It hearts Internet Access. They can set their own rules in different states. Next a discussion on what that means for Internet Users, and possible next steps by congress. The Congressional Internet Caucus Academy hosted this if it. Last about an hour. [background sounds] going to go ahead and get started. Welcome to the sludge panel titled circuit court, what now. It is hosted by the Congressional Internet Caucus Academy in conjunction with another. One of the cochairs of the caucus, so long with representative collins, and others. The internet caucus was created 20 years ago. To help inform the debate in the discussion about key internet policy questions and of course Net Neutrality is at the top of that list. Even though, all of us and all of our buses may not agree, this case is important for all of us. Im glad we get a chance to hear from various stakeholders and their views on how we should be thinking about this. This is been a top issue for my boss for monday years. This case in particular is important for us. Signed by hundred members of congress, the lead plaintiff is in our district and we are always proud of. Associated county, also party to the case. And this year we did a couple of town halls with commissioner with the fcc. We are focused on neutrality. I am looking forward to hearing what all of you have to say and others are due. On behalf of the carcass, one think that was in the moderator for spending type with us and helping inform this debate. And i want to thank tim and the economy for host hosting and organizing. It will now turn it over to caitlin. We used to be at the academy. Thank you. Hello everybody and thank you for attending our panel today. Thank you to the congressional caucus and the Congressional Internet Caucus Academy for cohosting this battle. My name is caitlin and am looking forward to discussing the circuit regarding the fcc 2018 for storing freedom order. Im especially looking forward to discussing this case with our four panels. So starting my far right we have frosting, internet policy manager. Matt built to his Partner Global chair of the medications practice, sara morris who is the director of the open Technology Institute at new america, and Christine Ackman who was Vice President of policy and advocacy at u. S. Telecom. Our cows are going to talk about the dc Circuit Decision in the villa versus fcc. This case might be for congress. The states and the parties involved. First im going to briefly explain the background of the case. So in a nutshell, what is neutrality and how did we get to where we are today. Off of there isnt one universal definition of neutrality, we can generally say that it neutrality is defensible that internet providers, which are also known as isps, our broadband providers should manage all internet traffic in the same way. And not speed up or slow down websites or applications and also not charge consumers or website based networks. The federal Communications Commissions has adopted three separate Net Neutrality orders of the past decade. First 2010, than in 2015, and finally in 2018. In 2010, sec on approve the agency his first internet orders. Specifically prohibiting broadband providers from unreasonably discriminating against internet traffic. However the 2020 skews me 2010, the dc circuit said the fcc did not have the Statutory Authority to impose the anti blocking in a tight discrimination rules and for the reason for this was because broadband provided classified Information Services at the type. So what is his name. The 1934 Communications Act and created a distinction between title i services such as website and telecommunication services. Such as landline telephones. Because the fcc had initially classified as title one services, the court said that the fcc did not have the authority to impose regulations on them. The dc circuit issued this ruling in 2014, in just juan pierre later, the fcc led by chairman in. The 2015 did two things. They really reestablished roles in internet traffic and discrimination in the site for both fixed and Broadband Internet and re reclassified from title i to title to services. This classification of broadband is significant because unlike title i classification, title ii could also potentially enable the fcc to regulate processes that could be unrelated to Net Neutrality such as broadband pricing and the rate of privacy. Off of they could also potentially change powers. In 2016, the circuit ruled again but this type of the legality of the 2015. The case called telecom and classification of Broadband Service as title ii talent communication services. Staying that Congress Date specified in statute have class type rock bands in the fcc has a reasonable leeway to choose. 