[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2011
_______________________________________________________________________
HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
________
SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT
APPROPRIATIONS
JOSE E. SERRANO, New York, Chairman
DEBBIE WASSERMAN SCHULTZ, Florida JO ANN EMERSON, Missouri
ROSA L. DeLAURO, Connecticut JOHN ABNEY CULBERSON, Texas
CHAKA FATTAH, Pennsylvania MARK STEVEN KIRK, Illinois
BARBARA LEE, California ANDER CRENSHAW, Florida
ADAM SCHIFF, California
STEVE ISRAEL, New York
TIM RYAN, Ohio
NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full
Committee, and Mr. Lewis, as Ranking Minority Member of the Full
Committee, are authorized to sit as Members of all Subcommittees.
Lee Price, Bob Bonner, Angela Ohm, and Ariana Sarar
Subcommittee Staff
________
PART 7
Page
Consumer Product Safety Commission............................... 1
Election Assistance Commission................................... 121
Federal Communications Commission................................ 195
S
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Printed for the use of the Committee on Appropriations
PART 7--FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR
2011
?
FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2011
_______________________________________________________________________
HEARINGS
BEFORE A
SUBCOMMITTEE OF THE
COMMITTEE ON APPROPRIATIONS
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
________
SUBCOMMITTEE ON FINANCIAL SERVICES AND GENERAL GOVERNMENT
APPROPRIATIONS
JOSE E. SERRANO, New York, Chairman
DEBBIE WASSERMAN SCHULTZ, Florida JO ANN EMERSON, Missouri
ROSA L. DeLAURO, Connecticut JOHN ABNEY CULBERSON, Texas
CHAKA FATTAH, Pennsylvania MARK STEVEN KIRK, Illinois
BARBARA LEE, California ANDER CRENSHAW, Florida
ADAM SCHIFF, California
STEVE ISRAEL, New York
TIM RYAN, Ohio
NOTE: Under Committee Rules, Mr. Obey, as Chairman of the Full
Committee, and Mr. Lewis, as Ranking Minority Member of the Full
Committee, are authorized to sit as Members of all Subcommittees.
Lee Price, Bob Bonner, Angela Ohm, and Ariana Sarar
Subcommittee Staff
________
PART 7
Page
Consumer Product Safety Commission............................... 1
Election Assistance Commission................................... 121
Federal Communications Commission................................ 195
S
________
U.S. GOVERNMENT PRINTING OFFICE
62-205 WASHINGTON : 2010
COMMITTEE ON APPROPRIATIONS
DAVID R. OBEY, Wisconsin, Chairman
NORMAN D. DICKS, Washington JERRY LEWIS, California
ALAN B. MOLLOHAN, West Virginia C. W. BILL YOUNG, Florida
MARCY KAPTUR, Ohio HAROLD ROGERS, Kentucky
PETER J. VISCLOSKY, Indiana FRANK R. WOLF, Virginia
NITA M. LOWEY, New York JACK KINGSTON, Georgia
JOSE E. SERRANO, New York RODNEY P. FRELINGHUYSEN, New
ROSA L. DeLAURO, Connecticut Jersey
JAMES P. MORAN, Virginia TODD TIAHRT, Kansas
JOHN W. OLVER, Massachusetts ZACH WAMP, Tennessee
ED PASTOR, Arizona TOM LATHAM, Iowa
DAVID E. PRICE, North Carolina ROBERT B. ADERHOLT, Alabama
CHET EDWARDS, Texas JO ANN EMERSON, Missouri
PATRICK J. KENNEDY, Rhode Island KAY GRANGER, Texas
MAURICE D. HINCHEY, New York MICHAEL K. SIMPSON, Idaho
LUCILLE ROYBAL-ALLARD, California JOHN ABNEY CULBERSON, Texas
SAM FARR, California MARK STEVEN KIRK, Illinois
JESSE L. JACKSON, Jr., Illinois ANDER CRENSHAW, Florida
CAROLYN C. KILPATRICK, Michigan DENNIS R. REHBERG, Montana
ALLEN BOYD, Florida JOHN R. CARTER, Texas
CHAKA FATTAH, Pennsylvania RODNEY ALEXANDER, Louisiana
STEVEN R. ROTHMAN, New Jersey KEN CALVERT, California
SANFORD D. BISHOP, Jr., Georgia JO BONNER, Alabama
MARION BERRY, Arkansas STEVEN C. LaTOURETTE, Ohio
BARBARA LEE, California TOM COLE, Oklahoma
ADAM SCHIFF, California
MICHAEL HONDA, California
BETTY McCOLLUM, Minnesota
STEVE ISRAEL, New York
TIM RYAN, Ohio
C.A. ``DUTCH'' RUPPERSBERGER,
Maryland
BEN CHANDLER, Kentucky
DEBBIE WASSERMAN SCHULTZ, Florida
CIRO RODRIGUEZ, Texas
LINCOLN DAVIS, Tennessee
JOHN T. SALAZAR, Colorado
PATRICK J. MURPHY, Pennsylvania
Beverly Pheto, Clerk and Staff Director
(ii)
FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2011
----------
Thursday, March 4, 2010.
FISCAL YEAR 2011 BUDGET FOR THE CONSUMER PRODUCT SAFETY COMMISSION
WITNESSES
INEZ TENENBAUM, CHAIRMAN, U.S. CONSUMER PRODUCT SAFETY COMMISSION
NANCY NORD, COMMISSIONER, U.S. CONSUMER PRODUCT SAFETY COMMISSION
Introduction of Witnesses--Chairman Serrano
Mr. Serrano. The committee will come to order. We welcome
you to this very cozy room.
Today the subcommittee meets to discuss the fiscal year
2011 budget request of the Consumer Product Safety Commission.
Joining us today are the Chairman of the CPSC, Inez Tenenbaum,
as well as CPSC Commissioner, Nancy Nord. We thank you both for
joining us today.
Chairman Serrano's Opening Statement
For fiscal year 2011, the budget request for the Consumer
Product Safety Commission is $118.6 million. The agency has
seen its responsibilities grow enormously for the last few
years. In response to a large number of product hazards and
product recalls, Congress enacted the Consumer Product Safety
Improvement Act of 2008. This law, together with other recent
legislation addressing pool and spa safety and the protection
of children from gasoline burns, provides for important
consumer protections but has also essentially doubled the
workload of the CPSC. It is important to determine whether the
agency staffing levels are adequate to fulfill these
responsibilities.
In 2007, when I became Chairman of this subcommittee, the
agency had fewer than 400 full-time employees. Funding
increases provided by this subcommittee have enabled the CPSC
to grow to 530 full-time employees in fiscal year 2010, a more
than 30 percent increase in staffing in 3 years. However, this
is still far less than the agency staffing 30 years ago when it
had 978 employees.
A strong CPSC is more important than ever. This is
particularly evident in the area of imported products. The
volume of imported products has doubled in the last 15 years,
and while imports account for 20 percent of all consumer
product purchases, they account for more than 80 percent of
recent product recalls. GAO reported last August that the
CPSC's ability to monitor imported products is limited by
staffing shortfalls. The Fiscal Year 2010 Appropriations Act
included funding to help address this problem, and I am pleased
that the fiscal year 2011 budget requests additional resources
for the agency and for the import safety initiative. It is
important for this subcommittee to determine whether these
resources are truly adequate to ensure the safety of imported
products.
The Commission has worked hard to implement the many
provisions of a Consumer Product Safety Improvement Act. At the
same time, we have heard about confusion among manufacturers,
distributors and retailers about particular requirements. I am
interested in knowing how implementation is going right now,
whether industry is complying, and whether the CPSC is devoting
adequate resources to enforcing the new laws, and many
important consumer protections.
In addition to implementing these consumer protections, the
new law directed CPSC to establish a public Internet-accessible
database on the safety of consumer products. The agency is also
preparing to move into a modernized laboratory facility
designed to enhance its research on product hazards.
Furthermore, the agency has begun an effort to work more
closely with manufacturers and regulators in China by opening
an office in Beijing. I am interested in hearing about the
status of all of these efforts and how budget requests will
enhance them going forward.
Chairman Tenenbaum joined the Commission in June 2009. She
has a long history of public service, including 8 years as
South Carolina's State superintendent of education.
Commissioner Nord is no stranger to this subcommittee. This
is her third appearance before us. She has served on the CPSC
since 2005 and served as Acting Chairman from 2006 to 2009.
We thank you both for your testimony. We look forward to a
very informative discussion. And I also look forward to a great
baseball season where the Cardinals will do almost as good as
my Yankees.
Mrs. Emerson. Hey now, we have really, really done a great
job on recruitment this year, so I am not certain of that, Mr.
Chairman, I must add. But Debbie and I are actually the
cochairs of the congressional softball team, and we start our
practice next week. You will be happy to know that since we are
playing the women of the press, that we actually think we will
prevail this year since at least there is not such an age
differential where we set ourselves up for failure last time
and Debbie broke her leg. But other than that, we are getting
all ready, we are getting all ready for a wonderful, wonderful
baseball season. And I truly am excited. I don't know anything
about this new Brad Penny, this new pitcher we have gotten, but
he has been around a while. Do you know anything about him?
Mr. Serrano. Yes. He is good, unfortunately.
Mrs. Emerson. Thank you. Thanks, Mr. Chairman.
Mr. Serrano. Jo Ann Emerson, ladies and gentlemen.
Mrs. Emerson. I have the app on my phone so I can get all
the Cardinals news, like Google alerts, Cardinals alerts.
Mr. Serrano. Who says Members of Congress are not regular
people?
Mrs. Emerson's Opening Statement
Mrs. Emerson. I do love my Cardinals, I must tell you.
Anyway, thanks for holding this very important hearing.
Thank you all very much for being here today. We do welcome you
for your first appearance, Madam Chair.
And, Commissioner Nord, thank you for being back for the
third time? Third time.
Anyway, as the Chairman said, you all have received large
funding increases since 2007 compared to other agencies, and I
really am anxious to hear how you all are spending those funds
and hiring the necessary people to do the important work that
we keep laying upon you all.
I also want to say that I did vote for the Consumer Product
Safety Improvement Act. And I, like most members of the
committee, believe that protecting consumers should be our top
concern of the business community and the regulatory community.
And facilitating those goals should be one of our most
important, if not the most important, responsibility we have.
But we are also charged here in Congress with addressing
the unintended consequences of its actions. And with respect to
the CPSIA, this means realizing that in addition to the
benefits of the statute, there has been some avoidable damages
to small businesses, domestic manufacturers, thrift stores and
charities. And I think we can all agree upon that. However, our
economy isn't as resilient today as it has been in the past, so
it is really very, very important that we not ignore those jobs
lost or those that could be lost due to unnecessary aspects of
this statute.
The 2010 appropriations bill directed the Commission to
provide recommendations to the Congress on changes needed to
CPSIA, and for whatever reason that I cannot understand, I
don't know why these recommendations have become politicized in
this body, but it appears, as usual, that logic and sensible
actions are not immune from partisanship in Washington.
Let me close by stating that regulation is a balancing act
so that consumers, especially children, are protected, but
businesses are able to operate without unnecessarily burdensome
requirements. And I want to say this because as we try our best
to jump-start the economy, I have met with hundreds of small
business people over the last month, all of whom tell me that
you can give me a tax credit, you can take away my--the need
for me to pay payroll taxes, but at the end of the day, it is
the uncertainty in the economy and the burdensome regulations
that are thrust upon my business each and every day that no
other country or competitor faces that are causing me not to
hire people. This is what they have said across the board. So
that is worrisome, and that is why I am hopeful that we will
all be able to work together to maximize the benefits and
minimize the detriment of this statute and the work that you
all are doing.
So thanks, and I look forward to hearing your testimony.
Mr. Serrano. Thank you.
Mr. Serrano. Now we will take your testimony. Please keep
in mind that we would like you to keep your testimony to 5
minutes. And then, of course, your full text will be included
in the record.
Chairman Inez Tenenbaum's Opening Statement
Ms. Tenenbaum. Thank you. Good morning, Mr. Chairman,
Ranking Member Emerson and Members of the Subcommittee on
Financial Services and General Government. I am so pleased to
be here to discuss the U.S. Consumer Product Safety
Commission's fiscal year 2011 budget request.
During the past 8 months, as Chairman of the CPSC, I have
had the great opportunity to see firsthand the great work that
the Commission undertakes every single day, from new
regulations to ensure the safety of cribs to enforcement
actions against children's jewelry with harmful levels of lead,
cadmium and other toxic metals, the CPSC is once again an
agency that means business when it comes to protecting the
safety of the American consumer.
Much of this progress would not have been possible without
the reauthorization of the Commission through the Consumer
Product Safety Improvement Act of 2008 and the additional
funding received by the agency in 2009 and 2010. I greatly
appreciate the increased resources that members of the
subcommittee have supported all through the past 2 years and
can assure all of you that those resources have been put to
good use through increased staffing, improved import
surveillance, and rapid and robust responses to new and
emerging hazards.
The results of this new commitment to the CPSC are really
very encouraging. One concrete example of this is the increased
staffing and resources at the agency. During 2008, the number
of CPSC full-time employees had dropped to only 385. This was
the lowest level in the agency's history and down from a high
of 978 in 1980. Section 202 of the CPSIA required the agency to
increase its FTEs to at least 500 by the end of 2013, and I am
pleased to report to you that we have already reached that
milestone and currently have approximately 501 FTE positions
filled at the CPSC as of March 1, 2010. In addition, we are
currently interviewing another 16 FTE positions, and have open
announcements for another 9 FTE positions. Taken as a whole,
this puts us well on track to meeting our approved FTE ceiling
of 530 in 2010.
But employee numbers are only one indicator of change.
Another key metric is results. One concrete example is that of
our ability to stop dangerous products before they enter the
stream of commerce. In fiscal year 2007, the CPSC collected
approximately 750 samples of suspect products entering our
country. In fiscal year 2009, that number rose to almost 1,600.
At the same time, we started to see a commensurate decrease in
the number of voluntary recalls, from 563 in 2008 to 466 in
2009.
The Commission's proposed 2011 budget request of $118
million, $600 thousand is designed to accelerate this forward
momentum by continuing internal modernization and rebuilding
efforts. It is noted in my written statement the proposed
fiscal year 2011 is only $400,000 over our 2010 level, but it
will allow the Commission to support the key above areas of
emphasis by reallocating $13.9 million in funds used for 2010
nonrecurring activities.
Specifically, the proposed budget will allow the Commission
to pursue new and enhanced initiatives in four key areas. The
first is the Commission's compliance initiative. Since passage
of the CPSIA, Commission staff have worked diligently to
promulgate and implement the numerous rules required by that
law. In 2011, the CPSC's work will shift from developing rules
mandated by the CPSIA to enforcing those rules, both within our
borders and at ports of entry. To further facilitate those
efforts, the CPSC's 2011 budget requests $4.6 million and the
addition of 41 full-time employees to support additional
responsibilities associated with three key elements of the
compliance program, and that is regulatory enforcement, import
surveillance and defect investigation.
The second area is information technology modernization and
the Commission implementation of a searchable public database
of consumer product safety information. Section 212(b) of the
CPSIA requires the Commission to upgrade its information
technology systems and develop a database that allows consumers
to submit incident reports that can subsequently be reviewed by
all members of the general public. In response to this mandate,
CPSC is developing a single integrated Web-based environment,
the Consumer Product Safety Risk Management System, the RMS,
which will change the way the Commission receives and analyzes
data.
The Commission has already allocated approximately $20
million to fund many of the initial planning and design costs
of the RMS and deeply appreciates this subcommittee's past
support of this program. In fiscal year 2011, funding
requirements will largely shift from design and build costs to
maintenance costs. Therefore, the 2011 budget requests $1.8
million for staffing combinations of eight FTEs and other
contract positions to maintain the system and comply with the
OMB's requirement for information technology governance,
cybersecurity and privacy.
Now, the third area of focus is consumer outreach and
education. Providing consumers with recall and product hazard
information that helps make families and communities safer is
one of my top priorities. This year and in fiscal year 2011,
the Commission plans to accelerate efforts to conduct
grassroots education and advocacy in hard-to-reach and
vulnerable populations. In August 2009, the GAO released a
report recommending that the CPSC increase its focus on
reaching minority populations. Mr. Chairman, I know that this
is a key priority for you. Since becoming the Chairman of the
CPSC, I have directed the Commission staff to explore
additional outreach efforts to underserved populations, and
this will remain a key priority going forward.
We also continue to focus on public education and outreach
efforts to prevent drownings and entrapments involving children
in residential and public pools. Congresswoman Wasserman
Schultz has been a tireless advocate of increased safety
measures and outreach in this area. And I am pleased to note
that the 2011 budget contains $1 million specifically to
continue the pool and spa safety education. This funding will
build on the previous funding of $8.1 million in fiscal year
2009 and 2010 to continue to help the agency drive down the 300
child drownings each year.
And fourth, the 2011 budget proposes an additional $200
million for CPSC to support the National Nanotechnology
Initiative. In the last few years, there has been increasing
public concern over the potential health impacts associated
with the technology. Although nanomaterials may have the same
chemical composition as non-nanomaterials, at the nanoscale
they may demonstrate different physical and chemical properties
and behave differently in the environment and in the human
body. The $2 million proposal will allow the Commission to
conduct exposure and risk assessment of nanomaterials, allow
database updates to properly flag reports of nanotechnology
incident reports in consumer products, and conduct consumer
outreach efforts such as public meetings.
Mr. Chairman, Ranking Member Emerson, thank you again for
the opportunity to testify on the proposed 2011 budget for the
U.S. Consumer Product Safety Commission. And I look forward to
working with you and other members of this subcommittee on the
budget request. And I will be happy to entertain your questions
after Commissioner Nord makes her statement.
Mr. Serrano. Thank you so much.
[The prepared statement of Chairman Inez Tenenbaum
follows:]
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Commissioner Nord's Opening Statement
Mr. Serrano. Thank you, Commissioner Nord. Welcome back.
Ms. Nord. Thank you so very much. I am delighted to be here
with my friend and colleague Chairman Tenenbaum to fully
support the agency's 2011 budget request. And I also want to
thank this subcommittee for all of the support that you have
given us to help us push forward our ongoing safety
initiatives.
Chairman Tenenbaum has mentioned the initiatives that we
plan to undertake in the next fiscal year, and these
initiatives build on the growth and the progress that we have
made over the last 2 years, and that is a direct result of the
support that this subcommittee has given us.
Since Inez has given you a good overview of our request, I
want to spend my time with you talking about a related issue,
and that is the agency's implementation of the Consumer Product
Safety Improvements Act. The CPSIA is landmark legislation. It
gave the agency important new tools, tools which we requested,
are grateful for, and which we are using. But as we implement
the CPSIA, we have seen where more flexibility in the law would
help us respond more appropriately to real-world situations in
order to avoid consequences that we don't believe that Congress
really intended.
You asked us for a report on ways in which to improve the
CPSIA to help the agency better carry out its mission, and we
sent that report in January. So let me suggest a couple of key
issues on which we could all focus.
First, I think we need to focus on products that present
real risks of injury. I know you want us to be using public
resources in the most efficient way, to address the most
pressing safety issues, and the CPSIA identifies lead poisoning
as one of those. And to be very clear, all of us believe that
lead should be removed from children's environments. That is
not open to debate, as far as I am concerned. But under the
law, we are spending immense amounts of staff time and
resources to examine and regulate things that really do not
present a lead risk to children.
Just to give you a couple of examples, we spent hours
debating whether we needed to prohibit 12-year-olds from using
ballpoint pens. The little tip that holds the ball in place has
more lead than the law allows. So that was a real question that
the agency had to deal with.
A question is presented whether your preteen daughter can
have rhinestones and lead crystals on her ballet costume. Under
the law right now, the answer is no. Any glitz is going to have
to be plastic.
The question of children's bicycles. The little Schrader
valve, the little air pressure tire valve, the tip of it has
brass in it. It needs to be there for the threads. But brass
has lead in it above the statutory limits, so it violates the
statute right now. And speaking of brass, we have ruled that it
has to be removed from children's products, even though our
scientists have found that it does not pose a risk, and that
they would have no qualms letting their children use the
products that we are banning.
And finally, I think all of you have probably heard from
your libraries. Older books may have lead in the ink that
violates the statute. So this presents a real question for
libraries and what they are going to do loaning out older
books.
We do not see a risk, real risk, with these products, but
as currently written, things like pens, books, bikes are being
pulled into this regulatory net.
Secondly, I think we need to focus on effective testing,
trying to minimize needless burdens. Some facts here. I think
all of us agree that a very rigorous testing program should be
required to ensure the safety of children's products, but the
law requires that all children's products be tested by a third-
party independent testing laboratory. And in some cases, that
probably isn't necessary. We certainly know it adds expense to
the process, and it increases costs to consumers. And some
flexibility, I think, needs to be given to the agency.
Representative Emerson referred to small businesses that I
know all of you have heard from. We have, too. A small company
just reported that they spent $50,000 having their inventory of
educational products tested even though they knew there was no
lead in them. I just talked last week to a U.S. furniture
manufacturer who has decided not to go into children's
furniture line, which he had been planning to do, because of
CPSIA. We heard from a very small business with eight employees
that adapts products, toys, for use for special needs children.
They told us they probably can't survive because of this law.
The agency needs some flexibility to deal with these situations
while still giving safety in appropriate ways.
Finally, I think we need to be focusing prospectively
rather than retroactively in how we regulate products. When I
say retroactivity, what I mean is we are dealing with
products--we are banning products that are already in the
stream of commerce rather than looking at their manufacturing
date. But that phenomenon really hits retailers, especially
resellers, much more dramatically than others. The president of
Goodwill Industries has written to us about his concerns, and
to quote his letter, he says that the CPSIA unnecessarily puts
local communities at risk. That is what he told us. The
Kentucky Goodwill has advised our colleague Commissioner
Northup that they have seen a very large drop in the number of
child items through their stores across the State of Kentucky.
The Honolulu Salvation Army has closed its entire children's
section because of liability fears.
Surely Congress did not intend this, but the agency really
needs the assistance of Congress to make this right. Our
concern is that we are now regulating products that do not
present a real risk, and it really does raise the question of
best use of scarce public resources. Whether we have two
Commissioners, three Commissioners or five Commissioners, all
of us are committed to making this law work, but we have also
united in our request for greater flexibility. We need your
assistance, and we stand ready to do everything we can to, as
you indicated, have this law maximize benefits and minimize
burdens. That is what we all want.
Thank you so much.
Mr. Serrano. Thank you.
[The prepared statement of Commissioner Nancy Nord
follows:]
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CPSIA IMPLEMENTATION
Mr. Serrano. And thank you both for your testimony.
Let me put aside for a second the questions I had prepared,
because you bring up an interesting point and one I think that
merits both dealing with the points you bring up, Commissioner
Nord, and also with a little bit of history. And my question
then would be how do we create a fair and just balance? Perhaps
Congress legislated in a way that it has created some issues
that we have to address. That is possible. It happens all the
time. But why did Congress legislate? Because of the lack of
oversight in the past and the ability to give everybody
flexibility created an unsafe environment for children and for
all Americans. So every so often in this country, we do this.
We do this with everything, not just legislating. We do it with
all kinds of issues in the House where there is a crisis, and
we react to it, and then we go perhaps beyond what we were
supposed to. I am not suggesting that is what we did. That is
what you are suggesting.
So my question is how do we now make sure that we don't
have to legislate a few years from now or a generation from now
to deal with the fact that we had such a problem before us?
Yes, there are Salvation Armies and Goodwill and other people
who are saying you did too much. But we had to because we had a
mess on our hands, and we had a very unsafe environment for our
children and for our citizens.
So my question is how do we adjust that that we have to
adjust if it is true we have to adjust, if there is a need,
without going back to the days where no one cared what came
into the country and what happened? This was not done because
one day Members of Congress got up and said, oh, what do we do
today? Okay, let us pass a new consumer law. No. It was because
we were being hit hard and people were demanding action from
us. I remember the time. People were saying, you have got to do
something. We are trying to do something. How do we balance it?
Ms. Tenenbaum. First of all, we have been working very hard
to implement the CPSIA, and we very much are mindful of the
strains on small businesses and low-volume manufacturers. We
responded to your request to come up with the report. We all
worked on this report. It was a bipartisan, unanimous report
that we sent to Congress asking for flexibility.
But in the interim we at the Consumer Product Safety
Commission have tried to provide flexibility as well. We have
issued 41 Federal Register notices, and we will have 12 more
additional rules in the next 8 weeks, because industry has told
me, ``We want to have predictability. Hurry up with these rules
so we know how to respond.''
Second of all, you had inaccessibility, and you had lead in
electronic products as an exemption to the lead requirements.
So what we also came up with were lead determinations for
textiles, for other materials that we said you don't have to
test. If you make a shirt we know it won't have lead in it.
Now, if you buy buttons from a button maker who can say they
are lead-free, then you don't have to test the shirt at all.
So we have tried to use common sense in the implementation.
We put out a guide for small businesses and reseller stores
like the Goodwills. I have been on many nonprofits, and so has
my husband, that have sponsored these resale stores. We try to
educate these resellers on what they can look for in products
to pull them from the shelves. We have done this kind of
education with resellers.
We also have come up with an enforcement policy which would
allow for component part testing so that if you buy a component
part, and it is lead free--like, if you are making blue jeans,
and you buy lead-free zippers, which YKK is making now, the
button manufacturers are making lead-free buttons, then you
don't have to test if you buy it and you have a reasonable
assurance that it does not contain lead.
So we are working to do all of this, but at the same time
we, in that report to Congress, realized that we needed
flexibility. And we all agree that the ``any lead standard''
was something that was a little too tough. It was tough for
bicycles and ATVs, and we gave a stay of enforcement so we
would not be enforcing this law against them. It was too tough
for books in terms of those published prior to 1985. The books
that are now published don't really have a lead problem because
the process does not contain lead. If you have a book with a
spiral binding, you might have a different problem because it
might contain lead. But the publishers now know what to do, and
they don't have to go test every book because they are lead-
free.
But we have asked to have this flexibility, and now it is
in the Commerce Committee. We are working with them to try to
see what is the best way to approach the flexibility. We
propose that if you could show us that the lead was needed
because it was impractical to remove, or it really did not pose
any measurable adverse health effect to the consumers, then
that was the functional purpose.
Now, we understand that there are some people in the ATV
industry that have supported that amendment to the CPSIA. The
bicycle industry supported that. So now it is the issue of
whether we have functional purpose or whether we have a risk-
based approach. Any way you approach it, it is going to be more
work for the CPSC.
What you [Congress] did was establish a bright-line test.
You said no more than 300 parts per million, which is where we
are now, in the content of lead in a product, or 90 parts per
million in terms of lead paint. So that is what we enforce. But
what we have all agreed on is that the ATVs and bicycles do not
pose the risk to the consumer, and the ATV industry has also
assured us that they can manufacture an ATV where the rider
does not come in contact with lead. So this would work for us.
FLEXIBILITY IN CPSC IMPLEMENTATION
Mr. Serrano. Let me ask you, Commissioner, you were very
clear in supporting the report that says, give us flexibility.
But in the meantime are you satisfied with some of the steps
that have been taken to give some flexibility outside Congress
giving you that?
Ms. Nord. Well, the agency is doing what it can within the
confines of the law. But on the Commission level, on the staff
level, we are very clear that our hands are tied in a number of
different ways. As the Chairman said, we are looking at
component testing, but that is out in the future. Hopefully
that will help small businesses. We don't know yet. We are
doing some other things. But we don't have the ability to
address the underlying systemic problems that we have seen come
up.
Your question is important. When the crisis with imports
hit, obviously the Congress was very concerned, the agency was
very concerned, and we were all working together at that time
to get our arms around this, also working with an admittedly
and incredibly constrained budget.
Perhaps the most effective thing to address this issue is
the fact that you all gave us resources to set up an import
surveillance division so that we would have people at the
ports. And our strategy has been to push safety as far back up
the manufacturing chain as we possibly can and then have an
ability at the ports to look more broadly at the products that
are coming in, and that is because of our agency is working
with this subcommittee and your Senate counterpart to make that
happen, and that has been really effective.
Now, obviously we understand that Congress was concerned
about this and wanted to address it, but the provisions in the
CPSIA do tie our hands in a number of different ways. And it
really ends up making us focus on all products with lead
whether the child is exposed to the lead or not. And that is
the concern we have, and that is what we would like to address.
Mr. Serrano. I can speak for myself, but I tell you, I
think Congress would be open to revisit, but I don't think
Congress on either side of the aisle is interested in going
back to the days when the situation got so out of hand, it
created the situation where we had to react.
Mrs. Emerson.
LEAD STANDARD CHANGE
Mrs. Emerson. I am not disagreeing with you, Mr. Chairman,
that we need to keep the bill, but here is just a list for you
of all the companies that have either been hurt or closed as a
result of this act, all of which are small businesses, I might
add.
Chairman, you mentioned 300 parts per million of lead, and
that is due to be reduced to 100 parts per million by August.
Ms. Tenenbaum. If technologically feasible.
LEAD CHANGE FEASIBILITY
Mrs. Emerson. If technologically feasible. But it is pretty
darn hard for a lot of companies to meet even the 300 parts per
million. In other words, companies are having to decide to use
different types of materials to make things, and, of course,
they break, and it costs the companies money. There is just a
chain reaction, if you will. So how do you determine if it is
going to be technologically feasible, number one? And number
two, what is going to happen if companies cannot, cannot find
the products that they need within that 100 parts per million
to make whatever item it is they are making?
Ms. Tenenbaum. Well, we are grappling with that now at the
CPSC on what will companies have to show us to prove that
reducing it to 100 parts per million is not technologically
feasible. Our scientists and engineers will review the criteria
that companies present us to determine if the lead is needed in
the product to make it stronger. If you need the lead, then we
will allow you to continue the 300 parts per million.
And so the other thing is that in the report to Congress in
January that we filed, we asked that that 100 parts per million
be applied prospectively and not retroactively, because there
are companies now who are meeting the 300 parts per million
standard. They will be applying to keep that standard if they
feel like it is not technologically feasible to go down to 100.
While we are reviewing their application and making these
findings, we don't want stores to be in limbo or the companies
to be in limbo on what the limit will be. So we are asking that
to be applied only prospectively.
Mrs. Emerson. I would hope so, given the fact that we have
all these companies.
But let me hear from Commissioner Nord on this question.
Ms. Nord. One of the concerns that I have about migrating
down to 100 parts per million is in order to hit the
technologically feasible standard, companies are going to have
to individually come in and make that case to us. So it could
potentially be an incredible drain on resources for the agency,
because, for example, as I indicated, brass has got lead in it,
but we can't give an across-the-board exemption. We will have
to be looking at these things on a case-by-case basis.
We also get into the situation where perhaps it is
technologically feasible. I mean, it is technologically
feasible. Recycled metal has lead in it. You can have virgin
metal. It is technologically feasible. It is very expensive.
But you can meet the 100 parts per million requirement, but to
do it is requiring these companies to spend resources
reengineering their products in a way that hits the statute,
but doesn't necessarily address safety or advance safety.
