in that case. thus the departments claim liability standards in the davi case do not limit the term of its funding contract as highly misleading and that. the latitude given to the agenc has narrowed, the deviation between the department colleagu letter last october and the interpretation of the relevant civil rights statutes are large. the department may not think th supreme court interpretation of the statutes is protected enoug for the rights it issued here but it had no basis to fundamentally alter the meaning of those statutes in the name o enforcing them. it should be clear none of the statutes cited in that letter were passed with a child on child playground bully and even in mind. much less out of concern about the flagrant violations of constitutional rights by the school officials in dealing wit the bullying. that alone makes it extremely problematic to extend the statutes to cover the child on child conduct here.

i see that my time is running out so let me skip to the end. you know, the department discussion about a specific kin of conduct that would trigger remedial action is somewhat erroneous. harnessing the conduct may take many forms including verbal names, name-calling, graphic statements, etc.. but the supreme court has expressly disclaimed such conduct as a trigger for the school district liabilities. the courts must bear in mind th schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable amon adults noted in the davis case. expressed understandable you're going to have those kind of insults and banter and teasing etc. the damages are not available for those acts, even if the comments are differences in gender under title aye kyl six. rather in the context of the school on school, student on student harassment the damages are available only when the

behavior is so severe, pervasiv and objectively offensive that it denies equal access to the education and the deliberate indifference by the school district must be systemic not just respect individual instances. in the and i think it's important for us to recognize i our federal system there are some things left not just primarily but exclusively to state and local control. this is one of those things. it's time to with the school districts, principals and teachers to their jobs without being second guessed by folks i washington, d.c. often thousand miles away. only then can we to get into of the experiment our federal system provides and maybe they can come up with solutions yet envisioned here in washington, d.c.. >> thank you. we are not going to open to questions. i remind the commissioners keep your questions concise. if possible, indicate what panelist you are asking the question to and then we will have enough time for follow-ups hopefully.

commissioner yaki and gaziano. 66 what we just heard, but i want to go back to something that i think was best addressed to mr. am i year. i think one of the most, to be one of the most important factors in determining sort of why we are having this hearing and why i believe we need specific federal legislation protecting the lgbt youth has t do with the harm associated wit this kind of bullying behavior to the individuals in this grouping. could you elaborate a little bi more about this susceptibility and the vulnerability and especially young people in the

lgbt category who in terms of bullying and this kind of conduct it's important to draw out why it is the protection is necessary in these instances? >> many survey studies have looking at especially middle an high school boys and girls have found that those who are lesbian , gay or bisexual or those who have a history of same-sex attraction and behavio often appear to be not functioning as well, at least o average and many are functionin well but on average they look like they are doing worse than many of the other kids, and the often manifest higher levels of depressive symptoms of anxiety, they miss class more often, the skip school come the often engage in risky behavior, and that was one pattern that was

observed in research but then when they started asking about the kids experiences with the victimization and harassment in the school setting it turned ou that helped explain what a lot of the disparities. and so it seems that the experience being targeted for harassment and violence in the school setting leaves kids to have more psychological problem and to be afraid of school to perceive it as an unsafe place, and this often leads them to engage in more theaters that ar going to be detrimental to thei own well-being. it also appears to be the case that when questions have been asked about whether that teasin and harassment and violence wer specifically targeted at them because they were received by someone else to be lesbian, gay or bisexual, that is associated with a greater negative impact than other what might be called a routine teasing and harassmen and violence that isn't based o a particular aspect of the child 's identity.

>> i think it is important that we are not talking about the vulnerability that the child ha coming in. we are talking about a reaction that the child has to the environment that it is not as characterized as something abou teasing and saying things. this is a sevier -- i'm not saying this is for every single child who is gay. many of them are not out and nobody knows about it but when child or a new phase out or people identify him or her as being lgbt, they suffer from persistent chronic day in and day out victimization and think from the stress perspective require immense adaptation they are to sustain themselves in that environment. we have had adults tell us in the recent experiences that happened to them 20 years prior to this they still remember freshly about not being able to walk to school, having to chang

their route, having to people t walk different times of other children, missing a class, missing schools, so this isn't minor events or freedom of speech. and this is about making the environment complete the tolerable for these kids and that is why they suffer from these types of outcomes that i have described before. i just want to have one thing that too of the panelists said there isn't sufficient evidence and i think that is something that i strongly disagree with. there are many studies that hav looked at accumulation of studies, that is the look at what are the trends that showed the overcome any kind of problems in terms of implementation. other studies use their ability that is they represent the population of students come and if the studies show as i said before, incredibly strong evidence for number one, the

experience stress i described and never to, the evidence of the outcomes that come out of this as well as the evidence fo the mediating as we call it als experiences that is those experiences are responsible for those outcomes. estimate the chair recognizes the commissioner. >> thank you mr. chairman. this has been very informative. and i also thank the previous panel however they didn't answe the two questions i posed to them, and pursuant to the testimony of professor eastman, i am curious as to the extent o the provisions of civil rights based on a protected class, perpetrated by his school districts that would necessaril engender federal level but or federal jurisdiction. and to that extent i would repeat my question and would like to know if any of you have an answer to when there's been reliable data collected either

the approve the education, justice or any other entity has to the number of complaints of protected class harassment, whe that tracking began, with the number was when the tracking began, and what the number is now in terms of, again, deprivation of civil rights based on a protected class status related to harassment. does anyone have such data or know where we can find the data because we have the copious amounts of information in advance of this hearing from a number of people, and we appreciate that, but in going through the data we haven't bee able to access it. >> can we get an answer? any panelists? >> thank you. >> commissioner meyer aaberg? >> thank you, mr. chair. dr. meyer, i have next to me approximately 3,000 pages of

recent reports, peer review journal articles and book chapters which are already in the record as preceding and to which you have referred to indirectly these documents examine a range of issues related to the overall mental health of the lgbt population, the pervasiveness and the nuanced problems associated wit the peer-to-peer student violence, directed the central minority youth so many short an negative outcomes suffered by the targeted. to which you've testified. they come from institutions including harvard medical schoo for the university, ucla, uc-davis and many other reputable institutions. do you have an overall comment you can make to this commission about this body of scholarship

and the way we should give this scholarship in our deliberation? >> yes, i have over 8,000 pages the preferences i've provided a well as the articles i could identify are published in the per peer review journals it isn't easy to put an article ou there after it's been reviewed by an editor and other reviewer who are not necessarily friendl to the author. those articles went through ver severe critical review. in my mind, having reviewed man of those articles in particular in the area of youth the evidence is overwhelming on eac of the three elements required to show causal relationships between the environment and som kind of health outcomes and the are number one, you have to sho

the group in this case sexual minority youth experienced more number two, the experience more of the disorder is purported to be caused by the stress, and number three, that these are -- the reason for the increase in the rate of the disorder or those stressors. in this particular evidence, we have very, very strong evidence for each of those three elements , as i said before, using a variety of methods and examples committee for a lady o analytical approaches, and for many institutions and investigators in many different places. >> the chair recognizes the commissioner. >> i want to thank all of you because our time is limited i will direct my question to the former dean eastman because i

wanted you to elaborate on usin a mix sample from the recent letter to your colleagues to eliminate the point you made that the use of federal funding cannot be used as a pretext to prevent new legal standards. we heard from assistant secretary ali the only use funding or their power for sort of procedural issues and i woul certainly concede i think we al would concede that the federal government could potentially require data to be submitted to show that they are actually living up to the standards of the civil rights law. but the example that i would like you to applaud is on april 4th the office of civil rights sent a letter to college and universities seeming to insist that they have a preponderance of the record, preponderant of the evidence

standard in student sexual harassment disciplinary proceedings. the only argument i could see i the ocr leaders is this is the standard in title vii. to me it is profoundly troublin that they would borrow that standard where discovery is available, an employer has control over the supervisors to the university context where th students don't even have a righ to know who accused them, don't have a right to see the statements, don't have a right of discovery, but my question t you is does the ocr, regardless of who was right, whether it is good or bad, does ocr have the authority to read title ix as requiring colleges and universities, or is there any authority that ocr has to require colleges and universities to apply a preponderance of the evidence standard in student sexual harassment or rape allegations?

>> did not believe so, and i should clarify as well that i a here in my own capacity and not the former dean of the chapman university. we don't always speak with the same voice and in the universit in sure many involving the university's. >> no, they don't. and the federal government generally is not supposed to be intruding on local decisions unless they rise to a certain level that is the proportionality that comes unde the 14th amendment and the cour has also been very clear we can't use the spending power to accomplish things and we don't have other authority to accomplish but ocr seems to be doing is using the conditions o spending in an effort to obtain a regulatory regime that they could not do directly. the congress itself could not d directly much less ocr. now i will give you another mix sample from last october. the standard that the supreme court set out in the davis versus monroe county case in

1999, it is delivered in different. intentional conduct by the school officials themselves too that to a hostile the environment. that's the only time when it rises to the level of the federal actionable conduct. the department of education letter says schools are responsible for addressing harassing incidents about which it knows and acknowledges even lower than the deliberate indifference or reasonably should have known that is a standard that the supreme court expressed, expressly rejected i the davis case that that would adopt a somewhat negligent standard for school officials. and in rejecting that it said there should be a strong presumption in favor of deference to the school distric on how they respond to any of these kind of harassing conduct is. remember most of the conduct re cross is from the speech to the physical violence is already actionable under the state law and what have you. the notion that is sufficient t rice to the level of federal intervention with is rejected b the supreme court and another

significant case united states versus morrison so i think what the department here is doing is expanding through a spending hook a regulatory regime congress wouldn't have authorit to pass on its own. estimate and would ask a question of what the commissioner harriet, commissioner yaki and titus. before i ask my question i just want to ask members of the stuf and commissioners on the stage as much as possible to try to limit your movement. it's a little distracting and i is important for us to stay up here and not direct questions t the panel on lesson this open forum. although i know folks will have to get up at some point in understand that if you could do that with the least amount of disruption would be appreciated. professor, you mentioned in you comments, and sunday, that you did not want to see an expansio of coverage for the protection for the lgbt if i understand yo correctly because you didn't want to see what saw occurring. but isn't it true that he could

make that with salles argument for any effort to expand the protected class is in the past whether it was race, national origin, disability status, and should that be the standard by which we decide whether or not we are going to protect our citizens and residents? >> i think that it is when to depend on the specific situation . let me take the most dramatic example. that would be racial discrimination. there you have in the 50 years ago the situation where school systems and state governments were themselves deliberately discriminating on the basis of race. they were not going to change that policy abbas said the intervention of the federal government. and as it was developing was

also very unlikely that there was going to be very much back-and-forth once the federal government intervened and said you cannot engage in racial discrimination. that's very different in the situation now. you don't have a situation now where school districts are deliberately harassing or bullying students on the basis of sexual orientation. the problem is one of student o a student bullying and harassment, and there has been no showing here today that school districts are systematically and interested o not supportive of stopping that kind of bullying and harassment. the problem instead is one of line drawing. as i discussed in my statement and as has been discussed by th panel, that kind of nuanced lin

drawing is something we're reasonable people can differ, and where the people are going to draw the line differently depending on the local circumstances. and getting the federal government involved in saying that no, this is where here are our guidelines, here's where yo should draw the line, and one administration, predictably would be a source of controvers and would likely be changed whe is a liberal democratic administration is replaced by a conservative republican one. so i think that the whistle danger which is only one of the problems i have identified in this area for why the federal government shouldn't get involved and would actually be on helpful if it gets involved is a much more significant problem in this area than the school desegregation context. >> i will reserve my follow-up

question if we have time again was commissioner harriet to please ask a question. >> i'm not sure anyone is going to be about to answer my question, but you are probably my best shot on this one. the emphasis at the department' policy is on training and not s much punishment but kind of surprised me when i looked at the letter, the colleague lette repeatedly says punishing bullies is not enough, that there is a need to train. i understand that they provide some of that training, is that right? >> in different parts of the country the professional development work was the school staff, as we've done that for the entire district in the city of rochester and other places. >> the resource allocation the interests become a kind of training in such you provide it's like a daylong program and are you talking to teachers, students?

