January 6, 2009 CONGRESSIONAL RECORD — SENATE S129 

will put the cost of higher education in 

reach for American families. 

According to a recent College Board 

report tuition is rising at both public 

and private institutions. On average, 

the tuition at a private college this 

year is $25,143, up 5.9 percent from last 

year, and the tuition at a public college $6,585, up 6.4 percent from last 

year. 

Unfortunately, neither student aid 

funds nor family incomes are keeping 

pace with increasing tuition and fees. 

In my travels around Massachusetts, I 

frequently hear from parents concerned 

they will not be able to pay for their 

children’s college. These parents know 

that earning a college education will 

result in greater earnings for their 

children and they desperately want to 

ensure their kids have the greatest opportunities possible. 

In 1997, the Congress implemented 

two new tax credits to make college affordable—the HOPE and the Lifetime 

Learning credits. These tax credits 

have put college in reach for families, 

but I believe we can do more. 

The HOPE and Lifetime Learning 

credits are not refundable, and therefore a family of four must have an income over $30,000 in order to receive 

the maximum credit. Almost half of 

families with college students fail to 

receive the full credit because their income is too low. In order to receive the 

full benefit of the Lifetime Learning 

credit, a student has to spend $10,000 a 

year on tuition and fees. This is more 

than $3,000 the average annual public 4- 

year college tuition more than three 

times the average annual tuition of a 2- 

year community college. About 56 percent of college students attend schools 

with tuition and fees under $9,000. 

In 2004, I proposed a refundable tax 

credit to help pay for the cost of 4 

years of college. Currently the HOPE 

credit applies only to the first 2 years 

of college. The College Opportunity 

Tax Credit Act of 2009 helps students 

and parents afford all four years of college. It also builds on the proposal I 

made in 2004 by incorporating some of 

the suggestions made by experts at a 

Finance Committee hearing held during the 109th Congress. My legislation 

creates a new credit, the College Opportunity Tax Credit, COTC, that replaces the existing HOPE credit and 

Lifetime Learning credit and ultimately makes these benefits more generous. 

The COTC has two components. The 

first provides a refundable tax credit 

for a student enrolled in a degree program at least on a half-time basis. It 

would provide a 100 percent tax credit 

for the first $2,000 of eligible expenses 

and a 50 percent tax credit for the next 

$4,000 of expenses. The maximum credit 

would be $4,000 each year per student. 

The second provides a nonrefundable 

tax credit for part-time students, graduate students, and other students that 

do not qualify for the refundable tax 

credit. It provides a 40 percent credit 

for the first $1,000 of eligible expenses 

and a 20 percent credit for the next 

$3,000 of expenses. 

Both of these credits can be used for 

expenses associated with tuition and 

fees. The same income limits that 

apply to the HOPE credit and the Lifetime Learning credit apply to the 

COTC. These amounts are indexed for 

inflation, as are the eligible amounts 

of expenses. This legislation is only for 

taxable years beginning in 2009 and 2010 

in order to make colleges affordable 

during these difficult financial times. 

It will also give the Congress additional time to work on a permanent solution to help with the rising cost of a 

college education. 

The College Opportunity Tax Credit 

Act of 2009 simplifies the existing credits that make higher education more 

affordable and will enable more students to be eligible for tax relief. I understand that many of my colleagues 

are interested in making college more 

affordable. I look forward to working 

with my colleagues to make a refundable tax credit for college education a 

reality this Congress. 

By Mr. KERRY (for himself and 

Mr. ENSIGN): 

S. 144. A bill to amend the Internal 

Revenue Code of 1986 to remove cell 

phones from listed property under section 280F; to the Committee on Finance. 

Mr. KERRY. Mr. President, today 

Senator ENSIGN and I are reintroducing 

the MOBILE Cell Phone Act of 2009, 

Modernize Our Bookkeeping in the Law 

for Employee’s Cell Phone Act of 2009. 

Last Congress, 60 Senators cosponsored 

this legislation which would update the 

tax treatment of cell phones and mobile communication devices. 

