 I think there's, like, the last time I was in the state of New York, I wasn't strong. I think there's, like, terrible word. I just look like that. It's like, it has happened. I wonder what... Yeah, you know, actually, we've, we've, we've... I don't know if you can understand the union in 2009, because it was the first thing that would have happened. He had a speech, but... You know, when you're an initial president, I don't think so. This was Trump's second. I don't think they give state unions in their first year, because, you know, it's... It's going on in January 20th, and then there's not a lot of time. So what they do is they give kind of, like, a non-state union state union. They give, like, a union... Yeah, a joint address. I remember when the joint address was laid out instead, but it wasn't technically a state union. And I forgot it was 19 cents. Let me try... You know, it's a man who can do it. It's such a lot of things. I mean, it's a lot of... Good morning, everyone. Thank you for coming out. We appreciate you being here, and joining us for this conversation about net neutrality, specifically net neutrality in the realm of the oral arguments in the D.C. Circuit net neutrality case from last Friday. We wanted to try something to be... have some of our experts who are advocates for net neutrality, but experts in litigation, experts in legal arguments to come to this briefing and talk about the implications and the reactions to how people are and what they mean for folks here who are policy makers and partners. So we will put online and talk with our experts here, but please do think of questions, comments. This has been helpful and a resource for all of you. And so, you know, whatever question we have, please don't be shy about it. And we'll also maybe visit by a few congressional members who are in net neutrality. I'm going to stop by and say hello. My name is Chris Lewis, Vice President of Public Knowledge, hosting this event, and I have materials from us about net neutrality, but we have wonderful experts here, and I'm going to let each of them, in turn, give us a few thoughts on your oral arguments, and then we'll go through a few topics and questions. But the first person I want to call on, actually let me just use each of them by name, to my... Anything I'm being blocked? That's always the question, and one of these panelists is like, when technology doesn't work, are you being blocked? Yeah, because I know you guys all well, but I wanted to have my notes because I wanted to get your titles exactly right. So, going down the line here to my immediate left and your right, and then here, if your mic's not working, you can use this handle of mine so we can get these in passing. So thank you, Conor Burke, for the titles who you are and where you're from. I'm the Chief Advocate General Counsel at Incumbus. Incumbus is a trade association that represents internet and content companies, as private builders. It works as an industry. We have been long supporting that neutrality because we realize it's so important we're ensuring that consumers have a choice and opportunity to reach the content that they want. And it's also driving the deployment of more fiber and faster networks with greater speeds so that consumers and small businesses and enterprise companies can do more on the internet. So many aspects of the economy are now adjourned by what's happening all the time. The opportunity to reach your customer, deal with them, no matter what content that you're providing and then here I want you to video content. I also am talking about business content, sales, really driving that certain level of service that's going on. It's really important that everyone has an opportunity to have access to internet. Stephanie, thank you. You are on my resume? Sure. I'm Stephanie Liener. I'm a partner at Harris Cultural Center. I represent the Internet Association and the Entertainment Software Association in the litigation challenging the MCC's restoring internet for younger. I also argue that's private on behalf of those organizations as well as being in a litigation. I will mention prior to my work at Harris Cultural Center, I was at the MCC where I was involved first in the General Counsel's Office and then working with former chairman in the drafting and the defense of 2015 open internet order and so have sort of lived in an intimate way for a number of years in terms of influencers with legal issues that are embedded in that neutrality and how they intersect with agency authority and what agencies do in order to properly adopt enforceable and protection. Great. And then next we have Mark Anderson. My name is Mark Anderson and I'm the deputy director of New America's Open Technology Institute. New America is a think tank dedicated to renewal of American politics, prosperity and purpose in the digital age of New America itself. I'm the director of New America's Open Technology Institute. New America is a think tank dedicated to renewal of the digital age of New America itself with a wide range of issues. The Open Technology Institute is for our technology policy arm and the Open Technology Institute works in the intersection of technology and policy to ensure that every community has equitable access to digital technology and we work with a wide range of experts on staff to acknowledge this being a scientist to help address our work with digital and start the internet. So Mark I wanted to go to you and Stephanie first since your friends were intimately involved in the legal arguments actually up there arguing and maybe you can start by talking about a few of the legal principles that were key in the arguments starting with Mark and the brain in that space. Okay Chris thank you, thank you everyone good morning to you all. Let me just start with two overarching points that will then lead into the specific case that I wanted to talk about. The other side of it is trying to cast this as a routine regulatory proceeding from legal perspective with a discretion and should be easily dealt with by the court. I wanted to point out two ways which that's absolutely not true in this case that this is not a situation of ping-ponging and illustrations of ping-ponging FCC decisions in two fundamental ways. This is really just a ping and that is the FCC for the first time ever since the beginning of the commercial internet. It's about any authority to protect consumers from highest VGA keepers that are in the position to have the sensibility to block content or broad content on the internet. No other FCC has said that every FCC since the beginning of the commercial internet has said it's their job to do so to get these authorities to do so. The second point is that the FCC endeavor to engage in a much different approach in how they interpreted the statute that Congress gave them in a way that takes them out of the grand next case the case that the Supreme Court affirmed the FCC's decision in 2002 to classify cable ISPs cable modems as information services and that's where I'll get into the discussion of that