Swallows, sausages, and the 1996 Act.

• Author: Phythyon, Daniel B.
• Position: Telecommunications Act of 1996: Ten Years Later Symposium

In an annual ritual that rivals the swallows' return to Capistrano in regularity, if not longevity, February in Washington is heralded by a flock of commentary on why the Telecommunications Act of 1996 ("1996 Act") is not living up to expectations. It is a privilege to participate in this rite on the 1996 Act's tenth milestone. In keeping with this theme, however, I should also note that this year marks the 191st anniversary of the birth of Otto von Bismarck, who is credited with perhaps the sagest observation ever uttered on the legislative process: "If you like laws and sausages, you should never watch either one being made." (1)

The Federal Communications Law Journal's ("Journal") invitation to submit an Essay for this occasion referenced my former position as Chief of the Federal Communication Commission's ("FCC") Wireless Telecommunications Bureau. While I do not intend to suggest that the 1996 Act is irrelevant to the wireless industry, it does not loom nearly as large as, say, the Omnibus Budget Reconciliation Act of 1993 ("OBRA"), (2) which has been far more significant in shaping the growth of the wireless industry. Indeed, many legislative advocates hold up OBRA's light regulatory touch as a model for Congress to follow in establishing a new framework to govern broadband and other modern communications services. Given the topic of this issue of the Journal, my time as the head of the FCC's Office of Legislative and Intergovernmental Affairs ("OLIA"), a position I had just assumed when the 1996 Act passed, probably is much more pertinent.

The Republican Revolution of 1994 generated a number of quite serious proposals to eliminate the FCC, including some recommendations by the Speaker of the House, (3) and the FCC was still laboring under that cloud in 1996. When the 1996 Act passed, there was considerable anxiety inside and outside of 1919 M Street in light of the crushing workload that was about to be dumped on the FCC. One of my first tasks as head of OLIA was to shepherd a delegation of bureau chiefs and other senior staff to the Hill for a series of meetings with the key House and Senate staffers who had drafted the bill. Our goal, in part, was to communicate that we would not fumble the handoff--that the FCC was more than up to the job of implementing the legislation.

Our very first meeting on the Hill, however, turned out to be the last for these purposes. The session quickly devolved into a heated debate among the...