12/9. The House Commerce Committee (HCC) released a report [110 pages in PDF; 4 MB] titled "Deception and Distrust: The Federal Communications Commission Under Chairman Kevin J. Martin".

The report is a scathing criticism of FCC Chairman Kevin Martin's leadership of the FCC, and his actions in some proceedings. It accuses him of conducting the activities and operations of the FCC in a manner that lacks transparency and collegiality and is arbitrary and/or inconsistent with statutes.

Lack of transparency and arbitrary regulation have been attributes of the FCC since long before Martin's Chairmanship. Perhaps it should also be recalled that HCC Republican leaders spoke harsh words about former FCC Chairman William Kennard towards the end of his time in office.

HCC leaders also spoke then of a need to reform the FCC. See for example, story titled "House Telecom Subcommittee Holds FCC Reauthorization Hearing" in Tech Law Journal, March 18, 1999, and story titled "House Subcommittee Holds Hearing on FCC Reform" in Tech Law Journal, October 28, 1999.

The just released report is particularly critical of some, but not all, of Martin's actions related to cable industry regulation.

Martin's hostile and arbitrary treatment of the cable industry has been apparent for years.

The HCC issued a release that states that this report "is the culmination of a bipartisan investigation". The report itself states that "This is a report by the Majority Staff".

The majority staff conducted a vast review of documents, and conducted interviews. The report is 110 pages. The body of the report constitutes less than one quarter of the report. Over three quarters is exhibits.

The HCC conducted no public hearings. HCC Republicans did not join in the report. Rep. John Dingell (D-MI), the Chairman of the HCC for the 110th Congress, and Rep. Bart Stupak (D-MI), the Chairman of the HCC's Sucommittee on Oversight and Investigations, commented on the report in the HCC release.

Rep. Stupak (at left) stated in the HCC release that "Our investigation confirmed a number of troubling allegations raised by individuals in and outside the FCC".

He continued that the "report details some of the most egregious abuses of power, suppression of information and manipulation of data under Chairman Martin's leadership. It is my hope that this report will serve as a roadmap for a fair, open and efficient FCC under new leadership in the next administration."

Rep. Dingell (at right) stated in this release that "Any of these findings, individually, are cause for concern, ... Together, the findings suggest that, in recent years, the FCC has operated in a dysfunctional manner and Commission business has suffered as a result. It is my hope that the new FCC Chairman will find this report instructive and that it will prove useful in helping the Commission avoid making the same mistakes."

Summary of Report. One of the report's main set of allegations goes to Martin's actions directed at regulation of the cable industry.

The report states that "There are instances in which the Chairman manipulated, withheld, or suppressed data, reports, and information. Chairman Martin withheld important relevant data from the other Commissioners during their consideration of the 13th Annual Video Competition Report in a apparent attempt to enable the Commission to regulate cable television companies."

It adds that "Martin's manipulation of the Second A La Carte Report may have damaged the credibility of the Commission, and certainly undermined the integrity of the staff. Moreover, it was done with the purpose of affecting congressional decision-making, in that it was issued as a report to Congress."

The report elaborates that "Chairman Martin attempted to manipulate the data and conclusions contained in the 13th Annual Report to Congress on Video Competition, a report required by statute to determine, among other things, whether the so-called "70/70 Rule" has been met (a statutory threshold that would permit significant additional regulation of the cable television industry). Because the full Commission voted to revise Chairman Martin's draft report to conclude that the 70/70 Rule had not been met, Chairman Martin then suppressed the report. It has never been released. In addition, the report was already nine months late when it was circulated to the full Commission for vote." (Footnote omitted. Parentheses in original.)

The HCC report also quotes from an e-mail message from FCC Commissioner Robert McDowell to his staff: "The books have been cooked to trigger the 70/70 rule."

The report concludes that "In withholding the report, Chairman Martin has therefore abdicated his responsibilities to Congress, the public, and the industry."

The 70/70 rule is codified at 47 U.S.C. § 532(g).

See also, stories titled "House Republicans Urge FCC Not to Expand Cable Regulation" and "NCTA Writes to FCC Regarding 70/70 Test" in TLJ Daily E-Mail Alert No. 1,677, November 19, 2007, and story titled "FCC Commissioners Withhold Support for Martin's 70/70 Conclusion" in TLJ Daily E-Mail Alert No. 1,680, November 30, 2007.

