Caucus along with representative doug collins, senator leahy and senator soon. The internet caucus was created 20 years ago to help inform the debate and discussion about key internet policy questions. Net neutrality is towards the top of that list even though all of us may not agree on how to approach Net Neutrality, this case is important for all of us. Im glad we get a chance to hear from different views on how we should be thinking about this. Net neutrality has been a top issue for many years. This case in particular is important for us. She led an amicus brief cosigned by 100 members of congress. Mozilla, the lead plaintiff is headquartered in our district. In sarasota county, also party to the case and this year we did a couple townhalls focused on Net Neutrality. I am looking forward to hearing what you have to say and others are too. On behalf of the caucus i think the panelists and moderator for spending time with us to inform this debate and i want to thank tim and the academy for helping to organize. I will turn it over to caitlin who used to be at the asa academy and is now at brookings. Thanks for the introduction. Thank you for attending our panel today. Thank you to the congressional internet caucus for cohosting this panel. My name is caitlin chin and im looking forward to discussing the dc circuit position regarding the fcc 2018 orders. Im looking forward to discussing this case with our four panelist. At my far right we have ferras vinh, manager of mozilla, Matthew Brill is a global chair of the Communications Law practice. Sarah morris is director of the Technology Institute at new america. Kristine hackman is Vice President of policy and advocacy at us telecom. Our panelists are going to talk about the dc circuits decision in mozilla versus fcc and what this might mean for congress, the state and the parties involved but first i will clean the background of the case. In a nutshell what is Net Neutrality and how did we get to where we are today . Although there isnt one universal definition of Net Neutrality we can generally say Net Neutrality is the principle that Internet Service providers also known as broadband providers should manage all internet traffic in the same way and not speed up or slow down specific websites or applications and not charge consumers or websites different rates to use their network. The federal Communication Commission has adopted three separate Net Neutrality orders over the past decade. In 2010, 2015 and finally 2018. In 2010, the fcc approved the agencys first orders specifically prohibiting broadband providers from unreasonably discriminating against unlawful internet traffic but the 2010 open Internet Order challenged in federal court in verizon versus fcc, the dc circuit subsequently said the fcc did not have the Statutory Authority to impose anticlotting and antidiscrimination because broadband providers classified Information Services at the time. What does this mean . The Communications Act which was amended by the teleCommunications Act created a distinction between title i Information Services such as websites and applications entitled to telecommunication services. Because the fcc had initially classified broadband providers as title i Information Services the court said the fcc did not have the authority to impose regulations on them. The dc circuit issued his ruling in 2014 and one year later the fcc passed a new. The 2015 did two things, reestablished internet traffic blocking and discrimination this time for fixed and mobile Broadband Internet and declassified isp from title i to title to services. This classification of broadband is significant because unlike title i classification, title to could enable the fcc to regulate practices that could be unrelated to Net Neutrality like broadband pricing and privacy and although they could potentially choose to forbear stain from additional powers. In 2016 the dc circuit ruled on Net Neutrality on the legality of the 2015 open internet network, the case title us telecom versus fcc the dc circuit upheld the reclassification of Broadband Service as title to telekinetic asian services. Saying of congress to classified broadband in the fcc had reasonable leeway to choose. In 2018 the fcc under chairman ajit pai past the restoring Internet Freedom order which repealed the 2015 order and change the classification of isps from titled 2 to title i. Which brings us here today. Two months after the 2018 order came into effect it was challenged in court in mozilla versus fcc, the dc circuit upheld the fcc 2018 order but found issue with a few specific provisions. With that i would turn it over to our panelists. First i would like to explore the courts decision a little further and we can start with Matthew Brill. What did the court decide last tuesday . What does it mean . Thank you. Thank you to the caucus for having me here today. So everyone understands my background i worked on Net Neutrality when i served at the fcc 20012005 when it was an emerging issue and no one use the term Net Neutrality but it is really not dissemination, disclosure, emerging at that time. Private practice in these proceedings before the fcc before the dc circuit i represented the cable industry. I will provide a brief summary of the dc circuit decision. It is 186 pages long. Im only going to talk about every other page. Caitlin mentioned classification of broadband. That is a part of these proceedings. A longstanding battle over how to classified Broadband Services and the reason for that debate is they have different startups, title i Information Service classification start from a foundation of no regulation. The fcc can argue additional discrete rules for issues including Net Neutrality. Title 2 in contrast the 1934 telecom act designed for monopoly Telephone Services, has a broader stipulation that applied by default. The fcc being able to cancel out those regulations through a forbearance process. There are different starting points making a loaded decision and the fcc concluded going back to its original determination that Broadband Internet access should be treated as an Information Service because of