This week on the communicators, discussion of the recent d. C. Court of appeals decision on internet regulation, also known as Net Neutrality. Joining us to discuss this issue gigi sohn, former fcc chair tom wheelers adviser, currently with the Georgetown Law Institute for technology. And the Senior Vice President at u. S. Telecom, trade Association Patrick halley washington, d. C. Give us of lawyers assessment of what the d. C. Court of appeals ruled. The d. C. Court of appeals ruled that the secs decision was permissible in the industry storing Internet Freedom order. It was completely upheld. It was a big win for consumers and innovators and a big win for broadband in america. Essentially, with the court said was that the secs decision to regulate Broadband Internet access as an Information Service as it largely has been for the last 20 years outside of a twoyear period. Under the title to order, was permissible. It is consistent with Supreme Court precedent and this d. C. Circuit judge going to make a determination that the fccs classification was incorrect. Because it is within their discretion as the Expert Agency to classify broadband as an Information Service or as a Telecommunications Service. What it did also say was that the commission, and the one area where the commissions decision was vacated, which does not come up until page 121 of the report. Everything till that point was upheld. You do not have the ability to expressly preempt any state action that is inconsistent with the law. However, while some will try to suggest this means states are now free to go and impose their own laws, i think that is a very significant overreach of what the decision actually said. The decision was clearly focused on the fact that to the extent there is an intrastate service, states do have the authorities to try to regulate that service. But the commission made very clear in this sort as well as the 2015 order and then before that that broadband is an interstate service. I think will be done go for states to be able to actually find a law that is not going to be inconsistent with the federal regime going forward. The way we view the case is that this was essentially a win for the fcc, which is in win for consumers and for innovation. Who do you represent . I represent u. S. Telecom, an association of broadband innovators and entrepreneurs that serve every corner of the United States from Large National corporations to Small Companies who serve one or two states with 10,000 customers or less. They are building networks, they are providing the onramp to the internet for consumers, modern education, telehealth opportunities, creating jobs in their communities. Not only that, but also powering the future of wireless conductivity and 5g networks. So Companies Like verizon, at t, xfinity are all members. Not xfinity. At t, verizon, also Small Companies like Big Bend Telephone Company and Small Companies. Now i know you have a lot to respond to, but right after the decision you tweeted out this was not a complete victory for that the fcc barely one. Absolutely. As patrick said, the court upheld most of the secs Net Neutrality repeal order. It only restored Internet Freedom for broadband providers , but not for consumers and not for innovators. It did uphold on a very narrow basis, and there are several places in that decision where the court says, you barely crossed the line, but the fact of the matter is that when an Agency Reviews its statute, the law that governs it, and makes these complicated technical decisions, under court case called chevron, they get a lot of discretion. And as patrick said, there is Supreme Court precedent called brand x that two of the judges were dying to break away from. And, in fact, in their concurrence, they said, we think the internet has changed and Internet Access is changed completely and that the spring Supreme Court needs to revisit brand x in light of changes in how Internet Access works. But we feel constrained by brand x. You had the spring Court Precedent and usual discretion. Much of the order was upheld. However, and this is why tweeted what i tweeted, several things in the open Internet Order, in the repeal order, were sent back to the fcc , were remanded back to the fcc for further review. The court said, you did not address the concerns of Public Safety and what reclassification in other words, what deregulating broadband once again what do to Public Safety. And not just the connections between far departments and Police Departments, but also between Fire Departments and Police Departments and their customers, the citizens they protect. Number two, you do not really hash out the problem of direct to poletion on access attachment. Two states gave the ability to regulate it. You gave the back of the hand to the argument that sups that the program would harm subsidies for poor people, the program called lifeline. They sent those three things back to the fcc to look at again. They couldve easily in my opinion vacated the order based on those things, but they didnt. Let me get to the states because i need to respond to a patrick said. The court was very clear that if an agency lacks authority, it cannot then tell the states that it cannot regulate. And what happened was the fcc deregulated broadband, reclassified Broadband Internet access as an Information Service rather than a Telecommunications