Again, my concern is that the agency really needs to be
focusing on products that are unsafe and that harm children.
That is our mission, not dealing with ballpoint pens and
bicycle tire valves where nobody gets lead poisoning from
riding a bicycle. So we would like to get off that and back
onto our core mission.
JOB LOSS AND CPSIA
Mrs. Emerson. Okay. So then I will pose the question to
you, which is obviously not part of your core mission, but the
question is begged nonetheless, and that is has the Consumer
Product Safety Commission or any other agency in the Federal
Government or executive branch, I should say, estimated the
number of jobs that will be lost as a result of this new law?
Ms. Nord. The agency has not done an economic analysis of
the impact of this law. I think it would be something that
would be very, very helpful.
Mrs. Emerson. What do you think, Chairman?
Ms. Tenenbaum. No, we do not have the ability to do that,
but I have not seen any other agency in federal government who
has done it as well.
But going back to what the Chairman mentioned, this law was
passed because of a number of egregious cases where there were
high levels of lead in paint, and in toys. Congress spent hours
listening to testimony on how lead affects the developmental
and brain development of children. It was mentioned many times
that there are no safe levels of lead.
Now, Commissioner Nord talks about that the staff does not
think that there are risks. What the staff at one point, before
you passed the CPSIA, had to rely on was the Federal Hazardous
Substance Act, and at that point, they had established that 1
microgram per deciliter, a blood lead level increase was the
standard. That was the standard until Congress set this bright
line of 300 parts per million, and 100 parts per million if
technologically feasible, and 90 parts per million for lead in
paint. So it has helped the industry to know where the bright
line is. We are struggling with the same thing now on cadmium,
cadmium and other heavy metals, that we found in high levels in
jewelry.
CADMIUM REPLACEMENT FOR LEAD
Mrs. Emerson. Is cadmium now being used to replace lead?
Ms. Tenenbaum. I have sent a strong warning in my speech to
the APEC, the Asian Pacific Economic Council, in my speech to
APEC in January. I said, do not use cadmium and other metals in
place of lead. The AQSIQ, which is our counterpart in China,
has made that same stern warning just in the last few days to
manufacturers,``Do not use cadmium and antimony, barium and
other heavy metals in place of lead.''
So we have warned them, but we also are looking now at
establishing what the limits are on cadmium in children's
jewelry that we find safe and unsafe. And that is what we had
to do on lead repeatedly, item by item.
ECONOMIC IMPACT ANALYSIS
Mrs. Emerson. I understand. In my district, 97 percent of
all the lead that is mined in the United States comes from my
district, and I am very sensitive about having lead in soil and
harming children, and that is why I was very supportive of this
particular bill. But I do think that sometimes things get out
of hand, as you all well know.
May I ask if both of you, even though you don't do it
today, would you support having an economic impact analysis
done on the effects of this law on jobs in the United States?
Ms. Tenenbaum. I would have no problems at all having
someone do an economic analysis.
Ms. Nord. I think that would be incredibly helpful. How can
you regulate if you don't know the impact of your regulations?
I think it is something we desperately need.
Ms. Tenenbaum. But we also want to make sure that we
maintain a very high level of safety for children, and that
economic impact does not override the concern for safety. And
we really agree that we need flexibility. All five
Commissioners think we need flexibility on lead. How we get
there is how we disagree. There were some who want to set a de
minimis level, and there are three of us that would rather have
a level where you have to show that you really need this lead
in the product, and it is impracticable for you to remove it,
and that you can show that there are no reasonable or
demonstrable or measurable health risks to children.
So we agree on this but not on how we get there. And
Congress will have to determine what is the most common sense
way to get there.
Ms. Nord. There is a great deal of agreement. I guess my
response would be that once you have shown that there is no
risk, then isn't that the end of the analysis? I mean, that is
really what we are trying to focus on is deal with risky
product, harmful product. If the product has no risk, then I
think we don't have any business regulating it.
Mrs. Emerson. Okay. There are so many questions, and it is
complex, but maybe we should let Debbie go.
Mr. Serrano. Before we turn to Debbie, again, this is an
issue, in my opinion, of balance, because at the expense of
making the business community angry, which I tend to do at
times, if Congress said, let the business community write all
consumer protection laws in this country, the end result might
be zero consumer protection laws in the country. It was never
the intent, nor should it ever be the intent, to legislate on
behalf of the consumer and the American public by getting rid
of jobs. But also we can't take an economic crisis and assume
that everything we legislate here is going to cost jobs, so we
can't do health care because it will cost jobs, we can't get
out of Afghanistan because it will cost defense jobs, we can't
do Consumer Product Safety Commission stuff because it will
cost jobs. I am not sure that that is--really at the end of the
road what happens.
So we have to continue to be protective of the people we
represent, while being sensitive to the fact that you are
right, if something is found not to be harmful, then maybe we
will move away and do something else. But I can tell you that
as I turn to her, when Debbie Wasserman Schultz spoke about
pools and spas, I was asked by reporters, why are you dealing
with that? In fact, one had the nerve to say there are not too
many pools in the South Bronx. I say that is not the point,
right? Well, no one questioned that what she did was very
important. What a build-up.
Ms. Wasserman Schultz. Thank you.
Mr. Serrano. And we do have a couple of pools in the South
Bronx.
CPSIA FLEXIBILITY
Ms. Wasserman Schultz. Thank you very much, Mr. Chairman.
I can appreciate the need for flexibility. Flexibility is
fine, but I think that, Commissioner Nord, you are starting
from an unfounded premise that somehow the size of the business
and what it manufactures makes it more likely to manufacture a
safe product versus a large business. So it is popular now to
carp about the need to protect small businesses and to save
jobs and make sure that we cannot lose jobs. I agree with all
of that. But I come to this debate as the only person around
this table with young children.
Mrs. Emerson. I have grandchildren.
Ms. Wasserman Schultz. I mean, I am the mother of twin 10-
year-olds and a 6-year-old. And I will just give you my own
anecdotal example. While it might not seem like a ballpoint pen
with lead in it at the tip is a dangerous product or poses a
potential risk to any child--the other day when I came home
from Washington, I saw a scratch up my son's arm from about
midforearm to midbicep, and I asked him how he got it. And he
said, Mom, I accidentally scratched myself with a pencil.
Now, I mean, it was a scabbed scratch. Now, my son is not
self-mutilating. This was just an accident. But it happens. And
if there is an unsafe level of lead, a pencil, pen, it could
have easily have happened with a ballpoint pen. Fortunately he
is in elementary school, and they are still requiring the use
of pencils and not pens, but that could cause him harm.
And during the whole debate on the CPSIA, I found that I
had one of those products in my home--this was at the time my
youngest daughter was 4--that had those little pieces that were
not meant to be placed in any child's mouth, but that children
were placing in their mouth, and they were lead balls
basically. Here is another example of a product that was
manufactured by a small business. You just recalled baby
bracelets and pacifier clips last month because of high levels
of lead, and that was manufactured by a small business.
CPSC RESOURCE NEEDS
Commissioner Nord, with all due respect, in 2007 I had an
exchange with you prior to the passage of this law, and you
argued that the Commission didn't need more resources and
didn't need more staff. So today you are praising the fact that
you have more resources and more staff. So your position is
inconsistent, with all due respect.
Ms. Nord. Thanks for the question because it gives me an
opportunity to clarify what my position was. I have never--and
I think we can go back to the record, and I would love to do
that with you--argued that we should not have more staff. What
I did, Commissioner Moore and I presented a budget that allowed
us to do certain things with the budget in front of us, but
when asked, I have always welcomed more resources.
Ms. Wasserman Schultz. The exchange was with me,
Commissioner, and I asked you specifically. My recollection is
clear. You said specifically that you didn't ask for more
resources, you didn't think it was necessary, you just thought
the size of the staff was adequate to do the job that you
needed to do. That was our exchange.
Ms. Nord. With all due respect, I would disagree. My
recollection is different.
But nevertheless, getting to the core question, no one is
arguing that small businesses by definition will never produce
an unsafe product. What we are arguing is that we need to be
focusing in on the products that cause harm, not regulating
things across the board in the kind of rote way that we are
doing it now. And that is what the CPSIA does not allow us to
do.
With respect to minimizing regulatory burdens on small
businesses when we don't think there is going to be a risk,
that is what we don't have----
LEAD IN TOYS
Ms. Wasserman Schultz. Let me ask you, since you are making
that argument. From the perspective of what parents think, we
think--and I think I can speak for lots of parents--that it is
really not understandable why a product has to have lead in it.
There are some products that I agree, the lead, but why is it
that there are certain toys that have more lead than necessary?
Why can't they just reduce the amount of lead below the limit?
Ms. Nord. If the toy has lead in it that is going to expose
the child to the lead in any kind of measurable amount----
Mr. Wasserman Schultz. I just gave you an example from this
week.
Ms. Nord. I am sorry to hear about your child, but the
scratch on his arm is not going to give him lead poisoning.
Lead poisoning is a chronic hazard. And the question should be
should we remove ballpoint pens from children's environments.
Ms. Wasserman Schultz. Why not just reduce the lead in the
tip of the ballpoint pen?
Ms. Nord. The problem is that the lead is there for a
purpose. And, yes, we could do that, and your child would not
be using ballpoint pens because they would be unaffordable. As
I said, brass is the example I used.
Ms. Wasserman Schultz. I am sorry. That is a blanket
statement that you have no qualification to back up.
Ms. Nord. I am more than happy to provide you with that.
Ms. Wasserman Schultz. Ballpoint pens would be unaffordable
unless we have lead in the tip of them?
Ms. Nord. The lead serves a purpose there. It would meet
the functional purpose.
Ms. Wasserman Schultz. So if we don't have lead in the tip
of ballpoint pens, they would be unaffordable?
Ms. Nord. You would replace it with something more
expensive.
Ms. Wasserman Schultz. Unless you can show me a
documentation and economic analysis of that, I have a hard time
understanding that.
Ms. Nord. I would be delighted to give you what we have.
But again, if the agency had done more economic analysis of
these issues, we would be in a better place to regulate, and
that is something I think we do need to be doing.
Ms. Wasserman Schultz. I support flexibility. I do not
support making sure that children are exposed to lead
unnecessarily.
Ms. Nord. Then we agree.
Ms. Wasserman Schultz. But we don't agree with the
difference between the majority of the Commission and the
minority in one which you serve where you allow a de minimis
level of lead versus ensuring that it is inappropriate for--or
not possible for a company to follow the law. The law was
debated and discussed and supported for a reason, because there
was an absence of regulation. There was no one minding the
store. And parents became scared and tired of it. And I will
tell you as a mother of young girls who wear the jewelry around
their necks, and I see them playing with it in their mouths all
the time, even though that is silly and they shouldn't do that,
if unbeknownst to them and to me it has an inappropriate level
of lead in it, then they could get lead poisoning.
Ms. Nord. We all agree on that point, And I think there is
no debate. And we want to work with you to make that happen.
POOL AND SPA SAFETY ACT GRANTS
Ms. Wasserman Schultz. There appears to be some debate.
Turning, Mr. Chairman, if I can, just to two other
subjects, one being my appreciation for you for providing the
resources, and also to the Commission for your excellent
enforcement of the Virginia Graham Baker Pool and Spa Safety
Act, both under your chairmanships. I am a little bit
frustrated that the grant program, the State grant program,
even though it has been fully funded the last two fiscal years,
has taken an extraordinarily long time for the Commission to
get off the ground. So can you, Madam Chair, describe your
progress? I mean, there is $2 million that is potentially going
to expire in September, and I don't want to see that happen.
Ms. Tenenbaum. Well, first of all, we fully support the
Virginia Graham Baker Act and appreciate your advocacy in
getting this bill passed.
We have been working hard with the Centers for Disease
Control and Prevention to establish the State grant program
that the act calls for. We finalized the details of the plan
just this week. The CDC in conjunction with the Commission will
be releasing a funding opportunity announcement the beginning
of April. And my understanding is the grant applications will
be due in June, and the grant qualifying to States will be made
in August.
POOL AND SPA GRANT QUALIFICATIONS
Now, it is important, however, that the states currently
meet the statutory requirements. In fact, the states must pass
legislation in order to qualify for this act. We have looked--
--
Ms. Wasserman Schultz. We are in the middle of the
legislative session season right now.
Ms. Tenenbaum. And we are following some States, Florida,
Texas, to see if they will pass this legislation. We will be
showing states what model legislation looks like and we have
relayed the model legislation. In the event that it does not
pass, it [the funding] stays at the Commission. What we want to
assure you, that in the event states do not pass this
legislation, we can take that money, and we would use it in the
spirit of the Virginia Graham Baker Act to do more contracting
with people to do education advocacy, if we are allowed to.
Now, the other thing is we have also asked Congress to
consider whether it should be states or a municipality. For
example, the city of Miami, could they apply for the grant?
Could they pass an ordinance? It might be that the pool safety
is closer to local government than state government. Should
Fort Lauderdale, or--Jacksonville, any of your large cities
pass an ordinance----
Ms. Wasserman Schultz. Phoenix has a very strong one.
Ms. Tenenbaum [continuing]. That complied with this, they
could then get the grant. And we were asking you to make
amendments to the CPSIA so that we could--
Ms. Wasserman Schultz. I would be glad to work with you on
that, because whether we do it state by state or major city by
major city, the idea is to make it more likely that we have
tighter restrictions around pools.
Mrs. Emerson. Can I add something? Those state grants
really would be helpful, because I have small community pools
that truly cannot afford the 10- or $15,000 that it is going to
cost them to comply with the law. And I hate for the kids in
these towns where there is no other place to have recreation to
not have that ability to seek assistance here.
Ms. Tenenbaum. Well, in Columbia, South Carolina, the
headlines in last summer's paper was the main community pool
could not open because it had not met the requirements. So they
scrambled around and got the equipment and met the
requirements. But you are right, if we could provide some
flexibility.
POOL AND SPA EDUCATION
If you wanted to know about the education outreach program,
we have that information, too. We have given our grant to
Widmeyer Communications and Omni Digital Studio to create the
largest public education campaign the agency has ever done:
$3.6 million will go to Widmeyer for a Website, for all kinds
of educational materials for us to use in pool and spa safety;
$200,000 for Omni Digital Studios; and then we have $4 million
in which we will contract with third-party organizations to
train and target education this week. So that would be
something that a community organization or regional and State
organizations could apply for those awards, and we would give
them those awards to do education advocacy of pool and spa
safety.
So we are working very hard. The initial launch in April
for the rollout of the program will be at the National Drowning
Prevention Association's conference in Pittsburgh, I think you
have spoken to that conference several times. We will have a
broader launch on Memorial Day, and I hope this is a press
conference we can do it in Florida together. I know that you
joined Commissioner Nord, Senator Klobuchar and the Taylor
family for last year's kickoff. So we want to work with you
again on that.
Ms. Wasserman Schultz. Absolutely. I look forward to it.
Mr. Chairman, are you planning on having us come back?
Mr. Serrano. We are in the process of having three votes,
but as you can see from the yeas, it is going to be a while
before it gets to a significant number there. So we will keep
going here.
IMPORT SAFETY
On the issue of product recalls, we know that 80 percent of
recent U.S. product recalls were imported items. The CPSC
budget request would devote approximately 57 staff to the
import safety initiative comprised of personnel stationed at
ports, field support and other support staff. However, as GAO
pointed out last August, the import staff of the Commission are
significantly smaller than that of other agencies like the FDA,
which has 700 people.
Does CPSC have a long-term plan for ensuring adequate
oversight of imported products?
Secondly, has the Commission improved its information
sharing with customs to ensure that the Commission has access
to ship manifest data before products arrive at U.S. ports?
Ms. Tenenbaum. Well, thank you. Just to give a comparison,
in 2009, we had 12 people in the Import Surveillance Division,
10 people actually at the ports, and for this year we had 18 in
the whole division and 14 at the ports. We are trying to
increase that to 23 in the division and 19 at the ports. But we
also, if you add to that the field staff which we have in many
of our states, also hazard identification and reduction, and
also support from our attorneys and general counsel, the whole
number is now 43 total for import surveillance program, and
next year will be 57. However it is still woefully under what
other agencies have in port surveillance.
We are trying to do is work through technology in
cooperation with Customs and Border Protection so that we get
this information from the manifest. We are asking for just
$250,000 to implement the analysis and planning phases to
develop an automated interface with ITDS operated by Customs
and Border Protection. This will allow our system to talk to
their systems and do data mining. This is only the planning
stages.
We also had additional contract funds left over. We are
looking at using $2 million to do a risk management system so
that we can have the technology to look in those manifest
systems and determine what is there that really we should be
paying attention to.
So technology will help considerably, but once we phase it
in this year, it is not inconceivable that next year if we do
the risk assessment, we will come back to you and let you know
where our gaps are.
We also have a contract with Booz Allen Hamilton. It has
been since 2003 that we had a strategic plan, and we need a new
operating plan as well. We need to look at all the requirements
under CPSIA, what kind of information we are going to get on
the public database in terms of the referrals and consumers
letting us know about deaths and injuries and how we are going
to respond to that. It will be more information than we have
really handled before. So we, through that planning and
strategic process with Booz Allen, will look at the service
gaps and be able to tell you when we come back next year what
the big needs are for this agency to function appropriately and
have stronger surveillance in the ports.
Now, we consider ports not just to be ports on the coast,
but ports of entry. So we have 300 ports of entries, and we
have as you--19 people stationed at the ports. However, we do
use the State field staff. So if we know that there are
fireworks that were put on a train on a California coast, and
they go to an inland city, and that is where they are unloaded,
we can send field staff there to check on what the status of
those--whether they are in compliance in terms of fireworks. We
will be able to give you a better idea of need.
LEAD IN BOOKS
Mrs. Emerson. Can I just ask you for a clarification real
quick? This is quick. We started to talk about lead, and I want
to talk about the whole functional issue when we get back. You
said books are lead-free. Are not the books that were pre-1985,
don't those contain lead in the ink?
Ms. Tenenbaum. They do. Pre-1985 had lead in the ink. If
you use the four-color process and modern printing now, the
books that are printed in today don't have lead.
Mrs. Emerson. But what happens to libraries and that sort
of thing who----
Ms. Tenenbaum. That is why we needed some relief so that
the libraries don't have to test. They are not selling books,
but they are lending in the stream of commerce. But it is the
pre-1985 books, that if we could just warn parents--maybe a
warning would be adequate. If you look inside some of these
1985 books, it is the illustrations in the older books that
have lead in the illustrations. So we want to advise parents
not to let children mouth the books. And the books for little
children aren't lasting since 1985. But if you go into schools,
particularly in rural areas, and you go into libraries, you are
going to see pre-1985 books.
Mrs. Emerson. I still have all my Golden Books when I was a
kid that I gave to my kids, who hopefully will give them to
their kids.
Ms. Tenenbaum. Well, if you want to bring them to
Washington, we will test them for you.
LEAD IN DOLLS AND COMPONENT TESTING
Mrs. Emerson. I might do that.
And also then just very quickly, you said something about
lead-free buttons on dolls. But do you not have to test every
single part of dolls, including the rouge on the checks? You do
not have to test every part of the doll?
Ms. Tenenbaum. We have implemented an enforcement policy on
component part testing. In fact, I was just at the toy fair. We
went in to see Legos. They thanked us for having the component
part testing where they can buy the lead-free paint, and they
don't have to take the whole Lego apart and chip off the paint.
Mrs. Emerson. We are talking about dolls here.
Ms. Tenenbaum. Dolls. If you manufacture new dolls, and you
use lead-free products, then you keep that certification, and
you have a reasonably check up, just to make sure it is lead-
free, then you wouldn't have to test the doll. You would not
have to destroy a doll to find the lead. You would say, I
bought lead-free paint, I bought lead-free buttons, here is my
certificate. It is like Commissioner Nord said, the component
part testing market has not developed, but it is a huge market
for someone who wants to develop a hobby store with all lead-
free component parts. It is a huge market for people.
Mr. Serrano. Yes. We have three votes, so we will ask you
for your help here in waiting for us.
Before I leave, one thing. So you mean those spiral
notebooks that our great friends in the media use could be
hurting them?
Ms. Tenenbaum. It is not a children's product for them.
Ms. Nord. It would explain a lot, wouldn't it?
[Recess.]
Mr. Serrano. Okay. We will do the best we can. She is
reading something there, which means something will come up
soon.
CHANGING CPSC FOCUS
Some of the agencies under our subcommittee's jurisdiction,
such as the Federal Communications Commission and the
Securities and Exchange Commission, have had to change their
regulatory approach in response to changing products in the
marketplace. Chairman Tenenbaum, what are some ways you plan on
changing the focus of the CPSC going forward in response to
changes in the marketplace for consumer products?
Ms. Tenenbaum. Thank you, Mr. Chairman.
As incoming Chairman, my first obligation was to finish the
rulemaking required under the CPSIA. That has been a top
priority for me so that we would have the rules developed, and
industry would know how to comply. We could go beyond just
rulemaking and start enforcing the requirements of the CPSIA.
But even broader than that, we are not just a lead and
phthalate agency. We also need to look at fires, carbon
monoxide and other issues that cause injury and death. The
database that Congress required us to develop will give us more
information than ever before. Now we collect data from
emergency rooms, death certificates and newspaper articles, as
well as from our hotline and as many other sources as we can
get, but sometimes we don't get the information until years
after it has happened. The public database will allow consumers
to give us information, and then we will have to respond as
quickly as possible. If we know of a death, we can't let a
death just stay in the database for months and not investigate.
So we are going through this management and operations planning
with Booz Allen Hamilton, the company we have hired to help us
with our strategic planning, and we will look at the service
gaps and gaps within our organization that would prohibit us
from responding quickly.
But we are always looking at developing trends;
nanotechnology, for example. We have asked for $2 million so
that we can participate in the whole nanotechnology research
project that is under way with all of the other Federal
agencies. With this $2 million, we will be able to contract
with them to ask them to review our products that we oversee to
determine what problems they see in terms of nanotechnology
that we need to be aware of.
So I think you always have to be looking at the
marketplace, getting the best data possible, having
relationships with the research agencies of the Federal
Government, working with your state officials. Some states do
research. The attorneys general also; we are working with them
closely so that they turn over products that they find. We need
to be open to getting information from all sorts of avenues.
COLLECTING DATA
Mr. Serrano. And in the past, you say it was difficult to
get this information, or you got it late. Any resistance to
getting it now?
Ms. Tenenbaum. Well, we have ways of collecting data. One
is the NEISS system, and through that system we pay emergency
rooms to fill out forms on injury and deaths related to
products, and they give us that on a regular basis. We also get
death certificates from states, and we look at that. We have
five different silos of information at the Department, and we
haven't had the ability to data mine. With the money that
Congress has given us for IT modernization, we can now have a
technology that allows CPSC to go through all of these systems
and mine data so that we will have death and injury information
on products quicker than ever before.
So with IT modernization, the public database, this risk
management program that we want to do with Customs and Border
Patrol, we will be able to get more data sooner and respond to
it more effectively.
COMMUNICATING SAFETY INFORMATION
Mr. Serrano. Now, in both of your testimonies, you spoke
about communicating important safety information in minority
communities. What has the Commission done, and what is it
currently doing, to ensure that important product safety
information, including information on recalls, is being
disseminated in these communities, including communities where
languages other than English is spoken, and particularly for
families who do not have a computer at home?
Ms. Tenenbaum. We are well aware, and I come from a state
where we have so many rural areas where there is a great
digital divide where people don't have computers. So what we
try to do is when we announce a recall is work with the media.
For example, on crib recalls we had almost 200 million people
get information. We go on all the national morning news
programs. We use social media such as Twitter, and we will be
using Facebook. We use as much of the free media as possible to
get our word out.
But we also provide hard copies of the product recall. We
can mail those to States, and we provide hard copies to child
care providers and consumers who don't have access. We work
with the Neighborhood Safety Network, which has 5,600 members,
and through that Neighborhood Safety Network, which is very
much in touch with minority communities, we get those safety
messages out.
But we do have a dedicated Spanish-speaking spokeswoman,
Arlene Fletcha, whom you met at the 2008 press event that you
had with Nancy Nord at the Bronx library. And Arlene translates
dozens of announcements for the Hispanic community and conducts
interviews with Telemundo and Univision that reach millions of
viewers.
We still plan to launch our special minority outreach
campaign that will increase the use of the Neighborhood Safety
Network, which is 5,600 community leaders. We are going to five
cities this year for minority community outreach.
Mr. Serrano. Which city; do you know?
Ms. Tenenbaum. I don't have that, but Scott Wolfson might
know. We will get back to you. We are in the planning stages,
working on that. But it will be the Hispanic, African American,
Asian American populations.
We also translate our information on the Web in Chinese,
too. We are very aware that we can't just have English only on
our Web site.
Mr. Serrano. What a phrase.
Mrs. Emerson.
Mrs. Emerson. Sorry. You caught me chitchatting. I
apologize.
FUNCTIONAL PURPOSE
Let us talk about functional purpose, which is kind of
arcane to talk about. You have suggested, Madam Chair, that a
way to fix the unintended consequences of the CPSIA is to add
an exclusion for function purpose, which basically--I
understand that would allow the Commission to exclude
components with higher levels of lead if the lead was found to
be essential for the function of whatever the item is. So can
you elaborate for me how such an exclusion might work at the
Commission, please?
Ms. Tenenbaum. Well, the term came from the Federal
Hazardous Substance Act, and that term was a part of that act.
So if someone came to you and said, we have chemistry sets, and
we need this banned hazardous substance to be part of the
chemistry set to teach chemistry, we were allowed to give a
pass on substances that were ordinarily banned because the
petitioner would say, we need it for a functional purpose. So
it was a legal term that we have always used under the Federal
Hazardous Substance Act for products that you had to have the
ingredients because it was a functional purpose of the product.
Now, I want to clarify that I support the bright line, the
lead limits under the CPSIA. I thought that was a step forward
because you have 300 parts per million for the lead content and
90 parts per million for lead paint. I support that, and
several other Commissions do as well. We are not talking about
reducing those, but what we are talking about is for a person
who has a product that cannot meet those levels to be able to
say we need it for the functional purpose of this product. The
amendment is being discussed in the Commerce Committee and it
depends on what the components of that are. I don't really have
the components at this time because it is under discussion.
So we support the bright-line test, and that was in the
report to Congress. But when we wrote to Congress, we didn't
recommend functional purpose or de minimis. Commissioner
Northup and Commissioner Nord have said--Commissioner Northup
has been very strong, and I think she put in her statement that
she wanted a de minimis standard. But it would put the agency
back in having to test every product for what is de minimis for
product. Lead can bind, depending on the alloy it is attached
to, we would have to go through and look at every product and
to see how it would increase the blood lead level. And that is
where we were before you passed the CPSIA. To give exclusions
will require agency resources and staff; however, it depends on
how the exclusion is written by the Commerce Committee on how
extensive those resources will be.
Mrs. Emerson. Commissioner Nord, how do you feel about the
concept of functional purpose?
Ms. Nord. I have got concerns about it, as does my
colleague, Commissioner Northup. Our concern is that it could
be very, very subjective.
Mrs. Emerson. Who makes the decision?
Ms. Nord. The agency would make the decision.
Mrs. Emerson. So you would ask your scientists as opposed
to you as Commissioners?
Ms. Nord. Does the lead in this particular product meet a
functional purpose with respect to this product. And that is--
at least in the legislative constructs we have seen today--is
defined as highly impracticable to remove that lead. That term
``highly impracticable'' is well litigated. It has a meaning in
the law which takes a bit of the functionality away from the
functional purpose provision.
And we are also very concerned it is going to be very, very
resource-intensive for the agency, and it is going to turn the
agency into a product-approval-type agency.
With respect to the bright-line aspect of the law, I mean,
because the law is a bright-line law, you end up with these
anomalies that we have been talking about. Instead, what I
would like to see is an amendment so that the law recognizes
the expertise of the agency to define the risk and then
regulate based on the child's interaction with the product. If
it results in any kind of measurable increase in the blood lead
level, whether it is a functional purpose or not, then I think
we need to regulate it and take that product out of the
marketplace.
Mrs. Emerson. So taking it back to the book analogy, if you
will, then if, in fact, the lead in the ink of the pre-1985
books doesn't have a functional purpose, but--so we still know
that that poses no real threat to the kids. So how then, if
that is the case, and you all have determined that the book
industry is exempt, then does that mean you have to use that
same--you would have to use the same criteria for any other
perfectly safe products, too? Correct or not?
Ms. Nord. Right now under the functional purpose test as we
understand it, the book industry would not be exempt. They
would not be able to meet that. That is why we have had to ask
for a separate exclusion for them. And the book example makes
the point. It does not meet the functional purpose. However, we
are not aware of any risk of lead poisoning to children using a
1985 book. It just doesn't happen. So that would be an example
of where a negligible risk-type concept would accommodate all
of these things.
IMPACT ON CPSC BUDGET
Mrs. Emerson. I have to believe that going through, looking
at all of the exclusions, that has got to have a huge impact on
your budget.
Ms. Tenenbaum. So will the de minimis test. If we do away
with the bright-line test, and everyone comes forward and says,
you know, we are not going to raise the blood lead level, we
will be back in the same position we were before the law was
passed. We will have to test every product. And that is why we
all agreed that we would tell Congress we needed flexibility,
and you would listen and make the best determination.
FUNCTIONAL PURPOSE
But on functional purpose, the idea is to have 300 parts
per million or 100 if technologically feasible and 90 parts for
paint, because all the research in terms of scientific research
has demonstrated that there is no safe level of lead. And it is
to incent people to take lead out.
For example, Commissioner Nord was talking about the little
toy, the John Deere tractor, that had the lead in the tire. The
company has already taken the lead out. They are manufacturing
that without a lead ring. A lot of the button manufacturers
have visited us and said, we are taking the lead out. They are
going all the way up the supply chain, and using the raw
materials that do not have lead. YKK visited us to report that
they are making lead-free zippers. It provides incentives. It
is 2 years out since the passage of the CPSIA, and
manufacturers have complied. One company came to see me and
said, ``We read the law, and we didn't stop at 300 parts per
million, we stopped at 100 parts per million.'' This major toy
manufacturer has already gone to 100 parts per million because
it could do that, and it didn't stop at 300.
So I see a lot of positive changes. I see also people
struggling to enact this law. But we have tried to take a
common sense approach and give guidance with component part
testing, and determinations that whole lines of products don't
even have to be tested in textiles. We are working through
this. So we want flexibility, but we are trying to do it
without making lead prevalent in the marketplace as it was
before in children's products.
Mrs. Emerson. Commissioner Nord, do you have anything to
add?
Ms. Nord. Well, again, our objective is the same. We want
to have a safe marketplace for children's products.
IMPACT ON CPSC BUDGET
With respect to agency resource issues, I am very concerned
that the functional purpose test, if it is put into place, is
indeed going to be very resource-intensive as opposed to some
sort of negligible risk kind of standard, because we will have
to be looking at each product and the functional purpose of the
lead in that product. We won't be able to look across product
lines at commodities, for example. We wouldn't be able to look
at brass, for example, as it is used in all children's products
under the functional purpose test, and that is of concern to
me.