which is a threshold issue. So the FCC in reversing the net neutrality rules classified ISPs as information services rather than telecommunication services which have been classified specifically classified in 2015. All prior decisions of the FCC I'm going to read people part of my doing so from our screening and since I wrote it I made them all prior decisions of the FCC this court and Supreme Court had acknowledged that ISPs improve both the telecommunications component and add-on services that had been provided by ISPs things like email message boards, chat rooms things that one would think of as information services which are things like destinations on the Internet. The mix was then analyzed to determine that the telecommunications was being offered to determine the statute as required by the telecommunication service definition or whether the telecommunications component was instead inextricably intertwined with the ISPs only information services. In other words the access to the Internet was intermingled from the consumer's perspective with those add-on information services like email and other things. If you remember in the early days of the Internet cable ISPs essentially had two portals that all cable ISPs used roughly equal in that road runner or excited home and those were much like AOL remember those which you landed on a website portal which you got Comcast email you had message boards, you had news groups, chat rooms, other things as part of your Internet access service and that was the binding in the grand next case for why cable ISPs at that time were information services rather than telecommunication services prior to that with DSL which was the first high speed Internet the FCC had determined that ISPs were actually telecommunication service DSL providers. Now that those information services that after repeat in other words the cable companies don't provide those kind of wall gardens anymore. There is very little mix to speak of between information services and telecommunication services and in fact this was a major point in the case the FCC General Counsel acknowledged in response to a question by the court that if you take away DNS and caching which I'll talk to you in a minute this is the think of it as a directory where when you type in a destination on the Internet like New York Post you may know those destinations names have numbers numerical addresses that correspond to those and so the DNS service translates those words into whatever the numerical address on the Internet is and it takes you to that so you don't have to memorize or know what those numbers are. That's the service that ISPs provide but also other hedge companies provide so it doesn't have to be your ISP. Caching is when ISP takes content that may be in a certain part of the country is popular they store a copy of that content closer to their users for purposes of access so users when they're looking for that content don't have to go all the way to the across the country to retrieve that and then those caches, those copies are updated routinely that's making it easier for those considerations. The FCC acknowledges the general accounts of that and takes those two functions away that there is no other information service that the ISP is providing it is pure transmission and we think that is a very key issue that the court will focus on and we think it's rather dispositive in the finding that the FCC was made an unlawful determination that ISPs are information services. The FCC's first argument was that this is why they didn't follow the Grandex analysis of looking at the telecommunications component the information services component they only looked at the information services definition and stopped there. The definition of information services is a service that provides the key ability and that's the key word here two and then there's I think eight functions that are roughly information services processing information generating information and content things that one might think of as a website would do or a web service would do and the FCC's theory was that because you needed internet access to get to those places that the ISPs of course were providing that capability and therefore themselves were becoming information services. The analogy we used one of the analogies we used in our pleadings in the court was that this was like saying that the road that takes you to a hotel was actually the hotel itself. This was not something that the Supreme Court in Grandex FCC on it's a totally different analysis and why it's unlawful is they refused to grapple they ignored essentially the definition of telecommunications in the statute and to underscore how unprecedented and how broad this interpretation of the statute would be we argued and we seem to have some interest on this from the court that there are indeed traditional telephony which the FCC and we all know is telecommunications. A telephone call would turn into information service because of course the telephone provides you the capability to get information, you call someone and you get information and you call a service and get information and Judge Millet on the court actually raised we thought a pretty powerful hypothetical she said well she can call her pharmacy and enter in a few digits on her phone, T-pad and she can renew her prescriptions she can also go to the pharmacy's website and essentially do the same thing, renew her prescription pushing a few buttons on the web page and she wondered allowed to the FCC's council what the difference was and essentially the FCC's council said well one has historically always been considered telecommunications the other has we don't think that's satisfactory that's a sufficient answer to overcome the FCC's men in obligation to engage in a recent decision making that is the height of arbitrariness and a reason why we think the FCC should lose the case the other component briefly on DNS and caching is that the FCC's fallback theory was well even if one doesn't accept this capability theory DNS and caching are information services because the directory is translating a name to the set of numerical codes that get you to a website and caching is actually storing content and so those things are much like any other internet company might do they have websites with hosting sites and they have other things that translate information on the internet in 2015 the FCC found that those are telecommunications management functions which is an exception to the definition of information services we think that's the right way to think of those services and why we think that's not sufficient to satisfy the definition of information services those are not things that consumers perceive as an offering that they're getting from their ISP because they're largely invisible to the consumer they don't think of those things as a function that they provide to them and in truth they're not necessary for internet access you need a DNS service from another company you don't need to get content that's cached by the ISP the caching is done