Rick Boucher

Mr. BOUCHER

Mr. BOUCHER. Madam Speaker, this is a deeply bipartisan measure with bipartisan participation in the construction, committee consideration and drafting of the legislation. I am pleased now to recognize for 5 minutes the principal Republican sponsor of the measure, who has long been committed to freedom of the press and promoting the public's right to know, the gentleman from Indiana (Mr. Pence). (Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. BOUCHER. Madam Speaker, at this time, I'm pleased to yield 2 minutes to the gentleman from Kentucky (Mr. Yarmuth).

Mr. BOUCHER. Madam Speaker, I yield myself the balance of my time. Madam Speaker, I strongly urge the passage of the Free Flow of Information Act. It is legislation which confers upon reporters a privilege either to refrain from testifying in certain circumstances or to refrain from revealing confidential information sources. But the purpose of our legislation is not to protect reporters. It is to protect the public's right to know, to ensure that sensitive information that can only come from an inside source reporting on something that is happening to the disadvantage of government, because of corruption in a bureau or agency, or a harm to society that is occurring because of misdeeds in a large organization like a corporation or a large public charity can, because of an act of conscience by that inside person, come to public scrutiny in a way that the public can then take corrective action by passing a statute, by initiating a lawsuit, or by initiating a criminal prosecution. And if that inside person is not assured confidentiality, if there is an opportunity for that person's identity to be exposed, that person is going to be very reluctant to share information with a reporter to bring that information to public light. That person has a tremendous amount to lose if his or her identity is revealed. That person can be punished by firing from his or her job or through more subtle means. So, in the absence of the ability of the reporter to extend the pledge of confidentiality, there is the very real risk that that vital information will never come to public light. This legislation is carefully balanced. It has protections for the national security which are deeply embedded within the measure. And those were placed there through the careful bipartisan work of the House Judiciary Committee when we had our extensive markup of this measure 2 years ago. The bill before us today is identical to that measure. It passed the House 2 years ago by a vote of 398-21. And it is deserving today of the same strong support by the House of Representatives. So, Madam Speaker, I strongly encourage the passage of the Free Flow of Information Act. I thank the bipartisan cosponsors and all of those who have participated with us as this measure has been written.