During the past 20 years, the use of 

cell phone and mobile communication 

devices has skyrocketed. Cell phones 

are no longer viewed as an executive 

perk or a luxury item. They no longer 

resemble suitcases or are hardwired to 

the floor of an automobile. Cell phone 

and mobile communication devices are 

now part of daily business practices at 

all levels. 

In 1989, Congress passed a law which 

added cell phones to the definition of 

listed property under section 280F(d)(4) 

of the Internal Revenue Code of 1986. 

Treating cell phones as listed property 

requires substantial documentation in 

order for cell phones to benefit from 

accelerated depreciation and not be 

treated as taxable income to the employee. This documentation is required 

to substantiate that the cell phone is 

used for business purposes more than 50 

percent of the time. Generally, listed 

property is property that inherently 

lends itself to personal use, such as 

automobiles. 

Back in 1989, cell phone technology 

was an expensive technology worthy of 

detailed log sheets. At that time, it 

was difficult to envision cell phones 

that could be placed in a pocket or 

handbag. Congress was skeptical about 

the daily business use of cell phones. 

Technological advances have revolutionized the cell phone and mobile 

communication device industries. 

Twenty years ago, no one could have 

imagined the role BlackBerries play in 

our day-to-day communications. Cell 

phones and mobile communication devices are now widespread throughout 

all types of businesses. Employers provide their employees with these devices 

to enable them to remain connected 24 

hours a day, 7 days a week. The cost of 

the devices has been reduced and most 

providers offer unlimited airtime for 

one monthly rate. 

Recently, the Internal Revenue Service reminded field examiners of the 

substantiation rules for cell phones as 

listed property. The current rule requires employers to maintain expensive and detailed logs, and employers 

caught without cell phone logs could 

face tax penalties. 

The MOBILE Cell Phone Act of 2009 

updates the tax treatment of cell 

phones and mobile communication devices by repealing the requirement 

that employers maintain detailed logs. 

The tax code should keep pace with 

technological advances. There is no 

longer a reason that cell phones and 

mobile communication devices should 

be treated differently than office 

phones or computers. Last, Congress 60 

Senators cosponsored this legislation. I 

urge my colleagues to support this 

commonsense change. 

By Mr. KOHL (for himself, Mr. 

VITTER, Mr. LEAHY, Mr. FEINGOLD, Mr. SCHUMER, Ms. 

KLOBUCHAR, Mr. DORGAN, and 

Mr. ROCKEFELLER): 

S. 146. A bill to amend the Federal 

antitrust laws to provide expanded coverage and to eliminate exemptions 

from such laws that are contrary to the 

public interest with respect to railroads; to the Committee on the Judiciary. 

Mr. KOHL. Mr. President, I rise 

today to introduce legislation essential 

to restoring competition to the nation’s crucial freight railroad sector. 

Freight railroads are essential to shipping a myriad of vital goods, everything from coal used to generate electricity to grain used for basic foodstuffs. But for decades the freight railroads have been insulated from the 

normal rules of competition followed 

by almost all other parts of our economy by an outmoded and unwarranted 

antitrust exemption. So today I am introducing along with my colleagues, 

Senators VITTER, LEAHY, FEINGOLD, 

SCHUMER, ROCKEFELLER, DORGAN and 

KLOBUCHAR, the Railroad Antitrust Enforcement Act of 2009. This legislation 

will eliminate the obsolete antitrust 

exemptions that protect freight railroads from competition. This legislation is identical to the legislation that 

was reported out of the Judiciary Committee in the last Congress without 

dissent. 

Our legislation will eliminate obsolete antitrust exemptions that protect 


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S130 CONGRESSIONAL RECORD — SENATE January 6, 2009 

freight railroads from competition and 

result in higher prices to millions of 

consumers every day. Consolidation in 

the railroad industry in recent years 

has resulted in only four Class I railroads providing over 90 percent of the 

nation’s freight rail transportation. 

The lack of competition was documented in an October 2006 Government 

Accountability Office report. That report found that shippers in many geographic areas ‘‘may be paying excessive 

rates due to a lack of competition in 

these markets.’’ These unjustified cost 

increases cause consumers to suffer 

higher electricity bills because a utility must pay for the high cost of transporting coal, result in higher prices for 

goods produced by manufacturers who 

rely on railroads to transport raw materials, and reduce earnings for American farmers who ship their products 

by rail and raise food prices paid by 

consumers. 

