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 

ROSA L. DELAURO, Connecticut 

CHAKA FATTAH, Pennsylvania 

BARBARA LEE, California 

ADAM SCHIFF, California 

STEVE ISRAEL, New York 

TIM RYAN, Ohio 

JO ANN EMERSON, Missouri 

JOHN ABNEY CULBERSON, Texas 

MARK STEVEN KIRK, Illinois 

ANDER CRENSHAW, Florida 

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 

( 

Printed for the use of the Committee on Appropriations 


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PART 7—FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS FOR 2011 


tjames on DSKG8SOYB1PROD with HEARING
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 

ROSA L. DELAURO, Connecticut 

CHAKA FATTAH, Pennsylvania 

BARBARA LEE, California 

ADAM SCHIFF, California 

STEVE ISRAEL, New York 

TIM RYAN, Ohio 

JO ANN EMERSON, Missouri 

JOHN ABNEY CULBERSON, Texas 

MARK STEVEN KIRK, Illinois 

ANDER CRENSHAW, Florida 

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 

( 

U.S. GOVERNMENT PRINTING OFFICE 

62–205 WASHINGTON : 2010 


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COMMITTEE ON APPROPRIATIONS 

DAVID R. OBEY, Wisconsin, Chairman 

NORMAN D. DICKS, Washington 

ALAN B. MOLLOHAN, West Virginia 

MARCY KAPTUR, Ohio 

PETER J. VISCLOSKY, Indiana 

NITA M. LOWEY, New York 

JOSE ́ E. SERRANO, New York 

ROSA L. DELAURO, Connecticut 

JAMES P. MORAN, Virginia 

JOHN W. OLVER, Massachusetts 

ED PASTOR, Arizona 

DAVID E. PRICE, North Carolina 

CHET EDWARDS, Texas 

PATRICK J. KENNEDY, Rhode Island 

MAURICE D. HINCHEY, New York 

LUCILLE ROYBAL-ALLARD, California 

SAM FARR, California 

JESSE L. JACKSON, JR., Illinois 

CAROLYN C. KILPATRICK, Michigan 

ALLEN BOYD, Florida 

CHAKA FATTAH, Pennsylvania 

STEVEN R. ROTHMAN, New Jersey 

SANFORD D. BISHOP, JR., Georgia 

MARION BERRY, Arkansas 

BARBARA LEE, California 

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 

JERRY LEWIS, California 

C. W. BILL YOUNG, Florida 

HAROLD ROGERS, Kentucky 

FRANK R. WOLF, Virginia 

JACK KINGSTON, Georgia 

RODNEY P. FRELINGHUYSEN, New 

Jersey 

TODD TIAHRT, Kansas 

ZACH WAMP, Tennessee 

TOM LATHAM, Iowa 

ROBERT B. ADERHOLT, Alabama 

JO ANN EMERSON, Missouri 

KAY GRANGER, Texas 

MICHAEL K. SIMPSON, Idaho 

JOHN ABNEY CULBERSON, Texas 

MARK STEVEN KIRK, Illinois 

ANDER CRENSHAW, Florida 

DENNIS R. REHBERG, Montana 

JOHN R. CARTER, Texas 

RODNEY ALEXANDER, Louisiana 

KEN CALVERT, California 

JO BONNER, Alabama 

STEVEN C. LATOURETTE, Ohio 

TOM COLE, Oklahoma 

BEVERLY PHETO, Clerk and Staff Director 

(II)


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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 Prod- uct 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 reVerDate Mar 15 2010 06:41 Dec 09, 2010 Jkt 062205 PO 00000 Frm 00001 Fmt 6633 Sfmt 6633 E:\HR\OC\A205P2.XXX A205P2

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ported 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? 


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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. 


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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 


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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 

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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 


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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. 


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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 leadfree. 

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? 


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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 withVerDate Mar 15 2010 06:41 Dec 09, 2010 Jkt 062205 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 E:\HR\OC\A205P2.XXX A205P2

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in 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-theboard 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? 


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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 


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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. 


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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 selfmutilating. 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. 


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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 


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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. 


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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. 


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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 


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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 leadfree 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.] 


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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, 


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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. 


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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. 


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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 demVerDate Mar 15 2010 06:41 Dec 09, 2010 Jkt 062205 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 E:\HR\OC\A205P2.XXX A205P2

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onstrated 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 


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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 


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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 


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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 


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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 


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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. 


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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 


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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— 


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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-theart 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? 


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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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(121) 

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 


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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 elecVerDate Mar 15 2010 06:41 Dec 09, 2010 Jkt 062205 PO 00000 Frm 00122 Fmt 6601 Sfmt 6601 E:\HR\OC\A205P2.XXX A205P2

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tions 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. Twentyone 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. 


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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. 


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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? 


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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. 


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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. 


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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. 


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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. 


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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 


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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 


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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. 


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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 


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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. 


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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. 


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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 


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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. 


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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 


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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. 


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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 


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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 


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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 inVerDate Mar 15 2010 06:41 Dec 09, 2010 Jkt 062205 PO 00000 Frm 00171 Fmt 6601 Sfmt 6602 E:\HR\OC\A205P2.XXX A205P2

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stances 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 


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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. 


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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. 


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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—— 


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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 


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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. 


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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 


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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 


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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. 


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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 

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posed 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 winwin-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 


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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 

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tend 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. 


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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 


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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. 


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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? 


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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, 

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spect 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 

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ship 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 


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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 

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man, 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 


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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 


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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. 


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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. 


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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. 


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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 


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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. 


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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? 


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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 


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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? 


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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. 


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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 


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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 acVerDate Mar 15 2010 06:41 Dec 09, 2010 Jkt 062205 PO 00000 Frm 00221 Fmt 6601 Sfmt 6602 E:\HR\OC\A205P2.XXX A205P2

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knowledged 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? 


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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. 


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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 womenowned 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 


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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. 


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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 


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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 


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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. 


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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 

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essary. 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 

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essary 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? 


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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 


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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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Davidson, Donetta ................................................................................................... 121 

Genachowski, Julius ................................................................................................ 195 

Nord, Nancy ............................................................................................................. 1 

Tenenbaum, Inez ..................................................................................................... 1 

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