its function and it would bring about a light touch framework the fcc would best work in advancing its policy objectives. The dc circuit upheld that classification. The court relied on Technical Analysis the fcc did involving two particularly important functions known as dns and caching. Dns is the domain name system, and Internet Service provider or third parties essentially to translate a url that you type in like espn. Com into a numerical ip address. That is a critical function of Internet Service and the fcc has found historically dns is an Information Processing function distinct from the transmission that occurs in broadband and together with caching are sufficiently integrated with transmission of broadband data to make the entire Service Information and the dc circuit upheld that conclusion and the decision in the Supreme Courts controls the dc circuits prior decision in the telecom case and essentially means the fcc can choose either label. In the view of the dc circuit classification is committed, in a way that comports with federal statutes. Under the administrative procedure act. Turning to the administrative procedure act the court went through a long series of objections the petition is lodged against the fcc analysis and by and large upheld the order against those critiques with the exception of what we will get to. In upholding the order the court concluded the fcc analysis of the effect of the classification decision on investments and innovation was well reasoned and explained to comply with the administrative procedure act and held the analysis, the competitive landscape, and appropriately explained its backstop of relying on generally applicable Consumer Protection and antitrust laws from the ftc and department of justice and state attorneys general. In contrast to issues where the court upheld this, the court found three discrete issues where the fcc had not adequately explained its vision. Importantly those faults led to further explanation it was necessary on remand, the court did not make the order or think these errors were serious enough to undermine the order and set it aside and requires the ftc to further explain these issues and the free issues where the Court Remanded were first the importance of Public Safety in this analysis, Public Safety officials including jenna claire argued the ftc hadnt considered the implications of Information Services classification or decision to get rid of certain common carrier mandate against blocking, throttling didnt consider how that would affect Public Safety. I remanned, the fcc will have to consider that further into clean whites decision is not going to unduly threaten Public Safety. The commission had argued during oral arguments that implicit in its analysis that getting rid of the prior rules was in the Public Interest generally, consistent with Public Safety but the court said it wasnt enough explicitly to Public Safety. The second issue that was remanded involved pole attachments. They are granted under section 224 to cable providers and Telecom Providers but there is no explicit provision for standalone broadband providers as information Service Providers so the court directed the fcc to consider whether the loss of rate protections for standalone broadband providers was an issue that warrants further consideration. Lastly, the Lifeline Program which is the lowincome universal Service Program administered by the fcc provides support as in most of the universal Service Programs for telecommunication services. This was the case before the 2015 order as well and historically to be eligible for lifeline support you have to provide voice service. It later included under title ii standalone broadband is eligible because broadband is a Telecom Service with statutory language. Now that broadband is an Information Service the fcc says what does that mean for the Lifeline Program . The Immediate Impact of the program is something the fcc needs to better explain on remanned. After those decisions regarding both the classification and the limitation of conduct tools the court had an extended discussion of preemption of state law. Im sure we will talk about this as the panel goes on. One of the more interesting and hotly debated aspect of this order. There are two types of preemption at issue. Express preemption exists where congress or the agency in advance preclude the application of state law. There are certain statutory provisions that do that directly and say a state may not regulate wireless rates for example, section 332 of the Communications Act. In other instances the fcc was given sufficient authority over an issue courts found the fcc on its own can expressly preempt. Here, the analysis by the panel, this was a divided decision with judge williams, the commission did not identify sufficiently explicit Regulatory Authority to justify preempting state laws in advance categorically and the best way to understand this is the fcc concluded because broadband isnt entitled to service with substantive Regulatory Authority under title ii doesnt fall within major substantive provisions, title iii and title vi. The Commission Also said section 706 which was invoked previously in the 201015 orders with potential basis for authority the fcc that is not basis for imposing regulation and all the guards the exercise of regulatory function. And essence, we dont have Regulatory Authority and the court said if that is the case you dont have the authority to preempt state law categorically in advance. Importantly the court then said under other preemption it is premature to determine whether state law is or isnt granted so it depends on the specifics of state law. It arises under the premise, the supremacy clause holds where federal and state law conflicts federal law is the essence of the federal system. The court applied the doctrine there are two ways to have a conflict. One is where compliance with the federal law and state law is literally impossible, state law requires you to do something and federal law precludes you doing something and impossible to comply with those. The other exemption is where state law creates an obstacle