Transcripts For CSPAN2 The Communicators 20150420

Somewhat bold step of reclassifying Internet Service to treat it as a title ii service, more of a utilitystyle regulation although thats a somewhat tricky term of art. While that happened way back in february, the rules were not formally published until just this week in the federal register which is the governments compendium of regulations, and that gets the process going for the next stage here which is, on the one hand, there will be enacted 60 days hence, so these rules will actually go into effect in june although right now whether this process has been going on for a while, there is nothing actually on the books. But what that publication also does is sets the stage of this new fight would be the court fight now that the rules have been published, companies and anyone else can file suit against the regulations and that is exactly whats happened. At least five so far, last time i checked, major lawsuits against the fcc just in the first 24 hours or so after the rules were published which is kind of were off to the races x therell be a Court Process here Going Forward. And then this could be a number of months until we kind of fi will, indeed stand on the books or whether the court action and strike them down. Host well, one of the groups that filed suit is u. S. Telecom, Walter Mccormick is the president and ceo. Mr. Mccormick, why did you file suit against these new rules . Guest peter, the irony here is we support the substance of the rules as around ticklated by the chairman of the fcc and the president of the United States. The open internet standards are to prevent blocking, throttling paid prioritization. But what were challenging and the reason we support them is our industry operates in conformance with those standards today. Our industry supports their adoption as regulation. We support their enactment into law by the United States congress. But what were challenging is the reclassification of Internet Access from being an Information Service to a Telecommunications Service regulated as a common carrier pursuant to Century Railroad regulation. Common carriage as a vestige of the English Common law was originally applied to railroads and then to Trucking Companies and then to airlines but its been repealed for all of those industries going on over 30 years ago because it proved to impose new costs on consumers, it delayed deployment, slowed innovation and really chilled investment. So we would be supportive of the open internet standards but not pursuant to a reclassification of the Industry Services as being common carriage. Host Christopher Hill christopher lewis, sorry about that with Public Knowledge, vice president. Mr. Lewis, what do you think about u. S. Telecom and its members filing their lawsuit . Guest well, i think, you know, first we start with where we degree. We both agree that Net Neutrality protections are important, and thats an important thing to start with. We do disagree with the lawsuit. Weve been very supportive of the rules that the fcc enacted and have now become force of law. We think that after a decade of working towards a way to have Net Neutrality rules that could hold up in court, that this is the strongest set of Net Neutrality approximates that weve seen in the protections that weve seen in the three different attempts at the agency to insure that the internet remains open. So were very hopeful and supportive of these rules and expect that theyll have a strong chance of holding up in court. Host why does Public Knowledge believe that Net Neutrality rules are necessary at this point . Guest so the internet really developed under the idea that consumers could go anywhere online if theyre paying for access and developed and blossomed because innovators were able to innovate without permission, and they didnt have to ask Internet Service providers for the right to create new services online. And so thats the thats the principle and the value behind the nonblock nondiscrimination rules of Net Neutrality. You know, the fcc has tried for years to insure that those protections are upheld. They, when the court asked them to create rules to enforce those rules, they did in 2010. And those rules were knocked down in the verizon case in january of 2014. And when those rules were knocked down the court basically said that nonblocking nondiscrimination are common carriagelike rules. So if youre going to enforce them, you would need to reclassify as a common carrier. Youd need to reclassify broadband as a common carrier in order to implement those sorts of rules. And so title ii was necessary to get can us to strong Net Neutrality rules and i think it also opens the door to a lot of other questions about broadband policy that the agency and congress will have to deal with in in the future. It may not be the easiest road but it certainly gets us to where we need to be. Host lets get Julian Hattem of the hill in this conversation. Thank you both for joining us. Im curious, you say Telecom Companies always say we support the big three prohibitions, no blocking throttling or paid prioritization on the internet but still whats so bad about title ii, the fcc has said, okay great that you belief that, but there should be rules on the books to make sure that its not just your word. And theyve tried before as in the verizon case and the court said essentially, no, you cant to it this way. As chairman tom wheeler has said, they painted a path for us to go down the title ii route. Why is that wrong . Whats so onerous about that and, i guess more importantly why is that illegal . Guest so i think chris articulated very well that the way the internet has developed over the course of the last 20 years, the internet was commercialized 20 years ago this year. And the way the internet has developed is in a way where it is open, where consumers can go anywhere, that there is no blocking that theres no throttling. And its developed that way because the industry that provides Internet Service operates the internet in that way. Thats why we have absolutely no objection whatsoever to the standards. We think they are consistent with the way in which the internets developed and the way in which consumers have come to enjoy the internet. But title ii is only being imposed because the fcc was given no authority by the congress to regulate the internet. The fcc was given the authority to regulate telecommunications but when Congress Last