>> i'm happy to talk that the training work on the other hand that is actually not the reques that we have for action. we do not seek that level of what we ask for in terms of the state school improvement act an nondiscrimination protection is regarding taking a standard tha has been developed in a laboratory in the states to which my colleague referred and which is having a solid tory effect on the health and well-being of young people who are experiencing by promoting -- >> and asking whether you provide that training and what kind of training is to provide. to the districts across the country and the have resulted i fact in higher rates of intervention and the kind of behavior that currently, young people and we are very proud. >> in general, we leverage

private resources to make thing available. we recognize -- >> you sometimes charge -- >> i really feel like you are saying schools pay for resource that help them do a better job in degette times -- >> we are going to move on to another question. >> i appreciate the right to sa i have said yes, we do and on occasion charge but on the othe hand i would also point out the thing federal action would do i to set a floor of protection through policy language that ha been developed in the state's and is having a beneficial effect and we the district move on to the next level of implementation appropriate to their local area. they would then be responsible for reporting on the impact of their policy it is the action where the federal leadership could have a beneficial effect for young people who are suffering today. thank you. >> we will ask members of the body into please turn off your

cellphone. they've gone off several times. please, do that if you haven't already done so. the chair recognizes commissioner yaki. >> [inaudible] >> okay, commissioner titus. >> we have heard evidence from different ones of you in on the previous panel that technical assistance and teacher training developing, and i believe in policies and schools have all helped to lower the rate of bullying and the particular situations. most of the testimony though ha focused on what we do after the fact, after bullying or harassment occurs how we do wit the situation. i would like to take a step bac if you would help me. mr. clay stopped at the notion that the fiscal evidence compiled and presented by the top notch social scientists suggest that this is getting to be a more serious problem by saying maybe this technological development allows more people to report it. i don't really think that is th case. i think it is an increasing

problem, so i would like to tal about some of the societal conditions that have led to thi increase because i believe they are out there. maybe ms. bayrd can address that . >> in the recent years as the lgbt in this country is become more visible we have seen it become an increasing subject of debate. many of the members are teacher and school principals and the fact is when you see in the headline shows up in the hallways. now the problem is not the debate itself. it is the environment of hostility, the fact that there are legislative efforts to clam down on the speech related to lgbt people in our schools. where there is legislative language that prohibits the positive discussion, such will be in a public school and there is an effort today to pass such statute in the state of

tennessee. in that environment, it is very difficult to make it clear to the teachers they should intervene. we have seen specific concerns and the district of minnesota that the probe of its statutory language about any discussion b the school faculty of homosexuality stands in the way of effective response by adults to be here but clearly crosses the line into harmful behavior directed at young people. we want to be very clear about what we are here to discuss in the appropriate role of the government to set the minimum standard to which districts mus adhere. they must make it clear that th adults who run the schools have to protect all children including the basis of sexual orientation or gender identity. >> we will come back.

>> the point of what is relevan here is not just whether there has been an increase in the reported instances of harassmen on the basis of sexual orientation, but whether there has been an increase in the unresponsive mess among the local school districts, and i don't think that any of the statistics or the thousands of pages that have been submitted to the record here address that question. >> we will go to the commissioner yaki and the vice chair thernstrom and the individual delegated authority of staff director. >> thank you very much mr. chair . this is directed at ms. graves. one quick comment, we have hear a lot about the inability to have the right data and i would submit the part of why we are

here today is to try to gather that data. part of the challenge of course is as an unprotected class, agencies are not required to gather that kind of data to analyze. ms. graves, i wanted you to sor of answer some of the questions posed by mr. eastman and some o my colleagues over having to do with the reach of the federal government, the ability of the 14th amendment and the power of congress to enact the law to create a particular class, to d the sorts of things that would allow us not to have to tap dance on the head of an opinion here were grabbed jurisdiction on this, but what is your view of the 14th amendment the power under that to reach a protected

class? >> thank you. i agree there is a need for additional data as well and one of our recommendations is that there is the additional data in the civil rights data collectio that takes into account sexual orientation which it currently does not. in the complaints made by mr. eastman, i think some of the questions that he raised have really already been answered by the supreme court in jurisprudence. there's no question of protection under the 14th amendment for sex discrimination . there's no question that there is protection for sexual orientation. ..

>> okay, the chair recognizes vice chair. >> let me address this question to mr. clegg if he wants to come in as well. i am, and, by the way, i second the questions about the data, but i am concerned about free speech issue, and, of course, what we want to try depends on specifically what is being said and the age of the student that's being involved and it's

different if it's a 2nd grader than someone in their junior year of high school in terms of what you want and the line of speech, but one of my concerns is that it seems to be possible in an effort to get rid of ugly speech of which there is a lot between students, that that effort can have a ripple effect in the school such that students become nervous about saying controversial things on political matters, let's say where there may be a disagreement where sensibilities could be ruffled or you're talking about basic values

toward the home and a student may be nervous about bringing those values to the classroom or to discussions with other children, and i wondered if you wanted to add and respond to that concern that i have. >> i think it's a very serious concern, and it's something that was said earlier with the discussion of how gays and lesbians are more sensible to stress of harassment of speech. the school's response must be to support the gay sexuality. that all the sudden is taken as conduct that leads to harassment that invokes federal intervention and training programs and what have you. it's a very dangerous slope to head down, so on such a

contested issue as this to tell people that you if you engage in such speech that some people determine as harassment, that leads to federal intervention that leads to training programs leading to positive responses of school districts responding to the conduct rather than opposing it, what have you. that's the dangerous slippery slope. we see it happen in a number of cases in the trial court levels, and i think it's a serious concern. as i understand it, there's more discussion of that in the next panel. it's a serious concern and one we should be cautious about allowing of an overreach of the federal government of this issue to get the balance right. it's not something that's going to come from washington, d.c.. >> [inaudible] >> [inaudible] sure.

>> i agree with your concern and agree with what mr. eastman said, and we've had discussions of different large animals in the room. let's be honest, i think part of what's going on here, part of what's being pushed is an agenda that seeks to use the power of the federal government to vilify and marginnize people who believe that gay sex is a sin, and they don't want that kind of thought to go unpunnished. >> what i'm saying is that this is really -- it should be treated no differently than mary beth tinker when she wore her black arm band in des moines. there were lots of veterans in that community, lots of children of soldiers who died in vietnam

or who were serving in vietnam. they were extremely upset. they were incredibly impacted emotionally by seeing the black arm bands, but we can't take away mary beth's right to wear the arm bands and safe -- same in 166, the freedom -- 1966, the freedom rides demanding equality. it upset people. it's something the government maybe didn't agree with, but their freedom got the message. we can't stomp out those messages as well, and that's really what's at issue here to use the government to stamp out thoughts and beliefs and speech with which the government disagrees. that's a very dangerous game because it's easy to do that when it's the speech you favor, but it opens the door when it comes time when it's your speech that's targeted, and we have to

stand up for everybody because if we don't, then your speech is next. >> thank you. we're going to -- >> [inaudible] >> correct a quote? >> go ahead, professor. >> i think he quoted my testimony which is, he misunderstood it. what i was talking about is not about the saying that it is okay or not okay to be gay, and, in fact, nothing in my testimony i think that other people here is about speech at all. what i was talking about is about school supporting affirmatively a gay student, not by taking sides on if it's okay or not, but by the types of evidence i quoted about being injured, about physical assault, about rape, about being threatened, about having the property threatened and threatened with a knife or a weapon. these are not like what was referred to before and want to

think that it's another thing. i'm totally in agreement with them about the speech part of it, but we're talking about very severe harm that is conducted, and that is where i think, and i agree, that the school has to have a role in ensuring students have an opportunity to learn. >> thank you, professor meyer. we'll have a question from the authority staff director followed by commissioner harrien and i'll indicate who comes after that. >> thank you. this is for professor meyer. i thank you for providing us with a great deal of reading material. in both of your statements you addressed the idea that identity-based bullying has a greater impact on teens than jr. general forms of bullying.

you were addressing lbg students. does the same hold true base on ramming, -- rage, religion, or gender? >> one of the stoided i -- studies i cited looked at the other factors. the comparison was between kids bullied based on their sex orientation versus kids bullied for reasons not related to identity, and there was the difference. my recollection of that study is that they did find other -- that being targeted as a member of a particular group, racial group, for example, is more -- is associated with greater harm than targeted for what we call routine sort of violence,

>> thank you. >> my question is also for meyer. i just barely started to look at the literature, but so far i'm thinking there might be a tension here. on the one hand, there's the i'm okay, you're okay, everybody's okay, or almost everybody's okay in the line of literature, and i'm thinking of the work of dr. williams, and if i understand him, he is looking at the data, this, i assume very similar data to what you're looking at, and his point is that if you take the bisexual community out of the equation, you really don't run across higher mental health issues or higher suicide rates either. the rates are about the same as

the heterosexual community, and from that he concludes that this is just a normal sexual variant, and it's all very normal, and everything's fine. on the other hand, there is the literature that i believe you have contributed to that concludes that the lesbian and gay communities do have higher rates of suicide and mental health issues. can you reconcile that for me? is there something that you can point me to that would help me sort that out? >> yeah, i think professor meyers can speak directly to that. >> yeah, as i said, there's different studies and doing different thing when you look at different problems. what was talking about is there are in fact areas in the country where gays are more accepted. they have a less of those stressors that i was

describing. he works at cornell university area with gay youth there, and he has shown they are doing fine which is consistent with what i said and others said that when the environment is supportive, when the parents, when the schools are sportive, these kids do well. in terms of defining suicide and in particular what you quoted, is it true -- it is true that bisexual youth have more problems than gay identified youth, but both bisexual and guy youth have much more experience of suicide ideation as well as serious suicide attempts than heterosexual youth, and this is shown in many, many studies. like i said, this is the evidence we'd like to see where it takes an accumulation of studies and looks at what the panel shows, and this is going

to be published soon by marshall and it shows many studies. >> my study shows suicide rates were the same and it suggests the bisexual community is different. we're dealing with a complex problem here, more complex than the complex of bullying leads to suicide. >> that is wrong. that was not defining. the defining is that both gay, please yesian and bisexuals have more than bisexual peers, but they have more than the others, but they both have more than heterosexuals. >> i have to interrupt you. commissioner is followed by commissioner yaki. >> this is a question to

ms. byards. is there a case of training students to hold particular views, i would be against that for the particular reasons that you outlined in your testimony. forced professions are to be resisted at every turn. they shouldn't be the manifest cation of the -- manifestation of the government or private parties for that matter, so i couldn't agree with you more, nor would i disagree with the notion that if thrp an effort to get -- this were an effort to get rid of ugly speech, we should turn away and run away as far as and

as fast as we could because the government has no business in trying to outlaw ugly speech no matter how offensive provided it's not a precursor to ugly, damaging action. ms. byard, could you talk a little bit about the training that we've heard so much about? discuss the extent to which it forces students to hold or to manifest particular views or it is an effort to rid the public's fear of ugly speech. >> i just want to say one thing first. it's hard to know what training

people are referring to in part because districts that have antibullying policies that specifically address sexual ore orientation seek professional development opportunities from a wide range of places such as -- >> just comment on the whatever training you offer -- >> sure. >> in this regard. >> the purpose of training, for example, work that we did actually in partnership with the adl and the city of new york -- >> who? >> the antidefamation league were among the partners what provided district trainings through the city of new york, trainings designed to prepare school staff to respond effectively to the kinds of behaviors that could have a debtmental -- detrimental effect on student life. as i said before, what we found

is these trainings over time, tracking the participants, actually had a good effect in terms of the ways in which those school staff responded to things happening in their schools, but i would note very, very clearly and firmly that all of this is about an issue of behavior, not belief. we are talking about efforts to ensure that schools as entities effectively act to deal with the hostile school environment that lgbc students face. we do not need to think that the student is in imminent danger of taking their life to agree that that student is worthy of equal protection. i would say that the most important thing here is that there is significant commonground on the need to address the violence and harassment that young people face. i was proud to be on panels with

the head of the christian educators on this topic. i submit ugly speech including fagot or dike do not constitute bullying or harassment. i want to be clear about there. there is a context and what emerged at the state level is having a good effect in schools for bullying and harassment for separate questions includes the concept that the student has a reasonable fear of physical harm as a result of what they are facing, and even the word as ugly as fagot or dike because i do not want us to lose sight about what we're actually talking about has to be used in a context where it produces those expectation in the student in order to constitute bullying or to constitute harassment. >> thank you, thank you. >> the chair recognizes commissioner titus.