to achieving the federal policy. That is going to be the principal kind of preemption debated here. State law says broadband should be treated as a Telecom Service subject to common carrier rules, subject to know blocking, throttling and other mandates and federal law says the opposite of those things but there is a strong basis that state law and federal law cannot coexist so judge williams dissented from that aspect. He thought there was authority to exempt expressly and he thought the majority analysis might implicate the ability to invoke this exemption so that is a pretty detailed summary. Im sure we will have a lot of that. Sounds like preemption is one of the bigger issues especially since many state of introduce legislation in california has even passed a law. The court said the order cannot categorically preempt Net Neutrality laws in advance but should this gives states the confidence to a neck their own legislation . I can jump in. If i could back up a little bit. A couple perspectives i have on the order that doesnt directly conflict with anything matt said, slightly different perspective on how one might view. Im sarah morris. You have an parties to the case and we also were interveners and supported the fccs open internet rules. And we were active in both the underlying proceedings and proceedings overturn those rules for Internet Freedom. It is helpful to think about what this decision means in a more practical sense and to put it in laymans terms what the court said was, chevron deference guides how much discretion there is. This is classic chevron deference case. I also want to point out the remand is significant. This wasnt remanded on three bear procedural things. This was remanded because the court told sec it failed to consider the implications of Public Safety lifeline and pole attachment. What does that mean . The fcc failed to consider the impact of its 2017 repeal on First Responders and firefighters. Failed to consider the impact of that order on on the one that a program that is capable of providing subsidies to overcome the most, identified very to private access, and it failed to consider the impact on pole attachment which provides competitive opportunities for access and buildup. The fcc failed to consider Public Safety, ems and First Responders, broadband affordability of broadband tilde that access in its repeal. I dont want to understate the magnitude or the significance root of what the fcc has to do in considering the appropriate considerations for whatever it does. Going back to preemption, i think its important to recognize weve had lots of states passing laws in the absence of fcc engagement on Net Neutrality and, indeed, a complete abdication of its responsibility. Ive heard it say, eifert folks say the issue has been hunted to state and i would argue the states have been quite active for the past few years in establishing a track record of statebystate engagement culminating i think notably in the california Net Neutrality regime, some argue would stronger than 2015. This does open up opportunities in the states and does provide more clarity and confidence for states who may have been worried about coming in, about the legitimacy of the fcc assertive preemption. So we are at the open Technology Institute excited to continue to engage to lawmakers to help them understand the issue and to figure out what the best next step is. There we go. Just going to jump in on the preemption point. Im kristine hackman. H but opportunity to be here today. Going back to the region assumption part preemption part, it is an interstate service so that means it is national. Think about broadband connection youre not think about broadband is something you have exclusively in california or in vermont which is another state at his past Net Neutrality laws. You want your connection to work across the country. You want to be able to note java reliable broadband connection in california and if you are in traveling and from. The challenge is states to see this as an invitation to go in and start legislating, will ed up with a patchwork of different Net Neutrality laws that are going to make it very difficult for consumers because you wont know what to expect from the broadband connection depending on where you might travel. When it examples we have sure about is if you hop on the amtrak in washington, d. C. And u st. The movie on netflix going up to new york how many states do you go through . Theres a different broadband regulations that the providers have to comply with each of those different states. It makes it very difficult. When you look at the presumption we have to keep that in mind that the patchwork will be very difficult and will not have any expectations for consumers to clearly rely on. I want to bring up the other point that made, what the court did was just say no to blanket prediction. The commission cant go in at the outset and just lengthily preempt any state laws that do with broadband. The court did make a a distincn between the interstates and intrastate broadband. Not exactly sure what an intrastate Broadband Service might be, full disclosure im a lawyer not a technologist so someone might be able to correct me. We really need to look at the conflict preemption and the court did indicate that if there was a specific law that gave conflict with the federal policy of the light touch Information Service regulation, that could be held to be in conflict and then struck down under the supremacy clause. A couple things worth noting. With regard to the patchwork i would point out this is a patchwork of the Internet Service providers invited by pushing for the repeal of the 2015 open in that order which was a federal regime. This is a product, the fccs deregulation in this space and we have certainly seen Consumer Protection laws work on a statebystate basis at the state level. So the compliance issue i think is being fairly overstated. I do think there would be lots of fights that will be happening at the state level and that will create a lot of work to be done over the next few years as states consider having might take up the issue of Net Neutrality