WEBVTT - FCC Commissioner Carr on Net Neutrality Milestone

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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<v Speaker 1>and on Bloomberg dot com slash podcasts. It's been coming,

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<v Speaker 1>applauded by some, dreaded by others, and today marks the

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<v Speaker 1>official end of the federal government's net neutrality rules. Those

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<v Speaker 1>are the regulations that required broadband providers to offer equal

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<v Speaker 1>access to all content on the Internet, enacted during the

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<v Speaker 1>Obama administration. Joining me as Brendan Carr, Commissioner at the

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<v Speaker 1>f c C Brendan, if the FCC is notified of

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<v Speaker 1>service providers blocking, throttling, or pay to play deals, what

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<v Speaker 1>will it do? Well? Thanks for trapping me on. You know,

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<v Speaker 1>consumers are passionate about a free and open Internet, and

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<v Speaker 1>that doesn't change today with our decision. If a provider

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<v Speaker 1>does engage in that conduct as you just described, that's

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<v Speaker 1>going to remain unlawful today as it did yesterday before

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<v Speaker 1>our decision went into place. What shifts is now the

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<v Speaker 1>Federal Trade Commission, the nation's premier consumer protection agency, will

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<v Speaker 1>be taking that enforcement action as opposed to the f

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<v Speaker 1>SEC taking the action. Nine states so far have enacted

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<v Speaker 1>net neutrality laws or governors have signed executive orders, and

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<v Speaker 1>there's pending legislation in other states. How does a patchwork

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<v Speaker 1>of rules affect the national picture that the FCC voted for. Well,

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<v Speaker 1>I think one thing it shows is the tremendous amount

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<v Speaker 1>of common ground that there actually is here on net neutrality.

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<v Speaker 1>There's not a lot of disagreeing about what the basic

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<v Speaker 1>rules of the road is. No blocking, no discriminating, no

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<v Speaker 1>broken promises. Your point also goes to those should there

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<v Speaker 1>be a patrick of state laws that do that, or

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<v Speaker 1>should we have one national law. For my part, I

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<v Speaker 1>would certainly support Congress stepping in and codifying these basic

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<v Speaker 1>rules of the road that there's really no disagreement about

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<v Speaker 1>what we face. Of the FEC was something very different,

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<v Speaker 1>which is this application of this ninet title to regime

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<v Speaker 1>that was used in service of trying to get to

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<v Speaker 1>those basic rules. So you you mentioned that you you

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<v Speaker 1>know you would support Congress. The Senate has already passed

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<v Speaker 1>a resolution to reinstate the rules with bipartisan support. Democrats

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<v Speaker 1>are less than fifty votes from advancing a resolution in

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<v Speaker 1>the House. What's your reaction to that. Yes, that's one

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<v Speaker 1>um effort that we're seeing in Congress that I don't support.

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<v Speaker 1>And here's why. That approach would restore the Title to

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<v Speaker 1>based approach to net neutrality. There's actually other bills that

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<v Speaker 1>have been introduced in Congress, in particular by some Republicans

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<v Speaker 1>that would take those rules, those basic rules the road

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<v Speaker 1>that we all agree about and trying those into law.

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<v Speaker 1>I think that's a better way to go. Let's get

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<v Speaker 1>those basic consumer protections that there's no real disagreement about

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<v Speaker 1>in place, but let's not go back to this title

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<v Speaker 1>to regulatary regime that opposes a lot of negative consequences

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<v Speaker 1>in terms of investment and deployment. Well, if you agree

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<v Speaker 1>about those consumer rules, why didn't the f SEC put

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<v Speaker 1>that into effect when it repealed the law. Yeah, there's

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<v Speaker 1>no real there's not a lot of debate about the rules.

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<v Speaker 1>What we face at the FCC was, again, there was

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<v Speaker 1>this Title two regulatory framework that the f SEC applied

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<v Speaker 1>in the very first time and then use that new

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<v Speaker 1>authority to hang those very specific rules off of So

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<v Speaker 1>what we did was we reversed that decision to apply

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<v Speaker 1>that broader title to framework. With that, the rules that

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<v Speaker 1>were attached to it also went away. And so now

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<v Speaker 1>there's a question of what's the best way to get

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<v Speaker 1>that back in terms of authority. You can do that

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<v Speaker 1>through the Federal Trade Commission, or you can do that

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<v Speaker 1>through Congress passing standalone legislation. But our view is that

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<v Speaker 1>we didn't have the legal authority to put those rules

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<v Speaker 1>back in place once we return to a Title one framework.

