Transcripts For CSPAN2 The Communicators 20160620 : vimarsan

Guest so were very pleased and also gratified that this discussion has led us to the right place on the legal interpretation and on these particular rules. Matt, if i could start with you, id be curious to know what you think about judge williams dissent and what you think of, you know, what the strongest, most compelling arguments that he made were. Guest well, having Justice Scalias dissent in brand x many times, maybe im not the right one. He basically quibbled with the fccs rationale. He had to concede the that the fcc had the right to make the determination. Following earlier Supreme Court precedent on that very question. So he questioned the fccs reasons for doing so, the majority opinion, i think, answers that well, and its a factual conversation in some ways. Thats really not the courts place to make those factual determinations. They have to defer to the agencys understanding of the technology, and we think thats exactly what they got right here in in addition to a lot of other things based on those court cases. Host fred . Guest i think the strongest case is this is a paradigm shift in the Way Communications law has traditionally been viewed. It was designed to regulate the monopoly telephone network. The provisions in it were designed to protect consumers from a monopoly. Fast forward to the early 80s, the fcc says, you know what . We can foresee competition developing here. And if we have competition, the protections in the act will be taken care of by market forces. In other words, they have orders that say if theres enough competition, provider cant discriminate or customers would go to someone else. What shifted here that judge williams raised in his dissent is that the fcc didnt really rely on a competition rationale for the rules. So the reason he would say this decision in Legal Standard terms was arbitrary and capricious is he would say, okay, if you want to regulate broadband providers like you regulate the monopoly telephone network, you need to make a finding theres a lack of competition, because the fcc president says if theres competition, consumers will be protected from discrimination by people switching. And what the court did or what the fcc did that the Court Approved was, they said, well, we dont need to make a finding of competition, but we note that switching costs are high according to the fcc when you can switch broadband providers, but that entails some cost, and because of that we dont think the competition will protect consumers. Thats the paradigm shift. Because thats not really a traditional competition analysis. Its something new. So the question becomes there are switching costs in lots of industries. In what other instances are switching costs now a reason to regulate . I think its an open question. Its an interesting question, but thats one of the things that judge williams focused on. Guest yeah. Although i think just to go back to where fred started in his first comment, we dont agree this is the first time this court or fcc has cone this. Title. Has done this. Title ii rules have applied in competitive markets. In 1996, congress overhauled the telecommunications act, but it left in place these common carrier protections in legal parlance that protect people from things like blocking or undue discrimination by their provider. The rationale, there is a lack of effective competition, and i think most people will understand they dont have that many choices for broadband as compared to the number of web sites they can visit. Importantly, weve had these protections in place where Wireless Voice for the past two decades, for dsl at first for all dsl offerings and broadband offerings made by phone companies and even throughout this last ten years, smaller telephone companies. Weve had them in place for businessgrade Broadband Services. Title ii is neither new, nor outdated even in competitive markets, and were glad the fcc has turned to that understanding. Turning to the majority opinion, what parts of that opinion could be used by, you know, the industry to further its arguments . What kind of holes can it try and poke in that argument . You know, when it goes to an appeal . Guest yeah. I dont know that its going to go up further. What we usually see on appeal is to the full circuit or to the Supreme Court. The Supreme Court could decide to take a case, although may not do so now with only eight justices, for other reasons if theres some sort of important question of law in play. Im sure that some of the petitioners, some of the cable and phone companies will be tempted to seek further review. We really dont see weak points on which theyre likely to win even in the up likely event unlikely event they do get that review by a higher court. Do you see it as a barrier to getting a review . Its not a guarantee, they just dont have that to look to, to suggest that the Supreme Court must decide some kind of split between two appellate courts. Fred, do you agree on that . Guest i mean, to some extent. I think matt was pointing out part of what you have going on here is with review of a federal Agency Decision like this, it probably wont come up on review again, so