>> thank you. i was talking earlier about one of the conditions that led to the increase in bullying, but other things have been said, so i'll just leave that. i get the impression that some of the members of the panel that establishing a federal policy against harassment or bullying with somehow have a chilling effect on what students can say when they go to school about politics or about religion, and it will have a negative impact on local school policy, and yet allowing the states to do it, which seems to be the argument the federal government doesn't do it, the states will, passing those laws doesn't seem to have that negative effect on children or school districts, and i just don't quite get that why it would make a difference. furthermore, i want to make that you site the tinker case, but that's a case where the system worked. the first amendment was protected. it was not popular, but the individual was protected. what makes you think the system

would work then and it wouldn't work now? >> well, actually, the problem was the system now is that the school officials are actually not following the clearly established law. if you look in my paper, there's cases just from recent years where you have a student in california, for example, who had a bible verse referencing homo sexuality not in a way that people appreciate printed on a t-shirt, and he was banned and discriminated against not just by his peer, but by the actual government apparatus, the government officials themselves inflicting that type of harassment and intimidation on him. you have students who -- >> the local school board did that? that wasn't a national intervention? >> well, that's exactly right. what i'm saying is though that this problem is pervasive and ongoing that there's a constant

problem of harassment and intimidation of students of faith when they express sentimentses that may disagree with official school orthodox in favor of, for example, homo sexuality is when the training happens and the teachers are there and the students receive various instruction and training, they are taught that their beliefs, what they believe is wrong, and they are intimidated and ha rased into not wanting to express their beliefs, and if this is not based upon conjecture, these are cases we deal with on a daily basis. >> the chair recognizes commissioner. >> i want to use one of the examples in your testimony. i don't know whether it was -- i think you had two examples where a student wanted to wear a shirt

deemed offensive to the message that the school was trying to convey, and the day of silence message that the school was trying to convey, and i might disagree with some people who argue that the schools ought not to teach morality or values. i actually think it's quite important for the schools to teach morality and values including the western value of tolerance, but what seemed problematic about the school district that prohibited the student from wearing that shirt is that one, it violated the first amendment, that's an important value too, and number two, that doesn't teach the student real tolerance. real tolerance that i want to be taught is the kind of tolerance that allows defense, and if that is a real world problem that the school districts don't understand how to teach tolerance, i think it's much

more likely, and i would like mr. clegg to answer this, much more likely that we can straighten them out at the local level, and explain to them both what the first amendment requires and what true toller lance is about that i want -- tolerance is about that i want taught, but if the federal government is involved, they revert to zero tolerance policy and they hide behind their more resistance to teaching proper tolerance. is that consistent with y'all's explay mages? >> what i see in my practice is day after day you have school districts out of fear for loss of funding or whatever it may be, that they have to go around and stamp out any particular dissenting speech lest it lead to, nip it in the bud, lest it lead to sort of feelings,

unwanted feelings towards a particular student, so the problem that we have is not one of lack of tolerance. the tolerance that we need, the value that we need is that the constitution and the first amendment protect all people allow free and open debate on controversial topics, and the government can't put its thumb on the scale of one side or the other. it's okay if the decision said in the spring court said, it's okay to teach uncontroversial values like being kind to your neighbor and the constitution is a good thing. we love america, and american exceptionalism and things of that nature, but what's not okay is to try to intimidate students into not expressing their beliefs even when the government doesn't agree with those

messages, and in this case, it's about intimidating and harassing students who express religious sentiments. that's an ongoing sport that happens in school districts today. they intimidate today students who are engaging in religious speech, and we need more tolerance of that, not more clamping down. >> i agree with what the co-panelist just said now. again, this is an area, you know, as we're learning more and more this morning that has a lot of difficult line drawing issues in it. everybody seems to agree that those lines are best drawn by local governments. i continue to hear nothing that suggests that local school boards are indifferent to drawing those lines in the right place. i hear nothing that suggests

that the federal government is going to play a helpful role in getting those lines drawn in the right place, and i continue to think that the federal government's involvement will actually make matters worse because it's much more difficult for the federal government to draw these nuanced lines on the basis of local conditions and what was happening in the school, what the student actually said, all of that, much more difficult for the federal government to design a policy that's going to be sensitive to all of that than leaving it to the local schools. the chair recognizes commissioner yaki. >> thank you very much. i'm somewhat confused by the discussion over the last 15 minutes because based on what i have heard, if we had this debate in 1963, we'd be talking about whether or not we should give equal rights to african-americans in the

country. the idea that speech and conduct are not separate is well settled. they are completely separate. the idea that a group of guys can sit around in white robes and burn a cross and say bad things to each other in a private thing, okay, they can do that. they can't go and do it outside a black church or do it inside a black store owner's location. this is -- we are not talking about the same thing. this first amendment discussion in some ways is really a red herring in terms of the speech conduct separation that is well-settled doctrine in american constitutional law. i understand what you're saying. i am someone who was pretty much a first amendment absolutist. all those cases, tinker, all those cases, but the difference is, the difference is the tings

of yelling fire and causing a stampede and a panic. there are consequences to speech that's aimed at conduct, and i think what i want to hear -- we've been talking about this a lot, and i think the testimony from mr. herik is illuminating, but i want them to explain again. it has resinated, i don't know why it hasn't, but the fact is we're not talking about someone who just casually says that i just hate blank, blanks. that doesn't cause these problems for young people. can you elaborate a little? it's not the isolated person who walks down the street that someone says i hate blankety blank. i can't say the words. it's one of the things i can't even say them, but, could you talk about what is -- i guess,

what is bully? what is the impact of bullying on the psyche, on the emotional defenses of a young person that is so different that is why we are talking about it here today because i think somehow people are missing this. we're racking this up around the american flag, but the american flag is the 14th amendment as well. >> can i answer? well, yes, what we're talking about is chirp and youth who aren't simply having a reasoned discussion or disagreeing about a philosophical or religious point. what we're talking about is kids who are feeling that their safety -- that they are not safe. they are feeling that they are going to be subjected to physical violence, and, in fact, sometimes have been subjected to physical violence, and that this is something that pervades their life and often something not associated with a single

perpetrator, but associated with multiple members of their peer group who are harassing them and teasing them in a merciless way on an ongoing basis, and, you know, as professor meyer said, these things are called stressors, and in the social scientific sense is they require the individual to respond, and we know that people do what we -- the term we use is coping when someone feels they have the resources needed to respond to stressor. we all face stressors all the time. the problem occurs when people feel they don't have the necessary resources to deal with these stressor, and that's where we end up having this experience where people end up having negative consequences, and so what we see in the school situation is that you have kids who probably could deal with, you know, an occasional teasing or an even name calling or something like that, but this is something that ends up being per

pervasive and something that confronts them on a daily basis, and that requires huge amounts of psychological resources to respond to it, requires social support, requires assistance from others and afternoon what we see in research is kids don't have that. not only do they experience the widespread harassment, teasing, and brutality, but they have no support. teachers are not stopping it from happening, other authorities don't stop it. they feel very much like they are isolated. they are on the outs. the world is against them, and, in fact, they are right in a sense in their subjective world it is largely against them. that's what we see when we talk about these very negative outcomes. >> one point of understanding and talking about stigma is the social context for this, so for a christian kid to display, to

show attitude, supported by his community around him or her is not the same as for a gay kid who is not supported within this community, and who feels that they are subject to disrespect and disdain and hatred. the context matters here a lot, and the context is the stigma that vowndz the person. in the united states, being christian is not a devalued social identity. the evidence is that i look for evidence. i don't see evidence that christian kids are harassed, attempt suicide, that they are thrown out of homes for christianity, bullied by their peers because they are christian. i don't see that? i totally share your frustration because i hear from the other

side about speech which we all are in agreement about. this is not about speech. i think we've said it many, many times, and i don't know hoe else to say -- how else to say it. this is about people's lives. >> the chair recognizes commissioner -- [inaudible] >> i think the question is best directed towards professorrest man -- professor eastman. i think this is something the panelists agree want to address. the first is a jurisdictional standards, then whether or not in terms of remedial et cay sigh such standards imnate from sitfederal, state, or local school district, and then third, presumably you get through first two, what is the standard that should be applied, and when we talk about harassment, what i

see in the jurisprudence seems as if the harassment standards evolved or emanated from the private sector. they are publicble to public sector employment, but it's employment. is that, in fact, the right standard? even in public employment to be had, when we have in terms of school of certain imperatives, look at new hampshire, the supreme court has recognized that we hold institutions of higher learn, for example, to a different first amendment standard. we want to encourage the free flow of ideas. if certain types of speech, even within a certain group, and i seldom use that term, are prohibited, as much as we want to do so, does that impede the free flow of ideas?

do you find in your litigation a different, not necessarily heightened, but a different standard applied in the educational environments? >> well, what i will say is the educational environment is the key place for ideas in exchange of various -- [inaudible] view appointments on a wide range of topics. one of the things that disturbs me about the testimony is that they think -- [inaudible] the feel -- [inaudible] which is that someone in the cloud is so upset about what is said that it's such an emotional response interimly that we have to shut down the speaker. we don't shut down speakers

because there happens to be a reaction or even a deep negative reaction in the hearer, and what i'll say and turn it over to professor eastman is this that the supreme court was very clear we have to be careful not to strange l the free mind at its source, and that's in our educational system. freedom of speech is something that is so important that we're going to tolerate things that we wouldn't want to tolerate necessarily in our own living room, but we have to in the schools because that's where the speech rights are beginning, that's where students learn it. there's obviously things that are age inappropriate, for students not to discuss, certain sexual topics, students shouldn't be exposed to talking about it at very young ages with elementary school and kippedder garten should have sex talks,

but for the most part, students need to talk amongst themselves in respectful ways during noninstructional time that do not disresult the educational environment. that's what the law is. it's very clear. >> commissioner titus will have the last question. >> it's interesting to see how they overlap. when students wear shirts that say homo sexual content is a sin. it's immoral or the conduct is against nature and a number of students wear that, and then somebody pushes one of the students who is self-identified as gay and less lesbian. that results in the normal sanction by the school officials to the bully who did the pushing, who crossed over the line in the violence, but the message is then take p as part of the -- taken as part of the hostile environment that ups the ante on

what the school system's response has to be, and that's where the dangerous starts that vice chairman talked about. the danger into speech sanction or speech censorship because that becomes part of the backdrop that creates hostile environments. it's not a discrimination by school districts that we're treating the conduct differently. that's covered by the civil right statutes, but the consequence of that broader message that might be there leading to the hostile environment claim provides the connection with speech, and that's the danger. >> thank you. commissioner titus, last question. >> thank you. mr. clegg, i go back to you, but i can't help it. you argue one of the reasons we don't node a federal policy is the schools don't have entrenched policies against sexual minority students. i'd like to ask ms. byard about

turning a blind eye or neutrality policies. aren't they part of the problem? >> [inaudible] >> if that were true and schools responded when conduct crossed the line into physical violence, we would not be here today. that is not what is happening. schools are not responding in a way sufficient to protect the educational access physical well-being and emotional well-being of people facing violence and harassment every day. the conduct we are talking about as bullying involves the definition, involves the fear of physical harm and harassment that we talk about is severe pervasive, and objectively offensive in ways that keep you from enjoying the benefits of going to school. i would like to note from the amount of time we have spent

talking about religious issues here that the definition for which we advocate includes religion among its protected categories. we have no interest in chilling speech. we want good schools where our students learn in a way where they can participate and compete in a diverse society and where everyone's child is afforded the same respect and opportunity, but what we are here to discuss is the necessary federal response that would set a bottom line standard for safety, for antiharassment policies that protect young people on the basis of race, religion, national origin, disability, sexual orientation, gender, and gender identity, and i would not wish to withhold that equal protection from any child

because i want it for my own. >> thank you. thank you all, it is now 12:11. the panel has concluded. we appreciate the time, effort, and information you shared with us. thank you. we will be back and starting at one o'clock sharp so i ask all panelists for the next session and commissioners to be back at 12:55 because we start promptly at one o'clock, thank you. [inaudible conversations] [inaudible conversations] >> next on c-span2, a hearing on the federal communications commission. garyroughhead talk about the naval committee and then bullying in schools.

