buses, natural gas, banking and finance. None of those measures, according to Senator Exon, give an executive branch department coequal status as regulators. What Justice is seeking here is essentially a front-line role with ad hoc veto power. Justice would be converting from a law enforcement to a regulatory agency. It would end up focusing chiefly on just this sector of the economy. Why does Justice want to do this? They have their Assistant Attorney General for Antitrust lobbying, so I am told, calling Senators, and urging that this be so. Why do they wish this? It is very unusual, because the Justice Department has the Sherman and the Clayton Acts oversight. They have the Hart-Scott-Rodino preapproval on antitrust. They have plenty to do. In fact, I have the statistics that they are way behind on a lot of their other work. The Justice Department is not supposed to be a regulatory agency. It is supposed to be a law enforcement, antitrust enforcement agency. But they have gotten into this habit because of the district court action in 1982. They have a bunch of lawyers and staff over there, who are regulators. That is what the FCC is for. So we just do not need to create the equivalent of a whole new regulatory agency just for telecommunications. It is just not needed. The sort of extraordinary power is just not needed here. Let us look. There are nearly two dozen existing safeguards that are already contemplated and required by this bill. There is a comprehensive, competitive checklist of 14 separate compliance points-- unbundling, portability, the requirement for State regulator compliance, the requirement that the Federal Communications Commission make an affirmative public interest finding, the requirement that Bell companies comply with separate subsidiary requirements, the requirement that the FCC allow whole public comment and participation, including full participation by the antitrust division in all its various proceedings, the requirement that Bell companies comply with all the existing FCC rules and regulations that are already on the books, including an annual attestation, very rigorous audits, elaborate cost accounting manuals and procedures, computer assisted reporting and analysis systems such as the FCC's new automated regulatory and management information systems, and all the existing tariff and pricing rules, full application of the Sherman Antitrust and Clayton act, and full application of the Hart-Scott-Rodino Premerger Notification Act requiring Justice clearance in most acquisitions. I think our present Attorney General, and the Assistant Attorney General for Antitrust, have done a good job in many of the Hart-Scott- Rodino areas that I have observed. That is what the Justice Department is supposed to do, and not worry about creating a bureaucracy and keeping several hundred lawyers employed over there. There is also the full application of the Hobbs Civil Appeals Act, Section 402(a) of the Communications Act which makes the Antitrust Division automatically an independent party in every FCC common carrier and rulemaking appeal. Finally, a consensus approach in this bill has been hammered out in the most bipartisan way possible. It has strong support on both sides of the aisle. We are all aware that several States have moved in the direction of deregulating telecommunications. I know that Nebraska, Illinois, Tennessee, North Carolina, Florida, New Jersey, Pennsylvania, California, Wisconsin, Michigan--none of those States has given their Governors or attorneys general the kind of extraordinary new powers which this Dorgan-Thurmond amendment would create here at the Federal level for the U.S. Department of Justice. There are plenty of safeguards in this bill and existing law already. If any competitive challenges arise because the Antitrust Division is not allowed to convert itself into a telecommunications regulatory agency, Congress can revisit the issue. Justice already has adequate statutory powers. This amendment represents the sort of undesirable approach toward regulation that the American public rejected last Justice Department already has a big role in telecommunications regardless of whether this amendment is adopted. The Department enforces the Sherman and Clayton antimerger laws, and they certainly apply to telecommunications. The Department has been an active participant in dozens of Federal Communications Commission proceedings over the years, and it will remain an active participant. Under section 402(a) of the 1934 Communications Act, moreover, the Antitrust Division has special status in every FCC common carrier and rulemaking appeal. They are what is called a statutory respondent, which means they are automatically an independent party in all of those appeals in court actions. So what we are really talking about here is whether to give the Antitrust Division even more of a role than they will have, and will continue to have. And, frankly, I would like to know why we need to have this enormous amount of overlapping and duplicative effort focused on telecommunications. I do not think the case has been made that existing law is inadequate. In fact, I think it would be almost impossible to do so because, it seems to me, Justice has all the enforcement tools it needs without additional surplus legislation. I expect what all this boils down to is the Justice Department has about 50 people spending $2 or $3 million a year trying to operate like a telephone regulatory agency, a telephone regulatory agency, and they like their jobs. They are up here telling us, if we do not adopt this amendment, all sorts of bad things are going to happen. They simply do not need this amendment if they want to stick to their traditional role of being an antitrust enforcement agency. When this bill was introduced before the Commerce Committee, my distinguished colleague, the Senator from Arizona, noted that with more of the little provisions we added the more jobs we were creating for the Federal bureaucracy. That is exactly what we have here, the functional equivalent of a jobs bill for the bureaucracy which we just do not need. The historic role of the Antitrust Division of the U.S. Department of Justice has been to operate as a law enforcement agency, not a regulator deciding which company can or cannot get into the market. That kind of market entry decisionmaking has not been one of the Justice's roles until very recently--indeed, not until they drafted the AT&T antitrust consent decree. I do not agree that the Justice Department and the executive branch should be placed in this kind of industrial policymaking role. The Department should remain a law enforcement agency. I simply do not agree that it should transform itself into the functional equivalent of a regulatory