acted in this area nearly 20 years ago it said that this should be no federal that there should be no federal or state regulation of Information Services, and it defined Internet Access service as an Information Service. And the Reason Congress wanted to have the internet up fettered unfettered by federal and state regulation is because its so dynamic. And congress at that time had just had experience with repealing this kind of common carrier regulation on the Traditional Industries of railroads and airlines and Trucking Companies in order to spur investment. So theres complete consensus on the objectives, theres complete consensus on the fcc doesnt have Clear Authority. This is the third time its tried. The fcc has no Clear Authority to regulate the internet. So you can go to two branches of government to seek clarification. You can go to the judiciary and say does the fcc have authority and the judiciary can sum my look at the simply look at the statute and say, well its not clear that they do. Or we can go to the congress. So thats why we are advocating that this should be an area where congress should act. We are simultaneously saying two things. The fcc acceded its authority exceeded its authority in promulgating these standards under title ii, but were now asking the congress to expand the fccs authority to allow it to provide these protections to consumers. Guest i think that thats an interesting its a good explanation of the position of the industry, and i think, you know, what were looking for is both on Net Neutrality and on broader broadband policy, were looking for a protection of the values and a protection of the expectations of consumers and businesses on how that internet is supposed to work. And the fcc has always had authority over Communications Networks. The problem and you can see it as a problem or you can see it as an opportunity the problem or opportunity is that Communications Networks have evolved. When the internet was first born in the 90s when i was in high school i first learned about the internet. And i got my first email account. And i remember vufdly when we first vividly when we first got our dialup modem at home. And that service Internet Access at that time was regulated as a title ii service. The dialup service i was getting. And when we moved to dsl, same thing. It was regulated as a title ii service because it was built on the phone network. And what weve seen since the 90 is weve seen the industry begin to converge where everything that you would think of to as tradition alltel communications, your voice as well as new Services Like interactive Internet Services, video services, its all beginning to converge. And so we have an important question in front of us as policymakers, the congress the fcc, those of us who advocate. We have an important decision in front of us to say, you know, do we want to continue to have a federal Communications Commission thats empowered to protect consumers and protect the openness of those networks as they converge . And i think that we do want that sort of commission. Net neutrality is a part of that, but theres a whole broader spectrum of values that need to continue to be protected, and i think title ii gets us that conversation. Host mr. Lewis, has the internet been successful has it been fair, and if so, why change the rules now . Guest it has been successful, and we want it to continue to be successful. And so i think the when we talk about it being successful, we want at Public Knowledge we want to see the internet continue to develop in the way that its developed, and that means promoting both the ability of access providers, Broadband Access providers to build out their networks to build Robust Networks that are capable of using all the great new services that are being developed and created, ones we havent even thought of but you also want to be able to encourage investment in those services the Startup Companies that are started in garages, the new services that i just took an uber here today, and ive only been using uber for five months, but i love it. Its a tremendous app that runs over the internet, you know . We want to continue to see new Services Like that. And those services have had the freedom to innovate and be creative by small ineventers, by Small Businesses inventers by Small Businesses because they did not have to compete against services owned by the Internet Service providers, your comcasts and verizons of the world but host those are the types of buzzes that were formed prior to title ii businesses that were formed prior to title ii doing. And also during title ii. Title ii ceased to exist for Internet Service providers in the early 2000s. So both the early internet and the middle years of the development of kind of the next phase of the internet where you saw video develop online were highly successful times for investment in the network and investment in online services. It happened under both regimes. Guest i think uber is a great example because what uber does is it competes with a service thats offered as a common Carrier Service. Taxi cabs are regulated common carriers. Uber is not. Uber is more innovate i uber is more exciting, uber is able to offer consumers a wide variety of applications and innovations that taxi cabs cannot because taxi cabs have to seek authority from the Taxi Cab Commission over their rates, their terms and their conditions. Thats what were concerned about. The internet has been as free as uber. But now under title ii common carrier regulation the fcc is asserting jurisdiction over rates, over terms and over conditions of service. So Going Forward, they have invited anyone who has a complaint to file it at the fcc. Theyve invited the industry Going Forward to come to the fcc first when it is establishing new services or new applications to get the fccs view as to whether or not the rates or the conditions for those services are acceptable. This is going to slow innovation. And this is why i think that we are at an exciting time because there is a consensus here. Theres a consensus that there should be a role for government, an appropriate role to protect consumers so that they have open access to the internet. But at the same time, that should be defined by the United States congress. And congress has not really provided guidance in this area for 20 years. Really suns the internet since the internet was in its infancy. And so its time, we think, for congress to act