The ill-effects of this consolidation 

are exemplified in the case of ‘‘captive 

shippers’’—industries served by only 

one railroad. Over the past several 

years, these captive shippers have 

faced spiking rail rates. They are the 

victims of the monopolistic practices 

and price gouging by the single railroad that serves them, price increases 

which they are forced to pass along 

into the price of their products, and ultimately, to consumers. And in many 

cases, the ordinary protections of antitrust law are unavailable to these captive shippers—instead, the railroads 

are protected by a series of outmoded 

exemptions from the normal rules of 

antitrust law to which all other industries must abide. In August 2006, the 

Attorneys General of 17 states and the 

District of Columbia sent a letter to 

Congress citing problems due to a lack 

of competition and asked that the antitrust exemptions be removed. 

These unwarranted antitrust exemptions have put the American consumer 

at risk, and in Wisconsin, victims of a 

lack of railroad competition abound. A 

coalition has formed, consisting of 

about 40 affected organizations—Badger CURE. From Dairyland Power Cooperative in La Crosse to Wolf River 

Lumber in New London, companies in 

my state are feeling the crunch of 

years of railroad consolidation. To help 

offset a 93 percent increase in shipping 

rates in 2006, Dairyland Power Cooperative had to raise electricity rates by 20 

percent. The reliability, efficiency, and 

affordability of freight rail have all declined, and Wisconsin consumers feel 

the pinch. 

Similar stories exist across the country. We held a hearing at the Antitrust 

Subcommittee in September 2007 which 

detailed numerous instances of anticompetitive conduct by the dominant 

freight railroads and at which railroad 

shippers testified as to the need to repeal the outmoded and unwarranted 

antitrust exemptions which left them 

without remedies. Dozens of organizations, unions and trade groups—including the American Public Power Association, the American Chemistry Council, American Corn Growers Associations and many more affected by monopolistic railroad conduct endorsed 

the Railroad Antitrust Enforcement 

Act in the last Congress. 

The current antitrust exemptions 

protect a wide range of railroad industry conduct from scrutiny by governmental antitrust enforcers. Railroad 

mergers and acquisitions are exempt 

from antitrust law and are reviewed 

solely by the Surface Transportation 

Board. Railroads that engage in collective ratemaking are also exempt from 

antitrust law. Railroads subject to the 

regulation of the Surface Transportation Board are also exempt from private antitrust lawsuits seeking the termination of anticompetitive practices 

via injunctive relief. Our bill will 

eliminate these exemptions. 

No good reason exists for them. 

While railroad legislation in recent 

decades—including most notably the 

Staggers Rail Act of 1980—deregulated 

much railroad rate setting from the 

oversight of the Surface Transportation Board, these obsolete antitrust 

exemptions remained in place, insulating a consolidating industry from 

obeying the rules of fair competition. 

And there is no reason to treat railroads any differently from dozens of 

other regulated industries in our economy that are fully subject to antitrust 

law—whether the telecommunications 

sector regulated by the FCC, or the 

aviation industry regulation by the Department of Transportation, to name 

just two examples. 

Our bill will bring railroad mergers 

and acquisitions under the purview of 

the Clayton Act, allowing the Federal 

government, state attorneys general 

and private parties to file suit to enjoin anticompetitive mergers and acquisitions. It will restore the review of 

these mergers to the agencies where 

they belong—the Justice Department’s 

Antitrust Division and the Federal 

Trade Commission. It will eliminate 

the exemption that prevents FTC’s 

scrutiny of railroad common carriers. 

It will eliminate the antitrust exemption for railroad collective ratemaking. 

It will allow state attorneys general 

and other private parties to sue railroads for treble damages and injunctive 

relief for violations of the antitrust 

laws, including collusion that leads to 

excessive and unreasonable rates. This 

legislation will force railroads to play 

by the rules of free competition like all 

other businesses. 

In sum, by clearing out this thicket 

of outmoded antitrust exemptions, 

railroads will be subject to the same 

laws as the rest of the economy. Government antitrust enforcers will finally have the tools to prevent anticompetitive transactions and practices 

by railroads. Likewise, private parties 

will be able to utilize the antitrust 

laws to deter anti-competitive conduct 

and to seek redress for their injuries. 

