Transcripts For CSPAN3 Politics And Public Policy Today 20150928

Important topics. That is coming up in october. We have a giant delegation, both government and civil society, planning to go. If youre interested, youre all invited. Certainly lots of topics important to us will be discussed. So back to open data and the United States. I mentioned that in 2013, president obama issued an open order eo, executive order, for default information. Accompanying that was the open data policy, which we refer to as m1313 for you government nerds in the room. That directs agencies to manage information as an asset. And of course that doesnt happen overnight, right . For the last two years we have been working really hard with our agencies to move towards managing information as an asset. So i mentioned data. Gov. There is a screen shot of the data. Gov home page. 160,000 data sets across all sectors. The data. Gov site has incredible resources and is fantastic if you havent spent much time there. Another effort that we that the administration launched into quickly about a year ago, may of 2014, was publishing an open data action plan. So we have an open Government Action plan. And all the federal agency have their own open Government Action plans. So the United States published an open data plan as part of the work were doing globally in open data. Work were doing in open data. So that has been an interesting document to try to deliver against as well. Another thing ill mention is project open data which is a site that the white house created to aid agencies and really anyone into managing their data and providing resources and assistance and shared best practices to assist with that. Let me give a few examples of how the United States is driving open data, and actually how we link that back to our National Action plans. One topic i chose topics that relate to the financial transparency space. Or tried to at least, but they may not be on everyones radar. The first is the extractive industrys transparency initiative. Extractive industries is essentially where were tracking the revenues received for the Natural Resources that come from u. S. Lands. So oil and gas and timber and everything else. This site, the eiti site, the links there on the slide, was, first of all, beautifully created by our colleagues at 18f, which is part of gfa, thank you. And done in Great Partnership with the department of interior, which is the subject matter owner of this space. Interior was very eager to join the extractive industrys transparency initiative. But we didnt meet all the criteria out of the gates. They have been working to get us there. We are on track to be a valid member country, which is fantastic. One of the key criteria was to capture our data about this work and to be able to provide that data to the public. So through the open data work we have been prioritizing in the u. S. , we have been not only to open the data and make it available but put it on this beautiful site that can help anyone visualize and use the data, download that data, take it with them and manipulate it on their own to really see whats happening in this line of work. Another great example is foreignassistance. Gov. The United States has an ambitious foreign assistance agenda. It involves lots and lots of money. There are a lot of interested people who want to track where those funds go, how they are spent, et cetera. And so, again, our friends at gsa have been incredibly helpful working with the state department on the foreign assistance site, and many other agencies that record this kind of data to find the data, to clean the data. Sometimes thats the most difficult and least fun part of this, cleaning the data to make sure its accurate and usable, and to make that data available. And, again, available to be visualized used and downloaded and have taken with you in your own way through this foreign assistance dot gov site. It just relaunched. It is another beautiful way in which we can open data and make it easy for just about anyone to figure it out and use it. So next stop on the agenda for new websites or refreshed websites to make more data available, to make better data available, and to provide it in a beautiful user friendly way is usaspending. Gov. My colleague, dave, will talk more about that and the improvements that are coming with usaspending. Gov. I will talk about it actually from the process perspective that i have gotten to see wearing my open Government Initiative hat. I thought the process of the spending team out of treasury and supported of course by colleagues clout the agency has been amazing. It has been an open and participantity process. It something we dont see in policy making and would love to see more of. As that team has been trying to build improvements into the site, they have at every step along the way, sought feedback from civil society, those Key Stakeholders that we would be remiss to leave out of these conversations. And i think its been incredibly useful as an example for all of us working even in other sectors and spaces to see how successful this engagement has been and how open it has been leading into where we are headed next. So i will stop there. We will look forward to hearing where we are headed next from my colleagues at the table. [ applause ] im here to talk about how i everybody, Vicki Mcfadden here. Im with the gsa chief Customer Officer team and here to speak a little bit about how gsa is helping agencies get started when it comes to data. I have been with gsa a long time, about nine years. It always surprises me that were kind of this unknown organization that operates a little bit behind the scenes. But we have a really kind of sexy mission, where we try things first for government, and then help other agencies get started and leverage a lot of our lessons learned, so the nice thing about gsa there withen eos, executive orders that come out of the white house. We test them and help other agencies get started. In the last administration there has been a lot of focus around cloud, open data, and Citizen Experience. Gsa is a great place for those projects to get started and we can leverage the work were doing for other agencies. I wanted to pick up the conversation a little bit about some of the specific work that has been happening and explain a few pilots that have been launched recently, that we are excited about and hold promise for the future. So around particularly open data, gsa does manage the data. Gov platform, which has been around for quite some time and has hundreds of thousands of data sets on there that are kind of exciting because they are spurring entrepreneurialship. Private companies can go on there and create new businesses off of this now open government data. They are helping consumers make better decisions. Cfpb released all the consumer complaints on their banks. Every single comment that has come in is now open to the public. So you can make better decisions about your banking experience. Even airlines that are on time, not on time, thats all available on data. Gov. Its a great platform for entrepreneurialsh entrepreneurialship, scientific discovery, participatory government with citizens, so its a great platform that gsa manages on behalf of the other government. In terms of, you know, whats coming up next is the platform is still, as you guys are aware, data quality continues to be an issue across some of the data sets. So gsa is working on cleaning up some of the data sets. Make it more easily navigable it standardize some of the fields to make it more easily navigable by citizens and easier for them to access in usable ways. We recently added Api Technology so its a little easier to interact with the website now. Another big focus has been around improving the Citizen Experience on their interactions with government. It has been a big push for the chief Customer Office. We were the first chief Customer Office in government and were really trying to we have been around for about a year. We are trying to find ways to collect a voice of the citizen data and use that information in meaningful ways to improve the delivery to citizens on their interactions with government. We have a small team. Were pushing hard in a few areas. Were excited to announce a couple of pilots that have come out earlier this summer. One is called feedback usa. We went to a listening tour across agencies and heard that they have pretty good information on their interaction with citizens through Contact Centers and with their web transactions. When it came to inperson physical experiences with agencies, it was basically a black hole of where they didnt have data on Citizen Experience. So we launched a pilot recently with a few agencies. And its going to be a physical kiosk where as you go through your tsa Airport Security experience or go to the state department to get a new passport, you can touch a happy face button and give Realtime Data on your experience. Its been really exciting so far. We have only had it open two or three weeks. We are getting thousands of data points a day. We are starting to see really meaningful trends with places like ssa. Theyre seeing that mondays at noon are crazy. The satisfaction plummets. So theres really simple things they can do. Like the dmv. Put a note on the website that you can expect higher than normal traffic levels and expect some wait time if you go to an ssa office on monday at noon. Were trying to get the citizen Data Collected in reasonable ways and bring it back to agencies so that they can improve their services. So thats a new pilot. It is focusing on inperson transactions now. We would love to open it up to the public and share this data publicly. And future generations of the pilot. We are also looking at ways to get standardized transactional data from the websites. If you go on to complete a College Application form or anything like that, they would get citizen transactional data there, which is exciting for us. Another pilot that recently launched is yelp for government. Another thing gsa is we negotiate all the terms of services for social media to allow other agencies to use social media platforms to interact with the public. So twitter, facebook, et cetera. We just negotiated yelp. Which is exciting because theres a lot of yelp pages already established for agencies, but the agencies had no way of logging on, claiming those sites as real websites and using those platforms to interact with citizens. So now they have the ability to do that if they have the capacity and band width to actually use the platforms themselves. Gsa in our courthouses will be opening a pilot to open up all of our courthouse sites. Allowing attendants to give us feedback on the building, their experience there and use the data in realtime. The nice thing is there are a lot of platforms that lay on top of yelp. Property managers can receive a text message when someone leaves a comment. They can respond in real time. That is another exciting pilot to show how the government can interact with citizens in real time, which is fun, because we are used to these annual static, standard surveys that take a long time. It is way more exciting to get data in real time and use that. And then of course another citizen facing platform that we offered to other agencies for free is the