>> a house committee looked at operations and rules at the federal. following her announcement earlier this week that she's leaving the fcc to take a job as a comcast executive. they discussed rules restricting commissioners to meet except in a public forum. also with the $39 proposed merger of at&t and t-mobile

joining, they suggest how the fcc should handle such cases. greg waldon chairs the hering. >> as i told the chairman, and as i think i shared with each commissioner and as we have discussed and agreed late as, i think it was yesterday or the day before, that the discussion about reforming process is not and should not become an exercise in partisanship or serve as a cloak to attack present on past commissions or present or past commissioners. that's not what we're about here. as i'm sure everyone will notice, we have four witness chairs filled today in light of commissioner baker's announcement wednesday. i'd like to thank her for her many years of public service not only as a commissioner, but

helping us complete the dtv transition while serving as head of the ntia. it was no small undertaking, and she has done good service to the country, and i wish her well in her new role. turning to today's topic. it is our responsibility to review how independent agencies to whom we dell delegated authority and over which we have jurisdiction conduct the public's business. at times, the fcc succumbed to practices to jeopardize public confidence. while some have taken steps to improve processes, we witnessed how process and procedures from one chairman can change dramatically under another. one is open and transparent, the next is closed and dysfunction gnat. the time is right to codify best practices to ensure consistency from issue to issue and commission to commission. many colleagues have worked on

reform ideas in the past, and some have proposed changes in bill form today. we will consider those as well. now, to kick things off here, here's seven items to think about. first, the fcc could be required to start new rule making proceedings with a notice of inquiry rather than a notice of proposed rule making. they presume regulation is needed. the fcc could examine the relative markets, services, and technologies when regulation is appropriatings the f ck -- fcc is unlikely to gather useful information. the fcc does not always publish the text of public comment before adopting final rules and providing specific testing gives a better product. rules should not be difficult if there's general need and the fcc

started with a notice of inquiry. third, timelines of matters would be helpful. parties in the public should have a sense of when resolution will come. fourth, the fcc makes information available about what draft items circulate before the commissioners. the fcc could be required to provide additional information such as a list of all unfinished items of the commission, the date they were initiated, current status, and expected date of completion, a report card if you will. fifth, a bipartisan majority of commissioners could, other than the chairman, could be allowed to initiate items to prevent a chairman from stopping consensus items. six, the president's memorandum for the head of departments and agency with job creation requires executive agencies to conduct cost benefit analysis before adopting regulations. the memorandum does not apply, however, to independent agencies like the fcc.

we can remedy that by requiring the fcc to identify actual consumer harm and conduct economic, market, and coast benefit analysis before adopting new regulation. seven, the review standards are vague and susceptible to abuse. parties with pending transactions should not feel pressure to accept voluntary conditions on the deal or to curtail advocacy in other proceedings. these concerns are neither new nor of concern to only one party. indeed, my good friend from michigan observed in a march 2000 hearing there is, and i quote, "great need to address and reform the way the fcc handles merger reviews." these are a remarkable exercise in arrogance and the behavior of the commission by reasons delay in other matters approaches what might be defined as not just or gansz, but extortion." the concerns raised then have

been increasing over the last decade. to address this, the fcc could be prohibited from adopting conditions unless they are narrowly tailored to transactions of specific harm. prevent the fcc from using transactions to commence industry-wide changes it could not otherwise adopt. the fcc could be required to show statutory authority outside the act. these suggestions are simply meant as conversation starters. i look forward to additional suggestions from my colleagues on the subcommittee, full committee, the public, the commissioners themselves, and the chairmanment on that note, i yield back the balance of my time and would recognize the ranking member on the subcommittee, ms. eschew, from california. >> thank you, mr. chairman, and welcome, everybody, it's good to see you. today's hearing is -- it's an

important opportunity to hear from the fcc chairman and the commissioners on what is already working well because there are things working well, and where there are opportunities to improve the federal communications commission. we should work together as a committee to subject ideas and suggestions to healthy scrutiny and determine what reforms can be embraced to better serve the public good. that's why we are all here, and i think sometimes that gets lost in the complexity and the layers of things. we are here to serve the public good. under chairman's tenure, the commission has taken several key steps to increase openness, transparency, and greater interaction with the public. the spectrum dash board, the new rules, the growing use of social media like twitter and facebook

are just a few ways that the fcc has become more responsive to the needs of consumers and businesses, but there's also much more that can be done, and i welcome steps that will ensure that the commission can operate as a modern 21st century agency. earlier this year, i introduced the fcc collaboration act with our colleagues, representatives doyle, and this is a simple bipartisan reform measure which would modify the current rules which prohibit more than two commissioners from talking to each other outside an official public meeting. now, why is this important? in an agency that deals with highly technical issues like spectrum and universal service, fcc commissioners should be able to collaborate and benefit from the years of experience that each one brings to the table. we should move this bill forward in a timely manner and get it

done. i welcome examining other ideas as well like the fcc commissioner's technical resource ens hainsment -- enhancement act, the bill introduced in the last congress to allow each commissioner to appoint an electrical engineer or a computer scientist to their staff similar to the collaboration act, i'm open to look at other ways to ensure each commissioner is equipped to evaluate the complex technology and telecommunication issues that the fcc is faced with today. what concerns me is proposals which diminish the commission's ability to protect the public interest and to preserve competition in the telecommunications marketplace. they are a big role to play in ensuring broadband is universally deployed and the market for voice and data service is actually

competitive. to stay in touch with a rapidly changing industry, the fcc, i think, should make it part of its core mission to visit companies both small and large. last month, commissioner kopps joined me in my congressional district visiting several companies headquartered in silicon valley. we learned a great deal. i extend the invitation to other commissioners because i believe these meetings with experts are central to understanding the issues you work on every day, so thank you again for being here today. i really look forward to this hearing, and i also look forward to hearing your testimony and your frsh thinking. i yield back the balance of my time. >> thank you, and we thank you all for coming, and now we're going to recess for an hour, unfortunately. [laughter] there is a series of votes and it could take an hour, so let's

plan to just reconvene at 10:40, and with that, we stand in recess. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> i'm going to call the subcommittee on communications and technology back to order. i thank my colleague from

illinois from his curtesy in yielding to mr. wax man who has another engagement at 11:30, so out of our normal sequence on opening statements and go back to the democratic side of the aisle, and mr. waxman, you're recognized for five minutes. >> thank you, mr. chairman, and i thank you for the curtesy. i'd like to welcome the chairman kopps and clyburn. we know how much goes into preparing to testify, and we appreciate your participation. this is not new to the committee. "the fcc was criticized for a slow pace of institutional reform, handling of the universal service, use of antitrust merger review authority in completing merger

reviews, and its imposition of mergers, and today's hearing take us back to the future revisit the same issues. the chairman should be commended for his significant efforts and commitment to improving agency operations in boosting employee moral. he's improved information sharing with other commissioners and the public. the agency including more details with proposed rules and notices of proposed rule making, makes adopted rules available to the public more quickly, and has revamped its expore they rules to maintain openness and transparency. these echts were -- efforts were made by the bipartisanship of the fellow commissioners. the fcc is a much better place to work according to the 2010opm employee survey.

the fcc was the most improved agency in the federal government. i also want to commend subcommittee chairman walden for looking at it from a nonpartisan way. he has committed to explore propose process reforms in detail before we proceed towards possible legislation. if the committee does develop legislation regarding fcc reform, we should be guided by a few basic questions about each proposed changed to ensure that we are promoting smart regulation. first, the proposed change created undo burden on the fcc when we imposed rhymes of any kind. we have to be weary of burdening the agency with requirements. are we underminding flexibility to act quickly and efficiently in the public's interest? we can end up promoting slower and not faster, and third, are

we requiring additional process for valid reasons and not propose hurdles for their own sake. are we making procedural changes to acement to address -- attempt to address outcomes on which we don't degree? if he we limit the agency related to mergers, are we willing to accept certain mergers can be rejected outright? some view conditions as unfair while others might see them as critical tradeoffs that allow transactions that might otherwise fail to go forward, and timely, why the fcc? are we imposing process reforms on the fcc that should apply to all federal agencies? if not, what's the basis for treating the fcc differently? i look forward to hearing the panel address the issues and receiving their advice on how to improve the fccment i look forward to working with you, mr. chairman, and i yield back.

any other members wish me to yield to them? if not, i yield back my time. >> i look forward to continuing our discussions on these matters, and i appreciate your comments on the principles. ..

comcast, nbc took nearly e. levin. and so i think in their rapid the falling market it sometimes can create havoc for the market and deadlines for the fcc actio coupled with ensuring reviews handled in a transparent way is important without endless streams of non-merger specific conditions attached i think would provide future certainty. so the bottom line i think the agency could improve and i hope we can move forward. thank you. >> the gentleman from illinois mr. shimkus. >> thank you, mr. chairman. first of all we want to thank commissioner baker for her time and hopefully we can expeditiously get hurt replaced on the commission. i know that is all everyone's desire. chairman, we appreciate the movement on the reform, something that with the new technology and the new age that's important and we know there are steps being made in that direction, and i have

enjoyed my time working with commissioner copps, and of course and that eshoo and on the sunshine bill it just doesn't make sense. maybe three can't speak to get there but to have to not be able to speak of the commissioners, chairman maldon and i spoke on the floor. i think it's something we can move expeditiously of course i'm not the chairman so i will defer to his wisdom and guidance, but based upon the last election, even in the cycle i said, you know, i think the public is tired of comprehensive big bills. we ought to move things we can move. clearly, concisely in defense. and maybe we will be there at the and if other things can't be agreed upon, but i've been the chairman has agreed to take a look at what we are doing and hopefully merge with other things that are not also in agreement and produce a good bill, so with that i thank him

and i will probably have some questions on that if i'm not on the plane and i yield back. >> i recognize the gentle lady from tennessee ms. blackburn. >> thank you mr. chairman and welcome to all of you. procedurally i do have some questions about licensed transfers and decency complaints and fcc voting procedures. but i think the biggest problem that i have and what i want to discuss with you today is what i see as you're overreached, going beyond your statutory authority, and you do it without consequence, and the chairman and i have discussed our disagreement on that neutrality and regulation of the internet, but i think that there is also overreach to other things like mcdata roaming and agencies scheme to socialize our mobile networks, and i think that as you look at privacy, and we wil talk about this a little bit today that the fcc is moving into areas where it should not be with issues like privacy.

so, i am one of those that thinks that it's time to maybe bring the agency in a little bit and have a discussion about what you're structure should look like. so thank you for being here to purchase a paid and i yield back. >> mr. basse or mr. gingrey, do you have any comments? >> mr. chairman, if i could make a brief comment i want to thank all four of you for being here today, and i'm not sure whether i'm going to be able to stay long enough to ask the question but i was hoping that the chairman would comment on this gps spectrum issue as to whether or not it would be appropriate for that decision to be one that the commission itself makes rather than to be done through the rule. there are significant potential issues associated with this which need to be aired, and i am hopeful that the commission will have a process that will allow for both sides in this

debate to have their views considered and assure the proper decision is made by the agency, i mean by the commission. thank you, mr. chairman. >> the gentleman yields back the time and the time has been yielded back. sam on the other. with that i would like to welcome the chairman of the federal communications commission is jankowski we appreciate your testimony and work of reform and we welcome your comments this morning. thank you. >> thank you, chairman, ranking member eshoo, for holding this hearing on the process reform. the copper. to benefit all americans, grow the economy, create jobs and enhance our competitiveness and unleash innovation. on my first day as the chairman like told the staff what we can achieve these goals depends on how our agency works. that's why the process ceasing operations are important as the chairman said and the prairies

how the sec does business. our approach to the reform rests on a number of principles . efficiency and fiscal responsibility, accountability and transparency, reliant on facts and data come on the power of technology to improve agency operations and on the benefits of collaboration. to drive the reform efforts i appointed a special counsel for the reform immediately after my confirmation, and i hired a new managing director with experience running a multibillion-dollar private sector to help lead the reform effort. my fellow commissioners have been vital partners in this effort, commissioner copps made the reform a priority when he was acting chairman commissioner mcdowell has raised issues with me on which we have taken positive action and commissioner clyburn has taken the lead and helped us make progress on the process and relationships with the state's. in the past two years working together we've increased efficiency, increased transparency, collaboration and increased the effectiveness. i'm proud of our progress in buying pleased in the past two

years 95% of the commission action has been unanimous and bipartisan. testimony includes many examples of the reforms implemented the last two years and as john said we shouldn't confuse activity with accomplishments, so i would like to use my limited time to highlight the results of the reform effort. in the last two years, we have reduced the time between the vote on the commission's decision and its public release from an average of 14 days to three days and one day in most cases. we've increased the number of notices of proposed rulemaking that published the text of the proposed rules from 38% to 85%. we have eliminated many outdated regulations. two months ago we identified 27 unnecessary data collection requirements to be eliminated and just yesterday the commission identified and eliminated an additional five data collection requirements. we've acted on over 95% of the transactions within the 180 a shock. with respect to major transactions we cut down to review time by more than 100 days.