With respect to trying to work to get the lead out, again,
we all agree that that is what the agency should be doing. But
you do end up with the strange results where you have got a
product that meets the standard in the legislation that could
expose a child to more lead than a product that exceeds the
lead levels. And it is those kinds of anomalies that are
bothersome to us and we would like the flexibility to be able
to address. That is what we are asking for.
Mrs. Emerson. I just hope that, depending which way you all
determine to go, or whether our legislation--our refinement
legislation, that you will have the resources to do what you
need to do, which if you go to--I mean, this sounds rather
complicated, this whole functional purpose--and complex, I
should say, that requires a lot of people touching it.
Okay. I better stop there. Thanks, Chairman.
Mr. Serrano. I am just thinking. I really hope you both
walk away from here today understanding that we understand that
this is not easy what has to be done, and we respect both of
your views. My only problem is that I keep remembering back to
where the SEC sat in front of me and told me, no, we are fine,
we don't need any more money, and we are doing what we are
supposed to do, and then we saw what happened. And so we had
all of that happen because in the past the Commission was
allowed to look at what it needed to look at and not what it
was told to look at every so often. So we had major recourse.
But anyway, the gentlewoman from Florida.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
In fact, the CPSIA was in response to a significant
problem.
Mr. Serrano. Right. And it ended up passing--the behavior
was always, let us do our thing, don't overburden us.
Ms. Wasserman Schultz. And look where it got us.
CHINESE DRYWALL
I want to just change the subject for a moment and focus on
Chinese drywall. I know that the CPSC, Madam Chair, HUD and CDC
have been tasked with coordinating the investigation. I
appreciate your meetings with the task force on the drywall,
Chinese drywall crisis. My understanding is that the CPSC
received the first reports of the problem over a year and a
half ago, and since that point we have some homeowners that
have lost their homes, many homeowners that have moved out or
abandoned their homes.
My district is dotted with Chinese drywall. They are not
able to live in their homes. Their homes are making them sick,
and they are faced with not only not being able to live in
them, but they can't sell them. Their insurance isn't covering
them, so they have an asset that is only a burden to them, and
how are they supposed to go pay for other housing? It is just
really a huge, huge problem, particularly problematic in that
insurance companies are denying coverage to homeowners, and
that the foreign manufacturers are refusing to accept
responsibility.
CHINESE DRYWALL REMEDIATION PLAN
So I know you have conducted studies, and you are
cooperating with other agencies. Has the CPSC begun formulating
a remediation protocol that can be accepted by the homeowners
with confidence that it will fix the problem, and when can we
expect to see that remediation plan?
Ms. Tenenbaum. We have been working with HUD on the
remediation plan, and it should be available to the public by
the end of April. We have a new study, the Lawrence Berkeley
National Laboratory study, that has data that showed some
Chinese drywall samples had significantly higher emission rates
for hydrogen sulfide and other reduced sulfur gases compared to
domestic samples and other imported samples. This has been
consistent with the chemical analysis that we did in October
2009. It is also consistent with the November 23, 2009, 51
homes study, which found a strong association with the problem
of drywall and hydrogen sulfide.
So last week, February 25th and 26th, brought together all
of the experts from our contractors and our Federal partners.
We had a 2-day discussion on what we learned about Chinese
drywall. The studies we have done have been used in the
multidistrict litigation in Louisiana. So they have used our
studies in terms of the plaintiffs' cases down in Louisiana,
which has parties from all of the states.
We have spent $3.5 million on the investigation. It is the
largest investigation we have ever done in the history of the
CPSC.
I visited personally drywall homes in Florida and in
Virginia. I feel deeply for the homeowners. They have had to
move out. It really is tragic because so many of the young
families with whom we have spoken and visited in their homes,
this is all their equity. Everything is tied up in this home.
They have moved in with relatives. We carry a heavy burden at
the Department to get this finished in terms of our studies,
and to get the remediation guidelines announced with HUD in
April.
We also work with HUD, and we did a joint announcement with
them that states could use the community block grant money, if
it was not already designated, to help families remediate their
homes. We also wrote a letter to the IRS regarding drywall
asking them to do a casualty loss reduction. So we are looking
at creative ways that we could allow the homeowner to have a
write-off or deduction to help them financially.
Ms. Wasserman Schultz. Now, they are getting a property tax
break?
Ms. Tenenbaum. Right. They are getting a property tax
break. But in Florida we have 1,723 reports. Overall, we have
received 2,941. Florida has the highest with 1,723. But when we
talked to the mayors and the Governors in all the other states,
we think it could go as high as 5,000. We have investigated
every death that we have read in newspapers where there were
people that said there were deaths. We have investigated every
one of those and have not determined that drywall was the cause
of it.
CHINESE DRYWALL ILLNESS
Mrs. Emerson. I actually have a constituent who is a
drywall installer who is, we think, permanently disabled now
because of just getting sick from all of the exposure.
Ms. Tenenbaum. Hydrogen sulfide. In Florida you have a home
builder, Lennar. Lennar is going into the homes it built and
stripping it down to the studs and taking out the drywall and
then rewiring. There is another major homebuilder in Virginia
that is also doing the same thing. And this remediation program
will spell out what we think needs to happen for full relief.
CHINESE DRYWALL FINANCIAL IMPACT
Ms. Wasserman Schultz. Do you know what the financial
impact is?
Ms. Tenenbaum. Well, it just depends on the size of the
house and the amount of drywall.
Ms. Wasserman Schultz. I mean, the total financial cost for
the remediation.
Ms. Tenenbaum. No. I had heard numbers of $75,000 per home
to take out all the drywall, but that just depends--I think
Lennar told me, or Dragus up in Virginia told me that. But it
is the size of the home and the amount of drywall. In some
cases the drywall was upstairs, from China, but it wasn't
downstairs, so you didn't have to take it all out.
CHINESE DRYWALL HEALTH EFFECTS
Ms. Wasserman Schultz. Do you have a timetable for a report
on the health side effects of the impact of the drywall?
Ms. Tenenbaum. Well, we had looked at the health effects,
and we think this latest study from Lawrence Berkeley
Laboratories will address that. But the original studies we
did, the 51 home studies, was reviewed also by the CDC, and
they found that the amount of hydrogen sulfide that was emitted
did not contribute to a chronic or acute health problem.
But we have thought that all of the synergistics--if you
get into a home that is tightly built, and in Florida you build
a home and you often don't open the windows because you have
the air conditioner on all year, we have found that all of that
together can be an irritant.
CHINESE DRYWALL MANUFACTURER COOPERATION
Ms. Wasserman Schultz. Are we getting any cooperation from
the Chinese drywall manufacturers?
Ms. Tenenbaum. Well, we have not to date. In the
multidistrict litigation, there is one Chinese manufacturer who
has defaulted on the complaint. They are having a hearing, and
they are going to assess damages in absentia for this drywall.
Knauf is a German company that has manufacturing in China, and
it has been working with the court. It has also been sued in
the multidistrict litigation, and it has cooperated.
CRIB SAFETY
Ms. Wasserman Schultz. And lastly, Mr. Chairman, I wanted
to commend your leadership, Madam Chair, on the issue of crib
safety. I passed legislation in Florida that actually was
ultimately vetoed by Governor Jeb Bush despite overwhelming
support for it, including from the industries it impacted, that
would have made sure that cribs sold in Florida were safer and
didn't have a lot of the problems that you have found that they
still have. But they are still in hotels and places where cribs
are repeatedly used over a long period of time. And we don't
really know where they have been or where they--and they are
beyond the reach of recall notices. So can you talk a little
bit about your efforts in this area?
Ms. Tenenbaum. Well, thank you. And this is something that
Commissioner Nord has supported with me, and really the whole
Commission has stood up to the crib issue.
First of all, we will have a new crib rule in 2010, and
that rule will outlaw or ban drop-side cribs. Once we write
that rule, it can be applied retroactively to cribs in public
places like child care facilities and hotels.
We still have concerns with cribs in homes, and so I have
asked my colleagues and staff at the CPSC to continue
monitoring the effectiveness of recalls and how many people are
actually getting these repair kits, because the repair kits
make the side immobile so that the drop-side is not going up
and down. You don't have that pull-out where the children fall
into the crack and suffocate.
But we also work with the ASTM. We brought the Committee in
and said this has gone on long enough, and we want you to work
with us. They worked with us for 2 days, coming up with a new
standard in which the ASTM, through their voluntary standards,
banned the drop-side crib. It is now out for vote. In March we
will have the results of the ASTM vote. We realize that this
has really started something within the crib industry that all
of them need to come out with a repair kit, if they have drop-
side cribs, to make the side immobile.
The registration cards, which are part of the CPSIA, are
for required people to fill out the information when they
purchase a new crib. When you have a recall, all the people who
have sent the registration card in will be able to be
contacted. On crib recalls we go on all the national morning
shows. We do as much media as possible. We also get coverage on
national nightly news.
Ms. Wasserman Schultz. Are these mandatory or voluntary
standards?
Ms. Tenenbaum. These will be mandatory new crib standards.
MANDATORY CRIB STANDARD
Ms. Wasserman Schultz. Because right now the crib standards
are voluntary, aren't they?
Ms. Tenenbaum. Well, they are, and the CPSIA outlined a
list of 12 durable nursery products that had to have mandatory
standards. And cribs were scheduled for 2012 at the Commission,
and I moved it up to 2010 so we would have a mandatory
standard.
We also started this Safe Sleep initiative in January where
we have a team of attorneys, compliance officers, engineers,
public affairs specialists, who meet regularly weekly on all of
the information we have on cribs and expedite the recalls of
cribs that have been in the pipeline for several years.
So we are trying to do everything we can to get the old
cribs off the market, or either to get repair kits, and to have
a brand new standard which is state-of-the-art.
FOREIGN MANUFACTURE OF CRIBS
Mrs. Emerson. Is foreign manufacturing any part of the
problem?
Ms. Tenenbaum. A large number are from China. A large
number are from China and from other countries. But probably
the major manufacturers are from outside the country.
Mr. Serrano. We are going to try to have one more round and
then try to wrap it up because we have yet another series of
votes coming.
CHINA OFFICE
You know, again going back to my other subject, this is why
it is such a delicate balance, because we have the drywall
issue that I am sure if we had started on voluntarily testing
on Chinese drywall, you would have had a lot of people saying,
why are you doing that, leave that alone, do something that is
important, and yet now we have a problem. So there is a
balance. I don't envy the work you have to do, and I don't envy
what we have to do in the future to assist your doing it.
I have one last question, and then I am going to submit the
other questions for the record. You are setting up an office in
China, and China is a big issue. So tell us what kind of
cooperation you are getting in China to set up this office.
I would be remiss if I did not put in the usual Emerson-
Serrano comment on--isn't it amazing that we can have an office
of our government in China, but we can't even be allowed to
visit Cuba? But anyway, that is another issue for another day.
I am all for it, but think of it. I am just wondering out
loud. I think it is great. But if you had told--well, no. I was
going to say Richard Nixon. He is the reason why we have
relations with China. If you would have told somebody else that
we were sending an office of our government to China, they
would say, what are you talking about?
Ms. Wasserman Schultz. Mr. Chairman, the track record of
China really rings strongly towards expanding our outreach to
Cuba. The results have been so incredibly good, haven't they?
Mr. Serrano. It is good for the CPSC.
Mrs. Emerson. They have got more staff.
Mr. Serrano. They have got more staff.
So tell us what that office is like very quickly and what
issues you have had. And what kind of support are you getting
from the Chinese Government? And lastly and most importantly,
what are we beginning to see in terms of cooperation for better
products, safer products?
Ms. Tenenbaum. Well, thank you.
Because China is the largest single source of imported
consumer products, it will and has been the focal point of
CPSC's external efforts. First of all, we are seeing great
cooperation from the American Embassy in China. Ambassador Jon
Huntsman has been very helpful. In fact, our office will be in
the American Embassy in China, and we have hired one person,
Jenny Wang, who is at the CPSC for the next month receiving
training. She is Chinese. She is a delightful person and will
be helping Chinese manufacturers as well as U.S. manufacturers
ensure that product safety is paramount with the manufacturers.
We also will be hiring an American employee, and we are
working with the Chinese Government to try to get approval for
that diplomatic post. Ambassador Huntsman is working closely
with us to try to get that approved as well, and we expect we
will have the American employee in place in the next few
months.
Mr. Serrano. One employee?
Ms. Tenenbaum. We will have two, a Chinese and an American,
for right now to see how it works and see how it is utilized by
the Chinese. They will be doing training.
Mr. Serrano. Where is this office physically?
Ms. Tenenbaum. It is in Beijing in the American Embassy. So
that is very good. We didn't have to go out and get our own
space. They gave us space because the embassy is very helpful
to us in all efforts in China. But training and outreach to
China is a priority.
WORKING WITH CHINA
This year we had our biennial summit in China where we took
our employees and also stakeholders, American businessmen and
women, with us to China, and we focused on writing a new--not a
memorandum of agreement, but a working document going forward.
We are asking the Chinese government to emphasize best
practices in manufacturing. Also, we have stressed that they
had the responsibility to ensure that their manufacturers are
meeting our standards.
We have had a successful Webinar in January with Chinese
manufacturers, that was very highly attended. We also did
training at the Hong Kong toy show in January. We had 120
manufacturers view a Webinar that we did over the Internet in
December.
We will continue to work with the Chinese in a very
agreeable fashion. It is not perfect. But they also assure us
that they understand it is their responsibility to make sure
manufacturers meet best practices and comply with the
standards.
Now, this fall, we will go back to Shanghai, China and have
a meeting with China, the European Union and the United States
on safety standards. We have our Office of International
Programs who regularly translates requirements and regulations
on the Internet in Chinese so that the Chinese have access to
this.
So we feel that our relationships with China are strong and
very amicable, and we keep pushing forward to make sure they
understand what are the best practices in manufacturing.
Do you want to add to that?
Ms. Nord. One of the themes ever since 2007 has been to
push safety back to the source, and that means going to China.
And I think the agency has been consistent over the last 3 or 4
years that that is very important.
One of the first things I did after the passage of CPSIA
was to go to China to explain to the Chinese Government and to
the Chinese manufacturers the changes that were in store for
them. And what was interesting, Mr. Chairman, was that right
then is when the melamine in the milk crisis in China hit, and
that was killing Chinese children. And I have to tell you that
the change in attitude was striking.
So I think the Chinese are starting to get that product
safety is important. It is not only important for their export
markets, it is important for their population.
Mr. Serrano. Because they sell it to themselves, too,
right?
Ms. Nord. Exactly. And that was such an instructional
experience to be on the ground and see that happen. That trip
was our first venture over to China with our counterpart from
the European Union, and I have to say it was a very, very
powerful message for the world's two biggest markets to be
standing there and saying to the Chinese that product safety is
a core value, and we expect it from those who export to
America.
Ms. Tenenbaum. I might say that one of the things we
continue to see in China, though, is counterfeiting and that
looks like the real product. So it is very important that
third-party testing be required for importers bringing
children's products into the United States from China, because
that is allowing us to stop at the port those goods that are
not meeting the requirements of the CPSIA.
INTELLECTUAL PROPERTY THEFT
Mr. Serrano. Which I had a question. Just your presence
there in China. We know what your mission is, but does it have
a side effect on the issue of intellectual property theft and
so on? I mean, I know that is not your mission, but your
presence there is important and historic in so many ways. What
about that other conversation?
Ms. Tenenbaum. Well, we have not entered into that
conversation. We have entered in trade conversations. When we
were at the summit, one of the members of the delegation from
China made some claims that the requirements, the safety
requirements in the CPSIA were hurting trade. We were able to
show them the trajectory, that the number of imported products
from China continues to go up and be increased every year, and
that the safety requirements was not inhibiting trade or
dampening trade.
But the intellectual property needs to be addressed in
China because they counterfeit products. The manufacturer is
going out of its way to buy lead-free zippers and lead-free
components to put on their products, so when they counterfeit,
they are buying from another source that has not tested the
product, and it is a serious safety problem.
Mr. Serrano. Well, Ms. Wasserman Schultz left before Mrs.
Emerson and I had told her if we ever do establish relations
with Cuba, you won't be asked to test rum, cigars, music or
baseball players, because they are known to be of world-class
quality. Thank you so much.
Mrs. Emerson. I love it. I love it.
CHECKING CHINESE MANUFACTURERS
Do you all actually get into the--get into the lab? Do you
actually expect to do spot checking of manufacturing facilities
in China? I mean, how are you going to determine with two
people whether or not things are either copies or they are
original, or is that going to be the third--go ahead.
Ms. Tenenbaum. When you have third-party testing, the
children's products have to go to a private laboratory or
either a laboratory that is operated by the company and
firewalled to assure that they meet the lead limits. That is
how we ensure that they have a certificate of third-party
testing, and that they meet the lead and the phthalate limits
required under the CPSIA.
Mrs. Emerson. Have you found any fake certificates?
Ms. Tenenbaum. Well, we are certainly aware that that
counterfeiting of certificates and this is something that we
have to watch for constantly.
Mrs. Emerson. Yeah, because actually even with a whole
different issue--I have a company in my district who is in
competition with a Chinese company, and technically--and there
is some anti dumping--there is an anti dumping situation going
on. But nonetheless, there is all sorts of fake certificates of
things that get routed through South Korea, for example. So I
was just curious if you were--
Ms. Tenenbaum. But we are aware that is an issue on which
we have to have surveillance. And we have also told the Chinese
that this is their responsibility from their ports to make sure
that the certificates aren't counterfeit.
Mrs. Emerson. And you feel good that they get it?
Ms. Tenenbaum. Well, anytime you are in a regulatory
position and you are a regulator, you have to have a program
whereby you provide oversight to make sure the quality is there
and call them out if you find one. We certainly can't turn our
back on any company. We have to continue to insist that they
take responsibility for products coming out of their country,
and that they have a certificate. The Chinese government
requires companies to certify that it meets the requirements.
Mrs. Emerson. Do you have anything to add?
Ms. Nord. I think you have identified a key problem that we
are going to see more and more going forward, and that is fake
certificates. I think it is probably going to be a growth
market that we will probably have to watch closely.
Mrs. Emerson. We probably shouldn't discuss this here
today.
TESTING LABORATORY
Let me ask you about your testing laboratory, and then I am
going to submit the rest of my questions, Mr. Chairman, because
there--I have several more.
Your budget justification for 11 mentions that you carried
over $6 million in previously appropriated funds for
modernization of--I have the worst time saying modernization
for some reason. Now, does this signify----
Mr. Serrano. Try it as English as a second language.
Mrs. Emerson. How do you say it in Spanish?
Mr. Serrano. I cannot say it in Spanish.
Mrs. Emerson. Does this signify a delay in your move to the
new laboratory? Or maybe you should fill us in on the current
schedule.
Ms. Tenenbaum. We will move into the laboratory by the end
of the year. That is our goal. Now, the cost of the facility is
16.1 million in Federal funds, plus 3 million that the landlord
is putting in, for a total of 19.1 million. So the funds are
carried over to renovate the lab, to provide the kinds of
testing spaces that we need.
But we are very excited, and I will give Nancy Nord credit
for really starting this process under her leadership. The new
laboratory will be in Rockville. The space was built as a
laboratory, so it was not a building that we had to go in and
put in all of the cabinets and all of the labs. So it will not
only be a state-of-the-art lab, it will also be office space,
as well as storage space.
And there are a number of new features that it will allow
in that it will have a dedicated testing area for children's
electrical, combustion, and sports and recreational products
that we don't have now. It will enhance the fire-testing spaces
with modern safety and environmental features, and the
provisions for more accurate observation of fire developments
in products. We think that it will reduce facility operations
because now we have a series of little buildings, and this will
be under one roof.
Mrs. Emerson. So it will obviously be more efficient?
Ms. Tenenbaum. It is a total cost of $16.1 million, and we
have an annual recurring rent of $2.2 million. The rent is
really $2.8 million, but we will use the $600,000 that we pay
rent on now. It will be a state-of-the-art facility that we
have needed for a very long time. And you might want to say
something, since it was under your leadership that you kicked
this off.
Ms. Nord. Well, we have been working towards this goal for
sometime. It became very apparent when I became Acting Chairman
that we needed this, and we went out and did what we needed to
do to get it, again with funds that you all provided and which
we are so thankful for.
TESTING CHOICES
Mrs. Emerson. So describe what current testing is conducted
at the--at your testing laboratory now. And I am just curious,
how do you determine what is going to go out to a third-party
lab, for example? I am just curious.
Ms. Tenenbaum. Well, third-party labs are used by importers
and domestic manufacturers to test their products, the
children's products, to ascertain the level of lead and
phthalates. So that is where you use the third party.
Our lab will be where we do our own testing. For example,
with cadmium, we had ``The Princess and the Frog'' jewelry. It
had the Disney logo, and we went out and bought that jewelry.
We were successful in getting Walmart to do a recall, because
we tested the jewelry and found that it was well over what the
Federal Hazardous Substance Act allowed.
So we do those kinds of tests. We do a number of tests,
engineering, toys, cigarette lighters, mattresses, flammability
in children's products. But if you allow me to give you a full
description of what we do for the record, I would appreciate
it.
Mrs. Emerson. That would be great.
[Summary of CPSC Lab Testing follows:]
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Ms. Tenenbaum. Because that is where we could give you a
full picture of how hard our people work in such limited
conditions.
Mrs. Emerson. I think that would be a fun field trip for us
to make, Chairman.
Ms. Tenenbaum. We would love for you to come to the new
lab.
Mr. Serrano. We can test the lack of bipartisanship in the
House.
Mrs. Emerson. They can test how much lead.
Mr. Serrano. These four people here should be an example,
right?
Ms. Tenenbaum. We would like for you to come out. You can
either visit now or toward the end of the year. Our goal is to
get into it by the end of the year, and we would like to take
you out and visit there. That would be excellent. If anytime
you ever want to go to a port, too, we have now a full-time
staff member at CTAC, which is looking at all of the
information that is coming in to Customs. But we can take you
to a port and show you how the containers come through and how
we test and look at the certificates and seize products.
Mrs. Emerson. That would be interesting. And I appreciate
you allowing that. Maybe if we plan a date to go see the lab
that way, you will be forced to get it finished on time.
Ms. Tenenbaum. That is right. And I would invite you to
Charleston, South Carolina, where you could visit that port.
That would be a nice trip. That is a wonderful port.
Mrs. Emerson. Thank you.
Thanks, Mr. Chairman. I am done for now.
Mr. Serrano. Okay. Thank you so much for your testimony,
both of you. Thank you for the work you do. We will continue to
try to be helpful in making your job easier, making your
challenge less challenging. And don't ever lose sight of the
fact you may not be the most famous agency in the government,
but you certainly have the safety of people, especially
children, in your hands. So it is something to be proud of, and
we are proud of the work you do. Thank you so much.
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Tuesday, April 27, 2010.
FISCAL YEAR 2011 BUDGET REQUEST FOR THE ELECTION ASSISTANCE COMMISSION
WITNESS
HON. DONETTA DAVIDSON, CHAIR, U.S. ELECTION ASSISTANCE COMMISSION
Mr. Serrano. The subcommittee will come to order.
Mrs. Emerson will be joining us in a second, but she has
given us the okay to proceed since that side is in great hands.
Mr. Culberson. We are in good hands, yes.
Mr. Serrano. Today, we will hear from the Election
Assistance Commission on its budget request of fiscal year
2011. We welcome back Election Assistance Chair Donetta
Davidson, who is making her third appearance before the
subcommittee. I think that is a record.
As it is an election year, it is of particular interest for
the subcommittee to hear how the EAC has prepared for the
upcoming midterm elections, lessons learned from past
elections, the main challenges the EAC must address in the
lead-up to November, and what additional resources the
Commission will need to successfully perform its mission.
As I have said many times, the EAC is a small agency with a
significant responsibility. The Commission plays a critical
role in giving guidance and information to election officials,
providing regulatory authority over the National Voter
Registration Act, and directing Federal resources to support
the conduct of open, fair, and accessible elections.
More than $3 billion in Federal money has been appropriated
over the past 7 years, including $93 million in fiscal year
2010, to help improve election administration and voting
systems. Even with this commitment of resources, election
officials continue to have critical unmet needs relating to the
smooth conduct of elections.
For fiscal year 2011, the President's budget proposes $16.8
million for operating expenses, a decrease of $1.2 million from
fiscal year 2010. The President's request does not provide any
funding for State election reform agendas, representing a $75
million decrease from fiscal year 2010. I am particularly
interested to hear about how this cut in requirement payments
will impact States.
The 2008 election had the highest voter turnout in recent
years. More than 132 million Americans voted. While perhaps not
everything went perfectly, we did not see the same level of
controversy that plagued other recent elections, such as the
2000 Presidential election. We hope that this is a sign that
the EAC, together with State and local officials, are learning
from experience and are moving in the right direction.
Finally, I strongly believe that the often intense debate
over election issues is due to the passion we share when it
comes to protecting our democratic process in guaranteeing the
right of every individual to cast a ballot in a fair, open, and
honest election. Our goals should be to ensure that we count
every vote and make every vote count. I hope this hearing will
help us to understand better what the EAC needs to help the
Nation meet that goal.
Testifying before us today is the chair of the Election
Assistance Commission, Donetta Davidson. Ms. Davidson has
served as the commissioner at the EAC since 2005 and is now
chair of the Commission for the second time. Prior to her
service at the EAC, she was Colorado's Secretary of State; and
she also has significant experience administering elections in
two Colorado counties.
We are pleased to have her here again today, and the timing
is so wonderfully well set in place because--and here is Mrs.
Emerson.
Mrs. Emerson. Thank you. I am so sorry.
Mr. Serrano. No, no. It is okay. And I just finished my
statement.
Mrs. Emerson. Thank you very much for being here today. We
are very grateful and look forward to your testimony.
Ms. Davidson. Thank you.
Mrs. Emerson. May I say something else?
Mr. Serrano. It is your statement.
Mrs. Emerson. I want to apologize to you for not being
available to meet with you when you were in the office. I had
something unexpected come up that I had to deal with. So my
apologies.
Ms. Davidson. Not a problem. Not a problem.
Mr. Serrano. You know how it goes.
We ask you to limit your statement to 5 minutes. The rest
of your statement will go in the record, and that will give us
hours upon hours to grill you, although Mr. Culberson has
agreed to stay within the 5-minute time limit, which is a major
accomplishment for this committee. Please proceed.
Ms. Davidson. I will try. Good morning, Chair Serrano and
Ranking Member Emerson and committee members and the
appropriation committee for inviting me today. I want to thank
you for your support.
My name is Donetta Davidson, and I am a lifelong election
official. I became chair of the Election Assistance Commission,
or the EAC from now on in my testimony, in January this year. I
serve alongside my commissioners, Gracia Hillman and Gineen
Bresso Beach, who I thank for their hard work and dedication to
the success of the EAC.
The EAC is a small Federal agency with a big mission to
improve administration of Federal elections. Today, I will
discuss our fiscal year 2011 budget and how it will be executed
to achieve our mission. The EAC's budget request is 16.8, which
will include 3.25 million to the National Institute of
Standards and Technology.
As EAC chair, I will focus on the following initiatives:
improved service for military and overseas voters, the National
Voter Registration Act, and collecting and ensuring creative
solutions in elections like contingency planning in the States
and counties and polling place work recruitment.
Let me describe a few budget items that are of great
interest to the committee and the public, beginning with our
grants and our requirements payments section. Our fiscal year
2011 budget request includes 750,000 of college poll worker
grants. Last year, 71 organizations requested 5 times more
funding than was available. This program has been very popular
because we continue to have a shortage of poll workers
throughout the Nation.
Regarding how States are spending their requirement
payments, since 2003, I cheated and I brought some charts with
me today. The chart on my right is showing section 251
expenditures by year. As you can see, we saw a big spike in the
spending in 2006. Then, on my left, the chart shows a
comparison of when the funds were received by States versus
when the funds were used. The majority of the funds were
received in 2004 and 2005, as the orange and yellow show.
Again, we see most of the funds were spent, as you can see
by the blue indication, in 2006. A small amount of the funds
were spent in 2004, 2005, primarily due to the provisional
voting implementation and polling place information for voters.
A few States had already purchased new equipment and were
eligible for reimbursement of HAVA funds.
With these charts, it shows that it takes about 18 months
of time before a State when the appropriation is passed and
that the State receives them and spends the money. It takes
about 18 months. There is two reasons for this. It is the
State's ability to appropriate the 5 percent match and the
State procurement process.
In 2007 through 2009, HAVA distribution and expenditure
rates slowed down. Most likely, these rates will continue to
follow the typical 18-month cycle that we saw in previous years
as we know that some States were unable to appropriate the 5
percent match in 2008 and 2009 due to budget constraints.
So let us review some of the basic facts regarding the
payments. Appropriated has been 2 billion six; through March of
2010, over 2.4 billion has been distributed. States have
reported spending about 80 percent of the funds through
September 30, 2009. Twenty-one of our States have certified
that they have met the compliance of Title III.
Of course, managing and distributing HAVA funds is not the
only main responsibility we have at EAC. We have certified four
voting systems, and we are in the last stage of our next
iteration of voluntary voting system guidelines. And, as a part
of our responsibility under the MOVE Act, we just delivered
yesterday a roadmap to Congress which included a draft remote
electronic voting system pilot program that we devised.
I also want to make sure that you are aware that EAC has
translated the national voter registration form and also other
material into five Asian languages, along with the Spanish that
is available.
There is not enough time to tell you about all of the work
EAC is doing on behalf of the voters and the election
officials, but it is always available at www.eac.gov, including
the translation of voters registration forms and other material
in the six languages.
Before I conclude, I want to thank the EAC staff for their
hard work. They are creative, industrious, and dedicated. I
also want to thank you for your leadership to the EAC and to
the American voters.
I will be happy to answer any of your questions.
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Mr. Serrano. Thank you so much. Thank you for your
testimony.
Two quick things come to mind that I didn't have prepared
to ask. Refresh my memory. The five languages, the six
languages, is that by law or is that--that is by law, right?
Ms. Davidson. That is correct. The National Voter
Registration Act requires that the languages be available in
certain areas within the United States underneath Title--I want
to say Title V requirements, but I am not sure that is right,
and then there is that section of the National Voter
Registration Act.
Mr. Serrano. Okay. And, secondly, just on a personal level,
when we say you were a local election official, you did it all
at the local level, right?
Ms. Davidson. I was a local election official in a very
small county, very rural county. And then also I was the
election official--elected county clerk in both of them--in a
very large county. So I had the rural and the metro experience,
and they are very different.
Mr. Serrano. I just think that every so often we should
mention people in this society who don't get much credit.
Having been in elected office for 36 years now, some of the
folks that work at the local level never get any credit; and I
am not talking just about the officials but the folks that get
up at 4:30 in the morning, for instance, in New York to be at
the poll site by 5:00 to have those machines ready by 6:00, and
then they are there until 9:00, and then they have to count.
And years like last year, the count went on, just the lines of
people outside and the whole thing; and they do it for very
little money and with no fanfare. And so every so often in
public we should give them a special thanks because, without
them, it doesn't happen.
