Emergency Communications and Competition Act of 2003

Mr. President, earlier this week, the Senate, in a 94- 0 vote, went on record expressing its unanimous opposition to last week's decision by the Ninth Circuit Court of Appeals refusing to review a three-judge panel ruling that bars children in public schools from voluntarily reciting the Pledge of Allegiance.

The Pledge decision rendered by the court is not an aberration. It is symptomatic of a court that has become dysfunctional and out-of-touch with American jurisprudence, common sense, and constitutional values. Unfortunately, citizens in the states that are within the Ninth Circuit's jurisdiction have had to contend with the court's idiosyncratic jurisprudence for decades.

One should not be surprised that the full Ninth Circuit refused to reconsider this ill-conceived decision. The recent history of the court suggests a judicial activism that is close to the fringe of legal reasoning. And it is for that reason that the Ninth Circuit has, by far, the highest reversal rate in the country. During the 1990s, almost 90 percent of cases from the Ninth Circuit reviewed by the Supreme Court were reversed. In 1997, a startling 27 of the 28 cases brought before the Supreme Court were reversed--two-thirds by a unanimous vote.

Over the last three years, one-third of all cases reversed by the Supreme Court came from the 9th Circuit. That's three times the number of reversals for the next nearest circuit. And 33 times higher than the reversal rate for the 10th Circuit

Last November, on a single day, the Supreme Court summarily and unanimously reversed three Ninth Circuit decisions. In one of those three cases, the Supreme Court ruled that the circuit had overreached its authority and stated that the Court ``exceed[ed] the limits imposed on federal habeas review substitut[ing] its own judgment for that of the state court.''

One of the reasons the Ninth Circuit is reversed so often is because the circuit has become too large and unwieldy. The Circuit serves a population of more than 54 million people, almost 60 percent more than are served by the next largest circuit. By 2010, the Census Bureau estimates that the Ninth Circuit's population will be more than 63 million.

According to the Administrative Office of the U.S. Courts, the Ninth Circuit alone accounts for more than 60 percent of all appeals pending for more than a year. And with its huge caseload, the judges on the Court just do not have the opportunity to keep up with decisions within the circuit, let alone decisions from other circuits

Another problem unique to the Ninth Circuit is that it never speaks with one voice. All other circuits sit as one entity to hear full- court, en banc, cases. The Ninth Circuit sits in panels of 11. Clearly, such a procedure injects unnecessary randomness into decisions. If an en banc case is decided 6 to 5, there is no reason to think it represents the views of the majority of the court's 24 active members.

In fact, some commentators believe a majority of the 24 members of the court may have disagreed with the Pledge decision, but were concerned that a random pick of 11 members of the Court to hear the case, en banc, might have resulted in the decision being affirmed.

It is inconceivable to me that a circuit court could render a decision based on its concern about the potential makeup of an en banc panel. What

kind of jurisprudence is that? Citizens in no other circuit face that type of coin-flip justice. That is fundamentally unfair to every single one of the 54 million people who live within the jurisdiction of the Ninth Circuit and is reason alone to restructure the circuit.

It is time that Congress finally faces the fact that the Ninth Circuit is no longer a viable and functioning circuit. It is for that reason that I am today introducing the Ninth Circuit Court of Appeals Reorganization Act of 2003. I am pleased to be joined in this effort by Senators, Stevens, Burns, Craig, Crapo, Inhofe, and Smith.

The bill we are introducing today would divide the Ninth Circuit into two independent circuits. The restructured Ninth Circuit would contain California, and Nevada. A new Twelfth Circuit would be composed of Alaska, Hawaii, Arizona, Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana Islands.

Earlier I indicated a number of reasons why I believe the Circuit needs to be reorganized. Let us not forget the scope of this circuit and the 54 million people who live within it. The Ninth Circuit extends from the Arctic Circle to the Mexican border, spans the tropics of Hawaii and across the International Dateline to Guam and the Mariana Islands. Encompassing some 14 million square miles, the Ninth Circuit, by any means of measure, is the largest of all U.S. Circuit Courts of Appeal. It is larger than the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits combined!

Moreover, because of the sheer magnitude of cases brought before the Court, citizens within the court's jurisdiction face unprecedented delays in getting their cases heard. Whereas the national average time to get a final disposition of an appellate case is nearly 11 months, an appeal in the Ninth Circuit takes nearly 50 percent longer--almost one year and four months.