For more on the unreleased 13th report, see story titled "PFF Seeks Release of FCC's 13th Annual Report on Video Competition" in TLJ Daily E-Mail Alert No. 1,767, May 15, 2008. The FCC's phantom 13th report is FCC 07-206 in MB Docket No. 06-189.

While the report is critical of Martin's handling of cable 70/70 and a la carte matters, it is silent as to his and the FCC's handling of the Public Knowledge (PK) filing [48 pages in PDF] against Comcast, and the FCC's subsequent order asserting authority to regulate broadband network management practices. Aside from the policy merits of this August 1, 2008, order [67 pages in PDF], the FCC's statutory authority and procedure in this proceeding are suspect. See, story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008.

However, the policy goals of Martin and Rep. Dingell are in alignment in this proceeding. (It is Docket No. 07-52.) Also, that order is the subject of pending judicial review.

The just released report also focuses on the lack of transparency at the FCC. It states that "Important Commission matters have not been handled in an open and transparent manner, thereby raising suspicions both inside and outside the Commission that some parties and issues are not being treated fairly. Chairman Martin's peremptory reversal of the First A La Carte Report's conclusions without seeking further public comment or conducting further studies gives the impression that the issue was not handled openly and fairly."

The report also addresses Martin's leadership. It states that "Chairman Martin's heavy-handed, opaque, and non-collegial management style has created distrust, suspicion, and turmoil among the five current Commissioners."

It continues that "Normally, in the course of an investigation of this nature we would recommend that a hearing be held to receive testimony from witnesses and to further examine the issues. Due to the climate of fear that currently pervades the FCC, however, we found that key witnesses were unwilling to testify or even to have their names become known. Therefore, we recommend that the Committee issue this report in lieu of a hearing to protect the many honest people who came forward under a promise of protection of anonymity."

It elaborates "there is a climate of fear at the FCC. Employees believe that if they express an opinion, even if based on fact, they may be demoted, reassigned, or hounded out of the agency."

The report also goes into detail about numerous other FCC proceedings, including those pertaining to the TRS fund. See, CG Docket Nos. 03-123 and 08-15.

It states that the FCC's "oversight of the Telecommunications Relay Service Fund has been lax at best. The Chairman's office appears to have ignored evidence that the ratepayers have been overcharged, while the companies providing Telecommunications Relay Service have been overcompensated, potentially by as much as $100 million per year."

Martin's Reaction. Martin (at right) was unapologetic in his response.

Robert Kenny, a spokesman for Martin, stated in one release that "It appears that the Committee did not find or conclude that there were any violations of rules, laws or procedures following a year-long investigation. Chairman Martin has followed the same procedures that have been followed for the past 20 years by FCC Chairmen, both Democratic and Republican alike."

This release adds that "We went to extraordinary lengths to cooperate with the investigation. In total, more than 600 Commission employees spent 11,620 hours complying with the Committee’s request for information. The Commission provided committee staff with more than 9,000 emails and approximately 75 boxes containing nearly 170,000 pages of documents, and after producing this information, the Committee did not find that there were any violations of rules, laws or procedures."

Kenny stated in a second release that "After a year of investigation, the Committee's primary criticism of the Chairman is that he spent too much money to ensure that deaf Americans have equal access to communications services. The Commission provided the Committee with hundreds of emails from deaf and disabled Americans who wrote that they were ``appalled to learn that the FCC staff [was] intent on drastically cutting the Video Relay Service (VRS) rate and effectively cutting VRS availability for the deaf.´´ Disability rights groups were also opposed to proposals to cut funding for the VRS program." (Brackets and internal quotation marks in original.)

Kenny continued that "The other major criticism of Chairman Martin is that he believes cable rates are too high and that he has sought to enhance choice and competition in the market for video services. With cable rates having doubled over the last decade, he will continue advocate on behalf of the millions of cable subscribers."

He concluded that "The Chairman makes no apologies for his commitment to serving deaf and disabled Americans and for fighting to lower exorbitantly high cable rates that consumers are forced to pay."

Outside Reaction. Gigi Sohn, head of the Public Knowledge (PK), stated in a release that this report "will be very useful to the Obama Administration as it seeks to reform the Federal Communications Commission. The FCC's processes have been flawed for many years, and this report points up some of the dangers that such dysfunction can create."

The PK and the Silicon Flatirons Center at the University of Colorado will host a one day conference titled "Reforming the FCC" in Washington DC on January 5, 2009. See, TLJ calendar.