Ms. Davidson. Absolutely. You are absolutely correct. They
are really the vital source of our Election Day process.
Without them, we couldn't conduct the elections.
Mr. Serrano. Right. Congress provided $115 million in
fiscal year 2008 and $100 million in 2009 and $75 million for
fiscal year 2011 for grants to States for the purpose of
helping them meet the requirements of the Help America Vote
Act. What percentage of this funding has been distributed to
States? What are the reasons for funding not yet being
disbursed or used by the States? And, lastly, how fast are
States spending HAVA funds relative to the rate at which this
subcommittee has provided funds to them?
Ms. Davidson. The States in some areas--it is State by
State. Every State is different. I need to make that statement,
first of all.
But we have appropriated all the funds except about $200
million of the funds, and that has been the later funds that
have been given for us to appropriate to the county and--to the
States, I should say, to the States--And the reason why they
haven't been able to meet that 5 percent. We have been trying
to work with the States to give them the flexibility. If they
can meet part of that, we will give them the money that they--a
portion of that 5 percent that they have met to give them that
capability at drawing down some of their funds. But we do have
some States that are really under dire stress.
Mr. Serrano. And this stress is caused by what, their own
inability to absorb the funds, their inaction, resistance? Is
there any resistance?
Ms. Davidson. Mr. Chairman, there is no resistance. If the
States had the 5 percent match, they have to go through their
own legislative process to get the 5 percent and their budget
or their budget process, and it usually is legislative. Some
States, as you notice, it took them 2 years to be able to get
their money. Some of our States only--their legislators only
meet every 2 years. So that is one of the things that holds up
them getting them money.
And then the other thing is we have found that there is
just as much problem out there with the States currently--the
ability of meeting the financial needs, they just haven't been
able to get the 5 percent. States have asked us for special
ability--like Florida asked us if they could use their interest
money to meet that 5 percent. We don't have that authority,
obviously. So right now, no, we can't do that.
Mr. Serrano. This was the interest money on----
Ms. Davidson. That they had made on HAVA and haven't spent
today.
Mr. Serrano. I see.
Now, on a personal note, I know that my State of New York
had some problems catching up to date, I would say. From your
point of view, are we ready to go in New York? I know what they
tell me, but are they ready to go?
Ms. Davidson. New York, we are aware, has been spending
money and buying equipment this last year. I think New York
City was one of the last counties that actually purchased--or
the city and county that actually purchased the equipment. So
it is probably being manufactured and delivered as we are
speaking, and it should be utilized in this next election.
Mr. Serrano. Okay. That makes me a little nervous with
September primaries and November elections. Not that I have a
special interest, but----
Ms. Davidson. Well, I can tell you, Mr. Chair, that we
found--as you stated in your opening statement, it takes time
for election officials to write new manuals when they get new
voting systems, train their poll workers, train, obviously,
their office staff and even training the voters to vote on new
systems. So we had more problems. When we put all of the
systems in at one time nearly throughout the United States,
there were more problems. And, as you have said, the problems
seem to have ceased this last election, be a lot less. We are
always going to be training new election officials, but
definitely we hope--and I know that they are working very hard
at training everybody to make sure it is a smooth election for
everyone.
Mr. Serrano. Thank you.
Now, as you know, there are proposed budget cuts, a
decrease of $75 million. We also know there are States that
have the leftover dollars. So will all States be eventually
impacted by the proposed budget cut in the elections reform
program in 2011? How will States continue to be compliant in
the future? In other words, what do States need in the mid to
long term to keep up with the HAVA requirements?
Ms. Davidson. You know, as I said in my opening portion,
every State is different. I really think that you need to talk
to the individual States. Some States have spent all of their
money. Others have spent a percentage of it. But, really, it is
up to the State, every State. How they have run their elections
and how they run them, because of their State laws, is much
different throughout the Nation. So it is by an individual
State-to-State need.
Mr. Serrano. Thank you. I can't believe that the chairman
stuck to the 5-minute rule.
Mrs. Emerson.
Mrs. Emerson. Wow, I guess I better be--don't start the
clock yet. How did the Yanks do last night?
Mr. Serrano. The Yankees were at the White House yesterday.
Mrs. Emerson. Did you have fun?
Mr. Serrano. It was fabulous. I yelled out, 28, Joe. Not
meaning his number, but 28th World Series, the next one.
Arrogant on my part.
Mrs. Emerson. Did you have your picture made with
everybody?
Mr. Serrano. No, they wouldn't let us near them. It was
terrible.
Mrs. Emerson. When the Cardinals came from having won the
World Series we got our pictures.
Mr. Serrano. And I am a Cardinal, right?
The greatest time was when the President complained that
the White Sox would probably never win a World Series again;
and Joe Girardi, the manager, says, Mr. President, hold onto
the Yankee trophy. He said, you better hold onto it because it
will be the last time you touch a World Series trophy.
Mrs. Emerson. Sorry. We have this little baseball
competition going here. My Cardinals won last night, too.
Okay. Ms. Davidson, you said that the States are not
allowed to use the interest money that they earn on the monies
that they have received for purposes of their 5 percent match,
correct? So what do they do with this interest money? What can
they use it on?
Ms. Davidson. That is correct. If a State has not met the
requirements of Title III, they can purchase more voting
equipment. They can use it on a voting registration system or
improving it. A lot of States are having to improve their voter
registration because of the MOVE Act. They can also use it on
the procedures on doing the--let me stop and think. There are
four reasons: provisional ballots, and then educating voters,
and putting the information up in the polling place, also.
Mrs. Emerson. Well, it seems to me, though, just looking at
these numbers--for example, Missouri, which is my home State,
received $44,914,650. They have spent 88.9 percent of their
funds, which is--excuse me, no, that is plus interest--95.7
percent of their funds. So that is good. They are still sitting
on $3,878,000 plus. And it seems to me that it is somewhat
advantageous for the States to just be sitting on this money
and not spending it because they are earning all this interest.
So it multiples and they have got more money to spend, correct?
Ms. Davidson. Of course, they make a lot less on the
interest now than what they used to.
Mrs. Emerson. But New York is sitting on $22 million
interest. Missouri is on almost $3.9 million. They make less on
interest, but it is still sitting there, and it is growing a
little bit.
Ms. Davidson. You are correct. That report is as of
September 30, 2009, So there could be more expenditures made
since that time.
Mrs. Emerson. Since that time. Okay.
Now, given the fact that for every other government program
known to mankind, practically, the State or the local match is
25 percent, 30 percent, even up to 40 percent, so 5 percent
just doesn't seem a lot to me, given--and I am very sympathetic
and understanding of the financial positions States find
themselves in, but I am still looking at this list of how much
money all the States are sitting on and I am wondering why we
are sending the States--they are sitting on nearly a billion
dollars worth of unspent HAVA grant money; and, given that our
deficit is projected to be $1.6 trillion this year, why would
we be giving these States more money? Please tell me why.
Ms. Davidson. Well, what I can tell you is every State is
different. Some of States have spent all of their money,
including their interest money. There have been a few of those
that have spent 110 percent. So that includes their interest
money. Other States have spent an average of probably 80
percent. Some States are still holding on to probably about 50
percent of their money, and I imagine New York is in that
category is shown there because they have just started spending
the money this last year. So with the report being due in
September of 2009, there is quite a bit of money to spend in
that area since that time. But every State is so different. So
it is hard for me to tell you why.
I can tell you from history that States know this money is
not going to continue, and they are afraid they are not going
to be able to continue meeting the needs of the contracting,
supporting their voting systems. They know that voting systems
only last about 8 to 10 years, and they know they are going to
be up for a new allocation of money that has to be spent, and
they are afraid where they are going to get that because they
know the Federal money has not been appropriated for anything
like that.
Mrs. Emerson. We keep giving them money, though, so it
seems to me--I don't know. Do you think it would be better for
us to take back the money that we have got and wait for them to
apply for grants and you all just hold it in D.C., as opposed
to leaving it there for them since they are not applying for
the grants in the first place?
Ms. Davidson. I really don't have an opinion on that. The
States being able to have it in their funds and spend it at the
time--I do know that when we have money that has been allocated
to give to the States it takes them a great deal of time to
first meet the HAVA requirements, have a State plan, how they
are going to spend it and have that put in the Federal register
and then also do any type of expenditures they have to go
through their appropriation that is required by State law. So
it does take them about 18 months to be able to, from the time
it has been appropriated, to be able to receive it and spend it
is what we are finding.
Mrs. Emerson. Could you provide us with some updated
figures? Do you have any beyond September 30, 2009?
Ms. Davidson. I don't--the laws require them to report on
that time. Now----
Mrs. Emerson. Do you mean like quarterly?
Ms. Davidson. The reports are due September. So that is----
Mrs. Emerson. Each year?
Ms. Davidson. Each year. So I am trying to think if I could
ask them to give us an additional report right away without
going through the Paperwork Reduction Act. We do have to do
that; and, as you know, that takes 3 to 4 months to get it
through.
Mrs. Emerson. Could you just send them an e-mail maybe?
Ms. Davidson. I am sorry to say if I ask more than nine
people, I fall underneath that. Even with an e-mail. But I will
see if we have anything. I will report back to you.
Mrs. Emerson. That would be awesome. Thank you so much.
Ms. Davidson. I definitely will do that.
Mrs. Emerson. Thank you.
Mr. Serrano. Just as an aside, I am told that part of what
is happening in the States is that the States are unsure what
commitment the Federal Government will make to them as they
move along. For instance, all the ones who are already on board
now in 10 years will have to replace the machines. In the
meantime, machines break down and so on.
Then there is the other point, I am told, where funds
sitting there may have already been obligated in some way. So
it is not that they are not spent.
Mrs. Emerson. That is why I asked if we could get a midterm
report by e-mail so we could keep the paper at a low level.
Mr. Serrano. I am for paper, but--yes.
Ms. Davidson. There is one thing that comes to light that
has happened this last year, the MOVE Act. The MOVE Act has
required several elements for the States to meet that will be
additional funding that they will be spending of their HAVA
dollars. And one of those is to make their system where they
can send out electronically to the overseas and the military
any blank ballots and election material. They also have to be
able to track that ballot, the absentee ballot when it goes out
and when it comes in and put that up on a Web site to make it
available to the individuals.
So their systems will need work; and every time that we
even ask for a change of our report, that costs the States
money. So I can tell you that much. When laws are changed,
obviously, that costs money for them; and they can utilize the
HAVA dollars in meeting those needs.
Mr. Serrano. Since I am lobbying my Republican colleagues
for a bill that is on the floor on Thursday----
Mrs. Emerson. He is being nice to us.
Mr. Serrano. Mrs. Emerson is one of the greatest ranking
members in history; and now I yield to one of the greatest
members in the history of the world, Mr. Culberson, under the
5-minute rule.
Mr. Culberson. Thank you very much, Mr. Chairman.
We really do appreciate your service, Ms. Davidson. Thank
you very much.
When a State election voting system is certified as
accredited, you are looking not only at the actual machinery
and mechanism the State uses for people to vote but their
entire voting system, correct? You are looking at the way they
conduct the election, the way that the State ensures it that
people with disabilities or other language barriers have access
to vote, that sort of thing. You are looking at the whole
comprehensive system or just the machine?
Ms. Davidson. I am sorry to tell you that I cannot meet
your dream. It is just the equipment that we look at. We test
it by the standards that have been set by the TGDC, NIST, and
the EAC. So it is tested just to those standards.
Mr. Culberson. As I recall--and I know all of us were here
after the--I think this law was initially passed in 2003,
2002--2002--in response to the problem with the Florida
election and hanging chads and the punch card system. We are
trying to find a way in Federal elections to make sure the
votes are counted accurately and honestly, and I know that the
money that the States are given as a part of the funding is to
help them replace their old punch card system, correct? And we
ideally want States to be able to move to an electronic system
that has been certified as accurate by the Election Assistance
Commission, correct?
Ms. Davidson. That is correct.
Mr. Culberson. You also, I notice in your report, have as a
part of your responsibility, in addition to making--there is a
national voter registration form, some standards that if it is
a Federal election--obviously, if it is a State election that
is there, we, as the Federal Government, can't necessarily
dictate to the States what sort of standards they are going to
set in a State election. But if it is a Federal election, this
national voter registration form, just a standard that was
adopted apparently in 1993, that is also a part of your charge,
is to make sure that States are registering and allowing people
to vote that are qualified, correct?
Ms. Davidson. That form is utilized by anybody throughout
the Nation, along with the State form. They are not required to
only accept that form. I mean, they have to accept that form,
but they also can utilize their own State form. They also
utilize the Federal form that FVAP hands out. That is the
overseas and military form. So they utilize all those forms,
but it is not mandated that is the only form they can use.
Mr. Culberson. What I am driving at is--and, also, I
noticed you also help States with this funding they can also
use to help keep their voter registration lists purged from
people who pass away or are disqualified because of a felony
conviction, et cetera; is that correct?
Ms. Davidson. That is correct.
Mr. Culberson. What I am driving at is, how do we help
ensure that States are registering people who are qualified,
that are able to vote, and that we are not voting people that
are either felons or otherwise disqualified because they are
not a citizen, for example?
Ms. Davidson. Everything that the Election Assistance
Commission does is voluntary except provide the form and the
rules that we have to go through to develop that form.
Mr. Culberson. But the States, by accepting the money, they
are locked in to comply with the requirements of the Act.
Ms. Davidson. Remember, we are an assistance commission. We
can give them all kinds of assistance. They are not required to
accept that. Even our testing that we do on equipment, that is
a voluntary process. The States can utilize equipment that has
been tested and certified by the EAC or they can go out and buy
equipment on their own and it does not meet our qualifications.
Mr. Culberson. But once the State accepts the funding, they
are not required to comply with any of the----
Ms. Davidson. It is still an assistance commission.
Mr. Culberson. Have any of the States rejected the funding?
Ms. Davidson. No, no States have rejected the funding.
There was a couple of States that rejected the initial up-front
funding to replace the--I believe that is the 102 money. The
102 money, they rejected that; and I think it was only one or
two States that rejected it, wanted to keep their same system
that they had.
Mr. Culberson. Who was that? What States?
Ms. Davidson. Through the 102 money was to buy one piece of
equipment for every precinct that met the needs of the
disability community to be able to vote openly and fairly and
confidentially. That it had to meet those standards, also.
Mr. Culberson. What, if anything, does the Commission do to
ensure that the voter registration rolls are purged of people
that have passed away, become convicted of a felony, or that
the voter registration rolls do not contain the names of people
who are not eligible to vote because they are not citizens?
Ms. Davidson. We do not have any authority. We are not a
regulatory agency at all in that area. The only ones that
really review that is the Justice Department.
Mr. Culberson. Or the Secretary of the individual States--
Ms. Davidson. The Secretaries of States and also the
Attorneys General within their own States, obviously. Yes. But
I meant at the Federal level.
Mr. Culberson. Thank you.
Thank you very much, Mr. Chairman.
Mr. Serrano. Just an editorial comment. If there is
something I know about undocumented folks is that they really
don't want to be found out. The idea of going to a register to
vote is like in your face, here I am, and it is just the
opposite.
Ms. Lee, before you came in, I made a comment that I was
being extra nice to all colleagues because I need your votes on
Thursday. But you have been with me for a few years on that. I
am still going to introduce you as the greatest Member of
Congress in the history of the world.
Ms. Lee. Thank you very much, Mr. Chairman. And that vote
on Thursday, I think it is extremely important in terms of
democracy building.
Let me thank you for being here. I apologize for being
late. I hope my questions are not redundant.
Let me just say, Ms. Davidson, I, of course, come--my
congressional district is in Oakland, California, northern
California. But I was born in El Paso, Texas. So I come from a
State where there was a poll tax and I went through the civil
rights struggles and finally got the right to vote, my family
and friends. And so the protection of the rights of voters in
the election process is very, very dear to not only myself but
members of the Congressional Black Caucus, to all of us.
After the Bush versus Gore decision, I once again became
very concerned about the protection of the rights of our voters
and the election process, from ballot issues in Florida to
voting machine dysfunctions. There were real issues that needed
to be resolved.
And since the right to vote is really at the core of our
Constitution and at heart of the civil rights movement, I guess
I am very concerned about how the Help America Vote Act of 2002
is being implemented, especially as it relates to, one, the
commissioners.
Now, you can correct me if I am wrong. It is my
understanding right now there are three commissioners and there
is one Democrat on the Commission and the vacancy. I want to
know how that affects the deliberations and the operations of
the Commission in terms of the real imbalance in terms of
political party affiliation and the important work that needs
to be done. So that is my first question.
Secondly, of course, you know, the lack of diversity among
the 37-member Board of Advisors and the 110-member Standards
Board and the hundreds of election officers around the country,
do you have a breakdown on the demographics of the Board of
Advisors and the Standards Board?
Of course, we have 50 percent women in our country, 65
percent white, 15 percent Hispanic or Latino, 12 percent
African American, 4.5 percent Asian American, 1 percent
American Indian, point 2 percent native Hawaiian and other
Pacific islanders, and 1.7 percent persons who claim two or
more races. So I think it is very important to get it right
because of the history of what we have been through in our
country to make sure that diversity is there in a very clear
way. So I would like to find out if you have that information.
If not, could you submit to the committee?
Ms. Davidson. The first question on the three members of
the EAC commissioners, we are a nonpartisan board. We act as a
nonpartisan board. There have been times when it has been one
Republican and two Democrats with vacancy, is how it seems to
work. But I have not seen that be a problem in any way, shape,
or form.
The other question, the Standards Board is two members from
each State; and one is appointed by the Secretary of State for
the State and then the local individual is appointed by the
locality. I do not have a breakdown of that board at all, and I
am not sure I would be accurate in trying to guess the
diversity of the nationality of individuals.
And, second, the Advisory Board is appointed by other
people than the EAC, so we have never, ever had a breakdown
there, either. I can tell you that the Standards Board is half
and half Democrat and Republican. That is the only thing that
the law made sure, that there wasn't a lopsidedness on that
Board.
Ms. Lee. Well, I guess, Mr. Chairman, I don't know if we
could ask the Commission for the breakdown in terms of gender
and race on these boards. Because, again, it may be fine. It
may reflect the diversity of our Nation, and it may not. And I
think it is important that we know the background and the race,
ethnicity, and gender of people on the 37-member Board and the
110-member Standard Board. Because if they didn't take
diversity into consideration, then we may not have a Board that
is diverse. Or if they did, we are fine.
Ms. Davidson. I will be more than happy to try to collect
that information, but, again, I will have to go through the
Paperwork Reduction Act to be able to collect that information
for you.
Ms. Lee. That is fine. Whatever it takes.
Ms. Davidson. It may take a while. But I would be happy to
put that issue into action and be able to work on it.
Ms. Lee. I really appreciate it and just let us know what
you think in terms of time frame, however long it takes. But we
need to know sort of the time frame it would take to get this.
Ms. Davidson. I will try my best in as short of time as
possible.
Ms. Lee. Thank you.
Ms. Lee. Finally, let me ask you about the needs of
Americans with disabilities and access to voting machines,
written ballot, and other ways to verify that the vote that
they believe they are casting is actually the one cast. How are
we moving in terms of Americans with disabilities? My sister
has a disability, and I am very in tune with the needs of the
disabled in terms of the voting machine issues and all the
barriers that have been there for the disabled community.
Ms. Davidson. You are absolutely right. And with the Help
America Vote, that was one of the main issues that was in that
main legislation.
We have done several things. The equipment that is out
there, we have pushed very hard to make sure that we are
meeting more and more disabilities. You have got to remember
somebody could have more than one disability as they go to the
polling place, and it is very important by law they be able to
vote independently and privately. And so we are working very
hard on that.
We also received an $8 million grant to move forward on a
study for the disability community on equipment, and that grant
is getting ready to go out. Part of that grant we are doing
with the injured military voters, that we have about a $500,000
grant that will go for a tally vote either later today or
tomorrow, for the commissioners to vote on. And that is to
study what the needs are of our individuals returning back from
the military with some type of--being injured and meeting that
need. So that is part of that $8 million grant.
The rest of it will go out very shortly for study of
disability issues and needs that we can improve upon in the
future. So we are hoping that that grant is very popular and we
get a lot of information.
Ms. Lee. Great. That is very important. But it is hard to
believe that we are just going to begin to study it. Don't we
have the data already that show what the needs of the disabled
are and how to effectively ensure that they vote--have access
to voting?
Ms. Davidson. We did a roundtable in the last of 2009 with
the community that was really all the community from the
diverse community of disability. And what we found was that
education was one of the things that we need to be doing more
on as well as the equipment. The equipment that we have, the
DREs, met more the needs of the disability, but that was the
equipment that came up where the public felt--or some of the
public felt that it was not as secure as it should be.
Ms. Lee. What happened to Diebold, parenthetically?
Ms. Davidson. Diebold has been purchased by ES`S, and that
is being reviewed by the Department of Justice, whether they
can purchase that. It is an issue that is being--it is clearly
not a complete decision that has been made on that, whether
that purchase may go forward.
Ms. Lee. Good. I am glad of that.
Ms. Davidson. But the direct record machines, there are
still several States and localities that have that. They have
in a lot of areas put paper with it to make it where the public
feels it is more secure.
Ms. Lee. Thank you.
Mr. Serrano. Thank you.
Chair Davidson, what are the top priorities that need to be
accomplished before the 2010 midterm elections to ensure that
the election is fair, open, and accurate? I said in my
statement that you are not seen as a big agency, but you have a
major responsibility. And these elections don't get boring in
this country. They get more exciting all the time. And I expect
these midterm elections are going to be heated, and you are
going to see reports on TV saying that people are registered
who shouldn't have registered and machines are not ready and
States are not ready. So what needs to be in place, in your
opinion, to make sure that the right election is conducted in
terms of having every vote counted properly and what steps are
the States taking to prepare for the midterm elections? What
role are you playing with the States?
Ms. Davidson. First of all, the role we play is to try to
provide as much as we can throughout the Nation of educating
our election officials. When you stop to think about it, three-
fourths of our election community, whether they are county or
municipalities that are running the elections, are small. They
are small to medium size. We only have a few large. So being
able to get the information out to them, even if it is on the
Web site, we find not always do our municipalities and counties
get this information and utilize it.
Being able to share our information that we have developed
is one of the biggest things I think that we need to try to
improve upon. We send it out, but it seems like it doesn't get
into the hands of the people that really need it.
It is on the Web site. We go to conferences. We will go to
any State conference and talk about the information that is out
there.
I will say that I think that is being spread far more than
what it had been in the past. I was just at an election
conference that was held in Seattle, and part of the
presentations were even on our work that we do at the EAC, the
type of information that we have to go out to those localities.
And even in the audience they were talking about other portions
of our program that we have done, whether it is laying out your
ballot properly to make sure that it is not confusing to the
voters, as well as information at the polling locations, hiring
poll workers, recruiting, maintaining the poll workers.
We have got to distribute about 22 different documents that
have been placed upon our Website quick starts that will be
really easy for the counties and localities to read and to be
able to improve upon their elections. Security, testing
equipment before an election and also doing audits after
elections, information there, how valuable that is for them to
know the process and to do it right. So getting the information
out is very important to the Election Assistance Commission
because that is information that would help every locality.
The other thing is States are very dedicated, as you said,
in your opening remarks. States and localities, they are very
proud of their election officials and maintaining and running
that election fair; and making sure that all of their citizens
are able to register and to vote and to have their vote counted
is very important to all of our election officials. And they
are learning more and more about pre-testing, L`A testing, and
testing after the election to make sure the election was run
accurately and without any problems.
Mr. Serrano. So, with that in mind, how reliable would you
say were the voting systems that were used in the 2008
election?
And, also, I understand that the Election Commission always
conducts a survey after an election, but since 2004 this survey
has not collected information on voting system performance or
malfunctions. So in the absence of a formal survey in 2008, did
you receive reports of voting machines not working or possibly
recording a vote inaccurately and what, if anything, how
extensive was this and what role have you played? How do you
feel about the equipment that will be used this November? And,
secondly, what kind of reports have you been getting about the
past?
Ms. Davidson. First of all, I feel good about the equipment
that is out there. 2008, the equipment ran very well.
I will tell you we do have one open-ended question on our
survey, because we thought they would fill that out and we
would get more information on any type of anomalies they found
within their election during the process. We never received any
answers whether we had questions on there before or not. But we
are finding States are reporting to us when they do any type of
testing themselves, reports that they have conducted within
their States. Those are up on our Web site. They have presented
those, and they are up on the Web site.
Now that we have certified equipment, it is also part of
our procedures and our manual; and a manufacturer has to do
this just to keep his manufacturing capability, is he has to
report if he has been certified by EAC any anomaly that takes
place in the election process to the EAC immediately. So, in
the future, that is how we will get it; and it will be more
accurate and up to date than if we wait until a report after
the election. We will get that immediately so we can notify our
localities of any issue that they need to be aware of before
Election Day, possibly, rather than after the election and not
notifying them.
Mr. Serrano. Did you get many reports in 2008 or were
things much smoother than--I was going to say in 2000, but that
is unfair. Everything is smoother than in 2000. Well, it was--
--
Mrs. Emerson. That is true.
Mr. Serrano. I think we all agree, right? They are still
counting votes in some places.
Mrs. Emerson. They counted them twice in my place.
Ms. Davidson. We did not get any anomaly reports from the
States.
Mr. Serrano. You what?
Ms. Davidson. We did not get any reports from the States
that there were problems in the 2008----
Mr. Serrano. Okay. One of the areas that I am very excited
about--and it is a small area--is mock elections. I really
believe that education and civic engagement begins in a
person's youth. The Mock Election Program is a grant program
under the EAC that allows students to participate in simulated
elections with actual voting equipment, ballots, and poll
workers. And I tell you, I wish there was one in every
community in the Nation, because I think it is a great idea.
Can you give us an example of one or two programs that have
been implemented under the Mock Election Program and what kind
of impact are you seeing, how are the grant recipients engaging
the students?
Ms. Davidson. I can. In 2008 and in 2009, we gave out each
year $300,000 worth of grants. That was each year. Excuse me.
Two of those that were so successful, one was in Miami which
they are even this year having two schools a day teaching the
students about election process and even allowing them to vote
on voting equipment, and this will last for 3 months. So this
should include educating students on election----
Mr. Serrano. Is that the whole city of Miami, the school
district, or what?
Ms. Davidson. Miami-Dade County I believe is what it is
called, a county.
Mr. Serrano. It is two schools a day?
Ms. Davidson. For 3 months. So that will contact many
students. I cannot tell you exactly how many it will. They have
to report that after they get through with that grant, so we
will have a report on that when it is finished.
Mr. Serrano. We would like to see that.
Do you know offhand what the actual work with the students
consists of? I mean, I remember about 25 years ago I set up a
program in my district where I had the local--I found out that
the local middle school, one of the many local middle schools
in my district--at that time, my State assembly district was
having a student election. I said, why don't I provide a couple
of voting machines and you will have inspectors and have a
table and you will have to register ahead of time and register
with a party and then you can vote for any candidate. And we
took them through the whole thing.
And we found out a few years later, according to the
principal, that that graduating class eventually in high school
had a very high participation rate in the local election
because we had used those machines.
So do you know what it entails, what it actually entails?
Ms. Davidson. I do. I do have that in front of me.
The election department will run a Mock Election Program to
introduce to the high school students a new optical scan voting
system. The mock election will be conducted as if the school
were an actual precinct. The school students will serve as poll
workers and as judges. And that is what they do on each one of
them.
We think this will be utilized by over a thousand students,
and we are also going to do a video of this so that we can put
this up on the Web site to educate other people that come into
our EAC Web site to learn from that.
Mr. Serrano. I commend you for that, and I would hope that
continues to grow. I think that is very, very, very key. And at
these mock elections, Mr. Culberson, maybe you allow everyone
to vote, just in case they become citizens later.
Mr. Culberson. Don't ask, don't tell.
Mr. Serrano. Mrs. Emerson.
Mrs. Emerson. At least we have fun, right? That is a good
thing. And I thank you.
I actually chaired my college mock election probably back
in--I didn't run for anything. I didn't want to run for
anything. I am an accidental Member of Congress. It was a
wonderful experience, particularly for those of my fellow
students who were not at all politically involved; and they
learned a lot. And one of my daughters did the same thing when
she was in college, too. So I commend you all for that. I think
it is great.
Let me ask you a little bit about staffing, if I might,
please. You all are authorized for 50 full-time employees, and
your budget is $17 million. How many staff people do you have
on board right now?
Ms. Davidson. I would say it is possibly 40, is what I am
guessing. Forty-two is what I was just told.
Mrs. Emerson. Can you give me a sense or give all of us a
sense of what percentage of your staff are involved directly in
such activities such as grant management, election studies,
writing guidance, and what percentage play a strictly
administrative role?
Ms. Davidson. The administrative role is 21 out of the 42.
Mrs. Emerson. So then the other 21 are involved in the
other sections. I am curious, because you are a small agency;
and I know you have a big mission. But with 50 full-time
employees, or the ability to have 50, and a $17 million budget,
I think I am confused as to why you have an executive director,
a chief operating officer, a chief financial officer, and an
acting director. I mean, do you really need all of those people
at the top end of the administrative, as opposed to actually
working in a liaison function with the State, et cetera? That
is a tiny agency to be so top-heavy in management.
Ms. Davidson. You know, when I came to the agency, I
believed the same way you did. But we went through our first
audit over a year ago and failed it miserably.
Mrs. Emerson. That was because?
Ms. Davidson. That was because we were even told in our
audit that we needed to hire these positions, get people that
had expertise in there to be able to handle the job. We hired
not only the CIO, but we hired the auditor. We came out this
last year with a clean audit. In one year, we changed the way
we were working. We had relied on other agencies,
In our audit, also, it showed that we had not met anywhere
near the needs of the requirement of developing procedures and
guidelines to meet the Federal requirements. We walked in there
and started doing what HAVA told us to do; and, being a new
agency, we didn't think about that we had to meet all of the
requirements and all of the rules and regulations that the
Federal Government had set out. There wasn't a handbook on how
to form an agency, and we weren't doing a very good job of it.
Mrs. Emerson. Who all gave you an audit, the GAO or who it
was?
Ms. Davidson. No. We had to be audited because of the
amount of money that we get in. We had to be audited by our
Inspector General, and he had to go out to a special--it was a
special audit because of the amount of money. So it was a
higher audit.
Mrs. Emerson. Was it an outside contracted audit?
Ms. Davidson. Yes, it was an outside contract that our IG
went through to audit our agency. And the first one we did
fail. But the second one we worked very hard at meeting all of
the requirements of the Federal Government, and we passed that
audit this last time, and we were very proud that we passed it.
What we found and what I have found to be personally--you
know, to open up really with you, is, yes, we are a small
agency, but we have to meet every requirement that the Federal
Government sets out, no matter what size the agency is. There
is no different requirements for us than there are for others.
Mrs. Emerson. I understand. No, I understand that. It just
seems to me, when there are only 50 people, to be top heavy
that way, I mean, you wouldn't run a business that way. But you
know that as well as I do, if you, in fact asked the same
question.