Mr. BOUCHER. I yield back the balance of my time.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I rise to introduce the Business Activity Tax Simplification Act of 2009, a measure with far-reaching consequences for businesses throughout our nation. Traditionally, states and localities have levied corporate income, franchise and other taxes only on those businesses that have a physical presence in the taxing jurisdiction. The growth of the Internet and interstate business transactions has made it possible for businesses to conduct transactions without the constraints of geopolitical boundaries. As a result, recently some states have attempted to expand their tax base by assessing business activity taxes against out-of- state companies that have customers but no property or employees in the taxing state. Both large and small companies are facing an increasingly unpredictable tax environment for businesses, which hinders business expansion and threatens the continued development of e-commerce. The legislation we are introducing today, which I am pleased to champion with my colleague and good friend Mr. Goodlatte--as well as Mr. Artur Davis, Ms. Bachmann, Ms. Herseth-Sandlin, Mr. Jones, Mr. Bobby Scott, Mr. Jordan, Mr. Weiner, Mr. Pence and Mr. Joe Wilson--will bring certainty to today's increasingly chaotic tax environment for businesses by clarifying that the states cannot attempt to tax the income of a company that has no physical presence within the taxing state's borders. Our legislation sets forth clear, specific standards to govern when businesses should be obliged to pay business activity taxes to a state. Generally, a business must use employees or services in a state for more than 15 days in a calendar year before it is liable to pay business activity taxes to that jurisdiction. The Business Activity Tax Simplification Act also modernizes legislation which Congress enacted 50 years ago that set clear, uniform standards for when states could tax out-of-state businesses for the solicitation of orders for sales. Like the economy of its time, the scope of Public Law 86-272 was limited to income taxes on tangible personal property. Our nation's economy has changed dramatically over the past half-century, and this outdated statute needs to be modernized to apply equally to the sale of intangible property and services, and to other business activity taxes. I want to emphasize that the Business Activity Tax Simplification Act does not diminish the ability of states and localities to collect tax revenue. Rather, it rationalizes and makes more predictable the process of doing so. The lack of clarity in current law has led to sometimes absurd results. A collection agent with the New Jersey Department of Taxation stopped a refrigerated truck on the New Jersey turnpike, loaded with product belonging to Smithfield Foods, a company headquartered in my state of Virginia. The agent held the truck and its driver for several hours and demanded that, to release the truck, Smithfield had to wire $150,000 immediately to the New Jersey Department of Taxation. The agent claimed that he had the right to hold the truck and its contents because Smithfield had failed properly to file New Jersey tax returns. Smithfield informed the New Jersey agent that his claim was unfounded. It explained that Public Law 86-272 protected it from New Jersey income taxation because it only engaged in solicitation in New Jersey and had no physical operations in the state. The agent refused to accept this explanation; however, he finally agreed to release the truck and its driver in return for $8,000. Smithfield appealed this aggressive and incorrect application of Public Law 86-272 to the New Jersey State tax commissioner. Ultimately, New Jersey accepted Smithfield's contention that it has no physical presence in the state and is not subject to New Jersey income tax. It issued Smithfield a refund and an apology for its roadside justice system, but not before Smithfield had invested much time and expense in resolving a situation which should not have arisen under current law. Our measure will help avoid such scenarios in the future by clarifying the physical presence standard embodied in Public Law 86-272. New Jersey has used similar tactics against out-of-state companies selling intangible goods to its residents, a situation not covered by 86-272. It has argued that a mom-and-pop South Carolina software company with no physical presence in any states other than South Carolina and Georgia, owes a minimum of $600 per year in corporate income taxes and fees based only on the sale of licensed software to a New Jersey entity, and that the company would owe such tax every year that its software was in use in the state, even for those years in which the company had no income from any customer in New Jersey. The Louisiana Department of Revenue has threatened to assess business activity taxes on several out-of-state companies based merely on the fact that they broadcast programming into the state, arguing that the companies are exploiting the Louisiana market because the programming is seen or heard by individuals in Louisiana. Several states attempt to assess business activity taxes on out-of- state credit card companies based on the fact that their customers reside in the taxing jurisdiction and on arguments that the credit card company has engaged in the ``substantial privilege of carrying on business'' in the state. The Business Activity Tax Simplification Act offers Members the opportunity to put an end to nonsensical situations like these. In doing so, we will provide certainty to both U.S. businesses and to states, thereby fostering economic growth and development. I thank Mr. Goodlatte and the original cosponsors of the Business Activity Tax Simplification Act for their support, and I urge each of my colleagues to assist us in enacting this much needed bipartisan legislation.