for the ISP's own efficiency to make their network run efficiency cheaper not necessarily for the consumer there's other ways the consumer can get content so we think if it comes down to just those two functions that would not be sufficient to justify classification as information services thanks Mark and then Stephanie you've actually were standing up there and there was also discussion around the importance of and validity of the transparency rules that were still in fact as well as the economic studies that were used by the FCC to justify making or repealing the rules sure thanks first of all I thought it was a little I came down to my normal cold my voice maybe my 7 year old told me this morning that I sounded like Darth Vader so hopefully that's not what's coming across but hopefully my voice will hold out and thank you for including me on this panel I wanted to just take a step back for a minute to say that I think that the interviewers in the case and my clients in particular are focused here on strong enforceable net neutrality protections and that has been true all along and I think that therefore their major concern with the Commission's most recent order and really what animated our arguments in the litigation is that that the FCC having disclaimed all authority and oversight over program providers really left consumers and edge providers who are conduct providers on the internet with in order no effective recourse should program providers engage in harmful conduct and I think setting aside all of the application arguments and the legal authority arguments with regard to that Mark just covered very well our arguments focused on the Commission's decision to eliminate the protection of legal place only of their limited transparency rule and the arguments that Chris mentioned are a part of those they come just in sort of quick legal terms here the Administrative Procedure Act governs any final action that the agency takes that means that the agency has to go through certain procedural steps and certain substantive steps in order to take an action that will be believed valid and so we will hear that the challenges we brought in particular the agency's failure to do that either they were a failure of notice in terms of letting stakeholders understand what was going to happen or if there's a reasoning or reason for explanation and I want to just talk about a couple one I don't think Chris mentioned but I think it's key which is that FCC did here with putting place a regime of this limited transparency rule and then look to competition and consumer protection and anti-trust law and in its view that was a backstop because even the FCC and this word seemed to suggest that there would be articleized practices like or others that could be problematic for consumers or innovation on the internet or there were a number of architects that were raised by bogus and petitioners that that regime is insufficient and that in particular for example anti-trust law requires certain things like naturalization or certain things here twirls or actions or contracts and that there may not be a parent in a conduct that would otherwise be seen as harmful and hard to mend and in particular where there was some engagement from the court was this question of are other laws that can catch consumers from being deceived and that they ensure that consumers understand what is happening is something that the FCC's consumer protection authority against deceptive practices and states have similar laws so at least the question of what happens if there is conduct that is fully disclosed and so consumers are aware but that could be harmful to consumers and judge Wilkins for example to get into the court questioning where where the questioning went on this issue did ask questions about if a broadband provider were to enter her basement just brought a one online video provider compared to another and fully disclosed that would that be prohibited by the FCC's order and in fact it would not be prohibited by the FCC's order the question left there is who really would be able to protect the consumers and manage the broadband competition in that kind of arrangement and there was no answer from the FCC in our view is that they have an application to explain how the people actually achieve the goal that they have asserted and you're going to talk more about competitions and I think that's an art only in that the study experts didn't mention on safety you know I think and this is an essential premise and the FCC's general capacity in the 2017 order was a view that the 2015 order had decreased broadband and that's the end of the point of economic studies in the record on this issue you know one of our arguments was that some work done by internet association sort of that was put into the record demonstrated that there's too short a time to build data and not available techniques to really answer that question and that the commission never responded to those limitations of what information was available in court this came up a couple of different times at my judgment that did talk about the price of that the general council on whether the evidence that they relied on was a matter of causation or correlation and the FCC general council said it was causation I think even their briefs on the order used words like suggest in terms of the effect that the order having causation is quite a high standard and it will be interesting whether there have been how important that was wrong and the other point that was mentioned in this context had to do with the provider's statements in their investment and earnings calls in which many after the hearing had said it would be no factor and would not change their plans Judge Millette asked the general council about FCC's view of these and he responded that they were not probative or the FCC believed that they were not probative in a way that they had to be true under law and I think there was again some questions left to open about what to take and lastly do you want to talk about transparency and this is not to say that all petitioners that intervene support transparency have a fundamental component of open internet protections it's necessary but just not sufficient and in any event it must be time made in accordance with the FCC's authority and here for the first time again having to shoot all other sources of authority the commission relied on a single source of authority to section June 57 and there were a number of issues with that the first is a notice problem I mentioned that the outside is something that's required by the APA and this APA statute actually requires that when the commission is going to do something it has to first of the public and in that notice where it tells the public it must reference the legal authority on which the proposal will rely you can search the FCC's notice 257 is not mentioned and in fact it was expressly omitted from the citations to authorities that they did reference though if anything our view is the public would take from that that they were expressly not