This is not the first time that Congress has recognized that the Ninth Circuit needs restructuring. Numerous proposals to divide the Ninth Circuit were debated in Congress even before World War II.

In 1973, the Congressional Commission on the Revision of the Federal Court of Appellate System Commission, commonly known as the Hruska Commission, recommended that the Ninth Circuit be divided. Also that year, the American Bar Association adopted a resolution in support of dividing the Ninth Circuit.

In 1995, a bill was reported from the Senate Judiciary Committee in which Chairman Orrin Hatch of Utah declared in his Committee's report that the time for a split had arrived: ``The legislative history, in conjunction with available statistics and research concerning the Ninth Circuit, provides an ample record for an informed decision at this point as to whether to divide the Ninth Circuit . . . Upon careful consideration the time has indeed come.''

In 1997, Congress commissioned a report on structural alternatives for the Federal courts of appeals. The Commission, chaired by former Supreme Court Justice Byron R. White, found numerous faults within the Ninth Circuit and recommended major reforms and a fundamental reorganization of the Circuit.

On the day my legislation is enacted into law, the concerns of the White Commission will be addressed. A more cohesive, efficient, and predictable judiciary will emerge.

Many who oppose legislation to reorganize the Ninth Circuit, contend that all the Circuit needs is the appropriation of more Federal dollars for more Federal judges. However, I do not believe more money will solve the inherent problems that exist in a circuit of such magnitude. As former Senator and Alabama Supreme Court Chief Justice, Howell Heflin, a Democrat from Alabama, remarked after Congress divided the former Fifth Circuit: ``congress recognized that a point is reached where the addition of judges decreases the effectiveness of the court, complicates the administration of uniform law, and potentially diminishes the quality of justice within a Circuit.'' in the case of the Ninth Circuit, there can be little doubt that we are at that point in time that former Senator Heflin cited.

Former Oregon Senator Bob Packwood believed that a Ninth Circuit split would enable judges to achieve a greater mastery of applicable, but unique, State law and State issues. He believed such mastery was necessary because ``burgeoning conflicts in the area of natural resources and the continuing expansion of international trade efforts will all expand the demand for judicial excellence . . . By reforming our courts now, they will be better able to dispense justice in a fair and expeditious manner.''

I agree with the former Senator. The uniqueness of the Northwest, and in particular, Alaska, cannot be overstated. An effective appellate process demands mastery of State law and State issues relative to the geographic land mass, population and native cultures that are unique to the relevant region. Presently, California is responsible for almost 50 percent of the appellate court's filings, which means that California judges and California judicial philosophy dominate judicial decisions on issues that are fundamentally unique to the Pacific Northwest. This need for greater regional representation is demonstrated by the fact that the East Coast is comprised of five Federal circuits. A division of the Ninth Circuit will enable judges, lawyers and parties to master a more manageable and predictable universe of relevant case law.

Further, a division of the Ninth Circuit would honor Congress' original intent in establishing appellate court boundaries that respect and reflect a regional identity. In spite of efforts to modernize the administration of the Ninth Circuit, its size works against the original purpose of its creation: the uniform, coherent and efficient development and application of Federal law in the region. Establishing a circuit comprised solely of States in the Northwest region would adhere to Congressional intent. And the State of Hawaii should rightfully be included in this circuit, for like Alaska, there are unique issues that are faced by the two States that are not part of the contiguous lower 48.

A new Twelfth Circuit, comprised of states of the Pacific Northwest, would respect the economic, historical, cultural and legal ties which philosophically unite this region.

No single Court can effectively exercise its power in an area that extends from the Arctic Circle to the tropics. Legislation dividing the Ninth Circuit will create a regional commonality that will lead to greater uniformity and consistency in the development of federal law, and will ultimately strengthen the constitutional guarantee of equal justice for all.

It is my hope that this Congress will finally approve this necessary reorganization. It is long overdue.

I ask unanimous consent that the text of my bill be printed in the Record.

Mr. President, today I am introducing a bill that will provide revolutionary changes to the health insurance choices available for small businesses. This bill, ``The Small Business Health Fairness Act of 2003'' will give small businesses the same market-based advantages and leverage that large employers and unions currently enjoy to provide health insurance for their employees.

