Caucus along with representative doug collins, senator leahy and senator soon. The internet caucus was created 20 years ago to help inform the debate and discussion about key internet policy questions. Net neutrality is towards the top of that list even though all of us may not agree on how to approach Net Neutrality, this case is important for all of us. Im glad we get a chance to hear from different views on how we should be thinking about this. Net neutrality has been a top issue for many years. This case in particular is important for us. She led an amicus brief cosigned by 100 members of congress. Mozilla, the lead plaintiff is headquartered in our district. In sarasota county, also party to the case and this year we did a couple townhalls focused on Net Neutrality. I am looking forward to hearing what you have to say and others are too. On behalf of the caucus i think the panelists and moderator for spending time with us to inform this debate and i want to thank tim and the academy for helping to organize. I will turn it over to caitlin who used to be at the asa academy and is now at brookings. Thanks for the introduction. Thank you for attending our panel today. Thank you to the congressional internet caucus for cohosting this panel. My name is caitlin chin and im looking forward to discussing the dc circuit position regarding the fcc 2018 orders. Im looking forward to discussing this case with our four panelist. At my far right we have ferras vinh, manager of mozilla, Matthew Brill is a global chair of the Communications Law practice. Sarah morris is director of the Technology Institute at new america. Kristine hackman is Vice President of policy and advocacy at us telecom. Our panelists are going to talk about the dc circuits decision in mozilla versus fcc and what this might mean for congress, the state and the parties involved but first i will clean the background of the case. In a nutshell what is Net Neutrality and how did we get to where we are today . Although there isnt one universal definition of Net Neutrality we can generally say Net Neutrality is the principle that Internet Service providers also known as broadband providers should manage all internet traffic in the same way and not speed up or slow down specific websites or applications and not charge consumers or websites different rates to use their network. The federal Communication Commission has adopted three separate Net Neutrality orders over the past decade. In 2010, 2015 and finally 2018. In 2010, the fcc approved the agencys first orders specifically prohibiting broadband providers from unreasonably discriminating against unlawful internet traffic but the 2010 open Internet Order challenged in federal court in verizon versus fcc, the dc circuit subsequently said the fcc did not have the Statutory Authority to impose anticlotting and antidiscrimination because broadband providers classified Information Services at the time. What does this mean . The Communications Act which was amended by the teleCommunications Act created a distinction between title i Information Services such as websites and applications entitled to telecommunication services. Because the fcc had initially classified broadband providers as title i Information Services the court said the fcc did not have the authority to impose regulations on them. The dc circuit issued his ruling in 2014 and one year later the fcc passed a new. The 2015 did two things, reestablished internet traffic blocking and discrimination this time for fixed and mobile Broadband Internet and declassified isp from title i to title to services. This classification of broadband is significant because unlike title i classification, title to could enable the fcc to regulate practices that could be unrelated to Net Neutrality like broadband pricing and privacy and although they could potentially choose to forbear stain from additional powers. In 2016 the dc circuit ruled on Net Neutrality on the legality of the 2015 open internet network, the case title us telecom versus fcc the dc circuit upheld the reclassification of Broadband Service as title to telekinetic asian services. Saying of congress to classified broadband in the fcc had reasonable leeway to choose. In 2018 the fcc under chairman ajit pai past the restoring Internet Freedom order which repealed the 2015 order and change the classification of isps from titled 2 to title i. Which brings us here today. Two months after the 2018 order came into effect it was challenged in court in mozilla versus fcc, the dc circuit upheld the fcc 2018 order but found issue with a few specific provisions. With that i would turn it over to our panelists. First i would like to explore the courts decision a little further and we can start with Matthew Brill. What did the court decide last tuesday . What does it mean . Thank you. Thank you to the caucus for having me here today. So everyone understands my background i worked on Net Neutrality when i served at the fcc 20012005 when it was an emerging issue and no one use the term Net Neutrality but it is really not dissemination, disclosure, emerging at that time. Private practice in these proceedings before the fcc before the dc circuit i represented the cable industry. I will provide a brief summary of the dc circuit decision. It is 186 pages long. Im only going to talk about every other page. Caitlin mentioned classification of broadband. That is a part of these proceedings. A longstanding battle over how to classified Broadband Services and the reason for that debate is they have different startups, title i Information Service classification start from a foundation of no regulation. The fcc can argue additional discrete rules for issues including Net Neutrality. Title 2 in contrast the 1934 telecom act designed for monopoly Telephone Services, has a broader stipulation that applied by default. The fcc being able to cancel out those regulations through a forbearance process. There are different starting points making a loaded decision and the fcc concluded going back to its original determination that Broadband Internet access should be treated as an Information Service because of its function and it would bring about a light touch framework the fcc would best work in advancing its policy objectives. The dc circuit upheld that classification. The court relied on Technical Analysis the fcc did involving two particularly important functions known as dns and caching. Dns is the domain name system, and Internet Service provider or third parties essentially to translate a url that you type in like espn. Com into a numerical ip address. That is a critical function of Internet Service and the fcc has found historically dns is an Information Processing function distinct from the transmission that occurs in broadband and together with caching are sufficiently integrated with transmission of broadband data to make the entire Service Information and the dc circuit upheld that conclusion and the decision in the Supreme Courts controls the dc circuits prior decision in the telecom case and essentially means the fcc can choose either label. In the view of the dc circuit classification is committed, in a way that comports with federal statutes. Under the administrative procedure act. Turning to the administrative procedure act the court went through a long series of objections the petition is lodged against the fcc analysis and by and large upheld the order against those critiques with the exception of what we will get to. In upholding the order the court concluded the fcc analysis of the effect of the classification decision on investments and innovation was well reasoned and explained to comply with the administrative procedure act and held the analysis, the competitive landscape, and appropriately explained its backstop of relying on