Now that you have gotten a clean audit and everything is
squared away--I know that, over a year ago, the Commission
interviewed and made an offer to an individual to backfill the
general counsel position and then subsequently withdrew the
offer; and I know that that person then took the issue to the
Office of Special Counsel and claimed he was denied the
position due to his political leanings. The Office of Special
Counsel ruled in favor of this individual's claims that you all
had wrongly denied him the position, and I am told that you all
have now reposted the position. So have you identified anyone
to backfill the general counsel's position and what will you do
to make sure that the next candidate is handled in a fair and
unbiased manner?
Ms. Davidson. EAC takes this situation very seriously, and
we are working now to make changes to improve our hiring
process, and we are committed to a fair and rigorous process in
doing so.
Currently, the applications process has been closed. They
are being reviewed to make sure that every candidate meets the
minimum requirements.
Mrs. Emerson. So do you know when you might be hiring this
person?
Ms. Davidson. Hopefully very shortly. We are all excited,
and we are ready to hire. We have been without a counsel too
long.
Mrs. Emerson. So then you are going to have an executive
director, a CFO, a COO, an acting director, and a general
counsel. You couldn't combine those position, huh? I am having
issues with this many for a 50-person--and I understand, but I
am not satisfied with the answer: That is the way the
government tells me to do it. It is not personal towards you.
It is just stupid, in my opinion. But I appreciate your
commitment to trying to make this Commission work properly.
Ms. Davidson. And if I haven't answered it properly and the
staff didn't feel like I have, we will make sure that you get
additional information.
Mrs. Emerson. Thanks. Thank you.
Mr. Serrano. My dear, dear friend, Mr. Culberson.
Mrs. Emerson. You didn't say my dear, dear friend, Mrs.
Emerson.
Mr. Serrano. I said the greatest ranking member----
Mrs. Emerson. You then called her the greatest. You called
Barbara the greatest.
Mr. Serrano. She has been with me on that bill for 6 years
now.
Mrs. Emerson. I see. If we go with you on the bill, that
means we rise up in your esteem?
Mr. Serrano. You would be like the greatest of all time.
Mr. Culberson. Thank you. Thank you, Mr. Chairman.
It does look like the Attorney General--I was going back
through the statute trying to refresh my memory, and the
uniform and nondiscriminatory election requirements in the Act,
do you enforce those at all or is that entirely up to the
Attorney General?
Ms. Davidson. Would you repeat your question?
Mr. Culberson. This is your enabling Act, Title 42 of the
U.S. Code, looks like it is section 15.401 in the following
sections. Title III looks like the requirements for uniform and
nondiscriminatory election technology, that the States have to
have an accurate voting list, et cetera. The question I was
asking you earlier, a State does have to certify it looks like
to the Commission that they are in compliance with the
requirements of the Help America Vote Act and they file that
certification with you, correct?
Ms. Davidson. That is correct. And we have 21 States that
have filed that and met those requirements. And it is not only
that they have to meet it. They have to continue to meet that
yearly. That is even their precinct, whether they are
accessible to the disability. It falls down to that level, as
well as equipment and the voter registration. But it is a self-
certification.
Mr. Culberson. Right. You don't confirm the accuracy of the
certification?
Ms. Davidson. No, we don't. That is for the Department of
Justice. We have no authority underneath the law to do so.
Mr. Culberson. You have no authority to confirm the
accuracy of the certification given to you by the States?
Ms. Davidson. What really happens is----
Mr. Culberson. That is implicit. I would think.
Ms. Davidson. If there is any indication that something is
not right, we can ask our Inspector General to go out and audit
the State and to see, and then his audit--he will review that
audit to see if they are meeting what he feels. That is the
only thing we can do, is really turn it over when we feel that
somebody hasn't quite met it or we ask for more information
when they send in their certification. It is a pretty simple
process for them to say they have certified, that they are
compliant.
Mr. Culberson. I notice there is also a section in the
enabling act that allows State election officials in Texas, the
Secretary of State, to enter into an agreement with the Social
Security Administration to cross-check the voter registration
rolls, for example, in Texas against the Social Security list
and to try to ensure the accuracy of the voting list. Do you
have that information about which States have entered into an
agreement with the Social Security Administration to cross-
check their voter accuracy, the voter registration list? Could
you provide that to me?
Ms. Davidson. I don't think I have that.
Mr. Culberson. That has to be a part of your jurisdiction.
It is in your enabling act.
Ms. Davidson. Well, one of the things that they do is some
States have an agreement with the Motor Vehicle Department
because they collect it, and they check it every time with
them. So they get it through the Motor Vehicle--they don't get
it just directly through the Social Security. We have got----
Mr. Culberson. From the Federal Government, who makes sure
that those--other than if you get a complaint, for example, and
you perform an audit and in this case with the Social Security
Administration cross-checking the accuracy, a list with the
States, wouldn't that be within your jurisdiction, if there is
such an agreement, that it is being carried out in a way that
is accurate and fair and keeps the Social Security records
confidential?
Ms. Davidson. I will double-check. But we don't have any
authority, I don't believe, at all in that area. But I will
double-check and get back with you. Because if I am wrong, I
don't want to give the wrong information.
Mr. Culberson. I would like to know which States have that
agreement and particularly in Texas. Do we have it in Texas?
The problem is, in some jurisdictions, there has been a
recurring problem with people who are deceased or felons or not
eligible voting. Now the computer technology has gotten so good
it is possible to cross-check those lists, and the statute does
authorize the State to enter into an agreement with the Social
Security Administration to cross-check those lists. That is a
really important way to confirm the accuracy of the voter
registration rolls, and I would be grateful if you could tell
me which States are doing so.
Mr. Culberson. All of Title III then, what authority do you
have to ensure that States are in compliance with the
requirements of the Title III, the uniform and
nondiscriminatory election administration requirements?
Ms. Davidson. We don't have any authority.
Mr. Culberson. Any authority at all?
Ms. Davidson. No. We are just an assistance commission, and
we don't have any authority. It is only the Department of
Justice that has the authority to go out. If we see clips, we
turn those clips over sometimes to our IG to go out----
Mr. Culberson. Clips?
Ms. Davidson. Newspaper clips that there is a problem in
some States how they are spending their money that possibly we
don't think meets the requirements of HAVA. So we turn that
over to our Inspector General.
Mr. Culberson. Do they take it to the Department of
Justice?
Ms. Davidson. And then if there is something in our report
that we feel that States are not giving us, our full report
goes to the Department of Justice, and they review it.
Mr. Culberson. Do you do anything or could you provide me
with information on what enforcement actions the Department of
Justice is taking?
I notice at the end of Title III it does say that the
Attorney General--excuse me--in Title IV, Section 401 of the
Act, the Attorney General may bring a civil action against any
State or jurisdiction for declaratory or injunctive relief, a
restraining order or a permanent injunction to enforce the
provisions of the Act. Is that something you monitor or work
with them? And could you provide us with a list of what civil
action the Attorney General has taken, where and when?
I am still trying to figure out--I have to tell you, I tend
to agree with Mrs. Emerson's comments about overloaded
bureaucracy. You all have a lot of noble purposes, but it
really just seems to me from first blush you generate a lot of
paperwork, a lot of reports, a lot of paperwork and a lot of
busywork. And it just doesn't seem like there is a whole lot of
beef here, a whole lot of substance to what you do because you
say you don't have any enforcement authority.
What can you tell me about what the Attorney General has
done under Title IV? Could you provide my with information on
what civil actions the Attorney General has taken to enforce
the Act?
Ms. Davidson. I can ask the Attorney General to give us a
report.
Mr. Culberson. You don't monitor that?
Ms. Davidson. They do not give us information. They don't
keep us up to date when they are going out to even look into a
State or a county. They don't keep us in their--we have asked
to be acknowledged and know more information.
Mr. Culberson. The chairman has been very generous with his
time. And you all have a noble purpose. Mr. Chairman, there is
clearly a need for Federal funds for some States to update the
voting machines to go from the punch cards. I don't know what
purpose this agency has got. This might be a good place to look
to save some money.
Thank you very much. I appreciate it.
Mr. Serrano. It is interesting that you are bringing up the
issue of possible voter fraud. I recall we had an issue here a
few years ago where the agency had hired a contractor to look
at the issue of voter fraud and some very serious newspapers
reported that indeed the issue was not that there was voter--
that voter fraud was not a problem, but voter intimidation was,
and that some folks allegedly at the Justice Department got
involved in what the final report should look like, and the
final report said voter fraud was the problem when the initial
draft report said voter intimidation was the problem, not voter
fraud.
Mr. Culberson. If I may recall, also, the Black Panther
suit that was dropped by this Justice Department was a real
concern because there was videos of these big thugs running
people off from the polls. And the previous Justice Department
pursued those guys, and then this Justice Department dropped
them. That is a problem on both sides.
And if I may share with you a story. It illustrates the
problem with elections. My grandfather was actually a Federal
election poll watcher in South Texas in Duval County, the
famous Box 13 in Lyndon Johnson's election. This in the 1940s.
And my grandfather noticed that a lot of the migrant voters
were coming in that had a piece of string with knots in it. And
they would come in to--this is why I am so interested in this.
My grandfather--I grew up with this, the problem in South Texas
and particularly----
You will love this story, Mr. Chairman. It is relevant to
the Commission.
But my grandfather noticed that these people would come in
to vote, and they had a string with knots tied in it. And they
would lay the string down next to the ballot; and wherever
there was a knot, they would check off the ballot. And then
they would take the string, and they would hand it to the next
guy, and he would come in and lay it down.
My grandfather as the Federal election watcher studied that
for a minute, and he finally instructed the poll workers to
hand them the ballot upside down. And because these poor folks
were illiterate and they were using the string, they would lay
it down there and it screwed up their whole system. This is
Duval County, Box 13.
Mr. Serrano. And you thought this was bad? From strings--
that is before it became a palm card. Now you have got a palm
card outside the polling site telling you put a check next to
Serrano, put a check next to Serrano, put a check next to--and
don't vote--yeah, but----
Mr. Culberson. These guys can't enforce it. That is what
worries us. We want you to be able to----
Mr. Serrano. I am just telling you that that might have
been just the way to tell people how to vote. That happens all
the time. They are called ads, too.
But, anyway, I am not making light of it. I understand what
you are saying.
Let us move on for a second to Military and Overseas Voting
Empowerment, MOVE. What is the status of States implementing
MOVE and can States use HAVA dollars currently distributed to
address the new requirements of the MOVE Act?
Ms. Davidson. The States have been asked by our department
to send us a letter if they are not able to get a plan in to
how they are going to spend it under the MOVE Act. And we are
supposed to be receiving those by May of this year.
I would tell you probably we will receive every different
way that you can think of meeting the MOVE Act because our
States are all different. Can they use HAVA money? If they are
Title III compliant, they can spend HAVA money as much as they
need to. If they are not Title III compliant, it depends on how
they are going to spend the money. If it is a voter
registration system, improving that, they probably could spend
it under Title III and not be compliant. But there is about
$350,000 that each State can spend on it without being
compliant. So they can spend some, but they may not be able to
meet all their needs.
Mr. Serrano. I am just concerned that as we get closer to
these elections and then to the 2012 elections, or any other,
actually, for that matter, that we are not where we need to be
with the military and the overseas voters. And that is key. I
mean, we spend a lot of time in this country making great
comments, as we should, about our troops. And then not to give
them all the help they need in making sure that they get to
vote is just a shame. So I would hope that we continue to stay
on top of that and make it possible.
Ms. Davidson. We also have a pilot program that the EAC has
been working on for several months. Even before MOVE, we
started working with NIST and the Federal Voting Assistance
Program to develop a pilot program that would be put into an
area outside of the country that voters could vote on. It would
be a kiosk-type system and would have a backup of a paper. But
it allows people to vote right there at their locality.
Plus, the MOVE Act has added more time to the ballots to be
out. Hopefully, that will help our overseas voters.
We are continually trying to get information and putting
information out to the States on how they can help their
overseas and military voters. Many of the States have moved
forward, putting a lot of the information up on their Web site
and providing blank ballots to voters so they can vote early
and get those ballots back in time. It cuts away that time of
mailing a ballot out and getting it back in so they can get the
ballot to the voter.
Mr. Serrano. Well, I hope we really stay on top of that.
That is of interest to all of us. I know Mrs. Emerson and I
share the same thoughts on this.
The impact of the census and redistricting. As a result of
the census, 2012 elections will be the first year the States
will face redistricting since the passage of HAVA. How will the
2010 census impact State spending of HAVA funds?
Ms. Davidson. For the States, the census could affect them
in several ways. If there is a locality that has growth in the
community, they will have to have more precincts, more
equipment. If they are bilingual, they will have to create
their ballots and their voting information in the languages
that are required. We have a lot of that information that we
have already done, but if there is also more languages added,
obviously we will have to start working on that and getting it
provided for them. There are also more judges that could be
utilized and things like that. So it depends on how the census
creates or breaks up a county or a municipality in their
voting. It could make more precincts. Definitely, the census is
something that the States are considering and knowing that they
have got to work through.
Mr. Serrano. Now, I suspect that the census will show that
we have become yet even more a diverse Nation, which will
require special needs. Will States be able to use HAVA funds to
address an increase in alternative language communities for
ballots, polling, and place signage?
Ms. Davidson. Yes, Mr. Chair, they will. They will be able
to use HAVA funds to make sure that the signages are in all
languages and the ballots and everything like that so they can
use HAVA funds.
Mr. Serrano. Thank you.
Mrs. Emerson, my dear, dear, dear friend, Mrs. Emerson.
Mrs. Emerson. Thank you, Mr. Chairman.
Ms. Davidson, you may remember that Congressman Lungren and
I recently raised concerns about some of the Commission's
contracting practices; and we specifically raised questions
concerning EAC's practice of awarding contracts
noncompetitively or in instances where you all only received
one bid. We additionally asked to what degree you contract out
positions at EAC that include inherently governmental roles. So
I have a few little questions about that.
First of all, can you explain what you all are doing to
make sure that this practice of awarding contracts on a
noncompetitive basis remains limited?
Ms. Davidson. When EAC was formed, there was a lot more
contracts. Because we didn't have the employees to do the jobs,
a lot of contractors were hired. Since that time, the contracts
have come down. We are bringing the contracts down constantly
in our agency, and that is one of the reasons why people were
hired to do some of the work.
Mrs. Emerson. So how many contracts do you all have
outstanding right now?
Ms. Davidson. I am sorry. I don't have that right in front
of me, but I will get it for you. I remember the letter that I
sent and listed all the contracts, but they went back for 3
years. So I cannot tell you----
Mrs. Emerson. If you can just get that information to me
some time--you probably have it readily available. Someone in
the staff does.
Ms. Davidson. I think that we do. So I can get that to you
right away.
Mrs. Emerson. Right. Normally, I am not a big fan of
contracting out inherently governmental functions. However, in
some cases, if there is something temporary to be done, it
makes less sense to hire someone permanently than it does to
make the contract. So it is concerning. And if you could get
that information from obviously how many contracts you all
started, where you are today and whether or not some of these
are inherently governmental roles and some are not.
Let me ask you a little bit about grants. Your budget
request shows an amount of $740,000 for grant funding in 2011.
This is a reduction of $300,000 from 2010. What is the amount
requested for each grant program for 2011 and what changes were
made for each program from 2010?
Ms. Davidson. What we have in that section is just the poll
worker grant, over $700,000. The mock election, because we made
those a 3-year grant in 2008 and a 2-year grant in 2009 knowing
that money was tight, those are ongoing grants right now. We
didn't ask for the $300,000 until the mock election.
Mrs. Emerson. I see. Can you tell me how much of your grant
money went to ACORN or any of its affiliates?
Ms. Davidson. We had two contracts underneath, that we had
Project Vote that got money--I think it was 2007, maybe 2008. I
am unsure of that. But there were two grants in 2006, it looks
like. So it amounted to around $16,000 each. There were two of
them, and they were given to Project Vote. We have asked our
Inspector General to investigate that and to get a full report
on if it was allocated to ACORN and how it was spent. So we
have asked for an investigation.
Mrs. Emerson. Do you have measures in place now to assure
that no grant moneys will go to ACORN or any of its affiliates?
I realize that a lot of ACORN has closed down, but they have
also renamed themselves. So----
Ms. Davidson. If we know the affiliates and we know--that
would be something we would look at when grants come in.
Mrs. Emerson. But you don't have any specific measures in
place right now with regard to that; is that correct?
Ms. Davidson. Well, we ask for affiliates; and so that will
help us in that way. But I don't know what kind of measures you
are talking about.
Mrs. Emerson. Just a policy that says no money is going to
go. We put it in law, but----
Ms. Davidson. We are following the law. So that is where we
are at.
Mrs. Emerson. Just because knowing or doing the research
necessary to be able to recognize some of the new names of this
organization, I mean, that hopefully is ongoing among your
staff.
Let me ask you----
Mr. Serrano. Excuse me a second. I am just confused, and I
am not trying to be difficult. Didn't the court just rule that
we couldn't have done that to ACORN?
Mrs. Emerson. I don't know the answer.
Mr. Culberson. A district court did. It is on appeal. The
statute still stands until----
Mr. Serrano. Okay. All right.
Mrs. Emerson. Let me ask you, have you all ever considered
conducting a study to determine the unique requirements of
meeting the needs of voters in both urban and rural settings? I
have a very, very, very rural, very rural district with 28
counties. I just want to make sure that all of my voters have
the ability to vote, and I just am curious if you all have ever
considered doing something. And then there are equal challenges
in urban settings. One of my big issues would be transportation
to get to a poll, if you will. And you might not have that in
the city where there is public transportation, but we don't
have that. I am just curious if you all have ever thought about
it.
Ms. Davidson. We are doing a study currently. We are just
getting ready to start it. We are selecting people from
localities that would be willing to serve on that. So if you
have somebody in mind that is from your district, we would be
more than happy to put them on that.
You are absolutely right. It is very different for an urban
county. And with money being tight, they close precincts. So it
means further for them to drive. That also means, then, there
needs to be consideration for those voters, how can they vote.
Maybe early voting where they could go to the poll when they go
shop for groceries before the Election Day. Or absentee ballots
given to individuals that live so far away from a polling
place. It is a real problem.
I understand where you are coming from and we do at the
agency. The cities have their issues and how they are meeting
them. They can meet it in some ways with technology, but that
doesn't work for a small county. So we are very aware that
there are some real needs for a study there, and that is
beginning to start. So I welcome if you would like to have
somebody put on that committee.
Mrs. Emerson. That would be wonderful. I appreciate that
offer, and we will definitely get back to you sooner rather
than later. I am thrilled you are doing that study because--I
mean, people who live in cities can't imagine the issues that
folks out in the rural area have and vice versa. So I am
grateful that you all are doing that. Thank you.
Ms. Davidson. Not a problem. I understand that well,
because I have served different sizes of counties, and my job
was completely different.
Mrs. Emerson. Thanks.
Mr. Culberson. Thank you, Mr. Chairman.
Mr. Serrano. I am going to introduce to everyone the
immigrant's greatest friend, Mr. John Culberson.
Mr. Culberson. The legal immigrant's greatest friend.
Mr. Serrano. Try to ask a set of questions without
immigrants in it.
Mr. Culberson. Actually, this is about military personnel
and following up on----
Mr. Serrano. You don't have to be a citizen to serve in war
in the military, right?
Mr. Culberson. In fact, it entitles you to go to the front
of the line to become a citizen, God bless them, if they serve
in the military, which is really a wonderful provision of the
law.
I wanted to ask about military people, service members
voting. I know in Texas, for example, if you mail in a ballot
to vote, as long as the postmark is on or before Election Day,
the clerk will count it. That is pretty standard, I think,
nationwide, right?
Ms. Davidson. That is----
Mr. Culberson. In your experience in Colorado as well, if
you received a ballot from someone voting by mail, if the
postmark was on or before Election Day, you counted it?
Ms. Davidson. And the laws are changing throughout the
Nation. A lot of the States have said that if the ballot was
received up to 10 days after the election, it would be counted,
if that was postmarked on Election Day.
Mr. Culberson. Sure. A reasonable period after the
election, right. But as long as the postmark is on or before
Election Day.
Ms. Davidson. That is correct.
Mr. Culberson. What surprises me actually in here, Mr.
Chairman, this is something we really ought to look at because
this I think will disenfranchise a lot of military people. I
didn't realize this was in the Act. But in Title VII of the
statute in voting assistance programs for overseas voting
materials, the Secretary of Defense has to ensure that the
measures implemented, da, da, da, do not result in the delivery
of absentee ballots by service members to the financial
destination after the date on which the election for Federal
office is held.
So that Federal law is inconsistent with, really, the
standard rule across the country. I am sure it is true in New
York and Missouri, that if you vote by mail and again the
postmark is on or before the date of the election, it is
counted if it is received within 10 days.
We probably ought to fix that, because I bet that results
in disenfranchising a lot of military people that are serving
overseas. I didn't realize that was in there. Would you agree?
Ms. Davidson. I didn't realize it was in there, either. I
would agree. Because I will tell you right now that----
Mr. Culberson. It says, if the ballot is not received--the
Secretary of Defense has to ensure that the ballots are
received by the clerk--for example, you were a clerk in a
county in Colorado, in Bent County, that the Bent County
election clerk has to receive the ballots on or before Election
Day or they are not counted.
Mr. Serrano. Right. Well, that is true for everybody else.
Mr. Culberson. No, no. Actually, the rule for everybody
else is, if the ballot is received up to 10 days after the
election, as long as the postmark is marked before--but he
can't--even if he is delivering ballots postmarked on or before
the Election Day, they are no good.
Voice. Delivered to the soldier to cast the ballot by
election.
Mr. Culberson. No. The statute says, the Secretary shall
ensure that the measures implemented--his measures implemented
under the statute result in the delivery of absentee ballots to
the final destination of such ballots. The final destination is
the clerk.
So we have really got to fix that, Mr. Chairman and Mrs.
Emerson, because we are disenfranchising a lot of military
people.
Now, the 10-day rule is reasonable. Obviously, if the guy's
ballot comes in 6 months later, you don't want to count that.
But 10 days, don't you think we probably ought to fix that?
Because I guarantee that is probably disenfranchising----
Mr. Serrano. If that is the way it reads, I would agree
with that. If that is the way they are implementing.
Mr. Culberson. Yeah. The way the statute reads on its face
and as the commissioner says, the chairman says, it is--and it
is your opinion as well as an election clerk, that would
disenfranchise members of the military whose ballots were
received 10 days or less after the election as long as the
mail-in ballot were postmarked on before the election date,
correct? That is an accurate statement?
Ms. Davidson. Yeah. Congressman, you are absolutely right.
If that is the way the law reads--I mean, I think that
everybody has been reading it to say that a ballot that is
unvoted should not be sent to a voter after the election.
Mr. Culberson. Sure. But that says the final destination,
And the final destination has to be the county clerk.
Ms. Davidson. If that is the way it is, that definitely
needs to be fixed, because we don't want to disenfranchise any
more of our military members.
Mr. Culberson. Right. That is a bad problem.
You also, I understand from reading the statute, have the
authority, as Mrs. Emerson said, to issue grants to nonprofit
entities that are engaged in helping to organize voters or
register voters, correct? Do you only issue grants to
government entities or can you also issue grants to nonprofits
or nongovernment entities?
Ms. Davidson. We can issue to nongovernment entities, but
we cannot issue a grant on voter registration.
Mr. Culberson. I understand. Therefore, the question----
Ms. Davidson. It was through the mock election that this
happened, so that you are aware, a college poll worker.
Mr. Culberson. If I could just follow up with some
precision to get a really clear answer on Mrs. Emerson's
question about ACORN. Because we did pass in an appropriations
bill last year I think, after all this monkey business came out
about ACORN, flat prohibition against any Federal money going
to ACORN or to any of their affiliates. It is the law. It has
not been overturned by a final judgment of an appellate court.
So, therefore, it is the law of the land. What are you doing to
ensure the enforcement of that law?
Ms. Davidson. We are making sure----
Mr. Culberson. That you are not issuing grants to ACORN. It
is prohibited.
Ms. Davidson. To ACORN or anybody that affiliates with
ACORN.
Mr. Culberson. It is prohibited?
Ms. Davidson. Yes.
Mr. Culberson. Have you issued any grants to ACORN or any
of their affiliates?
Ms. Davidson. Not since the law was passed. That was in
2006 that we did that.
Mr. Culberson. You are sure of that? Because your answer to
Mrs. Emerson was a little foggy.
Ms. Davidson. I am sure of it.
Mr. Culberson. Okay. And we really do appreciate your
service, and I thank you for your answer to our questions, and
I appreciate the chairman's indulgence for the time. Thank you.
Mr. Serrano. We have your papers over here. We are looking
at it. We are as concerned as you are, and we will look at it
and make recommendations.
I have one last question, and then we will let you go. How
is that?
I have heard that the job of--well, I know the job of an
elected official is often challenging, ensuring that elections
are fair, accurate, and carried out officially with small
staffs and limited resources. So in a tough budget year, I can
imagine the job of an election official is particularly
challenging.
I understand that you have personal experience, as we said,
working as an election official when you were county clerk and
later as Colorado's Secretary of State. Can you relate some of
your experiences to the challenges that election officials will
face this coming year throughout the Nation? Every State has
less money than they had before. How will this affect the
running of these elections? And how can we assure that local
and State election officials have the resources they need to
successfully oversee the elections?
Think back to those days when you were sitting there
wondering if you would ever get to testify in front of Mr.
Culberson.
Ms. Davidson. I think probably my knees would have been
shaking a little bit more than today.
Mr. Serrano. My knees are shaking right now.
Ms. Davidson. Oh, good. I am in good company then.
Elections are difficult. They are not the same throughout
the United States, as I have said before. Every State has their
own issues. Every county has their issues. Polling place
workers are a tremendous--a scarceness. And our college poll
worker program has been a big success because it brings in
individuals with the experience of technology, the energy to be
able to carry those 8 hours--not 8 hours but almost 18 hours
sometimes of Election Day, but making sure that they have the
resources that they need.
I would tell you in a county budget, as I was a county
clerk, I found that I was the last one on the list of receiving
money. It was always the potholes that needed to be filled, the
police department that needed the money. We weren't thought
about.
But I will say since HAVA came on the forefront and the
heightened public interest in elections, it has been good
because it has brought a lot of good ideas and a lot of things
forward. And with the passage of HAVA and the Federal funds, it
has helped the States to become more up to date, the voter
registration lists and being able to have that throughout the
States, to be able to control people being registered more than
once. It is also hooked up with the deceased files and the
motor vehicle files. It has improved the election process. So
the money that has been spent definitely has improved that
process of Election Day.
Also, the disability people being able to vote for the
first time independently and privately has been an asset to all
of those people. It is very hard to answer your question, how
can we make sure that they have everything that they need,
because we hear from the States when we go to their meetings
that there are issues that they have that we haven't even begun
to think about. So it seems like it is constant that there is
always a new issue that they need to be considering.
Our contingency planning is one of my pet ones, because
when we think about what can go wrong on Election Day--somebody
said, why is the election so hard? It is not rocket science.
You know what? It is worse. Because we can't say 3 minutes or 2
seconds before it is supposed to go up in the air that the
rocket--that we are going to stop the process. We have to have
Election Day.
So training our election officials to be ready for that
pre-certification and everything that goes on is very
important. Every State has their own issues and their own
needs.
So for me to answer that, I am really not able to answer I
know to what you really want. And I am sorry about that.
Because it changes it seems daily even within the States and
the counties. So I am not doing a good job for you, and I
apologize.
Mr. Serrano. That is okay. I know it can become difficult
at times. Always feel free after this hearing to supply us with
any further information on any of the questions that were
asked.
Mrs. Emerson and I have some questions for the record.
I want to thank you for your testimony today. We want to
thank you for your service. We want to remind you again that,
regardless of differences you may see within the two parties on
many issues, there is one issue where we don't disagree on and
that is having fair and accurate elections. There will
different interpretations as to what that means to some people
in some areas, but certainly we understand on this subcommittee
the importance to our democracy and to our system to have fair
elections with full or as close to full participation as
possible.
I am always amazed at how much you hear people say how much
they love this country and how much they love our system and to
the point--and this is only my comment--where sometimes we try
to force our system down other country's throats, where they
should be like us. And yet when it comes to election, we are
not outraged when only half of the people vote or we are not
outraged in the past when we elected the President from both
sides with 43 percent of the people voting.
So anything we can do to make elections better, to have
more people participate, and to make sure that when that person
voted for a certain candidate that that is pretty much--or
should be actually the actual result of that vote with no
hanging anything in the future. So that is what we ask you to
continue to look at; and, in the meantime, you will continue to
have our support.
I am sure if people were to do an analysis of this
subcommittee they would find out that Mrs. Emerson and I treat
everybody who comes here with respect. That is because we
understand that everybody who sits before us has a major role
to carry out, and we want you to be successful. Our patience is
running thin on the Security Exchange Commission. Other than
that, we want to be supportive.
Other people say his subcommittee meetings are like a love
fest. Well, because we want to be supportive, especially you.
You have a major, major role to play; and your agency has a
major task to accomplish. So thank you for your work. Thank you
for what will be your work, and keep us informed on anything
that is going on that we should know.
Ms. Davidson. I would be more than happy to. Thank you.
Mrs. Emerson. Thank you.
Mr. Serrano. The meeting is adjourned.
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Wednesday, June 9, 2010.
FEDERAL COMMUNICATIONS COMMISSION FY 2011 BUDGET REQUEST
WITNESSES
JULIUS GENACHOWSKI, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION
Mr. Serrano. The subcommittee will come to order. Before we
begin are there any numbers from the FCC as to the ratings last
night for the Nationals game?
Mr. Genachowski. I did some firsthand research, Mr.
Chairman, and took my son to the game, and I can give a full
report at a later time.
Mr. Serrano. Great. That is wonderful. The ratings must
have gone through the roof.
We are pleased to have Chairman Genachowski before us today
to discuss the FCC's proposed budget for next year--and the
Nationals game from last night--on the Commission's Broadband
Plan also.
Rapid changes in communications technologies are giving
consumers more options, even as it gives some providers more
leverage for high prices. The FCC must run faster and faster to
keep pace with these changes. We count on the FCC to regulate
communications so as to protect consumers without stifling
innovation.
Last March, the FCC issued its Broadband Plan that lays out
the current Commission's perspectives on the future of
communications. As the Broadband Plan made clear, Americans
increasingly rely on broadband Internet connections for
delivery of fast, rich and reliable transmission of voice,
text, Internet browsing, medical images, entertainment or
almost any other form of communication.
Now, as you know, this hearing is on-line live as we speak,
and I sent out a Twitter message, I put it on two Facebook
pages and an e-mail. So we should get at least 10 people to
watch.
Mrs. Emerson. Do you have your BlackBerry out so you can
answer or Twitter as we are going along.
Mr. Serrano. Yes. And we are being recorded.
Mrs. Emerson. Good.
Mr. Serrano. Just to make the point that we are up to date
on some of the technology, although it is all very confusing to
us still.
As the Broadband Plan explains, wireless spectrum is
becoming increasingly in demand as more communications go
wireless and require more bandwidth. We face a crisis if we do
not act soon to free up more spectrum for broadband. I applaud
the FCC's efforts to identify under-used spectrum for possible
conversion to broadband applications.