you only have the opportunity for a circuit split. Although, so the court could decide to take it without respect to that. Although maths right, they dont have that to look to. Much of the opinion references the earlier Court Decision overturning the previous fc cNet Neutrality rules, and i cant remember if that was, if they tried to appeal that to the Supreme Court. In any event, it doesnt end up there. It didnt end up there. Supreme court review isnt a given by any stretch. Its hard to say what will happen. The one interesting issue that i thought in the majority opinion that creates new law and or is arguably inconsistent with existing law was their treatment of the First Amendment question which isnt entirely clear. But that could pique the Supreme Courts interest possibly if they want to take that on. What the court did there, in a disclosure, i filed an amicus brief on the First Amendment issue, so clearly im interested in them. But the court said, look, this is once you have a common carrier network, you know, the First Amendment generally doesnt apply. But whats assumed in that analysis is that the fcc can force broadband providers to be common carriers, right . If the First Amendment says you cant force somebody to make their Network Available on a common carrier bay kiss, which was my argument basis which was my argument, it gets a little more complicated, then that part of the opinion doesnt hold up. Now, you know, implied in what the court said was that its implied, they werent clear that broadband providers voluntarily held themselves out as being common carriers, and the court goes on to say if a broadband provider decides to curate the internet, the court said by their own terms the rules wont apply, and it might, you know, violate the First Amendment if the fcc tried to force the rules to apply. It raises an interesting question, you know . My first thought went to the Facebook Service that was, you know, banned in india on Net Neutrality grounds where facebook made their service, you know, their social Media Network and some other weather and the Like Services available for free, and they paid the indian or [inaudible conversations] not a, not a guest right. But as i understand it, india ruled against it because the broadband providers were getting paid by facebook. So the question thats left open here is it appears from a reading from the court thats very well permissible in the u. S. , and the fcc may not be able to do anything about it. Thats an interesting issue the fcc may want to look at. Guest so where to start. India and their telecommunications laws, we probably dont have time for it today. [laughter] my understanding was facebook was not paying, but to say it was struck down is an easy and largely accurate description for what happened will. I think what the court did, and fred is right in some respects, it did leave out the option and the possibility because the if fcc left this open that some kind of curated service where the isp is editing and taking away choices from people or offering them special choices not necessarily requiring that company to become a common carrier would violate the First Amendment, but that Company Might have First Amendment rights. Right. Guest so if they were, indeed, offering up an edited Internet Service, that would perhaps trig ther. But the court left that for a later day. By definition, such a service might not be a Broadband Internet access service, and that might trigger First Amendment review. I think the answer to that question is anything but true. Can you think of any service that does pit that mold fit that mold today, and. [inaudible] guest its not generally what people want. There are such things as specialized and Data Services that allow you to connect to a single source, but thats not necessarily what were talking about here. More of an editorial care, maybe a familyfriendly isp or Something Like that that offered access to the internet did the fcc and the court, you know, together sort of through, you know, no conscious decision of their own effectively create a new category of Internet Service . Guest i dont think its also likely to happen because its risky for the isp. If they put themselves out there as the speaker, suddenly they lose Liability Protections that have always protected isps. Guest so theres actually two providers that are doing this now, and they are relatively small. Its far from clear to me that a large provider has any interest in doing this. Im not trying to suggest that. But i wrote a law review article on the First Amendment issues and did quite a bit of research. I used an example theres a small isp in new york city that markets itself as friendly to those in the jewish faith. It blocks its server does not allow any of its subscribers to opt out. It blocks content it considers, you know, inconsistent with the moral principles of that faith. And, you know, they actually market that as their advantage. So they do provide a curated service. I always thought it was interesting there was never a Net Neutrality complaint directed at them but, you know, theyre small and may not be the main focus. So it is happening now, and, you know, to matts point on it not