agency. I am also a bit concerned about what the long-run effect of this kind of institutional transformation might be. On April 2, the Associated Press reported that the total dollar volume of corporate mergers and acquisitions reached a record $135.2 billion worldwide during just the first quarter of 1995. Last year, there were an all-time record number of these megamergers totaling some $339.4 billion. That was up to 43 percent compared with 1992. At the same time this tremendous number of mergers and acquisitions is taking place the Antitrust Division seems to be focusing upon becoming a telephone regulatory agency. I agree that telecommunications is critically important. But we have the Federal Communications Commission. We have the Public Service Commissions in all 50 States plus the District of Columbia. I do not think the taxpayers should be forced to pay to create and then support yet another telecommunications regulatory agency, namely the Antitrust Division. The Antitrust Division should concentrate on its traditional role of enforcing the antitrust laws. They should be examining all those massive mergers and acquisitions that are taking place. They should not be spending all of this time and effort focusing on duplicating what the FCC and the State commissions are perfectly capable of handling. Mr. President, I have pointed out before how slow the Justice Department is. We all know that my friends in the long distance industry, some of them, are pushing for this amendment. They see it as another promising way to game the process. They want to game the process rather than deregulate, to use the Federal Government to block additional competition. And remember, delay in this area has genuine cash value. I am very concerned that we take a look at some of the hopes of some of these companies. I consider them my friends, but I think that they are acting against consumers here. We really need to pass this bill. This bill sets up a system for competition. So, Mr. President, this bill represents the work of a bipartisan group of Senators who started work in November. This telecommunications bill received a vote of 17 to 2 coming out of the Commerce Committee with all the Democrats on the committee. There is a wide range of ideological spectrum there among the 9 Democrats and 10 Republicans, but it happened to receive all the votes of the Democratic Senators. Now the White House is raising questions. My friend from Nebraska is raising questions. But we included them in our process. We did our best to get a bipartisan bill. It is going to be tough to pass this bill because in telecommunications legislating, as we found last year and over the decades, each group can be a checkmate. Any one of the economic apartheid groups in telecommunications can checkmate at any point in the process. It is like playing chess with several people and anybody can checkmate. What has happened since the 1934 Communications Act is an economic apartheid has sprung up and companies have done very well with this company doing local service, this area doing long distance service, this area doing cable TV, this area doing broadcasting, and utilities prohibited from participating in all of this. This is a massive bill that brings everybody into competition. It is procompetitive, deregulatory if we can keep it that way. What is happening, however, is that each day and each month that this bill has moved forward, a lot of companies have said, wait a minute, when we said deregulation we meant deregulation of for me, not the other guy. When we presented them a fair playing field, they said, wait a minute, we want a fair playing field with just a slight advantage. And virtually every lobbyist in America has been working on this bill in one form or another. We have held off granting certain special deals to certain groups in this Senate bill. For example, the newspaper publishers group sought special treatment for their electronic subsidiaries, and in the Senate we said, no, everybody has to compete. Now, they have obtained that special treatment in the House bill. Who knows, I may well be outvoted on that. But that is an example of how we have tried to hold the line on competition. We have tried to make it a procompetitive bill. Now, in our history, in terms of telecommunications, this bill will take us into the wireless age, which I think is about 10 or 15 years away. Some people think it is only 5 years away. But that will be an age when wires may be obsolete, and we are a ways away from that. But we need this bill as a road map to get everybody into everybody else's business. Right now, regional Bells have to invest abroad if they want to manufacture because they are restricted from doing so here at home. Other companies have this line of business or that line of business restriction on them. This will let everybody into everybody else's business. It will allow a great deal of competition. Now, some will say, that will just result in a group of monopolies. It will not, because we have the antitrust laws. But also let us look back to that day in 1982 when the Justice Department made two decisions on the same day. The Justice Department decided to allow IBM and the computer industry to go into the marketplace and to let there be winners and losers. It decided to place the MFJ ruling under Judge Greene on the telecommunications companies and break up into regional Bells under heavy government regulation. Now, you can argue this forever. This will be argued forever in industrial history. But what happened in the computer area has been magnificent. We [[Page S8191]] have new technology and product cycle every 18 months. The turnover is so great. There are not Government standards. There have been winners and losers, some big winners and some big losers, some have gone out of business, some have become the Bill Gateses of this world. It has been truly amazing to compare the two tracks: one a highly regulated area and the other deregulated. And we will have that sort of an industrial argument. Now we have come to a point in our history when we need another industrial restructuring, and this one should be done by Congress. Congress should assert its responsibility for a change. The reason the courts acted regarding the telecommunications area was because Congress could not, because it is so politically sensitive. It is going to be tough to get through conference. It is going to be tough to get it through the House. It is going to be tough to get it signed because we have some indications that the President might not be willing to sign it. I hope he is because I think it is the best bipartisan bill that we will be able to get. So I am going to step back to my charts once more and explain exactly what the bill is one final