It is time to put an end to the abusive practices of the Nation’s freight 

railroads. On the Antitrust Subcommittee, we have seen that in industry after industry, vigorous application 

of our Nation’s antitrust laws is the 

best way to eliminate barriers to competition, to end monopolistic behavior, 

to keep prices low and quality of service high. The railroad industry is no 

different. All those who rely on railroads to ship their products—whether 

it is an electric utility for its coal, a 

farmer to ship grain, or a factory to acquire its raw materials or ship out its 

finished product—deserve the full application of the antitrust laws to end 

the anti-competitive abuses all too 

prevalent in this industry today. I urge 

my colleagues support the Railroad 

Antitrust Enforcement Act of 2009. 

Mr. President, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD, as follows: 

S. 146 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Railroad 

Antitrust Enforcement Act of 2009’’. 

SEC. 2. INJUNCTIONS AGAINST RAILROAD COMMON CARRIERS. 

The proviso in section 16 of the Clayton 

Act (15 U.S.C. 26) ending with ‘‘Code.’’ is 

amended to read as follows: ‘‘Provided, That 

nothing herein contained shall be construed 

to entitle any person, firm, corporation, or 

association, except the United States, to 

bring suit for injunctive relief against any 

common carrier that is not a railroad subject to the jurisdiction of the Surface Transportation Board under subtitle IV of title 49, 

United States Code.’’. 

SEC. 3. MERGERS AND ACQUISITIONS OF RAILROADS. 

The sixth undesignated paragraph of section 7 of the Clayton Act (15 U.S.C. 18) is 

amended to read as follows: 

‘‘Nothing contained in this section shall 

apply to transactions duly consummated 

pursuant to authority given by the Secretary of Transportation, Federal Power 

Commission, Surface Transportation Board 

(except for transactions described in section 

11321 of that title), the Securities and Exchange Commission in the exercise of its jurisdiction under section 10 (of the Public 

Utility Holding Company Act of 1935), the 

United States Maritime Commission, or the 

Secretary of Agriculture under any statutory provision vesting such power in the 

Commission, Board, or Secretary.’’. 

SEC. 4. LIMITATION OF PRIMARY JURISDICTION. 

The Clayton Act is amended by adding at 

the end thereof the following: 

‘‘SEC. 29. In any civil action against a common carrier railroad under section 4, 4C, 15, 

or 16 of this Act, the district court shall not 

be required to defer to the primary jurisdiction of the Surface Transportation Board.’’. 

SEC. 5. FEDERAL TRADE COMMISSION ENFORCEMENT. 

(a) CLAYTON ACT.—Section 11(a) of the 

Clayton Act (15 U.S.C. 21(a)) is amended by 

striking ‘‘subject to jurisdiction’’ and all 

that follows through the first semicolon and 

inserting ‘‘subject to jurisdiction under subtitle IV of title 49, United States Code (except for agreements described in section 

10706 of that title and transactions described 

in section 11321 of that title);’’. 


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January 6, 2009 CONGRESSIONAL RECORD — SENATE S131 

(b) FTC ACT.—Section 5(a)(2) of the Federal Trade Commission Act (15 U.S.C. 

45(a)(2)) is amended by striking ‘‘common 

carriers subject’’ and inserting ‘‘common 

carriers, except for railroads, subject’’. 

SEC. 6. EXPANSION OF TREBLE DAMAGES TO 

RAIL COMMON CARRIERS. 

Section 4 of the Clayton Act (15 U.S.C. 15) 

is amended by— 

(1) redesignating subsections (b) and (c) as 

subsections (c) and (d), respectively; and 

(2) inserting after subsection (a) the following: 

‘‘(b) Subsection (a) shall apply to a common carrier by railroad subject to the jurisdiction of the Surface Transportation Board 

under subtitle IV of title 49, United States 

Code, without regard to whether such railroads have filed rates or whether a complaint challenging a rate has been filed.’’. 

SEC. 7. TERMINATION OF EXEMPTIONS IN TITLE 

49. 

