One of the cochairs of the internet caucus, along with her presented of doug collins. The internet caucus was created 20 years ago to inform this debate and discussion about key internet policy questions, and of course Net Neutrality is toward the top of that list. Even though all of us or our bosses may not agree on how to approach Net Neutrality, this is important for all of us. Net neutrality has been a top issue for my boss for many years. The lead plaintiff is headquartered in our district, which we are proud of. This year, we did a town hall with the commissioner of the fcc focused on Net Neutrality. Im looking forward to what you have to say. On behalf of the caucus, i want to ask thank the panelists for helping inform the debate. I want to thank tim for helping host and organize this. She is to be a follow at the academy and is now at brookings. Thanks for the introduction. Thank you for attending our panel today. Thank you for cohosting this pal. I am looking forward to discussing the Circuit Decision last week. Im looking forward to discussing the case with our panelists. We have the internet policy manager for mozilla. We have a partner in Global Charity communications practice. We have the director of the open technology institute. The Vice President of policy at u. S. Telecom. Our panelists will talk about the decision. What the case might mean for congress. I am going to briefly explain the background on the case. How did we get to where we are today . There is one definition, it is the principle that Internet Service providers which are known as broadband providers manage all traffic in the same way and not speed up or slow down specific websites or applications. The fcc has adopted three separate neutrality orders. In 2010, 2015, in 2018. In 2010, the fcc approved the first open Internet Order, specifically providing providers from discriminate against any traffic. The 2012 was challenged in federal court. The d. C. Circuit said they did not have the Statutory Authority to impose these antidiscrimination laws. Broadband provided classified Information Services at the time. The 1934 Communications Act which was amended creates a distinction between title i Information Services and title to telecommunications services. Because they classified broadband as title i services, the court said the fcc did not have the authority to impose regulations on them. The d. C. Circuit they passed a new rule, the open internet rule. It reestablished rules and internet traffic. It also reclassified title i to title ii services. This classification of broadband is significant because unlike title i classifications, title ii could enable the fcc to regulate things unrelated to Net Neutrality. They could abstain from additional powers. In 2016, the circuit ruled again, this time they opened. The d. C. Circuit upheld the reclassification of Broadband Service as title ii services. If congress did not specify the statute, the fcc had the leeway to choose. In 2018, the fcc passed the restoring Internet Freedom order, which repealed the order and changed the classifications from title ii act to title i. About two months after the order came into effect, it was challenged in court. The d. C. Circuit mostly upheld the 2018 order that found issue with the provisions. I would like to turn it over to our panelists. I would like to explore this further. We can start with matt. What did the court decide . Thank you for having me here today. I worked at the fcc from 2001 through 2005. The early concept of nondiscrimination disclosure was emerging at that time. I represent the cable industry. I just want to provide a brief summary of the decision. Its 186 pages long with a lot of detail. Im only going to talk about every other page. She mentioned the classification of broadband. Thats at the heart of these proceedings. The reason for that debate is they have different starting points. Title i classification starts from the foundation of no regulation, the fcc can later rules on top. Title ii is from the 1934 telecom act. It has a broad array of regulations. The fcc can cancel out some of those regulations through a forbearance process. There is a good starting point. The fcc and the 2018 order concluded to go back to the original determination that broadband should be treated as an Information Service because of its function and that would bring about a framework that would best work in advancing its policy objectives. The d. C. Circuit upheld that classification. The court relied on some of the Technical Analysis the fcc did involving two particularly important functions. Ems is the domain name system. Thirdparty is the translator that you type in into a numerical ip address. Thats a critical function of Internet Service and the fcc found historically its from the transmission that occurs. It is integrated with transmissions of broadband data to make the service information. The circuit upheld that, that the decision the prior decision in the telecom case upholding Telecom Service. They can choose either label. They can make it a Telecom Service or broadband and information. That classification was submitted to the agency. It comports with both the statute and administrative law. Turning to the apa, the court went through a long series of objections the petitioners had lodged against the analysis. By and large, they upheld those critiques. In upholding the order, the court concluded the analysis of the classification decision was sufficiently well reasoned and explained to comply with the procedure act. The analysis of the Competitive Landscape was valid. The commission explained the backstop for relying on Consumer