Senator Patrick Leahy (D-VT), a strong and vocal opponent of the Exon "Communications Decency Act" amd ardent defender of free speech and privacy online, was one of only 5 Senators to vote against the Telecommunications Reform Bill of which the CDA was part.
Senator Leahy was also the only member of the Senate to offer a substantative legislative alternative to the Exon CDA. Senator Leahy deserves great credit for standing up for free speech in cyberspace.
Below is the full text of his 2/1/96 statement against the telecomm bill. Click here to skip to the sections about the Communications Decency Act.
Statement of Senator Patrick Leahy
on Passage of
Telecommunications Competition and Deregulation Act
Conference Report
February 1, 1996
Mr. LEAHY. Mr. President, I thank my good friend from South
Carolina, a man whom I have been privileged to serve with in my whole
Senate career. He was already a senior Member of the Senate when I
came here. I appreciate all the help he has given me. I appreciate
the fact that he and the chairman were able to protect the
Breaux-Leahy amendment on 1-plus dialing parity as part of the
conference report to permit intraLATA toll dialing parity requirements
to stand in States that already ordered it by December 19, 1995, and
in single-LATA States like Vermont. Preserving this amendment, which
Senator Breaux and I worked out on this floor, has helped my State.
There are so many things I like about this bill. For example, the
conference agreement places restrictions on buyouts between phone
companies and cable. The conference agreement also includes a very
strong savings clause to make clear that mergers between companies in
the media and communications markets are subject to a thorough
antitrust review.
Competition, not concentration, is the surest way to assure lower
prices and greater choices for consumers. So, while there are some
improvements in this legislation that I support, I will not be voting
in favor.
I have expressed my concern on the lack of a stronger Department
of Justice role in evaluating the anticompetitive effect of a Bell
Operating Company's entry into the long-distance market, as well as my
concern that this legislation is placing censorship restrictions on
the Internet. As a user of the Internet and as one who communicates
electronically with constituents and others around the country, I am
concerned this legislation places restrictions on the Internet that
will come back to haunt us.
I know these provisions were done with the best of intentions.
All of us, 100 Members of the United States Senate, oppose the idea of
child pornography. All of us abhor child pornographers and child
abusers. I am one person who has prosecuted, convicted, and sent to
prison child abusers. We do not have to demonstrate our adherence to
that principle. But I am concerned we have not upheld our adherence
to the First Amendment with the proposed restrictions on the Internet.
That creates an overwhelming barrier for me.
I am also concerned that after passing the 1992 Cable Act over a
Presidential veto, that we are now taking the lid off all cable rates
in 3 years, whether or not there is competition in cable service.
Before the 1992 Cable Act was passed, cable rates were rising three
times faster than inflation rates. I do not think you can name a
consumer in this country who did not feel that he or she was being
gouged.
But the law worked. Since passage of the law, consumers have saved
an estimated $3.5 billion in their monthly bills. And, as the rates
have gone down, more people have signed up. In 1994 alone, nearly 2.5
million new customers have signed up for cable service.
I do not want to see a repeat of the skyrocketing cable rates that
prompted passage of that law. It is too easy to see what might happen
if the cable companies are not restrained, either by competition or by
laws.
I do not have cable in my home in Vermont. I live out in the
country where we get 1 channels. I think sometimes I am blessed by
that because I actually get to read, which is a good way of obtaining
the news. You can make up your own mind. You can read in detail or
not, and not be limited by the photographs selected by
multimillion-dollar news media.
But I digress.
With the cable company I subscribe to here, you get these $2 remote
controls but they charge you $3 a month, or something like that. They
can give you antiquated equipment and charge as though you were
getting good equipment and even make it impossible to watch one show
and tape another one. All the things that sound great are not
available because there is no competition. We are about to make that
even worse. We had some restrictions in the cable bill, but I am
afraid we are going to let them go before we have the protections
provided by effective competition.
I must admit, having said all that, I do not envy the managers of
this bill. This is probably the most complex piece of legislation I
think I have seen in 21 years. It has probably had more conflicting
interests that had to be reconciled than I have seen in 21 years.