2018, the sec this type on past the 2018 Internet Freedom orders which repeal the 2015 order and change classification from title ii Services Back to title i. Which brings us here today. About two months after the 2018 order came into effect, it was challenged in court. In this case, the dc circuit mostly upheld the fccs 2018 order that went out issue the case specific provision. With that i would like to turn it over to her panels. First i would just like to me for the course position a little bit further. We can start with matt, when did the court decide last tuesday and what did they say. Thank you caitlin. And thank you for the caucus for having me here today. My background, i served at the fcc from 2001 to 2005 it is really an emerging issue, nondiscrimination disclosure were emerging at the type. In private practice in these proceedings before the fcc and the dc circuit, i represented dth which is the cable as industry associated. A brief summary of the decision. It is a hundred and 86 pages long. A lot of detail. Im only going to talk about every other page. [laughter] to begin with, kala mentioned the classification of broadband. Thats really at the heart of the proceedings. Its been a longstanding battle really, over how best to classify Broadband Services. The reason for that is a very different starting points. Title i Information Service classifications really starts from of their regulation. From the fcc arguably can layer on top additional discrete rules or issues including the neutrality. Title ii in contrast is from the 1934 telecom act designed for originally monopoly Telephone Services and has an incredibly broad array of regulations that go by the fcc being able to cancel out some of those regulations through a process if deems in possible. Very different starting points. In the fcc in the 2018 order, concluded back to its original determination that Broadband Internet should be treated as an Information Service. For function and a lifetouch framework that the fcc determined with best work in advancing his policy objectives. Circuit, upheld that classification in the court relied on some of the Technical Analysis that the fcc did involving two particularly important functions. Known as css and cassian. The domain name systems, and an Internet Service provider for third parties is the essentially the translated, a url, like you type in espn. Com into a numerical ip address. Like ten. 90 night. Two. Thats a critical function of Internet Service. The fcc had found historically that the dns is an Information Processing function distinct from the transmission that occurs in broadband the dns process it in together with catching integrated with broadband data to make the entire service and information. In the dc circuit upheld that conclusion essentially holding the brand x decision in this Supreme Court controls the dc circuit his prior decision in the u. S. Telecom case upholding a Telecom Service ossification and essentially means the fcc here can choose either label. If you make broadband Telecom Service or Information Service but in the view of the dc circuit, that classification is committed to the agency. As long as it can explain his decision in a way that can guess of the statute and its administration on the administered her procedure. Turning to the apa, the court went through a long series of objections that the petitioners had lodged against the fccs analysis. And by and large it upheld the fccs order against those or case with the exception of straight issues that i will get to. In upholding the order in the name, the court concluded the fcc analysis of the effects of a classification decision on investment and innovation with officially well reasoned and explained to comply with the administrator to procedure act. It also held that the fcc Analysis Competitive Landscape and that the commission appropriately explained his backstop relying on generally Consumer Protection anti trust laws. Contrast to those issues, with the court upheld the commissions, the court found three discrete issues when the fcc had not adequately explained his decision. Importantly, those calls lead the court to conclude the further explanation by the agency with necessary information. The court did not vacate the order. In other words they didnt think these errors were serious enough to undermine the order and to set it aside. It just required the fcc to further explain these three issues. In the three issues were first the importance of Public Safety. Some officials including santa clara, argue that the fcc hadnt considered the applications of either Information Service classification or his decision to get rid of certain commentary and mandates against blocking darling and it didnt consider how it could affect Public Safety. So the fcc will have to consider those issues further and explain why is decision its not going to hundred threatened safety issues. The commission argued that implicit analysis that getting rid of the fire rules, within the Public Interest generally is necessarily meant it was Public Safety but the court said that it wasnt. The second issue remanded aspect. Your rights on the statute are granted on section 224 to cable providers and telecom providers. But there is no expensive provision that whole attachment rights for standalone broadband providers as Information Service providers. So the court directed the two consider both of the loss of the rights or rate protections were standalone broadband providers was an issue that warrants further information. And lastly, the Lifeline Program which is the low income universal Service Program administered by the fcc, the statute provides supports as in most of the information of the universal Service Program directly for take. Telecommunications services. This was the case before the 2015 order as well. The fcc historically to be eligible for lifeline support you have to provide a voice service. It later concluded on title ii, the standalone broadband could be eligible for broadband discounts and Lifeline Program because