time. The Telecommunications Competition and Deregulation Act of 1995 is designed to get everybody into everybody else's business in telecommunications. It is a massive bill. What does it do? First of all, in order to get into other businesses in telecommunications, they would first comply with State market opening requirements. Second, they would go to the FCC where there are two tests. The first one is the standard of public interest, convenience and necessity test that has been going on for years and years. Third of all is the FCC would certify compliance with the 14-point checklist. That is the checklist that I will explain here in just a minute. The regional Bell telephone companies would have to comply with the separate subsidiary requirement, the nondiscrimination requirement, and cross-subsidization ban. The fifth step would be the Federal Communications Commission would allow the DOJ full participation in all its proceedings. Now, the Bells must comply with existing FCC rules in rigorous annual audits, elaborate cost accounting, computer-assisted reporting, and special pricing rules. So there are a lot of requirements here that will force the Bell operating companies to open up their businesses, to unbundle, and to interconnect so that people can form a local telephone service and be successful with it. Meanwhile, the full application of the Sherman Antitrust Act would continue with the Justice Department, and the Clayton Act, and the Hart-Scott-Rodino Act. The Hobbs Civil Appeals Act involving DOJ as an independent party and all FCC appeals would continue, so the Justice Department is already involved. What we would create through the Dorgan-Thurmond amendment is just another layer of bureaucracy. The competitive checklist has been distributed to all Senators. This checklist was developed as a compromise to the VIII(c) test to determine when companies should be deemed eligible to enter the market, when they have opened up their local markets. The problem with competition in telecommunications is that you have to use somebody else's wires to get where you are going. There have to be some ground rules. So we came up with this checklist that the FCC would use, in addition to the public interest standard. The first one is access to network functions and services. That is an interconnection. I went over to visit the Bell Atlantic facility here, and I've seen what interconnection and unbundling actually is. Next is capability to exchange telecommunications between Bell customers and competitors' customers. Next, access to poles, ducts, conduits, and rights of way. Next, local loop transmission unbundled from switching. There are three points on unbundling the system so other people can get into it and market things through the Bell company's system and wires. Next, local transport from trunk side unbundled from switch. Next, local switching unbundled. Next is access to 911 and enhanced 911--which for emergency you might push one button--directory assistance and operator call completion services. Next, white pages directory listing available at a reasonable price. Next, access to telephone number assignment. Next, access to databases and network signaling. Next, interim number portability. Next, local dialing parity. Next, reciprocal compensation. And last, resale of local service to competitors. So there we have the measures to assure the breakup of local Bell monopolies. Now the big question is, will the regional Bell companies let competition in? Well, if they do not, under S. 652 they will pay immense financial penalties. This checklist was agreed to. We had night after night of meetings in January and February. We first wrestled with the VIII(c) test. Other Senators wanted a LeMans start. We came up with this checklist on a bipartisan basis, and I think it is the thing that will move us towards competition. I have already talked a little bit about the problem with the amendment tomorrow. I wanted to just point out again the average length of time that some of these waivers require. This first chart shows the number of days from zero to 1,200, starting in 1984, how the length of time has expanded for the average age of waivers pending before the Department of Justice at year end. What has happened is the Department of Justice has gotten slower and slower and slower. As the court has told it to go faster and faster, it has arrogantly gone slower and slower. What is going on? Can someone give me an explanation? How can it be in 1993 it averaged nearly 1,200 days to get an answer, a piece of paper, out of the Department of Justice? What the Dorgan-Thurmond amendment is suggesting is that we finish all the checklist, all the public interest requirements, all the other requirements and all the other safeguards, then we go to the Justice Department. My friends say, ``That will only take 90 days,'' but look at the record, look at the videotape, as they say in reporting sports. On this chart it illustrates the number of requests with the Department of Justice and how frustrated industry has become. They start out about at 86, shortly after that they were hopeful, up to 80. It dropped way down in 1992 and 1993. It is not because there are too many requests filed. People are just giving up. There is a lot of business not being done. That is what we mean by drying up enterprise, discouraging competition. Imagine how it is when a business faces 3 years of delays and 3 years of hiring lawyers and 3 years of having nothing but uncertainty to offer investors. Imagine asking your investment people to wait 3 years just for a decision. You do not get competition that way, and that is what the anticompetitive forces are looking to. They want to use Government to keep other people out of their business. They want to use Government regulation to stop competition. I say let us deregulate, let us be procompetitive and not go on with practices such as waiting 1,200 days for a piece of paper that the district court thought could be issued in 30 days. Mr. President, we have before us a procompetitive deregulatory bill. Everybody says they want to deregulate. Al Gore has a commission for privatizing and deregulating and cutting Government. This bill before us will reduce the size of Government, it will protect those people who are applying, but it will not allow this sort of thing--1,200 days waiting for a piece of paper. This bill will also provide, for the first time, a number of market openings: Utilities will be able to get into telecommunications with safeguards, the subsidiary safeguard; the cable companies in this country will move towards deregulation and will be deregulated when 15 percent of their market has direct broadcast satellite or video dial competition. With the Dole, Pressler, Hollings, Daschle