relying on section 257 and in the end it was the only the other there are questions about the statutory interpretation of 277 as a substantive matter and finally there's an interesting one the Ray Bonds Act actually repealed a part of this single section of the statute that the commission relied on 277 an interesting new judgment to mention that you know this was really unprecedented and what should an agency do with this activity that is in the midst of its rulemaking and this source of authority is no longer in place suggesting that agencies may have an obligation to address under the new statute what should be done thank you Stephanie and you keep things up for for Andy but before we go to you Andy we've got our guests that just walked in want to introduce Senator Ed Markey who is a long-standing champion for nationality but also you were there on the day of your arguments on Friday so we would love to get your feedback thank you thank you and thank you for organizing this Chris and thank all of you for being here yes it was it was an incredible day courthouse and Stephanie did a great job in her arguments and we had Mark and Angie and I remember this was like this was like an incredible day you know the showdown and we had legal account that was absolutely a match for the moment and I sat there throughout the entirety of the argument and I can tell you that we won this argument that the the Trump Administration was using extremely extreme logic trying to defend their reversal of the Obama era rule and I quite convinced that we are in a very strong position to prevail at the court and I think that all of the legal work that was done represented here at this table contributed vitally the sense in the from two of the objections that skepticism was the correct attitude towards the arguments that were made by the administration so I just wanted to come here again to say how proud I was to be able to submit an anarchist brief with over 100 rivers of Congress I had a network of anarch issues I'm very proud of that and to partner with Mike Doyle going forward to make sure that we make this case on that neutrality as strongly and persistently as we can here in the halls of Congress so I'm just coming by just to thank you all the legal team and those that are toward the course toward the history of why open internet is absolutely insensible to the future of our country so I just wanted to be comfortable thank you all and thank you Chris for everything you guys did thank you all so much thank you all for being here we're going to turn to you next to talk about the competition and the concerns thanks everyone at the top when I was introducing myself I talked a little bit about the kinds of companies that I worked with we do have streaming and cloud companies as part of our partnership and then the five of the riders and networks to connect to all networks that are delivering these services both required and aware of these services to expose these small business enterprise companies and from our perspective one of the things that we really wanted to bring to bear in the case was that the commission has a warrant and number of issues related specifically to competition there is the over the top competition as a result of the internet what we've seen happen is networks have become more robust and able to hear more traffic more video traffic that consumers want and we see companies that are investing and providing more video content choices to customers and in turn deciding to cut their video with their cable operators so it's lowering prices and bringing more choices and that is something we're thinking about so that consumers can continue to have that choice and those who are investing in this to bring that to consumers also have some certainty that there's a market there and they're not going to be discriminated against the other aspect of competition that I also would like to talk about is just what choice the consumer has at home when they're taking at the highest speed broadband so the commission right now has defined broadband as 25.3 and majority of Americans only have one choice at home for their broadband service so if we don't have negativity in place and there can be discrimination and that can happen, they can throttle they can block, they can create prioritization opportunities for some kinds of content and not others then you can see how over the top competition that's been brought with the internet in that case and something that makes this slightly worse over time is that we have seen a variety of larger happen between content and large ISPs so now they actually do have an incentive to protect their own content and discriminate against content that they don't own and I refer to this a little bit at the top there is this aspect of consumer choice but it's really across all economies that are really affected because we do have small businesses that are relying upon accessing consumers over the top and so that's really important to think about how does this affect the healthier industry how does this affect the education industry so I know that often times when we're talking about Netflix or we're really just talking about Amazon but we're not, we're talking about a much greater ecosystem here that affects all aspects of the economy so I think that it's really important to keep that in mind and drawn back to the case like how did this get reduced in the case so to make up this perspective one of the things that we noted into the report was that we asked BFCC to actually look at evidence that it had in its hands so the commission over the last several years has had a role to play when they were looking at the large ISP mergers as well as the mergers with content companies and the commission had in its hand evidence that showed the opportunity that they would have to discriminate against content that they don't own as a favor of their own content and the commission refused to look at that evidence and that was a real problem for us and we felt like they had not done a good job of explaining how those incentives really can change what's happening over the top in the hands that consumers have and so we did raise that excuse me, in our grief and we also raised the lack of choice that consumers have so once you've chosen your internet service provider for our experiencing problems what are you supposed to do so it may be transparent that they're going to block certain content or rattle certain content or create paid partitions but if you don't have a choice and have a high speed alternative at home then what are you supposed to do and that really came out in the oral arguments as well just how limited choice that consumers have now part of the FCC's reasoning is that what consumers can use their open internet at work well I have to say my boss would be really happy with me if I'm like downstream and then some of the other arguments well they can just rely on mobile devices but it's important to look at the ownership of the company so two of the largest home ISPs also are the two largest wireless