I am also pleased that the Plan recognizes the benefit to
our society when almost everyone has access to broadband. More
and more, access to broadband opens opportunities in education,
job hunting, becoming an informed voter, and so forth, and lack
of access to broadband closes opportunities. We must work to
close the digital divide in access to broadband.
Not long after the ink dried on the FCC's Broadband Plan, a
ruling by the Court of Appeals for the District of Columbia
Circuit raised questions about the FCC's authority to regulate
Internet service providers. As a recent New York Times
editorial pointed out, it is essential for the FCC to have
authority over the Internet, the dominant 21st century mode of
communications. We are looking forward to better understanding
your decision to launch proceedings to bring ISPs under Title
II.
This subcommittee has also been concerned that almost 9
years after 9/11 and 6 years after the 9/11 Commission report
our first responders still lack the robust interoperable
communication system needed in the case of major emergencies.
Your plan recommends one approach that has been endorsed by
both co-chairs and two members of the 9/11 Commission, but that
approach has been opposed by some organizations representing
first responders. We look forward to learning how you propose
to resolve this situation so that we can move ahead.
PEG channels that provide public, educational, and
governmental information to cable TV viewers make a vital
contribution to our civic society. As technology has evolved
some of those PEG channels have become more difficult to
access. Despite many petitions and comments for the record, the
FCC has failed to fix this problem. I was disappointed that
your 360-page Broadband Plan made no mention of the future of
PEG, much less proposed a solution.
Finally, as you know, I have been concerned that Americans
living in the Territories often lack communication services
comparable to those available in the States. Your report on
communication services available in the Territories shows
dismal rates of Internet use in the Territories. I was pleased
to see that your Commission recently gave the go-ahead for XM-
Sirius to make the investments necessary to operate effectively
in Puerto Rico. I remain concerned about the availability of
universal service funds there.
I want you to be assured, Mr. Chairman, that it is in the
best interest of this committee and this Congress for you folks
to succeed, but to succeed on behalf of the consumer, to
succeed on behalf of strong technology for our future, to
succeed on behalf of bringing us to where we should be as a
nation, but never at the expense of leaving behind any
community, including those folks who live in the Territories.
And with that I turn to my colleague, my sister and the
ranking member, Mrs. Emerson.
Mrs. Emerson. Thank you, Mr. Chairman. Chairman
Genachowski, welcome and thanks so much for being here today.
The FCC has an important regulatory role in the county's
communications, television, radio, Internet and cable
industries, and we all know these services touch nearly every
American citizen and business daily. Ultimately you all have to
find a balance between enabling technological progress and
providing enough regulation and oversight to ensure that the
American people have available communication services. It is a
very challenging job, with many business technology and
consumer groups watching your every move.
I want to congratulate you on the development of the
national Broadband Plan. Developing a strategic plan to provide
every American with affordable access to broadband services is
a worthy goal. And I am very pleased because it has the
potential to assist those Americans without Internet access to
improve health care, education, public safety, access to
government and the economy. I am still a little confused why we
used--we were going to deploy rural Internet opportunities, or
at least broadband opportunities, after which you were then
going to do a new map, if you will. So perhaps the cart got
before the horse, in spite of the fact that I do think that
that is a good use of stimulus funds is the deployment of
broadband, particularly since I have a hugely rural district.
So it will end up helping my constituents a good deal.
I will say, though, that I, like many others, have some
concerns with your plan. As the chairman said, many in the
first responder community are concerned with your strategy to
implement a nationwide wireless first responder network, or at
least the means by which you want to do it. And I am also
concerned with your announced plan to reclassify broadband as a
phone service instead of as an information service. Many have
questioned whether this reclassification will stand the
scrutiny of the courts.
In addition, my constituents, my very small providers,
really believe this action will reduce private sector
investment and broadband expansion, which will obviously then
hinder your goal of expanding affordable broadband access.
Thanks for being here. I look forward to your testimony,
and we will have lots of questions, I presume. Thanks, Mr.
Chairman.
Mr. Serrano. Thank you. You know the drill, Mr. Chairman.
You give us 5 minutes, we will put your whole statement in the
record, and then we will drill you to the point of exhaustion
on our part, I am sure.
Please proceed.
Mr. Genachowski. Thank you. Good morning, Chairman Serrano,
Ranking Member Emerson, Congressman Crenshaw. Thank you for
being here. I am pleased to be making my first appearance, so I
am learning the drill. But I welcome this subcommittee's
oversight and input and look forward to working with you to
ensure that the Commission is able to perform its mission and
that we get good input into all of the issues in front of us.
I also want to take a minute to thank your staff, Lee Price
and John Martens, who have taken considerable time and effort,
a very healthy working relationship at the staff level, and I
appreciate their work.
The FCC's mission is to promote opportunity and prosperity
for all Americans through communications, technologies, and
networks. To advance this mission we are focused on these
goals: Promoting universal broadband that is robust and
affordable for all Americans regardless of where they live;
pursuing policies that promote job creation, investment,
competition, and innovation; protecting and empowering
consumers and families; helping deliver interoperable public
safety communications networks with the best technology to
serve our firefighters, police officers, and other first
responders, and ultimately to save lives; advancing a vibrant
media landscape that serves the public interest in the 21st
century; and seizing the opportunity for the United States to
lead the world in mobile.
The budget we have submitted will considerably enhance the
FCC's ability to achieve these goals. It will help ensure that
we have the staff we need with the technical skills we need to
support our work to promote investment, competition, job
creation, public safety, our global competitiveness in this
complex communications landscape.
The budget request also includes investments in technology
that will enhance agency operations, particularly in the area
of public safety. My written statement contains more details on
this. I ask that it be included in the record.
Let me briefly touch upon some key items before the
Commission, and I am sure we will have an opportunity for a
good exchange on these.
First, as I am glad both of you mentioned, Congress
directed the FCC to produce a national Broadband Plan, and we
have now done so and submitted it to Congress and the
President. It includes key recommendations to transform the
Universal Service Fund from supporting yesterday's technologies
to tomorrow's, recovering and unleashing licensed and
unlicensed spectrum so that we can lead the world in mobile. It
proposes ways to promote investment by cutting red tape,
lowering the cost of deployment and accelerating broad
deployment everywhere of wired and wireless networks. It
proposes initiatives to foster vibrant competition and empower
consumers who are often confused about this landscape. It
includes a roadmap to tackle vital inclusion challenges so that
everyone everywhere, individuals and small businesses, can
enjoy the benefits and opportunities of broadband, and it
proposes concrete ways in which broadband can be deployed to
help solve many of our Nation's major challenges, including
education, health care, energy, and public safety.
In April, the Commission released a detailed, extensive
timetable for taking action on the Plan's recommendations. The
Commission has since unanimously approved eight action items
already, including a notice kicking off broad-based universal
reform. In May we continued driving on this agenda by approving
three more items from the Plan's recommendations, a notice to
cut red tape in the E-Rate program and increase flexibility for
schools to better serve their communities with the funds and
the technology, and order a notice to foster competition in
broadband deployment by improving access to pole attachments,
part of the blood and guts of this area where if we get it
right we can seek faster deployment of infrastructure, and an
order enabling the use of 25 megahertz more spectrum for mobile
broadband.
Although many of the action items from the national
Broadband Plan can be further reviewed and acted upon by the
Commission, a few major recommendations require review and
action by both Congress and the Commission, one of the most
urgent being the creation of a nationwide interoperable public
safety broadband wireless network. For far too long, as you
said, Mr. Chairman, our Nation's first responders have lacked
such a network. As part of the national Broadband Plan I tasked
our FCC team, led by a brilliant retired admiral with great
experience in this area, with starting anew and developing a
comprehensive plan for an interoperable broadband public safety
network. The Commission staff has proposed a multi-part plan
that will support the greatest benefits for public safety's
day-to-day needs and provide essential redundancy and
resiliency during the worst emergencies. The Plan confirms that
the current 24 megahertz of spectrum identified by Congress and
allocated to public safety is sufficient for public safety
needs for the foreseeable future, and that if necessary in dire
emergencies public safety will be able to access and roam on
adjacent commercial networks in the 700-megahertz band,
including the D-block, which Congress has required the FCC to
auction.
It includes specific recommendations to get our mobile
broadband public safety network built during a window that is
closing of the rollout of commercial 4G networks. If we can get
this done now, taking advantage of efficiencies that can happen
by building out at the same time, we can both get it done and
save a tremendous amount of money than if we wait.
Second, with respect to our goal of ensuring that the U.S.
leads the world in mobile, there is little debate that our
Nation's spectrum needs are rapidly increasing, with demand for
spectrum very significantly exceeding the supply. If the U.S.
is to lead the world in mobile services and technologies, we
must address this looming spectrum crunch. I understand and
share the concern that in pursuing this objective that we take
full account of viewers of free over-the-air TV as we pursue
what we strongly believe is a win-win-win plan to benefit free
over-the-air viewers, the broadcast industry, our broadband
future and American consumers.
I look forward to working closely with this committee and
Congress on a mechanism for a win-win-win auction to address
our mobile spectrum needs and make sure that we take full
accounts of existing services like free over-the-air TV.
Finally, I remain focused on the importance of broadband to
our Nation's economic growth, competitiveness, investment and
innovation, huge opportunities here for the country. But as we
heard, we face legal uncertainty now as a result of a recent
court decision in the Comcast case.
Comcast, although we argued to sustain the framework that
had existed, the court disagreed and that decision cast real
doubt on whether the legal framework the Commission chose for
broadband Internet services nearly a decade ago is adequate to
achieve core broadband policies such as universal service,
public safety, and promoting investment and innovation related
to broadband and extending it to all Americans.
In addressing this issue, I reject both extremes, the
extreme of overregulation and the extreme of doing nothing. I
believe that a light touch approach continues to be the correct
one, and look forward to ongoing dialogue with Congress as the
Commission seeks public comment on how best to ensure that our
broadband policies rest on a solid legal foundation and that we
foster a climate for robust private investment in
communications that benefits all Americans.
As you may know, the chairman of our authorizing full and
subcommittees have announced they will start a process to
develop proposals for updating the Communications Act. I
welcome their process and the opportunity to serve as a
resource to them and Congress in their work, and of course I
look forward to working with the members of this subcommittee
on these issues and all issues the FCC faces.
Thank you again for this opportunity to discuss the FCC's
2011 budget request and our work under the Historic Recovery
Act. I respectfully request that the subcommittee consider
granting the FCC's fiscal 2011 funding request, and I would be
happy to hear comments and of course take any questions.
Mr. Serrano. Thank you so much. Thank you. Around here we
always use the phrase ``win-win.'' You say ``win-win-win.''
Does that extra ``win'' mean you know something is going to
happen?
Mrs. Emerson. It means the Cardinals and the Yankees and
the Nationals are all going to get a win.
Mr. Serrano. It used to be a situation where everyone asked
how long before Serrano brings in Cuba and Puerto Rico into any
kind of a hearing and now it is how soon the Yankees and the
Cardinals come into it. So we will see you in September.
The court decision, the D.C. Decision, now, first of all,
when you come before this committee or any committee in
Congress, and I am sure some of my colleagues are going to be
upset with this, not in this committee, don't ever assume that
Members of Congress know this issue through and through,
because this is one of the more complicated issues that we deal
with, and I am sure it is for you folks too. Now, the court
decision kind of threw everybody for a loop. And the issue was,
as we saw it, do you have the authority, existing authority, to
move in the direction that many of us want you to move in. So
what's your sense?
Now, just as a little aside, if one looks at your
biography, you have done enough in the past to have dealt with
many issues on many levels, from the Supreme Court to Congress
to the administration to the FCC. So you certainly have an
understanding of how these things move. Did that court decision
cripple you? Does it allow leeway? Does it give you leeway to
do what you need to do? Where are we at now? How can you
explain that to us?
Mr. Genachowski. There is no question that the decision
raised serious questions, created a problem that we have to
solve. There had been a consensus that the FCC could adopt
sensible rules around broadband for universal service, for
public safety, for consumers, under a particular Title I
approach. We defended that in court, we thought it was fine. We
want to focus on what the American people want us to focus on,
which is extending broadband to all Americans, leading the
world in innovation, driving tremendous investment, having this
be a platform for job creation, and extending the wonders of
broadband and health care and education to all.
Unfortunately, we didn't win the case. And in its opinion
the court raised real questions about the consensus framework
that had been used. We now have to solve that problem. As I
looked at it, we had two extremes in the debate. We had an
extreme of oh, well, this is fine, the FCC doesn't need to do
anything here at all, and we had what I believe is an extreme
of oh, this is an opportunity for massive regulation of this
infrastructure. And I reject both those extremes. And I
directed our staff to identify a strategy that would restore
the status quo, that would restore the light touch framework
that would allow the Commission to do what is necessary to
promote investment, to promote public safety, to extend
broadband, not to do more than what is necessary. And the staff
developed what we have called the third way approach that is
modeled on the existing approach for how mobile voice is
regulated and that we will continue to take public comment on
and discussion on, with our central goal being the litigation.
The court decision created a problem, let's solve it so that we
can tackle our country's broadband needs.
Mr. Serrano. And how do other members, I mean they are not
here, but is there support on the Commission for that approach?
Mr. Genachowski. Well, I wouldn't want to speak for other
members. I think we have healthy debate at the Commission,
which is a good thing. I think each of the members of the
Commission has expressed their initial views. This is an issue
of sufficient importance that we should have public comment,
public discussion, and encourage everyone involved to roll up
their sleeves with the Commission with an approach of problem
solving. I don't think anyone disputes that there is a problem.
And I am going to do everything I can to work with all
stakeholders, my colleagues at the Commission, the great staff
at the Commission, to tackle this and solve it so that we can
focus on the core goals that I think are widely shared of
promoting broadband for our economy and for solving major
national challenges.
Mr. Serrano. And if I was to put you on the spot and say
looking forward, at what point date wise can you say we have
put this part aside and we are moving on now? I mean, I know
you are moving on different fronts at the same time, but we
have put this issue behind us, this has been resolved, what do
you see?
Mr. Genachowski. Well, the first step is to start the
proceeding, which we haven't done yet. It takes time to get it
going. We will start the proceeding, we will encourage broad
public comment and input, and we will do everything we can to
solve this problem while we continue to move forward
simultaneously on key elements of the Broadband Plan. We can't
slow down, it is too important for extending opportunity to all
Americans. And we have continued to move forward in the ways
that I mentioned, we will keep on moving forward, and we need
to tackle this issue for many reasons, including the fact that
the rest of the world is not standing still.
Mr. Serrano. Let me, I am going to be asking members after
Mrs. Emerson speaks to stick to the 5-minute rule, so I will
abuse it now and say the following. On your last comment, I
don't know how briefly you can do this, but what happened to
us, why did we fall behind, why are we in so many ways the
greatest country on Earth and in this particular one we are
trying to catch up, what happened to us?
Mr. Genachowski. It is obviously a very good question. A
lot of people disagree on why we are where we are, but I think
there is broad agreement that we are behind where we should be.
Perhaps one of the drawbacks to having the infrastructure that
we do is that we have to deal in this country with legacy
infrastructure that in some cases slows us down. We have to
reform the Universal Service Fund so that it applies to
broadband, not just all telephone service. But I think what we
focused on in the Broadband Plan was assessing what the current
obstacles are and what we need to do to tackle them.
Mr. Serrano. Mrs. Emerson.
Mrs. Emerson. Thanks, Chairman. So Commissioners McDowell
and Baker have stated that no evidence exists of systemic
failure in the broadband market that would justify a new
onerous regulatory regime. So perhaps you can tell us, because
we are the Financial Services Subcommittee and generally we
deal mostly with something dealing with financial services, and
I will admit to not having a lot of expertise in this issue,
but other than the Comcast case, which I actually kind of
understand, what problem would be solved by increasing Internet
regulation and is there evidence that Internet service
providers are discriminating against certain customers?
Mr. Genachowski. A couple of points if I may. One is I
don't support a new onerous regulatory regime. I oppose it. I
support the restoration of the light touch regulatory regime
that we have. There are a couple of different issues that get
talked about together here. With respect to the basic authority
issue, there is a broad list of problems we have to solve and
they are detailed in the national Broadband Plan; broadband for
all of America, tackling public safety, tackling privacy,
promoting investment. All of these require the FCC to have
basic authority with respect to broadband access.
Another issue that gets discussed in this is the issue of
preserving a free and open Internet. I do believe that we have
something very special in this country: An Internet built on an
open architecture that allows free speech, that allows
innovators to reach a broad audience. It has led to the
development and growth of small businesses across the country,
huge benefits in terms of investment. My view on this is that
we need to preserve what we have and make sure that this
platform remain open as we drive more and more investment in it
so that the infrastructure can lead the world.
Mrs. Emerson. Well, are you concerned that a majority of
Members of Congress in both parties oppose your plan? I think
there were 171 Republicans and 74 Democrats who wrote you a
letter basically saying not to move forward with your plan,
quite frankly because it is our responsibility to give you
direction as opposed to you giving us direction. But you know
we all are trying to work together to help the American people.
But does that bother you that the majority of Members aren't,
on the House side anyway, aren't in favor of your plan?
Mr. Genachowski. Well, the concerns that Congress have of
course I take very seriously. And I share many, if not all, of
the concerns that are in the letters. We need to find a way to
make sure that we restore the status quo that exists, protect
consumers, promote competition, promote investment, promote
universal broadband to all Americans in a way that is a healthy
framework that is consistent with the framework that we had. So
I am looking forward to ongoing discussions with Members of
Congress to developing broader understanding of the options, of
the approach that I have suggested, and I believe that this is
an area where I hope and I think we should be able to achieve
better understanding and enable us to move forward in a way
that allows us to have a solid legal foundation that promotes
investment so that we have a basis for making sure we can take
care of universal service, take care of public safety, take
care of small businesses and broadband, and I look forward to
this process and I think our proceeding will help be a resource
as we move forward.
Mrs. Emerson. Well, since your Broadband Plan assumes
significant contributions or investments by the private sector,
and if, I mean you just mentioned investment, but if investors
are fearful of government's involvement in regulating the
Internet, and you may not call it regulation but others do so,
it is all a question of semantics, so how is that going to
impact the expansion of broadband to all Americans if in fact
you have investors who say, well, wait a minute here, this is
overreach-overreach. And I realize that you say it is not, but
some others would think it is.
Have you studied the question and the impact that that
might have on how we do achieve at least the large goals in
your plan.
Mr. Genachowski. I am committed to making sure that we have
a framework that promotes investment. As Congressman Serrano
mentioned, I spent many years in the private sector, including
work as an investor. This is essential. In this country private
investment will fuel our broadband networks, and we have to
make sure that we achieve that. We are just at the beginning of
tackling this issue. I would note just one thing, which is that
the third way approach replicates the framework for mobile,
which has been very consistent with investment, it has been
widely praised. And I look forward to discussing this with you
and other members to make sure that we have a framework to
achieve our common goals with respect to broadband.
Mrs. Emerson. Are you having trouble with the authorizing
committee? This is something that everybody believes will
somehow solve a problem that exists out here, at least, you
know, according to you. Have you not talked to the authorizing
committees to determine whether or not a narrow bill could
simply be written and that would preclude you from having to do
it by regulation? People are very nervous about any regulatory
body doing things by regulation in place of us legislating it
because it is a little heavy, at least the perception is it is
very heavy handed.
Mr. Genachowski. The chairmen of the authorizing committee
on the House side and the Senate side have announced that they
are looking at proposals to update the Communications Act and
we will of course be a resource to that. So they are looking.
Mrs. Emerson. So in other words, you would not hold back
and perhaps let Congress do what it is supposed to do as
opposed to you all doing it instead?
Mr. Genachowski. I am looking for a solution that allows us
to work together to promote our common broadband goals. And I
put on the table a solution that I believe rejects both
extremes that is modeled on regulatory frameworks that work,
but I am focused on a solution and if Congress were to provide
a solution that would be welcome.
Mrs. Emerson. Thanks.
Mr. Serrano. Thank you. And now under the 5-minute rule,
with a very nice gavel in my hand, I am honored to introduce
the newest member of our committee attending his first hearing,
the legendary gentleman from New York, a legend in his own
time, Congressman Steve Israel.
Mr. Israel. Thank you, Mr. Chairman. Mr. Chairman, thank
you for your hospitality. I have heard references to the
Yankees and the Cardinals, but nothing about my beloved New
York Mets, by the way, and I hope that changes.
Mr. Serrano. The chairman is a Yankee fan.
Mr. Israel. Mr. Chairman, although I am new to the
subcommittee, back in December I sent you several letters
expressing concern for the deterioration of negotiations on
retransmission agreements between broadcast companies and
Comcast providers. Both parties have intended to do
brinkmanship, but it is the American people who hang in the
balance. In Chairman Serrano's community and my community about
3 million subscribers in New York, New Jersey, and Connecticut
lost access to their ABC affiliate 15 minutes into the
presentation of the Oscars when it went dark until the switches
were turned on. And in the letter I asked you to consider
ordering carriage on an interim basis when this happens,
ordering arbitration, other alternative dispute resolutions so
that the American people don't hang in the balance.
Two questions. One, what can the FCC do to ensure that
there is not a repeat of this kind of brinkmanship and protect
consumers? And second, I believe that this is just a tip of
iceberg and as we move forward there are going to be more and
more cases where the American people suddenly find themselves
literally in the dark with respect to their access to
programming. And so what are you planning to do in order to
keep pace? The regulations that were promulgated in the early
1990s clearly are not keeping pace with the intensity of failed
negotiations, and so what can we do moving forward to provide
those consumer protections?
Mr. Genachowski. I share your concerns, particularly with
respect to viewers, consumers who don't have a seat at the
negotiating table and can wake up and find out that what is
expected of them doesn't make any sense. You mentioned the
February/March issue. I remember back to December/January when
there was a possibility that viewers might find out on the
Friday before a holiday weekend that they would lose their
signal over the weekend for when there were high interest, in
that case football programming on that they would want to
watch. And at one level making sure if consumers have a real
ability with sufficient time and notice to change providers
that is debatable, that is something we can debate and think
about. But the idea that a viewer would find out on a Friday
that, oh, you can't watch some programming that is very
important to you on a Monday unless you go to a store that is
closed and order a product that you can't get in time, that
doesn't make any sense at all. So we have announced that we are
looking at the retransmission framework, and it is largely a
statutory framework that has been the same framework in place
for a very long time. And we are running a process to see
whether it can and should be updated. I do think that the
private parties in this should have the ability to negotiate
their own deals, but I think something--the consumers and
viewers who are not at the table, their interests have to be
taken into account as we analyze the framework and make sure
that it fully serves the whole ecosystem.
Mr. Israel. And what is your timeframe for the review of
the retransmission process?
Mr. Genachowski. It is ongoing now. I believe we are in the
public comment process, and our staff is having discussions
with the various players to see what recommendations we can
come up with to improve and update the process.
Mr. Israel. Thank you, Mr. Chairman.
Mr. Serrano. Thank you. The distinguished Mr. Crenshaw.
Mr. Crenshaw. Is that all you have to say, Mr. Chairman?
Mr. Culberson. That is all you get.
Mr. Crenshaw. Is that all I get?
Mr. Serrano. I spent the last year and 6 months praising
you.
Mr. Crenshaw. Thank you, Mr. Chairman. And thank you for
being here, Mr. Chairman.
One of the things that when I talk to my folks back home
what drives them crazy is every time there is a problem
Washington says we will either spend more money, we will pass
more laws, we will implement more rules, more regulations. And
I guess I am trying to understand what the problem is that you
are trying to solve, trying to understand why if Congress, if
you have the chairmen of the authorizing committees saying they
are trying to identify the problem, they want to solve the
problem, that is kind of Congress' role. So when I look at the
telecommunications industry it seems to be fairly innovative,
it seems to be growing, there is a lot of private investment.
And it would seem that I hear you saying you want to have a
light touch, but it sounds like there is going to be more
regulation and more regulation is going to bring more
uncertainty. And I would like you to maybe just touch on a
couple of things. One is kind of succinctly tell me what the
biggest problem that you are going to solve, or maybe Congress
is going to try to solve as well, tell me why it is important
that you solve it through rules and regulations before Congress
has a chance to solve it through input from their constituents,
et cetera, more accountability. And then the third thing, maybe
can you tell us, because this committee is interested in the
money that we are going to spend, what kind of expenditures are
going to be necessary if you put in place whatever rules and
regulations you think you are going to put in place. It would
seem to me you are going to need more people which would cost
more money. So you know, and I guess you are also going to face
a bunch of lawsuits and things like that. So can you highlight
that as quickly as you can? I know that is probably not that
easy to do quickly, but help me understand those three things.
Mr. Genachowski. Sure. First of all, I have been and the
Commission has been very transparent over the last year on what
policy objectives we believe need to be pursued to advance our
broadband goals as a country, I think a greater level of
transparency and openness about that than anyone remembers.
Mr. Crenshaw. Now is that the problem, there is not enough
transparency?
Mr. Genachowski. Transparency at the Commission? No, no, I
don't think that is the problem at all. What the court decision
did and our reaction to it doesn't change at all, not one bit,
the policy goals that we have articulated in terms of getting
broadband to rural America and all Americans, dealing with
public safety issues, addressing basic consumer protections,
nothing changes with respect to our goals. What this uninvited,
undesired court decision does is it forces us to look at the
legal foundation underneath it, to go into the basement and
say, all right, we need to do these things for the country,
they really matter. Even though we liked the structure that
existed, the court told us you got to go into the basement and
fix the foundation so that what you are doing for all these
other things stands up. That is what we are trying to do.
Mr. Crenshaw. So that is the problem.
Mr. Genachowski. That is the issue.
Mr. Crenshaw. Okay. And is that not being done now?
Mr. Genachowski. Well, that is the process. We believe we
have an obligation at the Commission to say, look, this court
decision came down, it raises questions, we need to have a
public, open, transparent process to identify what to do going
forward. A lot of other people are looking at it, and I
encourage that. This is an area where it is in our national
interest to have all stakeholders come together, roll up their
sleeves, get into the basement, get their tools out and fix
this.
Mr. Crenshaw. What needs to get fixed? What is the big,
big, big problem? You got goals, you got objectives and some of
them I guess are being accomplished. But is there one big thing
that is not, that you got to fix?
Mr. Genachowski. Well, in terms of the legal foundation the
court said, hey, your foundation is broken, we need to go fix
it. With respect to the broadband policies and objectives,
transforming the Universal Service Fund so that we can extend
broadband to all Americans, a vital thing we have to fix.
Mr. Crenshaw. Is that not being done now?
Mr. Genachowski. It is something we are working on very,
very hard. The court decision raises questions about the legal
basis on which it can rest. None of us want to spend a long
time working together to build consensus for universal service
reform and then have the court say, oh, you weren't listening,
we told you that you can't rest it on this part of the
Communications Act.
Mr. Crenshaw. That is the big problem. All right. Now so
you are working on that. Why are you working on that and not
Congress working on that?
Mr. Genachowski. Well, I think we have an obligation as the
agency that administers the Universal Service Fund to work on
it and improve it. We have obligations with respect to public
safety, obligations with respect to basic consumer protections.
And as I said, all of these policy goals have been very
transparent and open. And nothing about the litigation or this
process that we are dealing with now to deal with it affects
our policy goals, affects our desire to have light touch
regulation, to promote investment, to cut red tape, to focus on
consumers' real needs, to focus on broadband and education.
Mr. Crenshaw. Won't you end up with more regulation?
Mr. Genachowski. No.
Mr. Crenshaw. So you might actually reduce regulation, your
new rules might be less restrictive than the rules you have
now?
Mr. Genachowski. Our goal is to go into the basement, fix
the foundation so we can continue to work on exactly the same
house that we have been working on and do that in a spirit of
bipartisanship and consensus and global competitiveness in the
United States.
Mr. Crenshaw. And what do you think the Congress' goal is?
Mr. Genachowski. I am not sure that I would--I am not
sure----
Mr. Crenshaw. Would they be working on--I assume that
Congress is going to--I don't sit on the Energy and Commerce
Committee, but I assume somebody there is. As you say, the
authorizing committee chairmen are talking about fixing the
telecommunications industry or rewriting laws or whatever. Is
that a mutually shared goal they have with you?
Mr. Genachowski. Yes. And I wouldn't want to speak for
other Members of Congress, but we work closely with our
authorizing committees and have great respect for the chairmen
of those committees.
Mr. Crenshaw. So why don't you wait and let them do it? It
is that urgent?
Mr. Genachowski. I think success in broadband is urgent for
the country, I do believe that.
Mr. Crenshaw. Thank you, Mr. Chairman.
Mr. Serrano. Thank you. Ms. Wasserman Schultz, the
gentlewoman from the great State of Florida.
Ms. Wasserman Schultz. Thank you very much, Mr. Chairman.
And a lifelong Yankee fan I might add, having been born in your
home State.
I am going to be the fly in the ointment among the members
here and tell you, and not be afraid to say out loud, that I
don't really have a problem with your move towards light touch
regulation and am very interested in seeing what benefits to
the consumer we might have. I mean, we have been struggling
with issues related to the Internet like net neutrality, like
how to make sure that we decide how much a company should be
able to restrict access to a piece of network or control a
piece of the network and package that and sell it. I would like
to hear from you, to the degree you haven't already touched on
it, what consumer benefits you think would come from light
touch regulation.
I also, though, would like you to touch on the whole issue
of child pornography trafficking across the Internet. That is
something that I have been very focused on since passing the
Protect Our Children Act in 2008. I mean just to give you an
example, last year a major ISP in the world tried to determine
the magnitude of child pornography trafficking across their
network in just one country, and it was a small country, fewer
than 10 million people, something like the size of New Jersey,
they used known child pornography identifiers, hash values from
a registry provided for them by Interval. They determined that
120,000 transactions for receipt, distribution and possession
of child pornography had occurred in one day in one country. If
we were to extrapolate a similar demand on the United States it
would mean that there could be as many as 3 million hits for
child pornography in our own country.
I would like to know what the intended policy is toward
anonymity on the Internet. Does the agency see a need to
mandate that broadband providers keep and manage information
like that? And I have a couple other questions related to that
as well. But I know the easiest thing in the world to do
politically is to just stay away from the Internet, stay away
from Internet taxation, stay away from Internet regulation. The
Internet has been off limits to any suggestion of anything
governmentally related in touching it since its explosion. And
I think as far as the answer to the question why not leave this
to Congress, I mean sometimes Congress leads and sometimes we
are pushed. And to be honest with you, I am not sure, as much
respect as I have for the chairmen working on the issue now, I
am not sure that they would have taken the issue up quite as
soon if the FCC had not begun exploring the avenues that you
are exploring. So I would love to hear from you.
