Excepcionalmente nesta quarta-feira (26/9), o Roda Viva recebe o vice-presidente de políticas públicas do Twitter, Colin Crowell. Na entrevista, entre outros assuntos, o executivo trata das preocupações da direção da rede social em relação às eleições brasileiras do próximo dia 7 de outubro, principalmente no que diz respeito ao uso indevido da plataforma para propagação de Fake News.
Na bancada de entrevistadores estão Fernanda Romano, sócia e diretora de criação da Consultoria Malagueta; Letícia Piccolotto, fundadora da ONG Brazillab; Natália Neris, pesquisadora e coordenadora da área de Desigualdades e Identidades no Internetlab; Patrícia Blanco, presidente do Instituto Palavra Aberta; e Juliano Spyer, antropólogo, pesquisador da empresa Alexandria Big Data e autor do livro Mídias Sociais no Brasil Emergente.
Twitter vice president Colin Crowell talks about how online platforms, like Twitter, play a key role in connecting people and spreading ideas. Crowell describes how Twitter, which allows for anonymity through the use of pseudonyms, encourages freedom of expression. He cautions that governments also try to limit this expression and control the flow of information by requesting that certain tweets be removed – or even by blocking Twitter completely. Crowell highlights how Twitter has been used to start various online social movements, citing several successful case studies from around the world.
As the lead staffer for Chairman Ed Markey (D-MA) on Telecommunications Act of 1996 (TA96), I often smile when people “correct” me to explain that Section 230 wasn’t part of TA96, but rather part of the Communications Decency Act (CDA). The reality is that Section 230 is contained in Title V of the Telecommunications Act of 1996, a title that the framers of TA96 indicated could also be referred to by its “short title,” as the “Communications Decency Act of 1996.” The CDA within TA96 contains only nine sections. Seeing the provision referred to as “Section 230 of the Communications Decency Act” is quite common, but technically incorrect. The provision itself, like almost all of TA96, was an amendment made to the Communications Act of 1934. That is, as the ninth section of the CDA, it was Section 509 of the Telecommunications Act of 1996, and then was codified at Section 230 of the Communications Act of 1934. So from a legal citation standpoint, it’s “Section 230 of the Communications Act of 1934, 47 U.S.C. § 230.”
Today, however, I feel people can simply call it what they want. After it became a call-out response at Trump political rallies in 2020, saying “Section 230” now largely suffices since it has become a commonplace term.
Section 230 is certainly much in the news and much misunderstood. In recent years, the provision has received bipartisan criticism in the U.S., but for quite different reasons. Some Democrats contend that Section 230 is overly generous in extending liability protections and therefore permits social media platforms to keep too much content up on their services that they believe should be removed. Meanwhile, some Republicans essentially assert the opposite — that Section 230 empowers Internet platforms to censor too much — while also alleging that social media companies are biased against conservative voices.
In lieu of repeating these legal and policy analyses, I offer here a small bit of the legislative history from a former staffer’s perspective on how this provision came to be part of TA96.
The Communications Decency Act was a bill introduced in the Senate by Senator Jim Exon (D-NE) and Senator Slade Gorton (R-WA) on February 1, 1995. It arrived during a time when “family values” politics was quite prominent in Washington, and capturing the coveted terrain in the political center during a time of divided government was important for both sides of Capitol Hill and the Clinton-Gore Administration. The Communications Decency Act legislation sponsored by Senator Exon also arrived at a time of growing concern about the seedier side of cyberspace and the proliferation of easily accessible pornography via the Internet. Indeed, Senator Exon’s staff had compiled a binder full of imagery taken from the Internet and Senators were encouraged to take a look at it so they could see for themselves the type of content that was readily available online. To the Senate staff, it was simply referred to as the “blue binder of porn.” Importantly, it was also a time when most Members of Congress were not online themselves and were unfamiliar with the Internet directly.
Concerns were raised when the CDA was first introduced from some in civil society, but lobbying against it didn’t get into high gear until a version of it was added to the Senate telecommunications bill later in the spring. Leading the charge in lobbying on the Hill was the newly-formed Center for Democracy & Technology (CDT), led by Jerry Berman.
By 1995 technology and communications companies had already had a long history of being involved in speech and civil liberties issues in Washington. After all, part of what prompted the active legislative interest at the policy core of TA96 had 1st Amendment implications. One argument for opening the door to the Bell companies to offer cable service and information services, from which they were barred by statute and the consent decree that broke up Ma Bell, respectively, was a contention those companies made in court and on Capitol Hill. Specifically, they argued that their First Amendment rights to offer such services were being abridged. Computer and software companies had made the case to us in recent years regarding the need to safeguard civil liberty protections for Americans in encryption policy during the first “Crypto Wars.” In addition, the National Association of Broadcasters during this same timeframe was arguing against the V-chip and television ratings, in part, on constitutional grounds. Finally, we had held House Telecommunications Subcommittee hearings in the prior few years on everything from the fairness doctrine to the speech implications of must-carry rules for broadcasters on cable systems during consideration of the Cable Act of 1992.
So having tech companies like Prodigy and CompuServe lobbying on these things wasn’t a new phenomenon in 1995. In fact, in 1994, while the Telecommunications Act of 1994 was pending in the Senate, Washington lawyer Ron Plesser visited then-lead Subcommittee Counsel Gerry Waldron and me to alert us to litigation moving through the courts affecting his clients Prodigy and CompuServe, including lititgation initiated and to suggest that Congress should address this issue. Of course, that bill died in the Senate in 1994, but the issue was on our minds as we entered 1995.
Having digitally-conversant, Internet-savvy public interest advocates present in the debate, however, was a new and welcome change and that’s where the CDT team came into the lobbying picture. CDT head Jerry Berman, Janlori Goldman, Danny Weitzner, Jonah Seiger, and Alan Davidson were active on the Hill and instrumental in making a non-corporate, civil society case for free expression, in recognition of the uniqueness of the Internet. They helped to rally other public interest groups and online activists in opposition to the government undermining constitutional speech protections.
Interest in the CDA largely remained in the background in early 1995, with concern rising as legislative activity progressed on the telecommunications bill. This rising concern was due to signals that Senator Exon intended to offer a version of the CDA that included Internet content in its scope as an amendment to the larger telecommunications bill. Lobbying activity on the CDA, however, was dwarfed by the intense lobbying on the other provisions of the House and Senate bills, with many debates, hearings, and Member negotiations on core elements of the legislation to overhaul our nation’s communications laws occurring throughout the spring of 1995.
Meanwhile, in parallel with legislative activity occurring on the telecommunications bills, a legal case was working its way through the judicial system — the Stratton Oakmont case, which Ron Plesser had alerted us to in late 1994. This was a lawsuit brought against Prodigy and it centered on the question of liability of online companies for content originating from third-party sources. In short, the question before the court was to what extent Prodigy could be held liable for third-party content on its site and whether its liability hinged on the fact that it took editorial action to moderate content. An earlier lawsuit aimed at CompuServe, which did not moderate content on its site, had found CompuServe not at fault because of this stance.
When the Stratton opinion came down on May 24, 1995, the Stratton court essentially held that Prodigy was indeed liable for content that its users created because of the editorial control it exercised over its online bulletin boards. It effectively had the public policy incentives for online companies upside down: a company taking action to moderate content (such as porn) increased its legal liability by doing so, while one that turned a blind eye to everything posted on its service by third parties was legally off the hook. This was not seen as “family friendly” policy and many feared it would fuel the concern about content on the rapidly growing Internet in ways that would bolster support for the CDA.
The same day that the Stratton opinion came down, it also happened to be the first day of the two-day markup of the telecommunications legislation in the House Commerce Committee. While I remember seeing the news of the case at some point during those two days, at the staff level we were working hard on the various contentious issues and amendments directly before us. So we didn’t focus on the court case at that particular moment. As a practical matter, it was too late to develop a proposal to address it for consideration at the markup itself. That would come later. On the other hand, no equivalent to the CDA was added to the bill during our House Energy & Commerce Committee markup either.