amendments there is further deregulation for small cable; the newspaper publishers will be in the electronics subdivision though there is a difference in the [[Page S8192]] House and Senate versions; the broadcasters will get further deregulation because they are facing more competition, radio with satellites, so forth. The giant regional Bell companies will be forced to open up their markets to competition. They will be allowed to manufacture in this country. A long distance company will be able to get into the local markets. So this is a vast, vast bill. If we do not pass this bill this year, it will be 1997 before we can try it again. We tried it last year. Senator Hollings did a terrific job, so did other Senators, Republicans and Democrats. But as I said, this sort of bill can be checkmated even at the last minute by any one of the interest groups. I compare passing a telecommunications bill and some of the problems like being in a room with a giant buffet table stacked high with food and people gathering about it ready to eat, but no one starts to eat because they want to be guaranteed that no body else is going to be getting an extra carrot. The fact is, there is plenty for all. I have never seen companies and groups so nervous, so anxious to get one final slight advantage. This bill affects the burglar alarm business because they have to go on to using other companies' wires. Tomorrow there is going to be an amendment offered to give the burglar alarm companies 6 years protection before they have to compete. In the bill as it stands the burglar alarm companies get 3 years protection. That is more than most others get. But now there is going to be an amendment to give them 6 years of protection. So every group wants to delay their entry into competition 3 to 6 years. They are trying to figure out ways to get amendments. I say for the American consumer that that is not right. The American consumer wants all these companies to compete, they want new small businesses to be able to be formed to get into telecommunications. Today nobody but the monopolies can get into local telephone service in this country, but if this bill passes, two people can go out and form a local telephone company. This bill was not drafted by industry, as some may suggest. There has seldom been more of a bipartisan effort in this Senate. When we finished the first draft, I walked a copy of this bill to every Democratic Senator on the Commerce Committee, of whom there are nine, and put it into the Senator's hand. I said I wanted their staffs there. We sent a memo around to everybody, saying, if you want to get involved in meetings at night and Saturdays and Sundays, come on around. I commend my friend from Nebraska, because he sent a very able staffer who helped write much of it. We are very glad for that assistance. We worked on this bill in a bipartisan way. I said earlier this year that I felt if we did not get legislation out of the Senate by June, it is going to be tough going. I thank the leadership on both sides. My colleague Senator Daschle has been very helpful, Senator Dole has been extraordinary, and Senator Lott, too-- all of the leadership. My colleague here, Senator Hollings, has done a great job on the Democratic side. But if we do not get this bill through conference and to the President's desk and signed this year, it is not going to happen next year. I say to all those legions of lobbyists and others who are calling in and doing their jobs--this is a democracy and people can petition their Government--I say to them that whatever their interest is, they have an interest in this bill passing because it is procompetitive and deregulatory. People who want to work and compete will do well under this bill. I think we should all remember that, because this bill is, in my opinion, the most important bill in terms of creating jobs for the next 10 or 15 years. This bill will cause an explosion of new investment, it will cause an explosion of new jobs, the kind of jobs we want in this country. Now, Mr. President, I have cited frequently that our regional Bell companies, and others, frequently are investing overseas. For example, England has deregulated its telecommunications. Many years ago, when I was a student there, they were a socialistic economy. Now they have privatized, deregulated, de-nationalized. England is, at last, coming out of its long recession as it deregulates. They have deregulated their telecommunications area, and our people can go there and build cable systems, as NYNEX and U.S. West, I believe, are doing. Our investors can go over there and participate. If they keep deregulating, they are going to have a booming economy. You can mark my word on that. They are on the way back. They figured it out that socialism was not beneficial. We are doing somewhat the same thing in our telecommunications area. Our telecommunications industry has not moved forward as fast as our computer industry has. There are all these companies which want to keep regulation to keep others out. They want Government-set standards, so that the private standards cannot leap forward. They want another review at the Justice Department after they have gone through two reviews. This is inside-the-beltway thinking. The further west I get in this country the more agreement I find that we should deregulate and privatize wherever possible. So in conclusion, Mr. President, I may have some more remarks later. But I think the Telecommunications Competition and Deregulation Act of 1995 will be a signal point in our Nation's history if we pass it. If we do not, we will remain locked up in economic apartheid--each sector protected from the other, kept from getting into the other's business. We will see more of our jobs going overseas and more and more of our manufacturing and innovation going overseas, American workers not getting the new kinds of jobs we need. Many of our industries are aging industries, and we read in the paper about this many people being laid off here and that many being laid off there. This is one of the great jobs bills ever to come before Congress. I remember being in the House and we used to debate the Humphrey-Hawkins job creation bill--whether or not the Government could create jobs through the Federal Government paying people to do make- work types of things. I opposed it many years ago in the 1970's when I was in the House of Representatives. But S. 652 is a jobs creation bill that does not cost the Government anything. In fact, the government costs will be reduced. There will be less in regulation than there is now, provided we do not adopt the Dorgan amendment tomorrow, which would add another layer of regulation. Mr. President, I yield the floor. I may have some more remarks to make later.

