Tech Law Journal Daily E-Mail Alert
November 20, 2008, Alert No. 1,860.
Home Page | Calendar | Subscribe | Back Issues | Reference
Dingell Deposed by Waxman

11/20. The House Democratic Caucus voted to replace Rep. John Dingell (D-MI) with Rep. Henry Waxman (D-CA) as Chairman of the House Commerce Committee (HCC).

The vote was by secret ballot. However, various trade groups and news media have stated that the vote was 137 to 122.

Rep. John DingellRep. Dingell (at left) has been in the House for over 53 years -- longer than any other member. He has been either the Chairman or ranking Democrat on the HCC for 28 years.

Rep. Henry Waxman Rep. Waxman (at right) has been in the House for 33 years, and ranks 12th out of 435 members in seniority. He is one of the last of what was once the large Democratic post-Watergate class of 1974. The only other remaining members are Rep. George Miller (D-CA) and James Oberstar (D-MN). See, House seniority list [PDF].

Rep. Dingell has long been active on communications issues and overseeing, and sometimes instructing, the Federal Communications Commission (FCC). Rep. Waxman has been absent from most Committee hearings on communications and technology related issues.

Rep. Dingell stated in a release that "this was clearly a change year and I congratulate my colleague Henry Waxman on his success today. I will work closely with him on the issues facing the Energy and Commerce Committee and for a smooth transition."

He added "What will not change, however, and what will never change, is my commitment to the working men and women of the 15th Congressional District of Michigan who have honored me with the opportunity to represent them here in Washington. That commitment -- to protecting and creating jobs, to providing health care for all Americans, to working to getting our state and nation's economy back on track -- is a fight I will continue to wage in Washington."

Rep. Dingell had clashed with Rep. Nancy Pelosi (D-CA), the Speaker of the House, particularly over environmental policy.

She stated in a release after the vote that "Henry Waxman will bring to the post of Chairman of the Energy and Commerce Committee the outstanding leadership he has demonstrated as Chair of the Committee on Oversight and Government Reform. He has been a longtime leader on health care, drug safety and affordability, and climate change. Under his leadership, the committee and the entire caucus will make progress toward making America energy independent, making health care available to all Americans, and addressing the greatest challenge of our time, global warming."

Rep. Steny Hoyer (D-MD, the Democratic Majority Leader, stated in a release that he congratulates Rep. Waxman, and looks forward "to working with him on the critical health and energy challenges facing our country". Rep. Hoyer added that "we seek to adopt legislation addressing global warming, health care, and regulatory reform"

Wayne Crews, of the Competitive Enterprise Institute (CEI), stated in a release that "Waxman will also have jurisdiction over net neutrality, the notion that networks should be controlled by anyone other than those who built them. Waxman has supported the policy in the past and will likely work with the Obama administration to codify this ill-conceived notion into law."

He added that "We should expect the ``Fairness Doctrine´´ issue to re-emerge in some form."

Rep. Waxman's Record on Technology and Communications Issues

11/20. Rep. Henry Waxman (D-CA) has long been a member of both the House Commerce Committee (HCC) and the House Oversight Government Reform Committee (HOGRC).

He has also long been the Chairman or ranking Democrat on the HOGRC. His leadership of the HOGRC has led him to be inactive on the HCC, particularly on technology and communications issues.

First, he is not a member of the HCC's Subcommittee on Telecommunications and the Internet.

Second, he has infrequently attended full committee hearings in tech and communications issues and bills. He has also missed some key full committee votes.

Third, he has not been active in sponsoring technology or communications related legislation.

Nevertheless, there are reasons to expect that he will support network neutrality mandates, back legislation and FCC actions to regulate of the practices and/or prices of some communications industry sectors, but be protective of the interests of the movie industry.

2001 Tauzin Dingell Bill. One of the key legislative contests in recent Congresses involving communications industry regulation was over the Tauzin Dingell bill. It was HR 1542 (107th Congress), the "Internet Freedom and Broadband Deployment Act". It produced much debate, as well as roll call votes in the HCC and the House.

On May 9, 2001, the HCC marked up the bill. Rep. Waxman voted against. Rep. Dingell voted for his bill. Rep. Waxman also voted for two amendments that would have watered down the bill, one regarding build out requirements, and the other regarding line sharing. He missed votes on two other amendments.