From a parliamentary standpoint, the CDA as introduced never passed the Senate as a stand-alone bill. Instead, it was added by amendment to the larger Senate telecommunications bill during its floor consideration on June 14, 1995. This amendment, offered by Senator Exon, included a prohibition on indecent content and criminal penalties. It was quite clear that the amendment targeted the Internet directly. The offering of the Exon Amendment came roughly three weeks after the Stratton decision and the House Commerce Committee markup. The CDA language was adopted as part of the Senate bill overwhelmingly, by a vote of 84–16. One interesting historical footnote is that then-Senator Joe Biden (D-DE) was one of the 16 Senators who voted against it. Adding the CDA to the Senate telecommunications bill was a big deal and impacted the politics almost immediately by adding yet another controversial element into the mix.
The coalition of civil society groups that was continuing its work on legislative ideas and lobbying strategies to deal with the Stratton case now had the CDA’s addition to the Senate bill to contend with as well. After our House Commerce Committee markup, this coalition redoubled its efforts in collaboration with Representatives Chris Cox (R-CA) and Ron Wyden (D-OR), who were already discussing remedies together. This fine work resulted a few short weeks later in the introduction by Representatives Cox and Wyden of the “Internet Freedom and Family Empowerment Act.” Note the “family empowerment” reference. Family values branding was important to begin styling this measure as an alternative approach to the CDA provision in the Senate bill. It also reflected a strong desire not to have the government making content decisions.
The political reality was that it was the adoption of the CDA to the Senate telecommunications measure through the Exon Amendment, rather than the Stratton case, that really got grassroots activists engaged and started to generate media attention to the issue. After our full committee markup, we were now preparing at the staff level to follow the Senate’s action and bring the House version of the bill to the floor and engage in debate on a number of amendments. As we did so, the question loomed as to how the House would handle the CDA issue when the bill reached this next stage of the process.
At the bipartisan staff level for the House Commerce Committee leadership, we knew that the House GOP leadership, starting with Speaker Gingrich, opposed the Senate CDA provision. The House, in contrast to the Senate, adopts a rule when a bill comes to the House floor that can constrain the amendment process and stipulate specifically what amendments will be permitted to be offered and voted on during the debate on the bill. This meant that Chairman Bliley, working with the GOP House leadership, could call the shots about which amendments would be permitted.
In this context, the remarkable thing during the House floor debate on the telecommunications bill wasn’t that the Cox-Wyden amendment was agreed to by an overwhelming vote of 420–4. Indeed, support for it was obviously deep and broadly bipartisan. The remarkable thing was that there was no vote on regulating indecency — that is, no equivalent of the Exon Amendment was permitted for debate or a vote during House floor consideration — in a House controlled by “family values” Republicans and led by Speaker Gingrich. Had such an amendment been permitted and offered, it surely would have won. Control of the process was key and it was managed exceedingly well by the GOP leadership, with strong guidance from Commerce Committee Chairman Bliley and his Staff Director James “JD” Derderian, who played a vital role throughout the entire legislative process.
Once both bills passed their respective chambers, the House-Senate staff conference commenced. As mentioned in Part I, a House-Senate conference committee is a rare thing these days but they were more common back in 1995. Neither Rep. Cox nor Rep. Wyden were conferees from the House side. Senator Exon, however, was a conferee from the Senate side and could carry the argument from his perspective.
Senate staff indicated to us at the staff level as early as September that they were fine with Section 230 and were happy for it to be added to the bill. So, from my vantage point at the time, this was a given and Section 230 was never itself in contention. Instead, what was in play was whether the House bill’s Section 230 would suffice as a substitute for the Senate’s CDA provision. On that question, the Senate staff never wavered — they made it abundantly clear they wanted the Senate CDA provision in the final bill.
The standoff between House and Senate on the Communications Decency Act in the Senate bill, and the question of whether Section 230 from the House bill could serve as an alternative for it, was one of the unresolved issues for the conferees as we headed into December. The hopes many of us had for making Section 230 an alternative to the CDA had largely evaporated over the several months of our staff discussions. By December, it was quite clear to me that Section 230 wasn’t going to knock the CDA out of the bill, regardless of the CDA’s dubious constitutionality. Moreover, Senate staff were understandably insistent on reflecting the strong floor vote it had garnered and wouldn’t drop it in lieu of the House language.
In addition to being more common back in the 1990s, the other thing about House-Senate conference committees is that, by House rule, at least at that time, a convening of the conference committee had to be public. That is to say, at least one public meeting had to occur. The House-Senate conference committee for TA96 had three public meetings in the fall of 1995, on October 25, December 6, and December 12. It was at the second public meeting on December 6, that the CDA was debated in public and resolved, although the resolution occurred in private.
To explain further: even though the House version of the bill did not contain the CDA, only Section 230, and the House did not permit a CDA-esque amendment to be offered for a vote on the House floor, the House-Senate conference offered an opportunity for any House conferee to offer amendments to the developing final bill. Chairman Henry Hyde (R-IL) of the House Judiciary Committee took this opportunity at the public conferees’ meeting on December 6th.
At that meeting, Chairman Hyde offered an amendment (video at 25:45) to include criminal penalties for both obscenity and indecency, specifically prohibiting the knowing transmission of indecent material to children. This was essentially departing from the House Commerce Committee bipartisan staff position to offer Section 230 as our policy antidote to the Senate CDA and it brought a prominent GOP House conferee into the mix advocating for a CDA-type provision quite similar to the Senate’s.
Chairman Hyde’s move was not entirely unexpected. We knew that the Senate side would readily accept Section 230 from the House, as they had long indicated, but they welcomed it as a supplement to the CDA, not to supplant it in the final bill text. We also knew that while Chairman Hyde’s position was not the “party line” position of the House GOP — Speaker Gingrich opposed the CDA too — it was increasingly clear there was support for the CDA from other House conferees on the Republican side. At the public meeting, Commerce Committee conferee Rep. Rick White (R-WA) next offered a substitute amendment to Chairman Hyde’s amendment. The White amendment basically reflected that we no longer hoped to stave off the CDA entirely, but sought to change the indecency standard to a “harmful to minors” standard. Again, our overarching policy goal was to empower parents, rather than the government, to make content decisions for their families with respect to constitutionally-protected speech. Chairman Bliley, taking note of the disagreeing approaches among House Members, suggested a private caucus of the House conferees to confer and reach agreement on a position the House could offer back to the Senate. So the conference committee briefly recessed while the House conferees met to caucus amongst themselves.
At this point, Member conferees from the House Commerce and Judiciary Committees retired to a small conference room off of the main meeting room to caucus privately. There, a brief debate occurred on Chairman Hyde’s amendment. This debate did not break along partisan lines, however, but more closely along committee jurisdictional lines. After Chairman Hyde reiterated his strongly-held view that indecency provisions with criminal penalties should be added to the final bill, either through his proposal or by agreeing to the Senate’s CDA provision, Rep. White repeated his preference to adopt the “harmful to minors” standard instead, arguing along both state court precedent and constitutional lines. My boss, Rep. Markey spoke next, and he voiced support for the “harmful to minors” approach. A couple of Members questioned what the difference between the two standards was, but most Members did not speak but simply listened to the discussion.
At this point, the bottom started to fall out and it became crystal clear that White’s “harmful to minors” substitute never had a remote chance of being adopted. That’s because senior Democrats on the House Judiciary Committee started speaking in favor of Chairman Hyde’s approach. We who were wary of the constitutional speech implications of the CDA not only didn’t have a winning hand on the Republican side, but we were clearly losing votes on the Democratic side too. When all the talking was over, Chairman Hyde had basically gutted Rep. White’s alternative proposal and reinserted his indecency approach. Hyde had won handily. When we were returning back to the main meeting room to report the House position back to the Senate, I remember that the first person I ran into outside our caucus room was Jerry Berman of CDT. Jerry asked what had happened and I told him. He uttered a brief curse word and then asked “So, what happens now?” I told him the CDA debate was effectively over and that we’d simply get a stapler and add both the CDA and Section 230 to the bill. When the Members returned the the committee room and Chairman Pressler gaveled the meeting back to order, it was left to Rep. White to explain that the new House position on the CDA was to endorse its indecency standard. The Senate conferees were elated to hear this news because it effectively meant the CDA provision was no longer an unresolved issue for the conferees but now locked in for addition to the bill.