digital analytics program. You can request go to analytics. Usa. Gov. It is basically googlefree software we can install on every government website so agencies can see the traffic to their site, who is coming, the browsers that are coming, how long people are staying, where they are coming from. It allows them the ability to search and navigate those sites through this platform. The last area i wanted to talk about is another exciting startup within gsa, again, us testing things first for government. Learning some lessons along the way and then rolling it out. It is the 18f programqop which a digital startup at gsa. It has been around a little over a year. And basically their mission is to help agencies Design Software in a smarter way. Again, ive been around government for a long time. We typically set up really long contracts and wait five or six years before we see a beta for the project, and we can make adjustments. At that point its no longer relevant. We can go in and design websites in an agile human Design Center way. They are helping agencies get started. We are also thinking of it as a hub and spoke model. The hub is gsa, we can come up with playbooks, negotiate terms for common tools that Developers Need in government. And then we can encourage other agencies to create their own Digital Service teams that relate back to the 18f hub that partners with the white house quite closely, the usds team. Digital teams are popping up at the va and other agencies to help further this mission, which is really exciting. One of the projects for 18f that recently rolled out is the college scorecard. This is a great example of how 18f has been able to help an agency unleash their data. They went with treasury and department of education and basically were able to come through 18 years of data across 8,000 different schools and universities and service all of that in a meaningful way so people who are applying to colleges can make better decisions about the university they are thinking about going to. It shows percentage of people who graduate, starting salary, all of that. So it is really an exciting case of a way we can take the smart Digital Service teams who can work across the white house, gsa, and agencies to really unleash their data in meaningful ways. Thats a couple examples how gsa is helping to move the needle. I will have questions later in the conversation. Thank you. [ applause ] thank you. And i want to thank hudson and the Data Transparency Coalition for sponsoring us and having us here. These are important discussions. We are pleased to be part of it. I want to do a couple things. One, i want to give a quick little background on the data act. The second is about our approach to implementation, a few accomplishments and close with an invitation. The data act, as many of you know, passed in may of 2014. I would say this is i cant say that everyone was wildly enthusiastic. This is a pretty significant effort to move the federal government to increase transparency. Dave mater and i have been i think enormously impressed with with how much progress we have made in the last year. I will talk more about those accomplishments in a second. I think some of the key things we have been able to do is convince the federal community that there are really a number of use cases and good reasons why the federal government needs to be more open and transparent in the federal spending area. In previous discussion there was questions about how can you get access to data . One of the challenges you find data is sioled in so many different systems. Yeah, we can be sitting next to each other. Vicki may have access to a system that i dont. Were both in the same organization. We would be much better if both of us had access to the same information to make decisions. We talked about the use of the data act as better data, better decisions, better government. I think there is a fair amount of truth to that. It is the reason why the federal government needs to move forward to better understand how were spending the taxpayers dollars. At the same time the public has a right to know about what were doing. That goes all the way back to Thomas Jefferson talking about, you know, the average person should be able to understand the finances of the United States government to be able to understand where the spending is occurring, looking for fraud and abuse. The ig community has that same interest. Congress has the same interest with respect to oversight. All of those are really important things. But those are things that often may not motivate in and of themselves. Thats why it has been so important to talk to the federal community. I think we have been very successful why it is important to be moving forward. We have 57 data standards. This we issued 57 data standards, and this is important for a number of reasons. This one of the themes throughout my discussion. In the past when the government looks as a Big Initiative like this, we tend to want to build things. Build big systems and make people do things. We spend a lot of time. We do a very itterative process or sort of waterfall process along the way. Weve looked at this effort. We tried to look at it differently. We tried to look at it as a data centric effort. Which is the agency, the data exists already within the agencies and so our job is not necessarily to change that data but it is to unlock it and to capture it. Rather than building a new system, we talked about tagging the data, looking across the various systems within government, finding where the data exists, extracting it and presenting it in a way that the public can use and decisionmakers can use. Its a different approach. It is a much less expensive approach. So when you have this iterative, this agile process where youre constantly doing things quickly and rather than a traditional waterfall approach, you fail fast, oftentimes a few folks will talk about, and you learn quickly about how things are going. We have had a number of pilots that are under way right now, and i would say that we are very pleased with the initial results on the pilots. With our ability to take this concept and execute it and show you can extract data from the systems where they reside and present it in a meaningful way. Theres lots of you who are eager to help with that presentation process. And i think this is something that came up in one of the earlier panels. If the data is there, people will figure out ways to make it more usable to the public at large. We are already seeing that. Were seeing that in tools that are very inexpensive to actuly do that. That is also very encouraging. So data centric, agency focused. We want to make sure the a agencies own the data. They want to make sure the data quality is good and that they can actually then use the data. One of the lessons we learned with respect to taking over usa spending about a year ago was that it turns out that agencies themselves are using usa spending to get access to their own data. They cant get access to their own data because they are not configured in a way to allow them to access those systems. The data act and our implementation process is really about taking that data from the disparate systems and making them more accessible in a more centralized way. Ins ebs thats going very well. Treasury, which has put together a Program Management office, i think is one of the best practices you can do in Something Like this. A small group of people thinking about how to implement the data act from when they get up in the morning and go to sleep at night. They said lets take a look at the 57 standards and see where that data currently resides and which systems it resides, and sort of a prototypical agency. And turned around and gave that sort of road map blueprint to every agency and said we want to figure out how you line up relative to this prototype. It turns out most line up pretty well with that prototype. It allows you to ask the question, what is the authoritative source of that day data . If it resides in three systems, what is the best system to extract it from . As a result, we are moving much further along. With respect to saying, we think the best place is here. The best place to extract it. The best place to get it is the best source of truth on something. The other Program Management officer was, which is very important is to put together an eightstate Implementation Plan. The answer is, yeah, they sat down and said here is an eightstep plan. Put together a small team. You need to figure out where these standards reside in your organization. You into ed to kind of review those standards. You need to think about what a broker will look like and that broker is taking the data and putting it into the standard schema so it can be presented to the public at large. What is that presentation going to look like . Thats where the invitation will come in to you. I would point out to my two colleagues with me here today is is both these organizations have had a disproportionate impact relative to size and what theyre doing with respect to government. The discussion a second ago about how important it is to have citizencentric and user involvement in things really is kind of fundamental to our ability to restore faith and trust in the federal government. The ability for the citizen to actually access information easily and to understand what the government is trying to do is incredibly important. Im not so sure the public sees the work these two organizations are doing in a very visible way. I ensure you that in the next five or ten years that their impact is going to be enormous. I know its already impacting my organization about how i look at the services we provide. As we go out and develop new things, my generation was much more about how i had to adapt to technology. If someone built it, i had to come and i had to figure out how to use it. That is very clearly not the way the world is working now, which is that the Technology Needs to adapt to the user. The only way you can do that is if youre out talking to people and youre inviting them into discussion and putting out beta sites and you say, look at this. Tell me if we can do it better. Thats so very important, both organizations have been at the heart of trying to drive that thinking throughout government. And governments big. It takes time. You have to see results. But i think as we look forward in the next five or ten years youre going to see the impact of that across government in a very positive way. They always give me slides and i never follow them, by the way, so here we go. I will try to move through these very quickly. They can never script me well. But i will get to the invitation because i know were running close to the end here. This was talking about the old way of reaching out and the new way. Lets see. Do i have the right place here . Not too far. Okay. What treasury is going to be putting forward shortly is this is the invitation piece. We are interested in what the next generation of usa spending will look like. And what were doing is offering an invitation for you to join us in that. We dont have to have it in place until may 2017. But we think its not too soon to start. What were really doing is saying as were putting this site together, we want to know what the users want, so we put together a number