Fccs decision and the restoring Internet Freedom order was permissible and was, essentially, completely upheld. Its a big win for consumers, its a big win for innovators, big win for investment in broadband in america. And essentially e what the court said was that the fccs 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 ii order, was permissible. Its consistent with Supreme Court precedent, and this d. C. Circuit was not going to make a determination that the fccs crassification classification was incorrect. Because its within their discretion as the Expert Agency to classify broadband as an Information Service or as a telecommunication service. What it did also say was that the commission and the one area where the commissions decision was vacated, which doesnt come up until page 121 of the report. Everything up to that point was upheld. That, look, the fcc, you dont have the ability to expressly preempt any state action thats inconsistent with the law. However, while some will try to suggest this means states are now free to impose their own laws, i think thats a very significant overreach of what the decision actually said. The decision was very cheerily focused clearly focused on the fact that to the extent theres an intrastate service, states do have the authority to try and regulate that service. But the commission made very clear in this order as well as in the 2015 order and many before that, that broadband is an interstate Information Service. I think its going to be very difficult for states to actually be able to find a law that is not going to be inconsistent with the federal regime are going forward. So the way we view the case is that this was essentially a win for the fcc completely, which is a win for consumers and its a win for innovation. Host now, who do you represent . Guest i represent u. S. Telecom, an association of broadband innovators and entrepreneurs that serve every single corner of the United States from Large National corporations to Small Companies who serve one or two statements with 10,000 customers or less. Theyre building networks, theyre providing the onramp for the internet to consumers, modern education, telehealth opportunities, creating jobs in their communities. And not only that, but also powering the future of Wireless Connectivity 5g Networks Host is so company like verizon, at t, xfinity are all members guest not xfinity. Comcast, a at t, also small and mediumsized companies. Host gigi zone, i know you have a lot to respond to in his statement, but right after the decision you tweeted out that this wasnt a complete victory for anybody and that the fcc barely won. Absolutely. So as patrick said, the court upheld most of the fccs innocent neutrality repeal order. Innocent neutrality order. It only restored Internet Freedom for broadband providers like patricks members, but certainly not for consumers and not for innovators. So it did uphold on a very narrow basis and theres 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 it makes these complicated technical decisions under a court case called chevron, they get a lot of discretion. And as a 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 just, they said we think the internet has changed and Internet Access has changed completely and that the Supreme Court needs to revisit brand x in light of changes how Internet Access works, but we feel constrained by brand x. Is you have the Supreme Court precedent can, you have the usual discretion, so much of the order was upheld. However, and this is why i 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 didnt address the concerns of public stay and what safety and what reclassification, in other words, what deregulating broadband once again would do to Public Safety. And not just the connections between Fire Departments and Police Departments, but also between Fire Departments and Police Departments and their customers who they need to reach. Not customers, but the citizens they protect. Number two, you didnt really hash out the problem of deregulation on access to pole attachments; specifically, states ability to regulate the rates and access to pole attachments. And thirdly, and this is critically important as well, you gave the courts at the back of the hand to the argument that reclassification would harm subsidies for poor people. Its a program called lifeline. And basically sent those three things back to the fcc to look at again. And they could have easily, in my opinion, say candidated the order just based on those things, but they didnt. So let me get to the states, because i need to respond to what patrick said. The court was very clear that if an agency lacks authority, it cannot then tell the states that it cant regulate. And what happened when the fcc deregulated broadband, reclassified Broadband Internet access as an Information Service rather than Telecommunications Service and also said that another part of the Communications Action, section 706, does not provide authority for regulation, it washed its hands, it abdicated its authority, its ability to oversee the broadband market. And the court said, well, youve given away your authority, you now cannot tell the states as well that they cannot regulate. Now patrick says, and hes correct, that his industry, the fcc could now go state by state and try to use a theory called conflict preemption to overturn, to preempt these state laws. The problem is the court went very, very deeply e into the fccs arguments for the, for larger preemption, for preempting all the states at once and rejected every single one of them. And the court said the central element is authority, right . Its congressionallydelegated authority. And if you dont have that, you cant preempt. So im not going to say the statements will have either an easy the states will have either an easy time, its going to be case by case. But it aint a slam dunk east way. And i either way. And i do think states now are going to test the bounds of this Preemption Authority, and theyre going to start to pass laws. And that, to me, argues and well probably agree on this, or we wont agree on how this argues for a federal law. Guest we agree with that that. [laughter] we probably agree on the importance of Net Neutrality as well and that consumers should be able to access the content they want when they want, on the devices they want. Net neutrality is a concept, its a principle. The idea that any consumer should be able to access the cop tent that they want on the networks that theyre using when they want. We glee with that. We definitely agree that the best answer for all of this is a national federal, modern framework that provides Net Neutrality protections that consumers and businesses want. Let me respond to a couple of things that the gigi said. On the remand issues, while gigi may think that the court should have vacated the order because those issues were not sufficiently addressed according to the judges, the court didnt think they were significant issues that required the sake to have of the order. What the count said, look, on Public Safety you didnt sufficiently address this issue in the order itself. It didnt say you addressed it wrong, it said you didnt sufficiently address it. Similarly with the lifeline point, the broadband the impact of the lifeline broadband subsidy on this decision. It didnt say you got it wrong, it said you didnt sufficiently address it. And with respect to pole attachments, again, the same thing. Theres things the commission is going to have to address on remand at some point, and im pretty confident theyre going to address those