I often see blogs or articles where people assert that Representatives Cox and Wyden amended the CDA to add Section 230. They did not. They amended the House telecommunications bill on the House floor and the House bill did not contain the CDA. They also didn’t amend the CDA in the House-Senate conference, as they weren’t conferees, but even had they been in the conference, Section 230 wasn’t an amendment to the CDA per se. Both provisions were adopted in parallel and jointly placed in Title V of TA96, along with a number of other provisions, including the provisions addressing television ratings and the V-Chip. Because the framers of TA96 stipulated that Title V could also be referred to by its “short title” of the “Communications Decency Act,” this is where some confusion comes in I believe. The reality is that Section 230 and the CDA were intellectually joined because of the debate in 1995 regarding how best to address lawful, but problematic content on the Internet. And the two approaches were joined in debate at times by the desire on the part of some conferees (from the House) that one provision be adopted in lieu of the other. But from a legislative drafting standpoint, Section 230 was never offered as an amendment to Senator Exon’s CDA provision in TA96, it was added alongside it and into the same title of the bill.
Compared to the debate around Section 230 today, the debate on the CDA versus Section 230 in 1995 was not an argument over the issues of over-censorship or under-removal of content, or about the level of liability protection afforded to online companies. At the time, almost everyone agreed that Congress should clarify the law to encourage content moderation by online entities, rather than penalize it as the Stratton decision had done. In order to empower online companies to act in ways we thought would be pro-consumer, we were seeking, in support of First Amendment principles and in defense of a nascent medium, a pointed reversal of a bad court decision. So instead of a debate on the rights and obligations of online platforms, in essence, the debate was about a philosophical choice: whether to have Big Brother, in the form of the U.S. government, deciding how content should be moderated online — including with respect to constitutionally-protected content — or whether we would empower companies to take content enforcement action themselves, in support of their own service’s community standards, and permit them the freedom to address such content proactively. In this context, one can understand why the title of Section 509 of TA96 is “Online Family Empowerment” and the heading for Section 230 itself is, “Protection For Private Blocking And Screening Of Offensive Material.”
There was one final thing we did before wrapping up Title V that often is under-appreciated. As staff for the bipartisan leadership of the committees worked with legislative counsel to pull together the various provisions that would eventually all reside in Title V, we also took legislative note of the lingering arguments contending that the CDA was unconstitutional. With the concurrence of our bosses, we added late in the negotiating process an expedited judicial review. Essentially, the conferees added a provision (Section 561) that stipulated that a civil case brought challenging the constitutionality of any provision of Title V would go directly to a three-judge panel, and an appeal of that would go directly to the Supreme Court. This would mean that a determination of the constitutionality of the CDA would not languish in the courts for years and years, but that we could get a quick verdict on this vital question. And this is essentially what happened immediately after enactment. After becoming law on February 8, 1996, a challenge was immediately brought and a panel of Federal judges in the Third Circuit Court in Philadelphia blocked the CDA by June, with the Second Circuit joining it in a similar decision a month later. The Supreme Court upheld these decisions the following year in Reno v. American Civil Liberties Union, 521 U.S. 844. All the other provisions of Title V, including Section 230, remained untouched and in force.
A growing concern as we considered telecommunications reform efforts in the early 1990s was the creation or emergence of a “digital divide.” It is an issue that remains with us today. The COVID-19 quarantine and remote learning over the last year has highlighted the consequences of not fully connecting everyone in the nation, especially all of our youth.
In the early 90s, there was a desire to harness the awesome power of advanced, digital communications services to enhance education. My boss, Chairman Markey (D-MA), was concerned, however, that wealthy households would obtain computers and access to the information riches of the emerging “information superhighway” in ways that would naturally advantage their children educationally, while less wealthy households would fall behind. There was a risk that de facto electronic redlining in deploying new infrastructure and services would unfold, disadvantaging minority households. So we started to raise alarm bells about this. For example, on October 18, 1993, Chairman Markey gave remarks at the Computerland Summit, in which he highlighted the risk of a looming informational divide:
“We have a tremendous opportunity to seize new markets, create jobs, and, at the same time, develop a rich new realm of creative venues for entertainment and learning. But with this opportunity comes the potential for great danger. In our headlong pursuit of profit and growth, we could create an ‘information apartheid’ — a nation of information haves and have-nots….Already today, we see the broad outlines of the new trend toward information inequality. Some families are wired for cable; others are not. Some get Sports Channel or HBO; many do not. More importantly, some kids today can use online services at home to do research for a school project. Most kids, however, are lucky if they have access to a computer at school. Wealthy school districts connect to the Internet; most schools in America don’t even have phone jacks in the classroom.” (video at 31:52)
We also found a powerful ally. In August of 1993, one of the most memorable moments for me as a telecommunications policy staffer for Chairman Markey, including as his eventual lead staffer on TA96, was when he and I had lunch at the Willard Hotel in Washington with filmmaker/producer George Lucas of Star Wars fame. Mr. Lucas had founded The George Lucas Educational Foundation and was quite interested in educational technology issues. Over lunch, Mr. Lucas and Chairman Markey talked about their shared goal of ensuring that the upcoming effort to overhaul the nation’s telecommunications laws would include provisions to enhance education and equality of opportunity. They quickly agreed that every classroom and public library should be connected, and also discussed the benefits of including other community anchor institutions as well.
Foreshadowing an issue for the E-Rate that we are contending with today, Mr. Lucas also proposed that not only every K-12 school have access to the “information superhighway,” but that every student get it for free for educational purposes at home, too, perhaps by connecting kids at home through the school. Chairman Markey asked Mr. Lucas to testify, which he eventually did. (Mr. Lucas would later return to appear before the House committee again in June, 2008, as a follow-up a decade after implementation of the E-rate).
At the forefront of policy today for the E-rate is to find a solution to the so-called “homework gap.” What do we do for the millions of kids who lack Internet access at home when COVID-19 shutters schools and public libraries? In 1993, after the lunch Chairman Markey and I had with George Lucas, we started to explore the cost to do this. At the time I was advised that the cost was either unknowable or astronomical, but clearly it would be in the tens of billions of dollars range. The free-Internet-for-kids “at-home” provision was dropped due to cost concerns, but our proposal for connecting all K-12 schools and public libraries in the nation moved forward. Today we can query whether the cost of not providing the Internet at home is too high, as millions of schoolchildren suffer during COVID-19.
To probe the intentions of the industry and build support for a national plan, Chairman Markey tasked me in December of 1993 with drafting an oversight letter to the CEOs of the top 10 telephone companies and the top 10 cable companies in the nation, asking whether they would connect local K-12 schools to the “information superhighway” for free. Since we were actively working on draft legislation, it would be important to know what their corporate intentions and thoughts were about connecting such educational institutions at an affordable rate. The educational implications of the rise of digital technologies and the communications competition we intended to unleash were too great not to have a plan. When responses to this oversight inquiry returned in January 1994, only three of the 20 companies indicated they were willing to provide high speed telecommunications connections to K-12 schools, although how such connections would be paid for was left ambiguous. Clearly we needed a plan if we were going to address the looming digital divide in educational access in schools. So lead Rep. Markey counsel Gerry Waldron and I got to work drafting a plan. In addition to our goal of connecting schools and public libraries, we also sought to include a “telemedicine” element to the policy as well.