of mechanisms to do that about how you as people interested and how government spends money can participate. So first of all, i would just mention this is kind of the invitation at the front here. The second slide here is i hope , i cant see it very well, is sort of the example of the ability for the community to provide input. We want people to sort of be in here on a regular basis. We have done this on a number of areas. This is a way of people coming in and saying, look, here is a different functionality. I want to comment. I want to be involved in the discussion and the development. The next slide is an example of some of the data that we have taken from usa spending today and many of you who have spoken know there are limitations to that data. We want you to come look at visualization tools. How do we present the information . Is it useful . The next slide kind of gives you a sense of some of the power that is there. That is this is an example of looking at various levels where you see at the highest level there are grants. Grants, department of transportation. Grants in the federal highway administration. Money being spent at highway planning. As we move down as time goes on, youre going to get more level of granulary down to individual contracts and individual spending as we go through. I think thats a very important aspect of understanding and seeing information. It should help and allow us not only to treul down in a vertical way you also allowly horizontally and see how it is spending across agencies and other program areas. We still have work to do data standards. I dont want to say theyre complete and done. Place for perform sans a difficult issue, it means two Different Things in two different communities. Program means Different Things in different communities. We need to continue to work on those things. And were committed to doing that. I feel very good about the people we have involved. Once again, its probably a small number of people. I feel good about the level of engagement we have two our agencies. Weve been tracking about how they are doing on the eightstep Implementation Plan i talked about. They are doing very well. They put the small teams together. Theyre looking at the standards. Theyre understanding the concepts. As mentioned, we have a couple reusable sewed, those kinds of things that are moving along. We may not have all the answers today. We have a structure for the governance process and the right people in place to answer the tough questions. I dont know that we have exhausted all of our time now now. Im sure were close. Thank you. [ applause ] now we will open it up for questions. Maybe ill kick things off with one, and then take them from the audience. You spent a lot of time talk building the great work that is working to reorient the zit sit sken citizen in terms of digital channels. Have you guys seen any examples of how internal government management is changing or will change because of access to new data sets or data sets being exposed to the public that werent previously exposed to the public . Any examples to share with the group . One, i would say i will come back about this approach and our ability to kind of look at what the users want. That is having an impact. So as i mentioned, when im looking at all Systems Development in the bureau of fiscal systems right now, we are talking about how you get the user engaged and how you put that together. The second piece is, there are a number of very specific examples. I would Say Something that came in the last panel, im not sure i need to know that answer right now. The issue is people will figure out how to use the data. You put it out there and there are going to be things that emerge that you didnt think would emerge. I know i mentioned in the pilot earlier we had a cfo come in and say it is remarkable how much more insight into my organization i have paced on this pilot than i had before. I know where my money is being spent, who is getting what, in a way i never had before. I know there are very, very specific examples that are out there and there will be more to come. I can talk about gps. How that is used. How noaa information is used. There are a number of areas where having access to data has resulted in real material difference being made in society and within government. I think an interesting example that gsa is really trying to help, again, were the procurement and the real estate arm for the government. I think were actually the second largest landowner behind the pope. So fun fact about gsa there, you know, timely. One interesting thing were trying to do is take all of the agencys purchasing data we have access to, we also manage government purchase cards so we have access to data there. We are trying to get to level 3 data where we can. We are started to post prices paid information on the a acquisition gateway so that Contracting Officers and Contracting Officers representatives across government can login. It is unfortunately not open to the public. They can have a better sense of what other agencies are paying for similar goods. That is an interesting way we are trying to leverage Government Spending in a smart way and boost the negotiation power. Thanks. We have time for a few questions. Down here in the front. My name is rory mcdonald. Im a ph. D. Student at gw working with the open contract program. The data act requires a pilot program. I know that for grants, hhs, is taking the lead and has a project Management Office set up. I wanted to ask about the procurement focused element of the pilot. There is a National Dialogue set up. But the clock is ticking. And you dont have forever. So i wanted to ask about your vision for the pilot as it relates to procurement. Sure, ill give you a real short answer. I had this conversation with dave nader yesterday morning. He said no. Omb is looking what they are going to roll that out shortly to give more detail on that aspect of the procurements. They are making sure we are moving that aspect of the legislation forward. Any other questions . Your choice. Hi, vicky. I was thrilled with the education score card. It doesnt give open data about government. Instead it gives open data about colleges. In particular data the u. S. Government uniquely able to provide by combining which students enrolled in college and from the department of education and what are their earnings ten years later from the irs. Are there plans for more things like that that will help consumers and citizens make the private sector more competitive than making government work better . Yeah. I think this is basically the mission of 18f, u. S. Digital and agencies Digital Services team. How do we unleash the information that we already have, and how do we share with the public than more meaningful ways that have been done in the past. They are Human Center Design focused ravenously. They are helping prioritize projects based on that citizen focus. And, you know, they basically have agencies knocking down their doors for help. But the way that projects are prioritized and decided upon is the ones that are going to be opening up data and impact the citizen. We could spend all of our time making gsa or other agencies a little more interesting. But it really or efficient or Something Like that. But it has to focus on the citizen. And that being said, theres only so much these Digital Service teams can do across government. In total, its not even 200 people right now. Another thing gsa is helping to do is set up procurement vehicles through the gsa schedules program. Bpas where we can get these acknowledge ill companies to start doing business with government and start developing these as a practice. We know our bench strength is only so strong. We have to rely on industry. We have to make sure we have the right Industry Partners when we are doing this work. Let me add if you have specific suggestions on data or information that should be unlocked and unleashed, let us know. We have a long list of projects already. But always eager to hear what the people want. We have time for one last question. Hi. Tim lee, fi consulting. I see that, you know, dave and vicky in particular touched on the change necessary and how policies develop, you know, how this data is rolled out. But i havent heard very much about the cultural changes, the software, if you will, how to make this work within agencies. Is there a strategy being developed for that . Has the thinking begun in earnest on that question . It is an essential question in my view. So we spent a lot of time at gsa focusing on this voice of the customer and voice of the employee program. And really what we found at gsa and as we start to talk to other agencies as they get started, it is almost by default in government, if we want to tackle a problem, we write a long Strategic Plan and Say Something is wrong with the culture. I havent seen that to be true in any example. I dont think people put on their ties in the morning and come to not serve the citizen. We are finding things in the eco system getting in their way of providing great citizen service. So our job and across government really the focus should be on how do we find and diagnose the problem areasing like policies that are backwards, dated and no longer make sense. There was a great jon stewart example about the va and how the bird flies as to which medical office to go by. Which is insane in this day in age. The technologies, the incentives, wrong metrics getting in the way of employees providing great service. So i would encourage agencies not to create another video on Customer Service and spend more time figuring out whats happening in the ecosystem. We certainly heard about a lot of activity in the executive branch to implement the policy changes that have been introduced over the past couple of years. Its really exciting. I loved the way dave talked about the disproportionate impact of new approaches and lean teams, that theyre having an enormous impact. I want to thank again our panel. Please join me. [ applause ] Congress Returns this week to figure out a path forward on a temporary spending measure funding the federal government beyond wednesday, thereby avoiding a government shutdown. In addition, the house will take up a bill tomorrow that would give states more flexibility in denying medicaid contracts to providers who are involved in abortions. As always you can see the house live on our companion network cspan. In the meantime the senate gets to work today on its version of a temporary spending bill known as a continuing resolution, a vote to advance the cr is scheduled for 5 30 eastern today. The senate you can see on our companion network cspan2. Today the House Rules Committee meets to determine the rules on the womens Public Health and safety act, a bill thats scheduled to be taken up tomorrow giving states more flexibility to deny medicaid contracts to Health Care Providers involved in abortions. Well have the markup meeting live starting at 5 00 eastern time here on scspan3. Student cam is cspans annual documentary koomp tigs for students in grade 6 through 12. Its an opportunity for students to think critically of issues of National Importance by creating a five to sevenminute documentary in which they can express those views. Its important for students to get involved