in the absence of fcc regulation. Im not convinced that we will see sort of totally workable patchwork. So to take things back a step from where we ended up right now, the basic idea in terms of what we saw in the decision is this concept that a federal agency cannot regulate where does that have authority. One of the things you take away from the Net Neutrality repeal an argument the fcc tried to push forward is the concept of the fcc does not believe it has authority to regulate in a specific field. The argument is because they dont have the ability to regulate, then have the ability to preempt. We talked about what that means. Matt explained this, right, the express preemption the court found agency did not fight the proper authority, did not have authority to grant the field. In the specific conflict of preemption which is where the trial is headed next, the court did not, general concept that its done on a casebycase basis, is it necessarily that the court a witty. The determining whether conflict presented exist, is done on casebycase basis. We talked about that work patchwork and what that means. Not only will we get net neutral protections on a state level but people move farther and innovate in step and avoid to protect consumers. That could mean some the things was touched on in terms of regulation and measures like that. What that means in terms of utilitybased regulation. All of this will be played on the court movie for but the real thing for consumers is not merely we would get net negatie protections on the state level but states might move farther with protections they need in terms of the relationship with their isps. A few points on that. I think that nobody disagrees that broadband is an interstate service. The fcc said so in the 2010 order, 2015 order, 2015 order. Thats the one constant in all this is its an interstate service. Preemption is not like the traditional fights we had with Telephone Service where there was a distinct local phone service and longdistance service. States have a clear role in regulating local service, do those regulations sometimes conflict with federal policy, and if they do they have to you. Here there is no role for states to play in regulating their state service. Its congress job to decide what is the framework for an interstate service. I think the best evidence of this is the 2015 order, the title ii order, paragraph 433 said we can only have federal law when it comes to deciding this framework. The importance doesnt change it certain advocates dont like the content of the federal law. Its still a federal debate and needs to be resolved by congress and this isnt a state issue. As to the notion the fcc summa advocated all authority here, thats just not the case. The d. C. Circuit just ruled last week is the fcc did have authority as an Information Service. The regular portion of the it outside the jurisdiction larger of the fcc. And the case was very clear that when an agency the regulates or regulates, federal law needs to be given. The fcc didnt just deregulate. It imposed a disclosure obligation under section 257 of the act which petitioner challenged as invalid and the court about that as well. I forgot to mention that. What the debate was is between judge williams and between the majority was timing. Can you preempt all state laws regardless other details in advance . Majority said clearly you cannot. The majority was quick to say, read for new guinea, if the commission can explain how a state practice undermined the 20 gene order, then it can invoke preexemption. It goes goes on to say that the preemptive effect of the regulatory choices the commission makes that are within its authority to have preemptive effect. What we will see in individual cases, california and vermont, two pending lawsuits im involved in, is with the fcc has authority to classify what had authority to rely on transparency, fcc backstop, at the trust backstop, and the state doctor dix those toys but im confident the was a estate cannot just has a 2015 order sets sets a state cannot contradict the policy choice of a federal agency. Nobody really disagrees that consumers should not be able to access the content and services and applications of the choices. Our members want consumers to reliably be able to access the online content they want, really where a lot of this debate is is the classification status title i which should be 2018 order restored or the title ii which was in place for only about two years. Prior to that the internet really grew and flourished under the title i framework one back to brandeis in before then with some of the policy statements coming out of the commission. As with think about the type of debate here, its not know protections or heavy, heavy had a protections. Its about the classification and be able to make sure that as we make sure consumers can still reliably and predictably Access Services they want, they have the protection but we also allowing the internet to continue to invest and allowing networks to innovate and doing all those great innovations, the internet that we had in 2019 is very different than internet we had in 2005, when kind of this debate just started. Matt alluded before then. You think about how much of that growth has happened under the light touch frameworks i think thats the piece that most of the debate is centering around. Just a couple thoughts and ensure theres lots more, obviously for me of you all here, but if we take unit Service Providers at the word that they no intention of interfering with your ability as Internet Users to access the content of their choosing, and amtrak example fails. If you are on amtrak in a joint is committed to allowing you to access all the content that you want, it shouldnt matter if the laws vary slightly when youre in virginia versus in pennsylvania, that the central obligations will remain the same and in that will continue to function as we expect and as historically, it is true that there has been different approaches to the classification of broadband throughout the history and neutrality. But the reality is that up until 2017 or 2018 when the repeal went into