One month ago, I convened my first hearing as Chair of the Committee on Small Business and Entrepreneurship to explore the crisis small businesses are currently facing in their attempts to find affordable health care for their employees. The reason I made this my first hearing was that whenever I spoke to small businesses this is the number one issue they wanted to discuss. Small businesses in my State are literally desperate for more health insurance options; some business owners even say this is keeping them awake at night.

At the hearing small businesses from my home State of Maine made it clear that they have only one choice for their health care. Even when they band together in local purchasing pools, they are unable to attract any other insurance carriers to provide them with less expensive and more flexible options. Even though they have cut back on the coverage and increased the costs to the employees, they are still finding it almost impossible to provide health insurance to their employees. And as the costs to the employees increases, many employees find this too much to absorb, which leaves them uncovered and, therefore, increase the ranks of the employed but uninsured.

Indeed, the Washington Post reported on February 28 that worries about rising health care costs registered higher in a poll conducted by the Kaiser Family Foundation than even concerns over the stock market or terrorist attacks. Thirty-eight percent of the respondents were ``very worried'' that the cost of their health care or health insurance would increase compared to 22 percent who were ``very worried'' about losing their savings in the stock market, or 19 percent who were ``very worried'' about being a victim of a terrorist attack.

With small businesses creating up to 75 percent of net new jobs in America and with a shocking 56 percent of the 41.2 million uninsured in this country already either working a full-time, full-year job or depending on one who does, we have an obligation to ensure that more of these individuals can receive insurance through their employers. So when the Kaiser 2002 Employer Health Benefits Survey reports that only 61 percent of all small businesses are offering health benefits--and that's down from 67 percent just three years ago--is there any question that we're headed in exactly the wrong direction?

This is a crisis, and it's even worse in businesses with fewer than 50 employees. Of those, only 47 percent currently provide health insurance benefits, and the Department of Labor reports that only 24 percent of small businesses that employ ``low-wage'' workers offer health plans.

The fact is, with more than two-thirds of all Americans relying on their employer for health insurance, we can't afford to continue the disturbing trend identified by the Kaiser Family Foundation, where monthly premiums for employer-sponsored health insurance on average rose 11 percent from 2000 to 2001, and then 12.7 percent from 2001 to 2002--the second straight year of double digit increases. As a result, 22 percent of all firms increased employee deductibles in 2002, and 32 percent told Kaiser they are likely to do so this year.

The problem is all the more acute for small businesses. For those with fewer than 10 workers, the employer and employees together pay--on average--about 8 percent more in premiums than the amount paid by larger companies. And for all firms under 200 employees, 84 percent indicated to Kaiser that cost was an important factor in not offering health care.

The result of all this isn't hard to predict. Businesses can and clearly are dropping health benefits. Others struggle onward in providing coverage, but only at the cost of the growth of the business, or offering packages with higher premiums, or a combination of both.

If we can do something that will help more small businesses provide health insurance to their employees, then we can significantly reduce the number of those who are without health insurance in this country.

The Small Business Health Fairness Act of 2003 will improve access to affordable health care for small businesses by giving them the same advantages currently enjoyed by large employers and unions. The bill employs a very basic principle--that volume purchasing of insurance by small businesses will work as it does for any other commodity and for any large business or union that purchases health insurance coverage-- it will help reduce the cost. As President Bush has said, ``It makes no sense in America to isolate small businesses as little health care islands unto themselves. We must have association health plans.''

The Act will allow small businesses to pool together nationally, under the auspices of their bona fide associations, and either purchase their insurance from a provider, or self-insure in the same way that large employers and unions currently do. These association health plans, AHPS, would be monitored and regulated by the Department of Labor's Employee Benefits Security Administration in the same way that more than 275,000 plans offered by large employers and unions are currently regulated.

This agency is currently overseeing plans that cover 72 million people. The Department of Labor released a report last week that reveals high rates of compliance by group health plans with health care laws enacted under the Employee Retirement Income Security Act, ERISA. More importantly, the report and the compliance project that is the subject of the report, are further evidence of the Labor Department's commitment and proven success in effectively monitoring health plans. The report establishes that the Department is prepared to oversee association health plans.