Protection from the department of justice and the state attorney general. In contrast to those issues were the court upheld the commission, they found three issues were the fcc had not explained the decision. Those let the court to conclude that further explanation by the agency was needed. The court did not vacate the order. They did not think the errors were serious enough to undermine the order. It requires the fcc to explain these three issues. They were the importance of Public Safety. Public safety officials argued the fcc had not considered the implications of its Information Service classification or the decision to get rid of certain carrier mandates. It did not consider how those can affect Public Safety. The fcc will have to consider those further and explain why its decision will not threaten Public Safety interests. The commission argued that getting rid of the prior rules was in the Public Interest generally. The court said it wasnt enough discussion about the safety issue. The second issue involved pole attachment. Those are granted under section 220 42 cable providers. Section 224 two cable providers. They considered the lawful poll rights for standalone broadband providers for consideration. The lifeline program, the low income universal service program, the statute provides support of the universal Service Programs for communications services. That was the case before the 2015 order. To be eligible for lifeline support, you have to have service. They concluded broadband could be eligible for discounts under those programs. Now that broadband, they have to explain what that means. The Immediate Impact on the program, the fcc needs to better consider. After those decisions regarding the classification and the elimination of conduct rules, the court had a discussion about state law. Im sure we will talk about this more as time goes on. This is one of the more interesting and hotly debated aspects of the order. There are two types an issue. Express preemption exists where congress or the agency in advance precludes the application of state law. They do that directly. They regulate wireless rates in the Communications Act. There are other instances where they have been given authority over an issue on its own. The crux of the analysis divided the decision. The commission did not identify explicit Regulatory Authority to justify preempting state laws in advance. The best way to understand this is the fcc concluded that because broadband is in a title ii service, it doesnt fall within the major provisions of the act. The Commission Also said that section 706 invoked previously in the 2010 and 2015 orders, the fcc said that is in the basis for regulation. It only guides the exercise of the regulatory function. The fcc said we dont have positive regulatory. You dont have the authority to preempt state law in advance. The court said under the other kind of exemption, it is premature to determine whether state law is preempted. It will it arises under the clause of the constitution. That is the essence of our system. Where the courts of applied that doctrine, there are two ways to have a conflict. Compliance literally is topical. State law requires you to do something. Federal law preclude you from doing it. State law must yield. The other type of conflict is when state law is an obstacle to achieving federal policy. That is going to be the principal debated here. Broadbent should be treated as a Telecom Service, it should be subject to mandates. The federal law says the opposite of those things. I can talk about this further. There will be a strong case for argument. The judge thought there was authority. He thought the majority analysis expressed might implicate his ability the fccs ability. Thats a detailed summary. I will stop there. Thank you matt. It sounds like this is one of the bigger issues. Many states of introduced legislation, california has passed a law. The court said that the order to not preempt state Net Neutrality laws in advance, should this gives states the confidence to enact their own legislation . I can jump in. If i could back up just a little bit. This is a slightly different perspective on how one might im the director of the open technology institute. We were parties to the case. We were intervenors in support of the 2015 open internet rules. We are advocates in Net Neutrality space. We are very active in both the proceeding for the 2015 rules as well as the preceding to overturn those rules. I think its helpful to think about what the decision means in a more practical sense. To put it into laymans terms, this is how much discretion the agency has to interpret this. The court said you were within the definition afforded to you. The court went through great pains to see that was just barely the case. I also want to point out the remand is quite significant. This wasnt remanded on three narrow procedural things. They fail to consider the applications of Public Safety, lifeline attachments. They fail to consider the impact of the repeal on first responders, firefighters, the impact of that order on the one federal program that provides subsidies to overcome the most commonly identified barrier to internet, cost. This provides competitive opportunities for access. They fail to consider Public Safety, ems and first responders, affordability, and access. I dont want to understate the magnitude or the significance of what the fcc has to do to bring this into consideration. This is what is likely to happen. Going back to preemption, its important to recognize that we have had lots of laws with engagement Net Neutrality. I think ive heard it said that the issue has