See, table titled "Roll Call Votes at the House Commerce Committee Mark Up of HR 1542, the Internet Freedom and Broadband Deployment Act of 2001 (Tauzin Dingell Bill)".

The full House passed the bill on February 27, 2002. Rep. Waxman voted against the bill. Rep. Dingell voted for the bill. See, Roll Call No. 45. The Senate did not pass the bill.

2006 Communications Reform Bill. Another key legislative contest that produced roll call votes was the 2006 communications reform bill, which went under different titles.

On April 26, 2006, the HCC amended and approved a huge communications reform bill. It later passed the House, but not the Senate.

The HCC rejected on a roll call vote of 22-29 an amendment offered by Rep. Waxman that would have prohibited discrimination by cable operators on the basis of income.

It provided, in part, that "A cable operator with a national franchise under this section shall not deny or offer inferior access to its cable service to any group of potential or current residential cable service subscribers in a manner that has the purpose or effect of discriminating against that group on the basis of the income of that group."

There was also a network neutrality amendment, offered by Rep. Ed Markey (D-MA), which failed. Rep. Waxman voted for it. Rep. Waxman also voted against final passage. Rep. Dingell also voted for the network neutrality amendment, and against final passage. See, stories titled Amendment by Amendment Summary of Full Committee Mark Up of COPE Act" and "Roll Call Votes On COPE Act" in TLJ Daily E-Mail Alert No. 1,360, April 28, 2006.

The full House amended and passed the bill on June 8, 2006. Rep. Waxman and Rep. Dingell voted in favor another network neutrality amendment. See, Roll Call No. 239. Both voted against final passage. See, Roll Call No. 241. See also, story titled "House Approves COPE Act, Without Network Neutrality Amendment" in TLJ Daily E-Mail Alert No. 1,388, June 9, 2007.

Dingell's Whip Team. During the contest between Rep. Waxman and Rep. Dingell, Rep. Dingell released his whip list of key supporters. One thing that may be significant is that it included many of the members of the HCC who in 2006 opposed network neutrality and supported the communications reform bill.

Rep. Ed Towns (D-NY), Rep. Bobby Rush (D-IL), former Rep. Al Wynn (D-MD), Rep. Gene Green (D-TX), and Rep. Charlie Gonzales (D-TX) were the five Democrats who voted in committee against the network neutrality amendment on April 26, 2008. All but Wynn were members of Rep. Dingell's whip team, and he is no longer a member of the House.

Also, Rep. Rick Boucher (D-VA), Rep. Mike Ross (D-AR), and Rep. Bart Gordon (D-TN) voted against network neutrality, but for passage. They too were members of Dingell's whip team.

Rep. Dingell's whip list also includes many members who voted for the Tauzin Dingell bill in 2001, including Rep. Baron Hill (D-IN).

This shows that the members of the House who have supported a less regulatory approach to communications and the internet tended to back Rep. Dingell, and oppose Rep. Waxman. And this may reflect their understandings of Rep. Waxman's views and policy goals.

Intellectual Property. Rep. Waxman was a sponsor of the landmark 1984 Hatch-Waxman act, the full title of which is the "Drug Price Competition and Patent Term Restoration Act". It became Public Law No. 98-417.

The House Judiciary Committee (HJC), and not the HCC, has jurisdiction over intellectual property legislation. However, in the past decade the HCC has sometimes acted as though it has concurrent jurisdiction, often for the purpose of working to limit the scope of copyright protection.

Rep. Waxman represents a Los Angeles area district that is home to many movie industry businesses, facilities, and workers. Moreover, he has long had a close relationship with Rep. Howard Berman (D-CA), who represents an adjacent district. Rep. Berman is the Chairman of the HJC's Subcommittee on Courts, the Internet and Intellectual Property, and a leading protector of the copyright interests of the movie and records industries.

Rep. Rick Boucher (D-VA) has long labored to enact a fair use exemption to the anti-circumvention provisions of the Digital Millennium Copyright Act through the HCC. He was one of Rep. Dingell backers.

Thus, there are reasons to speculate that Rep. Waxman will use his Chairmanship of the HCC to protect the intellectual property rights of his movie industry constituents in legislative contests, and before the FCC. He may also work to protect the movie industry's interests in other FCC proceedings.