providers in the United States and and the network on wireless is not as robust and often times you may be home using your mobile device and you think you're on a mobile network you're actually on a wifi network and a lot of consumers that they want to watch long term kind of streaming services you don't want to be able to put that up on their internet or even not rely on their small screen so that the idea that mobile is sufficient to discipline the high speed market at home is disconnected from the reality and it's also just really important to point out that when you are buying your home broadband service when new customers are looking at getting that service often times the entry point out is at 59 so sometimes you don't even realize that if you already have broadband at home you don't realize that your speeds have increased in the flight you know why are we seeing that happen I think we're seeing that market respond to the demand of wanting to have richer content and more opportunities online so creating and making sure that we have strong and that we put a really strong net neutrality policy in place and that there's oversight is really key to ensuring that the level playing field on the internet so that we can see more opportunities for businesses for consumers to be able to offer as well as be able to engage with consumers on the internet and Sara is going to touch upon a little bit more about some of the specific issues dealing with public safety that we're going to talk about but that's another really important aspect one of them we have several members who have been critical for communications during working they're going on in the US at times during Hurricane Harvey we had a member whose service allows for consumers to interact with each other and people's lives were saved not because that information was getting to citizens who decided you know what they weren't going to sit on their morals they were going to go out and help save other fellow citizens so that's an important aspect of public safety that even commercial entities want to provide as part of their services to the US citizens but Sara will talk more about the public safety entities themselves that want to be sure that they can communicate thank you yeah I have something like to Sara Sara what other norms or legal concerns are we leaving up I didn't think I could get that cleanup here but though there's not much cleanup to do because my colleagues have done such a great job of really pointing out the various ways in which the FCC struggled to explain why both its order was correct as a matter of law in the face of the Asian and whether it followed all the right processes and protocols for a required event under various other statutes you know I lawyers always said we want to come up here and say oh you know 96.3% we want this argument but we can't do that right so my initial caveat with all of this is that it's tremendously difficult to predict what judges will do and oral arguments although they often provide insight into how judges might be thinking about certain issues they are in perfect road maps to the judges minds as it relates to a lot of these argument this is a complex case and I will say that I think that the judges came into oral arguments really understanding that it was clear from the onset that it was going to be a long a long day and that the judges were going to take the time to methodically work through the muriat arguments that were on this table and so I will say you know there is a degree of confidence and optimism coming out of the oral arguments in that the FCC has several different challenges to the order they had these challenges to whether or not the derby classification to title one was appropriate with the right being of the law and there were all sorts of different challenges as to whether or not they think all of their goals in doing that but I think what came out in oral arguments for me was a recognition from particularly from Judge Millette that the FCC was in fact advocating its responsibility here and so there were a lot of questions about what does this need to implement the transparency regime and rely on the FTC for example to figure out how to remedy harms as a result and it became clear in that line of questions that there are a lot of problems with relying on the FTC which is a wonderful agency of great staff working on tremendously important issues but relying on the FTC and their standard of unfair and incentive practices to really hold accountable the types of harms that we can historically see when we talk about FTC and to recap some of those here just as we're thinking about what happens make forward the FTC is a fairly burdensome process particularly for consumers or small companies or other entities that traditionally have to navigate the agency and as we saw and we were reminded that the standard of unfair and incentive practices doesn't protect against all the types of harms we see for example a company under the FTC an internet service provider under the FTC's current 2017 order could simply disclose all of the anti-neutrality practices that it intended to engage in and so on because it wasn't being perceptive that would probably be okay and also if this started to I think it's important to reiterate here it's not always clear what those harms are the OTI revista reports during the 2015 2014 to 2015 proceeding up to the 2015 rules documenting the expensive harms that consumers saw as a result of interconnection disputes happening behind the scenes between ISPs and transit providers carrying web content and without even parsing who was at fault in those interconnections disputes it was very clear from our research there that the harms were one very real they affected millions of internet users and we had a streaming Netflix traffic all sorts of traffic that were being intensive and that happened for months on end and so we had a data we relayed some data about the user experience during those nine months but we also looked at consumer complete boards where consumers would decide themselves internet users could not figure out why their internet wasn't working and they say it's not us, it's the content provider. And there was this very clear pattern of consumers feeling powerless, which is why the OTI urged the agency in the lead-up to the 2015 order to include oversight of their connection partners. That oversight is now completely gone. And we would expect consumers to be similar to the ill-situated positions to recognize when those harms are happening, and to be able to go to the right regulatory agency to terminate them. So, there was this, so as we're thinking about the FTC as the right agency versus the FCC, but also just did the FCC take all of these considerations into account? And that's where we get to sort of a problem, a big problem that works for you in my mind. And that is this sort of umbrella of the FCC just sort of failing to do its homework here. There were a lot of logical steps required. The agency has a lot of deference, of course. We've argued for