At the Benton Institute for Broadband & Society’s “Telecom Act at 30” event on March 5, the architects of the Telecommunications Act of 1996 reflected on how the law came to be, what was successful, and the work that remains to achieve true universal service.

Benton Senior Counselor Andrew Jay Schwartzman moderated a panel featuring Gina Keeney, who served in the Federal Communications Commission's Common Carrier Bureau at the time of enactment; Chip Pickering, then a staffer on the Senate Commerce Committee and now CEO of INCOMPAS; Katie King, communications counsel on the Senate Commerce Committee; and John Windhausen, who served on the staffs of Senator Fritz Hollings (D-SC) and Senator Daniel Inouye (D-HI). 

The Political Landscape in the Mid-1990s

Schwartzman started by asking panelists to set the scene and describe the environment in which the legislation was drafted. They recalled a moment of collaboration and momentum, when fights were shaped more by regional and sectoral interests than by party. 

"There was a real feeling of bipartisanship and also a momentum for doing," said Keeney, who described a legislative environment that had already produced the Cable Act of 1992 and authorized spectrum auctions in 1993. 

Other panelists echoed the feeling of bipartisanship and shared that the development of the law was shaped by genuine relationships. Windhausen described working with Keeney and Pickering to draft a precursor bill, S.652,  in 1994, saying “we were friends as well as colleagues.” Relationships and momentum were so strong, said Windhausen, that when S.652 was unsuccessful, committee leaders wanted to continue working towards a bill even after both chambers flipped to Republican control in January 1995. 

“We had developed such a good relationship with the bipartisan negotiations going on that even though the chairmen of the committees were now all Republican, they wanted to work with Democrats to get this bill done. We had made so much progress in 1994. We wanted to continue that and get that done in 1995, and it was a real pleasure that we were able to do so,” said Windhausen. 

Guaranteeing Universal Service

Discussion then moved to the heart of the 1996 Act: universal service. Schwartzman explained that the concept existed long before the Act, but universal service was largely an internal accounting mechanism at AT&T. After the breakup of AT&T in 1984, policymakers realized that the existing universal service mechanism would be difficult to maintain and should be replaced by a system that would work in the new telecommunications environment. 

Keeney described universal service as a “must.” She said, “The goal of universal service was not which pocket the money went into, so much as we wanna have a connected electorate. We need to connect people, we need to educate people. And those were the real drivers behind universal service and the E-Rate. We didn't want to have a country in which only elite people or only urban people could take advantage of the new technologies, whatever they may be.”

Pickering focused on the accompanying priority of competition. He called universal service and competition the “twin peaks” of legislative priorities, and cited fears that rural America would be left behind by the competitive marketplace. This, Pickering said, is what makes the E-Rate program such a success. 

“It's really one of the only and best examples in universal service that achieves both universal service of the technology or the service as well as competition … the E-Rate has been tremendous for competition that as people built to the school or to the library, they brought competition into the neighborhoods and into the main street and the businesses.”

Other panelists agreed on the importance and success of the E-Rate program—and described the struggles to pass it. While Senator Olympia Snowe (R-ME) initially wanted to offer a negotiated and more limited version of the E-Rate program as an amendment, after finding out that Senator Bob Dole (R-KS) intended to oppose anyway, she partnered with Senator Jay Rockefeller (D-WV) to propose the full E-Rate program, which was supported by all of the Democrats on the Senate Commerce Committee. 

“After that initial hurdle of that 10 to 8 vote in the committee,” said Windhausen, “then it became kind of baked into everything that we did going forward, and it became more bipartisan.”

That would not be the only hurdle for the E-Rate. When the bill reached the Senate floor in June 1995, Senator John McCain (R-AZ) attempted to strip the program from the legislation entirely. However, said Pickering, “the coalitions in support of the E-Rate became so overwhelming that it really wasn't a fair or close fight with Senator McCain when he tried to strip it from the floor. And I think the vote was pretty overwhelming.”

A Primer on Section 706

A common criticism of the Telecommunications Act is that it never mentions the internet. This was not out of ignorance, panelists said, but rather jurisdictional politics. 

In the House, the internet was considered the domain of the Science Committee, not the Commerce Committee. Using the word “internet” would have triggered a referral and could have derailed the bill, forcing the drafters to use different language. "Every time you read 'advanced networks' in the Act, know that it means the internet and other advanced networks," Pickering explained.

Section 706, which directs the FCC to report on the deployment of advanced telecommunications capability, had its own unique, interesting origin story. After negotiating other provisions of the Act, the drafters needed to appease a lobbyist who was advocating for fiber-optic networks. The bill had been built on a principle of technological neutrality, so incorporating an explicit fiber preference was not an option. Section 706 was the solution. 

Some panelists described Section 706 as aspirational, but not especially effective. 

"You know,” King said, “people have asked, what does Section 706 really do? And to some extent it doesn't do anything … it's aspirational, but it doesn't have any actual teeth, like some of the lobbyists wanted."

Woulda Coulda Done Differently

While panelists remain immensely proud of the Act, they would do some things differently if given the chance. 

For Windhausen, the biggest regret was failing to plainly define broadband’s regulatory status. “That was a big fault on our part,” he said. While broadband was still an emerging technology in 1996, if the drafters had negotiated even a light-touch regulatory framework, he argued, it could have “resolved decades of litigious activity and rulemaking proceedings.” 

Pickering regretted a structural gap left in the Act: the absence of any mechanism requiring the FCC’s Universal Service Fund (USF) to be periodically modernized. "Having a every three years, every five-year forced mechanism in the Act on the modernization of USF,” he said, “I think would've been helpful because it would've brought the political pressure to bear in a process that I think would've helped us evolve USF in a better, more efficient way."

King similarly regretted not building in accountability, on USF, as well as competition provisions. While the drafters had envisioned competition between the Bell companies that would benefit consumers, "Instead of really competing with each other as was envisioned," she said, the companies "could just buy each other up." 

The Work Continues

One thing remained clear after the panel: work still remains to achieve universal service.

“Our universal service work is not done even though we celebrate the progress we've made,” said Windhausen. "Of the list of 37 items in the Telecom Act, about half of them are irrelevant today, but the biggest ones that are still vitally important and relevant are those universal service provisions in the Telecom Act." Windhausen called for renewed urgency to reach universal connectivity: "We ought to re-energize the [National] Broadband Plan, get this done over the next couple of years."

Reflecting on the legacy of the Act, Pickering said, "It's been one of my great honors and privileges in life to have been a part of something that endured, that was sustainable, and, for the most part, so successful. And it's withstood the test of time, and the principles then apply now, even though the technology is different."

But enduring principles require sustained work to become reality. As the panelists made clear, 30 years of the Telecom Act is not just an opportunity to celebrate, but a reminder of the work still to be done. 

Zoë Walker is a Policy Associate at the Benton Institute for Broadband & Society.

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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