The 1990s were the decade that made the Internet.
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.
- Amazon founded.
- Yahoo! founded.
- Netscape IPO occurs.
- Microsoft releases Internet Explorer 2.0
- eBay founded.
- 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.
- Netflix founded.
- 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.
- Google incorporated.
- 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.
- Blogger launched.
- Napster founded.
- 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.