been punted. I would say thats been quite active for the last two years in establishing a clear track record. It culminates most noticeably in the california Net Neutrality. It was stronger than the 2015 law. This does open up opportunities in this space. It does provide more clarity and confidence for states who may have been worried about the legitimacy of the preemption. The technology issue, we are engaging with lawmakers on the understanding of the issue and figured out the best way to go. Im just going to jump in on the preemption point. I am with u. S. Telecom. Going back to the preemption part, the thing with broadband Internet Service, it is national. When you think about your broadband connection, youre not thinking about at you have exclusively in california or vermont, another state of his past Net Neutrality law. You want to work across the country. You want to have a reliable broadband connection. The challenge we are going to see as the states see this as an invitation to legislate. We will end up with a patchwork of laws that will make it difficult for consumers. You wont know what to expect from your broadband connection depending on where you might travel. One of the examples we hear about is you jump on the amtrak and you stream a movie on netflix to new york, there is a different broadband regulation providers must comply within each of those different states. That makes it very difficult. We have to keep that in mind. The patchwork will be very difficult and will not have expectations for consumers to can rely on. What the court did here was say no to blanket preemption. The commission cant blanket lay preempt any state laws. The court did make a distinction with interstate and intrastate broadband. Were not sure what and intrastate broadband might be. Someone might be able to correct me. We need to look at the conflict of preemption. If there is a specific law that did conflict with the policy of the regulation, that could be in conflict and struck down. Couple of things worth noting, with regard to the patchwork, this is a patchwork that the Internet Service providers invited by pushing for the repeal of the Internet Orders that was a federal regime. This is a product of the fcc deregulation in this space. We have seen Consumer Protection laws work on a statebystate basis. This seems fairly overstated. There will be lots of fights that will be happening at the state level. That will create a lot of work to be done over the next few years. In the absence of fcc regulation, im not convinced we will see a workable patchwork. To take this back a step from where weve and the right now, the basic idea in the decision is the concept that federal agency cant regulate an area where it doesnt have authority. The concept does not believe they have the authority to regulate in the specific field. They wont have the ability to regulate in the field. They dont have the ability to preempt. We can talk a little bit about preemption and what it means. Matt explained this. The court found the agency did not have the authority. In the specific context, the court it is not done on a casebycase basis. The actual formula itself does or does not exist. I think we talk about what the patchwork could mean. The benefit for consumers longterm is not only that we would get Net Neutrality protections on the state level, this would innovate and fill the void in terms of protecting consumers. That could mean something touched upon earlier. I think a lot of what this is about is utilitybased regulation. All of this is going to be played on this Going Forward. Its not merely that we will get Net Neutrality. The state might move farther. I think nobody disagrees that broadband is an interstate service. The fcc said so. Its an interstate service. Preemption is not like the traditional fights we had with Telephone Service where there was a local phone service. States have a clear role in regulating Telephone Service. There really is no role for space to play in the regulating service. The best evidence is the title we can onlyt said have federal law and it comes to deciding this framework. The importance of that doesnt change of certain advocates dont like the conflict of the federal law. Add to the notion that the fcc advocated all of already here, that is just not the case. The d. C. Circuit judge ruled last week is that they did have authority to classify broadband as an Information Service. The regulatory portion of the community. This is outside the jurisdiction of the fcc. Matthew it is. And the case law is clear that when an agency d regulates or when an agency regulates, the law needs to be given effect. The fcc did not just a regulate, it imposed a disclosure obligation under section 257 of the act which petitioners challenged in the court upheld that. I forgot to mention that. The debate between judge williams on the majority was can you preempt old state laws regardless of their details and advanced . The majority said clearly you cannot. What the majority was quick to say, if the commission can explain how a state practice undermines the 2018 order, then it can invoke conflict preemption. It goes on to say that the preemptive effect within its authority do have preemptive effect. What we will see on individual cases, two pending lawsuits im involved in, is where the fcc has authority to classify and the court says it does, where it had authority to rely on transparency, fcc backstop, antitrust backstop, those are affirmative regulatory choices, in the state contradicted those choices. Im confident the story the court will say the state cannot contradict the policy choices of the federal agency. Than