Mr. PRESSLER

Mr. PRESSLER. Mr. President, I wanted to speak very briefly on this. I know our whip is here with some business. First of all, I think we have to put this in context. As Senator Hollings has pointed out, this section has been the result of hours and days of negotiations with city officials. It was in S. 1822 last year, and it is here. I think we have to take a step back and look at some of the cable deals and problems that have occurred in our cities. The cities have granted exclusive franchises in some cases and are not allowing competition. They have required certain programming be put on and other requirements on those companies. Our States have granted, in the telephone area, certain exclusive franchises, not allowing competition. And the point is, if we are having deregulation here, removal of barriers to entry, we have to take this step. I think that is very important for us to considerate this point. Now, section 254 goes to the very heart of this bill, because removal of barriers to entry is what we are trying to accomplish with this bill. We preempt any State or local regulation or statute or State or local legal requirement that may prohibit or have the effect of prohibiting the ability of any entity to provide telecommunications services. The authority granted to the FCC in subsection (d) is critical if we are going to open those markets, because a lot of States and cities and local governments may well engage in certain practices that encourage a monopoly or that demand certain things from the business trying to do business. That would not be in the public interest. At the same time, make no mistake about it, Mr. President, the authority granted in subsection (b) and (c) to the State and local authorities, respectively, are more than sufficient to deal in a fairhanded and balanced manner with legitimate concerns of State and local authority. These were negotiated out with State and local authorities. We have worked closely with Senator Hutchison and the city, county, and State officials to strike a balance. We have gone to great pains and length to deal with concerns of the cities, counties, and State governments that are legitimately raised. We dealt with the concerns in subsection (b) and (c), while at the same time setting up a procedure to preempt where local and State officials act in an anticompetitive way, by taking action which prohibits, or the effect of prohibiting, entry by new firms in providing telecommunications services. Now, the real problem created by the amendment offered by my friends, Senators Feinstein and Kempthorne, is that the very certainty which we are trying to establish with this legislation is put at risk. Certainty. A company has to go out and wonder if that local city or State will put some requirement on it to provide some kind of programming, or even to do something in [[Page S8176]] the city to provide some service, or if it will grant an exclusive monopoly. What we are trying to get are barriers to entry, and we are reserving to the State and local governments certain authorities. So the certainty we are looking for we have taken away--no guarantee that entry barriers will be toppled and no guarantee of uniformity across the country. The committee has dealt with federalism concerns throughout this legislation. Let me say that this debate goes to the heart of a technical detail of federalism and the Federal Government's relationship to State and local government. It is one of the most complicated areas of this bill. Believe me, it is hard to strike a balance. But if we strike this out, it gives every city in the country the right to put up barriers to entry. It lets every State have the right to have a monopoly unless they can extract something for the State in one way or another. I would not blame cities and States. If we do that, it goes to the very heart of this bill. Now, I take a back seat to no one in advocating federalism principles. I like much power in the State and local government. It must be balanced with our other goal--removing the anticompetitive restrictions at the local level which restrict competition. Exclusive franchising in the cable and telephone markets is the very way that established monopolies in the past. So, to conclude my statements on this, I understand that there may be a possible second-degree amendment to this tomorrow that would deal with the language on line 8 on page 55, ``preemption,'' which would deal with the words, or is consistent with. But I am not certain that that second degree will be offered. In any event, to conclude, this particular section of the bill goes to the heart of dealing with the federalism issue. Are we going to allow the cities and the State to put up barriers of entry to telecommunications firms? In the past, we have done so, with cable television. We have allowed cities not only to add a franchise fee, but also to require certain programming, and sometimes the companies do something else for the city as an incentive. In telephones, we have allowed our States to set up a monopoly in the State and sometimes to collect certain things or to put certain requirements on. In this bill, S. 652, we are trying to deregulate, open up markets, and we are trying to let that fresh air of competition come forward. If our companies and our investors have the uncertainty of not knowing what every city will do, of not knowing what every State will do and each State legislature and each city council may change, the companies will be in the position of having to endlessly lobby city officials and State officials on these issues--not only that, at any time certainty is taken out. This bill, S. 652--if we pass it--will provide a clear roadmap with certainty for competition. It will create an explosion of a new investment in telecommunications and new jobs and new techniques. And it will help consumers with lower telephone rates and lower cable rates. It has been carefully crafted and worked out in close to 90 nights of meetings, and on Saturdays and Sundays, plus last year, a whole year, plus a lot of Senators' input. I know it sounds good to give the power to the city and the State, and I am usually for that. In this case, we reserve powers to the city and State, but we very firmly say that the barrier to entry must be removed. Mr. President, I wish to point out that I think there may be a second-degree amendment to this tomorrow at some point. I want to give Senators notice of that. There may not be. But I rise in opposition to the amendment.

Mr. PRESSLER. Mr. President, I reluctantly rise in opposition to this amendment from two of my most respected colleagues in the Senate. The issue addressed in this amendment goes to the very heart of S. 652, eliminating barriers to market entry. In the case of section 254, which I have here in front of me, entitled ``Removal of Barriers to Entry,'' we do preempt any State or local regulation or statute or State or local legal requirement that may prohibit or have the effect of prohibiting the ability of any entity to provide telecommunications services. The actual authority granted to the FCC in subsection (d) is critical to ensuring that State and local authorities do not get in a way that precludes or has the effect of precluding new entry by firms providing new telecommunications services. At the same time, make no mistake about it, the authority granted in subsections (b) and (c) to the State and local authorities respectively in turn protect them. For example, in subsection (c) it says, ``Nothing in this section affects the authority of local government to manage the public rights of way.'' Mr. President, this is a particularly difficult problem because all of us want to leave authority with State and local government. But this is a deregulatory bill to allow companies to enter and to compete without barriers. If this section were allowed to fall, it could mean that certain requirements would be placed on companies, such as public service projects or certain types of payments of one sort or another for a local universal service, or whatever. We are trying to deregulate the telecommunications markets in the United States. I know it sounds great to say let every city and municipality have a virtual veto power over what is occurring in their area. Now, it is my strongest feeling that sections (b) and (c) to the State and local authorities, respectively, are more than sufficient to deal in a fair-handed and balanced manner with legitimate concerns of State and local authority. Sections (b) and (c) take into account State and local government authority, (b) says: State Regulatory Authority. Nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 253, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services and safeguard the rights of consumers. Section (c): Local Government Authority. Nothing in this section affects the authority of a local government to manage the public rights of way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights of way on a nondiscriminatory basis if the compensation required is publicly disclosed by such Government. Now, the preemption clause (d) reads as follows: If, after notice and an opportunity for public comment, 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 section, the Commission shall immediately preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency. The intent therefore is to leave protected State regulatory authority, to leave protected local government authority, but there have to be some cases of preemption or a certain city could impose a requirement of some sort or another that would be very anticompetitive, and that is where we come out. I have joined in a lot of efforts here to ensure that our State and local authority be preserved. And I understand there will possibly be a second-degree amendment. We have worked closely with Senator Hutchison and the city, county, and State officials to achieve this balance. That is where the committee came out. I feel very strongly that it is a fair balance. It takes into account State regulatory authority, takes into account local government authority. But it also recognizes the need to open up markets, the removal of barriers to entry. In many cases these do become barriers to entry, barriers to competition. So I rise in reluctant opposition to the amendment. Mr. HOLLINGS addressed the Chair.