because it gives them the opportunity and a platform to have their voices heard on issues that are important to them, so they can express those views by creating a documentary. We do get a wide range of entries. The most important aspect for every documentary that we get is going to be content. We have had winners in the past created by just using a cell phone and others that are created using more hightech equipment, but once again its really the content that matters and shines through in these documentaries. The response from students in the past has been great. Weve had many different issues they created videos on important to them, topics ranging from education, the economy and the environment showing the wide variety of issues that are important for students. Having more water in the river would have many positive impacts to serve the industry better. Weve come to the consensus that humans cannot run without food. Prior to the individuals with disabilities education act, or the i. D. E. A. , children with disabilities were not given the opportunity of an education. Of this years theme is road to the white house, what is the most important issue you want the candidates to discuss in the 2016 president ial campaign . It is fullon into the campaign season. There are many different candidates discussing several issues. One of the key requirements in creating documentary is to include some cspan footage. This footage should really compliment and further their point of view and not just dominate the video, but its a great way for them to include more information on the video that furthers their point. The first bill outside today is the Water Resources reform and Development Act also known as wrrda. Weve heard about school meals and burnt fish sticks and mystery meat tacos. Theres a vital role the federal government plays, especially vital for students with disabilities. Students and teachers can go to our website, studentcam. Org and theyll find more information on rules and requirements and also find teacher tips, rubrics to help them incorporate it into their classroom, more information about prizes, incorporating cspan video and ways to contact us if they have any further questions. The deadline for this years competition is january 20, 2016, which is exactly one year away from the next president ial inauguration. The commissioners of the fcc and the ftc discuss Net Neutrality, specifically whether the Communications Commission ruling on the issue in early 2015 encroaches on the trade commissions enforcement authority. They may recommendations for how fast to proceed in dealing with open internet rules while ensuring consumer choice, privacy and transparency. This is about an hour and a half. Hello . Check, check. Good afternoon, everyone. Thanks so much for everyone for coming to todays panel. Welcome. Great to see so many people here. Todays panel is entitled tale of two agencies the overlapping jurisdiction of the fcc and ftc. My name is kelly donohue, partner at Wilkinson Barker nauer, a firm based in washington, d. C. , and also member of the Federalist Societys telecommunication and Electronic Media practice group. Id like to thank the Federalist Society for hosting todays event and in particular will cortney and dean reuter for facilitating. Before we get started id like to make some brief introductions. From the federal Communications Commission, we have commissioner pi, sworn in as an fcc commissioner in 2012. During his tenure has focused on creating a Regulatory Environment that fosters competition and innovation and sought to remove regular uncertainty by creating clear modernized rules. Previously commissioner pi was a partner at the law firm of jenner and block and prior to that, held positions within the fccs general counsels office serving most prominently as deputy general counsel. From the federal trade comission, we have commissioner maureen ohlhausen. Commissioner ohlhausen was sworn in at the ftc in 2012 and has been a strong advocate for policies that promote competition, innovation, government transparency, and Consumer Protection. Prior to joining the commission, commissioner ohlhausen was a partner at my law firm, and before that served at the ftc in various positions for 11 years in various capacities. And moderating todays discussion we have alex okuliar, did i get that right . I practiced that. Who say partner in the antitrust division at the law firm of harrington. Before joining the firm he was Legal Adviser to commissioner ohlhausen at the ftc so today is a reunion of sorts. And prior to that was a Trial Attorney in the antitrust division of the department of justice. So we definitely have an allstar cast today and a lot to discuss. Without further adieu, please give our panelists a warm welcome. Thank you, kelly, for that introduction. Welcome again, everyone enthank you to the Federalist Society for arguing and hosting this Luncheon Panel on such an important topic. It is a pleasure for me to be here and moderate and also to keep the two of you separated and apart apparently. Please dont lunge at one another. We are living in an era of rapid proliferation of interconnected electronic devices, and increasing personal and commercial reliance on the internet and on related services. I dont think its an overstatement to say that and perhaps at no other time in our history have we as a nation been more reliant and dependent on our Telecommunications Infrastructure than we are today. I think its therefore of paramount importance we have ficient, effective and forwardlooking governance of this sector of the economy. Recently, the fcc adopted the open Internet Order, and reclassified Broadband Services as common carriage. This has several Practical Implications that were going to be discussing today, including potentially allowing the fcc to step into areas of oversight that historically have been monitored by the federal trade comission, including key issues of importance to consumers and to businesses large and small. These issues include things like privacy, which affects all of us, Larger Consumer protection issues like deception, fraud, Data Security. It has implications potentially for competition policy, including the development of competition policy with respect to broadband providers and other content developers on the internet who need access to the broadband system to actually get to their customers. You know, other broader sort of Technology Policy issues are at play here in terms of what kind of a vision do we have for developing the internet to promote innovation but also at the same time promote consumer welfare and protect the interests of consumers online. So were quite fortunate today to be joined by two of the most prominent federal officials in the telecom and technology space, commissioner ohlhausen of the ftc, commissioner pi of the fcc and i think theyre also perhaps the two leading voices for rationale and disciplined approaches to governance in this secular. So im excited to begin the discussion and get their insider views and thoughts on what the fccs reclassification might mean for jurisdictional overlaps, what the implications might be for some of the issues that i mentioned like privacy, as we move forward, whether the agencys actions can compliment one another, and you know, if we might see regulatory tension here and uncertainty develop over the years and if there is a turf war, so to speak, who will ultimately decide how to remedy this issue and what form will that remedy take. Is it something that the agencies can work out or is it something where Congress Might need to step in and act. So the way that well proceed were going to begin a discussion with two experts and after that were going to take questions from the audience. I know both the commissioners are excited about getting into a robust dialogue with the folks here in the room, so please, as we move through some of the discussion initially, save up your questions and we will have a microphone circulating later, and youll be able to ask your questions at that time. So i think at this point, i would like to begin again by saying welcome and thank you both for being here. Commissioner pi, if you wouldnt mind, i think that what we can do potentially is to sort of pet the stage here. Lot of people may be unfamiliar, they might be familiar with Network Neutrality generally as abissue but might be more unfamiliar with the Internet Order, what title ii reclassification means. Would you mind walking through some of the issues and telling us what it is the fcc has been recently . Id be happy to do so but with your indulgence thanks to the Federalist Society and National Press club for hosting. Thanks to kelly for the kind introductions. Thanks to you, alex for moderating and your per spepive setup for the so, i guess i would start by backing up two decades. At the dawn of the commercial internet as we now know it, congress and the president faced a question, how should we govern this dynamic new space. And a bipartisan decision was reached that the internet would be, as they put it in section 230, unfettered from federal and state regulation. They would let the free market determine the trajectory of the new industry. And that was largely the way across the administrations and fcc of different stripes how the internet was governed. There were intermittent attempts to revisit that decision. They were struck down. The agency took a third bite at the apple. This followed the president s november 10th, 2014 instruction that he wanted the fcc to adopt a very strong neutrality regulations. In february 6, thats exactly what the agency did. It adopted three bright line rules. First no blocking by isps of otherwise lawful content. No throttling of traffic to customers and no prioritization. Internet Service Providers could not deliver traffic in exchange for a fee or compensation. In addition to that the agency adopted an internet conduct standard. In case there was any conduct that was not here to fordescribed, we would lay out seven nonexhaustive factors. Relationship with content providers in terms of interconnection. Any of that could be on the chopping block under this internet standard. This was a controversial decision. It was a 32 partisan split and i was one of the two, happily though. I think this decision ultimately is going to be bad for the american consumer. We are already seeing evidence of that. It was pointed out the top six internet providers have spent 3. 