generally applicable Consumer Protection and antitrust laws from the ftc and department of justice and state attorneys general. In contrast to issues where the court upheld this, the court found three discrete issues where the fcc had not adequately explained its vision. Importantly those faults led to further explanation it was necessary on remand, the court did not make the order or think these errors were serious enough to undermine the order and set it aside and requires the ftc to further explain these issues and the free issues where the Court Remanded were first the importance of Public Safety in this analysis, Public Safety officials including jenna claire argued the ftc hadnt considered the implications of Information Services classification or decision to get rid of certain common carrier mandate against blocking, throttling didnt consider how that would affect Public Safety. I remanned, the fcc will have to consider that further into clean whites decision is not going to unduly threaten Public Safety. The commission had argued during oral arguments that implicit in its analysis that getting rid of the prior rules was in the Public Interest generally, consistent with Public Safety but the court said it wasnt enough explicitly to Public Safety. The second issue that was remanded involved pole attachments. They are granted under section 224 to cable providers and Telecom Providers but there is no explicit provision for standalone broadband providers as information Service Providers so the court directed the fcc to consider whether the loss of rate protections for standalone broadband providers was an issue that warrants further consideration. Lastly, the Lifeline Program which is the lowincome universal Service Program administered by the fcc provides support as in most of the universal Service Programs for telecommunication services. This was the case before the 2015 order as well and historically to be eligible for lifeline support you have to provide voice service. It later included under title ii standalone broadband is eligible because broadband is a Telecom Service with statutory language. Now that broadband is an Information Service the fcc says what does that mean for the Lifeline Program . The Immediate Impact of the program is something the fcc needs to better explain on remanned. After those decisions regarding both the classification and the limitation of conduct tools the court had an extended discussion of preemption of state law. Im sure we will talk about this as the panel goes on. One of the more interesting and hotly debated aspect of this order. There are two types of preemption at issue. Express preemption exists where congress or the agency in advance preclude the application of state law. There are certain statutory provisions that do that directly and say a state may not regulate wireless rates for example, section 332 of the Communications Act. In other instances the fcc was given sufficient authority over an issue courts found the fcc on its own can expressly preempt. Here, the analysis by the panel, this was a divided decision with judge williams, the commission did not identify sufficiently explicit Regulatory Authority to justify preempting state laws in advance categorically and the best way to understand this is the fcc concluded because broadband isnt entitled to service with substantive Regulatory Authority under title ii doesnt fall within major substantive provisions, title iii and title vi. The Commission Also said section 706 which was invoked previously in the 201015 orders with potential basis for authority the fcc that is not basis for imposing regulation and all the guards the exercise of regulatory function. And essence, we dont have Regulatory Authority and the court said if that is the case you dont have the authority to preempt state law categorically in advance. Importantly the court then said under other preemption it is premature to determine whether state law is or isnt granted so it depends on the specifics of state law. It arises under the premise, the supremacy clause holds where federal and state law conflicts federal law is the essence of the federal system. The court applied the doctrine there are two ways to have a conflict. One is where compliance with the federal law and state law is literally impossible, state law requires you to do something and federal law precludes you doing something and impossible to comply with those. The other exemption is where state law creates an obstacle to achieving the federal policy. That is going to be the principal kind of preemption debated here. State law says broadband should be treated as a Telecom Service subject to common carrier rules, subject to know blocking, throttling and other mandates and federal law says the opposite of those things but there is a strong basis that state law and federal law cannot coexist so judge williams dissented from that aspect. He thought there was authority to exempt expressly and he thought the majority analysis might implicate the ability to invoke this exemption so that is a pretty detailed summary. Im sure we will have a lot of that. Sounds like preemption is one of the bigger issues especially since many state of introduce legislation in california has even passed a law. The court said the order cannot categorically preempt Net Neutrality laws in advance but should this gives states the confidence to a neck their own legislation . I can jump in. If i could back up a little bit. A couple perspectives i have on the order that doesnt directly conflict with anything matt said, slightly different perspective on how one might view. Im sarah morris. You have an parties to the case and we also were interveners and supported the fccs open internet rules. And we were active in both the underlying proceedings and proceedings overturn those rules for Internet Freedom. It is helpful to think about what this decision means in a more practical sense and to put it in laymans terms what the court said was, chevron deference guides how much discretion there is. This is classic chevron deference case. I also want to point out the remand is significant. This wasnt remanded on three bear procedural things. This was remanded because the court told sec it failed to consider the implications of Public Safety lifeline and pole attachment. What does that mean . The fcc failed to consider the impact of its 2017 repeal on First Responders and firefighters. Failed to consider the impact of that order on on the one that a program that is capable of providing subsidies to overcome the most, identified very to private access, and it failed to consider the impact on pole attachment which provides competitive opportunities for access and buildup. The fcc failed to consider Public Safety, ems and First Responders, broadband affordability of broadband tilde that access in its repeal. I dont want to understate the magnitude or the significance root of what the fcc has to do in considering the appropriate considerations for whatever it does. Going back to preemption, i think its important to recognize weve had lots of states passing laws in the absence of fcc engagement on Net Neutrality and, indeed, a complete abdication of its responsibility. Ive heard it say, eifert folks say the issue has been hunted to state and i would argue the states have been quite active for the past few years in establishing a track record of statebystate engagement culminating i think notably in the california Net Neutrality regime, some argue would stronger than 2015. This does open up opportunities in the states and does provide more clarity and confidence for states who may have been worried about coming in, about the legitimacy of the fcc assertive preemption. So we are at the open Technology Institute excited to continue to engage to lawmaker