Mr. BOUCHER

Mr. BOUCHER. Madam Speaker, I rise today to join with Congressman Mike Pence in introducing the Free Flow of Information Act of 2009. We are joined by Judiciary Committee Chairman John Conyers, Judiciary Committee Vice Ranking Member Bob Goodlatte, and 35 other original cosponsors. Our bipartisan legislation provides a privilege in federal court proceedings for reporters to refrain from revealing their confidential sources of information. The privilege is similar in nature to that currently offered by 36 states and the District of Columbia. Such broad-based support for assuring the confidentiality of journalists' sources at the state level lays bare the glaring lack of similar protection at the federal level. The ability to assure confidentiality to people who provide information is essential to effective news gathering and reporting on highly sensitive and important issues. Typically, the best information about corruption in government or misdeeds in a private organization will come from someone on the inside who feels a responsibility to bring the information to light. But that person has a lot to lose if his or her identity becomes known. In many cases, the person responsible for the corruption or the misdeeds can punish the source through dismissal or more subtle forms of punitive action if the source's identity becomes known. It is only by assuring anonymity to the source that a reporter can gain access to the information in order to bring it to public scrutiny. I have long thought that the ability to protect the confidentiality of sources is so essential to effective news gathering that a privilege to refrain from revealing sources should be interpreted to be extended to reporters by the 1st Amendment. Unfortunately, to date the 1st Amendment has not been so interpreted. Furthermore, in the past few years more than thirty reporters have been subpoenaed or questioned in federal court proceedings about confidential sources, and several have been handed or threatened with jail sentences. The time has clearly arrived for the Congress to enact this statutory privilege to address the increasing use of subpoenas to extract confidential source information from reporters. Our legislation sets criteria which must be met to compel the disclosure of information from reporters in any federal criminal or civil matter, with heightened protection for the identities of confidential sources. While extending a broad privilege, we have included some exceptions for instances in which source information can be disclosed where a strong public interest compels the disclosure. Provisions have been incorporated to allow disclosure to prevent imminent death or significant bodily harm, to determine who has disclosed trade secrets or personal health or personal financial information in violation of law, and to assure that national security interests are protected. An exception to the privilege will only apply if the court determines that the public interest in disclosing the information outweighs the public interest in the gathering and dissemination of news and information. The bill is a carefully constructed measure which will provide a broad new and much needed privilege for reporters to refrain from revealing confidential sources. The measure protects the public's right to know, and its passage should be a priority in this Congress. The measure we are reintroducing today is identical to the measure which passed the House in 2007 by a large, bipartisan majority of 398 to 21. I want to commend Mike Pence who has devoted substantial personal time and attention to this effort. He has done much to bring the need for the privilege to public attention, and he is a highly effective advocate for the cause. It was a pleasure coauthoring a similar bill with Mike in the last two Congresses and in writing with him the bill we are introducing today. I also want to thank Chairman Conyers for his helpful suggestions and his support in moving the bill through the Judiciary Committee. Given the broad bipartisan support this measure enjoys, I am optimistic that we will be able to enact the legislation into law during the course of this Congress. I hope my colleagues will join with us in enacting into law the Free Flow of Information Act of 2009.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, pursuant to House Resolution 108, I call up the Senate bill (S. 352) to postpone the DTV transition date, and ask for its immediate consideration in the House.

Mr. BOUCHER. Mr. Speaker, at this time, I am pleased to yield 3 minutes to the distinguished gentleman from North Carolina (Mr. Butterfield).

Mr. BOUCHER. Mr. Speaker, I yield to myself such time as I may consume. (Mr. BOUCHER asked and was given permission to revise and extend his remarks.)