Other Issues. The National Association of Broadcasters (NAB), which has vigorously opposed the FCC's white space order, has circulated a list of "70 lawmakers" who "have expressed concern over the use of unlicensed personal-portable devices in the broadcast spectrum". This list does not include Rep. Waxman. It does not include Rep. Dingell either. Although, some members of the HCC, and its STI, are on the list.

The FCC's database of filed comments contains correspondence between Rep. Waxman and the FCC from 1993 regarding an FCC rulemaking proceeding regarding private land mobile radio services operating in the frequency bands below 512 MHz. Rep. Waxman relayed the concerns of model aircraft fliers from his district. See, FCC Docket No. 92-235.

House Commerce Committee Democrats Write EPA Regarding E-Waste

11/19. Rep. John Dingell (D-MI), Rep. Gene Green (D-TX), and Rep. Bart Stupak (D-MI) sent a letter [6 pages in PDF] to Stephen Johnson, Administrator of the Environmental Protection Agency (EPA), regarding electronic waste, such a lead in cathode ray tubes (CRTs). The letter also addresses cell phones, laptops, printers, and Blackberries.

They wrote that the House Commerce Committee (HCC), of which all three are members, "is concerned about the health, safety and environmental implications posed by the vast amount of e-waste that is exported from this country to developing nations for recylcling."

The letter also propounds interrogatories to be answered by the EPA. For example, the three ask "How much e-waste of all kinds, including cell phones, laptops, printers, and Blackberries have been exported from the United States since January 1, 2007?"

The letter also asks "Do some laptops and cell phones meet the RCRA regulatory definition of hazardous waste ...?"

The letter also enquires about EPA e-waste enforcement activities. The letter requests responses by December 1, 2008.

Rep. Dingell is the outgoing Chairman of the HCC. Rep. Green is currently the Chairman of the HCC's Subcommittee on the Environment and Hazardous Materials. Rep. Stupak is the current Chairman of the HCC's Subcommittee on Oversight and Investigations.

PFF Paper Addresses Kafkaesque Cable Regulation at FCC

11/20. The Progress & Freedom Foundation (PFF) released a paper [11 pages in PDF] titled "Der Undue Prozess at the FCC: Part Deux". The author is the PFF's Barbara Esbin. This paper is another criticism of the tactics and methods used by the FCC.

In this paper, the PFF states that the FCC's Enforcement Bureau, "at the direction of Chairman Martin, seems to be conducting a far-ranging data gathering exercise on cable programming channel movement and pricing practices under the guise of individual complaint enforcement".

See also, story titled "NCTA Complains Regarding FCC Letters of Inquiry" in TLJ Daily E-Mail Alert No. 1,856, November 12, 2008.

This PFF paper argues that there are "four flaws in the FCC's investigation: (1) the FCC has very limited authority to regulate cable rate levels; (2) to the extent lack of advance notice of channel moves is at issue, local franchising authorities (LFAs), not the FCC, are statutorily empowered to carry out enforcement activities; (3) the FCC has no rules either prohibiting cable operators from migrating cable programming channels from analog to digital transmission or requiring corresponding per-channel rate reductions; and (4) to the extent the FCC is required by Congress to collect data on the multichannel video programming distributor (MVPD) market and cable pricing generally, the agency is directed to do so by means of its annual video competition and price survey reports."

It concludes that "This is no ordinary FCC enforcement action and it is difficult to conceive of how this use of agency resources will further two of the FCC’s most pressing current goals: ensuring a smooth transition to digital television transmission and encouraging the speedy deployment of ever higher-speed broadband Internet services. In fact, the probe is more likely to slow progress on each front as enormous resources are diverted to producing and reviewing information relevant mostly to activities that lie outside the scope of the FCC’s regulatory jurisdiction."

Der Prozess is the title of a story by Franz Kafka, which is usually translated into English as "The Trial". On August 15, 2008, the PFF released a paper [15 pages in PDF], also by Esbin, titled "``The Law is Whatever the Nobles Do;´´ Undue Process at the FCC". It is a criticism of the FCC's order [67 pages in PDF] adopted on August 1, 2008, and released on August 20, asserting authority to regulate the network management practices of Comcast and other broadband internet access providers.