The Progress & Freedom Foundation's (FCC) Barbara Esbin stated in a release that the HCC report "is a searing indictment of Chairman Martin's leadership of the FCC in nearly every respect. The fact that the Chairman has gotten away with this gross mismanagement of public resources and lax oversight of telecommunications support funds for nearly four years is disturbing."

She continued that "Waste and abuse of process and staff are a sad legacy, and the toll is not merely procedural, the effects of the Chairman's actions affected lives and careers. We hope that the next leader of the agency conducts a thorough review of internal processes with any eye toward both improving staff morale, re-introducing transparency and collegiality, and restoring the quality of FCC decision-making."

Esbin is a former Associate Bureau Chief of the FCC's Media Bureau, which has responsibility for cable issues.

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

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

For information about subscriptions, see subscription information page.

Tech Law Journal now accepts credit card payments. See, TLJ credit card payments page.

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

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

This issue contains the following item:
 • House Commerce Committee Releases Report on FCC Chairman Martin

The House will meet at 10:00 AM for legislative business. See, Rep. Hoyer's schedule for week of December 8. The House could consider legislation to subsidize and protect GM, Ford and Chrysler. See, Rep. Hoyer's schedule for December 10.

The Senate will meet at 10:30 AM. It will resume consideration of S 3297, the "Advancing America's Priorities Act".

8:00 AM - 4:30 PM. Day two of a two day partially closed meeting of the National Science Foundation's (NSF) National Science Board (NSB). The agenda for the 8:00 - 10:30 AM open session includes "Update on the Next Generation of STEM Innovators Workshop". See, notice in the Federal Register, December 2, 2008, Vol. 73, No. 232, at Pages 73349-73350. Location: NSF, Room 1235, 4201 Wilson Blvd., Arlington, VA.

10:00 AM. The House Financial Services Committee (HFSC) will hold a hearing titled "Oversight Concerns Regarding Treasury Department Conduct of the Troubled Assets Relief Program". Location: 2128 Rayburn Building.

1:30 PM. The Department of Commerce's (DOC) Bureau of Industry and Security's (BIS) Regulations and Procedures Technical Advisory Committee (ETRAC) will hold a partially closed meeting. See, notice in the Federal Register, November 26, 2008, Vol. 73, No. 229, at Pages 72025-72026. Location: DOC, Hoover Building, Room 4830, 14th St. between Pennsylvania and Constitution Aves., NW.

11:00 AM. The Supreme Court will hear oral argument in AT&T v. Hulteen, Sup. Ct. No. 07-543. This is a petition for writ of certiorari to the U.S. Court of Appeals (9thCir) in a case involving Title VII, calculation of retirement benefits, and pregnancy leave. See, March 8, 2006, divided opinion [30 pages in PDF] of the Court of Appeals.

12:00 NOON. The Cato Institute will host an event titled "Just Give Us the Data! Prospects for Putting Government Information to Revolutionary New Uses". The speakers will be Ed Felten (Princeton University), Gary Bass (OMB Watch), Jerry Brito (Mercatus Center at George Mason University), and Jim Harper (Cato). See, notice. Lunch will follow the program. This event is free and open to the public. Cato will web cast this event. Location: Cato, 1000 Massachusetts Ave., NW.

2:45 - 3:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Regulation and Oversight: Advice for the New Administration". The speakers will be Cary Coglianese (University of Pennsylvania Law School), Susan Dudley (Office of Management and Budget), John Graham (Indiana University), Sally Katzen (George Mason University School of Law), Richard Morgenstern (Resources for the Future), and Robert Hahn (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.

6:00 - 9:15 PM. The DC Bar Association (DCBA) will host part one of a two part event titled "2008 IP Law Year in Review Series". The speakers will be Terence Ross (Gibson Dunn & Crutcher), Becky Burr (Wilmer Hale), and Brian Banner (Rothwell Figg Ernst & Manbeck). The price to attend ranges from $80 to $115. For more information, contact 202-626-3488. See, notice. The event qualifies for continuing legal education credits. The DCBA has a record of excluding persons from its events. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

6:30 - 8:30 PM. The Federal Communications Bar Association's (FCBA) Diversity and Young Lawyers Committees will host an event titled "Holiday Happy Hour". RSVP to Edgar Class, eclass at wileyrein dot com. Location: Spezie Restaurant, 1736 L St., NW.

Effective date of the U.S. Patent and Trademark Office's (USPTO) rules changes governing practice before the Board of Patent Appeals and Interferences in ex parte patent appeals. See, notice in the Federal Register, June 10, 2008, Vol. 73, No. 112, at Pages 32937-32977.