Studies by the Small Business Administration, the General Accounting Office, and the Congressional Budget Office have all found that these types of plans operate with between 13 and 30 percent lower administrative costs. These lower costs can then be translated into reducing costs to subscribers or providing more benefits.

Another reason AHPs will be able to offer less expensive plans, and also greater flexibility, is because they will be exempt from the myriad State benefit regulations. Associations will be able to design their plans to meet the needs of their members and their employees. By administering one national plan, it will further reduce the administrative costs instead of trying to administer a plan subject to the mandates of each State.

Even though the benefit mandates will not be in effect, associations will need to design their plans so that enough members participate in them to attract the necessary employees to make them work. This means that they will naturally provide a full range of benefits similar to what many States currently require. In many cases, the plans offered by large employers and unions, which are also exempt from the State benefit mandates, are the most generous plans available. People will often stay in those jobs specifically to keep their health care coverage.

The Act would also provide extensive new protections to ensure that the health care coverage was there when employees need it. Associations sponsoring these plans would need to be established for at least three years for purposes other than providing health insurance--this is intended to prevent the current epidemic of fraud and abuse that is occurring through sham associations who take money from unsuspecting small businesses and then cease to exist when some files a claim.

In addition, association health plans would be required to have sufficient funds in reserve, specific stop-loss insurances, indemnification insurance, and other funding and certification requirements to make sure the insurance coverage would be available when needed. None of these requirements apply

to any of the plans currently regulated by the Department of Labor, either the large employer plans under the Employee Retirement Income Security Act, ERISA, or the union plans under the Taft-Hartley Act.

The approach of this bill is, I believe, a good one--but I also consider it a starting point. And in that light, I intend to work with all groups and interested parties that are committed to passing this bill so that we can improve this bill and finally provide small businesses with more health insurance options at lower costs. The current situation is simply unacceptable. Those who oppose this bill and believe the status quo only needs to be modified slightly are not paying attention--they are not listening to the millions of small businesses who are desperate for more choices, or the small employers who are unable to get health insurance at any cost.

The time for stalling on providing relief for small businesses unable to get affordable health insurance is over. We must act now, and we must pass the Small Business Health Fairness Act of 2003 to bring small businesses more choices and use the power of competition to bring them better options.

I ask unanimous consent that the text of The Small Business Health Fairness Act of 2003 and an explanation of its provisions be printed in the Record.

Mr. President, this year, due to the rapid and tremendous advancements in our knowledge and in the science of organ transplantation, thousands of Americans will receive a life-saving organ transplant. These advances have allowed us to save the lives of patients who were once not considered candidates for transplantation.

As a heart and lung transplant surgeon, I have had the opportunity to watch the field develop and grow over the past three decades. I remember my own experiences--of conducting some of the first transplants using hearts and lungs--and recognize our tremendous progress since that time. And I also know the hundreds of my own patients who live improved lives due to advances in transplantation.

But I have also shared in the grief of patients who died before they could receive a transplant--a direct result of a large and growing shortage of organ donors. Medical advances have produced a staggering increase in the number of eligible transplant candidates, while the supply of organs fails to keep pace. Today, more than 80,000 patients await a transplant (a four-fold increase from just over a decade ago). At the same time, more patients die each year before they can receive that life-saving organ.

I have also witnessed firsthand how great, lifesaving hope can spring from great tragedy. Earlier this year, I offered my assistance at the scene of a horrible automobile accident in Florida. Most of the family in the accident died--including two young children. While my heart goes out to his family for their terrible loss, from this tragedy has come new life. This family agreed to donate the organs of their loved ones. This gift has saved the life of a boy from the Virgin Islands. We must honor this family, and all other donor families, by redoubling our efforts to increasing organ donation.

There is no need for people to die while awaiting a new organ. In my practice, I carried a card that listed my patients who were waiting on hearts--always aware that several of them would die before a live- saving organ would become available. It was this needless loss of life that was the most painful, most frustrating and most disappointing part of my work.

In 2000, there were almost 23,000 transplants--a significant increase over the roughly 13,000 transplant performed in 1988. Between 1990 and 2001, the number of organ donors almost doubled, mainly as a result of an increase in organs from live donors. In fact, over those ten years, the number of cadaveric donors increased only 35 percent while the demand for transplant has more than tripled.

