Answering four questions on the anniversary of the Telecommunications Act of 1996.

AuthorFurchtgott-Roth, Harold

Most legislation is doomed to obscurity, and, aside from the Fourth of July, it is unusual for Americans celebrate the anniversary of a government document. But the Telecommunications Act of 1996 (1) is not just any law, and its twentieth anniversary on February 8, 2016 will be noted. It represents a rare attempt by Congress to overhaul an agency. It was an uncommon product of bipartisanship from a cutthroat partisan era. And its legacy is deeply contentious. Those who celebrate the Act claim that it brought competition and economic growth to the communications sector. Those who revile it blame it for all that ails the industry. Many have called for its rewriting, but little consensus exists as to what a new federal communications law should look like.

While countless books and articles have analyzed and chronicled the Act, (2) its twentieth anniversary offers an opportunity to reflect on its legacy and future. This Comment considers this controversial piece of legislation by exploring the following four questions:

(1) What were the political conditions that enabled the passage of the Act?

(2) To what extent was the implementation of the Act faithful to its intent?

(3) How did the communications sector fare in response to the Act?

(4) Is the Act due to be re-written?

  1. What were the political conditions that enabled the PASSAGE OF THE ACT?

    The successful passage of a law often involves grandiose celebrations. The president signs a bill into law in a ceremony. (3) Major laws have key congressional supporters as witnesses to the signing ceremony, usually held at the White House. (4) Smiles and photographers abound. Documents and pens are memorialized. (5) The president and Congressional leaders say a few words about the lasting importance of the new law. (6) Journalists dutifully report the event. (7) And then, slowly over the years, amnesia sets in. Few remember; fewer remember accurately; and even fewer care.

    Of course, the Congressmen, Senators, and staff will long cherish the mementos of the occasion. In many offices in Washington, one finds elegantly framed copies of signed bills and even a memorialized pen. (8) These are the relics of the bill signing. They remain alive and animated for a year or two. By five years, the signatories have likely left office. By ten years, few remember what the purpose of the law. After twenty years, the relics appear more as prehistoric fossils unearthed in some obscure place many years ago.

    If it were an ordinary law, the Telecommunications Act of 1996 would have been long forgotten. But it was born on a grander scale than most. The conditions that facilitated its passage were fortuitous and dramatic. The bill-signing was remarkable in its pompousness. (9) And the Act's influence has pervaded the communications sector. But whether its passage is remembered accurately is a separate question.

    The Telecommunications Act of 1996 was not the product of just the 104th Congress, but of at least the prior ten Congresses. Since the 1970's, Members of Congress recognized that the Communications Act of 1934 no longer reflected the technological landscape of the communications sector and thus attempted to reform federal communications law. (10) They primarily sought to overhaul the AT&T monopoly, but also saw the need for greater flexibility in market entry and ownership rules. (11) Legislators introduced bills and held hearings, but plans for comprehensive review were passed from Congress to Congress. (12)

    By the 1990's, the longing for deregulation reached a boiling point. AT&T's divested companies hoped to escape Judge Harold Greene's rigid control in implementing the consent decree. (13) Incumbent telephone companies sought to enter new lines of business. (14) Long-distance companies such as AT&T and MCI wished to enter local telephone markets, and divested Bell companies wanted to enter the long-distance market. (15) Cable companies wanted relief from the Cable Act of 1992. (16) Broadcast media companies sought relief from onerous regulations, particularly ownership rules. (17) States wanted state regulatory powers preserved. (18) And practically everyone wanted to ensure that the Internet would escape regulation under the FCC's vague and catch-all "public interest" standard.

    The pressing need for reform coincided with the vigor of the 104th Congress. This Congress was different from its predecessors in two major ways. The 1994 elections reflected a dramatic reversal in fortune for the political parties, with the Republicans sweeping to power in both Congressional chambers. (19) The 104th was also an activist Congress, intent on revamping and deregulating government, dramatically reshaping welfare programs, and balancing the budget for the first (and last) time in generations. (20)

    The 104th Congress was also notable for its deep partisan acrimony. January 1996 marked the beginning of an election year and Republicans jockeyed for the chance to replace President Clinton. For his part, the President threw a wrench into the Republicans' pursuit of smaller government by vetoing bills that would have abolished or reduced the size of federal agencies. (21) As a consequence of vetoing a Republican spending bill in 1995, the federal government was shuttered for 27 days. (22)

    But on the issue of communications law reform, Republicans and Democrats largely agreed. Given almost universal dissatisfaction with existing federal communications law, (23) and the desire to foment competition in the communications sector, (24) overwhelming majorities supported deregulation, and majority and minority leadership cooperated with each other. Indeed, few issues in Congress were less partisan than communications law.

    Introduced by Senator Larry Pressler (R-SD), (25) it passed the Senate 81-18 on June 15, 1995. (26) Parallel legislation, sponsored by Representative Tom Bliley (R-VA), (27) passed the House on August 4, 1005 by a vote of 305117. (28) After months of conference, the combined legislation passed both chambers by overwhelming majorities on February 1, 1996. The vote was 91-5 in the Senate. (29) The vote was 414-16 in the House. (30) With the exception of Senator John McCain (R-AZ), every Republican member of the Senate, all with deregulatory leanings, voted for the Act on final passage. (31)

    Public Law 104-104 was signed into law on February 8, 1996. (32) It was not an ordinary bill-signing ceremony. The signing was held at the Library of Congress, rather than at the White House, (33) perhaps as an olive branch by the Clinton Administration towards Republican legislators. Both parties were weary of dispute, after all. It was the first law signed digitally in cyberspace and streamed lived over the Internet, (34) in acknowledgment of the vast technological advancements since its 1934 predecessor, and contrary to historical revisionists who suggest that the Internet was unknown in 1996.

    Bill-signings were typically brief, featuring only a short speech by the President. (35) The signing of the Telecommunications Act of 1996, however, boasted an entire lineup of speakers. (36) In addition to Vice President Gore, Congressional leaders of both parties, as well as rank-and-file members of both parties, spoke at the event. (37) Each speaker praised the legislation and forecast a great future of the communications sector. (38)

    As...

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