being clear, this is also the kind of thing that can be brought up later on in what a court would call an asapplied challenge. A court can decide these rules as written dont, obviously, violate any constitutional right or provision. But if the fcc were, for example, to take action against this isp for their editorial, you know, decisions, they then could say, well, as this statutes being applied to me, its violating my First Amendment right. Its an issue that may or may not come up again. But it is happening to some small extent out there. Host so, matt wood, how does the Net Neutrality rules as promulgated encourage competition . Whats the connection there . Guest it encourages competition for the services we can all reach over the internet. So it allows companies on the edge of the internet, the socalled edge providers to innovate without permission, and that allows them not only to compete with the broadband providers and offer things like voice and video that broadband providers might otherwise have a lock on, it also allows them to come up with that next innovation that nobody can really dream up today. I dont know what we can put in that category safely now. Everything we know of seems so ordinary, but, of course, social media and the power in that kind of platform is such a new thing, within the last decade or two. Nobody had really dreamed that up in quite the same way, and now today it seems like such an important part of peoples lives. It allows more competition on the edge of the Network Without that gatekeeper control that is ps might have. Host net flicks put out a statement netflix put out a state supporting this saying netflix will be able to reach consumers without isp interfeerchlts netflix is not really an edge provider, is it . Guest netflix does something where they directly connect with the isp providers using facilities spread around the country, and they have their own, you know, backbone delivery networks. Not necessarily owned by them, that they lease. The larger providers, google does that. This is another thing judge williams brought up in his dissent. If the concern is that some companies could get an advantage and by that, i mean Edge Companies or companies who arent your last mile, you know, isp that you sub skype to get access to the internet the worry was, you know, Large Companies will pay the isps to get an advantage, and itll get there faster, Higher Quality x thatll harm competition on the edge. Judge williams pointed out the largest providers are already getting a significant speed advantage by owning their own backbone facilities and owning, you know, paying for prime interconnection points that a lot of smaller providers either cant afford or theyre paying a third party that isnt the isp, but there are now these Third Party Networks that provide these services. So advantages are still going on. And this was raised with the fcc that, you know, if you really want to prevent these types of advantages, you have to address these cashing networks. And the fcc said, no, were just not going to look into that. They just didnt want to address it. Guest some of that is true, but i think netflix is undoubtedly an edge provider. They are on the other side of the network from the user, and thats really what were talking about here. A lot of people like to talk about Net Neutrality as a battle between companies, netflix on one side, comcast on the other. Really what were talking about is comcast customers rights, and is anything that their common carrier does unreasonably interfering with that companys customers opportunity to reach different web traffic, to stream the vid you they want, to talk to whomever they want, to say what they want online. So netflix is an edge provider. Its not really a legal determination, and the fact that some of their content might move more quickly as some sort of speed limit where everything must move at the same speed, thats not really true. I think people understand that intuitively. They buy different speed tiers at home. Somebody might have a faster connection than somebody else. Its about whether or not there is any unreasonable interference or discrimination or roadblock that the Cable Company puts in the way x. Doing something to improve the quality of your own stream if netflix has more servers than i do, for example, they can serve video more quickly than i can, but that doesnt mean they are somehow damaging or making my service or my video less appealing to viewers. Guest let me use a different example than netflix to illustrate. A potential answer to your question about how does Net Neutrality promote more competition. So the fccs theory is that the Broadband Service providers have an incentive and ability to block or charge edge providers to deliver traffic. The fcc says that will reduce the amount of edge providers who want to provide traffic which will reduce demand for the internet and, therefore, the isps themselves would use as much infrastructure. In other words, the isps are their own worst enemies. Theyre going to do things that actually hurt them in the long run. This is what i meant by a paradigm shift, that virtuous circle that the fcc talks about, it doesnt just necessarily