More must be done. There are simply not enough organ donors; public awareness has not kept up with the rapid advances of transplantation. It is our duty to do all we can to raise awareness about the gift of life.

We must do is work to encourage all Americans to share their desire to be an organ donor with their families.

We must find other ways to improve organ donation--to identify eligible organs and work with families to help them better understand the value of donation. This is a new science--one that I have had the privilege of watching firsthand grow from theories and experiments to accepted medical practice. My mentor, Dr. Norman Shumway, was one of the leaders in the field; and the advent of cyclosporin was critical to its progress. But much remains to be learned, and we must continue to move forward.

That is why one of my first priorities when I came to the Senate in 1995 was

to establish the Congressional Task Force on Organ Donation--to promote awareness of this important issue and encourage a new dialogue seeking answers.

Recent years have witnessed a new emphasis on highlighting public awareness of this need. In particular, I commend Secretary Thompson for making organ donation a top priority at the Department of Health and Human Services.

There also are a number of complementary legislative approaches that we should pursue towards this end.

We should provide funding for innovative and bold demonstration projects to improve donation and recovery rates. As part of this, we should ensure that the projects' results will be evaluated quickly and their lessons be disseminated broadly.

We should provide for the placement and evaluation of organ donation coordinators in hospitals--a model that has worked with success in other countries.

We should expand the authority of the Agency for Healthcare Research and Quality to conduct important research on the recovery, preservation and transportation of organs. The science of organ transplantation has been improved and refined since its inception. Yet all too often, organ donation efforts are conducted under the same practices as they were twenty years ago. We must establish a strong evidence-based approach to enhancing organ donation and recovery.

We must encourage living organ donation by reducing potential financial disincentives facing living donors through the reimbursement of travel and other expenses incurred by living donors and their families.

We must also seriously evaluate the long-term health effects of serving as a living donor by asking the Institute of Medicine to report on this issue and by establishing a living donor registry to track the health of individuals who have served as living organ donors.

We must seriously examine and improve the role of organ donor registries. These programs have an important role to play in improving organ donation rates and have been used with different levels of success in some states. However, a number of questions surrounding registries remain unanswered and their effectiveness has not been fully evaluated.

We must undertake a high-level systematic examination of the effectiveness of a range of organ donation approaches. Specifically, the Institute of Medicine should evaluate practices or organ procurement organizations, States, and other countries. This study should examine existing barriers to organ donation, as well as best donation and recovery practices, such as mandated choice and presumed consent. The study should evaluate consent practices, existing state routine notification laws, and the impact of requests for consent where registry listing constitutes express consent under State law. This review should be timely and include recommendations for action necessary to replicate the best practices identified and to otherwise increase organ donation rates.

We must recognize and honor the sacrificial decisions to give consent and give the gift of life made each year by thousands of donors and families. We must do this in such a way as to honor those sharing life through donation and increase public awareness of this issue.

These initiatives are contained within two important pieces of legislation I am introducing today.

The Organ Donation and Recovery Improvement Act is a bipartisan, comprehensive bill that seeks to improve the overall process of organ donation and recovery, enhance our knowledge base in these fields, encourage novel approaches to this growing problem and increase the number of organs available for transplants each year. The bill also seeks to remove potential barriers to donation, while identifying and focusing on best practices in organ donation. I thank Senator Christopher Dodd and Senator Mike Enzi for their assistance on this important bill. I also want to thank the wide range of patient and organ transplantation organizations who have done good work on this bill, including the American Society of Transplantation, American Society of Transplant Surgeons, North American Transplant Coordinators Organization, Tennessee Donor Services, New Mexico Donor Services, and Golden State Donor Services.

The Gift of Life Congressional Medal Act will make each donor or donor family eligible to receive a commemorative Congressional medal. This legislation, which does not cost taxpayers a penny, will recognize the thousands of individuals each year who share the gift of life through organ donation. Moreover, it will encourage potential donors and enhance public awareness of the importance of organ donation to the over 80,000 Americans waiting for a transplant. Representative Pete Stark will soon be introducing the companion bill in the House of Representatives, and I thank him for his dedication in this area.