In This Issue

This issue contains the following items:
 • Dingell Deposed by Waxman
 • Rep. Waxman's Record on Technology and Communications Issues
 • House Commerce Committee Democrats Write EPA Regarding E-Waste
 • PFF Paper Addresses Kafkaesque Cable Regulation at FCC
 • People and Appointments (Mukasey faints, Cartwright leaves SEC, and NCTA elects directors)
 • More News

Washington Tech Calendar
New items are highlighted in red.
Friday, November 21

8:00 AM - 5:30 PM. Day five of a five day closed meeting of the National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award. The panel will conduct final judging of the 2008 applicants. See, notice in the Federal Register: October 28, 2008, Vol. 73, No. 209, at Page 63946. Location: NIST, Administration Building, Lecture Room E, Gaithersburg, MD.

8:30 - 11:45 PM. Day two of a two day meeting of the National Science Foundation's (NSF) Advisory Committee for Social, Behavioral, and Economic Sciences. See, notice in the Federal Register, November 3, 2008, Vol. 73, No. 213, at Page 65414. Location: NSF, 4201 Wilson Boulevard, Stafford I, Third Floor, Room 375, Arlington, VA.

9:00 - 11:00 AM. The Information Technology and Innovation Foundation (ITIF) will host a debate titled "Are Broadband Markets Competitive Enough?" The speakers will be Jeff Eisenach (Chairman of Empiris), Ev Ehrlich (President of ESC Company), and John Windhausen (President of Telepoly). Eisenach and Ehrlich will argue that the broadband market is competitive, and will present two new papers titled "The Reality of Competition in the Broadband Market" and "U.S. Broadband Policies: A Market-Oriented Success Story." Windhausen will argue that the broadband market is not fully competitive. Robert Atkinson (head of the ITIF) will moderate. See, notice and registration page. Location: ITIF, Suite 200, 1250 Eye St., NW.

12:15 - 1:45 PM. The New America Foundation (NAF) will host a panel discussion titled "Homes With Tails: What If You Could Own Your Internet Connection?" The speakers will be Tim Wu (Columbia Law School), Derek Slater (Google), Robert Atkinson (Information Technology and Innovation Foundation), Sascha Meinrath (NAF), and Michael Calabrese (NAF). See, notice and registration page. Location: NAF, 7th floor, 1630 Connecticut Ave., NW.

2:15 PM. The U.S. District Court (DC) will hold a sentencing hearing in US v. E-Gold, D.C. No. 07-cr-0109, a criminal prosecution of a business that enabled people to engage in anonymous online financial transactions. See, story titled "DOJ Obtains Guilty Pleas in E-Gold Case" in TLJ Daily E-Mail Alert No. 1,797, July 22, 2008. Location: Courtroom 2.

Day two of a two day conference titled "9th Security 2008 Conference and Exhibition". See, agenda. Location: Ronald Reagan Building , 1300 Pennsylvania Ave., NW.

Monday, November 24

The Senate will meet in pro forma session.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Intellectual Property Practice Committee will host a brown bag lunch titled "The Copyright Royalty Board: Recent Decisions". The speakers will be Bruce Joseph (Wiley Rein), David Oxenford (Davis Wright Tremaine), Robert Garrett (Arnold & Porter), and Tom Perrelli (Jenner & Block). Location: Dow Lohnes, 1200 New Hampshire Ave., NW.

Extended deadline to submit comments to the Copyright Office (CO) in response to its request for comments regarding its proposal to raise fees for registration of claims, special services and Licensing Division services. See, original notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60658-60662, and notice of extension in the Federal Register, October 31, 2008, Vol. 73, No. 212, at Pages 64905-64906. See also, story titled "Copyright Office Proposes to Raise Registration Fees" in TLJ Daily E-Mail Alert No. 1,843, October 15, 2008.

Tuesday, November 25

10:30 AM. The Heritage Foundation will host an event titled "Taiwan, Democracy, and the Rule of Law". The speakers will be Ching Jyh Shieh (Former Deputy Minister of the National Science Council, Republic of China) and Stephen Yates (Heritage). Location: Heritage, 214 Massachusetts Ave., NE.