apply to isps. So who else stands as somebody in between a consumer and an edge service . And i put this in the fcc record and, again, they just really didnt address it. But another thing is, you know, if you use the mobile internet, and a lot of consumers today are only using mobile devices to access the internet, you have to have a mobile operating system. Theres really only two. We have 96 plus percent market share, and thats googles android or apples iphone operating system. Both of them charge Application Developers to be able to be on that platform, and they charge consumers for the phone, at least in apples case. So theyre making money that way. And they sayyou want to have your app on our phone, you have to be in our app store. And they charge 30 . So the fcc in their order says, look, were really worried that isps are going to charge excessive prices, and its going to reduce the edge providers, and you go down the chain. The app space is exploding. 30 is about double what the fcc historically has considered a reasonable rate of return under their statutory, regulatory, you know, authority. And that doesnt seem to be dissuading the app providers at all. But put that aside. If the theory is now part of the law of communications, why doesnt it apply to the other gatekeepers on the internet that are charging people upstream 30 or what have you . I dont know. Before we talk about that, i want to ask about the implications this ruling will have for legislation on Justice Scalias<\/a> dissent in brand x many times, maybe im not the right one. He basically quibbled with the fccs rationale. He had to concede the that the fcc had the right to make the determination. Following earlier Supreme Court<\/a> precedent on that very question. So he questioned the fccs reasons for doing so, the majority opinion, i think, answers that well, and its a factual conversation in some ways. Thats really not the courts place to make those factual determinations. They have to defer to the agencys understanding of the technology, and we think thats exactly what they got right here in in addition to a lot of other things based on those court cases. Host fred . Guest i think the strongest case is this is a paradigm shift in the Way Communications<\/a> law has traditionally been viewed. It was designed to regulate the monopoly telephone network. The provisions in it were designed to protect consumers from a monopoly. Fast forward to the early 80s, the fcc says, you know what . We can foresee competition developing here. And if we have competition, the protections in the act will be taken care of by market forces. In other words, they have orders that say if theres enough competition, provider cant discriminate or customers would go to someone else. What shifted here that judge williams raised in his dissent is that the fcc didnt really rely on a competition rationale for the rules. So the reason he would say this decision in Legal Standard<\/a> terms was arbitrary and capricious is he would say, okay, if you want to regulate broadband providers like you regulate the monopoly telephone network, you need to make a finding theres a lack of competition, because the fcc president says if theres competition, consumers will be protected from discrimination by people switching. And what the court did or what the fcc did that the Court Approved<\/a> was, they said, well, we dont need to make a finding of competition, but we note that switching costs are high according to the fcc when you can switch broadband providers, but that entails some cost, and because of that we dont think the competition will protect consumers. Thats the paradigm shift. Because thats not really a traditional competition analysis. Its something new. So the question becomes there are switching costs in lots of industries. In what other instances are switching costs now a reason to regulate . I think its an open question. Its an interesting question, but thats one of the things that judge williams focused on. Guest yeah. Although i think just to go back to where fred started in his first comment, we dont agree this is the first time this court or fcc has cone this. Title. Has done this. Title ii rules have applied in competitive markets. In 1996, congress overhauled the telecommunications act, but it left in place these common carrier protections in legal parlance that protect people from things like blocking or undue discrimination by their provider. The rationale, there is a lack of effective competition, and i think most people will understand they dont have that many choices for broadband as compared to the number of web sites they can visit. Importantly, weve had these protections in place where Wireless Voice<\/a> for the past two decades, for dsl at first for all dsl offerings and broadband offerings made by phone companies and even throughout this last ten years, smaller telephone companies. Weve had them in place for businessgrade Broadband Service<\/a>s. Title ii is neither new, nor outdated even in competitive markets, and were glad the fcc has turned to that understanding. Turning to the majority opinion, what parts of that opinion could be used by, you know, the industry to further its arguments . What kind of holes can it try and poke in that argument . You know, when it goes to an appeal . Guest yeah. I dont know that its going to go up further. What we usually see on appeal is to the full circuit or to the Supreme Court<\/a>. The Supreme Court<\/a> could decide to take a case, although may not do so now with only eight justices, for other reasons if theres some sort of important question of law in play. Im sure that some of the petitioners, some of the cable and phone companies will be tempted to seek further review. We really dont see weak points on which theyre likely to win even in the up likely event unlikely event they do get that review by a higher court. Do you see it as a barrier to getting a review . Its not a guarantee, they just dont have that to look to, to suggest that the Supreme Court<\/a> must decide some kind of split between two appellate courts. Fred, do you agree on that . Guest i mean, to some extent. I think matt was pointing out part of what you have going on here is with review of a federal Agency Decision<\/a> like this, it probably wont come up on review again, so you only have the opportunity for a circuit split. Although, so the court could decide to take it without respect to that. Although maths right, they dont have that to look to. Much of the opinion references the earlier Court Decision<\/a> overturning the previous fc cNet Neutrality<\/a> rules, and i cant remember if that was, if they tried to appeal that to the Supreme Court<\/a>. In any event, it doesnt end up there. It didnt end up there. Supreme court review isnt a given by any stretch. Its hard to say what will happen. The one interesting issue that i thought in the majority opinion that creates new law and or is arguably inconsistent with existing law was their treatment of the First Amendment<\/a> question which isnt entirely clear. But that could pique the Supreme Court<\/a>s interest possibly if they want to take that on. What the court did there, in a disclosure, i filed an amicus brief on the First Amendment<\/a> issue, so clearly im interested in them. But the court said, look, this is once you have a common carrier network, you know, the First Amendment<\/a> generally doesnt apply. But whats assumed in that analysis is that the fcc can force broadband providers to be common carriers, right . If the First Amendment<\/a> says you cant force somebody to make their Network Available<\/a> on a common carrier bay kiss, which was my argument basis which was my argument, it gets a little more complicated, then that part of the opinion doesnt hold up. Now, you know, implied in what the court said was that its implied, they werent clear that broadband providers voluntarily held themselves out as being common carriers, and the court goes on to say if a broadband provider decides to curate the internet, the court said by their own terms the rules wont apply, and it might, you know, violate the First Amendment<\/a> if the fcc tried to force the rules to apply. It raises an interesting question, you know . My first thought went to the Facebook Service<\/a> that was, you know, banned in india on Net Neutrality<\/a> grounds where facebook made their service, you know, their social Media Network<\/a> and some other weather and the Like Services<\/a> available for free, and they paid the indian or [inaudible conversations] not a, not a guest right. But as i understand it, india ruled against it because the broadband providers were getting paid by facebook. So the question thats left open here is it appears from a reading from the court thats very well permissible in the u. S. , and the fcc may not be able to do anything about it. Thats an interesting issue the fcc may want to look at. Guest so where to start. India and their telecommunications laws, we probably dont have time for it today. [laughter] my understanding was facebook was not paying, but to say it was struck down is an easy and largely accurate description for what happened will. I think what the court did, and fred is right in some respects, it did leave out the option and the possibility because the if fcc left this open that some kind of curated service where the isp is editing and taking away choices from people or offering them special choices not necessarily requiring that company to become a common carrier would violate the First Amendment<\/a>, but that Company Might<\/a> have First Amendment<\/a> rights. Right. Guest so if they were, indeed, offering up an edited Internet Service<\/a>, that would perhaps trig ther. But the court left that for a later day. By definition, such a service might not be a Broadband Internet<\/a> access service, and that might trigger First Amendment<\/a> review. I think the answer to that question is anything but true. Can you think of any service that does pit that mold fit that mold today, and. [inaudible] guest its not generally what people want. There are such things as specialized and Data Services<\/a> that allow you to connect to a single source, but thats not necessarily what were talking about here. More of an editorial care, maybe a familyfriendly isp or Something Like<\/a> that that offered access to the internet did the fcc and the court, you know, together