Mr. BOUCHER. Mr. Speaker, we are now less than 2 weeks from the February 17 digital television transition date, and millions of American households remain totally unprepared. On January 22, the Nielsen Company, which is a widely respected service that reports on television viewing in the United States, reported that fully 6.5 million households are totally unprepared for the transition. These are homes that rely upon antennas or rabbit ears in order to get their television service. They do not have cable or satellite subscriptions. And given the fact that they are totally unprepared today, if the transition goes forward as scheduled on February 17, these 6.5 million households will lose all of their television service, and that number represents about 5.7 percent of the total American television viewing public. If almost 6 percent of the nation's households lose all of their television service, I think that most people would declare that the digital television transition has been a failure. At the present time, there are 3.7 million requests for converter box coupons pending at the U.S. Department of Commerce, and since early January, the program that funds those coupons has been out of money. Those requests therefore, cannot be honored. And the waiting line for coupons is growing rapidly. On Friday of last week, the number of requests was 3.3 million, and over the weekend, during the day on Monday, that number climbed to 3.7 million. And I think we can expect a much larger increase in the number of requests that are filed with the Department of Commerce over the coming weeks. It's clear to me that the only way to avoid a massive disruption affecting 5.7 percent of the entire viewing public is to delay the transition and provide the funding in the meantime to assure that when the transition does occur, it occurs smoothly. In recognition of that reality, the Senate has now, on two occasions, by a unanimous vote both times, passed legislation to delay the transition until June 12. The most recent unanimously passed Senate bill moving the date to June the 12th is now the measure that is before the House. My friends on the other side of the aisle will argue and have argued that if more money were provided for this program for converter boxes during the coming week, that the problems could be solved, and they have, in fact, put forward a proposal to do so. But I want to make a very clear point. The provision of more money for this program now, without moving the transition date, could not avoid the disruption. It takes 1 week to process 1.6 million coupon requests at the Department of Commerce. That's what the independent contractor working for the Department of Commerce estimates its approval numbers to be. That company is IBM, and they've been handling this coupon program since the inception. They can process 1.6 million coupon requests every week. And so in the 13 days remaining between now and February 17, that backlog presently pending of 3.7 million requests could not be processed, even if more money were provided for that program today. And then, beyond processing the requests, more time is required for mailing the coupons to those who have requested them, and then more time still required for the television viewer to get the coupon out of the mail and take that coupon to a store and redeem it for a converter box. So even if more money were provided for the program today, the program would still be a failure and we would still have millions of homes dislocated in their television viewing. Beyond the converter box program, which is at a standstill, more resources are also needed for the Federal Communication Commission's call center program where waiting times are long, where calls are frequently disconnected, and it's very difficult to ever speak to a live technical assistance representative. In fact, Commissioner McDowell at the Federal Communications Commission reported on these facts. He had tried himself to contact the FCC's call centers, and just as a test, determine what the real condition of those call centers happens to be. And he found that calls were disconnected, waiting times were unacceptably long, and it was virtually impossible to get a live technical assistant representative on the line. Now, as that report reveals, the FCC's call center program is in complete disarray, and that program is vitally important. There is a virtual absence of technical assistance available for people to connect their converter boxes; once they've connected them, if they still can't get a viewable picture, get some expert advice on what further steps they might take, testing their antenna, for example, to determine whether or not the antenna would have to be replaced, adjusting that antenna to determine whether or not a digital signal can, in fact, be received. And the FCC's call centers are the only vital point of contact and point of information that millions of people, primarily those in rural stretches of of our Nation, are going to have available. And that program today is in disarray. More resources are going to be necessary in order to make that call center program effective. Only by delaying the transition and utilizing the $650 million that the stimulus measure provides for the DTV transition program, can these problems be addressed and can massive viewer disruption be avoided. The 4-month delay that the bill before the House would accomplish has been endorsed by a broad range of organizations representing the very parties who could potentially be disaffected by the delay. And I'm going to take just a moment to go through an identification of some of these endorsing organizations. Much has been said during the debate on the rule about public safety, and all of us share a concern about public safety. We want to make sure that spectrum is made available to first responders at the earliest possible time in order to deploy advanced communications equipment so that there will be full interoperability among first responders, police being able to talk to fire agencies, being able to talk to rescue agencies and to do so all across the country. That's the goal. We hope that goal will soon be achieved. But the organizations that represent these public safety agencies nationwide, the great weight of them, have endorsed this delay. I'm just going to list these. The International Association of Fire Chiefs, the International Association of Police Chiefs, the National Emergency Number Association, that's the voice of 911 across the country, and also the organization that represents the information technology professionals who work in first responder agencies, they have all endorsed this delay. I would suggest that they recognize that the greater threat to public safety would come in something like 6.5 million households losing all television coverage and, therefore, not being able to get the vital public safety information that local television broadcasters so effectively provide, and that will happen unless the delay and the transition are adopted. Speaking on behalf of local broadcasters, the National Association of Broadcasters and the major networks have all endorsed this delay and have sent letters or have made public statements to that effect. Speaking for the purchasers of the commercial wireless spectrum, the two major winners in the government-sponsored auction for that spectrum--AT&T and Verizon--have both endorsed this delay. Now, much was said during the debate on the rule about possible motivations for various parties having recommended the delay, including some comments, perhaps, about the motivation of the President in asking for this delay. It is very clear that the reason that this delay was asked was due to the loss of television viewing that would occur across this Nation if the delay were not accomplished. That is the real reason. If any party is going to be disadvantaged because of this delay on the commercial spectrum side, it would have been the major bidders in this auction--AT&T and Verizon--and both of them have sent letters endorsing this delay. They believe it is necessary to have a smooth transition, and they have endorsed the delay accordingly. The Consumers Union and the acting chairman of the Federal Communications Commission have also endorsed this delay. Let me offer assurance that it will be a one-time-only delay. Our committee will simply not entertain requests for any delay beyond the 12th of June. Our chairman of the full committee, the gentleman from California (Mr. Waxman), has been very clear about that. No requests beyond the 12th of June for a delay will be considered. Speaking on behalf of the subcommittee, I can say precisely the same thing. We will have time to get this program properly structured. We will have the resources necessary to make sure that the program can be smooth and effective when the transition occurs in June. Under no circumstances will we consider legislation to delay this program again. The delay that this bill will accomplish, teamed with the stimulus appropriation will be sufficient to ensure a smooth digital television transition. So, Mr. Speaker, I urge approval of the measure pending before the House, and I reserve the balance of my time. Parliamentary Inquiry

Mr. BOUCHER. Mr. Speaker, at this time I'm pleased to yield 3 minutes to the gentleman from Michigan (Mr. Stupak), chairman of the Oversight and Investigations Subcommittee of the House Energy and Commerce Committee.