I commend the Senators who had the ability to stick it out and
bring it this far. Senators still have to determine whether they will
vote for or it or not, but whether you like or dislike different
parts, we can all appreciate the hard work and long hours it took.
The telecommunications legislation that has emerged from the
conference will have an enormous impact on multi-billion dollar cable,
phone and broadcast industries and, most importantly, on the American
consumer. This legislation will affect how much we pay and from whom
we can obtain cable, TV, phone, fax, and information services. It will
also, unfortunately, affect what we can say online.
We have heard a lot about the support for this legislation by the
Bell phone companies, AT&T and other long-distance phone companies,
the giant cable companies and other media interests. But while they
have been arguing over business advantages, who have been advocates
for American consumers and fundamental American values, like First
Amendment free speech rights?
Most of us have no choice who gives us cable TV service or our
local phone service. Whether or not the service is good, we're stuck
with our local phone or cable company. And, if the price is too high,
our only choice is to drop the service altogether. The goal of this
telecommunications legislation must be to foster competition, not just
for the short term, but over the long haul. Competition will give
consumers lower prices and more choices than simply dropping a
service.
I raised a number of questions about the Senate-passed bill, and
fought for several amendments that in my view would have made the bill
more consumer-friendly, pro-competitive and constitutional. I commend
the conferees for the progress they made in several of these areas,
which I detail below.
First, the bill proposed by the Commerce Committee would have
permitted our local phone monopoly to buy out our local cable monopoly
so that consumers have even less choice rather than more. Senator
Thurmond, the distinguished Chairman of the Judiciary Committee's
Antitrust Subcommittee, and I raised concerns that allowing such
unlimited buyouts between monopoly phone companies and cable companies
could result in giant monopolies providing both phone and video
programming services.
The conference agreement makes a significant improvement in these
provisions by limiting buy-outs between cable and phone companies to
rural areas where fewer than 35,000 people live. The conference
agreement also limits a phone company's purchase of cable systems to
less than ten percent of the households in its service area. This will
insure that a single large phone company cannot simply buy up all the
small cable systems serving the small towns in its service area. This
part of the conference agreement helps fulfill the promise of the bill
to maximize competition between local phone companies and cable
companies.
The conference agreement also contains a very strong "savings
clause" to make clear that mergers between cable and telephone
companies, or between independent telephone companies or between any
companies in the media and communications markets are subject to a
thorough antitrust review under the normal Hart-Scott-Rodino process.
Nothing in this conference agreement even impliedly preempts our
Federal antitrust laws. Mega-mergers between telecommunications
giants, such as the rumored merger between NYNEX and Bell Atlantic, or
the gigantic network mergers now underway, raise obvious concerns
about concentrating control in a few gigantic companies of both the
content and means of distributing the information and entertainment
American consumers receive. Competition, not concentration, is the
surest way to assure lower prices and greater choices for consumers.
Rigorous oversight and enforcement by our antitrust agencies is more
important than ever to insure that such mega-mergers do not harm
consumers.
I have been particularly concerned about how well the
telecommunications legislation protects universal service. Vermont is
among the most rural States in the country, but those of us who live
there do not want to be denied access to the advanced
telecommunications services our urban neighbors enjoy.
I, therefore, commend the conference report for including the
Snowe-Rockefeller-Exon-Kerry provision requiring preferential rates
for telecommunications services provided to schools, libraries and
hospitals in rural areas, which I supported. This requirement provides
an important building block to ensure universal access to advanced
telecommunications services. Students whose families cannot afford
sophisticated hi-tech services at home will be able to use those
services at school or at their neighborhood public library. Rural
hospitals will be able to use advanced technology to provide better
treatment at lower costs to their patients. This provision assures the
broadest possible access to advanced telecommunications services.
I am also pleased to see that the conference report includes the
addition of a State-appointed consumer advocate to the newly created
Federal-State Joint Board. This board will have the critical task of
preserving and expanding universal service, and I agree with the
conference that a consumer advocate will bring a necessary and
important perspective to that task.
The conference agreement also adopts a provision designed to make
cable equipment cheaper and easier to use for all consumers, who are
tired of paying rent for cable converter boxes and struggling with
multiple clickers for the TV, set-top box and their video machines.
