Proposing to give internet providers control over how broad Brand Content is distributed. Hats at 10 30 a. M. On cspan. And on this weeks communicators, a discussion on the fecks upcoming debate and vote on repealing the Net Neutrality regulation. A couple of weeks ago brendan carr, the newest member of the feck on the republican side, was a guest f. C. C. , on the republican side, was a guest on this program. What this document proposes to do and ill be voting on it on december 14, is return the internet to the exact same Regulatory Framework that govern the internet starting in from 2015 all the way back from 20 years that preceded it. Under that environment we saw massive investment in the internet ecosystem, we saw consumers protected and we saw free and open internet. So most fundamentaly, we all believe in a free and open internefment but the question is, whats the right Regulatory Framework to ensure that . I think the document before us well be voting on puts us back on the right framework. You were at the f. C. C. With democratic chair tom wheeler during the time net neutral was Net Neutrality was debated. What did you think of what commissioner karr had to stay in i think hes engaging in revisionist history. Number one, it deregulates broadband. It basically takes broadband oversight out of the f. C. C. Entirely, and gives it to the federal trade commission, which does not have as strong tools. Thats number one. Number two, it eliminates the rules against Internet Service providers like comcast and at t, blocking, throttling internet traffic. And allowing for whats called fast lanes. So in other words, charging online providers to get to the consumer faster, with better quality of service. And thirdly, and this is really important, it preempts or prohibits the states from protecting consumers and protecting competition with similar rules. So this is very, very radical debarture from 20 years of both republican and democratic f. C. C. Chairs saying, number one, we think the f. C. C. Has the authority to protect consumers and competition. And we think that we should actually do something about it. So i disagree with commissioner c a carrs telling of the history. Why did your duringier tenure at the f. C. C. Did it feel necessary to have title two . For the internet . So in january of 2014, the d. C. Circuit court of appeals, thats the federal court of appeals here in washington, d. C. , overturned chairman jankowskis rules. He had Net Neutrality rules that were grounded in a different part of the communications act. Title one. They were pretty strong rules. I didnt agree with all of them. I thought they could have been stronger but they were pretty strong. In fact, when i was at a nonprofit, we supported the f. C. C. In coumplet but the court said, im sorry. You cannot have these strong rules under title 1 of the communications act. So in order to have strong rules, it had to be grounded in title two. And thats why we went to title two. But even more importantly, i think this is critical, we did not apply all of title two to Broadband Internet access. In fact, we didnt apply 30 of 47 provisions of title two because we didnt think it would be in the Public Interest to overregulate broadband. Robert mcdowell, former republican commissioner on the f. C. C. , youve heard a little bit of this discussion. Whats your true . First of all, thanks for having me back. Always great to be on. Always great to be on with my old friend. Happy holidays to everybody. So, hopefully the end of the semmingt we can say the same thing. But i think the important to talk about history and theres a lot being written about this debate and so thank you for having this opportunity for to us kind of go into what are the facts and what is the history and what does it mean for consumers and entrepreneurs. There are a lot of articles out there that are being writ than are clearly clickbate. The commissioner has a good point much that was a good clip to play. If we are going to define Net Neutrality as maximum Internet Freedom for consumers and entrepreneurs and everybody in this space, really the debate is over which federal statute that already exists is the best to do that. To protect consumers. If you look at how the internet started from when it was privatized in the mid 1990s, up until the title two order in february of 2015, still have about 1. 4 trillion invested in broadband infrastructure alone during that period of time. So, there are three acts, at least three federal statutes that protect consumers and entrepreneurs here. And theyre very powerful and they do have teeth and they are the sherman act, the clayton act and the federal trade Commission Act. There are also state protections. Yes, the order says it preempts the states from being little f. C. C. s and trying to regulate the economics of brooned, but what it doesnt do, it does not prevent states attorneys general for suing providers. Plus, there are the plaintiffs lawyers, trial lawyers, who can bring class action lawsuits if Internet Service providers breach their terms of service or contracts with consumers. So, those three powerful federal statutes, plus a bunch of state actions, have provided since the beginning of the internet a strong and powerful disincentive to act in an anticompetitive way that harms exhumers. Harms