We developed a plan in time for marking up the legislation that Chairman Markey had negotiated with his good friend and Ranking Republican on the Subcommittee, Rep. Jack Fields (R-TX): the Markey-Fields bill (HR 3636) which now included requiring a Federal Communications Commission (FCC) proceeding to establish preferential rates for advanced telecommunications services to educational institutions, health care entities, and public libraries. The name “E-rate” (for “education rate”) was eventually coined by Rep. Markey to describe this regulated, preferential rate to K-12 schools and libraries. During House Telecommunications Subcommittee and Full Committee consideration of the bill, the E-rate provision was briefly expanded to include preferential rate access to community colleges and museums in addition to K-12 schools and public libraries. We had the support of the American Library Association, the National Educational Association, and many public interest groups. Consumer groups, however, were a bit wary about the potential impact on consumer residential phone bills, but basically understood why we wanted to move forward with this proposal as a matter of national priority. Eventually, the expansion in eligibility for community colleges & museums was pulled back by the time we got to the House floor, again due to cost concerns, and the final language therefore focused once again on providing access and support to K-12 schools and classrooms, public libraries, and health care institutions. This itself was quite ambitious at a time when most Americans had not even been on the Internet.
When we brought H.R. 3636 to the House floor for a vote on June 28, 1994, Chairman Markey noted the various provisions of the bill dealing with the telecommunications companies. He then raised the E-Rate provision and said, “I believe that there is perhaps no more important societal benefit to upgrading our Nation’s information infrastructure than uplifting the hopes, dreams, and aspirations of millions of schoolchildren through increased access to information in America’s elementary and secondary schools.” The bill passed. Members on both sides of the aisle hailed the collaborative, bipartisan result we had achieved on this significant piece of legislation, which had many moving parts and affected many industries. Chairman Markey also noted the strong endorsement for the legislation from Vice President Gore and members of the Clinton Administration, which we knew was due in no small part to growing interest in seeing our E-Rate provision become law.
Though the House bill died in the Senate in the fall of 1994, we had helped to put the principle of connecting K-12 school classrooms and public libraries on the national agenda. In short, we had made it politically integral to the ultimate passage of TA96.
By 1995, with the GOP now in control of Congress and held the proverbial gavel at all the congressional committees. In this new Congress, as opposed to what happened in 1993–94, the Senate side of the Hill would move telecommunications legislation forward first. Once again, as I explain in Part I, most of the key telecommunications issues had been debated ad nauseam over the prior few years and staff were well-acquainted with each other and the substance and were ready to go. Most of the policy questions did not break along partisan, party lines but instead along regional or philosophical lines. Media ownership and cable rate deregulation were on the table in the Senate in the same way they were in the House and this provided fodder for new controversy.
A group of staff for key Senators had been meeting over a number of weeks, focused on the needs of rural America as part of the telecommunications law overhaul. This group of staffers would name themselves informally the “farm team.” As they focused on the general availability and affordability of phone service and cable service in rural America, they began to zero in on the question of connecting schools and libraries to new enhanced telecommunications services, as the Markey-Fields bill had done in the previous session of Congress. The farm team was quite focused on these universal service questions. Senate staffers Greg Rohde (Sen. Byron Dorgan (D-ND)), Carol Ann Bischoff (Sen. Bob Kerrey (D-NE)), Chris McLean (Sen. Jim Exon (D-NE)), Cheryl Bruner (Sen. Jay Rockefeller (D-WV)), and a few others led the Senate discussions on rural issues on the Democratic side on the telecommunications bill.
Sen. Hollings, the lead Democrat on the Senate Commerce Committee, also had a keen interest in ensuring that rural America was protected and would benefit from the Telecommunications Act legislation, given the largely rural nature of his state. One of his counsels, Kevin Joseph, had learned that over on the Republican side of the aisle, Senator Olympia Snowe (R-ME) had a strong interest in connecting schools and libraries. However, the Republicans were not including Sen. Snowe’s staff in their internal deliberations prior to the Senate Commerce Committee markup. Meanwhile, on the Democratic side, Senator Rockefeller was drafting his own rural telemedicine amendment. The night before the Senate markup, Joseph suggested to Sen. Rockefeller’s staff, Cheryl Bruner, and Senator Snowe’s staff, Angela Goodhart, that they combine their two amendments to see if they could come together on a joint, bipartisan proposal for connecting schools, libraries, and health care institutions. Adding other “farm team” staffers, they developed language to bring forward as an amendment at the Senate Commerce Committee markup.
Senator Snowe offered the amendment in the Committee markup. Surprisingly, in contrast to the experience we had just had a few months earlier in the House when passing the E-Rate provision in the House as part of the Markey-Fields bill, the idea of creating a new program to connect schools and libraries engendered Republican opposition on the Senate Commerce Committee. Sen. John McCain (R-AZ) was opposed to the proposal, as were other GOP members, including Chairman Pressler (R-SD), Senator Trent Lott (R-MS), and Senator Bob Dole (R-KS). In general, they were a bit wary of the cost of the program and some felt raising the funds through an extra fee on consumer telephone bills was effectively a new tax, and they wanted to scale it back.
The Senate Commerce Committee at the time, due to the fact that the margin between Republicans and Democrats in the full Senate was so close, was almost evenly split by party, with 10 Republicans and nine Democrats on the panel. By combining the separate Snowe and Rockefeller amendments together, Senator Snowe, with support from all the Democrats, could prevail by a single vote. At the mark-up, Republicans beseeched Senator Snowe to withdraw her amendment, stipulating that if she did so they would work with her to come up with a different proposal that could win over more Republicans on the Senate floor. Her staff came over to Kevin Joseph at the markup, asking for advice and input as to what Sen. Snowe should do. He replied that if Sen. Snowe withdrew the amendment in the mark-up they’d never see it again in its present form and that this was their moment of greatest strength. Sen. Snowe stuck to her guns and insisted on a vote and it passed 10–9. This was the only amendment adopted on a 10–9 vote with one Republican Senator joining all nine Democrats.
Meanwhile, Larry Irving, a former Markey mass media counsel who was now head of the National Telecommunications and Information Administration (NTIA) at the Commerce Department was developing the trailblazing “Falling through the Net” reports, the first of which appeared in July 1995. These reports highlighted the growing chasm in our society on access to the Internet and underscored strongly the need for policies to mitigate this deficiency. Larry’s efforts at NTIA helped create greater public awareness on the issue and bolstered our hand on Capitol Hill as Rep. Markey and others pushed for Congress to act and to ensure that, amidst the clash of tech industry titans in the deliberations on the telecommunications bill, we derived the public interest benefit of connecting schools and libraries as one tool in addressing inequality.
In the House-Senate conference, Senators Snowe, Dorgan, and Kerrey weren’t conferees, but other “farm team” members were, and there was growing sense that the E-Rate needed to be in the final bill to gain Administration support. Since a Presidential veto had been threatened earlier in the process, largely because of the media ownership and cable price deregulation provisions, the situation was quite fluid and every compromise was fragile until we could file the conference report and put it to bed. In addition to dealing with the controversial provisions around media ownership and cable rate deregulation, there was a sense that including several provisions — the E-Rate, the V-Chip/TV ratings, and some others — would help merit a presidential signature. In general, the new Republican majority was carefully navigating a route toward passage and trying to figure out how many “sweeteners” to put in for the Democrats, in order to maintain bipartisan buy-in for the overall bill. Indeed, on the Republican side, House Commerce Committee Chairman Tom Bliley was instrumental in helping to keep the provision in the bill and told Rep. Markey at one point during the conference, only half-jokingly, “Ed, your school program is going to be around a long time after you and I are both gone, since we’re not too good about getting rid of programs.”
We also knew that once we had succeeded in getting this behemoth law over the goal line, the FCC would be tasked with significant work to implement its many provisions through rule-makings, including the E-Rate. The Chairman of the FCC, Reed Hundt, was a champion for the E-Rate. He had vocalized his strong support for connecting schools over the years and for our legislative efforts as we developed our E-Rate proposal and fought to get it enacted on Capitol Hill.
Today, the E-Rate is the largest education technology program of the Federal government and it isn’t even in the Department of Education, but rather over at the FCC. Over the past 25 years, the E-Rate program has provided over $50 billion in subsidized service to schools and libraries across the country. On its 25th anniversary, millions of schoolkids and citizens can be grateful for the E-Rate’s existence even as we look to ways to build upon it and improve it.