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<v Speaker 1>So the f SEC is facing a court challenge over

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<v Speaker 1>whether it had the legal authority to repeal the net

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<v Speaker 1>neutrality rules that's by that two dozen state attorneys general,

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<v Speaker 1>advocacy groups, and industry groups. Where does that stand and

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<v Speaker 1>what's your position there? Sure, yeah, there's a number of

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<v Speaker 1>legal challenges that decision, as there were legal challenges to

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<v Speaker 1>the decision as well. Our decision to repeal Title two

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<v Speaker 1>stands on very firm legal ground. In fact, returning to

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<v Speaker 1>Title one, that's the only legal framework that the Supreme

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<v Speaker 1>Court has weighed in on and blessed. When the Commission

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<v Speaker 1>applied Title one back in the early two thousand's, that

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<v Speaker 1>case went up to the Supreme Court. In the Supreme

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<v Speaker 1>Court blessed it. So I don't think there's any real

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<v Speaker 1>issue with our legal authority, but happy to have those

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<v Speaker 1>court cases play out. Were you surprised that there was

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<v Speaker 1>such a negative reaction by so many people to your

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<v Speaker 1>repeal of the net neutrality rules? You know, people are

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<v Speaker 1>really passionate about it, and I support that. I'm I'm

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<v Speaker 1>I welcome it. I'm glad to see that people have

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<v Speaker 1>participated so robustly in our process. Again, I think the

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<v Speaker 1>differences we were faced with a narrow legal question about

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<v Speaker 1>is title to right or is Title one right? And

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<v Speaker 1>I don't think people are as passionate about that distinction.

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<v Speaker 1>But when it comes to the basic rules of the road,

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<v Speaker 1>as you note, I think that there is a lot

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<v Speaker 1>of common ground on those rules the road. When people

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<v Speaker 1>fear that those basic protections they've come to live by

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<v Speaker 1>are about to go away, that they're pretty fired up

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<v Speaker 1>about it. I think again, that's just the distinction between

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<v Speaker 1>Title two and the basic rules of the road that

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<v Speaker 1>I think are going to continue to stay in place today, tomorrow,

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<v Speaker 1>and the next day. Are you relying on the various

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<v Speaker 1>companies to to follow their pledges of not engaging in

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<v Speaker 1>anything that would hurt consumers that we discussed before. So

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<v Speaker 1>I don't think that we should trust our I s

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<v Speaker 1>p s to dictate our online experience. I don't think

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<v Speaker 1>consumers want to be fully subject to the winds of

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<v Speaker 1>the I s P and we're not. We're not going

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<v Speaker 1>to that regime. So if an I s P, for instance,

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<v Speaker 1>enters into an agreement to act an unfairly or a

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<v Speaker 1>non neutral way by discriminating in favor of an affiliated

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<v Speaker 1>or unaffiliated provider, that's gonna be per se a violation

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<v Speaker 1>of Section one of the Sherman Act. So no, we're

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<v Speaker 1>not relying purely on the good graces of an h S.

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<v Speaker 1>And now we're not relying purely on the disclosures. Although

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<v Speaker 1>those are enforceable, there's additional consumer protections that are in

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<v Speaker 1>place as well. We have just about fifteen seconds here.

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<v Speaker 1>What would you say to consumers who are worried? I

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<v Speaker 1>hear you. I understand that there's a lot of concern

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<v Speaker 1>out there, and it's really been the fears of flame

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<v Speaker 1>have been flamed fanned by some misinformation. The fact is

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<v Speaker 1>you're going to continue to be protected online. You're not

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<v Speaker 1>at the whim of your I s P. Strong consumer

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<v Speaker 1>protections remain in place. Thank you so much. That's Brendan Carr,

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<v Speaker 1>Commissioner at the f c C. The Supreme Court upheld

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<v Speaker 1>Ohio's aggressive voter purging law today by a narrow five

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<v Speaker 1>to four vote along partisan lines. Joining me is Bloomberg,

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<v Speaker 1>new Supreme Court reporter Greg Store, Greg What did the

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<v Speaker 1>court decide? Specifically, Hi do what? What the Court decided

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<v Speaker 1>was that, Uh, this procedure that Ohio uses didn't violate

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<v Speaker 1>a nineteen law that's colloquially known as the Motor Voter Law.

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<v Speaker 1>That law says U states should try to eliminate people

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<v Speaker 1>off the voter rolls if if they're they've moved, or

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<v Speaker 1>if they shouldn't be on there, but they can't remove

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<v Speaker 1>people just because they didn't vote. And the Supreme Court

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<v Speaker 1>looked at Ohio's procedure, which basically involves, UH, if you

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<v Speaker 1>don't vote one time, they send you a postcard saying, hey,

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<v Speaker 1>do you still live here? And if you don't return

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<v Speaker 1>that postcard and don't then don't vote a couple more times,

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<v Speaker 1>they will remove you. And the Supreme Court said that

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<v Speaker 1>was not um removing somebody from the data from the

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<v Speaker 1>voter database just because they didn't vote. So what is

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<v Speaker 1>the history of this. So the history of it is

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<v Speaker 1>is this law was designed to basically make it easier

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<v Speaker 1>for people, uh to to register to vote, but also

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<v Speaker 1>to encourage states to take some steps to clean up

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<v Speaker 1>their databases so that the people who who so people

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<v Speaker 1>who want to vote can vote and and uh, people

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<v Speaker 1>who aren't supposed to vote don't vote. And that that law,

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<v Speaker 1>like a lot of laws, had some provisions that sort

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<v Speaker 1>of cut both ways, and it was trying to it

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<v Speaker 1>was the court trying to figure out how that applied

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<v Speaker 1>to this Ohio procedure. So the liberal justices here voted

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<v Speaker 1>as a block in descent. What was the descent focused on?