Organ donation is one of the most important issues before us today. Each year, thousands of donors and families make the important decision to give consent and give the gift of life. We must recognize and honor their sacrifice, and, in so honoring, work to increase donation rates and allow more families to receive this gift of life each year. Hundreds of my own patients are alive today because of this gift. Let us work together to allow more patients and families to experience this miracle.

I ask unanimous consent that the text of the bills printed in the Record.

Mr. President, today I rise to introduce the Emergency Communications and Competition Act, ECCA, along with my colleague from New Hampshire, Senator Sununu. We are joined by twelve of our colleagues, led by Senator Burns, the distinguished chairman of the Commerce Communications Subcommittee, as well as Senators Dodd, Gregg, Hutchison, Inouye, Jeffords, Lott, Kennedy, Leahy, Lieberman, Mikulski, and Miller.

The bill we introduce today is identical to S. 2922, the measure which Senator Burns and I co-authored in the 107th Congress. I was very pleased and grateful for the tremendous support this legislation received from local television broadcasters and a wide range of public interest groups that speak for consumers, minority groups, rural Americans, health care, public safety, and property rights.

This bill will ensure that consumers will soon be able to avail themselves of an innovative new wireless technology that has been approved by the Federal Communications Commission. It is called the Multichannel Video Distribution and Data Service, MVDDS, a title which accurately describes what this new service will provide consumers: cable competition and high speed access to the Internet.

As I indicated in my introductory remarks to S. 2922 last September, unless Congress enacts this legislation, it may be years before MVDDS is actually deployed to the public. That would be a lost opportunity for consumers. We need to improve our communications infrastructure, not only for greater access to cable and the Internet, but also for public safety purposes. MVDDS technology can address all of these needs, and we should remove unnecessary and counterproductive regulatory obstacles that prevent its swift deployment.

The Consumers Union, like many, has supported ECCA because it will help ensure that competition rapidly emerges for video programming as well as high speed Internet services. Earlier this year, the Consumers Union issued a report, ``Cable Mergers, Monopoly Power and Price Increases,'' which documents the most recent steep rate increases imposed by cable operators. The report noted, for instance, that cable rates in Baton Rouge soared 7 percent last November. This was typical of rate increases throughout the country.

According to the most recent data from the Bureau of Labor Statistics, cable rates rose 11.4 percent in just the last two years. This compares to a 3.8 percent increase in the Consumer Price Index over the same period. According to the FCC, just one percent of cable communities enjoy ``effective competition.'' I submit that this startling lack of competition, more than anything else, explains why local cable rates have increased at three times the inflation rate.

If MVDDS can go head-to-head with incumbent cable systems in all parts of the country, I believe that this good old fashioned competition will result in lower prices and better service for consumers--even for those who don't choose to subscribe to MVDDS.

Rural organizations recognize the extraordinary opportunity this new wireless technology can offer rural Americans. They understand that the FCC's Order, which authorized MVDDS, will likely fail to ensure this new technology will indeed adequately serve rural America.

Local television broadcasters support this measure because it will ensure consumers in their markets can view all local television stations. Today, satellite operators DirecTV and EchoStar do not carry over 1,000 local TV channels--and no stations from ten States: Alaska, Arkansas, Idaho, Maine, Montana, Mississippi, North and South Dakota, West Virginia, and Wyoming. As you know, the satellite operators sought to merge so that they would have sufficient capacity to carry all local TV stations, but federal regulators rejected the merger on anticompetitive grounds.

The Emergency Communications and Competition Act, which we are re- introducing today, will restore fairness in the FCC licensing process, and in so doing, speed the deployment of MVDDS to applicants that are ready to launch service to the public now.

The bill provides that MVDDS applicants will be licensed in the same manner as satellite companies who applied on the same day to share the same spectrum. Currently, the FCC plans to subject only MVDDS applicants to an auction process. This would impose a discriminatory tax on an innovative new technology. Unfortunately, this is more of the same burdensome regulation that I believe has contributed to the collapse of the telecommunications sector. Government regulation is necessary, certainly, but we must be smart in how we regulate business. We must ensure that our laws and regulations are technologically neutral so

that government policies don't replace the role of the marketplace in determining the fate of consumer products and services.

