|Dingell Deposed by
11/20. The House Democratic Caucus voted to replace
Rep. John Dingell (D-MI) with
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.
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. 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,
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
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
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
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
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
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
Second, he has infrequently attended full committee hearings in tech and
communications issues and bills. He has also missed some key full committee
Third, he has not been active in sponsoring technology or communications
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
(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.
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
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
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
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.
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
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
|PFF Paper Addresses
Kafkaesque Cable Regulation at FCC
11/20. The Progress & Freedom Foundation (PFF)
[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
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
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.
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.
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,
the Federal Register: October 28, 2008, Vol. 73, No. 209, at Page 63946.
Location: NIST, Administration Building, Lecture Room E,
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,
the Federal Register, November 3, 2008, Vol. 73, No. 213, at Page 65414.
Location: NSF, 4201 Wilson Boulevard, Stafford I, Third Floor, Room 375,
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
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
Sascha Meinrath (NAF), and
Calabrese (NAF). See,
registration page. Location: NAF, 7th floor, 1630 Connecticut
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
E-Mail Alert No. 1,797, July 22, 2008. Location:
Day two of a two day conference titled "9th
Security 2008 Conference and Exhibition". See,
agenda. Location: Ronald Reagan Building , 1300 Pennsylvania
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.
notice in the Federal Register, October 14, 2008, Vol. 73, No. 199,
at Pages 60658-60662, and
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.
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.
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,
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.
Thanksgiving Day. See, Office of Personnel Management's (OPM)
list of 2008 federal holidays.
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.
11/20. The National
Cable & Telecommunications Association (NCTA) announced in a
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
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
11/20. The Government Accountability
Office (GAO) released a
[85 pages in PDF] titled "Health Information Technology: More Detailed Plans
Needed for the Centers for Disease Control and Prevention’s Redesigned BioSense
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.
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