on this consensus that has developed and to provide the commission with Clear Authority to guarantee an open internet, but to prevent the commission from having to redefine the entire internet to be a telecommunications common Carrier Service simply to achieve the power in row objective of the narrow objective of assuring consumers of open and free internet. I appreciate your enthusiasm about congress, but i think optimism about action on capitol hill is maybe most people would say not super forthcoming on this and many, many other issues. Since the Telecommunications Act dates back to 1996 which is the last time that Congress Really dealt with these issues, right before there was this modern internet i think a lot of folks at the fcc and supporters have been saying in the wake of congressional action, the agency should have the authority to change with the times. The internet in 96 was not the internet of today. Shouldnt the agency be able to respond to these new changes and to be able to assert regulations and to make sure that there are no loopholes so that companies dont exploit a 20yearold law that guest absolutely, the agency should be able to change with the times if Congress Gives it the authority to change. Uhhuh. Guest but im not as pessimistic. Im actually very optimistic. Congress tends to act where there is consensus on a problem and where there is consensus on a solution. Theres absolute consensus here on the problem. Even the chairman of the fcc has said my authority is unclear. Thats why theyve moved to redefine the internet as telecommunications. So theres consensus after the fcc has now tried three times to impose these regulations and been unable to find Clear Authority. Theres consensus that theres not Clear Authority. Second theres i think, consensus on the solution. The solution is provide the fcc with the authority. That can be done very easily by congress, and we have seen a real bipartisan approach to doing this in the senate. Chairman john thune and Ranking Member bill nelson have both been talking about the importance of providing the fcc Clear Authority to be able to guarantee an open internet. So im hopeful. Do you share that optimism, and would you support a legislative approach . Guest you know, theres room for optimism and then there has to be a real dose of reality. The optimism is the consensus that we keep referencing, and i think thats why you see chairman thune Ranking Member nelson and others, leaders from the house as well sitting down and talking. I think thats why you see them calling folks like us in to give our views about how you can move forward on congressional legislation. The reality that sets in is while theres consensus on Net Neutrality the unintended consequences of Net Neutrality legislation have to be dealt with. The impact on other values around broadband beyond Net Neutrality have to be either dealt with or have to be either you have to answer those questions legislatively, or you have to make sure that you dont hurt the ability to answer those questions in the future. Those questions are things like, um, you know do you preserve universal service for broadband in the way that you had it for phone service . Because all phone service is moving on to all ip broadband networks. Do you preserve privacy on Communications Networks in an internet age, and what does that look like . Those are difficult questions. I could go down a list of a number of other things. Those, but those questions those policy questions, they come into the conversation when you Start Talking about the authority under which you create Net Neutrality rules because then youre talking about broadband policy. So its a difficult conversation. It will take time and so our position has been we welcome the conversation. Weve been a part of it. We set high standards for it in protecting the myriad of values that are important. But in the meantime, we have an Expert Agency at the fcc thats able to protect an open internet while congress does its work and we know congress can take its time to do its work so i think its fantastic we have the rules we have now in the meantime, and if Congress Begins to work seriously in a bipartisan way, i think, you know, the public will benefit from that. Host and mr. Lewis, in fact, spent time as Deputy Director of the office of legislative affairs at the fcc Walter Mccormick is the former general come to the department of transportation. Now that the lawsuit has been filed, what happens next . Guest well, the courts will set a Briefing Schedule so we expect that that Briefing Schedule will probably occur sometime this summer, and then there will be oral arguments likely in the fall. So we will see. I know that there are other parties that are now engaged in filings. We filed on monday. Several other parties the wireless industry, the cable industry small Cable Operators filed, i believe on tuesday. We have been informed that there are some other parties that will file as well. So the court will take those filings and then set a Briefing Schedule and move forward. Host mr. Lewis, will the regulations go into effect even with lawsuits pending, and what will be Public Knowledges role in this lawsuit process . Guest well, i certainly hope the rules go into effect. I think we saw in the 2010, you know open internet rules that just having rules in place even when verizon chose to challenge those rules was tremendously important for consumers. We were able to raise a concern that we thought was a potential Net Neutrality violation while the 2010 rules were in effect and because we had those rules as a backstop and as a threat a company that we were concerned about actually changed their policies. So having rules is tremendously helpful even while the court is considering. You know pluck Public Knowledge will certainly wait to see the filings and the lawsuits and probably file on behalf of the rules and the fcc suns we strongly believe in them. But i think, you know while that happens its important that we continue to have the conversation about broadband policy generally. You know if i can, i want to go back to the uber example. Because i think we agree its a great example of how Net Neutrality plays. Uber is, you know, a fairly new company. Imagine if the isps, you know, the comcast or an at t had authority im sorry, had a competing service that competed with uber and they, for example, decided that their service, their car service did not have to