In an Order released last month, the FCC recognized the need to prevent disparity in licensing when it authorized certain satellite spectrum to be re-used for mobile terrestrial service without requiring a spectrum auction. Similarly, the ECCA would prohibit the FCC from conducting an auction for licenses that re-use satellite spectrum for fixed terrrestrial operations.

Furthermore, an action would drastically delay the introduction of service to the public. Mr. President, this is quite the opposite of what spectrum auctions are supposed to do. In this case, industry incumbents can abuse the auction process to block the introduction of new competition. A company with vast resources available could easily trounce a small startup in an auction--and then, under the terms of the FCC's Order, it would not have to deploy service for 10 years. Consumers cannot and should not have to wait while this spectrum is ``shelved'' for an entire decade.

The ECCA solves this problem by ensuring that only qualified applicants will be licensed. That is, within six months of enactment, the FCC would issue licenses to any applicant that can demonstrate through independent testing that it will employ a technology that won't cause harmful interference to DBS operators with whom they would share spectrum. Then, to be sure that service is in fact deployed, the ECCA requires licensees to provide service to consumers within five rather than ten years.

This legislation also requires that parties who apply for licenses under this provision must assume specific public interest obligations in exchange for their prompt licensing. The bill requires full must- carry of local television stations, and an additional set aside of 4 percent of system capacity for other pubic interest purposes such as telemedicine and distance learning. I can assure my colleagues that these are issues particularly important in rural areas in states like Louisiana.

The ECCA will also promote public safety, in two ways. First, it will require MVDDS licensees to air Emergency Alert System warnings, including AMBER alerts for missing children. EAS warnings are presently carried by cable systems and over-the-air broadcasters, but they are not seen by those who get their programming from DBS unless the viewer happens to be watching a local channel. Obviously, the need for greater dissemination of EAS warnings is particularly important for the ten states in which no local stations are carried via satellite.

Second, this legislation requires MVDDS licensees to make their transmission systems available to national security and emergency preparedness personnel on a top-priority basis in times of need. We all know that when emergencies strike, the need for public safety personnel to communicate with one another skyrockets. MVDDS wireless networks, which will be deployed ubiquitously throughout the country, can help alleviate this thirst for spectrum.

For these reasons, I believe that Congress should act on this matter as soon as possible. I urge my colleagues to support his bill and vote for enactment. I as, unanimous consent that the text of this bill be printed in the Record.

Mr. President, today I rise to introduce the Emergency Communications and Competition Act, ECCA, along with my colleague from New Hampshire, Senator Sununu. We are joined by twelve of our colleagues, led by Senator Burns, the distinguished chairman of the Commerce Communications Subcommittee, as well as Senators Dodd, Gregg, Hutchison, Inouye, Jeffords, Lott, Kennedy, Leahy, Lieberman, Mikulski, and Miller.

The bill we introduce today is identical to S. 2922, the measure which Senator Burns and I co-authored in the 107th Congress. I was very pleased and grateful for the tremendous support this legislation received from local television broadcasters and a wide range of public interest groups that speak for consumers, minority groups, rural Americans, health care, public safety, and property rights.

This bill will ensure that consumers will soon be able to avail themselves of an innovative new wireless technology that has been approved by the Federal Communications Commission. It is called the Multichannel Video Distribution and Data Service, MVDDS, a title which accurately describes what this new service will provide consumers: cable competition and high speed access to the Internet.

As I indicated in my introductory remarks to S. 2922 last September, unless Congress enacts this legislation, it may be years before MVDDS is actually deployed to the public. That would be a lost opportunity for consumers. We need to improve our communications infrastructure, not only for greater access to cable and the Internet, but also for public safety purposes. MVDDS technology can address all of these needs, and we should remove unnecessary and counterproductive regulatory obstacles that prevent its swift deployment.

The Consumers Union, like many, has supported ECCA because it will help ensure that competition rapidly emerges for video programming as well as high speed Internet services. Earlier this year, the Consumers Union issued a report, ``Cable Mergers, Monopoly Power and Price Increases,'' which documents the most recent steep rate increases imposed by cable operators. The report noted, for instance, that cable rates in Baton Rouge soared 7 percent last November. This was typical of rate increases throughout the country.