the agency's deference and the international application. But the FCC can't just do things willy-dilly. They have to justify their analysis and explain why they carefully consider what the relative hurts. And they have to provide adequate notice of the things that they're going to consider. And as Stephanie Marko, as everyone has explained, there are various steps along the way where they just did not do that. Moment two that we haven't talked about quite yet, and I'll just talk about them briefly and then I know we wanted to answer questions. One is the public safety arguments. We heard from a council for Santa Clara County and the Santa Clara firefighters who explained that the FCC just simply did not consider the impact on public safety in its consideration of its time of order. Similarly, as egregiously in some ways, we had the National and State of Media Coalition who asked the FCC. So remember, the FCC, when it happened 2015, rules and place had an opportunity for consumers to file consumer complaints directly with the agency. So they were saying it was treasure trove of relevant data to its consideration of whether or not it's, I guess the question was whether or not farms exist, whether or not their new regime would adequately protect the types of farms that were coming up as a result of these consumer complaints. It took a FOIA request by an HMZ to get some of that data and the FCC was reluctant, was resistant all along the way and didn't adequately port that data into the final record. So what we have is a situation where we also deserve better in this. The internet users deserve better in that they deserve robust internet protections. Advocates deserve better. They deserve to know when a source of the warning will be considered by the agency and they deserve careful consideration of the argument that they put forth for the agency. Public safety professionals deserve to know that their communications are not waiving throttle during times of their progencies and we all deserve an internet ecosystem that works and a robust internet control regime that protects us. So I'll stop there and I have lots of questions to get to. Fantastic, thank you Sarah. I'm gonna ask one of my colleagues, Phil Bernberg, to come up and stick this microphone because we do want, again, we have a lot of legal expertise up here and we want, thank you Phil, you guys are gonna be able to ask what you wanted and how we understand net neutrality generally, oral argument specifically and the implications for you guys as policy makers here on Capitol Hill. So we've got about 20, 30 minutes left. If folks have a question, please raise your hand and bill will provide you and no question is too big or too small. We would love to hear what you wanted to know about how you dig into these details. So go ahead and raise your hand and we'll find you. End of the chat. In the meantime, while we're waiting for folks to raise their hand, I'm gonna start the question with you guys. Because we hit on a lot of the major arguments that were made but one that folks didn't mention that I was hoping someone could address was there. There are also folks representing states and state agencies and we've seen some legislation introducing states most notably in California that are intended to protect mental care and protect net neutrality coming from state legislatures. Does anyone wanna address the impact of state legislation, how it plays with this repeal and these decisions that places are? Sure, I had a room looking at me. So, I mean, the short answer is it's complicated and it's complicated because of Hobbs Act considerations as to the proper court to hear these arguments and it's complicated by the fact that numerous states have taken numerous different approaches to implementing net neutrality protections and there are other states considering and I'm sure other approaches. And so, there is not an answer that sort of tightly encompasses what the impacts of this decision might be for each of those state laws. Now that said, the New York attorney, general attorney that was arguing last week did an excellent job explaining why it would be improper for the FCC to, on one hand, abdicate its responsibility over an entire area or group of administrative entities and then in the same breath or in the same order who say, but no states, you can't do that too. And an observation of the way that the judges were thinking about that on Friday was that there seems to be some recognition that that was problematic and a lot of questions as to how broad the scope of the FCC's asserted preemption actually was, there seemed to be a discomfort at least with the scope, from some judges, with the scope of the preemption that the FCC has asserted. And so, in terms of predicting what will happen, we can and it could be that the FCC, under the PC survey, has even reached the questions on preemption, but that's certainly an important issue to take up because so many states have stepped up in the absence of federal protections to try to navigate what they can do. I just wanted to make an observation about why we're seeing so many states wanting to jump in and do something about it. And the thing that we had, and talked about again, was that study after study and whole, whole show that strong net neutrality protections are supported by over 80% of America, no matter which party they're a part of, if they're independent, strong net neutrality is really key. And this is why I think you see states going wet, if we're not gonna have federal policy that's strong, then at the state level, we wanna step in and make sure that our consumers are being protected. And I think that's important for those of you who are representing your bosses to be thinking about what's going on and where are your constituents on this issue. And to take that into consideration as we're watching what the court may do here and as you're thinking potentially legislation and here in Congress, it's important to know what your voters think about this. And voters across the board support strong net neutrality and we'd like just everyone to keep up first and foremost in their minds that this isn't just an abstract notion that many consumers can fight over at this issue because it's been such a predominant conversation now for several years. And I think so many people realize the importance of it because of everything that they're doing online now. I see a question in the back. I'm curious what moments or questions or interactions during the oral arguments may be most optimistic about what the outcome will be and what moments of making this concern that we won't make in the case. So when Malathe went to her own hypothetical, I'm not aware that that hypothetical is anywhere in a brief or even an underlying docket. That may be very helpful that she would be understanding where you're getting at in terms of that technology and what's the appropriate way to treat that technology. It's kind of a down in the weed but bringing it up. She also really seemed to understand that consumers would have to be