Mr. PRESSLER. Mr. President, I urge those Senators who have amendments to bring them to the floor. We are trying to get a final list. I have been asked by Senator Dole, with the concurrence of Senator Hollings, to file a cloture motion. I urge all Senators to come to the floor with amendments they might have, or Senators who wish to speak. We will be here as late tonight as any Member wants to speak on this bill or offer amendments. We will try to stack the votes. I know there is an event tomorrow morning, and the Les Aspin ceremony. There is the one vote that has been ordered on the Dorgan-Thurmond amendment at 12:30, after 1 hour of debate. We will be taking other amendments in the morning. We want to move this bill forward.

Mr. PRESSLER. Mr. President, I ask unanimous consent that tomorrow the second Feinstein amendment, which will be offered tonight, be voted on at 9:30--Mr. President, I think we better proceed with the vote. I withdraw my request.

Mr. PRESSLER. Mr. President, I ask unanimous consent a vote occur on the Feinstein and Lott amendment at 6:30 this evening and the time between now and 6:30 be equally divided in the usual form. I might say I am going to yield as much of my time to the Senator from California as she wishes. And I ask unanimous consent no second- degree amendments be in order to the amendment.

Mr. PRESSLER. Will my friend yield?

Mr. PRESSLER. If my friend will yield for a question? Let me say, in the context of this, I hope the Senator from California will offer her amendment. The leader has asked that there be a vote--if that is agreeable to everybody--at about 6:30 on the Feinstein-Lott amendment. But I would like to, just in concluding, commend the Senator from Washington, a former State attorney general. There is one question, if he could make a response before, hopefully, the Senator from California will speak on the floor, and that is the extraordinary, unprecedented decisionmaking role for the Department of Justice that is proposed in the Dorgan-Thurmond amendment. As a former State attorney general, has he ever seen a proposal where the Justice Department would become the decisionmaker, a regulatory decisionmaker? I guess this question goes to the heart of the division of powers in our Government.