Service, and also there is another part of the commute occasions act, section 706, does not provide authority for regulation, it washed its hands, it abdicated its Authority Come , its ability to oversee the broadband market. The court said well, you have given away your authority. You now cannot tell the states as well that they cannot regulate. Now patrick says, and he is correct, that his industry, the fcc, could now go statebystate and try to use a theory called conflict preemption to overturn, to preempt state laws. The problem is, the court went very, very deeply into the secs fccs arguments for larger preemption, for preempting all the states at once, and rejected every one of them. The court said the the sine qua non is congressionally delegated authority. And if you dont have that, you and preempt. Im not gonna say that states will have an easy time, it will be casebycase, but it is not a slamdunk either way. I do think states now will test the bounds of this preemption authority. And they are going to start to pass laws, and that to me argues, and we will probably agree on this although we will not agree on how, this argues for a federal law. With that. Tely agree we probably agree on the importance of Net Neutrality as well. Really all this boils down to this is not a debate on whether Net Neutrality is a good thing. Net neutrality is a concept, a principle, the idea that any consumer should to be able to access the content they want on the networks that they are using when they want. We agree with that. We agree that the best answer for all this is a National Federal modern framework that provides Net Neutrality protections that consumers and businesses want. Let me respond to couple things gigi said. On the remand issues, while she may think the Court Vacated the order that should have vacated the order because those issues were not sufficiently addressed from the court said on Public Safety, you do not sufficient address the issue in the order itself. It did not say you dressed it wrong. It said you do not sufficiently address it. Similarly with the lifeline point, the broadband and impact of lifeline broadband subsidy on this decision. It did not say got it wrong, but you do not sufficiently address it. And with respect to pole attachments, the same thing. There are things that commission will have to address on remand at some point. Im confident they will be able to address those issues. That will be a process where all of us participate in rulemaking at the next stage. But certainly the court did not find those issues to be serious enough to warrant the case from being overturned. With respect to the preemption issue, im sure folks on gigis side will look for sentences in that decision that are helpful to him. Them. We will do the same. What was clear is the court said because youre classifying broadbent as an Information Service and you are not pointing to a direct source of authority, to which you can then preempt state law, the idea that you can have an express preemption, that you the fcc in your order can preempt any state activity, is not permitted. Right . Express preemption. But the court went on to say clearly that to the extent that any District Court finds that what a state has done is in conflict with the federal framework, that the District Court can, in fact, find there is conflict preemption. I think is important that in the discussion, it was very clear the judges were concerned about interstate, the fcc going over the bounds by expressly preempting any state activity including, potential, the regulation of intrastate services. I was looking at the transcript of the oral argument. The chief judge on the case said let me clarify, youre not saying states can step in and do intrastate regulation when the decamps from camp interstate, that is done. The question is whether the state can reg late what is in their wheelhouse, intrastate, right . There is no federal history the history of one state reglet in the region of a country. The states will have to establish what they are doing is in their state wheelhouse. We are talking about things like disclosure requirements, unfair business practice relations. Look, even the restoring Internet Freedom order said, states can continue to use their general Consumer Protection authority. That has never been an issue under the title to order or the restoring Internet Freedom order. The issue is, when a state like california attempts to impose common carrier regulation, on what is now an intrastate Information Service, as upheld by this court, i think thats going to be a difficult task for them to convince a federal District Court that what theyre doing, regulating an intrastate Information Service, is not in conflict with the federal policy. Text patrick can keep calling Broadband Access in interstate service, but in fact it is largely intrastate. The last mile is largely instate. I could just as easily keep saying it is and intrastate service that states do have the jurisdiction over. The court also pointed out was that he gets important, and this is true of both telephony and broadband, is that the Communications Act talks about both the federal government and the State Government having a joint jurisdiction. Right . So section 706, the provision fcc decided was not a source of authority, does have a long list of areas where the federal government and the State