effect there were clear enforceable Net Neutrality obligations on the book. The fcc was simply resting with the best authority, the best way to justify those regulations. Sometimes that was title i. Sometimes that was title ii but what changed in 27 was a shift in classification the rather a shift in the overall regime of how Internet Users are protected when they are trying to access. So all internet providers by and large are committed not to block traffic, not to throttle traffic, not to engage in other anticompetitive conduct. What are we worried about . Let me tell you. The 2015 title ii rules, a completely open ended standard which essentially said something is a leg if the fcc declares it to be illegal. We will not tell you in advance what that is. Its frustrating to advise isps about how theyre going to comply with the standards when the fcc 2015 order davis you examples of commerce led to be inconsistent with the principles they were trying to essentially. Zero rating is a common debate whether wireless providers can provide certain content like video, netflix, without counting against the daily cat. If you 20 gigabits month can he give you free data . Sunset that would undermine Neutrality Principles under the said thats terrific for consumers. When he fcc was put this question, they said we dont know, well decide later. This incredibly uncertain debilitating effect, you cant invest or rule out a new plant. The amtrak example is maybe can do in delaware but not pennsylvania. The reason these lawsuits exist, in california and vermont, is because of those states tried repost this open ended internet commerce standard and we dont know what it means. We can live with prohibitions against blocking and throttling which nobody wants to do and which by clients and Kristine Smith was have called for federal legislation but we cant of the open ended standard when it provide no meaningful guidance and is only going to impede investment and innovation. Just as an exercise as you leave the room today i would urge you to compare the open ended general context added with fccs description of the nondiscrimination rules in the 2010 open Internet Order. They are very similar. What we see a lot of the time in this debate is industry liking open ended standards and tests when they work for them but hating him when they think they might be bad for the period on the zero rating example to fcc very quickly came out with guidance on which types of zero rating schemes they did find most problematic. To me that was the function of your workable, of the workability of the fccs approach in the internet or to pick it said there certain behaviors that are prohibited but we retain the authority to ascertain whether new contact in the future of whether certain things that might fall outside of those bright line prohibitions but otherwise harm Internet Users the building. It was a backstop for them to make sure the fcc retains the authority, not just to enforce those three bright line rules but to ensure there were not any loopholes in the rules that would allow consumers and to give a forum for assessing new prohibitions and behavior at the commission, which we dont have now. So really quickly for those in the audience are not only with the concept of zero rating, its when using specific service for isp or mobile ive been provided its not thats the basic concept, ground zero rating itself. We at mozilla believe its dangerous for innovation online. Heres why. The fcc did some work on this. For example, at t had their own zero rating plan. In order for an outside company to qualify for this plant other data and cost him 1640 santosh muster at t in terms of offering to consumers 35. In the long trump this is not sustainable model for small and mediumsize companies that are trying to compete with the vast assets of at t. Thats a zero rating. Thats what we needed with the general context will, to help companies who are small in this space before. Its not on google or netflix or facebook. Its about the next companies and thats whats at the heart of net because decision for us here at mozilla. I have pointed to screen on the generating issue for consumers but i think the most important what i will be able here with is it doesnt matter who is right. There has to be a clear answer to this at the federal level. Because again in each state is that undefined its own internet conducts standards and open into terms, but the making enforcement decisions that vary, it is a recipe for chaos. If you are a wireless provider Offering Service nationally or even overbroad region, whether youre violating this policy, whether the signal happens go to a tower in this area in virginia or maryland or in the district, theres, thats no way to run a Regulatory Regime or industry. There need to be answers to this question. There are difficult policy questions that can be fairly debated but to be the nuances of that would underscore it needs to be addressed at the federal level. The fcc has taken, said we will apply section five of the ftc act to decide whether broadband providers representations are unfair or deceptive when they talk about things like unlimited plans. It also decide whether they are unfair substantively in violation of antitrust laws. It is a cop on the beat and the ftc has said there happy to apply National Standards there. Great, thanks. Im going to shift gears a little bit and that was a great transition period i would like to talk about Congress Role in this issue. Some members of congress in both parties have introduced multiple Net Neutrality bills over the past couple of years but none have passed both the house and the senate yet. Could we talk more about this, what provisions are in the Net Neutrality bills that have already been introduced and dessert world where Congress Might reach bipartisan consensus on a Net Neutrality bill . I mean, i hope, i hope the sincere that there would be bipartisan consensus on a modern innovative framework that gives consumers the protections and gives clear lines of the road. This isnt just about broadband providers. This is also about the Innovative Services we all want our