STEPHEN N. BROWN
Sen. Paul Wellstone (D-MN) recently described the congressional telecommunications reform bills as the "most heavily lobbied legislation" he has ever seen. The senator`s observation is right on the money. According to Common Cause, a non-profit lobbying group that backs campaign finance reform, the telecommunications sector gave nearly $40 million to legislators during the past decade. AT&T, which gave $6.5 million, is the largest single corporate contributor. Each of the seven regional Bell holding companies gave at least $1 million to lawmakers, with BellSouth giving nearly $3 million. The National Cable Television Association, the cable industry`s trade group, donated $2.2 million. Senators on the Commerce Committee, which drafted telecommunications legislation, received an average of $107,000 from special interest groups. Members of the House of Representatives` Commerce Committee received an average of $65,000, and members of the House Telecommunications Subcommittee received $75,000. It is no mystery why consumer groups complain about the passage of the reform bills. Brad Stillman, legislative counsel for the Consumer Federation of America, said, "This legislation has something for everybody, except for consumers." Industry acknowledges this fact, but the prevailing sentiment is aptly expressed by Jot Carpenter, vice president for government relations for the Telecommunications Industry Association: "We cannot let the perfect be the enemy of the good."
Good or bad, America`s public policy often follows the money trail. There`s nothing new in that, and there is no particular reason why telecommunications policy merits an exception to this time-honored American tradition. But, reducing national telecommunications policy to a battle of competing checkbooks is good for neither industry nor government. Well-known author Peter F. Drucker, a consultant to the business sector and a professor at Claremont Graduate School in California recently wrote, "The function of government...must be central to political thought and political action. ...Government by countervailing lobbyists is neither particularly effective nor particularly attractive--in fact, it is paralysis. Yet, effective government has never been needed more than in this highly competitive and fast-changing world." The down-side of the telecommunications reform battle is its contribution to the public`s cynicism and perception that "effective government" is the opposite of the "American political process." Cynicism about politics leads to reform movements that seek to reaffirm moral values by changing the system itself. American politics is changing from battles over economic rewards to no-compromise, no-surrender assaults over values, according to Drucker: "Increasingly, politics is not about `who gets what, when and how,` but about values, each of them considered to be an absolute. Economic interests can be compromised, which is the great strength of basing politics on economic interests. `Half a loaf is still bread` is a meaningful saying. [The values-interests]...lobby for and against measures that they--and their paymasters--see as moral, spiritual and cultural. And each of these new moral concerns, each represented by a new organization, claims to stand for an absolute. Dividing their loaf is not compromise; it is treason."
Economics and moral values
The clash of economics and moral values is part of the Senate`s telecommunications reform bill S652. Buried in the language is an amendment known as the Communications Decency Act of 1995, sponsored by Sen. James Exon (D-NB). The act has compelling language: "Whoever knowingly within the United States or in foreign communications with the United States by means of telecommunications device makes or makes available any obscene communication in any form...shall be fined not more than $100,000 or imprisoned not more than two years or both." Exon`s amendment easily passed by a vote of 84 to 16. If Drucker is correct about the change in American politics, few elected officials can expect re-election if they compromise on the decency issue, one that also makes for unusual alliances. Sen. Diane Feinstein (D-CA), former two-term mayor of San Francisco, teamed up with Sen. Trent Lott (R-MS), a dissenting member of the House subcommittee that voted to impeach President Nixon in 1974. The unlikely pair added an amendment to S652, requiring cable operators to block transmission of sexually explicit programming until a subscriber specifically requests it. The amendment passed 91 to 0.
The legislation worries the Interactive Services Association, which comprises America Online, Apple e-World, Compuserve, Delphi Internet Services, GE Information Services, Interchange Network Company, MCI, Prodigy and cable operators. In a policy statement, the ISA said it "continues to have concerns about the inclusion in the legislation of penalties for using indecent speech online. ...It is impossible for the online services to monitor every message or posting to uncover obscene or indecent material. The responsibility for offending content must reside with the individual or organization responsible for placing it on a service." The ISA should not worry about poor monitoring and prosecution provided it follows the Federal Communications Commission`s guidelines for legitimate snooping. The Decency Act says: "It is a defense to prosecution...that a person has taken reasonable, effective and appropriate actions in good faith to restrict or prevent the transmission of or access to a communication specified in such subsections, or complied with procedures as the [Federal Communications] Commission may prescribe in furtherance of this section."