we've reduced the broadcaster application backlog by 40% and satellite application backlog by 89%. we've broken down internal silos at the fcc and increased internal communication. we reformed the video really service to reform that is already save taxpayers about $250 million. we are saving millions by harnessing technology to improve the agency's operations including by consolidating multiple license systems and reducing the data centers. a leading commentator said the commission has gone from one of the worst to one of the best in its use of on-line tools to serve the public and all stakeholders. just yesterday we launched the sec.gov after receiving and responding to broaden put on the launch we have launched a public spectrum - word a few weeks ago we had the first joint bald post in history with all commissioners focusing on the importance of the reforming of the universal service fund. we have held more than 85 public forums with active participation from commissioners and for the first time have made staff led

public workshops the routine part of the commission work. we have adopted the reforms of the process to increase transparency, reforms of the voting process to increase efficiency and reforms of the filing process to increase effectiveness. the national broadband plan has been lauded as quote, a model for other nations and praised for its process and substance. the government white survey of the federal employees identifie the fcc as the most improved place to work in the federal government. i thank mr. waxman for mentioning that and and just last week the fcc and the team that worked on a plan was nominated for the service to american medal, the most prestigious independent award for america's civil service. i'm proud of what we've achieved . the commission is working effectively, we are moving in the right direction and i think my fellow commissioners as well as the employees who've been instrumental in making this possible as well as the members of this committee who have over the years and in my time offere a very constructive suggestions to improve the process. of course there is more we can

do to improve the performance and i am committed to continuin efforts of reform. making the fcc work is importan because the fcc's mission is important and matters to the economy, global competitiveness and quality-of-life of all americans. i look forward to working with the subcommittee on these important issues and i thank you and look forward to your questions. >> thank you, chairman. we appreciate it and we will get the high-technology ringing device over there. [laughter] we also are streaming if you notice on the video screens here. all of your data is streaming over your face. [laughter] part of what happens in repackaging. [laughter] you don't get a right. so, great to be the technology -- we will see if it quits. anyway, we want to go now to the senior member of the federal communications commission by a length of service i will approach it that way. we appreciate your service in the country and federal communications commission and

we welcome your testimony. >> thank you. good morning ranking member eshoo and members of the subcommittee for holding this meeting on the fcc reform. and for inviting me to share some thoughts with you. as the chairman genachwoski has explained and many of you already noted, we have had the real and measurable accomplishments towards the reform under the current commission, and i'm proud of those. i know there are many other ideas and proposals we will want to discuss this morning and i am happy to comment on any of them but in my brief time now i want to mention three ideas i find especially important. first and foremost, please allow the commissioners to talk to one another. that seems a strange request in a town fuelled by dialogue and debate when an sec world when three or more serve together outside of the meeting we must get lockjaw. we cannot mention one iota of policy or substance for one idea of resolving a crisis or suggest any alternative path for addressing a problem. this has not only irked me for

years but troubled me greatly because it is extending its football team in and prohibiting the players from talking to one another. that is the fcc in the closed meeting rule, the silent howell . the first thing i want to do this morning is to applaud the congressman and congressman john shimkus for the introduction of the fcc collaboration active. the proposed legislation is a modest common sense much needed reform to modify the closed meeting rule that prohibits more than the two commissioners from talking to one another unless it is in a public meeting. i've spoken about the need for this reform for many years before the subcommittee and i'm hopeful this will be the year when the legislation is finally enacted. i would see first hand for the pernicious unintended consequences of the prohibition of the collaboration among colleagues for the time and decision making, discouraging collegiality and shortchanging consumers in the public interest in what is presented as cabinet officials and judges and even the cardinals of the catholic church have the opportunity for face-to-face discussion before making

important issues. i see no reason why the fcc commissioners should not have the same opportunity to reason together especially when violence has this legislation is with specific safeguards designed to preserve transparency if it is good enough for the congress, the courts and other catholic church a lot to be good enough for the fcc. reaching agreement on complex issues defending before us is difficult enough in the best of circumstances but is infinitely more so when we cannot even talk of them among ourselves to each of the five commissioners brings to the fcc special experience isn't unique talent we cannot fully leverage with the communicating directly with one another. this act is a prudent balanced proposal that recognizes the benefits of proving the commission to its business collectively while maintaining full transparency of the process. pnac and what in my mind would constitute as major a reform of commission procedures as any that i can contemplate. it doesn't just protect the public interest it advances the

public interest and its number one on my list. my second suggestion is let's get the fcc out of washington and on the road more frequently . the full commissioner we live too much in an isolated inside the beltway culture we see the usual players and make the same speeches every year and attended the same functions and defense and that is fine to a point but if it comes at the expense of flooding america's the the fcc, and letting the fcc see america it is not so good. our in the deliberations would surely benefit from taking the fcc outside washington, d.c. and put on their roads it can hear from average americans. the commission of an open meeting each month and i have seen no reason why for a few months out of the year we couldn't conductor were open meetings in places like benton harbor or boston or austin or the mountain view and in communication to every american stakeholder and each of us affected and so many important ways by the media policy, spectrum allocations and universal service just to name

a big ticket item on the agenda . the idea here is not just people receive the commission but that the commission would see the people and gain a greater understanding of the impact of the decisions of american consumers. it's better communications and after all, the communications is our middle name. third, and this is related to what i just suggested, we need to encourage more input on to the deliberations by what i have called our non-traditional stakeholders. although we hear often sometimes every day from the big interests with the armies of lawyers are lobbyists we hear less from everyone else all of those consumers and citizens who don't have a lobbyist or lawyer to represent them but nevertheless have to live with the consequences of what we do in washington. i devoted considerable time during my years of the commission to open our doors to the panoply of american stakeholders including minorities, roel americans and the disabilities community, native americans, consumer advocacy organizations and also educational institutions. we were designed to be a consumer protection agency. let's get the skinny from those

who consume what you and i do in washington, d.c.. another area we need to see more progress is in the federal , state, local, governor relationship and i believe more of this kind of interaction was envisioned and encouraged by the telecommunications act of 1996. as we embark upon a formidable challenge of reading the universal service compensation it is vitally important we are sharing data, sharing ideas and sharing responsibility with our colleagues of all levels of government. i commend the chairman for moving us forward on this regard and my colleague commissioner clyburn for the excellent work she has done to reinvigorate our partnership with the states as the federal state joint board we need always to be thinking about how to build the experiences and knowledge of existence at all levels of government. let me say that this present commission has been many an impressive and important strides to increase transparency come to work collaboratively with all stakeholders and workshops both inside and outside of the nation's capital. i commend him for the progress that has been made. my point is that this work is

never done and there is much more we can still do. there are years and decades of inside the beltway to make up for and face demands some fundamental reorientation of the commission. we can talk about deadlines, the npr and those are all relevant matters to discuss. but above them all is giving consumers and citizens' confidence that their voices are being heard, their suggestions are giving credence and knowing that that commission exists to serve the public interest the term that by moly account appears 112 times in the telecommunications act. that is our lone star and we need to keep our fix on that loan store every minute of every day. thank you for convening this conversation and i look forward to your comments and suggestions for the betterment of the fcc. >> mr. copps, thank you as always for your comments and suggestions. i would go now to the commissioner mcdowell we welcome you and appreciate your thoughtful addition to this discussion and welcome your

testimony. >> a thank you, chairman walden and ranking member state. i seabrook over their my former law clerk and now that your my overseer i'm hoping i was a nice boss. [laughter] as you know, congress treated the sec in 1934 almost 77 years ago. in that year the group signed a contract for an eye-popping $35,000 a year. donald duck made his movie debut. the average new house costs less than $6,000. the entire federal budget was only $6.5 billion the gallon of gas costs 10%. my how the times have changed. although a few amendments have been made to the wall of the commission and that the commission operates under since then many of the bigotry legacies from 1934 remain in place. the technology we take for granted in today's communications marketplace or unimaginable to even the most creative of the science-fiction

writers on existing mandates written. against this backdrop is sitting for this committee to examine ways to reform the fcc to make it more efficient and relevant to the modern reality. on the breed in the philosophy congress should tell us what to do we have not the other way around but given the solicitation of suggestions i will start by raising several statutory changes to improve before moving on to possible procedural reforms. but consumers want to have the freedom to enjoy their favorite applications and content were the jews. the fiber or the radio wave is a consequence of most consumers so long as the market supply of products and services satisfy demand. legacy kosachev fer con sharks however have created market distorting legal stovepipes based on the regulatory history of particular delivery platforms. while consumers demand functionality and technology

converge regulators and business people alike are forced to make decisions based on whether a business model to title i, two, three, six or none of the above. as congress contemplates the reform, it may want to consider adopting the approach that is more focused on preventing the concentration and abuses of market power that result in consumer harm. furthermore, ideas from outside of the commission also deserve serious consideration to refer instance, randy mechem the president of the foundation has called for building on the regulatory of section 10 and 11 of the telecom act of 1996 by adding and evidence. resumption during a periodic regulatory reviews that would enhance the likelihood of the commission reaching the regulatory decision to get with respect to the procedural ideas almost two and a half years ago i said to my colleagues and active chairman mike copps a public letter detailing some ideas to improve the agency's effectiveness. she and i agree on many reform ideas such as modernizing the modernization of the cumbersome and outdated sunshine rules

that are more of them from discussing the commission business outside of the public meeting. later in july of to those of mine, after julius genachowski became a colleague as well, i sent him an updated letter with additional ideas and suggestions within existing statutory constructs. time does not allow me to enumerate all of them, so i have attached the letters as part of my testimony and respectfully request to be included in the record. i'm delighted to report some reforms have already been implemented. many steel or ill-advised commission action items are waiting votes contain what we call the circulation risk have been weeded out. the backlog of 1.4 million broadcast and decency compounds the with effect from their face and the sec relies more on the electronic and telecommunications rather than paper deliveries. going forward i hope other suggestions will be carried out as well. i long called for a full public operational financial and ethics of it of everything

connected to the fcc including the universal service at mr. the company also known. that the erroneous payment rate and high cost of the loan has been far too high and we need to make fundamental changes to fix the problem. chairman genachwoski has made progress on ensuring the notice of proposed rulemaking contain the actual proposed rules. i applaud his efforts and i would encourage improving the process further by codifying the requirement in the rules. the commission should include proper market power analysis to justify the new rules and the notice of proposed rulemaking as the market power analysis it is not appropriate the fcc should explain why. when regulated entities are under scrutiny for the alleged violations of rules such as broadcasters being investigated for airing indecent material often they are not notified in a timely manner of the investigation or the effect on other matters before the commission such as license renewals. similarly entities are not always informed of when they have been cleared of wrongdoing . more transparency and better communication and the real

indelibly be a matter of the appropriate due process but simple good government as well. the collegiality efficiency we could improve the productivity of all commissioner's office is by routinely sharing options, memorandum prepared by the talented public servants. all commissioners should be able to benefit from the same advice and analysis enjoyed by the many german over the years and perhaps we could call this the new commissioner left behind program. [laughter] many more ideas or mound and i look forward to discussing all suggestions and ideas with you and thank you again for the effort and the. i look forward to your questions. >> commissioner, thank you for your suggestions and now for the final witness to turn to commissioner clyburn we appreciate the time taken to engage in this matter with me and others on the committee and look forward to your testimony. >> thank you mr. chairman for that and for inviting me to put savitt in today's hearing. it is my pleasure to see you, a ranking member eshoo and the other members of the subcommittee. i respectfully request this time my full statement be

included in the record. >> without objection. >> my colleagues and i work in an environment with many of moving parts as with many federal agencies there are checks and balances in place and the regulations and the decisions we consider and adopt to see for no consideration and incredible scrutiny. the commission staff works diligently on each item with the object of delivering the finished product that is cogent , precise and effective if. such complaints are often do not lend itself to rocket docket's and express reviews yet the commission has worked hard to streamline its processing of many items. of the proceedings however we require significant examination that takes time and an incredible amount of staff resources. thus, our consideration of many rulemaking and adjudications to endure over weeks, months and in some instances years. part of the reason we took some time is because of our robust

and all-inclusive public comment mechanisms. the commission since to any and all comers petitioners from adverse parties from interested participants, the public and so one. some criticism about the sec being sealed off from the public are inaccurate i believe and i am proud of our process and the number of public comments that stem from it. we have made huge strides putting an enhanced public space on the commission under the chairman genachowski's leadership. to rebut the sec.gov, our external advisory committee, public forums and the sec workshops we welcome come expecting quite frankly need leases and opinions from outside of our walls to provide feedback, criticism and counsel . this is definitely not your grandfather's at ccp regarding the much maligned sunshine rules, have a particular interest in potential taylor

made revisions to the way in which we interact. the introduction of a chart 1009 would be a significant improvement in our delivered of process, and i thank ms. speed, mr. shimkus and mr. doyle for this bill. recently the national body representing the state commissioner praised the introduction of this legislation and offered its support for it. allow me to bring to your attention the fact that they did note the need for one minor change to the legislation in order to improve its effectiveness with respect to the total commissioners participation on the joint board and conference. the joint board and the joint conference have federal and state representation and each is involved in the commission policy-making process with respect to the subject matter focus in the areas of universal service, jurisdiction subornation and advanced services. three or more commissioners may

not such participate in a joint border conference meeting unless the meeting is open to the public and has been properly. currently federal commissioners must take turns participating in our interest in meetings and conference calls this is made it difficult for the constructive and now the executive efficient deliberation when it comes to a joint board recommended physicians. they make the same observations and i join in support of this request that h.r. 1009 include language to extend the proposed sunshine act exemption to cover the sec commissioners who participate on the joint board and conference. i believe that it is critical the fcc collaborate with states on the telecommunications broadband policy. it's my belief that the understanding of local issues must be fully considered and state commissioners know these needs best.