abide by or did not abide by the data caps or the usage band the usage limits of data on their network. That would be a concern for a Startup Company like uber, you know . Its those sorts of potentially discriminatory practices that were looking to protect online. And so we can talk about uber competing with Cab Companies but the real concern is that the gatekeeper is the internet part of the service. Thats where ubers innovated. The fact that they have, you know, you can use their app, you can follow the car, you know, everything runs through the payment system, runs through the application. So it would be a shame if Companies Like uber had to negotiate with large, you know duopoly companies that control access to the internet in order to bring this Great Service to the american people. So i think its the perfect example of why Net Neutrality rules are really important. Guest and, again, i would just emphasize those standards that chris is talking about, the blocking, the throttling, paid prioritization, protecting the internet the way in which consumers have come to expect the internet, those are all standards that we agree with. We believe that thats an appropriate role for government. But, again going back to uber if uber were regulated as a common carrier like the taxi cabs are with which it competes you would not see the innovation in terms of services, in terms of pricing in terms of the quality of carriage that you now have. There is nobody that wants to see an innovator like uber treated as a common carrier, and i would suggest to you that for the same reasons we should not treat Internet Service providers, wire line and wireless cable satellite, we should not treat Internet Service providers as common carriers and do to them whats been done to taxi cabs, what was done to railroads and what were done to other industries under title ii. Guest the good news is that ubers not in danger of being treated as a common carrier. They dont have fiber networks. They dont have a wireless network. Theyre not providing access to the internet, and these rules are just about the companies that provide that access. I want to go back to the lawsuit, because i think thats interesting as its evolved within a couple of months. The fcc tom wheeler has said they have long expected the big dogs to sue, as he said. I mean, how confident are you that there are lawyers at the commission who are ready to go and have these long cases ready to go . Are you confident that there is a strong Legal Defense behind these rules . Guest well, as a nonlawyer [laughter] but having worked at the commission, i know they have very talented attorneys, and we trust that the based off of the Verizon Court decision that they have gone down the right path, that theyre as the chairman said, the court painted a path for them towards title ii, and we believe that they have the power to make that decision. They certainly have classified broadband in the past, have changed the classification. They did so in the early 2000s, so the courts been very clear that they have the power to do that now. Host Walter Mccormick, who do you represent at u. S. Telecom, and with the mobile component of this, how do you see that guest yeah. So i represent the nations broadband Service Providers Companies Like at t, verizon frontier centurylink and over a hundred smaller providers around the country. Our Companies Offer Internet Access on a fixed and mobile basis, and is we serve and we serve urban areas, rural areas and companies that are publicly held and privately held. Host and when it comes to mobile, is this going to be, is this going to be a strong argument in your lawsuit . Guest well, i think its a strong argument, yeah its this Congress Never intended to treat mobile brand as a common Carrier Service. But Congress Never intended to treat Internet Access as a common Carrier Service. It was quite, quite explicit that Internet Access service was an Information Service. And thats why i say that the fcc is having great difficulty. Keep in mind the standards we all agree with can be written in a sentence no blocking, no throttling no pied prioritization. Paid prioritization. But because the fccs authority is uncertain, theyve had to issue over 300 pages in order to be able to really achieve that simple objective. So i think it is important to go back to the court. Im quite confident, im quite confident that the court is going to, is going to say what is clear on the face of the statute. There is no authority for the fkc to be regulating fcc to be regulating the internet. And then i hope we can get congress to expand the fccs authority to address these issues that everybody agrees are important. Host Julian Hattem, we have one minute left. I guess im curious if youre looking to hold these rules off for the next year or so, but either way this is going to be a relatively long and drawnout process. Most likely, this could draw out for a year and a half why is this good and how can we forestall it . What can we do to get some certainty which is, you know, something everyone always says they want . Guest i dont think its good. I think we should get certainty. I think we should get it for a couple of reasons. First, this issue has now been fulled with uncertainty for almost ten years. This is the third time the fcc has tried to do it. It is something that we all agree should be done. And in a way that is targeted and specific. Secondly this uncertainty as it continues is an overhang on the industry, its an overhang on innovation. Its also an overhang on other issues the congress would like to address with regard to updating the Nations Communications laws. So if we could, if we could seize the initiative where there is consensus get congress to pass a narrow bill, i think it would allow the nation to move forward understanding that the open internet has been protected by those elected to represent the people of the United States and it would also allow us to engage in the other Public Policy debates that i think are important updating the laws. Guest i think its clear that the real struggle and the conflict is over Broader Authority at the fcc not the Net Neutrality rules. We have real consensus that the rules are good. So it just shows that its important that we have these rules in place while congress and policymakers and the fcc start to look at these more challenging topics. This is why youre getting pushback from the broadband providers, because theyre