broadband connections as well. We want innovators to be able to come with a data caps, excuse me, sponsored dating can be proconsumers would want to make sure that there are opportunity to offer those services and plans that consumers want. There are a lot of elements, i given in both of these bills having worked on some of them on the hill and at the fcc. There is a lot of overlap in terms of types of Consumer Protections we want. We just dont want to have heavyhanded rule or Regulatory Regime from 1934 that was put into place, i mean, 85 years ago, thats a really long time. And to have this being applied to our modern Innovative Networks is just not the correct approach. There are different ways we can arrive and so we remain optimistic that congress will get it over the goal line. I think the time is certainly right for congress to take up this issue and, indeed, they have in earnest. I will say while this exact same piece of legislation has not been passed in both chambers yet, two very similar cases of legislation with nude identical object is, the which passed the senate, overturn the 2017 reveal, and the safety act which passed with bumpers and support, and the save the internet act which passed the house. So just think about this in terms of, i i want to be carefl when we talk about compromise that we are not trading away fundamental Consumer Protections or ignoring the vast amount of work thats been done on this issue and has been why we widely supported we have the opennet order which is upheld and its importance and validity from a legal standpoint by this d. C. Circuit twice by panel and then again on blanche wishing by the entire panel of justices. That order was then, the importance of that come that person this approach of three bright line rules, backstop commission authority, and, at that approach was affirmed by the senate when it declined, when it voted to undo the repeal from 2017. It was affirmed by the house with a majority of folks to the safety in that act, and underscored by vast public support of the american people, a a poll by the university of maryland found that 82 of republicans, 90 of democrats of democrats and 85 of Independence Support the approach in the 2015 open in that order and those are replicated a pinup with the exact same numbers every time i the fear methods that those polls in total sense is that the bipartisan majority of the public, vastly, support the 2015 open internet rules approach. As were moving forward in congress i think its important for everyone to remember the significant support that this has on a bipartisan basis, both in congress and certainly among the american people. We will approach conversations on the hill with the 2015 open internet approach as the best practice for what any for the legislation should cover, and certainly the safety internet act which is already past the house reflects that approach explicitly. I want to be an optimist, easy to point out, there is a lot of consensus on the underlying qualities it. Anybody agrees that should be Net Neutrality. Every isp is committed to having Net Neutrality. Why is this so hard . Its hard because we fighting mostly about labels, about title i and title ii. It strikes me as odd that congress which is in charge of the fcc and a charge of the statutes should get hung up on debating which version of the fcc order to endorse. Congress does need to endorse any order you can just write a law. We know what those principles are. Theres no blocking, no throttling, some restriction flat ban on paper organization. You can debate the details. Theres a lot a consensus on what the law should be an theres enormous support, industry, from consumers. I think we are never going to get there if we are sort of debating on, the people what the 2015 order of the fcc. People dont necessarily know what that means. In my mind whats really going on, and my friend here, i think acknowledging, theres interest in using title ii for reasons having nothing to do with Net Neutrality, mainly rate regulation and unbundling. I appreciate your knowledge that because sometimes people dont want to tell you that. If you want to talk Net Neutrality, lets legislate Net Neutrality but we dont need to sweep in a statute that will usher in rate regulation a and totally unrelated types of regulation because thats not part of the Net Neutrality. So the thing about open internet or is i think theres a law like we would need a constructive conversation, with a compromise. In a lot of ways the 2015 open internet or was a compromise. What we were for from rate regulation and loopholes unbundling. This is something that was moved forward with the idea we want to help take some of those from isp site and also provide consumers with ad protection before. Sarah touch on this but we have a version of net utility protections that have passed the Republican Senate during the cra vote last year we have a version of the state internet act that passed the this year. Like yes, lots of it but with the final form of the legislation should look like but we have a good blueprint to work for. Its not just the labels. Its not getting the details right. In the open in that order we have a mom for the details and other should work in practice. If the isps are concerned about rate regulation thinks they do not see, okay, we have consensus that we have way we can work with him on this particular issue. But to be quite frank, like they fought against this issue, body gets the consensus that was built and thats why were here where we are today. There was a wreck and since on rate regulation isps that said rate regulation is dangerous and inappropriate. I think the reason there was a consensus on that aspect of the 2015 order explains white went to court. The fcc said we will engage what they call prescriptive ratemaking, meaning there would be terrorists and fcc was that breaks into this but what refuse to do and the only reason that order was subject to appeal was to regulate rates in response to complaints. Also said we can bear this out. Kindly promising something with your fingers crossed enterobacter that didnt provide comfort to industry