when i came to the fcc, my primary goal was to improve the communication and collaboration between our agency and the state. fortunately chairman genachowski also made the position of the chair of all of the joint board's and joint conference. with his support, i believe we have revitalized and strengthen the relationship with the states through these bodies. thank you again mr. chairman, for another opportunity to appear before the committee. i hope that today's discussion not and will highlight in the areas of concern that the members of this committee may have been a process systems, agency rules or any other method of practice that we use. spearman thank you commissioner clyburn we appreciate your testimony and that of your colleagues. i want to start with a question regarding the commission's agenda. anderson and the chairman agency ceo controls the commission's agenda. i have a question though that a chairman could prevent the fcc

from producing important issues even when a bipartisan majority of the commissioners believe that moving forward is necessary. deily a bipartisan majority of the commissioners other than the chairman of should be allowed to work with the agency staff to move an item? >> we will start with the chairman. >> it's been important to me from the start as i mentioned, and i appreciate the collaborative way that all of us have worked together. i can't imagine a situation -- >> i'm going to kind of short here for a series of questions, but again, this isn't about view and it's not about this commission. this is things have changed. they can change again. so the question is should you be able to call to be allowed to work with the agency staff to move an item, should the other commissioners?

>> i think the statute now is correct on this. i think in the organization needs a chief executive responsible for the prompt -- >> commissioner copps? i like your answer. can you turn that microphone on ? [laughter] >> yes i do. i believe the three commissioners should have the power to call, to delete an item from the agenda and edit any and all documents. >> commissioner mcdowell? >> this is other were in chapter lunesta copps mc dowell alliance. [laughter] >> i agree with my colleague to the right of me ironically. yes, in all seriousness of the fall of 08 we could have resolved a lot of the questions on a universal service and compensation because they were four commissioners, to republicans, to democrats in agreement and it's time to not move the item.

>> thank you peery disconnect with of the sum total of our experiences though, and this is in that regard i have had healthy engagement and at this time i don't see any need for any revisions in that matter. >> okay. >> could i add one other thing? >> short. >> 95% of what we do is unanimous. historically this hasn't been a problem except for as far as i can tell one anomaly. i personally think that changing the statute to address one of moly when it hasn't been a problem i can't imagine the instance when it wouldn't be three commissioners for is that we couldn't work out together. >> commissioner copps? >> this reminds me of the story from history when abraham lincoln was meeting with his cabinet to discuss it very sensitive issue and he took a vote and then he voted and said

the himes have it. [laughter] that's why he would ask the commissioners, the chairman and those who have been there through other times. commissioner mcdowell, you mentioned in your written testimony the fcc should include proper market analyses to justify rules or explain why such analyses are inappropriate . could you elaborate on your views and would you agree the measures for the regulators should be built into the process for adopting the new regulation so the public can monitor whether the benefits were regulation were actually paid out? >> one assumes if a new rule was going to go in place is because something isn't working in the market so why is there not something working in the market so a market power analysis and proper market analysis is warranted. there may be good reason why the market power analysis isn't needed but the commission should be required to explain why its monitoring the market power analysis. >> do you care to comment on that? just in the two volumes that? >> that's one argument i suppose the other side of the

argument is that why we have a notice of comment and the ability of all parties to explain the end of vintages and disadvantages of the situation. i think we should be giving basic economic analysis. i think all of the cases that i have seen under this commission we probably have done more of that than we have done on any of the other commissions i have been a part of. whether you put that in a package and call with market power analysis and differentiated from all that other stuff i don't know. i would probably vote to have a little more flexibility than that. >> commissioner clyburn? >> i would be open to this type of engagement and conversations but to my knowledge a lot of this whether it is labeled or not is happening in the bureau. so i think we are having the benefit of some of the engagement even if it is not called back. >> chairman jeneane beck genachwoski? >> as a general matter this is what we do. they require us to consider all arguments presented to us and

we certainly get arguments about market issues affirmatively something we can and should do. there are cases when the reasons are different. if it is public safety regulation, disabilities, etc. it doesn't make sense but in many situations what we're doing is designed it would make sense we do it as a matter of practice and they would require us to do. >> my time is expired i will turn to my colleague from ms. california. >> thank you mr. chairman and to the chairman of the commission and the commissioners for your testimony and your ideas. i want to congratulate you for what you've already done and it shouldn't be skipped over and it took a look at your new website less might. i think it's hot. [laughter] i really do. i recommend it to others as well. first of all, is their anyone on the panel today that doesn't

support the legislation for improving the decision making process of the agency? the legislation that myself and mr. shimkus and mr. baliles had introduced? >> i would just emphasize two things if i could. one is the importance of -- >> first tell me is on a. >> as long as it preserves the transparency goal underlining the sunshine act originally and that is the intention of the statute and i think the joint board issue is one where i would certainly support a measure that would take care of that. it is a conflict between the two statutes that doesn't make sense. >> in california we had the brown act for years and years that has i think served the public interest very well, so i appreciate that. but it's good to know that there is a across-the-board support. to the chairman genachowski come in response to my questions from the february 16th meeting you indicated that a proceeding

whether the fcc special access rules are ensuring that the rates and the terms and conditions for the special access are just and reasonable. are there procedural changes in the way that the fcc operates that could speed up this process? >> i'm not sure there are. we've heard many complaints about the special access area. we take it very seriously and when we started looking into it , in my time there we realized the date of the commission had is really provided no basis to make a judgment or support actions. but we are in the middle of a process now to collect the data that we need. i think that is preceding on schedule. i will go back and look at whether the changes would be helpful to us but i think that we have the procedure will flexibility to do what we need to do. >> again, to the chairman, you understand that there is often resistance from the industry to provide the data that is

necessary to fulfill the commission's goal of serving the public interest. what are the road blocks to obtain this data and how can we assist you in ensuring you have the data that is needed to preserve the competition and consumer choice? >> it is an important topic because we are all committed to having the fcc in aging of facts and data, you can't be without data. what we have tried to do over the last two years is the health of the committee is look both at all data collection requirements that are outdated that can be eliminated and also make sure we are getting the data that we need in this new world. and so by removing the data, we are showing i think i hope establishing credibility that we are focused only on what we really need to do. >> do you need us to help you do that? >> i'm not sure we need rule changes of your interest in making sure we have the data that we need and supporting us

in this effort is helpful. >> does the commission collect statistics on the wireless network quality and reliability ? for instance, do you have data relative to the draft calls? >> on the drop calls we actually build and use distributed to begin to get information from the consumers about -- >> presently, so you're just starting that. >> we are just starting. it is an area that we should look at. >> commissioner copps mentioned in his testimony the value of holding field hearings, and i know that there were to examine the comcast in b.c. merger. do you plan to hold a similar field hearings? at&t, t-mobile? >> in general we have done a number of field hearings and we

will continue to do them. we will be in nebraska on the universal service reform. >> how you plan to do them on this gigantic merger? >> we haven't announced hearing schedules so if i could get back to you. ceramica i would urge you to do it because the public needs to come to these hearings and understand what is at stake for them and ask you questions about what is going into this decision. they are the ones that are going to be affected by it. here in the beltway it's like gossip city, who said what and how fast it's going and how slow and why and all that and it's sexy inside the beltway. but for people out there, they want to know how is this going to affect my rate? these are becoming expensive utility bills, so it is important for you to hit the road. thank you, mr. chairman. >> one quick question, there's nothing in the statute that includes you from doing the

public hearings you talked about, right? you don't need that from last. >> i not think so. >> i would go now to mr. shimkus. >> thank you. i'm bouncing between the two committee hearings, one with the epa on the rules and regulations, so i want to make sure that this is on process reform, so sometimes we will get jumble into what is going on and think the process reform may solve it but we really want to stay on what can we do to transparency and the like. so commissioner clyburn i appreciate the example and we did get an e-mail on extending that and for the life of me i think that's a good idea and something should be concluded, but they gave me the question for the commissioners, and chairman, you can weigh and if you like but the commissioner specifically highlighted our

piece of legislation as being beneficial. can you give an example of how that would be helpful? especially commissioner copps, you've been around a long time, you probably have enough stories like we did prior year so give us some real world applications on why you think this would be helpful. >> for example with the commissioner clyburn was talking about we will have a conference call and commissioner clyburn, commissioner baker and myself are each members of the board. we cannot be on at the same time, so say commissioner baker is on for the first ten minutes he and we say you have to get off, commissioner copps is going on and it goes back and forth so you really interfere with and retard the discussions but even going beyond that, i just think there is something to be gained by the synergy of having five individual people chosin with five different skill sets fitted by the white house, confirmed by the senate

to come to the commission and just having them sit down in a room together and i think some of the personality conflicts we have had in the previous commissions probably and i don't want to over dramatize them or anything like that but i think things would have gone better and then more easily resolved in the spirit of compromise and collegiality with the issues had we been able to do that. i just don't understand why we are not able to do that. >> i agree so to go back to that example with the universal service compensation to republicans, two democrats agreed on some fundamental reform it would have been nice for all five of us to have gotten in a room or all three of us to try to figure out why that wasn't moving so i think it would speed up the process. i think it would be more

efficient. commissioner copps said it would breed more collegiality and keep in mind our work product ultimately is public and appealed to the courts if someone doesn't like it. so transparency is still there. >> commissioner clyburn. >> coming from a joint board perspective, you've already heard how inefficient the process, the current process -- >> don't worry about those. >> those usually mean something . to give the public some assurances or more comfort in this, when we talk about the joint board and the joint conference experience, the recommended decision from these bodies are not final. they are recommended decisions and presented to the fcc and then at that point there is a notice from the process of noticing the goes into place and then and only then after that is exhausted that comes to

the fcc for decisions so these are not final. recommended decisions are not final decisions. it goes through process so the public should you some comfort, but this disconnect that we have is something that does not lend itself for a good exchange . >> chairman, would you want to weigh in? >> i agree that the joint board situation is a problem that should be fixed. >> what we just go on another process reform and it's kind of the age-old argument that people raise capital, assume risk, need some certainty whether to be there to produce or to withdraw from the market. some people proposed issues like shot clocks as far as time wise minimum reaper go after the close of the comment cycle. anyone want to talk about that? and i only have 34 seconds, so if you could do it quickly. spinnaker think in general they can be an effective management tool that one of the tools we

use i think preserving flexibility is important but it can be effective management, too. >> commissioner copps? >> -- such as the company we are looking at now do mandate that we take action. again i think this commission is doing a good job generally on the score so i don't know that we would have to mandate it unless it's gotten a lot worse. i agree the business needs certainty but i think that comes more from the substance of the rules and the process and having the clear ideas of the rules they're going to operate under. is to make it to you, chairman. >> what's your from the others. >> it can be helpful what long had a king. i agree we need to preserve some flexibility. sometimes we get the shot clock from congress with the telecom act of 96 but internally we probably could use more.