(a) IN GENERAL.—Section 10706 of title 49, 

United States Code, is amended— 

(1) in subsection (a)— 

(A) in paragraph (2)(A), by striking ‘‘, and 

the Sherman Act (15 U.S.C. 1 et seq.),’’ and 

all that follows through ‘‘or carrying out the 

agreement’’ in the third sentence; 

(B) in paragraph (4)— 

(i) by striking the second sentence; and 

(ii) by striking ‘‘However, the’’ in the third 

sentence and inserting ‘‘The’’; and 

(C) in paragraph (5)(A), by striking ‘‘, and 

the antitrust laws set forth in paragraph (2) 

of this subsection do not apply to parties and 

other persons with respect to making or carrying out the agreement’’; and 

(2) by striking subsection (e) and inserting 

the following: 

‘‘(e) APPLICATION OF ANTITRUST LAWS.— 

‘‘(1) IN GENERAL.—Nothing in this section 

exempts a proposed agreement described in 

subsection (a) from the application of the 

Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act (15 U.S.C. 12, 14 et seq.), the Federal 

Trade Commission Act (15 U.S.C. 41 et seq.), 

section 73 or 74 of the Wilson Tariff Act (15 

U.S.C. 8 and 9), or the Act of June 19, 1936 (15 

U.S.C. 13, 13a, 13b, 21a). 

‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IMPACT.—In reviewing any such proposed agreement for the purpose of any provision of law 

described in paragraph (1), the Board shall 

take into account, among any other considerations, the impact of the proposed agreement on shippers, on consumers, and on affected communities.’’. 

(b) COMBINATIONS.—Section 11321 of title 49, 

United States Code, is amended— 

(1) in subsection (a)— 

(A) by striking ‘‘The authority’’ in the 

first sentence and inserting ‘‘Except as provided in sections 4 (15 U.S.C. 15), 4C (15 U.S.C. 

15c), section 15 (15 U.S.C. 25), and section 16 

(15 U.S.C. 26) of the Clayton Act (15 U.S.C. 

21(a)), the authority’’; and 

(B) by striking ‘‘is exempt from the antitrust laws and from all other law,’’ in the 

third sentence and inserting ‘‘is exempt from 

all other law (except the antitrust laws referred to in subsection (c)),’’; and 

(2) by adding at the end the following: 

‘‘(c) APPLICATION OF ANTITRUST LAWS.— 

‘‘(1) IN GENERAL.—Nothing in this section 

exempts a transaction described in subsection (a) from the application of the Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act 

(15 U.S.C. 12, 14 et seq.), the Federal Trade 

Commission Act (15 U.S.C. 41 et seq.), section 

73 or 74 of the Wilson Tariff Act (15 U.S.C. 8– 

9), or the Act of June 19, 1936 (15 U.S.C. 13, 

13a, 13b, 21a). The preceding sentence shall 

not apply to any transaction relating to the 

pooling of railroad cars approved by the Surface Transportation Board or its predecessor 

agency pursuant to section 11322 of title 49, 

United States Code. 

‘‘(2) ANTITRUST ANALYSIS TO CONSIDER IMPACT.—In reviewing any such transaction for 

the purpose of any provision of law described 

in paragraph (1), the Board shall take into 

account, among any other considerations, 

the impact of the transaction on shippers 

and on affected communities.’’. 

(c) CONFORMING AMENDMENTS.— 

(1) The heading for section 10706 of title 49, 

United States Code, is amended to read as 

follows: ‘‘Rate agreements’’. 

(2) The item relating to such section in the 

chapter analysis at the beginning of chapter 

107 of such title is amended to read as follows: 

‘‘10706. Rate agreements.’’. 

SEC. 8. EFFECTIVE DATE. 

(a) IN GENERAL.—Subject to the provisions 

of subsection (b), this Act shall take effect 

on the date of enactment of this Act. 

(b) CONDITIONS.— 

(1) PREVIOUS CONDUCT.—A civil action 

under section 4, 15, or 16 of the Clayton Act 

(15 U.S.C. 15, 25, 26) or complaint under section 5 of the Federal Trade Commission Act 

(15 U.S.C. 45) may not be filed with respect to 

any conduct or activity that occurred prior 

to the date of enactment of this Act that was 

previously exempted from the antitrust laws 

as defined in section 1 of the Clayton Act (15 

U.S.C. 12) by orders of the Interstate Commerce Commission or the Surface Transportation Board issued pursuant to law. 