Yes, it’s true that the packet-switched computer network had originally been funded by the U.S. government dating back to the 1960s. And it’s also the case that the migration from historically analog to digital technologies accelerated substantially in the 1980s. And yes, the Federal Communications Commission (FCC) bowed to congressional pressure in the late 1980s and declined to impose per minute access charges on emerging information service providers; regulatory forbearance that spared saddling the nascent information industry (e.g., CompuServe, AmericaOnline, Prodigy) with per minute access fees and allowing for flat rate pricing.
These were all certainly preconditions necessary for momentous change.
However, it wasn’t until a series of laws was enacted in the 1990s that the Internet really took off. The laws put on the books during that decade changed America, and changed the world.
And the law that ushered in the greatest change was the landmark Telecommunications Act of 1996, Public Law 104–104 (TA96). In February of 1996, TA96 passed in both the U.S. House of Representatives and U.S. Senate by overwhelming margins, despite being one of the most heavily lobbied pieces of legislation Congress had yet seen, with the future of some of the country’s largest industries in play and billions of dollars in market share at stake. The most fundamental change mandated by the 1996 Act was to de-monopolize local telecommunications markets and open them up to competition. The law broke down monopoly silos of local and long distance telephone service, cable service, and unleashed massive investment in digital technologies and broadband deployment. It connected America’s K-12 schools and public libraries to the Internet. It also contained language on the liability of online intermediaries in “Section 230.”
I worked on Capitol Hill for Senator (then-Representative) Ed Markey (D-MA) as his legislative staffer during the drafting and passage of TA96. Passing TA96 demanded incredibly long hours and intense work but it was also a ton of fun to work on and the multiyear process that led to its passage created many lasting friendships. Since TA96 will mark its 25th anniversary of enactment on February 8, 2021, I thought I would share some reflections on the law from a former Democratic House staffer’s perspective, as well as a bit of history on two of its key provisions that today are often in the news, specifically the “E-rate” provision and “Section 230.”
Prior to diving into TA96 in greater detail, I think it is helpful to briefly take into context the decade that was 1990s to understand its dramatic changes in tech public policy and tech legislation. Here’s a brief chronology of some interesting and impactful milestones:
The World Wide Web was invented by Sir Tim Berners-Lee in 1990 and shared with the public in August of 1991.
Opening the Internet to the Public. Congress responds to interest in allowing greater commercial use of the Internet by passing the Scientific and Advanced Technology Act of 1992. This law contained language that amended the “acceptable use policy” of the National Science Foundation (NSF) for the NSFnet. Essentially, the previous NSF policy previously permitted the packet-switched NSFnet to carry only research and educationally related material. The amended language authorized commercially-oriented traffic on the NSFnet. The NSFnet transitioned to the National Research and Education Network (NREN), which in turn transitioned into what we today call the Internet.
Cable competition. In the only veto override defeat of President George H.W. Bush (he was 34–1), Congress overrode the President’s veto to pass the Cable Television Consumer Protection and Competition Act of 1992 (Cable Act of ’92), sponsored by Senator Jack Danforth (R-MO) and Representative Ed Markey (D-MA). This law helped to create the digital satellite TV industry. With its digital quality picture and price competition to cable TV, the new 18” digital satellite services induced the cable industry to also “go digital.” An important consequence of the Cable Act of ’92 was that the cable industry upgraded its networks to digital technology. They did this not only to offer improved picture quality and more video channels to consumers, but also to offer something competitively that the satellite industry did not: access to the Internet. The cable industry achieved this by investing in and deploying cable modem technology.
Antitrust. The U.S. Federal Trade Commission (FTC) opens an inquiry into whether Microsoft is abusing its monopoly in the PC operating system market. The U.S. Department of Justice (DoJ) subsequently opens its own investigation, provoking an almost decade-long antitrust battle.
Wireless revolution unleashed. In the early 1990s, there were only 2 wireless providers in each geographic market. Their service was expensive, few people subscribed, and their technology was analog. Congress sparks the mobile wireless revolution with legislative language contained in the Omnibus Budget Reconciliation Act of 1993 (OBRA-93). These statutory provisions freed up airwave frequencies for new digital mobile wireless services by taking them from the Pentagon and reallocating them to the FCC. The legislation also authorized the FCC to license these frequencies through auctions, which is why this provision passed as part of a budget act. The introduction of a 3rd, 4th, and 5th wireless operator in most geographic markets across the U.S. dramatically lowered prices and consumer adoption skyrocketed. This new competition also induced the two incumbent cellular operators in each market to shift from analog to digital technology as well.
First major telecomm overhaul passes the House almost unanimously, but stalls in the Senate. The U.S. House of Representatives passes major telecomm legislation — the combined efforts contained in H.R. 3626 (Brooks-Dingell) & H.R. 3636 (Markey-Fields). This telecomm law re-write, however, dies in the U.S. Senate in the autumn of 1994. While this first significant legislative attempt fails to achieve enactment, key provisions developed and agreed upon in bipartisan fashion as part of the House legislation help set the stage for success in the subsequent Congress.
Law Enforcement. Congress passed the Communications Assistance for Law Enforcement Act (CALEA). This law is intended to assist the ability of law enforcement entities to conduct lawful wiretaps as telecomm networks evolved to digital technology.
Netscape IPO occurs.
Microsoft releases Internet Explorer 2.0
The Telecommunications Act of 1996 is passed, unleashing a “digital free-for-all.” The bill includes so-called “Section 230” as well as the E-Rate provision, which seeks to link K-12 schools and public libraries to the Internet.
Mark Zuckerberg is 11 years old.
Privatizing U.S. government control of the Internet. The Clinton Administration proposes a multi-stakeholder approach to Internet governance, including privatizing administration of the Domain Name System, to increase competition and facilitate international participation in its management. This leads directly to the creation of the Internet Corporation for Assigned Names and Numbers (ICANN) the following year.
Encryption policy victory — During the latter part of the first “Crypto Wars,” the U.S. House Energy & Commerce Committee defeated an effort strongly lobbied for by the FBI to require U.S. tech products to include an automatic decoding feature for law enforcement officials to gain immediate access to encrypted data. The bipartisan Markey-White amendment to the proposed SAFE Act prevails in Committee, safeguarding rights to unbreakable encryption, and effectively cratering the FBI’s effort. Both the FBI Director and Bill Gates called Committee Members to weigh in prior to the vote. This is the last time a major congressional attempt to regulate encryption occurred.
Steve Jobs returns as CEO to Apple.
The Digital Millennium Copyright Act (DMCA) is enacted, implementing commitments contained in treaties of the World Intellectual Property Organization. This law largely governs how global online companies approach copyright issues on the Internet today.
The Child Online Privacy Protection Act (COPPA) was enacted. Cosponsored by Sen. Richard Bryan (D-NV) and Rep. Ed Markey (D-MA), this is the first significant privacy legislation targeting the Internet. Today, it continues to govern online privacy for kids under 13 years of age.
U.S. DoJ and 21 State AGs sue Microsoft for antitrust violations. DoJ case is eventually settled with Microsoft in 2001.
Jeff Bezos named Time Person of the Year.
In March, the “dot com bubble” bursts on Wall Street.
The Act before the Act — Legislating in 1993–94
In order to understand the Telecommunications Act of 1996, it is indispensable to appreciate what occurred in the previous Congress, legislative activity which might have resulted in the “Telecomm Act of 1994” had the effort not stalled in the Senate in the fall of that year.