The moral values aspect of the Senate bill has not received much notice. Most of the power brokers comment on the economic aspect. Sen. Larry Pressler (R-SD): It "shak[es] up the regulatory status quo." Sen. Patrick Leahy (D-VT): A "sweetheart deal [with special interests]." Sen. Joseph Lieberman (D-CT): "An outrageous consumer rip-off." Sen. Bob Dole (R-KS): "The real job stimulus package of this decade." But civil liberties groups see the bill as the decade`s greatest intrusion into free speech and privacy. Video-on-demand means the government can demand to see your videos. The Electronic Frontier Foundation denounced Exon`s amendment, saying "By granting the Federal Communications Commission regulatory control over the content and availability of computer communications, the Communications Decency Act violates the First Amendment. Is it constitutional for Congress to declare that computer communications are a medium like broadcasting, where it is allowable for the FCC to impose content-related regulations? Clearly not."
The Electronic Frontier Foundation`s distinction between broadcast mediums and switched ones is important to the fiber optics business. The Foundation argues that broadcasting content is "pushed" at audiences by TV and radio stations and broadcasting networks. Audiences are primarily passive recipients of programming. With switched communications, content is "pulled" by users from various locations and resources. Exposure to content is "driven by user choice." The distinction between broadcast and switched networks also distinguishes between the appropriateness and inappropriateness of censorship. If the Foundation is correct, then the fiber-intensive technology of the switched-digital video networks being planned by Bell Atlantic (see Lightwave, July 1995, page 32) will not be subject to the Communications Decency Act. Therefore, fiber optics is not conducive to censorship. This has broader implications for free speech and free association.
Motivations for censorship
People often equate censorship with sexually explicit material, but there are other motivations for censorship. Controversial movies, for example, are often kept out of small and medium-sized communities because the offended group threatens to boycott the theater for a year--or forever--if the movie is shown. Newspapers face similar threats to their advertising revenues if their editorial pages push against the grain of local custom or politics. Switched fiber-optic networks obviate the boycott pressure and make economic retaliation a less effective weapon for social control. Broadcast technology implies few sources transmitting information to everyone. To sway the populace, control the sources. Switched fiber-optic networks, particularly those with large two-way capability, will have at least a thousand points of light, far too many sources for easy control. This is what Drucker`s "values-interests" worry about. To establish control, the correct strategic response is to start with the law and then develop enforcement. Exon`s amendment does that by giving broad censorship power to the FCC.
The Senate`s Decency Act may not survive the House. Speaker Newt Gingrich (R-GA) criticized the Act as "clearly a violation of free speech and...a violation of the right of adults to communicate with each other. I don`t agree with it and I don`t think it is a serious way to discuss a serious issue. ...[It was] very badly thought out and not very productive." The speaker`s statement may be sincere altruism, but there`s no question that Exon`s amendment strengthens the power of the FCC, an organization targeted for destruction by the Progress and Freedom Foundation. Its members include Gingrich`s closest political allies. The Foundation proposes dismantling the FCC, replacing it with a small executive branch office. In its proposal, the Foundation says "the commission history of obstructing competition and denying Americans access to new technology spans decades." FCC Chairman Reed Hundt responded: "They`re wrong on their number one factual assumption: When it comes to competition, we ain`t seen much yet"--an observation seconded by AT&T Chairman Robert E. Allen: "There`s a great deal of admiration expressed for competition, but in practice, it`s treated like an export item. It`s something you send to someone else`s market."
The political problem here is that the "values-interests" moved too fast. They are placing moral decision-making authority in the FCC just as the institution is being targeted for expedient demise by the economic interests. This lack of coordination will be costly to both groups. If civil libertarians worry that the Exon amendment places too much censorship power in the hands of the FCC, they would probably have a nervous breakdown if such power were handed to a small executive branch run by ideologues on a moral crusade. The civil libertarians will ally themselves with the institution and vice versa, making it more difficult to displace the FCC, and even more difficult to retrofit the social control aspects of broadcast technology to switched fiber-optic networks.