issues and, you know, thatll be a process where all of us participate in the rulemaking process at the next stage. But certainly, the count did not find those issues to be serious enough to warrant the case from being overturned. With respect to preemption issue, im sure that folks on gigis side will look for sentences in that decision that are helpful to them, we will do the same. What was clear was the court said because you are classifying broadband 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, right, 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 very 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 ticket court can, in fact, find that there is con flicks preemption. And i think its really important that in the discussion it was very clear that the judges were concerned about intrastate. The fcc, you know, going over the bounds by expressly preempting any state activity including potentially the regulation of intrastate services. And i was looking at the transcript of the oral argument, and the chief judge on the case, she said let me clarify. Youre not saying states can step in and do interstate regulation. Thats done. The question is whether states can regulate whats in their wheelhouse, intrastate, right . She said theres no federalism history of one state regulating an entire region of the entire country. The state will have to establish that what they are doing is within their intrastate wheelhouse. And the other than arguing for the other side said were talking about things like disclosure requirements, unfair business practice regulations. Look, even restoring the Internet Freedom order said that states can continue to use their general Consumer Protection authority. Thats never been an issue under the title ii or restoring Internet Freedom order. The issue is when a state like california attempts to impose common carrier regulation on what is now an interstate Information Service as upheld by this court, i think thats going to be a real difficult task for them to convince a federal District Court that what theyre doing, you know, regulating an interstate Regulation Service is not in conflict with the guest patrick can keep calling it an interstate service as much as hed like, but the fact of the matter is its largely intrastate. That last mile that his members provide actually is in state. So i could just as easily keep saying its an intrastate service, that states do have the jurisdiction over. But another thing that the court pointed out that i think is really important, and this is true of both telephony and broadband, is that the Communications Act talks about both the federal government and the State Governments having joint jurisdiction, right . So section 706 that the provision that the 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 ii and telephony. So these areas of Communications Access have always been a hybrid. So, again, this is all to say a court will look at these cases case by case, and i certainly hope that path rigs members will patricks members will focus on getting a strong open internet Net Neutrality bill passed through congress. Theres actually one sitting right in the senate right now, than focusing on going state by state. But if i could make two other points. Point one is while, again, getting back to the chevron deference, this deference that agencies have, its a troubleedged sword. Doubleedged sword. Because if the fcc changes in 2021, they will essentially have a road map to go right back to title ii if they wanted,ed, to l right . I say to people, and ive experienced being a former litigator, you live by chef to ron, you die by chevron. Host could you briefly explain chevron and brand x . Guest so the chevron case has nothing to do with telecommunications, okay . It actually has to do with environmental regulations, and it says when you look at the way an agency interprets its what they call organic statute in this case the Communications Act if the plain language of the law is clear, then that answers the question, right . If theyre going against the plain language of the law, then the they get reversed. If theyre going with with the plain language of the law, then they get upheld. However, as some would argue is the case here which certainly the court said is the case here, the language of the Communications Act is ambiguous, the court looks to see whether, what the agency did was arbitrary and capricious, okay . Or unreasonable or, you know, doesnt what i call wacky, right . So thats a very, very broad standard of discretion. So if the laws not clear, the agency gets a lot of rope to make a decision, right . Its almost like a coin flip. They have to really be either not addressing an issue like they did with Public Safety and lifeline, or be so way out there as far as the evidence on the record although not match their decisions to the record. Those are cases where the fcc, where the counts will reverse. But it doesnt happen very often, although its happened to this fcc more than one might think. So thats chevron. Host do you agree with that interpretation of chevron . Guest yes. And thats why in this particular instance the court said what you have done here is reasonable, just and thats her point about the regulatory pingpong that goes on when you have senate deference to the Expert Agency, which is why i think we both agree that it would be much better if we didnt have this ambiguity because there was a modern federal statute. Now, we may disagree on the language of that statute, but i think we actually have more. In common host and, gigi, i apologize for interrupting. Guest yeah. I do want to make a point about the difference, because i think its critical. But let me get to what brand x. To brand x actually was a case in the telecommunications area, and this decided the question of what classification should cable modems serve. So this was back in 2002, very early days of broadband, dsl with the telephone companies, and in this case went all the way up to Supreme Court, and what the Supreme Court said was the fcc was well within its rights to classify Cable Modem Service as an Information Service because at the time these services included web hosting, they included email, they included and still do include in some circumstances dns, domain name service, and caching. It was functionally all these Information Services were all part of a bundle that turned antonin scalia, justice scalia, thought was a Telecommunications Service into an Information Service and that the law was vague and upheld the fcc. And this was mainly what both fcc in its 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 guest the point that gigi made, and i do think this is important because as you can probably tell from our discussion, the big issue here is going to be the states, right . Well see what happens in terms of whether either side appeals the classification, the Major Holding in the case, but where the true ambiguity lies is what the decision truly means for state authority going forward. And i think its important to note that the one thing that perhaps both the 2015 title ii order and the restoring Internet Freedom order both agreed on was that states were preempted. So when gigi says that most of Broadband Internet access is intrastate because its the last mile, let me tell you what the title ii order said about that. It said we reaffirm the commissions long job standing longstanding conclusion that the internets inherently global open architecture enables edge providers to distribute content to a multitude of jurisdictional points, extremely difficult if not impossible when