Mr. BOUCHER. Mr. Speaker, may I inquire as to the time remaining on both sides.

Mr. BOUCHER. Mr. Speaker at this time, I ask unanimous consent that all Members shall have 5 legislative days to insert material in the Record, including their statements on this bill.

Mr. BOUCHER. Mr. Speaker, at this time, I'm pleased to yield 2 minutes to the distinguished gentleman from Indiana (Mr. Carson).

Mr. BOUCHER. Mr. Speaker, at this time I am pleased to yield 1 minute to the distinguished gentleman from Illinois (Mr. Hare).

Mr. BOUCHER. I yield myself 1 minute. Mr. Speaker, I do so for the purpose of placing in the Record a series of letters that the committee has received endorsing this delay, and among these letters are letters from the Association of Public Safety Communication Officials International, the International Association of Chiefs of Police, the International Association of Fire Chiefs, the National Emergency Number Association speaking for 911. And these are all associations that sent letters to the committee representing the public safety community, and they represent the great weight of public safety of first responders in the Nation endorsing this delay. Also included in this submission will be a letter from the National Association of Broadcasters speaking on behalf of local broadcasters across the Nation. We have also received letters from AT&T and Verizon, the two major winners in the government-sponsored spectrum auction endorsing the delay, from the Consumers Union, the National Hispanic Media Coalition, Univision, and also the acting chairman of the Federal Communications Commission. January 30, 2009. Hon. Henry A. Waxman, Chairman, Committee on Energy and Commerce, House of Representatives, Rayburn House Office Building, Washington, DC. Dear Chairman Waxman: We understand that the House of Representatives may soon consider S. 352, the DTV transition extension bill that passed in the Senate yesterday. The bill the Senate passed yesterday included language to address the impact on public safety of a DTV transition delay. We expressed support for this language in a letter we sent on January 27, 2009, to Senate Commerce Committee Chairman Rockefeller and Ranking Member Hutchison. Specifically, the bill makes it clear that a public safety agency can use its existing license in the 700 MHz band to commence operations after a broadcaster has voluntarily ceased operations on a channel before June 12. All 50 states and some local governments have FCC licenses for 700 MHz spectrum, and are waiting for the DTV transition date to modernize their communications systems and ensure public safety. Although we have concerns about the impact of delaying the transition date on public safety, since this language is now included in the final version of the bill we support passage of this legislation. We thank you and your colleagues for taking into account the concerns of public safety while considering this matter. Respectfully, Chris Fischer, President, Association of Public-Safety Communications Officials-International. Russell B. Laine, President, International Association of Chiefs of Police. Larry J. Grorud, President, International Association of Fire Chiefs.

Mr. BOUCHER. Will the gentleman yield?

Mr. BOUCHER. Will the gentleman from Texas yield to me?

Mr. BOUCHER. Mr. Speaker, may I inquire as to the time remaining on both sides?

Mr. BOUCHER. In view of the fact that we have no further requests for time on this side and I do intend to close debate, at this time I would ask the gentleman from Texas if he has other speakers that he would like to recognize, or if he is prepared to close on his side.

Mr. BOUCHER. I would be pleased to yield.

Mr. BOUCHER. The gentleman has under the rule as much time as is allotted to him--and still remains--for his time allotted.

Mr. BOUCHER. Well, reclaiming my time, I probably have about a 4- minute closing statement, and that is all the time we intend to consume on this side. If the gentleman would be amenable to a unanimous consent request that would limit his time to that same amount, I'm sure we would find that to be acceptable.

Mr. BOUCHER. Let me ask the gentleman if he would like to recognize his speakers at this time.

Mr. BOUCHER. Mr. Speaker, I continue to reserve the balance of my time.