This provision is one that Senator Thurmond and I urged to be included
as part of the telecommunications legislation in the last Congress.
Under the conference agreement, the FCC is directed to assure the
competitive availability to consumers of converter boxes and other
electronic equipment used to access cable video programming services.
As a member of the Judiciary Committee, I remain ready to address
the copyright issues that will arise as a result of this legislation.
There was no consideration of copyright matters during the debate over
this legislation and I commend the conferees for not prejudging these
matters.
The bill proposed by the Commerce Committee would have
unnecessarily preempted State efforts to promote the development of
competition in local phone service. Richard Cowart, the Chairman of
the Vermont Public Service Board, provided invaluable testimony to the
Antitrust Subcommittee last year about the detrimental preemption
provisions in the bill.
For example, this bill rolled-back State requirements to implement
"1+" dialing parity for short-haul toll calls. A number of States
already require dialing parity. Without "1+" dialing parity, consumers
must dial lengthy access codes to use carriers other than the local
phone company for in-state toll calls. IntraLATA "1+" dialing parity
encourages competition in the in-state toll market and helps
consumers.
As I noted before, I am pleased that the Breaux-Leahy amendment on
"1+" dialing parity is part of the conference report. The report
permits dialing parity requirements to stand in the States that
already ordered it by December 19, 1995, and in single-LATA States,
including Vermont. The prohibition against "1+" dialing parity for
intraLATA calls in "non-grandfathered" States expires at a date
certain three years after enactment.
In addition, the Commerce Committee bill would have prohibited
State regulators from using rate-of-return regulation for large phone
companies. As Chairman Cowart of the Vermont Public Service Board
made clear when he testified, this prohibition would have tied the
hands of State regulators trying to adopt different forms of pricing
regulation to stimulate local phone service competition. The
conference agreement took a constructive step by dropping the
prohibition on rate-of-return regulation.
On the Exon CDA sections
Despite this significant progress, the conference agreement still
suffers from such serious flaws that I cannot support it.
First, and foremost, the conference agreement contains
unconstitutional provisions that would impose far-reaching new federal
crimes for so-called "indecent" speech. I do not often agree with
Speaker Gingrich, but I share his view that this legislation violates
free speech rights.
Apparently, the conferees also have serious doubts about its
constitutionality. They added a section to speed up judicial review to
see if the legislation passes constitutional muster. In my view, this
legislation will not pass that test.
You would think the telecommunications conference would have
their hands full with just the task of changing our
communications laws to allow new competition among phone
companies, broadcasters, cable operators and wireless systems
while also protecting universal service and other appropriate
consumer protections. Yet, they also decided to add new federal
crimes, despite the absence of any hearings on these provisions, or
any Senate Judiciary Committee members on the conference. I called for
an in-depth, fast-track study of these issues before we took
precipitous action in legislation. That study was included in the
House-passed bill but dropped by the conference, in favor of
provisions that will ban constitutionally protected speech on the
Internet.
I note that the Explanatory Statement accompanying the Conference
Report refers to a July 24, 1995 hearing, at which I participated,
before the Senate Judiciary Committee on "online indecency, obscenity
and child endangerment." This hearing did not address the
constitutionality of the indecency standard adopted by the Conference
Report, nor the least restrictive means by which to implement such a
standard, particularly in an electronic environment like the Internet.
The hearing referred to in the statement of the Conference Committee
dealt with stalking, obscenity and indecency with regard to an
entirely different bill, S. 892. No witnesses at the hearing defended
the constitutionality of the indecency standard in the
telecommunications bill. Nor did any witness testifying in support of
S. 892 examine in detail whether the indecency standard as applied to
online communications complies with the least restrictive means test.
On the contrary, several witnesses questioned whether any indecency
standard could be constitutional as applied to online communications.
Thus, Congress has opted to appear "tough on pornography" without
examining the constitutional implications of this unprecedented
restriction on freedom of expression.