Mr. Genachowski. Thank you very much. Consumer benefits,
the FCC has always promoted consumer benefits with respect to
the main access to communications that goes into people's
homes. And a lot of this issue is about preserving the ability
to do, to take necessary steps for consumers. I will give you
an example. We have been working recently on the issue of bill
shock. There are consumers who get their bill in the mail for
their mobile service and where they thought they were going to
have a bill of $70, $80, $90 they get one for $2,000 because
they exceeded their limits and they just didn't know. Our
survey found that as many as 30 million Americans are affected
by this at some level. And there are some basic things that we
are exploring that might be able to fix this; making sure that
consumers get text messages when they exceed their limits, for
example, number one. Number two, I believe that information
technologies actually provide a whole new range of
opportunities to address consumer confusion, deal with basic
consumer issues in a way that is lighter touch and more
beneficial than in the past, because it is easier now to put in
front of consumers of broadband access services information
that will help them understand their speeds, their services.
You know we found an international Broadband Plan that the
speeds that consumers actually get for broadband are about half
of what is advertised. Well, there are things that we ought to
look at with respect to transparency rules that make it clearer
to consumers. All of these issues are tied up in do we have
basic authority to adopt sensible rules with respect to
broadband access.
With respect to preserving a free and open Internet, I
believe that is a huge consumer issue. The ability of consumers
to have choice, to access services that they would like, I
think about consumers too as small businesses who want to have
the opportunity to put a business on line and know that they
can reach an audience, I think it is a very, very big consumer
issue.
To your child pornography point I would say that that focus
is about lawful content and services. And I feel very strongly
that we need to preserve the freedom and the openness of the
Internet for lawful communications, lawful business relations,
but unlawful content and services are in a different category.
And in fact I think for the success of our Internet in the
future we need to recognize both the need for openness and the
need for safety, being very cognizant of the First Amendment
and its vital importance.
Ms. Wasserman Schultz. Can I just ask you, because you just
described reasonable network management practices. Mr.
Chairman, if I can just finish this sentence and get an answer
that would be great. Thank you.
Does the FCC intend to allow ISPs to block, thwart and
encourage identification of legal content? I mean, during this
light touch regulatory process I would think that that is
something that you could take up that would really protect
children and address the explosion of illegal content that is
being transmitted across the Internet.
Mr. Genachowski. Yes. Preserving a free and open Internet
and making sure that reasonable steps can be taken to deal with
unlawful content or unlawful activities, we need to get that
balance right, and I think we can.
Ms. Wasserman Schultz. Thank you very much.
Mr. Serrano. Let me just say that that is, and that was a
great line of questioning, that is my biggest concern, that you
allow the freedom that we Americans always love to enjoy and at
the same time not allow the Internet to be used to destroy
people or to commit unlawful acts. And that is a challenge and
a half, because it has to be done carefully. And we can't do it
every time there is a crisis. Because when we respond to a
crisis we tend to go too far to one side. And so it is a
balance. I don't envy the job you have to do, but we do remind
you on both sides that this is a huge challenge you have.
Mr. Culberson.
Mr. Culberson. Thank you, Mr. Chairman. Following up on Ms.
Wasserman Schultz's question, and she is absolutely right, all
of us are deeply concerned about the proliferation of child
pornography, exploitation of children on the Internet, but the
District Court of Appeals for the D.C. Circuit, the Supreme
Court in this most recent decision from the D.C. Circuit, you
don't have ancillary jurisdiction to regulate in areas that are
not specifically authorized by the statute. I saw you were the
general counsel of the FCC from 1994 to 1997. And when you tell
us blithely and broadly that you are going to go work on the
foundation, you don't have the statutory authority to do what
you are attempting to do. You have a unanimous decision from
the D.C. Court of Appeals, you have 10 years of precedent from
the FCC in decisions and from the U.S. Supreme Court that you
do not have the authority or jurisdiction to do what you are
attempting to do. And all that is necessary if you are, if you
are passionate about this and concerned about it is to go to
the authorizing committees and ask them to amend the
Communications Act to give you authority to regulate
information services. And I would suggest that what you need to
ask for specifically is the authority to prohibit illegal
content and in particular the abomination of child pornography.
And anybody that traffics in it, promotes it, allows it to be
transmitted ought to be boiled in oil. And you guys ought to be
able to have authority to regulate that. And I am confident the
authorizers would do so. But you do encounter strenuous
opposition from all of us in any broader effort to regulate
lawful content on the Internet. You don't have the authority to
do what you are attempting to do, do you?
Mr. Genachowski. Well----
Mr. Culberson. Where in any court decision and where in the
statute--you were the general counsel from 1994 to 1997--tell
me specifically in what court decision and where in the statute
does it explicitly give you the jurisdiction to do what you are
attempting to do? It is not there, is it?
Mr. Genachowski. Well----
Mr. Culberson. Where?
Mr. Genachowski. With respect, I believe that the proposals
that have been laid out--actually, by the different
stakeholders in this there are many who agree that there are
different ways under the statute to pursue broadband, and a lot
of the debate is which is the best way. So we would be happy to
provide a fuller legal--go on, please.
Mr. Culberson. You can do it I am sure off the top of your
head. You were the general counsel for the FCC, you are an
attorney, I am an attorney. Tell me specifically, show me, just
tell me where in the statute, what court decision is it that
gives you the authority to attempt to regulate the Internet in
the way that you are attempting to do? I don't see it, it is
not there. Can you tell me as the former general counsel and
the Chairman, where in the statute and what court case gives
you that authority.
Mr. Genachowski. Just one correction, I wasn't the general
counsel. I was chief counsel to the Chairman.
Mr. Culberson. Same thing.
Mr. Genachowski. Yes. But nevertheless, the third way
proposal would go back to the definition that the FCC had of
broadband access providers as telecommunication service
providers, the people who provide the pipe into your home for
broadband access.
Mr. Culberson. You would just issue a regulation that says
they are telecommunication?
Mr. Genachowski. The Commission had that in place in the
past and then it adjusted that, and I think lawyers would agree
we have the discretion to adjust it back.
Mr. Culberson. Ancillary jurisdiction is what you are
talking about and the D.C. Circuit said you don't have
ancillary jurisdiction, and you would also be reversing 10
years of explicit decisions from the FCC classifying the
Internet as information services, not telecommunication, right?
Mr. Genachowski. Well, if I could, there are people who
believe we continue to have ancillary jurisdiction.
Mr. Culberson. Despite the court decision?
Mr. Genachowski. Yes. But by the way, those are some of the
carriers who would urge us to continue moving under Title I.
With respect to whether the classification of broadband access
can be changed there are many, many lawyers, our general
counsel currently at the agency believes that it is well within
Supreme Court decisions and D.C. Circuit decisions to adjust
that clarification.
Mr. Culberson. Forgive me. My chairman is correct on the 5-
minute rule and I will have follow-up. Harry Truman used to say
he always wanted to meet a one-armed economist so they couldn't
say on the one hand and then on the other hand. There are
always lawyers that can tell you that no matter despite this
mountain of Supreme Court decisions, and this most recent
explicit Court of Appeals decision, that you do not have
ancillary jurisdiction, and despite all these decisions from
the FCC over the last 10 years that you don't have the
jurisdiction or authority to regulate the Internet, we are just
going to do it anyway is what you are telling me.
Mr. Genachowski. No, sir, that is not what I am telling
you.
Mr. Culberson. Sure.
Mr. Genachowski. We are not going to regulate the Internet.
Mr. Culberson. Let me just ask you again. Where in the law,
what statute specifically gives you this authority and what
court case gives you this authority explicitly when you have
got a unanimous opinion from the D.C. Circuit that says you do
not have, quote, untrammeled freedom to regulate activities
over which the statute fails to confer you that authority?
If you don't have the authority, all you need to do is go
to the authorizing committee, go to Mr. Waxman. As Ms.
Wasserman Schultz suggests, child pornography is vile. I mean
you ought to go in and just ask for authority to regulate
illegal activity. You would get it. Ask for the authority. You
don't have it in statute, you don't have it under court cases,
do you? Tell me the case.
Mr. Genachowski. With respect, I believe we have authority.
Mr. Culberson. Where?
Mr. Genachowski. Under Title II. Many believe authority
under Title I.
Mr. Culberson. Where? I have got it right here. Where?
Mr. Genachowski. Section 201, Section 202.
Mr. Culberson. 201 and 202. Hold on. I will do my follow
up. Where else?
Mr. Genachowski. In general Title II applies to
telecommunications providers.
Mr. Culberson. But telecommunication is not information
services, that is my point. The D.C. Circuit said the Internet
is information services. You are given authority to regulate
telecommunications, right? You are an attorney, come on.
Mr. Genachowski. Yes. I would be happy to continue this
discussion.
Mr. Culberson. Don't dodge.
Mr. Genachowski. No, sir. I am trying to answer your
questions directly. The question is whether the provision of
broadband access to consumers is----
Mr. Culberson. Is information or telecommunications. The
chairman has been very generous. But Ms. Wasserman Schultz is
exactly right, we need to absolutely shut down child
pornography. Go to the authorizers. You don't have the
authority to do what you are attempting to do. Why don't you go
to the authorizers, will you?
Mr. Genachowski. I understand your point. We are in
discussion with our authorizers.
Mr. Culberson. Thank you, Mr. Chairman. You have been very
gracious. Thanks for the indulgence.
Mr. Serrano. Were you a prosecutor?
Mr. Culberson. I just feel as strongly as we all do. And my
good friend Debbie Wasserman Schultz is right about this. I
mean these people ought to be boiled in oil and it is
inexcusable that this vile material is allowed to be broadcast.
And we can find them and roast them. She is right, toast them
up.
Mr. Serrano. We all agree.
Mr. Fattah.
Mr. Fattah. Mr. Chairman, just let it be for the record I
would rather you go deal with the child pornographers and if
someone wants to say you don't have the authority let them
defend on the other side. But I want to pass this round to
Congressman Ryan, and then I will catch him on the next round
because he wants to do something to facilitate us continuing in
this particular vein.
Mr. Serrano. Well, in that case----
Mr. Ryan. Mr. Chairman, I feel like this is a basketball
game because I am going to pass to Ms. Wasserman Schultz so
that she can follow up on her line of questioning.
Mr. Serrano. Right. Who is in charge here?
Mr. Ryan. I don't know. This is my first meeting.
Mr. Serrano. I was going to welcome the newest member of
our committee, Mr. Ryan, who already has broken three other
rules.
Mr. Fattah. I think the gentlelady from Florida is in
charge.
Mr. Serrano. Of the time now I guess. Okay. Ms. Wasserman
Schultz.
Ms. Wasserman Schultz. I will only take a couple of the
very generous 5 minutes that my colleagues have tossed me. I
actually agree with Congressman Fattah that to the degree that
you have authority, whatever authority you possess today to
restrict the transmission of child pornography and to be able
to go after pornographers who are transmitting content on the
Internet and to be able to expose them and deal with a
telecommunications policy that prohibits them from being
anonymous, then you should use all that authority and you
should seek more. So if we can split the difference and say
that you may not have all the authority you need, but whatever
authority you have you should pursue that.
Mr. Genachowski. If I could say done, like many of us, I
have three kids, including two young ones, and it is a huge,
huge terrible issue that needs to be tackled very fully, and so
I completely agree.
Ms. Wasserman Schultz. Good. And then the other quick
question I had is just about the life line service, because
life line has not, has traditionally been for land line
services. Obviously it is very important now given how many
people use cell phones. In September, Congresswoman Matsui, our
colleague, introduced legislation that would require the FCC to
establish a broadband assistance program for low-income people
by expanding the life line program. Have you had a chance to
review that legislation and are you supportive of it?
Mr. Genachowski. Yes and yes. And our national Broadband
Plan recommends that we move forward on it, and we have
actually begun the process in May looking at doing exactly
that.
Ms. Wasserman Schultz. Does your fiscal year 2011 budget
request reflect it?
Mr. Genachowski. It would be part of our overall Universal
Service Fund reforms, it would be inside the Universal Service
Fund.
Ms. Wasserman Schultz. Which I guess if you had some light
touch regulation you would be able to advance even further?
Mr. Genachowski. Yes.
Ms. Wasserman Schultz. Thank you very much for my
colleague's indulgence.
Mr. Ryan. Thank you. I just have--it is me, right? I just
have one question. The national Broadband Plan recognizes that
we have this huge gap in funding, $24 billion. And we have
similar issues with our transportation budget. We have a $1.4
trillion transportation infrastructure gap. And we are trying
to come up with some creative ways through transportation banks
and leveraging private financing and those kind of things,
creative ways to try to address this issue.
Are you exploring some creative ways that we can address
this issue, because we have got a lot of work ahead of us? And
I think economic development and a lot of communities, not just
rural but urban centers as well, who are trying to regenerate
and restore their local economies, for example, in the
industrial Midwest where a lot of this stuff was steel, rubber,
manufacturing that is now trying to move into some higher
technology, biofuels, whatever the case may be, software, this
is very important for us. And so the only question is, and if
we can help you in any way figure out creative ways to finance
this and then to maintain it over the long term.
Mr. Genachowski. And I agree with the premise of your
question completely, and there is always the opportunity for
new ideas, and I welcome that.
Transforming the Universal Service Fund, it is
approximately an $8 billion a year fund that needs to be
focused in a smart way on new technologies to benefit people
all over the country. There are opportunities in thinking
creatively about spectrum options, and so the kinds of policies
that we have proposed, some of which require legislation, to
recover and auction off new spectrum, it has this win-win-win
effect, because it can free up more spectrum, and spectrum is a
form of infrastructure when it comes to wireless technologies
for mobile broadband in urban and rural areas, which can make a
big difference. It can generate substantial funds for the
Treasury, which can help funding across the board, and there
are ways to do it that work and are wins from the perspective
of entities that hold spectrum licenses now.
And so there are some creative ideas there around two-sided
auctions, incentive auctions that we would be happy to follow
up with you on because it is an important area where we do need
to work with Congress to make sure that we have the spectrum
infrastructure that will allow us to lead the word.
And to your earlier question, Chairman, about what the U.S.
hasn't done right in the past, this is an opportunity in the
future for us to focus on our mobile infrastructure, on our
wireless infrastructure to make sure we get it right for the
next 10, 20 years.
Mr. Ryan. Thank you.
Mr. Serrano. Thank you, Mr. Ryan.
Let me go into an area that is of great interest to me and
I know to members on both sides, and that is the treatment of
the PEG channels. In 2008, this subcommittee held a hearing on
Public, Educational, and Governmental, or PEG, access
television subscribers. At that time, several companies were
denying PEG channels treatment equal to basic commercial
channels. PEG supporters have filed petitions at the FCC to
ensure fair treatment of PEG channels.
When I urged prompt resolution of those petitions at our
FCC hearing last year, Acting Chairman Cox said, it is my
hope--this is a quote--that the Commission will take whatever
steps are necessary to ensure that PEG channels remain a
vibrant and valuable service.
One year later, the FCC has apparently still not resolved
the situation.
Now, some of us have been around long enough to remember
that when this great bonus, cable television, went out, it was
with an understanding that the local community would have
access through these channels, and everything from the local
Little League football team being able to present their awards
live, or taped on a local channel, to the local church having a
Sunday service to whatever cultural and ethnic groups wanted to
go on the air; they could do it.
And what has happened is that more and more, the people are
making them--making it hard for them to function. And in some
cases, we hear stories out in the West Coast and other places
where the channels now have moved from the first 15, 20, 30, 50
channels to channel 800, and it is a dropdown menu, and making
it almost impossible for you to get.
Now, I think eventually, as we begin to trade off support,
as we always do, where you have some issues that you want
Congress to support you and Congress needs for you to do
something, this little issue of PEG channels may become a very
difficult issue, because on both sides, people support the fact
that there is this public access, and it is important.
So, before I ask you what is happening, I am telling you
that this has to be dealt with fairly and strongly; otherwise,
we are going to have some very difficult times between this
subcommittee and the FCC, because we will not sit by and allow
the FCC to allow commercial carriers to just push these folks
aside.
Mr. Genachowski. I appreciate the question. There has been
some good news with respect to PEG, and there is also a lot
more work that needs to be done. So one of the major disputes
that existed was one involving Comcast, and that now has been,
there has been a satisfactory solution there. We would be happy
to review it with your staff and make sure it is satisfactory
to you and your staff. But it is our understanding that the PEG
community is satisfied with how that was resolved, and that
obviously involves many communities across the country. There
is at least one other major provider where there is an ongoing
dispute that has not been resolved, and I can assure you that
we will go back and make sure that it is on a track toward
resolution.
Mr. Serrano. Now, do you feel that there is a concentrated
effort to move them off the bands, if you will? Is there
indifference by the major carriers, or is there a plan here?
Mr. Genachowski. Well, I don't know that I would be
comfortable characterizing their points of view. The issues
tend to come up, as you know, in convergence to digital. And
sometimes the conversions are done to digital transmission of
video services in a way that leaves PEG behind. That is what
creates the issue.
Mr. Serrano. When you buy a house or get a car, you don't
leave some of the members of the family behind. Right? You move
them all to the new place and you all celebrate. And I think
that what has happened is that the FCC has not regulated these
folks. And you do have the authority to do so on this
particular issue, to say, this is part of the deal. And we
remember the deal. I remember, in the Bronx, which took longer
than most places, as you know, to get cable, that those were
the agreements. Now, they have done pretty well there, but in
some places, they are totally forgotten.
Mr. Genachowski. The issue remains, and we will work with
you closely on this. My hope is that the successful resolution
in one case can be a model for successfully resolving it in
others. But there is no question that the rights of PEG
channels to have access to systems and access to the audience
have to be honored and enforced.
Mr. Serrano. Okay. Now, taking Mr. Culberson's approach of
being more direct. You do have the authority. Do you intend to
use it to make sure that they are not left behind?
Mr. Genachowski. We intend to honor the statute here and
take this very seriously and make sure that PEG channels are
not left behind.
Mr. Serrano. Okay. I understand your desire to honor it. I
am going to take it a step further. I hope you get angry.
Because I think as we deal with bigger issues, or what some
people perceive as bigger issues, these will be left off the
table again. And we can't do that.
Which brings me to my next question, which is another
favorite subject of mine. And that is, why can't the FCC do
what some of us would want to do with all Federal agencies, but
since you have a broader understanding of a lot of issues, why
do you find it so difficult to understand that we have 50
States and territories? Why do the territories always drag
behind, lag behind in everything the FCC does? Why do we have
American citizens who have the least access to the Internet in
places like Puerto Rico and the Virgin Islands and Samoan and
so on, why when we put forth a plan we always seem to say, for
the States and the territories?
And understand, this is a mantra of mine with every Federal
agency. But I don't have oversight over all Federal agencies,
and we do over the FCC. So why is it that at every turn the
territories are always left behind?
Mr. Genachowski. Well, we take this very seriously. And in
fact, in the universal service proposal that we put out last
month, there is a specific discussion of territories and
looking at a proposal to modernize Lifeline and Link-Up to take
into account the unique situations of Puerto Rico and other
territories. So it is something that we take seriously, that we
are looking at. And I do believe the FCC has made progress over
the last few years in thinking about the Universal Service Fund
applying to everywhere, including the territories.
Mr. Serrano. But there are disparities, and you acknowledge
that.
Mr. Genachowski. Yes.
Mr. Serrano. Well, despite these disparities, you recently
declined to set up an insular specific Universal Service Fund
mechanism to provide wireline voice service in Puerto Rico,
citing recent improvements in overall voice service.
In light of this, what can the FCC do to narrow this wide
gap in Internet and especially broadband use in the territories
versus the States, and make sure that a similar gap does not
develop in the future?
Because what is happening is you have got this gap that
exists already. Then every time you move into a new area, you
leave them behind again. And so they are not only catching up
to what we have now, but they are already in line to have to
catch up to what we will have a year or 10 years from now or 5
years from now.
What is so difficult for the members of the Commission to
understand that these folks are American citizens living under
the American Flag?
Mr. Genachowski. I believe that we do understand that. And
in fact, this is why specifically in our proposals to modernize
the Universal Service Fund, we are focused on this issue. The
biggest gap that we see and look forward to ongoing discussions
with you on this is on the adoption gap. The adoption levels in
Puerto Rico, for example, are well, well beneath national
averages. There is no question that there is serious lagging
behind, and of course, that affects people's ability to look
for jobs, to get access to health care information, to be
entrepreneurial and start businesses. And it is why this reform
that we have proposed with respect to Lifeline and Link-Up to
make significant progress on broadband adoption is so
important.
On the deployment side, we are looking at both wireline
deployment and wireless deployment, and we would like to see
progress on both because they are both essential to
participating in our economy, connecting with family and
friends.
And so we hear you on this. It is very important. I think
the Commission is paying very close attention to this.
Mr. Serrano. In closing, before I turn to Mrs. Emerson, let
me do a combination of Mr. Fattah and Mr. Culberson.
Assume you had the authority, if you think you don't have
the authority, go and make believe we have 55 States and not
50, and let Congress get upset at you later for treating all
Americans equally.
Mrs. Emerson.
Mrs. Emerson. I am not going there.
Thank you, Mr. Chairman.
Let me ask you a question. Do other countries in the world
have interoperable first-responder networks?
Mr. Genachowski. It varies from country to country. I would
be happy to get you detail.
Our military has better interoperability than our first
responders. And one of the things that we have been trying to
do is increase the best practices, the information, the
knowledge that go from our military being able to solve some of
the interoperability issues to our first responders. And I
think that is an area where we can make progress.
Mrs. Emerson. But I am asking you, is there another
country? Are you aware of any other country in the world that
has an interoperable network for public safety folks?
Mr. Genachowski. Countries that are comparable to ours in
the sense that they have so many different local authorities,
it is hard to find that level of comparability. It may be that
countries that have one single communications force don't have
the issues that we have. So the locally-based system that we
have is very important to our country. It does create
interoperability issues that I think are somewhat unique to the
United States.
Mrs. Emerson. Well, that may be well true. And it is pretty
embarrassing that it is this long after 9/11 and we still don't
have a network.
And, as a matter of fact, even after Hurricane Katrina
within the military, the military itself, active-duty folks had
a pretty darn good interoperable system, which has been much
improved even since then. But the Guard and--the National Guard
and the Reserves couldn't talk to the active duty folks. And I
don't know if that has been fixed since then, but it was very
apparent during Katrina that they couldn't even do that.
I know that--I mean, I am all for building out and securing
a first-responder network, and I know that you all have worked
really hard on getting that plan done. I guess I am a little
bit confused, because on the one hand, your plan proposes to
provide $6.5 billion in assistance to first responders to build
out a network, but then the National Governors Association
wrote and asked that your plan be amended to allow the D block
to be allocated to public safety. And then first responders say
that they actually want to control the spectrum, and that
priority access on--on a commercial network is insufficient in
a crisis. And then we are told that all these different people
are coming at it from different approaches.
I guess I want some clarification from you, if you would,
because I don't know, why would it be preferable to auction the
spectrum commercially and give first responders $6.5 billion,
while hoping the industry will work with them? Why wouldn't you
just allocate the D block to first responders without giving
them the $6.5 billion, and then they can control the spectrum
and establish their own relationship with industry to build out
a reliable and a resilient network?
It is all a little bit too many different competing
interests here. And, you know, the bottom line is, we want a
system that works, and I don't know why we would pay $6.5
billion for it if they could get it for free and then do it
themselves. So I want to hear your reasoning behind it, if you
wouldn't mind.
Mr. Genachowski. A couple points. One is the goal of
finally delivering on the recommendation of the 9/11 Commission
that we have interoperable communications, number one. And,
two, that we have a mobile broadband first responders is
absolutely vital. Two, we don't have the authority to do
anything other than auction the spectrum. This was the
allocation that Congress made, and for that to change, we
couldn't do that on our own.
In connection with the National Broadband Plan, we put
together a team led by a retired admiral who is just completely
dedicated to tackling these issues. And the team developed a
multi-part plan, that there is no single thing that can solve
this. But their biggest concern was that the record of the last
number of years suggests that if spectrum is allocated for
public safety, and there isn't a plan to build the network, it
doesn't get built. And there is spectrum out there that has
been allocated. This isn't like other areas that the FCC deals
with where private investors will come and invest in networks
and they would get them built.
And the conclusion of our staff on this was that if the
funding issue isn't tackled directly, the towers and the
equipment and everything else that needs to get done won't get
done. And that is a suggestion and a request that we have made
to Congress, making the point that if this is done now while
the commercial four G networks are getting built out, the cost
will be much, much less than if it is done in the future.
There are a series of things that are part of the plan that
need to be done to make sure that the network not only gets
built but that it gets built in a way that is interoperable.
And so we have set up an office for interoperability
coordinating with Homeland Security Department and the Justice
Department to make sure that we don't repeat the errors of the
past, and that there are people looking at standards for
interoperability, so that as the new network is built out, that
can happen.
And the team of course looked at the sufficiency of the
spectrum as Congress had allocated it and came to the
conclusion, dispassionate staff just looking at the facts, that
the issue wasn't quantity of spectrum; the issue was funding to
get the network built.
Mrs. Emerson. Have the first responders even presented a
plan? I don't know. I am really asking you, have you seen any
kind of plan on the part of first-responder community?
Mr. Genachowski. There have been many, many discussions
between the first-responder community and the agency. And I
know from my own conversations with them that many parts of the
plan they feel strongly represent real progress, as I think
Chairman Serrano mentioned, on a bipartisan basis. The four
members, two Democrats, two Republicans on the 9/11 Commission
supported the ideas and the plan as the best thing that they
have seen to really make progress on this. We will continue to
work with the public safety community.
Our goals are the same, and we look forward to working with
the public safety community, with this committee, with other
committees to get this done for our country. It has not been a
proud history. We have made much less progress over the last 10
years. Different people have different views on why that has
occurred. But what is important to me was to set up the kind of
team that had the right level of experience and could
dispassionately look at it and make recommendations to Congress
and for our own actions that we believe would accelerate
interoperability and accelerate a mobile broadband public
safety.
Mrs. Emerson. So let's just say we all agree with you.
Hypothetically, we all agree with you, and you have the go
ahead and you are going to get this done, and you will get your
$6.5 billion to give out, hypothetically. How long will it take
from start to finish to put in place a nationwide public safety
network that is going to resolve all the communications issues
we faced during both 9/11 and Katrina?
Mr. Genachowski. Two answers. Several years. And I would be
happy to get back to you with something more specific. But I
can tell you, it would be roughly built out on the same pace as
the buildout of commercial networks. Because part of the idea
is, as the commercial carriers are building up four G networks,
let's take advantage of that buildout; let's do one truck roll,
not two. Let's have equipment go out at the same time. Let's
take advantage of the same towers. So the pace would be the
pace that is driven by the commercial buildout, and the cost
would be much less than if we didn't move forward on this,
allow the commercial networks to be built out, and then came
back and said, okay, now let's do another set of truck rolls to
put in the equipment for public safety.
So I wish we could do it in 6 months. We can't. It will
take several years. But it will be much faster than any other
approach that we have seen.
Mrs. Emerson. So several years. Is that under 10?
Mr. Genachowski. Yes.
Mrs. Emerson. Is it more than 5? I am not--and I am not
going to hold you to it. But just to give us a sense of--
because we already have this other broadband deployment in
place. I mean, I am happy to get EDGE in my district. You know?
I mean, I am happy to get EDGE in some places. So what can I
tell you, but nonetheless, it is worrisome in deploying a
system like that. I mean, I just watched the nightmares that
all of these little companies are going through trying to get
approval from either RUS/NTIA just to do the broadband
deployment from the stimulus bill, let alone some major
national network. So I appreciate your answer. Thanks.
Mr. Serrano. Mr. Fattah.
Mr. Fattah. Thank you, Mr. Chairman. And I wish the Yankees
well this year.
Mrs. Emerson. What about the Cardinals?
Mr. Fattah. But the Phillies are going to be the number
one.
Mr. Serrano. I suspect it will be the Yankees and the
Phillies again.
Mr. Fattah. I am with you.
Welcome to the committee. And you have a recommendation for
an increase of $19 million over your base from last year. Now,
in part, you got some technology initiatives. There is also an
additional 900,000 you are asking in terms of the, I guess the
replacement of the vehicles you use now to protect public
safety networks from interference. Would those dollars over the
long term be backed out in future year budgets, assuming we do
the Nationwide D block plan?
Mr. Genachowski. I am not sure they would. The public
safety work that we do, and I am very proud of this, we have
developed technologies over the years that have the ability to
identify spectrum uses in different markets that has been of
tremendous value to our sister agencies in government in
dealing with disasters, and we would be happy to follow up with
you and give you more examples. Some of them can't be discussed
in a public setting. But they have been very valuable
throughout the United States, especially with respect to
disasters, and I think it is a program that has earned its
presence.
Mr. Fattah. Another part of this increase request is to
recruit and hire talent on it, on cybersecurity issues and some
other issues. Right? So, now, I assume you do have authority to
be concerned about cybersecurity.
Mr. Genachowski. We are very concerned about----
Mr. Fattah. This is on the Internet. Right?
Mr. Genachowski. Yeah.
Mr. Fattah. There was some debate about whether you had any
authority to have interactions around the Internet.
Mr. Genachowski. It is a very significant challenge for the
country. As the FCC, as the expert agency responsible for
communications, we have an important role to play here. It is
vital that we have the expertise, the engineers and others, who
can play a role in our system with respect to cybersecurity.
Mr. Fattah. Now, in regards to one of your major goals of
the agency, as you have identified, is to advancing a vibrant
media landscape. In this regard, one of the big concerns has
been about making sure that we continue to advance the
interests of ownership, both in the media for African
Americans, Hispanics, Native Americans, women. And I am,
wondering whether it would be, as your role as chair, you see
any major initiatives in this regard given the dearth of
interest over the last decade in this issue.
Mr. Genachowski. It is a very important issue. And it
becomes even more important as technologies change, as the next
generation is looking at new media channels instead of old
media channels. So we are both, with respect to older media,
getting our arms around the data and pursuing initiatives to
continue to encourage those goals with respect to older media.
And I also think it is vitally important that we look at a
broad opportunity with respect to new media and new
technologies. And in some ways there is an even greater
opportunity to make a difference there because there are new
entrepreneurs starting every day. And so it is one of the
reasons, if I may, that I think preserving a free and open
Internet is so important, because it gives the opportunity from
anyone from any background to start a media company, start a
business, reach an audience and have a realistic chance to
succeed.
Mr. Fattah. Well, I concur. And I want to thank you for
your work. And I know there is a libertarian streak that we
should--that free and open might mean unfettered. I mean, we
have a Federal highway system that is free and open, but you do
have to be moving on the right direction. You can't be coming
up the opposite way. So I want to concur with my colleagues'
interest in this child pornography issue, that we need to be
clear that, even though we are very interested in a free and
open Internet, we don't mean that in that context that people
should be able to abuse children and feel as though they can be
anonymous and out of the reach or touch of the society in terms
of addressing what is a, I think my Republican colleague said,
an abomination. But we should be passionate about addressing at
every turn people who are involved in that type of activity. So
thank you very much.
Mr. Genachowski. I totally agree.
Mr. Serrano. Thank you, Mr. Fattah.
I want to echo his words. I think it has to be said again
that, on behalf of all members of this committee, we do believe
in a free and open Internet, but not one that then has the
ability to bring harm to people. And that is, again, that is
your challenge. That is the challenge for all of us. But it is
clear that, as he says, you can't use the highway going in the
wrong direction. You shouldn't use the Internet to bring harm
to people.