Government are supposed to actually work together. Similar with title two and telephony. These areas of Communications Access have always been a hybrid. Again, this is all to say the court will look at these cases casebycase. And i hope patricks members will focus on getting a strong open internet Net Neutrality bill passed through congress. And there is actually one sitting in the senate right now, rather than focusing on going statebystate. But i would make two other points. Point one is while im again getting back to the chevron deference, that agencies have. It is a doubleedged sword. Because of the fcc changes in 2021, they would have a roadmap to go back to title ii if they wanted to. I say to people, with experience being a former let her get her, you live by chevron and you die by chevron. Could you explain that . This chevron case has nothing to do with environmental regulations. It says that if you look at the way an agency interprets its organic statute, in this case the Communications Act. If the plain language of the law is clear, that answers the question. However, as some would argue is the case here and the court said is the case here, the language of the Communications Act being court looks at whether there was arbitrary, completions, unreasonable, or what i call wacky. That is a very, very broad standard of discretion. If the law is not clear, the agency gets a lot of rope to make a decision. Right . It is almost like a coin flip. You have to either really not address an issue as they did with Public Safety and lifeline. Or be so way out there as far as the evidence on the record or not match their decisions to the record, those are cases where the courts will reverse. But it does not happen very often. Although it has happened to this fcc more than one might think. That is chevron. Do you agree with that interpretation of chevron . Yes. And as her point about the revelatory pingpong that goes on when you have significant deference to the Expert Agency. Thats what we both agree it would be better if we dont have this ambiguity because there was a modern federal statute. We may disagree on what the language of the statute should be, but i think we have more in common than people might think. And i apologize for interrupting. I do and make a point about the difference where patrick and i will be. Brand x was a case in the teleCommunications Area, and this decides what classification should Cable Modem Service be. This is back in 2002, early days of broadband, dsl for the telephone companies. In this case, and all the way up to the Supreme Court, the Supreme Court said the fcc was within its rights to classify Cable Modem Service as an Information Service, because at the time, these services included web hosting and email included and still include in some cases dns or Domain Name Service and caching. Functionallyit was , all these Information Services were part of a bundle that scalia saidantonin turned a Telecommunications Service into an Information Service. And the law was vague and upheld the fcc. This was made with the fcc in is Net Neutrality repeal order and the court relied upon in upholding a lot of what the fcc did. Let me talk a little bit about sure. Go ahead. As you can probably tell from our tell from our discussion, the big issue here is going to be the states. Right . We will see what happens in terms of either side appealing classification, the major Central Holding in the case. But where the true ambiguity lies is what it means for state authority going forward. And i think its important to note that the one thing that 2015 title twoe order and the restoring Internet Freedom order both agree on is that states were preempted. She says most of Broadband Internet access is intrastate. Let me tell you what the title two order said about that. We reaffirm the longstanding conclusion that broadband is a jurisdictional interstate service, making jurisdictional analysis extremely difficult if not impossible when services involve the internet. Therefore, the 2015 title ii authorityannounce our the regulatory scheme. The one place where restoring Internet Freedom agreed is that when the government was making a decision on an interstate ii,ice, title i or title the states are preempted when what they are trying to do is inconsistent with the federal policy. That is quite my general view is this is up to the courts, not me. I would be happy to make a decision right now, but i cant. So it will be to the courts. I do think there is strong precedent that makes clear that when they are trying to do common carriage regulation, it will be a high hurdle. I disagree. Whatever we said in 2015, the states will trust me, when i speak to state groups and state regulators and local regulators, they get really angry at what we said in 2015 and they will argue again. Again, these preemption cases will be extremely fact intensive. I was at a meeting with state ags and they warned us that it is hard to draw conclusion about what is going to happen in these cases because they are so fact intensive. The only thing i will repeat, again, it is possible that patrick and his allies will scour the Communications Area that they will be conflict preemption. But the arguments the fcc made in front of the court were basically batted down one by one. This is all to say im not going to say it will be easy or difficult. It will be fact intensive. But