3 billion less in Capital Expenditure building the infrastructure of the internet compared to previously. This is only the first time. The first time in 2001, second time in 2009. In the wake of the great recession. So, you know, i warned that that would be the case previous to the adoption of the order and we are unfortunately seeing some of that take place now. We have really articulated some issues. What is the status of the order today . They have been consolidated in the same court that heard the previous two challenges. The Briefing Schedule has been set or large has been set at some point for december 4. At some point the court could render a decision. They would be likely to seek rehearing on a bond from a dc circuit. And so judging from previous experience, we might be in for a long haul. So, for better or worse, people are going to have to wait for quite a while to have to get Firm Resolution on this issue. But the order today, is it effective at this point . It is in effect. The fcc is now doing a number of subsidiary rule makings. For example, it is going to start on talking about privacy. In addition although it said it would forebear from a number of the title two regulations, any Internet Service provider is classified as a Telecommunications Provider but it forebore at this time for now from a number of rules that would otherwise apply to the isps is now trying to decide which of the rules should apply and how they should apply. Theres a lot of work and litigation that the fcc is going to do. Okay. And how extensive is the forbearance. The core of title ii apply. It opened the door of privacy. I fore bore from the application from the section 22 rules that currently apply to telephone companies. Pole attachment, you name it. There is a whole host of ones that could apply during the future. Its going to be difficult for us at the agency to sort through how the regulations apply and i certainly wish the communications well as they advise the multiple clients they have on how the regulations are likely to apply. This reclassification will be treated as common carriers. Does that mean they are effectively treated as utilities . Yes. What were then considered to be anticompetitive monopolies. We will regulate you as a monopoly in exchange for heavy handed economic regulation. The internet market is anything but a static utility. I cant think of an area where it is more important. Where innovation is quicker. And where consumers benefit. And i think that they are reclassifying every broadband provider from comcast and at t in cannon falls, minnesota, which has four customers is using a sledge hammer to attack this problem. You would search in vain to identify market failure. It would be predicated on extensive findings that the marketplace has completely failed. We are leading the way in terms of innovation and investment. Thats something that undermines the entire foundation which as i said previously are a solution that wont work to a problem that simply doesnt exist. If the agency can now treat Broadband Services as a utility, give us a sense of how detailed can their oversight be . What can the fcc do in terms of dictating terms . Let me give an example. If youre a wireless customer of t mobile and you have a data cab you might think i want to be careful how to consume data but they have music freedom which exempts certain programs from those data caps. If you listen to songs, that content does not count against your data cap. Generally speaking, free content seems to be a good thing but the agency said that could be considering a Net Neutrality violation. That simply raises the question how far will this internet conduct standard go . The fcc also said in the open Internet Order an enforcement advisory process where companies can come in and say mother may i. May i do this business practice and the agency said if we give you certain advice you can necessarily rely on it and i bet if you dont come ask for advice that will be used against you in enforcement proceedings. The question is where do we go from here. The best indication of that sorry about that. The best indication of that is the fccs own admission on february 26 following the adoption of the order when asked. I cant put it any better than that. Thank you. Commissioner, you have been waiting patiently. And i appreciate that. Thank you commissioner for your remarks. Commissioner, many people similarly may be unfamiliar with the ftcs enforcement authority. And its actions on the internet more generally. Could you please give us a quick summary as commissioner did for the fcc of the commissions, the ftcs Legal Authority here and highlight some of the agencys processes, how they work and maybe give us examples of recent Enforcement Actions. Thank you. And thank you for moderating the panel. It is always a pleasure to appear on a panel with you. And thanking for hosting. Im delighted to be here. At the outset, i should say my views are just my own and not necessarily those of the federal trades commission. At the core, the ftcs Authority Comes from section five of the ftc act. That prohibits unfair and deceptive acts and practices. So that is our Consumer Protection authority. Particularly in this space, we have done quite a bit of enforcement using our traditional Consumer Protection authority. So we have challenged companies, for example, we have brought challenges against snap chat, you know, lots of online companies, lots of apps, lots of new technologies. So we brought a case against snap chat alleging deceptive practices involving their service, their promises that you take a picture and it goes away. It was easily captured. We brought against, technologies which was a flashlight app which worked fine but it didnt tell you it was collecting your realtime location data and sharing that. Internet enabled devices, cameras. Trend net, that offered an internet enabled camera to allow you to monitor your children or for Home Security but what they didnt do is take care of a very obvious Software Flaw which allowed anyone with your ip address to also monitor your children or your home. One of thether really important things that the ftc has, we have a few rules that we enforce. Childrens Privacy Protection act is one that plays a fair role. But one of the other tools that the ftc brings to bear is our policymakers. Research and development option. Kelly mentioned my previous life and one of the things that i did there is i was the head of office of policy planning. We looked at the issues that had been raised. All of the things that the commissioner has identified as possible problems with the fccs move to reclassify and impose the strict Net Neutrality rules, we considered these types of issues and we looked for what is the harm thats happening in the market. What are the tools that we already have to address those kinds of problems. And we did a bipartisaport that came out in 2007 that said are there possibly some harms . Yes. Do they seem to be occurring a lot in the market . Is the market moving towards greater competition . Seems to be. If there is a problem, what tools can we bring . We can bring antitrust laws and Consumer Protection laws. So going back to the Consumer Protection issue, one of the things that we have been able to do in the broadband space that i think is being put at risk is for companies that made so we have brought a case in active litigation so i will say what we mentioned in the complaint. What we alleged in the complaint is that a company made a promise for unlimited wireless broadband for consumers. We allege that they didnt fulfill that promise and we brought an enforcement action against them. And i think this is a particularly interesting case because the part of the previous open Internet Order that had been upheld by the dc circuit was the transparency requirement and the idea that companies who are providing these crucial Broadband Services should tell customers how they are going to engage in their traffic and Data Management and then adhere to those promises. If they dont adhere to them thats something that the ftc can reach. Well now that the fcc has reclassified broadband as a common Carrier Service, that creates a problem. The ftc does not have authority over common carriers providing common Carrier Service. We were able to bring this enforcement action against at t and our authority to bring it the decision has not yet been rendered on the merits but the authority to challenge this behavior was upheld by the District Court that said, you know, the common carrier exemption prevents the ftc from exercising the authority over a common carrier. But not everything a common carrier does is a common Carrier Service. And so at the time, broadband was not considered a common Carrier Service. The fcc had gone all the way up to the Supreme Court in the brand x decision to say we dont think its a common Carrier Service but an Information Service and they were upheld. Fast forward to now, the challenge that i see is as the fcc has reclassified this large set of activities as a common Carrier Service, when the ftc tries to exercise its traditional Consumer Protection authority and say you made a promise. You collected peoples information and didnt tell them about it or used it in a way that harmed them, when with bring the challenges, a fair number of people will say wait a minute, we dont have that authority. We are part of the type of common Carrier Service that the ftc is trying to reach in its rule. Ultimately i think the ability to act in this space could be greatly impinged by the fccs very broad reclassification. And one other issue i think comes to mind here is that, you know, the ftc does have a wide authority outside of the common carrier situation. We have brought over, you know, 50 Data Security cases i think privacy cases of an equal number. And, you know, we have been pretty active in this case. What youre creating and commissioner has already referred to this, this is a very dynamic area. Theres so much competition happening between players who didnt previously compete. Everybody is getting in everyone elses space here. But you will be under stricter set of rules. And does that really make sense . And ultimately will that really be the best thing for markets and consumers . When you have similarly situated provided. Different regulatory structures. So you mentioned that the ftc brought a challenge against at t for some conduct. Do you sense of whether or not there are facts with the ftc . We did. Socalled throttling. The fccs rule is quite different. Part of the reason why the factual predicate was lacking. And, the actual contact, suggested to me that there was not a violation there. The fccs rule was very broad adopted in 2008. It allowed flexibility. The fcc specifically blessed comcasts then practice of regulating network entrench. S among other ways by reducing speeds of other customers who are high band width users. Notices over the point of sale, through emails, through sales. And fined at t 100 million. This is a topic that is an evergreen issue. They are going have a perverse incentive to overleak the facts. The claim of being the preimminent agency. I suspect that it is an example of that. I would like to get both of your reactions to this. Could this point to continued activity that maybe could lead to some confusion down the road. Without question. I think that the secs rules in this area are very much in flux especially when it comes to privacy or in our case Customer Proprietary Network information. The agency said jurisdiction over the much broader category and it said that we have the discretion to fine this company 9 billion with a b. We will limit that to 10 million. Now, you know, look, i obviously disagree with the jurisdiction over something that we dont have authority to do but in addition the fact that the numbers are essentially plucked from thin air raises enforcement liability. Whats your reaction to that . Is there a possibility for this to develop into confusion down the road . I think there is the potential for that. The ftc and the fcc have had concurrent jurisdiction in a lot of areas. We have