According to the most recent data from the Bureau of Labor Statistics, cable rates rose 11.4 percent in just the last two years. This compares to a 3.8 percent increase in the Consumer Price Index over the same period. According to the FCC, just one percent of cable communities enjoy ``effective competition.'' I submit that this startling lack of competition, more than anything else, explains why local cable rates have increased at three times the inflation rate.

If MVDDS can go head-to-head with incumbent cable systems in all parts of the country, I believe that this good old fashioned competition will result in lower prices and better service for consumers--even for those who don't choose to subscribe to MVDDS.

Rural organizations recognize the extraordinary opportunity this new wireless technology can offer rural Americans. They understand that the FCC's Order, which authorized MVDDS, will likely fail to ensure this new technology will indeed adequately serve rural America.

Local television broadcasters support this measure because it will ensure consumers in their markets can view all local television stations. Today, satellite operators DirecTV and EchoStar do not carry over 1,000 local TV channels--and no stations from ten States: Alaska, Arkansas, Idaho, Maine, Montana, Mississippi, North and South Dakota, West Virginia, and Wyoming. As you know, the satellite operators sought to merge so that they would have sufficient capacity to carry all local TV stations, but federal regulators rejected the merger on anticompetitive grounds.

The Emergency Communications and Competition Act, which we are re- introducing today, will restore fairness in the FCC licensing process, and in so doing, speed the deployment of MVDDS to applicants that are ready to launch service to the public now.

The bill provides that MVDDS applicants will be licensed in the same manner as satellite companies who applied on the same day to share the same spectrum. Currently, the FCC plans to subject only MVDDS applicants to an auction process. This would impose a discriminatory tax on an innovative new technology. Unfortunately, this is more of the same burdensome regulation that I believe has contributed to the collapse of the telecommunications sector. Government regulation is necessary, certainly, but we must be smart in how we regulate business. We must ensure that our laws and regulations are technologically neutral so

that government policies don't replace the role of the marketplace in determining the fate of consumer products and services.

In an Order released last month, the FCC recognized the need to prevent disparity in licensing when it authorized certain satellite spectrum to be re-used for mobile terrestrial service without requiring a spectrum auction. Similarly, the ECCA would prohibit the FCC from conducting an auction for licenses that re-use satellite spectrum for fixed terrrestrial operations.

Furthermore, an action would drastically delay the introduction of service to the public. Mr. President, this is quite the opposite of what spectrum auctions are supposed to do. In this case, industry incumbents can abuse the auction process to block the introduction of new competition. A company with vast resources available could easily trounce a small startup in an auction--and then, under the terms of the FCC's Order, it would not have to deploy service for 10 years. Consumers cannot and should not have to wait while this spectrum is ``shelved'' for an entire decade.

The ECCA solves this problem by ensuring that only qualified applicants will be licensed. That is, within six months of enactment, the FCC would issue licenses to any applicant that can demonstrate through independent testing that it will employ a technology that won't cause harmful interference to DBS operators with whom they would share spectrum. Then, to be sure that service is in fact deployed, the ECCA requires licensees to provide service to consumers within five rather than ten years.

This legislation also requires that parties who apply for licenses under this provision must assume specific public interest obligations in exchange for their prompt licensing. The bill requires full must- carry of local television stations, and an additional set aside of 4 percent of system capacity for other pubic interest purposes such as telemedicine and distance learning. I can assure my colleagues that these are issues particularly important in rural areas in states like Louisiana.

The ECCA will also promote public safety, in two ways. First, it will require MVDDS licensees to air Emergency Alert System warnings, including AMBER alerts for missing children. EAS warnings are presently carried by cable systems and over-the-air broadcasters, but they are not seen by those who get their programming from DBS unless the viewer happens to be watching a local channel. Obviously, the need for greater dissemination of EAS warnings is particularly important for the ten states in which no local stations are carried via satellite.

Second, this legislation requires MVDDS licensees to make their transmission systems available to national security and emergency preparedness personnel on a top-priority basis in times of need. We all know that when emergencies strike, the need for public safety personnel to communicate with one another skyrockets. MVDDS wireless networks, which will be deployed ubiquitously throughout the country, can help alleviate this thirst for spectrum.

For these reasons, I believe that Congress should act on this matter as soon as possible. I urge my colleagues to support his bill and vote for enactment. I as, unanimous consent that the text of this bill be printed in the Record.