By the 1993–94 timeframe, it was clear that many consumer and public interest activists, telecommunications companies, nascent Internet entrepreneurs, and key policymakers in Congress discerned the immense opportunities for the country that could accrue from sparking competition in communications services by no longer protecting monopolies from such competition. By the dawn of the 1990s, technological innovations — such as the rise of digital technologies — enhanced the ability of policymakers to consider moving forward with the idea of cracking open monopoly telecommunications markets to competition. Until Congress acted, technological innovation would sit on the shelf and billions of dollars in potential investment would sit on the sidelines because monopoly provision of telecommunications services effectively held back the future. The status quo at the time was that cable, local telephone, long distance telephone, broadcast radio & TV, and emerging mobile wireless services were all in separate silos from a competitive, legal, and regulatory standpoint. As a result, many companies felt little incentive or pressure to invest in or deploy new services to consumers. When TA96 passed, residential consumers did not have access to broadband service in the U.S. Although the technology existed, companies simply didn’t offer it. It was thought that if Congress took action to pry open these distinct markets to competition, innovation would finally come off the shelves and competition would compel increased investment and unleash the deployment of new infrastructure and services.
In the House Energy & Commerce Committee Subcommittee on Telecommunications and Finance, we convened a long series of hearings over several Congressional sessions on these interrelated topics. There were also countless staff hours spent developing early legislative drafts and debating policy proposals, as well as Member-to-Member negotiations on key provisions. All this work preceded the public committee markups and floor consideration of the legislative measures in the House and Senate. In 1993, Chairman Markey outlined his vision for a “grand bargain” in an important speech to the U.S. Telephone Association, in which Congress would break down the legal and regulatory barriers to let the local telephone industry into the cable TV and long distance business, but in return they would face new competition in their own local telephone monopoly. He shared a similar message with the cable and long distance industries: the good news is that Congress will eliminate laws that keep you out of adjacent industries; the price for that, however, is that you will face new competition. That was the grand bargain at the heart of our efforts: core telecommunications industries would have both new opportunities and new competitors.
The House in 1993–94 pushed through two bills (H.R. 3626 and H.R. 3636) that embodied this grand bargain and addressed several key issues, including items stemming directly from the breakup of Ma Bell (AT&T) in 1984. The first bill (HR 3626) dealt with issues raised by the court-ordered consent decree that kept the so-called “Baby Bells” — which were created by the AT&T breakup — from engaging in three lines of business: information services, manufacturing, and long distance service. House Judiciary Committee Chairman Brooks (D-TX) and Energy & Commerce Committee Chairman John Dingell (D-MI) were the main sponsors of this measure. This was a separate legislative vehicle from its companion bill because given the technical parliamentary rules at the time, jurisdiction was shared on these antitrust and interstate commerce topics between the House Judiciary and Commerce Committees.
The companion bill (H.R. 3636) was solely within the House Energy & Commerce Committee’s jurisdiction. Sponsored by Chairman Markey and Ranking Member Jack Fields (R-TX), this bipartisan bill broke up the local phone monopoly, allowed the local phone industry into the cable TV industry and vice versa, and contained the provision that would come to be known as the “E-rate,” a term coined by Chairman Markey, and designed to link schools and libraries to the “information superhighway.” At the staff level, Gerry Waldron was Chairman Markey’s lead counsel and was masterful at managing Chairman Markey’s bill and policy interests, and, together, we worked closely with David Leach, who was on point for the Full Committee Chairman, Mr. Dingell. Our Republican staff counterparts, Mike Regan and Cathy Reid Nolan, were strong partners and good colleagues; the legislative effort would not have been successful without their input, insights, and commitment to finding compromises that our Members could agree upon and that also reflected sound policy. The working relationship that we developed in the 1993–94 timeframe would help sustain us a bit through the turbulent times that would arise on certain issues during the subsequent 104th Congress, when Democratic and Republican roles were reversed.
The early discussions between Chairman Markey & Rep. Fields in 1993–94 required them to bridge an early philosophical question: was the goal to deregulate or to de-monopolize telecommunications markets? Chairman Markey was concerned that premature deregulation would lead to (re)consolidation in local markets and Rep. Fields generally believed that the regulations themselves were holding back industry players and stifling investment. Therefore, two key items that Chairman Markey considered essential before committing to move forward with legislation at all were 1) ensuring that de-monopolization of markets and the establishment of effective competition preceded any deregulation of the companies, and 2) securing an agreement that the bill would include an “anti buy-out” provision. This latter provision would prohibit a telephone company, newly-freed to compete in the video business, from buying the cable operator in its local market (and vice versa). A real concern was that the cable and phone industries would simply buy each other out in-market in lieu of building or upgrading their own infrastructure and competing head-to-head, leaving consumers with one giant monopoly for both phone and video services. To address this, Representatives Markey and Fields embraced creating a “two-wire world” (at a minimum) where the wires going down your street would have to compete against each other. Agreement on this became a prerequisite for companies to engage in other market opportunities, and once competition took hold, for deregulation to occur. Indeed, when the GOP subsequently came to power in 1995–96, Republicans proposed and moved forward with additional deregulatory proposals for other media ownership rules, but they did not discard this early Markey-Fields agreement prohibiting in-market telco-cable combinations.
The core of the Markey-Fields bill opened monopoly telephone and cable markets to new competition. But the bill also contained other provisions that would foreshadow issues that would arise in the Internet era, as well as key provisions that were repeated in the subsequently successful TA96. For instance,
its policy section included establishing as policy for the United States, among other goals, “to make available, so far as possible, to all the people of the United States, regardless of location or disability, a switched, broadband telecommunications network capable of enabling users to originate and receive affordable high quality voice, data, graphics, and video telecommunications services.” (This statement of broadband policy updated the words written in 1934 during the New Deal and ensured basic telephone service to all);
reflecting our recognition that some of the “information” that would travel on the “information superhighway” would constitute “speech,” the bill contained a requirement for an inquiry on civic participation, requiring the FCC, “in consultation with the National Telecommunications and Information Administration, [to] initiate an inquiry into policies that will enhance civic participation through the Internet”;
in addition to the E-Rate provision, it overhauled universal service programs generally for the post-monopoly era, seeking to ensure affordable access to telecommunications services for low-income and rural Americans; and,
after working with the Electronic Frontier Foundation, the House-passed bill also included an “Open Platform” provision, which sought to have digital telecommunications services made available in the residential consumer market.
When we brought the bills to the House floor on June 28, 1994, the final Representative to speak on the Republican side of the aisle on our bill was the then-Minority Leader, Newt Gingrich (R-GA). I think it is worth quoting some of his remarks here, in part because they are so evocative of a different time in our politics, and also a reflection of the way in which we had approached legislating:
“Let me say first of all that I think in this Congress this is one of the best days for the legislative process, and I think that people should realize that the gentleman form Michigan [Mr. Dingell] and his colleague, the gentleman from California [Mr. Moorhead], the gentleman from Texas [Mr. Brooks] and his ranking member, the gentleman from New York [Mr. Fish], and the gentleman from Massachusetts [Mr. Markey] and his ranking member, the gentleman from Texas [Mr. Fields], as a team developed two bills, H.R. 3626 and H.R. 3636, which are both landmarks in terms of the future of American jobs and the future of American technology, and they are also, I think, a tremendous case study in good legislative process that is genuinely bipartisan. Here are very sophisticated, very complex and very technical issues in which Members of both parties subordinated their partisanship to the effort to understand what the marketplace and the technology made possible and to try to craft truly historic legislation. I think it is fair to say that this is, in the case of H.R. 3636, a dramatic break from 60 years. This is the new benchmark, and it was done the right way. It was done by constant consultation, by staffs working together and by dealing with some very difficult issues by very persistent negotiations.”
After Minority Leader Gingrich concluded with this glowing praise on our bill and the process, Chairman Markey turned to Gerry Waldron and me on the Floor and in mock seriousness, quietly asked, “Gerry, what on earth is in this bill?” We had a brief laugh amongst ourselves before closing out the debate and calling for a vote.
The two bills passed the House in June 1994 by a vote of 423–4, but their demise came quickly. Over in the Senate, Senator Fritz Hollings (D-SC) was leading the effort to move its version forward but ran into a roadblock in the form of Senator Bob Dole (R-KS), the Minority Leader. Senator Dole was threatening filibusters on almost everything in the fall of 1994. The Senate telecommunications bill became a casualty of that tactic. Senator Dole’s calculation, which proved to be correct, was that the Senate would switch control in the 1994 elections that coming November, giving Republicans the chance to better control and shape the legislative agenda in the following congressional session. Less anticipated, at least until much closer to Election Day, was that the House could also flip to Republican control.