Mr. PRESSLER. Mr. President, I might review these checklists here. Mr. President, earlier today, I pointed out the system that we have set up that really explains this bill, how you get into other people's business under this bill, how we really do not need a Justice Department review. First of all, the first thing that happens under the bill that we worked out in the Commerce Committee between Senator Hollings and myself and other members--with all the other Members of the Senate invited to participate--the first thing is that the State certifies compliance with market-opening requirements. So the States are involved first of all. Next, the FCC affirms the public interest and convenience and necessity. That is another test. We debated that here on the Senate floor and in the Commerce Committee. Some of the conservative publications in town said we should eliminate public interest, but we decided not to. So that is another test. The next step is that the FCC certifies compliance with the 14-point checklist. I have a chart of the checklist over here, to prove there is competition. This is in place of the VIII(c) test. This says the regional Bells have opened up their markets. Next, the Bells must comply with a separate subsidiary requirement, that is, the Bell companies, to have a separate subsidiary, for at least a period of 5 years. Next, they have to meet the nondiscrimination requirement. They cannot give all their business to one subsidiary or stack it so the subsidiary is not a subsidiary. Next, there is a cross-subsidization ban which the Bells must comply with. Now, during all the time that this is going on, the FCC allows the Department of Justice full participation in all its proceedings. In fact, under the Hobbs Civil Appeals Act, the Department of Justice is an independent party in all FCC appeals. That is, if something happens here that the company is not satisfied with the FCC, they can appeal and the Justice Department can be their partner. So the Justice Department is involved in our bill as an active participant. Now, also the Bells must comply with existing FCC rules in rigorous annual audits, elaborate cost accounting, [[Page S8163]] computer assisted reporting, and special pricing rules. Meanwhile, when all this is going on, you still have the full application of the Sherman Antitrust Act, the Clayton Act, and the Hart-Scott-Rodino Act. So still the Justice Department is involved. There is sort of an implication here that if we do not give the Department of Justice an administrative decisionmaking role they are not involved. They are very much involved. They are very involved in antitrust laws, but they are still involved in full participation in all the proceedings, and they are involved in the Hobbs Civil Appeals Act. The Department of Justice can be an independent party in all FCC appeals. In addition to all this, the FCC must confer with the Attorney General and the Attorney General can recommend an VIII(c) test or a Clayton standard or a public interest standard, those three things. So I would like to point out that we already have a lot of conditions. By the time you go through all of this, it is going to cost a company and the taxpayers a lot of money, and it is going to require a lot of tests--14 tests--public interest test, the Justice Department, the separate subsidiaries. It goes on and on and on. So there is plenty of regulation and plenty of review in the proper regulatory agency. Now, a part of this is the so-called competitive checklist. This is the heart of the compromise that was reached. Some of the conservative magazines and some of the Senators wanted a so-called LeMans start where you set a certain date and everybody competes. The problem in telecommunications is you cannot get on everybody's wire; you have to use the other guy's wires and interconnections and unbundling of his system before you can compete. So we decided, after weeks of meetings--and all Senators were invited to these meetings, and their staffs--to develop the checklist. I must commend the Senator from Nebraska and his staff because they were present and helped write this bill. But so did several other Senators, Democrats and Republicans. This bill has been around a long time. It is the product of all 100 Senators' work. But in any event, the competitive checklist was developed, and at the FCC the companies come before the FCC and the FCC goes through this checklist, hopefully very quickly, and this replaces the market test, the VIII(c) or replaces the Clayton 7 Act or it replaces some other types of tests. But this is the test. First of all, access to network functions and services. That means interconnect. It means that the Bell company has to open up its wires. I went down to the big wire station of Bell Atlantic here in Washington to see all those wires. They have to open them up. That is what interconnect means. Let us say you and I wanted to form a local telephone company. We would be able to get into the wires of the regional Bell. That is interconnection. The second checklist item that the FCC uses before certifying is capability to exchange telecommunications between Bell customers and competitors' customers. Third, there has to be provided access to poles, ducts, conduits, and rights of way. Fourth, local loop transmission unbundled from switching. These next three are unbundling. That is, again, the company has to open up its systems, unbundle so somebody else can get in. I guess this has been compared to if you are making pizza and somebody else delivers your pizza. It probably would not be in such good shape. But we are requiring in these unbundlings that the other person, the competitor with the Bells, is treated well. When he gets into the regional Bell's wires, he does not get a buzz tone or be told to wait 3 minutes or a tape recording saying his call will be handled when it becomes convenient. The competitors will be given quality treatment. Unbundling. That is Nos. 5, 6, and 7. Local transport from trunk sites unbundled from switch. Local switching unbundled. And No. 4, the loop transmission unbundled from switching. These three are the so- called unbundling tests. Then No. seven is access to 911 and enhanced 911. Enhanced 911 is where you just push one button for an emergency. Also access is required for directory assistance and operator call completion services. That is an important one in many cases. Next is white pages directory listing being available at a reasonable price. The ninth test is access to telephone number assignment; tenth, access to databases and network signaling, important if you are going to compete and get into the market; eleventh, interim number portability; twelfth, local dialing parity; thirteenth, reciprocal compensation; and fourteenth, resale of local service to competitors. What I am saying is we have a competitive checklist, which is the basis for getting into the local telephone business. So we are trying to get everybody into everybody else's business here. These are the portions of requirements that the FCC certifies. What the Dorgan-Thurmond amendment suggests is that after we finish all this, we then go over to the Justice Department for yet another test, though it is not a regulatory agency. We then ask the Justice Department to give their approval under the Clayton 7 standard, which is another standard. So if you survived in your State, if you met the competitive checklist, if you have met the public-interest test, if you have met the subsidiary test, and if you have met the nondiscrimination test and the cross-subsidization test, when you get through all of that, then you have to go over to the Justice Department. We are told this will only take 90 days; we are going to put a 90-day requirement on it. Even taking 90 days is another delay. Some say you can do this simultaneously. As a practical matter, you cannot. You have to get through your State, you have to get through the FCC, and now we are over here at the Justice Department. We do not need this additional review. That is more regulation. That is what we are trying to avoid. It is true, in the past, there have been suggestions for VIII(c), but we have come up with this checklist to replace it, which is quicker and covers all the subjects and has been agreed to by everybody. So we have a bill that finally has crafted a balance between the long distances and the Bells. We are now ready to go into business, but if the Dorgan- Thurmond amendment is adopted, no, wait a minute, we have another layer of bureaucracy. What is wrong with giving the Justice Department this authority? There are a number of things wrong with it. First of all, the Justice Department's enabling statute does not say that it is a regulatory agency. The Antitrust Division's enabling statute does not say that it is a regulatory agency. The Justice Department got into regulation the first time with Judge Greene's consent in 1982. They have several lawyers over there who carry out, administer the MFJ. That was unprecedented, but it came about. They are working for Judge Greene, not the Attorney General, and that is an important thing. They carry out Judge Greene's orders, a district court order. But our friends would have us make the Justice Department for the first time in history by law a regulatory agency. There is no other area in commerce that this is true. It is not true in aviation, it is not true in transportation, it is not true in railroads. Originally, the ICC was created in about 1887. The FCC was patterned on it in 1934. Both agencies were intended to be the regulatory agencies. There is talk of abolishing the ICC. There is talk when we get into the wireless age of substantially reducing FCC, or that perhaps we will not need the FCC. I do not know about that. That is another debate for a later time. But this bill will take us into transition from the wired age to the wireless. We are in the last stages of the wired communications age. I think it will last 10 years. Some people think 15; others think it will last about 5. But this bill will provide us with competition and deregulation in the last stages of the wired telecommunications era. But to give the Justice Department a regulatory role at this time would be a step backward. That is regulation. That is another layer of regulation. Everybody here, even my good friend Al Gore, talks about deregulating and privatizing. Here it is. Here is our chance. So I think that debating whether or not to have a Justice role on this particular part of this bill is very important. Let me say that in all aspects of this bill, we are trying to deregulate, whether it is letting the utilities into telecommunications with safeguards, moving toward deregulation of cable with safeguards, getting the Bell companies manufacturing and letting them get into other areas, such as cable, letting the long distance people into the local market, de- regulating the broadcasters--this is a vast bill. It deregulates almost everything. But if we adopt this amendment, we are going back to a major layer of regulation regarding the Bell companies in long distance. I cannot conceive of why we would do that. Our consumers have an interest in deregulation and competition. They are protected by the FCC with the public interest necessity and convenience standard. They are also protected by the checklist and by other safeguards. If the FCC appeals, the Justice Department can join independently on that appeal. So there is already heavy Justice Department involvement. So I say to my friends that we really need to decide if we are deregulating or if we are shuffling along with more regulation. If we allow the Dorgan-Thurmond amendment to be adopted, we would be delaying competition at least 2 or 3 years. My friends say, ``Oh, it will only take the Justice Department 90 days to get this done.'' That is not true. They already have a 30-day requirement on them, and they are taking as much as 3 years to get something done over there. I see some other Senators on the floor. If anybody else would like to speak, because I am going to be here all night, if necessary, I will yield the floor to anyone who wishes to speak.