Let us make no mistake about what these provisions in the
conference agreement will do and how it could affect you.
o The bill will make it a felony crime to send a private e-mail
message with an indecent or filthy word that you hope will annoy
another person, even if you were responding in kind to an e-mail
message you received. Who knows when you might annoy another person
with your e-mail message? To avoid liability under this legislation,
users of e-mail will have to ban curse words and other expressions
that might be characterized as offensive from their online
vocabulary.
o The bill will punish with two-year jail terms any Internet user
who uses one of the "seven dirty words" in a message to a minor. You
will risk criminal liability by using a computer to share with a child
any material containing "indecent" passages. In some areas of the
country, a copy of Seventeen magazine, could be viewed as indecent
because it contains information on sex and sexuality. Indeed, this
magazine is among the 10 most frequently challenged school library
materials in the country.
This legislation sweeps more broadly than just regulating e-mail
messages sent to children. It will impose felony penalties for using
an indecent four-letter word, or discussing material deemed to be
indecent, on electronic bulletin boards or Internet chat areas
accessible to children.
Once this bill becomes law, no longer will Internet users be able
to engage in free-wheeling discussions in news groups and other areas
on the Internet accessible to minors. They will have to limit all
language used and topics discussed to that appropriate for
kindergartners, just in case a minor clicks onto the discussion. No
literary quotes from racy parts of Catcher in the Rye or Ulysses will
be allowed. Certainly online discussions of safe sex practices, of
birth control methods, and of AIDS prevention methods will be suspect.
Any user who crosses the vague and undefined line of "indecency" will
be subject to two years in jail and fines.
Imagine if the Whitney Museum, which currently operates a Web page,
were dragged into court for permitting representations of
Michelangelo's David to be looked by kids.
The conferees call this a "display" prohibition and explain that it
"applies to content providers who post indecent material for online
display without taking precautions that shield that material from
minors."
What precautions are the conferees talking about? What precautions
will Internet users have to take to avoid criminal liability? These
users, after all, are the ones who provide the "content" read in news
groups and on electronic bulletin boards. The legislation gives the
FCC authority to describe the precautions that can be taken to avoid
criminal liability.
The legislation gives the FCC authority to describe the precautions
that can be taken to avoid criminal liability. All Internet users will
have to wait and look to the FCC for what they must do to protect
themselves from criminal liability.
We have already seen the chilling effect that even the prospect of
this legislation has had on online service providers. A few weeks ago,
America Online deleted the profile of a Vermonter who communicated
with fellow breast cancer survivors online. Why? Because, according to
AOL, she used the "vulgar" word "breast". AOL later apologized and
indicated it would permit the use of that word where "appropriate."
Complaints by German prosecutors prompted another online service
provider to cut off subscriber access to over 200 Internet news groups
with the words "sex", "gay" or "erotica" in the name. They censored
such groups as "clarinet.news.gays," which is an online newspaper
focused on gay issues, and "gay-net.coming-out", which is a support
group for gay men and women dealing with going public with their
sexual orientation.
What is next? The Washington Post reports today that one software
program used to protect children from offensive material blocked the
White House home page because it showed pictures of two couples
together. Those two couples happened to be the President and Mrs.
Clinton and the Vice-President and Mrs. Gore. Will federal government
censors do any better when they dictate blocking technologies?
The Communications Decency Act is the United States government's
answer to the problem that China is dealing with by creating an
"intranet". According to news reports, this censored version of the
Internet allows Chinese users online access to each other, but an
official censor controls all outside access to the world-wide
Internet.
We already have crimes on the books that apply to the Internet, by
banning obscenity, child pornography, and threats from being
distributed over computers. In fact, just before Christmas, the
President signed a new law we passed last year sharply increasing
penalties for child pornography and sexual exploitation crimes.
Unlike these current laws, which do not regulate constitutionally
protected speech, this legislation would censor indecent speech. While
the proponents of the proposals claim that they do not "ban" indecency
-- only prohibit making it available to minors -- the practical result
of such a restriction on the Internet is the criminalization of all
indecent speech.
Because indecency means very different things to different
people, an unimaginable amount of valuable political, artistic,
scientific and other speech will disappear in this new medium.