consumers. On top of that you have a more competitive and robust broadband market. The internet market, broadband, has been going mobile for many years. Over about 90 of u. S. Consumers have a choice of four broadband mobile broadband providers. And that is a key element here. Mobile broadband has faster speeds today than cable did 10 years ago when this debate was starting to ramp up. And that is becoming a competitive threat to cable. Were seeing more over the top fragmented content and apps. I look at my kids, ages 16, 18 and 10. Theyre looking at the mobile screen. Theyre looking at over the top ondemandtype video. And that were seeing the marketplace trying to adjust to, that trying to figure all that out. Youre seeing more attempted vertical integrate. Verizon buying a. O. L. And yahoo . You have comcast purchase of Nbc Universal. Which was blessed by the Obama Administration and the obama f. C. C. All those are defensive maneuvers because the internet marketplace is disrupting these incumbents. What this means is you have more households moving toward mobile. You saw last monday, cybermonday, really become mobile monday. With about half of all the purchases made on cybermonday over mobile devices. More than half of all u. S. Households are wireless only. So this is actually a very good news for consumers. And what the order will do at the f. C. C. , it will preserve Consumer Protection and protection for entrepreneurs, and it will allow more certainty for the investment of over 300 billion thats going to be needed in the next 10 years, to build out fifth generation wireless networks, which will have one giga herts of speed or six times faster than what you enjoy now with 4g. And the three million jobs and the 500 billion in Economic Activity that should come from that. So you can have you really can have a winwinwin environment like you had from 1994 when the internet was privatized, until 2015 when the title two order interjected a tremendous amount of certainty. We can talk more about that in terms of all the independent wall Street Market analysts who said theres uncertainty as a result. We can debate whether or not theres been a down turn in capital expendtures to fund these new broadband net, with. A lot of data out there. The last thing ill say on this point, real quick, im glad im here with gigi. This debate needs less heat and more light and weve lost nuance and facts and so im delite we have this time here on cspan. If i could shed some light and shed some facts. Lets talk about the federal trade commission. Because as i said before, and as rob has confirmed, what chairman pai is trying to do is give over all oversight to broadband, Broadband Internet access, over to the federal trade commission. I find that remarkable. That the f. C. C. Started in 1934, and it was told by congress that your job is to oversee networks. Right . Whether they be broadcast networks or Cable Networks or the telephone network. So this f. C. C. Is saying, we dont want to have oversight to access to the most Important Network of our lifetime. I just find that remarkable. We want to give it to the federal trade commission. Why does the federal trade Commission Fall short . It falls short for a number of reasons. Number one, it has no rulemaking authority. Rules are important. They prevent harm before it happens. To consume harm to consumers and harm to competition. Thats number one. Number two, the f. C. C. Sees its authority as very narrow. Over unfair and deceptive trade practices. Meaning, that if an Internet Service provider lies and says, im not going to block, im not going to throttle, im not going to have fast lanes, and goes ahead and does that, then it will go after the Internet Service provider. Its not going to do anything if, for example, lets say comcast decides to double its prices. The f. C. C. Can do nothing about it. What if an i. S. P. Blocks speech it doesnt like . The f. T. C. And frankly antry trust law can do nothing about it antitrust law can do nothing about it. More importantly, and this is something that really gets lost, there is a case right now pending in california. In the ninth Circuit Court of appeals. That would strip the f. C. C. Of all oversight over broadband, even if chairman pai and the f. C. C. Reclassifies. I want to get into the weed i dont want to get into the weeds but this case was out there it was brought by at t, interestingly enough. Even if chairman, ai and his colleagues reclassify, the f. T. C. Would not have authority over broadband if at t wins this case and still pending in the courts. Let me talk a little bit about competition, if i might. The chairman pai a couple months ago, put out his own numbers about who has brooned internet, a sess access at the speeds that the f. C. C. Considers Broadband Internet access. Number its look like. This 58 of all census blocks have a choice of zero or one brooned Internet Access provider. 