The House may meet at 10:00 AM. See, Rep. Hoyer's schedule for week of December 8.

8:30 AM - 3:00 PM. The Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Malcolm Baldrige National Quality Award Board of Overseers will meet. See, notice in the Federal Register, November 28, 2008, Vol. 73, No. 230, at Page 72451. Location: NIST, Administration Building, Lecture Room B, Gaithersburg, MD.

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host an event to release and discuss a report titled "A Policymaker's Guide to Network Management". The speakers will be Robert Atkinson (ITIF), David Sohn (Center for Democracy and Technology), and George Ou (ITIF). A light breakfast will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

9:00 AM. The American Antitrust Institute (AAI) will host an event titled "Private Antitrust Enforcement Symposium". For more information, contact Sarah Frey at 202-408-7442. Location: Holeman Lounge, National Press Club,13th Floor, 529 14th St. NW.

9:30 AM. The Park City Center for Public Policy will hold a news conference titled "Defending Cyberspace: Recommendations for Action". For more information, contact Jim Souby at 435-649-6980 x100 or jsouby at parkcitycenter dot org. Location: Lisagor Room, National Press Club,13th Floor, 529 14th St. NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a brown bag lunch titled "The Harmful Interference Standard". The speakers will be Michael Marcus (Marcus Spectrum Solutions), Mitchell Lazarus (Fletcher Heald & Hildreth), Rick Engelman (Sprint Nextel), and Dean Brenner (Qualcomm). RSVP to Tami Smith at tsmith07 at sidley dot com or 202-736-8257. Location: Sidley Austin, 1501 K St., NW.

6:00 - 8:15 PM. The DC Bar Association (DCBA) will host part two of a two part event titled "2008 IP Law Year in Review Series". The speakers will be Bradley Wright (Banner & Witcoff) and Eric Wright (Morgan & Finnegan). The price to attend ranges from $80 to $115. For more information, contact 202-626-3488. See, notice. The DCBA has a record of excluding persons from its events. The event qualifies for continuing legal education credits. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

Deadline for the Office of the U.S. Trade Representative (OUSTR) to submit its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). This annual report is required by 22 U.S.C. § 6951.

Deadline to submit initial comments to the Office of the U.S. Trade Representative (OUSTR) regarding the operation, effectiveness, and implementation of and compliance with trade agreements regarding telecommunications products and services, including the World Trade Organization (WTO) General Agreement on Trade in Services, the North American Free Trade Agreement (NAFTA), free trade agreements (FTAs) with Australia, Bahrain, Chile, Morocco, and Singapore, the Dominican Republic-Central America-United States FTAs. See, notice in the Federal Register, November 25, 2008, Vol. 73, No. 228, at Page 71707-71708.

The House may meet at 9:00 AM. See, Rep. Hoyer's schedule for week of December 8.

Deadline to submit comments to the Office of the U.S. Trade Representative (OUSTR) regarding the People's Republic of China's (PRC) complaint to the World Trade Organization (WTO) regarding Department of Commerce (DOC) anti-dumping and countervailing duty determinations and orders affecting imports from the PRC of steel pipe, tires, and other products. See, notice in the Federal Register, November 13, 2008, Vol. 73, No. 220, at Pages 67214-67215. In other WTO proceedings, the U.S., Japan, Taiwan, and other nations have complained to the WTO about the PRC's failure to protect intellectual property rights. See, story titled "US to Complain to WTO Regarding PR China's Failure to Protect IPR" in TLJ Daily E-Mail Alert No. 1,562, April 9, 2007, and story titled "US Requests WTO Dispute Settlement Panel Re PRC Failure to Protect IPR" in TLJ Daily E-Mail Alert No. 1,623, August 15, 2008. See also, the WTO's web page for DS362 and web page for DS363.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding draft FIPS-186-3 [125 pages in PDF] titled "Digital Signature Standard (DSS)". See also, notice in the Federal Register, November 12, 2008, Vol. 73, No. 219, at Pages 66842-66844.

Deadline to submit nominations to the National Telecommunications and Information Administration (NTIA) for members of the NTIA's Online Safety and Technology Working Group (OSTWG) for a fifteen month term to commence in January of 2009. See, notice in the Federal Register, November 21, 2008, Vol. 73, No. 226, at Pages 70624-70625. See also, story titled "NTIA Seeks Members for Online Safety and Technology Working Group" in TLJ Daily E-Mail Alert No. 1,863, November 25, 2008.