sort of through, you know, no conscious decision of their own effectively create a new category of Internet Service<\/a> . Guest i dont think its also likely to happen because its risky for the isp. If they put themselves out there as the speaker, suddenly they lose Liability Protections<\/a> that have always protected isps. Guest so theres actually two providers that are doing this now, and they are relatively small. Its far from clear to me that a large provider has any interest in doing this. Im not trying to suggest that. But i wrote a law review article on the First Amendment<\/a> issues and did quite a bit of research. I used an example theres a small isp in new york city that markets itself as friendly to those in the jewish faith. It blocks its server does not allow any of its subscribers to opt out. It blocks content it considers, you know, inconsistent with the moral principles of that faith. And, you know, they actually market that as their advantage. So they do provide a curated service. I always thought it was interesting there was never a Net Neutrality<\/a> complaint directed at them but, you know, theyre small and may not be the main focus. So it is happening now, and, you know, to matts point on it not being clear, this is also the kind of thing that can be brought up later on in what a court would call an asapplied challenge. A court can decide these rules as written dont, obviously, violate any constitutional right or provision. But if the fcc were, for example, to take action against this isp for their editorial, you know, decisions, they then could say, well, as this statutes being applied to me, its violating my First Amendment<\/a> right. Its an issue that may or may not come up again. But it is happening to some small extent out there. Host so, matt wood, how does the Net Neutrality<\/a> rules as promulgated encourage competition . Whats the connection there . Guest it encourages competition for the services we can all reach over the internet. So it allows companies on the edge of the internet, the socalled edge providers to innovate without permission, and that allows them not only to compete with the broadband providers and offer things like voice and video that broadband providers might otherwise have a lock on, it also allows them to come up with that next innovation that nobody can really dream up today. I dont know what we can put in that category safely now. Everything we know of seems so ordinary, but, of course, social media and the power in that kind of platform is such a new thing, within the last decade or two. Nobody had really dreamed that up in quite the same way, and now today it seems like such an important part of peoples lives. It allows more competition on the edge of the Network Without<\/a> that gatekeeper control that is ps might have. Host net flicks put out a statement netflix put out a state supporting this saying netflix will be able to reach consumers without isp interfeerchlts netflix is not really an edge provider, is it . Guest netflix does something where they directly connect with the isp providers using facilities spread around the country, and they have their own, you know, backbone delivery networks. Not necessarily owned by them, that they lease. The larger providers, google does that. This is another thing judge williams brought up in his dissent. If the concern is that some companies could get an advantage and by that, i mean Edge Companies<\/a> or companies who arent your last mile, you know, isp that you sub skype to get access to the internet the worry was, you know, Large Companies<\/a> will pay the isps to get an advantage, and itll get there faster, Higher Quality<\/a> x thatll harm competition on the edge. Judge williams pointed out the largest providers are already getting a significant speed advantage by owning their own backbone facilities and owning, you know, paying for prime interconnection points that a lot of smaller providers either cant afford or theyre paying a third party that isnt the isp, but there are now these Third Party Networks<\/a> that provide these services. So advantages are still going on. And this was raised with the fcc that, you know, if you really want to prevent these types of advantages, you have to address these cashing networks. And the fcc said, no, were just not going to look into that. They just didnt want to address it. Guest some of that is true, but i think netflix is undoubtedly an edge provider. They are on the other side of the network from the user, and thats really what were talking about here. A lot of people like to talk about Net Neutrality<\/a> as a battle between companies, netflix on one side, comcast on the other. Really what were talking about is comcast customers rights, and is anything that their common carrier does unreasonably interfering with that companys customers opportunity to reach different web traffic, to stream the vid you they want, to talk to whomever they want, to say what they want online. So netflix is an edge provider. Its not really a legal determination, and the fact that some of their content might move more quickly as some sort of speed limit where everything must move at the same speed, thats not really