87 of a choice of two or less. When you measure by census block, the way the f. C. C. Measures is if one person in a census block has broadband and, then they all have broadband. Those numbers are even worse. Nobody knows what it is on a household basis because the Internet Service providers are not required to give that information over to the government. That is not competition. And mobile is great and maybe one day 5g will provide speeds that the f. C. C. Considers broadband. But today it doesnt do that. Theres a lot there, where to begin. The f. C. C. Can intervene being blocked. Sherman act, sections one and two, you have section five of the federal trade Commission Act is broad and flexible and nimble. You dont have to bundle, you dont have to hire expensive lawyers. The federal trade commission itself is a 313 Million Agency with 640 lawyers and 70 pampede economists. What they do in part is look for trends, look for bottlenecks and they are a giant, Public Interest law firm essentially. The parade of horribles that come out from title ii proponents can be cured by antitrust law. The first six years of the Obama Administration we didnt see Net Neutrality complaint brought to fruition or an antitrust complaint brought to fruition. What was broken that you were trying to fix with title ii . Thats because other competitive Market Forces as well as the free federal statutes i mentioned plus the state law out there acted very act as very powerful deterrents. There are a couple of handfuls of incidents she might start, all of which result before the tite 8 ii order and were never really brought to a head even after the Net Neutrality or open internet was brought. An antitrust case takes years to come to flew igs. Theres a Supreme Court precedent that makes it harder for the public to bling thees cases. The f. T. C. Comes into antitrust gets into competition. Say youre a startup, you cant a i ford to go in the fast lane and your investors are saying were not going to invest in you unless you can get in the fast lane somehow, unless people can see you you dont have time for an antitrust case to wednesday its way through the courts. Youre going to be dead meat. This is why rules are so important. Because rules moderate bad behavior, lit consumers know what their rights are and protect consumers and competition before theyre harmed. And the f. T. C. And antitrust law cant do that it canch but lets go to her premise. How does it do rules . It doesnt do rules. But section 306 the clayton act, prevents exagly what you just said. Lessening competition. Thats a section 3 clayton act claim. The f. T. C. And department of justice can react quickly, didnt because the claims didnt come forward. You did not have systemic market failure here. Thats one thing lacking in the 2015 f. T. C. Order under title ii a market study systemic market failure. Lets get to the point of the regulation which is before the fact, some would say mother may i. Do you have to go to the commission, the f. T. C. , in order to present your case to say can i do this . Can the marketplace experiment in such a way . One example is ratings. Mobile had a product where certain video wouldnt count against your data cap. First the f. T. C. Gave a green light to it, then a yellow light. Tmobile said, all were doing is if you meet the signal parameter, it wont count against consumer data caps. Its very popular. But because it was a mother may i rule before the fact get permission if the government there was an interruption in how this could happen for months and months. It wasnt just a day or two, it was a log time a big question, pop lar would this be able to happen . It was also caught when Free Internet was offered in india, they said you cant offer Free Internet to the poorest of the poor because that could violate the tenets or the small harbor religious conviction. Thats when it becomes unworkable. Markets and analysts and the folks who have to fund 300 billion say were going to deploy that more slowly if at all. Theres more in the record from the mom and pop, one or twoamerican person operations that Service Rural areas, worked with evidence in the record saying 0 of the members have been told by lenders they wouldnt get the money or as much money as they needed to build out their networks. Its affected investment directly, thats main reason chairman pai is doing it. Ill get to the investment in a second but let me talk about mother may i. No block, no fast lane. That is prohibited. No mother may i. Its not appropriated by antitrust law. You can read your talking points but theyre not youre right, i do have notes as well. Thats number one. Number two, we left viewer rating open, im not sure it was the best idea, on second thought. Viewer rating is not about free data. Viewer rating is about favoring serb applications an saying they do not apply to the data cap. We we zrnt a problem with that, what we had a problem with was at t favoring its directv content and saying the data cap does not apply. I want to ask as a general question, if video does not get applied to the data cap if thats zero rate, why do you have a data cap in the first place . The reason its there in the first place is to create scarcity to favor your own content. We did not bar zero rating. There were a lot of calls to do. So but we did not do it, just so we could make sure that we would allow new zero ratings models to happen. And some like d mobiles was fine. At t we were about to say and then ran out of time, were not fine. Let me talk about investment. I think thats really, really important. Ople have to say to see what isps are saying, not one told investors or securities and Exchange Commission that title 2 harmed its