What about, for example, the university health service that posts
information online about birth control and protections against
the spread of AIDS? With many students in college under 18, this
information would likely disappear under threat of prosecution.
In bookstores and on library shelves the protection of indecent
speech is clear, and the courts are unwavering. Altering the
protections of the First Amendment for online communications could
cripple this new mode of communication.
The Internet is a great new communications medium. We should not
underestimate the effect that the heavy-hand of government regulation
will have on its future growth both here and abroad. With the passage
of this bill the U.S. Government is paving the way for the censorship
of Internet speech. Apparently, China already censors weather
predictions from foreigners. What do we think the Iranian government
will make illegal? What could Libya ban and criminalize?
Also, as I alluded earlier, I continue to have grave concerns about
letting the Bell Operating Companies, with their monopoly control over
the phone wires going into our homes, enter the long-distance market
even when the Department of Justice finds an anticompetitive impact. I
supported efforts to amend the bill and give the Justice Department
the authority to review the Bell Companies' long-distance entry in
advance. These efforts were unsuccessful.
The conference report requires the FCC to consult with the Justice
Department and "give substantial weight" to the Justice Department's
opinion, in determining whether to permit entry of a Bell company into
long-distance service. Although this provision strengthens the
Senate-passed bill, it does not go far enough. It fails to achieve
the balance proposed by the Commerce Committee in 1994. In the end,
the FCC is the final decision maker and can decide to disregard the
Justice Department's evaluation of the anticompetitive effect of
letting the Bell Companies offer long-distance service.
The conference agreement would permit a Bell Company to offer long
distance service in its own region, upon approval by the FCC and after
satisfying an "in-region" checklist. This checklist could be satisfied
by the presence of a competitor with its own networking facilities.
Despite recognition by the conferees that building local telephone
network facilities will require a significant investment in time and
money, the bill allows only 10 months after enactment for
facilities-based competitors to get established and apply for
interconnection and access to the Bell Company's network. Absent a
facilities-based competitor in those 10 months, I fear that the
language of this bill could be interpreted broadly to allow the Bell
Operating Company to seek approval to enter long-distance service, and
authorize the FCC to grant that approval, even without any actual
competition in local phone service. The short time-frame provided in
the bill to establish a facilities-based competitor, compounded by the
lack of a dispositive Justice Department role in the approval process,
could provide the incumbent Bell Company with the ability to use its
stranglehold monopoly on local service to leverage its new
long-distance service, to the detriment of consumers. Regulators will
have to be vigilant to this potential consequence.
As I noted, the conference agreement takes the lid off all cable
rates in three years, whether or not there is any competition in cable
service.
We passed the 1992 Cable Act over a Presidential veto because
consumers were being gouged by cable company monopolists. Cable rates
were rising three times faster than the inflation rate. Consumers
demanded action to stop the rising cable rates. This law worked. Since
passage of that law, consumers have saved an estimated $3.5 billion in
their monthly rates. As rates have gone down, more people have signed
up.
Congress has already responded once to complaints of cable
subscribers in the 1992 Cable Act. I, for one, do not want to see a
repeat of the sky-rocketing cable rates that prompted passage of that
law. The conferees must be predicting that, in three years, cable
companies will face plenty of competition from satellite systems and
phone companies offering video services. But if their prediction is
accurate, and the cable companies faced effective competition, they
would be deregulated under the 1992 Cable Act anyway. This is a
precipitous action to sunset a law that worked to reduce cable rates
on the hope that effective competition will grow over the next three
years.
Finally, the conference report requires the FCC to preempt State or
local rules that may have the effect of barring any entity from
providing telecommunications services. Although the report says this
is not supposed to affect local management of public rights-of-way or
local safeguards for the rights of consumers, in Vermont, citizens are
rightly concerned that rules designed to protect our environment and
health may be preempted by bureaucrats at the FCC who are focused on
helping entrants in the telecommunications business.
I recognize the need for an over-haul of our communications laws.
We have not kept up with the dramatic technological changes that are
fueling the Information Age. But I cannot support this bill, which
threatens fundamental constitutional rights of free speech over the
Internet and provides insufficient consumer protection from
monopolistic pricing for cable and telephone service.