I was watching Fox News last night and they had the Judge on talking about this very subject. He stated that if there is a tie in the Electoral College and the election was decided by the House of Representatives, that it would be the House of the 108th Congress, not the new House of the 109th Congress, that makes the decision.
Even talking-heads on Fox News get it wrong.
Believe me, it is the NEW Congress which meets in January which will count the electoral votes and declare a winner, or elect the President as I have outlined above.
Look at the date at which the 108th Congress officially has their terms END. Then look at when the 109th Congress officially has their terms BEGIN. Now look at Federal law which states WHEN the electors SHALL be counted.
Case closed.
Hope this helps,
dvwjr