The Telecomm Act of 1996
After the 1994 mid-term election, the Republicans were indeed newly in charge of the House of Representatives after a 40-year hiatus and controlled the Senate as well. This meant control of the agenda and, importantly, control of committee chairmanships. In the House, the new Commerce Committee Chairman was Rep. Tom Bliley (R-VA), who took the gavel from Rep. Dingell, while Rep. Fields took over the Subcommittee Chairmanship from Rep. Markey. It was reflective of the greater bipartisanship of that era that these elected officials not only managed to legislate together but were also personally friendly and respected each other. Cooperation and open channels of communication occurred across party lines and also across Capitol Hill to the other chamber. Shortly after the November 1994 election, for example, Senator Larry Pressler (R-SD), called Rep. Markey to invite him to lunch in the Senate dining room. He wanted to discuss with Rep. Markey how he was able to get his bill through the House in the previous session of Congress, what the key compromises were, and any advice he could offer, since Senator Pressler was now going to become the new Senate Commerce Committee Chairman in the new Congress. This approach — more non-partisan than bipartisan — was also true at the staff level, where genuine friendships were made across party and philosophical divides during the multi-year odyssey of revamping our nation’s laws for the Internet age.
Also at the staff level, getting thrown into the minority meant reduced budgets and reduced staffing. Rep. Markey’s Subcommittee staff were out the door, except for three of us who reverted to work out of Rep. Markey’s personal office. I was now staffing all the telecommunications issues, with our Chief of Staff David Moulton on point for the television ratings and V-Chip issue. I remember feeling a strong obligation to do my best work given how many of my talented and committed colleagues had just been forced to leave and not wanting to let them down on these issues in the new Congress.
Having passed the major telecomm measure the previous year by an overwhelming, bipartisan margin through the House, the essential core, high-level policy decisions had been made and key compromises agreed upon by the Committee leadership. The GOP leadership, however, decided to augment the previous House-passed bill by adding two new sections to the legislation in 1995. Elections have consequences. The first addition was a proposal for immediate cable price deregulation (essentially undoing the price controls enacted as part of the Cable Act of ’92). The second addition was media ownership deregulation. Both of these provisions added new controversies to the legislative endeavor, both substantively and politically, and it took the Members until the House-Senate conference in the late fall of 1995 to strike the key compromises on those provisions and reach agreement.
As the bill moved through its House consideration, and especially during the subsequent House-Senate conference, I conferred routinely with two former Subcommittee colleagues in the Clinton-Gore Administration, Larry Irving, who led the National Telecommunications and Information Administration (NTIA) as Assistant Secretary of Commerce, and Kristan Van Hook, who was his legislative affairs point person. We also worked quite closely with Vice President Gore’s office. Gore had taken a keen interest in these issues from his days as a legislator in the House and Senate, and Rep. Markey and he had served together and knew each other well. Gore’s top aide, Greg Simon, was heavily involved in the negotiations and acted as a sounding-board for us, as did Steve Ricchetti, in White House Legislative Affairs.
The House Telecommunications Subcommittee held only three days of legislative hearings at the beginning of May 1995. I was personally delighted at this short-circuiting of the process, having sat through dozens of hearings over the last several years on these issues. At the staff level I think we all felt, on a bipartisan basis, that three days of hearings were sufficient, given all the thinking and decision-making that had gone into the Telecommunications Act of 1994, which acted as practical matter as the first draft of the bill we worked on in 1995. A Subcommittee markup in mid-May was followed by two days of Full Committee markup of the bill. Dozens of amendments were offered amidst lingering controversies over cable and media ownership deregulation and a fight over requiring the television industry to rate its programming and enable the V-chip technology for parents who wanted to use it. Industries lobbied especially on the multiple provisions of the bill affecting the long distance, local phone, and cable industries. The long distance entry provisions pitted the then seven “Baby Bell” companies against the long distance industry, which was dominated by AT&T, MCI, and Sprint. These provisions garnered the most lobbying attention due to the amount of money and market share at stake, and, as a result, many people believed that the “long distance” provisions were the most important provisions of the bill. From a policy standpoint, however, this wasn’t the case. For example, it was clear to Rep. Markey at the time, as he often stated to us, that the provisions breaking up the local monopolies to ignite cable-telco competition, and the E-Rate provision, would have more of an impact on the nation. Post-enactment, we could add Section 230 to the list of provisions that would be considered far more consequential than the long distance provisions, which of course largely went out of existence as an industry segment years ago.
The Senate went to the floor with its bill (S. 652) and considered a slew of amendments over several days in June 1995, and the House followed by taking its own version (H.R. 1555) to the House floor on August 4, 1995. Prior to the House floor consideration, Vice President Gore travelled to Capitol Hill to address the Democratic Caucus, to whip up support for our efforts to push back on the media ownership deregulation. The perceived excesses of those provisions were provoking talk of a veto at that point.
Notable amendments adopted during House floor consideration were the adoption of the Cox-Wyden amendment (i.e., “Section 230”) and two unexpected, but important victories on Markey amendments. The first successful Markey amendment scaled back aspects of the media ownership deregulation in a defeat for the national television networks, and the other stunned the broadcasting industry because it was agreed to when Markey utilized a “motion to recommit,” a rarely successful parliamentary maneuver, to prevail. This second winning amendment included requirements for a television rating system and the so-called “V-Chip,” a provision the Administration was eager to see added to the bill as well. On the Senate side, the Communications Decency Act amendment regulating pornography online from Senator James Exon (D-NE) was adopted with a strong show of support.
The TA96 House-Senate Conference Committee
With both bills now passed their respective chambers by the August congressional recess, a conference committee was organized to reconcile the differences between the two versions of the bill and finalize the text. A notable thing about these House-Senate conference committees, which are convened to iron out differences between Senate- and House-passed bills, is that they used to be much more frequent than they are today. Managing a House-Senate conference committee process is now almost a lost art for both Members and staff. For example, during the 104th Congress (1995–1996) — when the TA96 conference committee met — there were 67 conference reports produced. This is in stark contrast to the paltry few in more recent congressional sessions; for example, only three conference reports produced in the 113th Congress (See: https://en.wikipedia.org/wiki/United_States_congressional_conference_committee).
My biggest recollection of the House-Senate conference committee on TA96 was the fact that we met almost every single day from Labor Day until Christmas, including almost every Saturday and Sunday. I probably ate more late-night pizza in that four-month period than I have eaten cumulatively ever since. The staff for the bipartisan leadership of the House and Senate Commerce Committees started meeting informally right after Labor Day in 1995 to discuss the upcoming conference and to begin the process of strategizing how to bring the bill home, despite lingering controversies and heavy corporate lobbying both for and against some key provisions. Although the formal naming of Member conferees had yet to occur, we all knew regardless of when the House Motion was made to request a conference with the Senate, that our bosses, as committee leadership, were guaranteed to be named as conferees. So, at the committee staff level, we didn’t wait for formalities; we started talking right after Labor Day in order to get ready for the conference and to outline potential areas of compromise. On Oct 12th and 13th, each chamber officially named Member conferees. The Senate named 11 conferees (Senators Pressler; Ted Stevens (R-AK); John McCain (R-AZ); Conrad Burns (R-MT); Slade Gorton (R-WA); Trent Lott (R-MS); Hollings; Daniel Inouye (D-HI); Wendell Ford (D-KY); Jim Exon (D-NE); and Jay Rockefeller (D-WV)). The House side included conferees from the Commerce Committee authorized to negotiate and vote on the entire bill. These Members were Representatives Bliley, Dingell, Fields, Markey, Mike Oxley (R-OH), Rick Boucher (D-VA), Anna Eshoo (D-CA), Bobby Rush (D-IL), and Rick White (R-WA). But the House also included additional conferees, many of whom were only conferees for specific provisions of the legislation, including Members from the Judiciary Committee, and this proved a little unwieldy at times, compared to the smaller Senate cohort.