highly educated about what it is that their ISP is doing or not doing and know where to go to get the transparency and the disclosure theme. And she asked a number of questions that both sides would like, well, where exactly is this? Is it on the web or do they have to go to the SEC and get it? And so just, there seemed to be some concern about, okay, we're relying completely on a disclosure than how educated will consumers really be about how ISP are treating the traffic. I wanted, and please jump up if you have a question but I wanted to follow up on one of the main arguments that we were hearing from the SEC and Stephanie and one of you might want to take this, but the argument that antitrust is strong enough to protect against net neutrality harms. Can you explain the rationale behind that and why folks who are arguing for strong rules at the SEC believe that antitrust simply doesn't do the job? Well, yesterday jumping, I think part of the issue here is from a legal argument, the question was whether the SEC adequately demonstrated that antitrust combined with the transparency of the law and protection. What was the conduct at issue that was problematic? You never quite identified it and how would antitrust actually address that conduct? And I've said those sort of two key sort of you were chronologically raising out why your regime was the appropriate one, you would expect an agency to take those steps. Beyond that, I think, you know, I think from my own experience, you know, these issues with antitrust and neutrality often arise and are addressed on concepts that really require some network expertise. If you think of, for instance, the Context Vittorchies where the question of packet dropping by the Context of the provider service, the technical question at the heart of these cases is always gonna be, is this a reasonable way of managing a network or could this have been done in a way that didn't just kind of did some service or interrupt the communication between the consumer and the provider? And I think it's the FCC that really has the expertise on those kinds of issues. And I don't know and not that, you know, again, as Sarah said, the other agencies are very effective in portions within their sphere. But I do think here there are things that the FCC can bring to the table that can easily be as addressed by antitrust public, you know, when those providers are intended to address these kinds of crimes. I'll just solve from policy observation. In the case, since we're talking to policy makers, in the 96 act, Congress specifically that passed the Telecommunications Act of 1996, reserved antitrust as antitrust state arbiters as well as the fact that it's meant to preempt the application of antitrust law. Congress has, from the beginning, wanted antitrust to be complementary to regulations in telecom and that is an appropriate way for this ecosystem to be regulated or something that antitrust, appropriate brain, antitrust law to work at, and antitrust laws to do. There's some things that are not, and I think the example that some of you're talking about is content that's just not subject to competitive, to antitrust inquiry, things that are being blocked or brought up, or there's no competitive reason for the ISP to do so. They just didn't want to block unpopular content and I thought one of the more powerful of these briefs in the case from the library, the association of libraries, ALA, the note that history is replete with examples of unpopular books, a ban, and that market forces wouldn't actually protect consumers in those situations because anything market forces would encourage the ISP to enforce those bans that communities have and yet the internet's promise is that we can get access to all lawful content on the internet. So I think by these terms, the, and now I'm turning to the legal case, the concern is that the SEC never grappled with that. We were sort of dealt with those kind of hypotheticals and we think that as an example of how this case was, that they were, it was archituring. Just to add on, you reminded me, Mark of Medjugorje, that did ask about this as the oral argument, essentially sort of a blocking of content that went against the broadband provider's values, just seeing this sort of real concern here about the broadband provider making a decision about where consumers could go. The commissions, as there seemed to be that, well, they would only do that if consumers don't want it anyway, but I think a few here are sort of for folks who are advanced and strong at the quality of protection. So they said, that's for the consumer to decide. Letting out the broadband provider. And so, you know, we did this point that what the FCC, the protection of the FCC did put in place in 2017, don't really address those issues of free expression at all. Yeah, if I could just, this notion that the consumer would sort of never tolerate that type of blocking came up, and I just think that that goes back to concerns around the lack of multiple providers, the highest-pitching costs, and that that, that consumers often, if it's something being blocked, consumers won't know that it's happening. And so, that these are the types, and this is, you know, been an argument within the, I mean, I don't think it's a favorite that we've probably made all along, that this isn't something that can easily be remedied competitively in all instances, but there are these sort of fundamental problems and risks that can happen in the year. That's why we need a problem that we like the FCC in order to implement rules that for consumers, predictor, but for internet users, predictable protection. So your question right now? I'll ask your question. Okay. So, I'm turning to a little bit more forward-looking. The, and maybe this, the initial question, you're still working with Stephanie and maybe the second part is for Angie and Sarah. So, you know, some of the, the FCC argued in repealing the net neutrality between the team that neutrality were and some opponents of those protections have argued that the FCC doesn't have the legal authority to do net neutrality to regulate net neutrality. As a purely legal matter, you know, under Red X, under US telecom, do we need Congress to step in to actually give the FCC that authority affirmatively? And then second part, you know, looking at potential, you know, we're here in Congress, looking at potential legislation this year. We saw the CRA last year, the CRA effort. In 2015, we saw the Thune Upton discussion draft, which would have said no blocking, no throttling, no paperization, but the FCC has no other authority to do anything in the program. Are those viable options? What do you think about those potential legislative proposals going forward? On the authority question, the FCC clearly has the authority to regulate this area. I don't think that's seriously disputed except by this current FCC. When the Cable-Modem order was passed in 2002, the FCC noted that it would have the ability to monitor ISP behavior to ensure that consumers were protected. That was in a