true. I think people understand that intuitively. They buy different speed tiers at home. Somebody might have a faster connection than somebody else. Its about whether or not there is any unreasonable interference or discrimination or roadblock that the Cable Company<\/a> puts in the way x. Doing something to improve the quality of your own stream if netflix has more servers than i do, for example, they can serve video more quickly than i can, but that doesnt mean they are somehow damaging or making my service or my video less appealing to viewers. Guest let me use a different example than netflix to illustrate. A potential answer to your question about how does Net Neutrality<\/a> promote more competition. So the fccs theory is that the Broadband Service<\/a> providers have an incentive and ability to block or charge edge providers to deliver traffic. The fcc says that will reduce the amount of edge providers who want to provide traffic which will reduce demand for the internet and, therefore, the isps themselves would use as much infrastructure. In other words, the isps are their own worst enemies. Theyre going to do things that actually hurt them in the long run. This is what i meant by a paradigm shift, that virtuous circle that the fcc talks about, it doesnt just necessarily apply to isps. So who else stands as somebody in between a consumer and an edge service . And i put this in the fcc record and, again, they just really didnt address it. But another thing is, you know, if you use the mobile internet, and a lot of consumers today are only using mobile devices to access the internet, you have to have a mobile operating system. Theres really only two. We have 96 plus percent market share, and thats googles android or apples iphone operating system. Both of them charge Application Developers<\/a> to be able to be on that platform, and they charge consumers for the phone, at least in apples case. So theyre making money that way. And they sayyou want to have your app on our phone, you have to be in our app store. And they charge 30 . So the fcc in their order says, look, were really worried that isps are going to charge excessive prices, and its going to reduce the edge providers, and you go down the chain. The app space is exploding. 30 is about double what the fcc historically has considered a reasonable rate of return under their statutory, regulatory, you know, authority. And that doesnt seem to be dissuading the app providers at all. But put that aside. If the theory is now part of the law of communications, why doesnt it apply to the other gatekeepers on the internet that are charging people upstream 30 or what have you . I dont know. Before we talk about that, i want to ask about the implications this ruling will have for legislation on Net Neutrality<\/a> and, you know, theres been a lot of talk in the runup to this decision about whether or not republicans and democrats can come together to write rules or write legislation that would supersealed the fccs supersede the fccs regulation. What does this decision mean for that process now . Guest users have the right law in place today, and its going to take a lot to convince me we can do better in congress. The fcc has some leverage now, and i think this sets as the floor what we have today. And if were going to improve upon that, there are ways to talk about doing that. But were not going to allow these protections to be swept aside in order to make way for some kind of compromise that wouldnt really protect people as well as the laws we have on the books right now. Id love to go back to the Virtuous Cycle<\/a> notion, though, and talk about that in relation to the statute. There are calls to open up the discussion and look at other gatekeepers and talk about not just the app makers and the operating system makers, the apples of the world, but also those social media and internet giants. Thats an interesting conversation, but the Virtuous Cycle<\/a> idea had been the only thing the fcc could rely on. And they swept aside that disability, they faced, by going back to title ii and by treating irk sps isps as carriers once again. The only justification we have for Net Neutrality<\/a> rules is this notion that somehow without good content online, well see a dip in broadband investment. And well see less and less people taking up Broadband Service<\/a>. What we have now is a restoration of the law that says carriers are, indeed, different. And fred and others may disagree with that analysis. Theyre by no means the only gatekeepers, but they are the ones the fcc is squarely in charged with keeping in line that prevent the cable and Transmission Companies<\/a> from unreasonably interfering. That doesnt mean apple cant have a role in peoples choices online. Obviously, apple does. But it does mean comcast cannot fair its own favor its own video in order to prevent somebody from switching to somebody else. Its not really the case because comcast or verizon or whomever can make a lot of money by controlling peoples access and keeping them paying for two services. So it would be in the isps selfinterest economically to keep people paying for cable tv. And even if that dampened broadband investment and