Mr. PRESSLER. I am a great admirer of my friend and I plead with the Senator, we must move forward. I received word that there are many who would like to vote at 6. We will have to resolve it, perhaps in a private conversation. But for purposes of other Senators in their offices, it is our intention to try to put this to a vote at 6 this evening. [[Page S8154]]

Mr. PRESSLER. Why would my friend object? We debated Friday afternoon and today. We are trying to move this process along.

Mr. PRESSLER. Mr. President, I received word that the leadership would like this matter to be voted on at about 6 o'clock, for the notification of all Senators. That would give Members 2 hours. I shall have more remarks, but I will yield to other Senators. Those Senators wishing to speak on the Dorgan amendment should bring their speeches to the floor.

Mr. PRESSLER. On page 89, ``determination by the Commission,'' that is the Administrative Procedures Act applied to the Federal Communications Commission. My point is that it does not apply in Department of Justice proceedings.

Mr. PRESSLER. Mr. President, if I could just answer that question.

Mr. PRESSLER. Indeed, I have enjoyed working with my friend on so many issues, and we do have occasional disagreement. This is one of them. Let me ask a question. Would this amendment require the Administrative Procedures Act to be applied in Justice Department procedures? What I am getting at here is the procedures at the FCC would be under the Administrative Procedures Act so there is an open process. There are ex parte rules. The Justice Department has rules over there that are prosecutorial, and they do not have to be open; they do not have to meet all of the same requirements that an administrative agency does. What is the status of the Administrative Procedures Act regarding this amendment?

Mr. PRESSLER. Will my friend yield for a question?

Mr. PRESSLER. I will quickly wrap up in deference to the Senator from North Dakota. I have a few more things. In fact, I am trying to keep things moving along. So I will yield the floor so the Senator can do it right now. I hope other Senators who have amendments will bring them to the floor so we can get some amendments stacked up. We are trying to move this. I will demonstrate an eagerness to move things forward by yielding the floor right now.

Mr. PRESSLER. I will be glad to yield for a question.

Mr. PRESSLER. I yielded for a question. What is the question?

Mr. PRESSLER. I will not yield until I complete answering the question. The point is, you clearly would have to go to two places. One, you have to go to the State and the FCC. Under this amendment, then, you would have to go to Justice. Even if you could miraculously get all of this done simultaneously, if you had three sets of lawyers, you go to the State. Before the FCC could really act, they would have to see the State thing. The fellows over at Justice, I guarantee you, would want to see what the guys at the State and the FCC did. Let us say, if you had enough lawyers, they could miraculously do it all on the same day, and that each agency plus the Justice Department will not delay things for 3 years, you would still have the situation that you could need three sets of lawyers. As a practical matter, most people, if the State is not going to approve, they will not spend the money to go on to the FCC and go on to the Justice Department. The point is, if my friend will yield, he has to admit that there is one extra place you have to go. There is clearly one more place. You have to go to the Justice Department.

Mr. PRESSLER. I would like to answer that question, if I may. First of all, the amendment would require the applicant to go to two places; actually more than that. You have to go to the State, to the FCC, and the Justice Department. It is true that the Senator says simultaneous. But, as a practical matter, most people are not going to hire some lawyers. They are going to see if they meet the public interest test and the checklist first before they go to the Justice Department, as a practical matter. But, even miraculously, if they could do both simultaneously----

Mr. PRESSLER

Mr. PRESSLER. If my friend will yield, there is no other area of American economy--and it is true since Judge Greene's order, and he has 200 staff attorneys over there, basically. But there is no need to continue having that just for one sector of our economy in the Justice Department, a decisionmaking role.

Mr. PRESSLER. From this Senator's point of view, the public interest is very much at heart throughout these considerations. I think all the Senators who worked on this bill have had the public interest. I do not accept that conclusion about the Senate of the United States.