investment. It said the exact opposite. The c. E. O. Of chart therbling c. E. O. Of comcast said title 2, were afraid that title 2 the stronger regulation, the more utilitylike regulation, did not harm us. If you would give me a minute, i have to read something from charters blog post. Charter is a big Internet Service provider, cable company. Its a block post from last week. Two sentences. While customers may experience these speed upgrades as if a switch had been flipped they were made possible by charters ongoing investment in infrastructure and technology. These allow us to better serve our customers every day in ways big and small. Since 2014, charter has invested more than 21 billion in these critical areas. So they will investing and thats what they till wall street. First of all, wireless in the past two years, Capital Expenditures has fallen 18 . Some of that from public information, some from privately held companies. Right at a crucial time when we need to build up 5g and thats a Global Competitiveness issue, we have asia and europe fast on our heels. Theyre going to beat us on 5g if were not careful here. We need to create an atmosphere where its welcome. Data caps, theyre gone. Why are they gone . Competition in wireless you dont see data caps anymore. Its a moot point. But let me get to another point. Why are you worried about zero rating . I use it as an example of mother may i. Not whether come on. Go out and renegotiate your contract. Lets talk about content. You have vertical integration, verizon buying aol and yahoo. At t with directv and directv now. All those are isps that have content and others have Regional Sports networks and other content. Even if theyre licensing condition tent, realing is reselling other peoples, they have an insent toiv show content on this. They want customers to be watching their content on this, whether theyre a Wireless Company or not. So if come its a has Nbc Universal content and thises a Verizon Wireless phone they dont want verizon throatling their content. A tnt doesnt want some other company blocking their content. Other isps, its almost a form of mutual assured destruction. If one starts blocking or throttling content because of Market Development the others youll start a war with it. Theyre all going to kill big revenue streams. Its not logical for them to do that. In other words the incentives are there for them to not block and throttle each others content because of vertical integration. This is a point that doesnt get discussed in any of the news stories you see about this issue. Theres yet one more market pressure thats keeping networks open. What youre not discussing, rob is that both the federal Communications Commission and the department of justice both in this administration and the Previous Administration found that vertically integrated carriers have the incentive and ability to discriminate. So when charter bought Time Warner Cable or when at t bought directv and now at t is attempting to buy time warner entertainment, being blocked by the justice department, all three times, the record has shown that the government has been concerned theres an incentive and ability by these vertically integrated operators to favor their own content. It goes against all the records of the mergers that was happened in the past several years. Universal was abriveed the department of justice and fmplet c. C. That was unfortunate in my opinion. The obama the president who appointed you or should have anyway. Havent gotten there yet. Maybe someday. Theres a spot open, i hear. What are you hearing . You nover know. Might be a spot opening on the f. C. f. T. C. , maybe some terms are up. One of the arguments the republican side has made about this is what commissioner mcdowell said a minute ago,s that problem looking for a solution. There has been no throttles or Net Neutrality cases that would justify title ii. Zevpb rob admits there has been, right . Comcast blocked victor, at t blocked facetime, at t blocked google wallet. Netflix was being throttled by comcast and verizon in 014. There are examples. Have there been dozens . No. Thats because until now, f. C. C. Chairs have believed in an open internet. Even though there was disagreement as to whether it should be a policy statement or rules or they should be under title 1 or title 2, this is the first time that anybody has said you know, no rules, no policy, no authority whatsoever. So Internet Service providers were on their best behavior. I will tell you one thing, if this thing goes through, which i expect it to next week, within six months, or maybe whenever the litigation is over, comcast, at t and others will start charging online providers for faster service, better quality of service, what i call fast lane. It will happen. The proposals that chairman pai put out talks about Innovative NewBusiness Models the isps want to do, this is what hes talking about. Hes talking about fast lane. About markets. Hes talking about fast lane. This is what the internetter is vice Service Providers wanted to do since 2005 when ed whittaker, then head of at t, said im not going to allow companies to ride over my pipes for free. One by one the companies are admitting in one way or another that this is what they want to do. So thats what people should expect. Should this go