i dont think patricks argument is going to end the day day in the states. There are other bills and they will move forward. We will see, but it actually would be really nice if we get federal law. But where patrick and i disagree, and i hate to beat a dead horse, but where patrick and i disagree, and this is the most important part of Net Neutrality, is the authority part, whether the fcc will be able to oversee the broadband market. It is the place where the court told the fcc that the argument that antitrust law and the ftc can protect consumers. And with the court said was, you kind of laid it out that those tools are available. But you do not actually talk specifically about how they will protect consumers from blocking , throttling, so on and so forth. I dont believe the antitrust laws or the ftc are adequate. You need to have an Expert Agency and that is where the fight will be in a federal bill. The fight will be does the fcc will get to oversee the market, or are they left out of it . Because if they are left out of it, they will not get any of the consumer groups i work with support him, and they will not get any democrat supporting. They may not get the republicans. Is there any evidence supporting it . No. This continues to be a hypothetical concern. When the restoring Internet Freedom order was first proposed and adopted, we are that this is the end of the internet as we know it. Literally headlines across cnn and publications that the internet is over. Gigi was on your show and said isps will start charging online providers for faster, smarter, better quality of services from what i call fast lanes. It will happen. It hasnt happened. Now there is this continuing theory that you guys are on your best behavior because the court hasnt ruled yet. Once you actually get the authority that it is confirmed as an Information Service, that smarter, lighter touch regulatory approach, that is when you guys will start doing all the bad stuff. Its not true. Its not going to happen. Whether it is a title ii order or restoring Internet Freedom order, i am certain that gigi will be watching with the isps do. Im certain the groups will she just talked about she is working with will continue to watch with the isps do. And let me go back to what restoring the Internet Ordered did, and what gigi takes issue with. I think the better approach to ensuring Net Neutrality is to have a smarter, more handsoff , Market Driven approach to the internet. As i started this conversation, Net Neutrality is not a law or a regulation. Some headlines said Net Neutrality was overturned or upheld. Net neutrality is the principal or the idea that we can all access the content we want when we want and on the devices we want. We all agree it is important to everybody. The only debate is to how you do you ensure that. The fcc said that we think investment will go up and there is a benefit to investors and regulators to market certainty. We think Market Forces are important and will ensure that the market is properly functional. And on top of that, we will make sure there is Consumer Protection. We will not do it with heavyhanded, utilitystyle regulation where the fcc is deciding what is ok and what is not ok. Those had negative impact. The fcc said states have a role to enforce the general Consumer Protection acts, laws. We will require every Internet Service provider to very clearly disclose what their practices are with respect to blocking or throttling. And to the extent that they dont live up to those promises , to the extent they disclose those practices, the fcc can enforce it. To the extent they dont live up to those promises, the ftc, the federal trade commission, the cop on the beat, Consumer Protection for everybody, whether it is a company like google, facebook, or twitter, a are under the same jurisdiction of at t, verizon, or other Internet Service providers. And to the extent that there is an anticompetitive action, one company is purposefully blocking to another company for an anticompetitive purpose, that is why we have antitrust laws. We can disagree about how effective they may or may not be, but it is, in fact regulatory approach to ensure , a Net Neutrality. With all of that said, we would love to have a bill that makes it clear. No blocking, no throttling. Can i theres a whole bunch of things there. By number one, has there been throttling, the answer is yes. There have been two recent studies by Northeastern University that show mobile carriers were throttling video providers like netflix and hulu and others. There are other examples from years past. I wont get into that. I will also note that in the two years that the title ii order was in place, there were 47,000 complaints filed by consumers. 