Wednesday, November 26

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the FNPRM portion of its November 5, 2008, Order on Remand regarding universal service, IP enabled services, intercarrier compensation, and other topics. See, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66821-66830. The FCC adopted and released this Order on Remand and Report and Order and Further Notice of Proposed Rulemaking [430 pages in PDF] on November 5. FCC Chairman Kevin Martin offered this explanation in his statement associated with this item: "Today we tell the U.S. Court of Appeals for the D.C. Circuit and the Federal-State Joint Board on Universal Service that, after years of deliberation, we are still unready to move forward with comprehensive reform of intercarrier compensation and universal service. Instead, we issue another open-ended Further Notice of Proposed Rulemaking on a variety of approaches for comprehensive reform, and my colleagues promise to act on it by December 18." This item is FCC 08-262 in WC Docket No. 05-337, CC Docket No. 96-45, and WC Docket No. 03-109, WC Docket No. 06-122, and CC Docket No. 99-200, CC Docket No. 96-98, and CC Docket No. 01-92, CC Docket No. 99-68, and WC Docket No. 04-36.

Thursday, November 27

Thanksgiving Day. See, Office of Personnel Management's (OPM) list of 2008 federal holidays.

Friday, November 28

Deadline to submit comments to the U.S. Department of Agriculture's (USDA) Rural Utilities Service (RUS) regarding its proposed rules regarding standards and specifications for timber products acceptable for use by Rural Development Utilities Programs' electric and telecommunications borrowers. See, notice in the Federal Register, September 29, 2008, Vol. 73, No. 189, at Pages 56513-56528.

People and Appointments

11/20. The National Cable & Telecommunications Association (NCTA) announced in a release that Decker Anstrom (P/COO of Landmark Communications) resigned his seat as Chairman of the NCTA Board of Directors. The NCTA Board of Directors elected Tom Rutledge (COO of Cablevision Systems) as his replacement. The Board also elected Pat Esser (President of Cox Communications) as Vice Chair, Bob Miron (Ch/CEO of Advance/Newhouse Communications) as Treasurer, and Neil Smit (P/CEO of Charter Communications) as Secretary.

11/20. Brian Cartwright, General Counsel of the Securities and Exchange Commission (SEC), announced his departure from the SEC. See, SEC release.

11/20. Outgoing Attorney General Michael Mukasey was hospitalized on November 20, 2008. A Department of Justice (DOJ) spokesman stated at a news conference on November 21 that "There is no indication that he suffered a stroke or any heart-related incident. It really appears to have been a fainting spell." See, transcript. AG Mukasey wrote in a statement that "I collapsed briefly last night at the conclusion of a speech. All tests at the hospital have come back with good results, and I feel fine. Accordingly, I plan to report to the Department this afternoon".

More News

11/20. The Government Accountability Office (GAO) released a report [85 pages in PDF] titled "Health Information Technology: More Detailed Plans Needed for the Centers for Disease Control and Prevention’s Redesigned BioSense Program".

10/20. The U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register that clarifies its new rules governing practice before the Board of Patent Appeals and Interferences (BPAI) in ex parte patent appeals. The USPTO published a notice in the Federal Register on June 10, 2008, that announced, described, recited, and set the effective date for these new rules. The just published notice clarifies that "The effective date provision in the final rule states that the effective date is December 10, 2008, and the final rule shall apply to all appeals in which an appeal brief is filed on or after the effective date. The final rule requires, in part, appeal briefs in a new format relative to the format required prior to the rule revision. The Office is issuing this notice to clarify that it will not hold an appeal brief as non-compliant solely for following the new format even though it is filed before the effective date." See, Federal Register, June 10, 2008, Vol. 73, No. 112, at Pages 32937-32977. See also, Federal Register, November 20, 2008, Vol. 73, No. 225, at Page 70282.

About Tech Law Journal

Tech Law Journal publishes a free access web site and a subscription e-mail alert. The basic rate for a subscription to the TLJ Daily E-Mail Alert is $250 per year for a single recipient. There are discounts for subscribers with multiple recipients.

Free one month trial subscriptions are available. Also, free subscriptions are available for journalists, federal elected officials, and employees of the Congress, courts, and executive branch. The TLJ web site is free access. However, copies of the TLJ Daily E-Mail Alert are not published in the web site until two months after writing.

For information about subscriptions, see subscription information page.

TLJ is published by David Carney
Contact: 202-364-8882.
carney at techlawjournal dot com
P.O. Box 4851, Washington DC, 20008.

Privacy Policy
Notices & Disclaimers
Copyright 1998-2008 David Carney. All rights reserved.