9:00 AM - 1:00 PM. The U.S. Patent and Trademark Office's (USPTO) National Medal of Technology and Innovation Nomination Evaluation Committee will hold a closed meeting. See, notice in the Federal Register, November 28, 2008, Vol. 73, No. 230, at Page 72453. Location: USPTO, 600 Dulany St., Alexandria, VA.

2:00 - 3:15 PM. The National Governors Association (NGA) and Alliance for Public Technology (APT) will webcast an event titled "State Efforts to Expand Broadband Access". The speakers will be Michael Ramage (Connected Tennessee) and Karen Jackson (state of Virginia). See, notice.

Deadline to submit comments to the National Science Foundation's (NSF) National Coordination Office for Networking Information Technology Research and Development in response to its Request for Information (RFI) regarding "promising game-changing ideas with the potential to reduce vulnerabilities to cyber exploitations by altering the cybersecurity landscape". See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60724-60726.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Inquiry (NOI) regarding management and oversight of the Universal Service Fund (USF). The FCC adopted this NOI on August 15, 2008 and released the text [17 pages in PDF] on September 12, 2008. It is FCC 08-189 in WC Docket No. 05-195. See, notice in the Federal Register, October 14, 2008, Vol. 73, No. 199, at Pages 60689-60695.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to the Notice of Proposed Rulemaking (NPRM) portion of its Memorandum Opinion and Order (MO&O) and NPRM regarding collecting and reporting of carrier service quality, customer satisfaction, and infrastructure and operating data. The FCC adopted and released this MO&O and NPRM [57 pages in PDF] on September 6, 2008. It is FCC 08-203 in WC Docket No. 08-190. See, notice in the Federal Register, October 15, 2008, Vol. 73, No. 200, at Pages 60997-61006. See also, story titled "FCC Grants Carriers Forbearance From ARMIS Reporting Rules" in TLJ Daily E-Mail Alert No. 1,822, September 8, 2008.

Deadline to submit initial comments to the Federal Communications Commission (FCC) regarding the National Telecommunications and Information Administration's (NTIA) petition for rulemaking [16 pages in PDF] requesting amendments to Part 87 of the FCC's Rules to allow use of the frequency 1090 MHz for runway vehicle identification and collision avoidance. See, Public Notice [3 pages in PDF]. This item is DA 08-2502 in RM 11503.

10:00 AM - 5:00 PM. The National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure will meet. See, notice in the Federal Register, November 13, 2008, Vol. 73, No. 220, at Page 67212. Location: NSF, Room 1235, 4201 Wilson Blvd., Arlington, VA.

12:00 - 1:30 PM. The DC Bar Association (DCBA) will host a panel discussion titled "CFIUS and FINSA: Comparisons With Other Countries' Investment Review Mechanisms". The speakers will be Johann Leaman (Department of Treasury), Michael Snarr (Baker Hostetler), Stephen Canner (U.S. Council for International Business), Matthew Edwards ( Department of Commerce). The price to attend ranges from $10 to $30. For more information, contact 202-626-3463. See, notice. The DCBA has a record of excluding persons from its events. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch titled "Results of the 2008 Internet Governance Forum (IGF) in India and End of the Presidential Administration Telecoms Issues". The speaker will be David Gross (Department of State). For more information, contact Susan O'Connell at susan dot o'connell at fcc dot gov or Troy Tanner at troy dot tanner at bingham dot com. RSVP by December 12 to Jennifer Ullman at Jennifer dot ullman at verizon dot com. Location: Verizon, 5th floor, Suite 400 West, 1300 I St., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petition for reconsideration [PDF] filed on November 17, 2008, by the National Association of Broadcasters (NAB) and the Association for Maximum Service Television in the FCC's proceeding titled "In the Matter of Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules" and numbered CS Docket No. 98-120. See, notice in the Federal Register, December 2, 2008, Vol. 73, No. 232, at Page 73327.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch for planning purposes. For more information, contact Tarah Grant at tsgrant hhlaw dot com or 703-610-6155 or Cathy Hilke at chilke at wileyrein dot com or 202-719-7418. RSVP to Christy Hammond at chammond at wileyrein dot com. Location: Wiley Rein, 10 East Conference Center, 1750 K St., NW.

Effective date of the U.S. Patent and Trademark Office's (USPTO) new rules governing the conduct of individuals registered to practice before the USPTO. These new rules include an annual patent practitioner maintenance fee. See, notice in the Federal Register, November 17, 2008, Vol. 73, No. 222, at Pages 67750-67759.