47,000, which the fcc refused to consider. Even if you took 1 of those as legitimate, that is an awful lot complaints. , 470something is going on. Something in the water. It gets away from the court point. Who is going to have oversight over the industry . And the problem with the ftc is that their authority goes to unfair or deceptive practices. They interpret that as unfair and not deceptive. In other words, if your broadband provider tells you that they will throttle you, that ftc can do about it. If your broadband provider engages in price gouging or fraudulent billing, the ftc will not address that. That is why you have the fcc , which has the technological and legal expertise, that is why they need to have authority. As patrick rightly points out, antitrust laws only go to the antitrust laws only go to anticompetitive activity. It doesnt go to the blocking of speech or other consumer issues. So, this fight really is not about whether companies will block, throttle, or engage in fast lanes. Which, again, there has been be reams andwo not it may not be reams and reams of stuff, but there could be prophylactic rules. The ftc does not have the power to make rules, and rules moderate bad behavior. They let consumers know what their rights are. And we can have a debate over what the balance of that authority ought to be. The notion that the agency that for 80 years has been passed tasked with overseeing competition and Consumer Protection and access to Communications Networks of all kinds should all of a sudden not be involved when it comes to the most Important Communications network of our lifetime doesnt make any sense to me. Ouro final question in final minute, should congress get involved to clear up the chevron issues . That is not necessarily to clear up the chevron issues. They can make it more clear. Absolutely. There was a bill passed by the house of representatives sitting in the senate. Unfortunately Senate Majority leader mcconnell will not put it on the floor, the save the internet back. It reinstates the 2015 open Internet Order. But better off, for patricks members, it puts in place the socalled forbearance. So the points of title ii they decided not to apply to broadband service, it puts them in place forever. So i actually think patricks members are better off supporting the save the internet act and not taking the chance of having a different fcc under a Different Administration bringing back the 2015 open Internet Order where the forbearance is not permanent and perhaps even going further, perhaps not forbearing the things that they really dont want. Would you like to see Congress Step in and clear this up . I would like to see congress i would like to see Congress Pass a modern, smart policy with respect to Net Neutrality. Absolutely. It is not in anyones interest to go back and forth depending on elections. Its not in anyones interest to fight this out in every state. I do not think that it is good to have congress choose one fcc decision over the other. That is what they say the internet act does. Final question, who brings this to the Supreme Court . The ftc or the Interest Groups . Gigi is closer to the Interest Groups and can answer that for their side. I dont know is the short answer. Everybody is reviewing what the final course of action is. Final word. First, we can go back to the court itself. We can go back to the actual panel, which is unlikely, or go back to the entire d. C. Circuit. I think we are still reviewing it. It has only been a week. Were still figuring out what is going to be next. Georgetown Law Institute of technology. Gigi stone and patrick kelly, that u. S. Telecom, thank you both for being on the communicators. This communicators and all other episodes are available as podcasts. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2019] , cspan has been providing unfiltered coverage from washington, d. C. And from around the country. Cspan is brought to you by your cable or satellite providers. Cspan, your unfiltered view of government. Announcer cspans washington journal live every day with news and policy issues that impact you. Sunday morning, efforts to impeach President Trump and how it might Impact Campaign 2020. Be sure to watch washington journal sunday morning. Oin the discussion we have built a remarkably talented team, but make no mistake, the russians are at it. Other foreign actors are at it. They can do it with impunity. You have a president sending his attorney general around the what thetry to debunk Senate Intelligence committee on , theartisan basis said russians tried to influence our elections. Indisputable, except to donald trump, rudy giuliani, and Rudy Giulianis friends who got indicted. We should be getting help from the federal government to protect the integrity of elections. The wii is not just the dnc, but state and local governments. We should be getting help. You saw the reporting about the former dhs secretary when she would try to bring up election security. Heisman, as wehe say. Dont bring it up, the president said. I cant trust this government to help us out. , oneaw the Mueller Report of the indictments alleged the russians were attempting to hack into state and local systems. They got into one state and got roughly 500,000 names. They did it before. They continue to do it. We have built a robust infrastructure. I will never look anybody in the eye and say we are proof of it because we know it is an arms race. We are far better off than when i got there. We are continuing to fortify, work with partners, unfortunately one of them is not the federal government. Announcer you can hear more this week is a newsmakers on topics relevant to the 2020 campaign. Watch the interview sunday at 10 00 on cspan. Nothe white house did release a weekly address from the president. Senate minority leader chuck addressdelivered an discussing impeachment in the President Trump. He said Senate Democrats would continue their agenda to address crisis,are, the climate and protecting middleclass families. Mr. Schumer