broadband is Telecom Services in statutory language. Now that broadband is an information the fcc has to explain what that means. For Lifeline Program. For Immediate Impact of the program, he again this something the fcc never needs to better explain or consider. So after those decisions regarding the classification and the elimination of what the fcc calls conduct rules, the court had an extended discussion about redemption of state law and im sure we will talk about this more as a man was on it is one of the more interesting and i think more hotly debated assets of this order. There are two types of preemption issues. Very brief background. It exists where congress or the agency in advance re include the application of state laws. Theres certain provisions that do that directly and may be a statement does not regulate wireless rates for example. In section 332 of the Communications Act. There are other fcc has been given sufficient authority over an issue that course and found that the fcc on its own can express here. The analysis by the panel, and this was divided decision to just wool and defense was that the commission did not identify a sufficiently his explicit regulatory to justify preempting state laws in advance categorically. Generally the best way to understand this is the fcc concluded the because broadband is in the title see service, and it doesnt have sepsis and Regulatory Authority on title ii, doesnt follow one of the major substantive mission acts. Title iii of title vi. The Commission Also said that section 706 of the 1996 act which has been involved previously in the 2010 and 2015 orders as a potential basis for authority. The fcc now says that isnt a basis for imposing regulations. And only got the exercise of deregulatory functions and other existing powers. So in essence the fcc says we dont really have positive Regulatory Authority in the courts and if thats the case, you have to ask the authority to preempt the state law categorically in advance. And partly though the court then said on the other kind of preemption. It is premature to determine both of state law is or isnt preemptive. So depends upon the specifics of any given state law. It would come with arrives on the constitution. The privacy because old separate federal law is the law with a conflict. In the way the courts can apply that doctrine are two ways you can have a conflict. One is where federal law and state laws literally impossible. State law requires you to do something and general law approves you can do something but its impossible to comply with those in the state audit log must yield. For example. The other type is where state law creates its obstacles to achieving federal policy and is something call obstacle option. Thats going to be the principal kind of preemption debated here. So state law for example is that broadband should be treated as a Telecom Service and subject to rules to be subject to blocking the throttling of organization another mandate and federal offices the opposite of those things. And we can talk about this further but its going to be a strong case for argument and some they do not coexist. He thought there was authority for express. He got the majority had an might indicate disability the fcc his ability to this. So that said, pretty detailed summary. Ill stop there. Im sure well get a lot of attitude. Thank you. It sounds like preemption is one of the bigger issues here. Especially since a lot of states have already introduced legislation and even pass a law in california. The court says that the 2018 order cannot categorically preempt state laws in advance. But for this against the states to ask their own legislation. I can wait or japan. If i could back up just a little bit to qualify as a couple of perspectives. I have on the order that i can directly put anything or slightly different perspective on how one might, so im sara director of the Technology Institute. The big party to the case with the fcc, we were also intervened with the report of the fcc 2015 open internet rules. Longstanding advocates in the Net Neutrality space. We are very active in both interline proceedings of the 2016 roles of the fcc as well as the proceedings to overturn those rules for Internet Freedom. I think its helpful to maybe sort of, think about what this decision means in a more practical sense. And essentially putting two layman his terms that the court said was this is the separate, the daca and the guidance of how much in agencies and has in this specific classic chevron difference case the court said yes commission. You know within what was up generally afforded to you. The court went to the deal that this was just barely the case. I also want to. Out that there this is significant here, this wasnt remanded on sort of three narrow cathedral things. It was remanded because the fcc court told the fcc that it failed to uphold the Public Safety and lifeline and attachments. What is that mean. The fcc failed to consider the impact of his 2017th appeal on First Responders and firefighters and it failed to consider the impact of that order on the one federal program that is capable of providing subsidies to overcome the most commonly identified barrier to broadband barrier costs. In a bills failed to provides competitive opportunity for all. So the fcc failed to consider Public Safety, ems First Responders, broadband affordability