>> in principle i am not at this agreement with the shot clocks but they should be treated as guidelines and not be allowed to rule the process. >> thank you. it's good to see you. i yield back my time. >> we are now going to go to dr. christensen for the next five minute round. >> thank you, mr. chairman, and welcome to the other commissioners. from the outset, i want to make it clear i know that my question regarding the review of the mergers transactions is an issue of authority and want to be cannot one of progress. it's clear they created a strong public interest mandate for the fcc as commissioner copps noted the words public-interest appear 112 times in the communications act . the fcc has clear statutory authority under the act to conduct the public interest evaluation of the mergers and tracks fact delete transactions and there's great leeway for the agency to fulfill the public interest duties. commissioner macdonald, i wanted to pass whether you

agree with the statement made by commissioner baker in march that the fcc has come and i'm quoting here, clear statutory obligation to closely scrutinize transactions and reject those the violate the communications act fcc rules or fail to serve the public interest. >> yes i agree with that >> does everyone agree with that statement? >> yes. >> chairman genachwoski, why do you believe the fcc should have jurisdiction over transactions? why wouldn't the doj or the ftc review be sufficient? >> the communications act makes it clear that the fcc must approve transfers of communications has licensed and find that you're in the public interest in order to do so. communication is something of importance to every american it's 1/6 of our economy. it involves complex technical

issues where an expert agency is important. other goals and values and the communications act and that has been the system for many years and it's important to make it work effectively. >> some have complained that reviewing some of the mergers the ftc has proposed that are not transaction specific for example during the review of the comcast nbc universal transaction the conditions involving broadband adoption and diversity were imposed. so do all of you believe those conditions are merger specific? chairman? >> yes and if i could add one word, the statute requires the fcc to make a determination that a transaction is in the public interest and so it's not surprising that companies as they come to the ftc filed for approval make the case for why a transaction is in the public interest and point to the specific public interest benefits with respect to some of the benefits given the

potential harm of some transactions it becomes important to make sure the commitments are binding. >> commissioner copps? >> i agree very much that transactions are perfectly -- conditions of transactions are in the purview of the commission. i know there is an argument on whether they should be company specific products of industry-wide rulemaking but that is a hard line to draw some of these transactions like comcast nbc are paradigm shifting. they changed the whole industry . so it's very difficult to make a clear division like some people would have us make. >> commissioner mcdowell? >> i do not believe the conditions should be imposed but are not specific. in that particular transaction there were a winter commitments that were not merger specific. it might be evidence of a good corporate citizenship or evidence that they wanted to

try to sweeten the deal for the fcc approval but some of them had nothing to do with the merger itself. >> commissioner clyburn? >> i agree in terms of the public interest standard that the fcc is basically mandated to do that and we are the experts in this space and not only required to look at the competition which is solely the doj purview but we have to look at the public interest and that includes a number of benefits as well as harm and we have to weigh those and conditions are sometimes more warranted to answer those. >> let me just ask a question of mr. chairman genachowski in my last few minutes. you talked about holding a public forum on the various to broadband and then bill doud and we commend all of you for the forums that you have held

and these are important to the successful implementation of the territories like the u.s. virgin islands, so are there some barriers you identified to the broadband bailout and technical assistance the fcc would provide to overcome those barriers mr. chairman? >> there are barriers. some of the barriers we see are barriers that slowdown infrastructure companies why your and wireless from building a quickly that had cost. we took some steps in this area of around our site and shot clock to come back to the concept we adopted one. we think -- we took steps in this hearing with respect to the attachments which would help reduce barriers and for the cost of broadband bailout. we are interested in hearing from the industry stakeholders on other barriers would be appropriate to address one that's been brought to our attention the challenges of around coal locating antennas on existing towers and unnecessary delays in that

process so that's something we are looking into now. >> my time is up mr. chairman. >> i appreciate questions and answers and turn to the gentlelady from tennessee ms. blackburn. >> thank you mr. chairman. commissioner mcdowell mentioned an article by randolph and mr. chairman, i would like to submit that article for the record. i agree with the commissioner i read it and thought it was insightful. >> without objection. >> thank you. i'm going to try to speed my questions up. you all have been to the patient. chairman genachwoski, a lot to ask you, looking at the process you followed on the net neutrality i want to ask about a "fortune magazine" article that you have affirmed in that article 2 different times net neutrality rules were already in effect. so are these rules in effect? >> i think i may have been making the point that on a bipartisan basis before i got

to the commission of the commission had been forced net neutrality rules against companies or rules part of the problem? >> i hate to interrupt you but i think what the questioner -- the reporter said that means there or laws. these are rules that have been written and are in effect in your response was yes. what is interesting to me is that the fcc hasn't published the order in the federal register yet. so my question would be what kind of justification could there be for a six month wage or delay unless the fcc is seeking further delay and legitimate roles by the court or by congress? >> and understand your question now. the rules are not in effect did require publication and the federal register and have to go through in a wendi process and paperwork production. these are not our process these . >> yes, i agree and i think it would be appropriate to get our policies published in the

federal register before we start implementing new rules especially since the impact the rules are going to have hour in my opinion going to be damaging to the innovation and growth of the internet. let's look at the comcast nbc you order. it states comcast nbc shall comply with all relevant fcc rules adopted by the commission and in dhaka to 09191, and i am referring to the fcc's open internet order and it's unique application this specific on the merger conditions. does the fcc believe that even if a court overturns the decision that comcast and comcast alone will still be subject to these extradition judicial rule and where does the fcc get that authority? >> the answer is yes, and the authority comes from the language obliging us to make a

public-interest determination and approving the transaction. this was a merger specific enforceable commitment that came out of the fact this was a merger between the largest broadband company in the country, one of the largest contant company, we heard from the many business as saying in specific harm from this transaction could be favoritism of some content over others. >> as the fcc have a responsibility to answer to the article 3 court but by all refuse -- review the fcc decision? >> of course. >> okay. let's talk about copyright's to the copyright protection, i supported and i support when during cooperative efforts among the isp and the content community to address infringement come and given the language specifically in 107 and 111, of your open internet order what is your can

the fcc get to the isp that they can enter into voluntary agreements with copyright owners to address these entrenchments on line without running afoul of the net neutrality order? >> my recollection is that the order says that the much that, that the rules apply only to the local content, not on local content like stolen intellectual property, and that voluntary agreements to make enforcement of the ip wally effective is something that isn't prohibited by the rules. >> i have to tell you think would be helpful to provide the company's assurances that the hit reasonable discretion to implement steps to address copyright infringement, and i hope you will do that. i've only got 19 seconds left. i did have another question

about broadband pricing, but i will submit that for -- >> we are going to do a second round. >> i have a plan that is going to leave without me. they promised to do that if i'm not there. [laughter] thank you, mr. share. >> we will get an answer from each commissioner. thank you i yield back. >> we will now go to the of the side of the aisle, the chairman of emeritus of the energy commerce committee mr. dingell. >> mr. chairman, thank you for your courtesy and the recommendation. i want to thank my good friend from pennsylvania. many courtesies i have had. thank you. >> welcome to the commission. ladies and gentlemen, i want to express some distress at the deily and publication of the commission's open internet order in the federal register. i understand will clearly so that this delay is more appropriately attributed to the office of management and budget than to the fcc.

moreover i wish to hope for the record the order was adopted on december 21, 2010 that orders and the text was released to the public two days later on december 23. and i want to commend the commission for this display of transparency. there is another type of deily that deprives the public of the through understanding of the commission decisions, and it does i think afford a marvelous opportunity. this is the deily that can occur between the time when the commission about the report order and the date on which the text of that report and order is released to the public. this enables the staff to make revisions in the dark of the night. it enables petitioners to seek and obtain tweaks in the agency language. it is a decision making that is to the charge that it is

potentially the source of perhaps dishonest decision making that ought not exist at the commission. this type of delay has been the subject of this committee's attention in the past. towns the chairman and i were discussing yesterday, some 20 years ago, in may of 1991i engaged in an exchange of letters with the then commission chairman, and i would ask unanimous consent that the copies of that correspondence would be entered at this point in the record. >> without objection, so ordered. >> with this history i am going to direct this question to you, mr. chairman. and i am going to ask you if you would please do exactly what i asked the chairman sikes to do in a familiar time. would you please provide this committee with a list of committees of the commission's decisions where the text of the decision was released more than

30 days after the commission announced its decision together with the best explanation that it can make for the delay beginning on january 1st, 2010 what you do that for us please? .. >> especially in do of all of our desires to improve the

transparency of the commission and this committee's ability to conduct rigorous oversight. now, in the case of decisions whose release is delayed for 30 days or more, does the commission commit at this time to provide this committee with a written explanation of the delay and projected date for the release? >> yes. >> now, i want to make it clear, we have to make a selection here between two situations. the first of which is where the commission releases the decision, and there is -- there is a delay between the time that the matter is then made final. there also is a situation, and this i know afflicts the commission substantially, and that is that you've said things

over to the office of management budget which dually forgets that you are an independent agency as a congress, and insists that these matters be held up over whatever qualm the administration might have in the matter. members of the commission, i thank you, and mr. chairman, i thank you your curtesy to me and yield my time. >> i thank you for your questions and willingness to improve the process at the fcc. i turn to the gentleman from florida, mr. stearns for five minutes. >> thank you. ms. genachowski, a question for you. how many applications are currently pending before the commission? >> that's a number i don't have in my head. >> can you guess, just a

approximate range? >> when we do financial disclosure, we have a range. there's many small ones -- the number is in the thousands, not in the tens. >> do you have staff behind you that might know? that's what they are paid for. they're texts somebody now. >> we'll have an answer within five minutes. [laughter] >> the other question is how many of these are more than six months old? >> that's another question i can't answer off the top of my head. >> how many are more than two years old? five years old? are any over two years old? >> i think it's possible. >> any over five years you think? is that possible? >> i don't know that it's possible. >> okay. we've heard that parties with a transaction before the fcc sometimes feel pressure to curtail add advocacy in

unrelated proceedings. fundamentally do you agree that every constituency should be free to advocate before the commission without any pressure? i think that's just -- >> absolutely. one word on the previous question -- >> i hear all the time people are intimidated by your folks. [laughter] i can understand why because a decision by you folks is not just a $100 decision. it's billions, and so that you have this much power and the question that comes back to me is they are intimidated and they want to have the freedom to be an advocate before the commission without pressure. >> this this question, the commission has an obligation to make a decision based on the issues before it based on facts and data, and we are all very committed to that. there's an area for reform i want to mention briefly which is a lot of the backlog comes from applications for review of

relatively routine bureau decisions that are made, and because of the ata, sometimes it's thought that it requires the commission to do its work all over again in order to address it in advance of litigation, and we've been exploring some reforms here to speed this up and to help eliminate the backlog that relates to applications for review for bureau orders, and that's something i look forward to working on with you and the committee. >> okay. commissioner mcdowell, i think you indicated this in your testimony and i looked at your letters you wrote in the past. the fcc's transaction review standards are sometimes vague and susceptible to abuse. a party should not feel pressure to accept voluntary commissions on the deal and they can ledger the review process to adopt positions they could not

otherwise impose through a transparent and public rule making. i guess the question for you is how can we narrow the commission's authority to simply address these concerns? >> that can come through a statutory change. there's a large ambiguous public interest standard by which we review mergers, but if is statutory provision were added to say any conditions or commitments extracted from the merging companies should be specific, specifically tailored to consumer harm that arises out of the merger. perhaps look at subsetting them once market conditions ofuate the need for further regulation. >> mr. chairman, if you wanted to add to that at all? >> the communication act, the congress placed an important speedometer -- responsibility on the fcc. we take is very seriously.

i think all commissioners do. it's understandable why companies would suggest the public interest reasons for a transaction. sometimes there are specific harms that emerge from a transaction that in order to approve the transaction it's necessary to impose conditions. this has happened under democrats and republicans of the fcc -- >> go ahead, please. >> my last question, mr. chairman, to mcdowell again, i'm concerned the fcc is regulating in areas without first clearly identifying its own authority to act from void obligations, net neutrality, out yag, reporting they fell into the habit of proposing rules without first trying -- tieing those rules to the authority given to it by the communications agent. i know every bill i drop, i have to show constitutionally that bill complies with the constitution. what practices would you recommend going forward based upon what i just told you?