that we could invest with the certainty that the government would come in and set different rates that would undermine your recovery. That is the big fight and if people are serious about taking rate regulation of the table, i think we could get to a resolution of this much work was a. If Congress Just passed an amendment to the medications act that said no rate regulation on isps, and you would be okay with the 2015 . The other major issue is the common standard. Use basic of that was the issue isps sued over and speedy a work to make once, one was rate regulation and as i did want to repeat myself was the internet speedy but again think how we want to regulate these networks going forward. The internet really great because it was regulated under the light touch regulation. Like lets have a moment and compare some of the advances in telephone systems versus your internet. In a very short on the internet was able to eclipse what we were able to do under the title ii regulation because its permission list innovation but does not unbridled, not mentioned. There is a transparency will also coupled with enforcement from a federal trade communication, commission. Which has been the cop on the beat for this. We need to make sure we are not just going to be constraining future innovation and investment. What we saw during the two years of Net Neutrality, the 2015 open internet Internet Order was, in fact, was that investment brought bands went down and then once the 2017 order or the notice to propose rulemaking was indicated, that is coming along with our investment should back up. Thats not the only thing that couldve accounted for investment in that time. The court made clear to note u. S. Telecoms prior reports of done that but it is a strong indication that when you have heavyhanded regulation, that will impede investment and innovation. I will say the one constant that has fueled the prolific growth of the internet is the fundamental principle of nondiscrimination and the ability to go where you want online without isps interfering with those decisions. That principle in various forms has underscored how the internet works since its earliest days. We can play the game. We can play the investment numbers out to pick will have a few minutes left. I would just, lots of research and analysis has been done every feuds the claimed there was this, like, if an investment that aligns perfectly with the period of time to which the 2015 open in that order was was in effect, but the reality is that the vast majority of the growth of the internet happens because Net Neutrality with something that the fcc had committed to across republican, fcc chairs and democratic fcc chairs since the 2005 open internet principles. Let me just agree and disagree. Yes, theres always been a commitment to these principles, but the debate is how do you enforce them . What is the role of government . When i was at the fcc under chairman powell, he gave a speech that became brahma as the powell for freedom. They articulated really for the person what Net Neutrality protection should look like but in his life these were marketbased principles that providers would adhere to and it was important that it ended up inside in a policy. That was not the buy new set of rules, and even more important it was not title ii. And was not held to be grounded in the source of legitimate authority by the d. C. Circuit. But despite all that the internet works, worked really, really well. I think the point is where all the green the internet has worse, its been this incredible engine of civic discourse and investment and entertainment and engagement and one of the great speakers isps had not repeatedly sued to fight every stage of the fccs attempt to oppose Net Neutrality protections in this space we would not be here today. I dont know what that means other than speedy we wouldve had the 2010 rules. Isp suit. One sued. The point i would make simply is for this. Most of the history of the internet, which isnt all that old, the passenger of the title ii has not been a place was in place from 2015 through the end of 2017. Thats it. And yet the internet has been incredibly successful under a light touch machine. Maybe the best proof in the pudding is after the repeal of the heavyhanded title ii order, these all these predictions in it was going to stop, going in. The sky was going to fall. Remarkably our internet still works really well and nothing is changed. To that point, focus on quickly. This idea the internet the idea here is that we are like still, this was potential litigation on this. Because of that threat, because of the potential litigation the isps have tend to be under best be. Thats one point. The second point is that we expect that i i expect us to me slowly. I expect small things like the rating that may not be like initially i painted to consumers to move forward and move slowly into more prohibitive forms of isp bad conduct. It can be very, very difficult to enforce when you type a monopoly that actress. I think that is really where the fear is in terms of how we have, why support to keep fighting for this protections going for. Importantly, we dont call him a cop on the beat at the fcc to figure out where heart artery. There may be lots of bad actors in the space. We just havent surfaced quite yet because it is not, there is nothing you to air those types of complaints and we have seen examples of problematic behavior that wouldve been the type of behavior we wouldve won the fcc to set, the interference of firefighters access in california during the california wildfires. We can debate, sit on this panel and debate into we turn blue whether not the way to that connected held a violation but the reality is we have no agencies that is empowered to assess it. So speedy what about the fcc . Thats a pretty big agency. But they are Still Limited to at the competitive which is speedy know, or they have rulemaking authority. They can only act after the fact. But thats what we are debating, is complaints. Provider was engaging in anticompetitive privatization or throttling they would have to be transparent about that and then there