had memorandum of understanding. We have brought Enforcement Actions from time to time. Sometimes we have debates on how do you calculate that accurately. And we have a whole bureau of economists to help us do that. But we dont have that authority. So i think for companies it maybe gives them a little more regulatory certainty of some limits on what their liability may be. They have really with stood the test of time to have these ideas, to have these principles of how do we decide if something is deceptive. I think there is a little bit of certainty there. Just recently, for example, our authority to bring data cases to say that if a Company Fails to take reasonable precautions to protect consumers Sensitive Information that we can challenge them under various variant deception. Our authority was recently challenged in the Third Circuit and upheld in a case called wyndham. The question of whether they had the authority has been upheld. We are sort of trying to say what the consumer harm is. So whether the penalty is tied to whether they can try to figure out and measure. People may tdebate it, but i think that allows for regulatory certainty. So i was concerns about having two systems that may operate under very, very different approaches. If i could add something, i agree with everything she said and in addition to that, its not just the ftc and the fcc and the Consumer Protection bureau ams sometimes wants a bite at the apple. Opens the door to state regulators and also looking at common carriers and applying the rules and including the enforcement ixp. The opportunity is for confusion. And i definitely want to get as to best practices. Very quickly, you mentioned guideposts. How does the ftcs definition or the course definition of what a common carrier is line up with maybe the fccs definition of what common carrier is line up with the fccs definition. Its one we had to litigate. I think its an unresolved question. Does the fccs definition of what a common carrier is control the ftcs authority. I think thats not settled. But one of my big concerns is the way this will be brought up. The way this will be figured out in the courts creates a lot of challenges and uncertainty. To know this is an activities based standard. Therefore everything i do is common carrier. We have been able to challenge advertising and billing and things like that. But i do think that the challenge will be as everybody who is a defendant comes in and says heres my new argument why your definition of whats a common carrier isnt right. It struck me at an event. Suggested that this is not how it will come up. It will be challenged court by court, challenge by challenge. Even if we all agree, it will be decided as we try to bring the traditional Consumer Protection enforcement in this space. Do you have any reactions. Its a serious problem and not simply a matter of the ftc decreeing that any Internet Service provider is a common carrier. There is substantial legal hurdles to even getting to that. Congress has long said for over 20 years certain wireless providers, mobile companies, cannot be classified as common carriers. So not be standing what the ftc might say in a particular rule making, there is a statute taker bar that has to be surmounted. Certainly i would imagine that if im a wireless provider, i would raise that as well. Look under 322, they dont have the opportunity to reclassify us. Stay tuned. May or may not be the common carrier. Its dependent largely upon the purpose of the governmental action is targeted. To jump in, it also seems to me that the fcc left itself a lot of flexibility to broaden the definition beyond isps, right . Again, stay tuned. Absolutely. Maybe if you believe some Net Neutrality gives the authority to regulate everybody. Like to wit, netflix, facebook. And if the agency were to read its authority as broadly as that, virtually anybody with and Online Presence could be subject to fcc regulation. And commissioner, very quickly, do you know whether if there were any prohibition on common carriage with respect to Broadband Services under the ftc act would that apply to what the ftc has already done in the space . According to the District Court in california it only applies proce applies prospectively. It posts reclassification by the fcc. So we dont have to so any existing consent orders . Would continue to run. When we do investigations of conduct, we can look back and say okay, how long has this been going on. I think for the fcc you have a stricter statute of limitations. We could look back several years and see continuing practice. It depends, though. For example, in the open internet, the agency plucked out examples. It depends on which hammer is needed to pound the nail in in some cases. I noticed a proposed rule making coming up. What principles might be guiding the agencys actions in that regard . One of the sections that will apply to isps raises the question of privacy. So section 222 imposes a duty on any Telecommunications Carrier to protect Customer Proprietary Network. I love the acronyms. So cpni involves things like what kinds of services does a customer buy from a common carrier. What telephone number does that customer call. Who calls that customer. Things like that. Carriers have long had a duty to protect cpni. Those have never previously applied to internet Service Providers. So, along the cpni rules dont currently apply to isps. We now have a duty to apply to certain regulations. Okay. We will put out guidance. Heres the guidance that came out three months ago. The enforcement intends to focus on whether broadband providers. Then it goes on to show protection in line with the privacy policies and four tenants of basic protections. I have no idea what this means. It makes absolutely no sense. In the interim between today and the day the agency ultimately adopts privacy regulations under section 222, its completely unclear how on earth the agency is going to consider these regulations, how its going to go after companies for the violation of what it considers core tenants. And if anything, recent Enforcement Actions like the att and all suggest that the agency is going to be extremely aggressive. Its going to go after conduct that previously had not been sanctioned. Contents of the rules is uncertain. But it will be sure everybody will be left to guessing for a long time what the rules of the road are. Have you seen any appetite to look to those core tenants of Privacy Protections maybe to what the ftc has done[i,n historically . They dont have expertise in this area. We do have expert in the cpni, but we dont in the vast array of privacy issues that the commissioner is considering. The commissioner spoke eloquently about this. The agency has been wrestling for a long time with all of these privacy issues since they arise in a number of different contexts. Thats a very narrow subset of all of the information that a customer might consider to be private. Its essentially the wild west. I have seen no indication that we will import wholesale. I certainly hope that we do. We have foundational expertise. How do you view the potential for rules that may be coming out to overlap with what the ftc has been doing . There is tremendous potential for it to be duplicative. That is a danger for a couple of reasons. We dont necessarily have expertise in this area so i think we might not apply those rules as the ftc might have done. Secondly we might have a different take on a particular issue if were applying the same rulesment conduct that might be blessed by the fcc might be frowned upon by the ftc or vice versa. Commissioner, do you have any reaction to commissioner pis views on the privacy rules coming down from the fcc . I certainly agree with all the points he made. Its embarrassing how much we agree with each other. You come here looking for conflict. One of the things i think is a fundamental miss perception in this area that is driving a lot of this is the idea that your isp is a unique window into a consumer compared to other parts of the internet ecosystem. So im not sure thats right. So the idea that say im going for example, facebook. I get on in the morning before i go to work from my internet access. I check in at the stoplight over my wireless. And then im at work. And i check in on my desktop. Thats from my employers. In the Late Afternoon i get a coffee. I check in again from the coffee shop over wifi. So the idea that any one isp is getting this uniquely complete picture of my activities versus the website, the platform that im going to. I just dont think the idea that the isp really holds up. Because it may be that platform has a much fuller picture. Maybe the ad network that followed me around may have a better picture. Maybe it was encrypted so the isp isnt getting much insight. I think that really raises kind of the fundamental question again about what it really makes sense to have more stringent rules for isps versus everybody else in this ecosystem. I also think that as just kind of a basic idea of regulation and Good Government is, again, are we taking companies that may be collecting sort of similar information and doing similar things with it and treating them differently . Does that make sense . Is it going to affect investment down the road and innovation down the road. We are doing a workshop later i think its in the winter. I dont remember if its this year or early next year. But anyway, in the winter. On the idea of cross device tracking. And looking at the bits and pieces that we are sharing as we are moving from all the multiple multitude of devices we use on any given day. And i think that is a more appropriate and holistic way to look at it. Im much more focused on how our consumers are consuming these services and what are the possible harms, what are the possible benefits. And looking at it in the real world way rather than coming down with the artificial siloed approaches of the cisp versus everybody else. Well, thank you very much, both of you. You know, i think that we have definitely explored and established there is regulatory overlap here. There is certainly a potential for considerable overlap. There is the potential for doctrinal confusion or at least tension Going Forward. Maybe we can shift gears and talk about Agency Design and also a bit about best practices and think about ways you might be able to harmonize the two agencies. I will start with you. You said that in the past that the ftc has an Agency Design that makes it a bit of potentially a superior enforcer or agencies. Would you mind please elaborating on that position for a few minutes . Sure. As i mentioned, we are primarily a Law Enforcement agency bringing law Enforcement Actions. We dont promulgate a lot of rules, regulations. I think one of the benefits of that acting in a space thats fast moving, what we are looking at is harm. Harm to competition. Harm to consumers. And trying to target those problems and address those types of issues rather than trying to have sort of a very wideranging prescriptive rules that are trying to predict the future. And saying, oh, i think this is how technology is is going to develop. And let me get ahead of that with a bunch of rules and say this is under that silo, and this is under that silo. All of our expectations have been upset in a good way for