through. As gigi said earlier, without the government, without strict rules, we have isps deciding who can be online. No. There are strict rules, as i said at the outset. Three very strong, powerful, federal statutes. Two very strong government federal agencies, there are 50 states attorneys general. There are plaintiffs lawyers all over the place. There are so many legal preempted. Not for Consumer Protection. You need to read the proposal. I did read. Theyre acting in a deceptive way. Deceptive. There are tons of legal arrows to protect consumers. Let me read you something. Theres speaking of revisionist history, its been the long held as a republican, george w. Bush appointee, i was defending clintongore administration policy. There are plenty of rules out there before what happened. If this internet distaupea is going to happen why wasnt it there before february 2015 when the title ii order came along . Everything i just said for the past 20 minutes was at there as a counterbalance pro providing the greatest deregulatory success of all time, the american internet ecosphere, the envy of the world. How did it get there before 2015 . How did it get there before we asked the government to info vate . Ack in 199 , bill kinnard, the clintons second f. T. C. Chairman said, attorney for specifically for the Internet Access, classifying them as Telecommunications Services could have consequences for the Global Development of the internet. We dont presume that legacy going ory frameworks are to work. It doesnt make sense for regular rations meant for copper wires and giant switching stations. We know the decisions once made by government can be better and faster made by consumers and we know markets can move faster than laws. Hang on a second. Im quoting billky naffered. Its in the bipartisan bill kinnard. Its the bipartisan thing. You had a winwinwin scenario. The uncertainty came with the over 1,000 requirements of title ii and what day and which chair might decide to implement those 1,000 requirements. Thats whats being undone. Its unfair to chairman pai to say there are no rules. Were going back to clintongore era rules. In 1998, when bill kinnard said that, the companies that provide the infrastructure, the onramp to the internet were regulated heavily more heavily than they are now. They were relationlated subject to the thousand regulations you talked about, thats not happening now. It was even more regulatory let me finish. Ok. Those infrastructure providers, digital subscriber line providers, many of the same companies here, mostly telephone companies, they had to share their networks with competitors. They had to make their networks available. At that time there were 7,000 isps and the average american had access to 13 interknelt Service Providers. We are certainly not in that world new. 199 was a different world than now. Thats an excellent point. Dialup Internet Access. We shes talking about the underlying copper wires that were regulated under title ii. But Internet Access services have not been regulated. And now its been merged and thats the problem. You do have tech companies, wireless companies, phone canes all merging. Fiber and routers. Who does not provide access to the internet. Conveying lots of ones and zeros. Is there a role for congress in this debate . Yes. Of course. Were going to see this thing go back and forth. There are surprise elections apparently, who knows what might happen in 2020 or 2024. It would be nice to find a winwinwin scenario, they were close four years ago, i think we can get there. I will say the only reason this is a pingpong game is because Internet Service providers picked up the pad. We had clear rules, affirmed by two court of appeals, congress could have a role, i do not believe that this congress will protect consumers and competition, i think it will take the f. T. C. Out of oversight of the broadband market and that cant happen. A preview of the upcoming debate on Net Neutrality rebeale. Gigi sohn, where are you now . Im at Georgetown Law Center and several other fellowships. And where are you now . L. L. C. Part of cooley im not the only person who as more than one fellowship. Thank you both for being on. Thank you, peter. And the house back for legislative business at 4 30 eastern. The Senate Voting today at 5 30. And on wednesday, house and Senate Conferees will meet to discuss merging their tax reform bills live at 2 00 p. M. Eastern on cspan3. You can also watch online at cspan. Org and on the free span radio app. And the meeting thursday to consider its plan to change Net Neutrality rules. C. C. Chair ajit pai is debating giving more control over how broadband is distributed. Live coverage thursday at 10 30 a. M. Eastern on cspan. The house back for legislative business at 4 30 eastern with work on five measures, include one to increase protection for community religious centers. Later in the week, legislation requiring the treasury secretary to report to congress on assets held by top iranian leaders. In the senate, votes on three more federal Trump Appeals Court ominees. Later in the week theyll consider nominees for the fifth circuit. You can watch live coverage of the house here on cspan and the senate on cspan2. Next, todays White House Briefing from less than an hour ago with press secretary sarah sanders