is sufficient, and the court did find the commission wholly justified there was sufficient competition and the broadband marketplace right now to be able to support the transparency and then if provider is engage in those practices and not been transferred about it, then thats when the ftc would step in. I would like everyone, like your broadband provider does not have an incentive to throttle you. Their intent is to be able to make sure that there is traffic on our networks, that they can be able to deliver the services and the product. When we are looking at the competition so the court did uphold that part of the argot for the competition and also with the investment analyses that were done, they found there was substantial evidence to show that, so the commission fully justified its position. The court did uphold those portions of the order that to support the current framework. So in the decision, the court believes theyre going to defer to the agencies judgment on competition, even when there are less than two that provide in a given space. Obviously, i appreciate theres economic work to justify that, but it think that judgment defies common sense. To have competition you need at least two back parties to create like a market for a thing, right . I think the court said wind are two providers, not more than two. Less than. I dont think thats what the court said. We will check again it was less than two. Great. Were going to turn over to audience questions in the moment, but very quickly i just wanted to ask if there are any next step for consumer goods, Internet Companies are broadband providers, all the opportunities for appeal of this case, and if so what might that look like and what might that timeline be . I suspect we all say we are still considered our next steps but theres a world of possible next steps that includes a petition for a Panel Rehearing by the d. C. Circuit, a petition for a rehearing en banc in all the judges can most of the judges of the d. C. Circuit, and a petition at the Supreme Court if the thinkers are sufficiently ripe legal question for the Supreme Court. All of those are on varying timelines and its important to note that any one party could initiate a petition for either rehearing or en banc competition by the panel or en banc and any part including petition. In terms of timelines, its due november 15. Nobody seeks a rehearing, it would be due december 30. If there is a rehearing that pushes back the timeline. Does anybody any audience have any questions . Go ahead. President trump made the unusual step today of tweeting his support for the d. C. And that was used because has [inaudible] would it if you like to respond to his positive reaction to that decision . [laughing] matt, have you got feelings on this . I do recall when president obama, in november of 2014 spoke out in favor of title ii not just in favor of Net Neutrality but the authority so i guess there is precedent for elevating this to the president ial level. I will just say i hope support can be a bipartisan issue and obviously i think we have some work to do among republicans to bring them on board but looking for i think that something democrats and republicans can embark on both here in congress and hopefully in the executive expert can i go back to list of whats next step . I forgot one, which is as we are watching which things, where theres rehearing or cert, we shouldnt forget as he does every man on display and it has been directed by the court to go back and reconsider its 2017 effect on Public Safety, pole attachments. Part of Congress Role can be ensured in the fcc, as it does that and i think particularly pushing the fcc to answer for the millions of Public Comments which report from news reportse now showing were fraudulently directed with ties to broadband for america in which populate the docket in which the commission as the fully answered for yet. I think were time for just one more quick question. [inaudible] going back and forth, just wondering if this actually [inaudible] gives the ip providers like the confidence that they have stability to invest . I can try to take that one is a unequivocally no. I mean, the problem with what is called this pingpong match, title ii, title i, title ii, is debilitating for everybody involved. I dont think you may want or benefits from a constant coddling between different regimes and thats why my clients and begin kristine members in the Telecom Industry really uniformity favor legislation to come up with his stable regime thats not going to be back and forth every few years in change with each administration. I will reiterate that hardly has articles exclusively been because of isp lawsuits over previous iterations of Net Neutrality. Or speed is one lawsuit which result in what order that was upheld the d. C. Circuit. Thank you so much. I think thats all the time we have today, so thank you very much to our panelists. Thank you to the congressional internet caucus and also thanked her audience become today and exploring this complex legal and policy issues regarding Net Neutrality. So thank you. [applause] [inaudible conversations] [inaudible conversations] a look at our live Coverage Today here on cspan2. 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Cspan will award 100,000 in total cash prizes plus a 5000 grand prize. Had a camera, microphone, and go start filming and produce the best video that you can possibly produce. Visit studentcam. Org for more information today. We take you live now to Johns Hopkins school of advanced international studies, this is a washington, d. C. , for and look at trends in russiaukraine relations and the role of the west in that dynamic here at Johns Hopkins date will be hearing from a Deputy Assistant secretary of state come from the george w. Bush administration during the discussion, again watching live coverage here on cspan. Also live on cspan2. Also live today joe biden will be campaigning in rochester new hampshire. That live coverage scheduled to get underway shortly and you can also watch that at cspan. Org or over on cspan or use the free cspan radio app. [inaudible conversations]