Republican administration. And in fact, the Bush White House at the time would have a statement from the president noting that the FCC had the authority to pursue complaints of behavior where ISPs were violating the principles that the FCC had the opportunity and the consumers had the right to access the lawful content of their choice. The DC circuit has affirmed the FCC's authority and the both under section 706, which was the subject of what the other cases, the Cove-Gast case and the Verizon case, and the, as well as under the telecommunications statute, again, an analogy. We argued that this wasn't the case of the FCC's hands being tied by Congress, the FCC's decision not to use its hands. It really has the authority of the statute. And I agree. And I'll just add that just sort of of link some of these things together. One of the points that we made a real argument is that the commission believed that, the commission made a choice not to exercise this authority that had been recognized previously by this court, the case of 706 by another court as well. And it made that choice based on certain reasoning and certain conclusions that it could protect the internet without exercising that authority. And so our view is it cannot protect the internet without those sources of authority of mayor who are having demonstrated it is unreasonable to uphold the commission's order all together. I do want to address that in terms of the election question. So in a conference, I think it's incredibly important to go forward that there's a recognition of what strong net neutrality protections are. And the no blocking, the throttling, the improvisation, strong interconnection protections with a great oversight, Stephanie Huerkin back to the need to have an expert agency that knows the network and understands that parties have a place for them to go, where there's the right technologist and economist and lawyers who have an issue about that and the FCC has them with a remitted agency. And then Mark and you know that in the 1996 act fully contemplated that the FCC would be the expert agency on these issues and they have them so over the years. So that is what encompasses the supports. Obviously over the next several months we'll be waiting for the court's decision and into the debate that could come early to the summer that we'll have an idea. We've heard several congressional members note that they planned to introduce legislation and the Democrats have talked about doing something that is around the CRA type approach where you can clearly reinstate what you have in the order of these supports that. And then as you know that there may be some other groups of legislation coming from the other side of the aisle. We think as we look at legislation it is going to be critical that U.S. staffers are checking to make sure that it's really protect and they'll come here next. This is give the agency the authority that they need to ensure that the open internet is going to be protected. And we would like to offer up our expertise in reviewing language and helping you all ensure that if legislation goes forward that that legislation is going to ensure that consumers write down what they want because there's over 80% consumers they all want a strong open internet policy. Yeah I was just asking as Angie the protections in the 2015 open internet order are all important. I mean this is not the sort of thing that oh if we just include this or we punt the authority to a different agency or if we tweak that you will have the same sort of comprehensive protective regime that we saw in the 2015 order. And so we really look at the 2015 order and the protections included there as the absolute baseline. And in fact as we've seen in the history of approaches at the agency what has traditionally happened up until the extreme reversal in 2017 was an increasing not necessarily a scope but in sharpness of what the rules covered a fewer awareness of what the evolving harms looked like and as a result of the evolving series of orders that reflected those harms. And so one could imagine that even new harms didn't come up since 2015 that one might need to think about. But that said the 2015 order was did a nice job of giving the FCC the authority that the clarity looked around the free right-line rules and the flexibility of the agency to carry the harms. It's also worth noting that this is hard but the FCC in 2014 it had been a step nature and grappled with a lot of these questions behind the scenes. This wasn't like a snap your fingers and put the order together and balance all of these different protections. This was something that was tedious and involved a lot of different pieces. And so certainly something that simply the solution that restores the 2015 protections is a clean and understandable way to remedy for the fact that the rules are completely kind of existence now. Before we go, we're gonna wrap things up but we do note that not only as Andrew said we're waiting for the court to decide and we hope that they will do so later this year maybe in the summer. There is also a hearing, I believe, in the Energy and Converse Committee and the House tomorrow on net neutrality where it sounds like legislation is starting to discuss options for legislation coming off of the bipartisan support that we saw on the Senate for the storming rules last Congress and as well as bipartisan support in the House they didn't pass anything on the Senate did but we did see a number of legislators coming out of the support and restoring those popular rules. Is there anything that our folks here on the panel who Emily Double is, Lee Letzger's but also Hill Watchers who hope to see and expect to see in those discussions? Well, I mean, just seeing, I think the majority testimony went in there was released publicly last night and the testimony that's been very, very strong. I have not the chance to, if the majority testimony is committed I'm not in the chance to read it yet but I'm excited to see some of our friends and allies I've been able to work for Chairman Wheeler and long time calling folks. And Mozilla, yeah, I was gonna say in Mozilla and in a desk over at Cozales at Free Press to see that they were all in the keynote but I was gonna say. But no, we're excited. I mean, I think that this is gonna be a great opportunity to see, to really take the tires of it on what's happening and to give members the opportunity to ask their questions. Well, thank you all for coming out. Thank you for the folks who've been watching Streaming Right Now and we really appreciate you tuning in and please continue to reach out to all of the organizations and have the secret and experts that we have here as well as public knowledge with your questions. We want to be a resource for all of you as you figure out what's going on with that. How you can support, proactively support, creating and ensuring that we can have strong and neutrality rules and figuring out how to perfect what's happening as legislators start to look at these ideas. So thank you and we'll talk to you soon.