(2) GRACE PERIOD.—A civil action or complaint described in paragraph (1) may not be 

filed earlier than 180 days after the date of 

enactment of this Act with respect to any 

previously exempted conduct or activity or 

previously exempted agreement that is continued subsequent to the date of enactment 

of this Act. 

Mr. FEINGOLD. Mr. President, I 

would like to thank the senior Senator 

from Wisconsin for his hard work to 

address antitrust issues in the rail industry along with other industries as 

Chairman of the Antitrust, Competition Policy and Consumer Rights Subcommittee of the Judiciary Committee. I have been pleased to support 

his efforts to bring antitrust scrutiny 

to the large freight railroads since he 

first introduced a version of this legislation in 2006. As Senator KOHL well 

knows, this is a vitally important issue 

for rail customers and ultimately consumers both in Wisconsin and across 

the country. 

Over the past several years, I have 

heard more and more comments and 

concerns from freight rail customers at 

my town hall meetings in Wisconsin 

and my meetings in Washington. The 

concerns have come from constituents 

who rely on freight railroads to transport their goods or receive raw materials. The comments I have heard have 

been diverse by industry, ranging from 

forestry, energy, farming, and petrochemical companies to various manufacturers, and by size, from family 

owned enterprises to large corporations. The problems they have described do not seem to be isolated incidents, but instead suggest a systematic 

continuing problem. 

There are several general concerns 

that seem to apply no matter which 

class of railroad is discussed. While 

outright refusals of transport may be 

rare, several of my constituents have 

found it difficult to get timely estimates of costs for carriage for their 

cargo. This seems to especially be a 

problem for short distances or small 

loads, or if the cargo is only on the 

originating railroads’ tracks for a 

short distance. Many have said that 

they feel like second-class citizens, denied the better service and dedicated 

trains that the long-haul receive. 

I have also heard about problems 

with changes to transportation schedules, and problems with rail car delivery and ancillary services such as 

scales. Many rail customers seem to 

feel that as railroads continued to 

merge over the past two decades, service, especially for small customers, has 

declined dramatically. Again, this 

seems to especially affect small railroad customers who are dependant on 

rail transport, but face difficulty in receiving cars to fill, moving filled cars 

in a timely manner or weighing their 

loads. 

Of course cost is also an issue, but it 

is not just the cost of transportation. 

Some rail customers feel that the Surface Transportation Board, STB, complaint process is too costly, slow and 

tilted in favor of the railroads over the 

customers. They contend that these 

hurdles to exposing anticompetitive 

practices have the effect of perpetuating the unfair treatment and excessive rates they experience. 

Senator KOHL’s proposal would remove the current railroad antitrust exemptions so that railroads would be 

covered like other segments of industry. The Department of Justice and the 

Federal Trade Commission would then 

have the authority to review mergers 

and block anti-competitive mergers. 

The legislation would also expand the 

ability of State Attorneys General and 

private parties to halt anti-competitive behavior and seek up to treble 

damages for any such violations. 

I believe this is a very reasonable and 

measured proposal as evidenced by the 

bill being passed out of the Judiciary 

Committee in the previous Congress by 

voice vote. I look forward to supporting Senator KOHL’s efforts to move 

the legislation through committee 

again and push for its passage into law 

during the current Congress. 

While I hope that providing the Department of Justice the authority to 

review possible antitrust violations as 

proposed in the current bill will improve the situation for many shippers, 

it may have to go hand-in-hand with 

reforms at the STB as were contemplated in the previous Congress by 

Senator ROCKEFELLER’s Railroad Competition and Service Improvements Act 

of 2007. 

By Mrs. FEINSTEIN (for herself, 

Mr. ROCKEFELLER, Mr. WYDEN, 

and Mr. WHITEHOUSE): 

S. 147. A bill to require the closure of 

the detention facility at Guantanamo 

Bay, Cuba, to limit the use of certain 

interrogation techniques, to prohibit 

interrogation by contractors, to require notification of the International 


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