demand, comcast still makes out well because theyre receiving two Revenue Streams<\/a> by keeping people tie today that cord. Guest well, i want to disagree with one thing. The question i was positing was what is the difference between the isps ability to impact edge providers and the mobile and thats not the only example or any other gatekeeper. Somebody who has a platform that somebody else has to access to get to consumers. My point is i dont see a difference. There was a historical difference because the networks worked differently. Thats been erased. Most of the time the answer i get when i raise this question is, well, the fcc doesnt have jurisdiction over mobile operating systems. I dont think thats correct legally. Then i so you do think that the fcc has jurisdiction over mobile operating systems . Guest i think they either have direct jurisdiction or my point would be even, you know, some years ago there were people who support Net Neutrality<\/a> as a policy who were would that the fcc didnt have jurisdiction to do it. So they said, look, use your ancillary title i authority or they went to congress and proposed bills. And i just find it interesting, nobodys saying anything about these oh gatekeepers. Nobody wants to talk about it. So we have so far seen chairman wheeler say very clearly that he has no intention of regulating edge providers, you know, Online Services<\/a> using the Net Neutrality<\/a> rules. Could that change . Do you see that changing . I dont think so. I think we see this in the privacy context too. And fred suggesting that distinction has been erased between different kinds of gatekeepers, what i think his argument actually may be is those kinds of gatekeeper powers have been replicated by new players. Weve seen this in the privacy debate too. If we cant keep peoples pryce from being privacy from being regulated, i think that seems like a pretty nonsensical idea, to avoid the protections that we have and decide not to use them just because they might not be complete. So as i said, were interested in this conversation. Not through ancillary authority, not through section 706. Those are the kinds of things that, luckily, have been swept away by the fcc. Returning to a much more common sense and solid understanding of the Legal Authority<\/a> they have here and winning this court case so decisively. But that doesnt mean we should sweep away the protections we have in favor of some other, new regime that has yet to materialize. Host so, matt wood, whats the practical effect of this decision and whats next . Guest the fcc can continue to play a role in these decisions, and we think thats a good thing. They dont have to worry about coming up with another almost fourth bite in the am having lost in apple having lost in court a couple times before. And they now once again understand broadband as an essential Communications Service<\/a> rather than as something that is mysteriously and inextricably intertwined with the content that we all get on the internet. So were happy that the fcc has that authority. What they do with it is yet to be seen, you know, there are questions that will come up that we cant yet predict. Thats not a scary thing, because the fing cc should be fcc should be involved in that conversation. Not setting rules when it doesnt have all the facts, but having the power to protect people from unreasonable interference that the isps could cause for their use of the internet. Host and fred campbell, same question. Guest i think were going to see the law continue to expand. I mean, the history of these types of things is once you set the precedent people will start to, for example, file complaints under the fccs new rule of, you know, you cant do anything to disadvantage the claim that some rule is too vague. So well see people start to file complaints to test various Business Models<\/a> which will get the fcc more involve inside sort of the way the internet is packaged and sold by isps. And you do have, i think, a risk that some will try to expand this to other gatekeepers on the internet, because there will be App Developers<\/a> who dont want to pay 30 anymore. And theyve got pretty good arguments that, you know what . Were in the same position with them as we are with the isp. So i think over time this will start to develop more, and then maybe well get, you know, a better sense of what its real impacts going to be. Host and brian fung of the washington post, what are you going to be looking for next . Well, i think everyones going to be waiting to see how the internet industry responds and whether or not theyre going to look to escalate this case, and if so, how . Host brian fung, fred campbell, matt wood, thank you all very much. Guest thank you. Guest thanks. Members of the","publisher":{"@type":"Organization","name":"archive.org","logo":{"@type":"ImageObject","width":"800","height":"600","url":"\/\/ia800301.us.archive.org\/17\/items\/CSPAN2_20160620_120000_The_Communicators\/CSPAN2_20160620_120000_The_Communicators.thumbs\/CSPAN2_20160620_120000_The_Communicators_000001.jpg"}},"autauthor":{"@type":"Organization"},"author":{"sameAs":"archive.org","name":"archive.org"}}],"coverageEndTime":"20240625T12:35:10+00:00"}