the past, you know, 34 years at this point. So i think having sort of the case by case approach that the ftc brings, it has been focused on harm and has been very useful in this area. Being a Law Enforcement agency means we have the investigative staff and invest in the tools to bring these kinds of actions to identify them, to investigate them. And its very fact specific and casebycase approach. We also have a policy that i mentioned. The fcc has one as well. That helps to inform our enforcement approaches. I think the ftc act is except for the common carrier exemption is is very flexible and adaptable to changing technologies. I mentioned our bureau of economics. Its a very important part of our analysis both on the policy side and enforcement side. I think thats really been a useful institutional feature of the ftc that has helped us. I hope that the economic reaction in Law Enforcement decisions. Theres a lot of similarities between the ftc and fcc. We are a bipartisan agency. We have, you know, a similar structure. Some of our enforcement tools are different. We get consumer redress. I think primarily the fcc gets fines. We have different oversight by our commissioners on settlements and policies. Everything has to be voted out by the ftc. We have to approve everything that commissioners do. So i think that helps keep sort of a political check and a little more tight rein on what some of the staff level decisions can be. Thank you. So as the fcc takes on a bit more of an enforcement rule, would you have any sort of general advice for our colleagues in terms of how to approach that type of role as an enforcer. I think two things are, first of all, to focus on real harms that are occurring in the marketplace. It is very hard to predict the future. It is very hard to speculate. Not only to predict harm in the future but also to predict the market developments, maybe new products, maybe, you know, some sort of new Business People that will ameliorate that harm. So to get in and sort of solve everything now for the future when you dont understand it i think is very difficult. And i think an enforcement approach that focuses on harms and looks at our additional tool that says maybe we dont need a new rule if we can sue for deception. So i would say those to things. Focus on real harms and see what tools you already have in your toolbox. Thank you. Commissioner, do you have any reactions to the comments and her guidance . Well, i certainly expect her deep experience at the agency. And she knows better than most the Consumer Protection function is something that served American Consumers well for the better part of a century. As we embark in this new space, regulatory humility is critical. The fcc has enjoyed for many years respect as an expert independent agency. When we make decisions that are based more on political calculations as opposed to what the law is and what the facts are. That reduces popular support, judicial support for some of the decisions we make. Obviously i would prefer in terms of policymaking, prefer to stay within our lanes and doing what we do best. More broadband deployment across the country. And in those cases where the law permits it and the facts warrant it, taking targeted action to promote competition. In those cases where enforcement is appropriate under those rules, i think we have to embrace what maureen is said. Regulatory restraint is important. We cant know the future. I often talk about the case. I remember from 2000, 2001, i wish i had brought it. It warns about the consolation of the aol time warner transaction. Critics said it would be an unbreakable monopoly over instant messaging and that warranted the government coming in and blocking that transaction. I remember an article in 2006 or so talking about how myspace had a monopoly in the social media marketplace. If the agency didnt come in and try to investigate or otherwise regulate it we would see a cramped online marketplace to describe these examples now is to smirk at them. But the question of the agency, when we are taking enforcement action, not just the justice in this particular case but what is the decision Going Forward . It can send a chilling signal to move away from certain Business Plans. Instead, focus on what is safe. It might be legal. It might reduce the bills you have to pay to the United States treasury and the fccs case and the ftcs case. But it might not be what is right for the longterm health of the marketplace. That is certainly the approach ill talk to any Enforcement Actions Going Forward. It sounds like you have real competitive implications depending how the fcc proceeds. I think it could. Especially to the extent they are selectively applied. They are overinclusive and under inclusive. They sweep in virtually every isp process. And those that dont have anything to do with privacy or cpn. And their huge economy that depends on the moneyization of private information. Is that a bad thing . Is that a good thing . The fact that the fcc is focusing on isps you could have the potential to create distortions. So do you see room for improvements from a process or reform perspective that might be able to address some of these issues . If you could make changes, give us your top view. I would ask congress to change the laws and give me three votes instead of one. This is something we get bipartisan support. You get my vote. Thank you. More seriously, i think the agency needs to focus on getting concrete guidance to the private sector, whether rules that are very specific, whether its in the form of guidance that gives examples what is going to be forbidden and not. Whether its enforcement action that sticks within the letter of the law and says what is prohibited and what is not. That is important. Additionally, we need to be quicker and more responsive. That means setting more internal deadlines for ourselves. Things like applications for review consider for a decade without even addressing it. A lot of times a party will say we dont care if you tell us yes or no, tell us something so we can go to court. We should have more sunset clauses. Some date from analog era simply because we dont have an obligation to revisit from time to time. One of the first votes i cast in 2012 was on the elimination of first adopted by the telegraph decision in 1936. No one ever said, well, is this really necessary . Among other things, we have a congressional mandate to engage in a biannual review. Historically it has been an exercise in staff makework. Part of my job is to collect all of these which we knew would go nowhere. We should make it a meaningful exertion and update for the digital age. And finally, be more transparent. They cannot know unless they subpoena for how the agency is is doing across a variety of metrics. Consumer complaints are pending. What was the disposition at any given consumer complaint. I proposed creating an fcc dashboard similar to what state governments have. Anybody can see how the scc is is doing. The mere fact that the online spotlight is being shined on us. Those are a few ideas. Regardless of partisan affiliation, it would make the agency more responsive and more productive. Thank you very much. And while were talking about Agency Design, to both of you, are there things you might consider changing about the ftc. The fcc has been our focus in terms of design and changes. The are there things you might change and lessons that could be imported. I think you have much better. That is one area in which we will disagree. So a couple of things. I think that well, certainly getting rid of the common carrier would be at the top of my list for the ftc. That is Something Congress will have to do. I think, you know, commissioner pi mentioned this. Alex, something we have talked about a lot. For Good Government how much you need transparency, predictability and fairness. And i think the ftc has been transparent in a lot of things that it does. But theres been recent action they have taken on unfair methods of policy statement that i dissented on. It had to do with process. For something so important we should have put it out for public comment. We should have gotten more input on that. We should have had a Better Process internally as well as well. So i know the fcc has scheduled monthly meetings. I think the ftc could do Something Like that. I think that would be beneficial. For both agencies, one of the challenges this is a law that was put into effect for all good reasons but had del chlt t evit effects. I see a fellow commissioner here nodding. So what happens is you end up as your staff talks to each other. They are all fine and wonderful people. But it can sometimes be a game of telephone. Where the message gets a little garbled as it goes through a series of different advisers. So i would suggest that some changes to the sunshine act might be beneficial for all commissions across the area. What specifically does the sunshine act impart . So the sunshine act prohibits basically a quorum of commissioners of getting together and discussing a policy, issue, or enforcement doing. So we can say how is the nationals doing. Peoples retirement parties. But unless we have a formal meeting that may lead to a decision by the agency, we cant have informal discussions. We have to get together. There are minutes. The secretary is there. Theres all kinds of careful administrative barriers set up around that. So what happens is it ultimately makes it much more difficult to discuss some of these very important issues with your colleagues. You can do it one on one as well as there is not i mean, if there was a matter that only three commissioners would be voting, two would be sufficient. So generally we can do one on one, just discussions. But we cant all get around a table and work something out, unless its a formal meeting. Which is why i suggest it would be better to have more of those formal meetings. Commissioner pi, this sunshine issue cuts across agencies. It affects the fcc as well. Do you have any thoughts on design changes . It is a problem with the fcc. I think it makes Agency Decision making so much poorer. Can you imagine just bringing it into popular culture. Imagine if nicki minaj and miley cyrus couldnt confront each other directly but their pr reps are off to the side. Which exact are you in that . Yeah, a lose lose situation. I do think it makes the agencys decisions and it impedes them to be more collegial. Its rare that three or more of us get together. Over a long run it tends to minimize the ability to reach across the partisan divide and forge alliances. Can you imagine if members of congress had to labor under similar restrictions. Things are bad enough. They would be even worse if they couldnt talk to each other person to person. That is something i would hope to change. There are a number of ideas that i have endorsed previously. In other words, reducing the reporting requirements that we have. The agency spends a tremendous time mandating by congress that nobody reads. For example, i put out a statement with respect to the orbit act. 15 years ago we were told scc needed to privatize it. And we need to report annually whether you have privatized it. We privatized it back in 2001. We are reporting 16 years later how we privatized it. Complete waste of time and resources. Just