The staff were natural targets for lobbying during this period and the interjections in our lives were intense because so much was on the line. The typical day would include meeting on the staff level from 10 a.m. to perhaps 5 or 6 p.m. and then checking in with our bosses. Once that was done we had to deal with returning dozens of phone calls to “downtown” — the key companies, trade associations, and consumer and public interest groups. This usually took us well into the evening. And, in between these moments, we had to find time to review the latest drafts of bill text or new suggestions for compromise language, as well as figure out the politics of how to achieve our legislative objectives.
There is enough content to fill a book about the four-month House-Senate staff conference process that eventually resulted in successful enactment of TA96, but the short version of the proceedings is as follows. One of the earliest issues that might have remained controversial was actually resolved on the first day of the full staff conference. That is, once all conferees were named in mid-October and the combined staff for all conferees met for the first time, we all agreed to incorporate the television ratings system and the V-Chip provision into the bill. Beyond the substance of what a television ratings system might mean for parents across the country, this was an important political sign. What it signaled to us early in the process was that the GOP wasn’t going to continue to fight this proposal any longer and had thrown in the towel. They knew the Clinton-Gore Administration strongly supported its inclusion, and this was a strong indication they intended to play ball in hopes of finalizing a bill that would merit a presidential signature. The National Association of Broadcasters had lost this battle and would have to eat the provision despite fierce lobbying.
The Members themselves met shortly thereafter in the first of three public meetings (October 25, December 6, and December 12) of the conference committee. On October 25, 1995, all the Member conferees gathered for their first public meeting, which was mostly full of speeches from Senators and House members laying out their positions, and expressing hope that their positions on the most important issues would prevail. What followed was a slog at the staff level. The stakes were high but, amidst the incessant calls, lobbying, legislative drafting and negotiations, we knew we were working on something sweeping in scope and historic.
A presidential veto had been threatened — a threat delivered by Vice President Gore — and this provided some leverage to those Members seeking to rein in the media deregulation provisions. Senator Hollings, in particular, was instrumental in navigating these areas of disagreement, holding the line on key issues, and helping to hammer out the final deal with the top Member conferees. At the end of the day, the bipartisan leadership of the committees came together to compromise on the final outstanding, contentious issues and sought to put the final language to bed.
Certainly some companies and industries were not going to suspend lobbying. And not all rank-and-file Members were happy with every compromise the conferees struck. Current events could also derail the emerging compromise. For instance, in December, rumors and some press reports about two Baby Bells merging (NYNEX and Bell Atlantic) raised concerns about consolidation and how antitrust officials would treat such large horizontal combinations. At the staff committee leadership level, we understood well that, until the ink was dry, corporate entities and several Members would try to influence the outcome of key provisions, including unravelling already agreed-upon compromises. From a parliamentary standpoint, the ink being dry doesn’t occur until a “conference report” is filed in both House and Senate, locking in the language for final consideration of the bill in each chamber. So we were eager at this point to get to the filing of the conference report.
Closure came when final drafting edits were submitted and reviewed. Indispensable to the work of the bipartisan staff during this entire process, was the care and attention — and patience — of our legislative counsel, Steve Cope, who had been in the room with us for the many days and months of drafting, and who now put the finishing touches on the final conference report. Once the conference report was cleared on both sides of the aisle of the Committee leadership, it was then sent around to Member conferees for their signatures. Once the signatures were secured, we moved quickly. The conference report was filed in the House and Senate on January 31, 1996 and the House moved swiftly toward final passage on February 1st, approving TA96 by a whopping 414–16. The Senate acted the same day, approving it 91–5.
At long last, after over four years of work, the bill moved on to the President.
The Signing Ceremony
The signing ceremony for TA96 was unique. Instead of taking place at the White House, it was held in the beautiful, circular Main Reading Room of the Library of Congress. Never before had a bill signing occurred at the Library. It is one of the most beautiful rooms in Washington, D.C., in my opinion and conveys a majesty that was well-suited for the occasion. One reason the ceremony was held there was because it was going to be a celebration of a significant legislative achievement. Members of Congress, Administration officials, as well as representatives of trade associations, key industry players, and civil society, all wanted to be part of the historic moment and the White House wanted to accommodate them. A White House Rose Garden signing ceremony would have allowed for a large crowd on the lawn, but it would likely have been too cold for that in early February. The other reason was a metaphor — we were going to unleash a digital revolution that would, in words used often by Vice President Gore, empower a girl in Carthage, Tennessee to use the information superhighway to access the wealth of information in the Library of Congress. I also thought it fitting that the President was coming to Congress, since we had been working on these issues for almost a decade in a bipartisan way, and, with vital support from the Clinton-Gore Administration, Congress had finally completed the long journey.
A vivid memory for me is the morning of the bill signing ceremony when, after walking from the Rayburn House Office Building over to the Library of Congress, Rep. Markey recognized a Secret Service agent from Massachusetts as we were entering the Main Reading Room. Markey asked the agent where the President would depart the signing ceremony and the agent indicated a particular door off the rotunda of the ornate Main Reading Room Library. Rep. Markey suggested to me that we should get a picture with the President and Vice President after the ceremony and that I should round up current and former staffers of his and meet him after the ceremony by the exit door the agent had indicated. Rep. Markey then went and joined the other key framers of TA96 in the front row while I got word around to the current and former staffers I could find before the ceremony commenced. I managed to coordinate with David Moulton, Rep. Markey’s Chief of Staff, as well as former Markey staffers Larry Irving, who was then Assistant Secretary of Commerce, Kristan Van Hook, who was a deputy to Larry running his legislative affairs operation, and Kevin Joseph, who had worked for Rep. Markey previously but worked for Senator Hollings during consideration of TA96.
The ceremony itself included many speeches. The Library of Congress is congressional turf, allowing Members to ensure their robust participation in the ceremony. There was also some levity with a skit from Lily Tomlin. She had created a character named “Ernestine” — a Ma Bell operator — and Tomlin reprised this role in an interview on screen with VP Gore (video at 10:00).
After the ceremony concluded, the Markey crew rendezvoused at the designated exit and Rep. Markey eventually made his way over to us. The Secret Service at that point didn’t want us blocking the doorway exit but Rep. Markey explained that we simply desired a picture with POTUS and VPOTUS before they headed out. The agent acquiesced, directing us to go through the door to wait in the library stacks off the Main Reading Room rotunda. While we waited for the President and Vice President there, Rep. Markey shared with us that when the ceremony ended the President went down the line in the first row to shake hands and congratulate each of the Member authors of the newly-minted Act and to give each of them a presidential signing pen. A President typically bestows upon bill authors the many pens used to sign a bill into law. Rep. Markey, however, received two pens because of his leadership. In addition to the normal signing, TA96 was also symbolically signed digitally on a screen and sent out over the Internet. President Clinton handed the digital pen with which he signed the electronic version of TA96 to Rep. Markey, saying, “This is your bill, Ed. Hillary and I believe you should have this.” (One can see the moment when President Clinton hands Rep. Markey the historic “digital” signing pen at 1:10:40 in this video).
We waited for several minutes in the library stacks for President Clinton and Vice President Gore to exit the Rotunda and I was beginning to think that perhaps they were leaving another way, when Secret Service agents came through, quickly followed by President Clinton and Vice President Gore. Rep. Markey stopped them and said to them, pointing at us, “these are some of the key staffers who helped negotiate and write this new law,” and requested a group picture. President Clinton readily agreed and we were all congratulating each other on our legislative accomplishment when an official White House photographer spoke up and simply directed us to turn around. When everyone did so, I found myself right in the middle of the photo. Rep. Markey and President Clinton held the digital signing pen jointly to commemorate the moment, the photo was taken, and then everyone left.
In Part II and Part III, I’ll share some reflections and legislative history on two of TA96’s key provisions that are much relevant today and often in the news — the E-rate and Section 230.