>> well, you know, the commission in areas where i have descended made legal arguments justifying legal authority, so i can't think of an item that just didn't have a legal argument, but there are legal arguments that are colorable and others that are winnable, and so this is, you know, fine grazing of distinction sometimes. it's hard to say how the fcc should act in its authority other than read the statute and the plain meaning of it. >> mr. chairman? >> two points. i note in the last few years, the fcc's record in court on statutory challenges is overwhelmingly positive. i don't remember the number, but i'll get it to you and it's overwhelmingly successful. we do, when there are colorable questions of authority, we seek comment on that in the notice and comments stage. we did it yesterday in looking at updating our network outage

rules to protect the public in event of emergencies. there's a colored question about authority, and we'll look at that carefully within the record. it is vital we move forward on public safety issues like that, working to the with the committee if we don't have the authority, we come to you to ask for the authority, but getting a public record and ask the legal team to think honestly on the authority issues is what we try to do. >> i thank the gentleman from florida and now turn to the gentleman from florida, mr. doyle. >> thank you, mr. chairman, thank you for the hearing. welcome to the members of the commission. i had the opportunity to work with each and every one of you, and i've appreciated your hard work and dedication. all of you are very good members of the commission. commissioner copps, i know your position you're retiring this year, and as scarry as that thought would be, your term has

no expiration date. thank you for your service to the commission. you have been one the best ever. >> thank you. >> now, chairman genachowski, i can't pass up the opportunity with you all here. as you know, the house and senate and the president signed into the law the radio community act, legislation that opens up the air waves for hundreds of new radio stations across the country including community radios throughout the cities in pittsburgh and all across the united states. chairman, i want to ask you, and i'm not trying to sound impatient here. i know the commission's working on it, but i just want to make sure that the draft rules are going to come out by the end of the spring, or could you give us a sense of timing on this? >> first of all, congratulations on the passing of the legislation, bipartisan, very important, and we are working to implement it as quickly as possible because it's a real achievement and will help in local communities. our media bureau is working on

it. i will redouble my efforts 20 make sure it happens as -- to make sure it happens as quickly as possible. >> thank you. i want to piggy back on some questioning and as you talked about special access to. i always thought that name special access is a misnomer and should be critical access. i know your broadband plan agrees with that, and i have real concerns about the affordability of these lines as report after report comes out whether it's the gao or national broadband plan or others noting the sellers of the plan continue to overcharge their competitors, and quite frankly, the fcc, it's been rather frustrating to get you to address this question. it's taken quite a long time to come to a decision on the matter, and i'm just trying to understand, you know, what's causing this delay, and when do you think that you obtained the

information that you need to timely bring a vote to the commission, and please don't tell me as soon as possible. you give me something more definitive than that. >> well, my frustration was when i arrived at the commission and started looking into the issue, the positive data that the commission had was troubling. there's no point in doing something in the area that's not based on a record that's not based on facts and data and would not be upheld in court, and we also didn't want to put out a broad data request that one would be burdensome on industry, but more important, not manageable for us because it's a complete -- complex area. our team did a great job in identifying the data we needed to be able to make a determination on whether there's an issue that requires us to act, and if so, what an appropriate action to take would be. we're still in that process. we've completed the first round of data coming in. the staff is analyzing that.

we'll continue to work with you on it, but i agree with you on the importance of this issue and working diligently on it. >> by next year? by 2030? i mean, -- >> well, you know, well before that. i completely agree with you -- >> well before 2030? [laughter] >> i agree with you. i can't say because we're analyzing the data, and i don't want to prejudge it. i want the staff to do its as fast as it with because it's broadband deployment. >> any other commissioner have a question on special access? >> it's important to get to a final resolution with you talk about a market that's approaching tens of billions of dollars a year, and you add in there however. years this is pending, and you think this company is going out of business or service disrupted and it instills urgency that you have.

>> absolutely. i've been at the commission for five years and it's ground hog day on special access. it's the fourth anniversary of the letter to the commission up cysting there's some -- insisting there's resolution by 2007. it's now 2011. really what we need as i've been saying for five years is a cell site cell site by building by building map of price term and conditions of all providers of special access. this isn't as hard as it seems. the doj gathered this data in the 2005 during the bell long distance mergers, and it's not as daunting as it sounds. legally there could be an issue on whrompt you can compel companies to provide that data, and that's where the problems have been because companies know they don't have to submit the data because it's sensitive. if you go to an industry trade

show, business-to-business trade show, they are buying from each other. all the sales guys have the data. it's not hard to find i don't think, but that gives us a realtime snapshot of what does the market actually look like? you know, i think we're -- there's more competition in a market. we ought to deregular, and if there's not enough competition, we have to figure out what to do. >> mr. clyburn? >> i agree, and one of the first meetings i had dealt with special access, and when they see me, we don't have to exchange words. i agree with you on the urgency and a rule of fate that this is a significant barrier for enhappensed service, so i am looking forward to continue to work with the chairman in order to get resolution here. thank you. >> thank you. mr. chairman, thank you for

your curtesy. >> absolutely, thank you for your work on these issues, mr. doyle. we're going to go a second round and could take a lot of time on my side of the aisle. [laughter] hopefully we'll get through this. first the top seven best tips of the memo. some of the ideas we kicked out there, and i doubt we have time to get through them all. i draw your attention to the staff majority memo if you have it. if not, if you can just give us your feedback on these seven items, and look, from the outset, i'm not looking you into stupid restrictions. i just want to figure out if there's a way to put in statute the good things, some of which genachowski con mid the rules so regardless who chairs this or dynamics that occur five years from now, the good processes are there for the public, and so i throw that out. the notion just, and i know this

doesn't work well, but sort of a yes/no. the concept of the flexibility around this and notices of inquiry before mprm's. does that make sense? should it be a rule? >> i think when, yes and no, huh? i think when the commission needs information, then, yes, it's warranted. we're in an information exchange business. >> right. >> we have public notices and the like, so we get a lot of information, so when we need more information, then yes but in the case where we have sufficient information, it would just delay it. >> yes, with flexibility that cannot be abused. >> yes, usually, but always remember there's crisis and emergencies, attacks and things that demand expedition when you can't do that. >> right. >> there's many exceptionsment might be a statutory mandate or

a further notice or a quote remand, and we have enough information to proceed. i'm not sure a statutory change is required. >> okay, that's fair. you don't always public text of a public comment before adopting final rules, should the proposed rules always be published? >> that's been our policy. we've gone for 38% to 85%. >> any reason not to go to 100? >> there's some cases where it might be a form or a might be a further notice where the rules were out or seeking comment on a third party's proposals. our practices we always need a good reason in order not to publish proposed rule. >> you know, sometimes people don't get serious about going small until you get well beyond the stage and then they are serious and tell you what they like. it's not always practical to do that.

new data comes in, and again, flexibility for emergencies and things like that, but i would commend the chairman on the tremendous difference we made in making sure that we do that now over 85% of the time. >> yes, with flexibility that can't be abused. >> flexibility that takes into account any type of public complaints. >> got it. what about minimums for supply cycles? does that make sense? >> i think if there's statutory obligations involved, it could be problem -- problematic. we had a six month window, so if you had certain obligations, that might impede that progress, so, again, flexibility and dexterity are my words for the day. >> yes, with flexibility that can't be abused. [laughter] >> same.

>> all right. >> i agree as well. the real issue is making sure the commission pursues best practices and look forward to working with you on that. >> all right. what about shot clocks, parties should have sense when resolution comes. hard shot clocks or shot clocks as a report mechanism with the flexibility but maybe you report to congress on your rates of trying to achieve those shot clock numbers. again, i'm not trying to tie your hands here, but, you know, i think there's issues in the past in some cases. i talked to a group recently. they've had a rule making for six years at the commission. it was circulated last fall, i believe, and it's still in somebody's inbox, so shot clocks? >> i think shot clocks are an effective tool. we use it, and may make sense to use more, and we are looking at that and look forward to working on it with you. >> same. >> shot clocks help break the

monopoly in basketball. i'm all for that. [laughter] >> i'm always bind him, and it's always problematic. [laughter] all transactions are created equal, so guidelines, but not ruling the process is, i think, wise. >> okay. what about publication of final draft for an item scheduled to make the final draft public in a certain time of advance so everybody knows what the commissioners are asked to vote upon. i think we go to this end? >> i've always been troubled by the logical impocket of this because there's -- impossibility of this because there's a draft, it's put out, changes again, and you put up something that's impossible to act effectively on. the apa process is designed to do this, create a notice, put out rules, get comments, the agency deliberates, makes a decision, subject to further review. i think that general process works. >> people should know generally and have a clear idea, but you

can't do this time and time again until the last t a is crossed. at some point we have to be in the phrase of a well-known person as the deciders on these issues. >> more often than not, it's a good idea. >> i would not want anything to stifle any type of exchange that could possibly take place on an improvement of an item. >> what draws me to this is changes house rules requires a three calendar day layover to everybody has a chance to see it. sometimes that's inconvenient if you want to cram something through, but it's the public's business and process. it seems to me you want them to see the final product with time to comment. if i could just go through the remaining couple of items here with the indulgence the committee. commissioner initiation of items, chairman, ceo controls the agenda, but what about having a bipartisan group of commissioners be able to weigh

in with items? i know we went through this earlier, but just to see if commissioner clyburn has been purr -- persuaded. [laughter] >> well, i think -- i think i do that. i have that type of, you know, repore. that's why you did not hear me. >> you weren't there in the old days. [laughter] >> i supported this concept on the majority of the commission, and i support it today. >> i just repeat what i said. i think three commissioners ought to have the ability to put an item on the agenda, take it off, and edit the agenda. >> i -- as i said, nothing's broken. 95% of the decisions are unanimous. we work collaboratively, and i can't imagine a situation with a problem, and there's only one anomaly i'm aware of historically. >> all right. i'll stop with that.

there's others here, and i think you have these and the committee was kind to let me work through those, but we want your feed back on them. they are kicked out as discussion points. some make sense, others don't. some you can go about and do, and you are, and we appreciate that. i would turn now to the gentleman from massachusetts, the always colorful mr. marky. >> thank you. i'll take that as a complement. >> as intended. >> we're at a historic juncture. there's now an announced plan by at -- at&t to buy tee-mobile -- t-mobile and for you to review that with your authority. the merger reduces the number of national wireless companies from

four down to three, and then the next step would be the inevitable gobbling up of sprint by veer rye zone and back down to two which would be kind of going into the telecommunications time machine back to 1993, you know, before this committee wisely decided that the two companies that had all of the licenses, one of them was the prodigy of at&t, ology the reamingal -- all the regional companies had one license, and it was 50 crepts a minute. -- 50 cents a minute. it was analog. it was not a particularly robust market place, and people did not have cell phones in their pocket so i thought it would be good to look back at the midst of mobile

time so we can understand where we were, how we got here, and why we really don't want to go back at all. this isn't even an open question because we had more than enough time to learn how big companies view how fast you can move into the deployment of mobile technologies, so back here in october of 1993, our bipartisan basis, it was a beautiful thing, the general disgust that the committee had with the lack of progress in the mobile area went us to moving over 200 megahertz of the spectrum for the creation of the fourth, fifth, and sixth license. you two big boys don't need more unless it's in a market you're not in right now now. that was kind of our message. they were not particularly happy with it. as a matter of fact, the general

who ran all spectrum for the defense budget, he was not happy with it either, but we told them to figure it out, do your best, but we need that robust marketplace and want to move and be number one, and so we had this incredible breakthrough, and we moved from 50 cents a minute within four years it was under 10 cents a minute, all the companies had to go digital which is much more versatile, and it was quite a transformation. if you can imagine, here's where we were. we had this brick. [laughter] anybody remember carrying this around in your pocket? this is the brick. by scene of this accident, we move -- 1996, we moved to blackberries, brick to blackberry in four

years. they didn't think they wanted to move. they told us in testimony they couldn't move that fast. there just wasn't going to be a consumer product. they were tieing businessmen on mountain tops i think. that was it. their message was don't regulate, so the question is do you want to turn the clock back to that dualopoloy and go back to the brick in terms of how fast companies are forced to innovate? do we want to trust the companies again to move faster? i don't think we want to do thatment i think it would be a historic mistake for the fcc to improve this merger. i think we would go into a telecommunications time machine back to that point in time. we've already got at&t and verizon dividing the country into dell east and bill west which is the plan. letting them have a national wireless dualopoly is at stake

here. i've seen the movie before and i know what happens to consumers with being turned upside down and money shaken out of their pockets. we are the committee that made sure we ended that era, and i think it's critical for the fcc to apply its own very brief history on this subject, you know? this is not something where we have to go back to alexander grahm bell. there are people within our own lifetimes you can go back. they are still alive. they were here in 1993, you know what i mean? they can be consulted ant state of that marketplace. all i can tell you is it would be a historic mistake to go back to that time with the promises that come from two giant companies that they will continue to innovate. history tells us after 100 years from alexander