imagine all those reports if we could shrink them down. Its Factfinding Mission and legislative function. Congress is now considering the consolidated reporting act to sail through the house of representatives twice. That would help a lot in terms of streamlining our resources. Again, a lot of these process reforms that i have proposed, these are not partisan ideas. Whenever i meet with senators and representatives of both parties they nod their heads and go, yes, that makes sense. I should do Something Like that. I certainly hope that bringing a lot of these agencies more up to date in terms of how they operate. Well, thank you very much. Thank you for your comments on this. Were running a little bit short on time. I think with what ill do is i have one additional question. And then were going to turn it over to the audience for questions. So my final question is a number of people some people have criticized industryspecific or industryfocused agencies, regulatory bodies as ripe for regulatory capture by the covered industries. So other people push back and note that you need expertise and understanding of industry to be able to efficiently regulate it. Generally, what would your reactions be to that . Do you think there is a possibility that having two agencies in a particular space could have some affect . Thats a good question. Obviously this is a theoretical problem. In my experience, our agency is not so much regulatory capture that is the issue as the government preempting how they want it covered and actions in order to make it so. Some saying if we merge, we will require this list of conditions. Were going to adopt these industrywide rules in order to make sure companies x, y, z, have a fair chance to compete. That is much more of an issue than regulatory capture. None of them has been captured by any segment of the industry. Speaking for myself and the only things im captured by are my kids, the kansas city chiefs, and on occasion a karaoke machine. That is it. Nothing else other than the public interest. Public interest in my decisions. Any reactions or thoughts . Well, i do one have. One of the things that ive seen is when you have government playing such an indepth role in structuring and deciding who is allowed, who is not allowed and these rules, it is really a ripe opportunity for raising the rivals costs. You get in and you say, hey, boy, there is really a big problem here. And you better have rules be really strict on this part of the market. Fortunately, im in that other part of the market, so dont put nose rules on me. I think the more the government is an orchestrator of the market the more intentives there are for companies to get in and to try to skew the rules or to raise their rivals costs and minimize their own costs. Or what we saw are the players who come in and say, yeah, the rules should be really strict here, because i can meet those. I have the money to do that. But it keeps out the little guys. Thats the problem we see in a lot of industries. It tending to be a problem in professional licensing and other areas like that. I think the more indepth role that the government plays the more opportunity, the more payoff there is for companies to do this. And i also do want to say i appreciate commissioner pie. Im talking about regulatory humility. Thats a favorite topic. It is something we should keep in mind as we grapple with these important issues. We have to be really careful about our ability to predict things. Quickly, i cant tell you how many meetings we have had where a party will say im in favor of a free market. In this case, though, all of these parade of horribles. Or conversely the flip side, you need to set aside x, y, and z. Otherwise i wont have a chance to compete, people will loss their jobs. Consumers will be worse off. The sky will fall. A as somebody who hears the pitch on a repeated basis each and every day, coming in with a consistent philosophy youre not going to favor any segment of the industry, that opens the door to special bleeding and arbitrage. I think thats one of the reasons not to be too hyperbolic about it. They will get regulatory favors to benefit them while the consumers at large is kind of left in the cold. That is something we have to guard against on every agency. Well, thank you both for such insightful remarks. At this point we will turn it over to the audience for questions. We will have microphones. Theyll be circulating, if you would, please, wait until it reaches you before asking your question and identify your name and affiliation. Thank you. No nicki minaj questions, hopefully. Yes, please, in the corner. Phillip corwin, principal at virtuala. President obama indicated he wanted the commission to act. The commission did cross the rubicon and act and has created known unknowns in teres of what the rules are and whos in charge. Were going to have another president ial election in 14 months. Theres a possibility controlling the white house could change to the other party. If there was a president with a different point of view and chairman with a different point of view, can the Commission Good back across the rubicon and say we made a mistake, or something that can only happen legislatively . If it didnt, either cant or decides its not a good idea, would the best way to be not acting and not push the envelope and provide guidance so impact is minimal and clarifications are made as to what the rules are in the present scheme. Thats a good question. There are a number of ways these regulations could be reversed. One, for the court to invalidate them. Secondly, congress could pass legislation, language that would get rid of the rules. And third, i suppose the agency could revisit the question. So as to the third, as long as they have requirements of the administrative procedure act, there is no reason procedurally why they couldnt come back and say, okay, for these reasons we think we mad a wrong decision. Certainly the Supreme Court if the fox case opened the door to future decisions or agencies making a determination as long as there is a reasonable explanation for changing its mind. As to whether the agency would do that, we cant predict. One of the problems, however, is you have a tremendous amount of capital, sitting on the sidelines or being misdeployed. The fact that the regulations are in place now. The companies are restructuring for Business Plans now because they have to because regulations are in place. Fast forward two years from now, even if the agency were to come back at this issue, you just have to wonder how much capital has been diverted, how much effort has been wasted, how many consumers are worse off as a result. You know, long and short is we have to see. American media institute. Im wondering about, could you elaborate a little bit on the potential Court Challenges you just mentioned, particularly with the idea of the fccs existence itself to manage scarce airwaves and scarcity doesnt really seem to be an issue here. Correct. So there are two basic categories of arguments. Companies and trade associations are making challenging the order. First, procedurally, under the administrative procedure act the argument is that the agency never formally teed up as to its appropriate. The agency adopted rule making in may of 2014 the lead proposal was for something very different. From title ii common carrier regulation. It was only after the president made his announce innocent november 2014 that the agency was reportedly considering title ii. The agency never did anything to the announcement to make title ii, all of the issues raised by virtue of title ii, never teed those for public comment. From a rule making perspective, i think, and a lot of other people think there are ava issues that the court would have to wrestle with. Substantively, there are a hum number of issues that trade associations challenged the fcc. Everything from section 332, which was the certain mobile providers could not be classified as common carriers. Some of the core title ii questions. For example, does this constitute Telecommunication Service . If you look at definition of Telecom Service under the act, its very, very specific, its unclear when i click on a link on my screen, whether or not transmission of the information to the core of the network is something that meets the statutory definition of Telecom Service. There are a bunch of substantive issues that the court is going to have to wrestle with. Right here, please. Im sharon in voice of the moderate. Quick question. I talked to Small Business owners, researching the Net Neutrality and now this issue. With the overrap and you create rules and regulations and talking about sharing enforcement, you have companies that cant afford these simple questions that affect day to day business. You also have other agencies, ill use the tsa as an example, come up with regulations. And yuwithin you create a law, u create a regulation, its hard to change it. I just spent 10 minutes with the tsa about bringing my watermelon on a plane. I talked to lawyers the next day at a dhs conference, it turns out once the regulations are in place, it is hard to pull them back. They came up with a scrub act to get rid of useless laws but were talking about peoples businesses, livelihoods. Both of you have to get but you cant because you cant because you cant lead together because of the sunshine act. So it is fascinating. If you can comment about what youre doing about interacting with the Small Business community of all industries. As people say, one regulator scares them. Two terrifies them. Thank you. You raise a very good point. One of the things we have tried to do, personally ive tried to a lot of this, is outreach to Small Businesses, small startups. I go out to Silicon Valley a couple of times a year, a couple of times i year i try to go to developer conferences, things like that because a lot of times when they start these great new innovative products, they are not thinking about consumer privacy. Theyre not thinking about how does this all work together. So it is important for us to get out and give them the information. Were there gathering information. Theyre not hiring a big Washington Law Firm to give them advice. We have Consumer Education materials on the ftcs website. But it does bring to mind an area where i recently did dissent from my colleagues at the ftc in a case called know me. It was a Startup Company that offered a service to retailers about tracking consumer cell phones to just show where consumers went within stores. But it hashed them it didnt say who it was, it just wants to know somebody came in, spent ten minutes in the mens department, 5 minutes in the ladiess department and then left. One of the things i thought the ftc did there was hold them to too high a standard of liability when they hadnt actually harmed any consumers. They had given a global opt out of the website if a consumer didnt want this type of collection or tracking to happen they could opt out, or they said you could go to retailers. It turned out the retailers werent offering an opt out. But consumers opted out at a higher rate at website than they normally opt out. I dissented about bringing enforcement action because there wasnt any indication that there was any consumer harm. Right . So not only do we need small