Mr. Genachowski. Absolutely. We have free and open
commercial markets in our regular business, and we enforce the
hell out of our child pornography laws. And that should be the
same approach with respect to these new technologies. It is
vital.
Mr. Serrano. Mr. Culberson.
Mr. Culberson. Thank you, Mr. Chairman.
If I could throw out an idea that would allow you to very
rapidly permit interoperability of our first responders and law
enforcement, and I don't think it would cost much money, if
any, and that would be to authorize the television broadcasters
to use the currently unused part of their digital spectrum, and
let them become Internet providers. If you authorize television
broadcasters to function as Internet service providers, they
can use the digital spectrum they currently broadcast on, large
portions of which are unused, to sell that spectrum to the
public, number one.
And then, number two, you can then also simply require them
as they do, they have to carry public service messages and
broadcast the--PBS, for example, it would be probably within
your authority under the statute to authorize the television
stations to provide a certain piece of that spectrum to law
enforcement community. And then you would have instant
interoperability. The whole country has got television service
and the towers are there; the digital broadcast is there. That
would work. And it is there, and you don't have to do anything
other than change the rules and the marketplace to take care of
it. Right?
Mr. Genachowski. Those are issues that we look at. There
are some challenges. Broadcasting is a one-way medium; big
towers transmitting in one way. And converting that
infrastructure into something that works for two-way
communications on a nationwide basis is--I wish it were easy.
Mr. Culberson. Sure. But the marketplace would solve it. If
you authorize it--I guarantee you, I have talked to the
television people about it because it occurred to me when I was
looking at what they were doing, they have got big gaps. They
have got big areas of the digital spectrum they are not using.
I throw that out as an idea.
Number two, I know that Puerto Rico and others have
cellular phone service, have television service. The cellular
service alone, Mr. Chairman, I know provides people with iPhone
or BlackBerry access to the Internet. And the purpose of what
you are attempting to do you say is to provide the country with
greater access to the Internet, but the broadband plan, the
National Broadband Plan acknowledges that 95 percent of the
country already has access to broadband at 4 megabits per
second, and that, by 2013, 90 percent of the country is going
to have access at 50 megahertz per second. So the marketplace
is already taking care of this.
And, number two, I want to go back to your statement a
minute ago. You said you are going to honor the statute. Now,
if you are going to honor the statute, as we were just
discussing, the statute does not give you the authority to
regulate the Internet. You acknowledged that--and I am reading
from the District Court of Appeals opinion--in this case, the
FCC does not claim that Congress has given it express authority
to regulate the Internet. You acknowledge that. It was
stipulated. And you are an attorney; you know what that means.
You don't even contest it. By the way, you did not even appeal
this decision to the U.S. Supreme Court.
So, Mr. Chairman, Chairman Serrano, the FCC stipulated in
Federal court that they do not have the authority to regulate
the Internet. And when the District Court of Appeals said you
don't have the authority to regulate the Internet, they didn't
even appeal that to the Supreme Court. They didn't even appeal
it. So what they need to do is go to the authorizers and ask
for statutory authority to do what you are attempting to do.
The Commission, Mr. Chairman, Chairman Serrano, and I know
you know this, Chairman Genachowski, the FCC has ruled that the
Internet is not a telecommunications service. You have ruled
that it is an information service.
They simply don't have the authority, Chairman Serrano, to
do what they are attempting to do. And it is not within the
jurisdiction of this committee to fund unauthorized and, in
this case, specifically prohibited activity.
So, therefore, Mr. Chairman, I don't think--we need to
have--a hard part of our bill needs to say that none of the
funds appropriated by this act may be used by the FCC to
regulate the Internet, because it is not authorized by law.
I would repeat my question. Tell me, show me where in the
statute you have the authority to.
Mr. Fattah. Mr. Chairman, you have asked this question
several times.
Mr. Culberson. But he can't answer it.
Mr. Fattah. But yeah, but that is fine. But we don't badger
witnesses.
Mr. Culberson. No, sir, I am not attempting to badger.
I mean to make the point to the committee, Mr. Fattah and
Chairman Serrano, and this is really important, that the FCC
stipulated in court they don't have this authority. They didn't
appeal it. When the District Court of Appeals said, you don't
have this authority, they didn't even appeal it. So they
acknowledged, you don't have statutory authority to regulate
the Internet.
Mr. Serrano. Well, I understand that. But I know what you
are trying to get at. But why don't you let him answer the
question.
Mr. Culberson. And the question would be, where in the
statute do you have the authority to regulate the Internet,
when you stipulated to the D.C. Court you don't have this
authority? And I just looked at title 2, section 201. That
talks about communication services. These are the duty of every
common carrier to furnish communication services and to hook up
other carriers. And then section 202 of title 47, USC, again
deals with communications services. That does not give you the
authority to regulate the Internet, and you stipulated in Court
of Appeals that you do not have the authority to regulate the
Internet, and the standing rules of the FCC say you do not have
the authority to regulate the Internet.
So my question is, where explicitly in statute or rule do
you have the authority to regulate the Internet?
Mr. Genachowski. So, if I may. It has been a long time
since I have been a practicing lawyer, so I would say a couple
of things. One is, we have a great experienced legal staff at
the FCC, and I would refer you to a long explanation of the
legal issues that our general counsel has written.
If I could attempt to summarize some of it. The question
of, does the FCC have the authority to determine, not that the
Internet, but that providers of broadband communication
services are providers of communications services under the
provisions you mentioned. I believe one that they do, and that
the Supreme Court in the Brand X decision and other decisions
confirms that we have the authority to do so.
But we would be happy to provide a legal briefing for the
committee. I have excellent lawyers that I rely on for this,
institutional lawyers of the FCC, who are committed to making
sure that consumer interest, competition interest, promoting
innovation and investment are protected with respect to
broadband communications.
Mr. Serrano. Your time is up.
Mr. Culberson. He can't answer the question. It is not
authorized.
Mr. Serrano. No, no, he gave you an answer; but that you
don't accept the answer. I understand that.
Mr. Culberson. May I ask him one follow-up? I will do
another round.
Mr. Serrano. One follow up. But let me preface your follow
up by telling you that some members of this committee feel he
has the authority to do so and the Commission does, and we are
hopeful that they move ahead and do what they have to do, and
then run into trouble with Congress if that is going to happen
on behalf of the American people and the consumers. That is a
good confrontation that I am willing to be supportive of on the
Commission side. I don't want them to sit around waiting to see
if they have when they feel they have it, and many of us feel
that they have it and should use it.
Mr. Culberson. You are very gracious with the time, Mr.
Chairman, and I do appreciate it. You are a gentleman and a
scholar. It is fun working with you. I really mean it. I
appreciate the extra time.
But I want to make sure Chairman Serrano and the committee
members understand that the FCC stipulated, you would agree,
Chairman Genachowski--I am quoting from the District Court of
Appeals' opinion: In this case, the FCC does not claim Congress
has given it express authority to regulate the Internet.
That is your position in court. You did not appeal it to
the Supreme Court. And you do not have and have never claimed
in court that you have the authority to regulate the Internet.
Isn't that correct?
Mr. Genachowski. It is not, sir.
Mr. Culberson. I am quoting from the opinion.
Mr. Genachowski. I understand. We will provide you and the
other members of the committee a full legal analysis. I will be
happy to discuss it on an ongoing basis. But as I tried to
indicate, I think we disagree on these legal points. And I do
have excellent counsel at the FCC that is focused on these
issues.
Mr. Serrano. They did not claim it.
Mrs. Emerson. Let me just say something, because one, we
are talking about the Internet. Otherwise, we are talking about
reclassifying the transmission component of broadband. And so
it is not necessarily the same thing. So I just raise that as a
question as a point of refereeing.
Mr. Genachowski. Thank you.
Mr. Serrano. We don't always claim what we think we are.
You are the greatest Member of Congress. You don't claim that
all the time.
Mr. Fattah.
Mr. Fattah. Just to clarify. I agree with the ranking
member.
What the chairman has said is that they have the authority
to regulate the providers of broadband. And it is different
from the question regulating the Internet, even though the
broadband providers are operating on the Internet.
So we can play games here, but the reality is that I think
the question has been asked and answered. There has been an
offering of a legal briefing. And none of us can assert what
the law is. That is what we have the courts to determine, and
that is why we have lawyers on all various sides of this. But
let's proceed.
Thank you, Mr. Chairman.
Mr. Serrano. Thank you.
And let's do this officially. Why don't we invite your
legal staff to come and speak to our staffs and to discuss this
at length. Because this chairman would rather you upset some
Members of Congress when you defend the rights of the American
people as consumers than to wait around to interpret totally
whether you have one right or not.
Mr. Genachowski. Thank you. We will provide that briefing.
Mr. Serrano. Ms. Lee.
Ms. Lee. Thank you very much. I apologize if this question
is redundant due to my being late. I had things off the Hill I
had to do. But good morning. Good to see you.
Mr. Genachowski. Good morning.
Ms. Lee. I know that you are concerned that the National
Broadband Plan meets the digital future and is accessible to
every American.
We talked with the Congressional Black Caucus when you came
in. So it is very important I think to continue this discussion
as it relates to diversity in media ownership, management,
access, how it is integrated into the National Broadband Plan.
Also, the fair and equitable contracting opportunities for
minority- and women-owned contractors and subcontractors and
the fulfillment of this national effort. So I just want to get
a sense of how you are doing in terms of this, in terms of the
diversity question and the inclusion question.
And also, it is really important, and I wanted to ask you
this before, in terms of businesses and organizations that
require people to submit their resume or information only
through the computer, only through the Internet, they won't
accept any other way of submission, how is that fair to people
who don't have access? I mean, the digital divide is alive and
well, unfortunately. And so when people--and I know, in my
district, say, look, they won't accept my resume unless I put
it online. My God, can we stop that, at least until everyone
has access to broadband and to the Internet and has enough
money to buy a computer?
Mr. Genachowski. It is such a powerful point and such an
important issue. The costs of digital exclusion today are so
much higher than they were 10 years ago. Ten years ago, if you
were looking for a job, you could get the newspaper and find a
job and apply for it. Today, as you mentioned, more and more
job postings are online only and job applications require
online submissions.
Ms. Lee. But how can we stop that?
Mr. Genachowski. Well, I am not sure that our authority
extends to address the hiring practices of companies.
Ms. Lee. Not hiring practices.
Mr. Genachowski. In the way they take applications. But we
are very focused on tackling these digital divide issues as
fast as we can. It is part of the urgency for moving forward on
broadband, on the adoption issues, the inclusion issues, where
there are clear gaps, low-income Americans, minority Americans,
rural Americans, seniors are behind a level that is already too
low. Students and others. So it is vital that we do this.
We suggested a series of things in our plan. Reforming the
Universal Service Fund in a way that efficiently tackles this
is vital. We suggested the creation of a digital literacy corps
that would focus on the communities that are most behind and
tackle that with a kind of energy that we are capable of as a
country. And on the ownership entrepreneur side, we are doing a
series of things working closely with the Small Business
Administration to make sure that the programs that exist, the
mentoring programs and others, are modernized to help small
businesses, entrepreneurs from all communities take advantage
of new technologies.
There is no silver bullet here, as you know, but there are
a series of things we can pursue with energy. Some of them are
within our jurisdiction. We will pursue them. Some of them are
suggestions we have made to other agencies and to Congress. But
it is very important, and I think the urgency is increased by
the fact that the costs for jobs, for health care, for
education, of not being online are much higher than they used
to be, and they are getting higher every day.
Ms. Lee. But can't the FCC send out an, I won't say
directive, but a suggestion that organizations and businesses
not require resumes and information to be submitted online
only? That that could be discriminatory, and until everyone,
every household is wired, that they have to or they should have
other means of being able to receive submissions that are
critical to people in terms of their lives? Because I think if
the FCC just said that, you know, the country would listen. And
I know, oftentimes, I talk to companies and nonprofits even. I
say, you guys are shutting out a whole population of people
because you require online-only submissions. And they say, oh,
yeah, we hadn't even thought about that.
So if the FCC would think it through and talk about it a
little bit and send out a suggestion that this stop until every
household is wired, you know, we may see a bit more fairness in
terms of this whole system now.
Mr. Genachowski. We will work with you on this. And I think
we also would need to work together on the other half of it.
More and more companies tell me that they need their employees
to have basic digital skills and tools.
Ms. Lee. Why sure. That is a given. You know, especially
for many of our districts that are not wired and where the
digital divide is huge. That is what we intend to do.
Mr. Genachowski. I agree. So working on the front end, as
you said; this back end, we set goals in the plan with respect
to schools and libraries in every community that are open to
people to make sure that even as we try to get broadband into
every home, that there is meaningful access in every local
community to the ability to both have access to the Internet,
and also to the digital skills and tools that one needs in
order to have meaningful access and to be eligible for a lot of
the jobs that more and more require digital skills and tools.
Ms. Lee. I look forward to working with you on that,
because we have to send out that message that people can't be
discriminated against because they don't have access to the Web
and to the Internet and to broadband and to a computer. Okay.
That is basic. Thanks a million.
Mr. Serrano. Thank you, Ms. Lee.
I am going to try to wind this down. So I am going to
submit most of the rest of my questions for the record. I have
two quick ones, and then I will turn it over to the rest and
wrap it up.
On wireless contract termination, something we all deal
with, I went in recently just to reduce my minutes and ended up
with a new phone and a new contract. Don't ask me why. And they
told me if I reduce my minutes, then I couldn't get my five
friends and relatives on it or whatever. And if I did that--it
was like a scene from Mad, Mad, Mad, Mad World where they are
all trying to figure out how to get the loot, and Sid Cesar
says, well, you were in the car, so you get one share for
having a car and one share for being you. You were on foot, but
you had two people, so you get three shares. And Jonathan
Winters says, It doesn't matter, I still get less than
everybody else because I was alone. So it is every man for
himself.
Have you ever tried going to redo your contract? It is
where you reduce your minutes, you get less options. You get
more options, then you are going to fall under this plan. You
walk out of there and you say, I speak English, I speak
Spanish, I don't speak this language. Very embarrassing.
So what happens when a new generation of iPhones or a new
version of an android becomes available? Providers increase
their cancellation fees to prevent customers from changing
service providers. The FCC survey shows 43 percent of consumers
have remained with their current service provider because of
high early termination fees. What can the FCC do to restrict
anti-competitive behavior so that consumers are not prevented
from swapping service providers as technology improves and
options increase?
And for the record, my explanation of my own personal
account is not a statement about what I want done either for me
or for the industry. It is just that I pride myself on the fact
that I do a lot of these things myself and therefore I know
what consumers go through. But I am not asking for any special
favors from anyone.
Mr. Genachowski. Our surveys and our complaints show a
tremendous amount of consumer confusion over many different
aspects of wired and wireless communications. It is a thing
that we are very concerned about, because the more confused
consumers are, the less they can make the market work and drive
competition. So whether it is speed of broadband, whether it is
how early termination fees work, we believe that there are real
opportunities using information technology to provide greater
disclosure, greater transparency to consumers in a form that
ordinary people would understand so that consumers can help
make the market work better. And we are pursuing that around
bill shock. We are pursuing that around early termination fees.
We are pursuing that around broadband speeds. And I think this
is a promising approach that should empower consumers to help
make the market work. With respect to--and one of the things
consumers are confused about what choices they have with
respect to different services and alternatives to signing up
for long-term contracts.
We are also looking at the issue in general with respect to
ETFs. We pay close to this. We are in active discussion with
companies. On various occasions, we have seen things that have
caused us to write letters to companies to ask them to explain
some of what they have done, and in some cases, those letters
have caused some of the companies to say, Oh, we didn't really
mean that, and to adjust behaviors in ways that were more
consumer friendly. But there is no question, there is
tremendous confusion here, and I think we can play a helpful
role in increasing transparency and disclosure and lessening
consumer confusion.
Mr. Serrano. I hope you do. And I know that I speak for all
members of the committee when I say that. I hope you move in
that direction to make life a little easier for folks. And not
only that, to give them a real chance to be able to make wise
decisions, because sometimes you are lost.
My last question. As you know, we are big-time baseball
fans and believe that all American households should have
regular access to baseball games from both leagues. Currently,
Time Warner and the Mid-Atlantic Sports Network, MASN, are
engaged in a dispute over Time Warner's cable carriage in
Eastern North Carolina. In the past, that cable franchise
carried the MASN which shows games of both the Nationals and
the Orioles, the closest teams to the area. I understand that
there have been two arbitration decisions in favor of MASN and
that, in October of 2008, the media bureau of the FCC also
ruled in MASN's favor. Time Warner has since appealed the
decision. In the meantime, baseball fans there are missing out
on these two teams.
So I asked you the question last year, but--I asked this
question last year, but I understand there has still not been a
ruling. Is there a reason that it has taken so long? And do you
have any sense of how long it will take the commission to make
a final decision so that folks in that part of the country will
know where they stand?
Mr. Genachowski. The Bureau is actively working on it, and
we need to bring it to conclusion. The issue of sports
programing and consumers and video carriage is one that
occupies a good deal of our time. We adopted rules a couple of
months ago that will make it easier for competitors to cable
companies to get access to local regional sports networks. It
had been both a real barrier to competition and also unfair to
consumers who were signing up to the other networks. The
retransmission consent issue that we talked about before, one
of the areas where it tends historically has had some real
impact on consumers is that that becomes a leverage point for
negotiations between cable companies and broadcasters and
consumers who want to watch the programming they want to watch
end up getting hurt. And then there are issues like the one
that you mentioned. So these are all activity on the plate of
the FCC. On some, we have moved on, and I think we have made
really good progress. On this particular one, we still need to
act, and I will make sure we do soon.
Mr. Serrano. Well, with that statement that you will move
on it so that the folks know what is going on, especially with
this kid in Washington who is going to keep striking people
out. Okay.
Mrs. Emerson.
Mrs. Emerson. Thanks. I have some questions I would like to
submit to the record, Mr. Chairman. And just on that--one
little quick question again on that retransmission thing,
because my smaller carriers who cannot necessarily afford it
pay much, much higher rates than my larger carriers for
retransmission rights. And it is problematic because they just
can't compete; but yet, quite frankly, the larger cable
companies don't come in there, anyway, into these communities
because they are very rural anyhow. So it is really--and those
are also the communities where folks aren't allowed, don't have
the means necessarily to be paying outrageously high cable
bills. And so, quite frankly, if you can figure out how to make
that work. I realize you believe in negotiation between the
parties, and I think that is grand. But for some reason, the
little guys, because they don't have as many people over whom
to spread their higher costs, it makes it really problematic.
And I am just making that statement. You don't have to really
respond, but just because Joe brought it up.
Let me ask you a really quick question about Universal
Service Fund, and you will have to forgive me, because I am
actually late to be somewhere. How will this proposal--is it
possible this proposal could increase the cost of phone service
to customers living in high-cost areas? Number one. That is the
first question. And how are you going to allocate the new
funding? Is it going to be based on populations that are the
most underserved or unserved? And is every State going to
receive money? All sorts of things like that.
I just--you know, I know these are questions that I have,
and of course, where I live, people still have land-line
telephones. So I don't know if that, how regular, old-fashioned
phone service is going to be impacted as well.
Mr. Genachowski. The Universal Service Fund is one of our
most complex, challenging issues, but it also affects so many
Americans, and it is so important to get it right for our
broadband future, especially when it comes to rural America.
In putting together the broadband plan, we made the
following recommendations. One is we need to transform the fund
to apply to broadband, as we have discussed, particularly for
rural areas. Our recommendation was that we do this not in a
flash cut because we are concerned about ongoing provision of
telephone service as broadband is coming in, but also not in a
way that goes on indefinitely. So we put out a multiyear plan.
It is a 10-year plan to gradually move the system from
telephone service to broadband in a way that doesn't increase
the rate of growth of the fund, because someone has to pay for
it; in these times, it is very important for us to be fiscally
prudent.
We have also suggested that there is a way to accelerate
the transition. This is not something that we will do on our
own, but we have suggested that Congress has the ability to
authorize, appropriate essentially a bridge fund that would be
sort of a one-time capital infusion into the Universal Service
Fund that would allow the transition to happen more quickly in
rural areas. And I would encourage the committee to look at
that. We encourage Congress to look at it. We understand that
it is a challenging time fiscally, but we wanted that option to
be available because it would accelerate the transition.
And then, with respect to your question about unserved and
underserved, the priority is unserved. It is getting broadband
to the parts of the country that don't have it. So we are
looking at all the various ways we can cut and cap the existing
fund to free up money as quickly as possible for the Americans
who are most in need and who don't have service wherever they
live. And it applies both to high cost and the Lifeline and
Link-Up as well as the rate program and the rural health care
program.
Mrs. Emerson. So where you have unserved, that means,
unfortunately, in my district, a lot of white, you know, on the
red and white maps on TV in a lot of the white area. And I have
so much National Forest and so therein lies part of the issue,
so that parts of my district are totally unserved as far as any
kind of broadband. On the other hand, I have underserved areas,
too, whereby like one half of--for example, you have got a
little town, and on one side of Main Street, it is dial-up;
other side, it is not 3G, but it may be EDGE or something like
that. So would that be considered underserved, and would only
be in the main part of the town, but if you lived anywhere on
the outlying areas, you are out of luck?
Mr. Genachowski. I would say the principle is every
American, wherever they live, should have access to broadband
infrastructure. And one of the issues that comes up, including
in the 95 percent figure that we heard earlier, is that it
often looks at things on a zip code basis, on a county basis,
and it obscures some of the real issues inside, where a county
might be counted or a zip code might be counted as having
broadband infrastructure, even though 20, 30, 40, 50 percent of
the people inside don't have it. So we are going to be very
practical about making sure that the Universal Service Fund
goes to actually get people service where they need it. If you
are part of the 20 percent that lives in a county or a zip code
that doesn't have it, you shouldn't be penalized because you
are in that zip code. We also have to figure out a way not to
overfund areas that don't need it so we can target the money
where it is really necessary. It is not easy, but we are
committed to taking it on. And not to reintroduce the authority
issue, but this is part of what is at stake.
Mrs. Emerson. I don't have as much of an issue with this
part of it. And it is critically important, and it helps for
lots of reasons, not the least of which is when you go to a
little clinic and we can do telemedicine--you don't need it in
your district. You can do telemedicine with MD Anderson, for
example. That is pretty significant. And I would like for all
of my constituents to have those same opportunities.
So, anyway, best of luck as you get that whole system
deployed.
Mr. Genachowski. Thank you.
Mr. Serrano. The last question goes to Mr. Culberson.
However, the singular ruling does not allow him to ask anything
about authority.
Mr. Culberson. If I could just ask Mrs. Emerson if you have
got television service in all parts of your district,
broadcast, where they can put rabbit ears.
Mrs. Emerson. No, I do not. There are parts of my district
where you have to use satellite in order to get television. And
it is not necessarily local.
Mr. Culberson. But it is all digital now.
Mrs. Emerson. Yes, it is.
Mr. Culberson. The way to do this, I am serious, if you
would consider just granting television stations the ability to
be Internet service providers, the marketplace will take care
of this. And they can install the equipment, let them charge a
fee for it, and through the satellites or through the
transmission towers, they could provide Internet service on
that unused portion of their digital spectrum to the country.
Just consider it. Try to think outside the box, you know?
And a couple of follow ups, Mr. Chairman, because it is
truly not a matter--and I am really not--this is not a matter
of interpretation on my part. The D.C. Circuit Court of Appeals
in the first week of April just handed down this decision in
the Comcast case.
And if I could, Chairman Serrano, during the last part of
my 5 minutes here, the remainder, just a couple of sentences.
Let me quote for the record that the D.C. Court of Appeals
says: In this case, we must decide whether the FCC has
authority to regulate an Internet service provider's network
management practices. The FCC acknowledges, Mr. Chairman, that
it has no express statutory authority over such practices. And
the commission relies on section 4(1) of the Communications Act
which authorizes the commission to, quote, perform any and all
acts and make such rules and regulations and issue such orders
that are not inconsistent with this chapter as may be necessary
in the execution of its functions.
Sort of like the necessary and proper clause, Chairman
Serrano, of the Constitution, which has been interpreted very
broadly to give Congress authority in areas that the Founders
did not intend.
But here, the D.C. Court ruled explicitly you do not have
authority to regulate the Internet service providers, regulate
the Internet, not only because the statute doesn't allow you to
do it, and you acknowledge that the FCC stipulated in court
that you don't have this authority expressly in statute, but
you are relying on this necessary and proper clause. And the
FCC has repeatedly ruled that the Internet is information
services, not telecommunications services. Everything I have
just said is accurate.
Mr. Genachowski. I disagree with you, sir. We will provide
a full legal briefing.
Mr. Culberson. I just quoted from the D.C. Court. Did I
misquote the D.C. Court of Appeals? I just read it to you.
Mr. Genachowski. I don't have it in front of me. I don't
think you misquoted it. But the issue of whether transmission
services by broadband providers is inside the Communications
Act under its various titles is one in which many lawyers,
including the career staff at the FCC and our excellent general
counsel, believes that, under Brand X and other decisions,
there is clearly the authority to move on it.
Mr. Culberson. Therefore, let me just quote you. This is
the D.C. Court of Appeals: The FCC acknowledges that you have
no express statutory authority over the regulation of the
Internet. I am quoting from the D.C. Court of Appeals' opinion.
That was your decision in court. Are you telling this committee
that your position today on June 10 is different from the
position you had in the D.C. Court of Appeals in April?
Mr. Genachowski. You are raising issues around definitions
of information services, transmission services,
telecommunication services that are very complex. We would be
happy to----
Mr. Culberson. I am quoting from the Court of Appeals'
opinion. You told the Court of Appeals you don't have
authority. Have you changed that position?
Mr. Genachowski. The Court invalidated the approach that
the Commission had taken. It did not invalidate other
approaches that are now on the table for consideration. I would
have preferred the other approach.
Mr. Culberson. Well, of course. You are an attorney.
Mr. Genachowski. But because the court disagreed with the
mechanism that the FCC had used to protect consumers, promote
competition, particular form, and the reasoning.
Mr. Culberson. I understand. My time is very limited. And
forgive me for interrupting, and the chairman is very gracious
with the time.
But, Mr. Chairman, it is a fact, and Chairman Genachowski
cannot disagree that the FCC has standing rules that the
Internet is information services, and he has not disagreed that
the FCC stipulated, told the Federal Court of Appeals that the
FCC has no--and I am quoting from the opinion--has no express
statutory authority to regulate the Internet.
He can't quote me the statute. You haven't changed your
position that you had in court. So, therefore, you, the FCC,
has no express statutory authority to regulate the Internet.
So what my point is, Mr. Chairman, is that we need to have
an amendment--and I will be offering an amendment--that none of
the funds appropriated by this committee can be used to
regulate the Internet. Because that is the ruling of the Court
of Appeals; that is the ruling of the FCC.
And you have not appealed this to the Supreme Court. Have
you?
Mr. Genachowski. Well, I look forward to working with you
and others making sure that we can pursue investment on a
broadband future for all Americans, because that is what is at
stake in this debate.
Mr. Culberson. Leave that to the marketplace.
Mr. Genachowski. I disagree with you on the legal
interpretations, but we will provide a full legal briefing, and
I look forward to ongoing discussions about it.
Mr. Culberson. Mr. Chairman, you have been very gracious,
and I appreciate the time.
Mr. Serrano. I shouldn't alert you to what my comeback
would be in committee when you propose that amendment. But my
comeback will be, for the record, that what you are proposing
also will not allow him to do anything about pornography if
that is the case. And I am not a lawyer, but that is the way I
would read it; that he could not move on anything, including
something that we all agree he should be moving on this
afternoon.
Mr. Culberson. Could we work together on an amendment to
let him have that on the pornography?
Mr. Serrano. See, I am not chairman of this committee to
take power away from this committee only in the case of
Washington, D.C., which I have stated I don't want to supervise
Washington, D.C. So I am not going to be sending him to the
authorizers to get powers I think the Commission has to carry
out their duty. It is a matter of interpretation: Does he have
all the total powers? Maybe not. Does he have enough powers to
move on some very specific issues? Absolutely. And so as long
as they are fighting on behalf of the American consumer and
allowing the digital divide to be narrowed and done away with,
I take--and maybe it is because I am not a lawyer and I take
irresponsible stances--that some people say, stop, you can't do
that much on behalf of the consumer. That would be a great day
in America when people tell them to stop and tell the
commission to stop. That is what I want to see happening. Thank
you.
Mr. Culberson. Could I offer a suggestion? I would love to
work with you on the amendment with Ms. Wasserman Schultz.
Mr. Serrano. I always work with you. But we are not going
to work on an amendment that says they cannot move ahead and
do. That is something you will have to do on your own, because
I think they should move ahead and do as much as they can.
Mr. Culberson. I was going to suggest a very narrow one to
give them the authority to regulate child pornography and keep
it off the Internet. We could work one up together with Ms.
Wasserman Schultz and target that rifle shot authority in that
one area, and otherwise----
Mr. Serrano. Well, this is not the time.
Mr. Culberson. I would love to help you with that.
Mr. Serrano. I think they should move on everything.
Mr. Chairman, thank you so much. I think it is clear to you
that, notwithstanding the fact that the average American may
not know what FCC stands for, that certainly this committee
understands the major role you play. And from the unemployed
person carrying a cell phone to the folks who sit at the major
corporations, you can affect them all. And I think at the end
of the day, just my personal position, the ones who need the
most protection are the ones at the bottom of the totem pole
who get ripped off a lot of times. We are not here asking you
to do a number, if you will, and not support major corporations
in their desire to make the industries grow. You know, it is
all for the country. But this whole issue of consumerism is
very important to us.
But I think you have noticed that while we all agree on
most of the issues and the approaches to them, we have certain
interests. So Ms. Lee reminded you of diversity and how
important it is, and it is something we all subscribe to. I
would be very happy if I saw communications coming out of your
office saying the territories are treated equally and that an
American citizen with a need for the Internet in the Virgin
Islands has the same right as one in L.A. and in Chicago and in
D.C.
You have agreed to--and you are going to hate me for this.
You have agreed to bring the legal team here, and I invite the
gentleman to join the staff. That is the part you are just
going to hate me for. Every member is always allowed to join
the staff.
Mrs. Emerson spoke about the rural areas. With all the
problems we have in the inner city, and God knows we have a lot
of problems, it is hard for me to understand how you can be in
a place where you can't get a telephone signal at all. And I
don't mean an apartment in the Bronx or a television signal. So
those are issues.
And, lastly, we all want you not to wait for any court
ruling, but to move on the pornography issue.
We commend you for your work. We will support you in your
challenge. And understand that, notwithstanding at times the
tone of this committee, it wants to be a partner with you in
moving ahead and resolving all of these issues. And thank you
so much for your testimony today.
Mr. Genachowski. Thank you very much.
Mr. Serrano. And this hearing is adjourned.
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W I T N E S S E S
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Davidson, Donetta................................................ 121
Genachowski, Julius.............................................. 195
Nord, Nancy...................................................... 1
Tenenbaum, Inez.................................................. 1