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<v Speaker 1>So there were two descents, and Justice Stephen Bryer's descent,

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<v Speaker 1>which which was written for all four of them, was

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<v Speaker 1>was kind of technically focused on the language of the

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<v Speaker 1>three federal law and and whether Ohio violated it. And

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<v Speaker 1>he essentially said, look, when you send somebody this postcard

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<v Speaker 1>and they don't return it, that doesn't mean anything. That

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<v Speaker 1>doesn't mean a whole lot. There's all sorts of reasons

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<v Speaker 1>why they might not return that postcard. Um and in fact,

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<v Speaker 1>the statistics show that very few people do the other

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<v Speaker 1>descent was written just by herself by Justice Sonya Soto.

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<v Speaker 1>Mayor and um hers looked at the bigger issues about

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<v Speaker 1>voter suppression and essentially said, this procedure UH puts a

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<v Speaker 1>burden on people when they're trying to go vote, and

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<v Speaker 1>UH therefore we should be very skeptical of it. So

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<v Speaker 1>how about this play out in politics and in the

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<v Speaker 1>midterm elections. So there are about six states that have

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<v Speaker 1>fairly similar procedures that might have been at risk had

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<v Speaker 1>the court gone the other way. UH. Those states will

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<v Speaker 1>be able to use their procedures. Now, it's not a

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<v Speaker 1>huge number of people that are affected, but in some

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<v Speaker 1>states like Ohio that can be closely divided, it can

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<v Speaker 1>make a difference. So two years ago, UH, a federal

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<v Speaker 1>appeals court UH barred Ohio from using its law and

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<v Speaker 1>in fact counted the ballots or the counting of the

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<v Speaker 1>ballots of people who otherwise would have been barred under

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<v Speaker 1>this procedure. UM. And it's easy to imagine and a

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<v Speaker 1>close election that that could make make a difference in

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<v Speaker 1>in some closely divided states. Greg this was a case

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<v Speaker 1>where the Obama administration had opposed Ohio's law and then

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<v Speaker 1>the Trump administration reversed that position and supported Ohio. It

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<v Speaker 1>was Democrats versus Republicans as far as the Amiguus Briefs

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<v Speaker 1>of the States are concerned. Why was this case a

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<v Speaker 1>proxy for the partisan fight over the country's election rules. Well,

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<v Speaker 1>you know, it was what what I mentioned before the

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<v Speaker 1>Justice so Mayor was talking about that this notion that

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<v Speaker 1>these purging procedures are not there in order to the

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<v Speaker 1>argument that they're not there in order to protect against

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<v Speaker 1>voter fraud or anything like that, but to make it

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<v Speaker 1>harder for people, in particular liberals and low income people

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<v Speaker 1>and racial minorities to vote. And uh, it ends up

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<v Speaker 1>sort of fitting into that that battle over whether the

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<v Speaker 1>bigger thing we should be worried about his voter suppression

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<v Speaker 1>or voter fraud. We are in the home stretch of

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<v Speaker 1>a Supreme Court term and we're expecting some cases that

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<v Speaker 1>have really been high profile and controversial. And this is

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<v Speaker 1>the sixth time the Liberals have voted this term as

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<v Speaker 1>a block and have dissented as a block. Rather, does

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<v Speaker 1>that portend future votes in controversial cases coming up? There

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<v Speaker 1>will certainly be some future votes like that. There have

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<v Speaker 1>also been some cases where the Court has managed to

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<v Speaker 1>gloss over a few differences. UH. For example, the masterpiece

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<v Speaker 1>case for the Colorado Baker case from last week, where

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<v Speaker 1>two justices from the Liberals were able to join UH

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<v Speaker 1>with their more conservative colleagues in the majority. Um it.

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<v Speaker 1>There are cases like the travel band, cases like mandatory

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<v Speaker 1>union fees, where in cases like partisan jurymandering where you

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<v Speaker 1>have to imagine there will be some sort of ideological

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<v Speaker 1>divide on the court. Whether the ends up being five

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<v Speaker 1>to four, whether they can come up with a broader coalition,

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<v Speaker 1>that remains to be seen, of course. So we have

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<v Speaker 1>the term where Justice Neil Gorsich has replaced the late

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<v Speaker 1>Justice antiin Scalia. Do you see any any change here

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<v Speaker 1>or do you see just the same five four split

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<v Speaker 1>that we saw for so many years. It's pretty much

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<v Speaker 1>the same five four split. Um, you know. And if

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<v Speaker 1>if Justice Corsi resembles anybody, it's probably Justice Scale in

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<v Speaker 1>terms of his vote patterns. So the one time where

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<v Speaker 1>he did join the Liberals was a case involving a

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<v Speaker 1>deportation provision where he, perhaps as Justice Scalia would have said,

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<v Speaker 1>this provision is not specific enough to UH to apply

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<v Speaker 1>it to somebody. It's too vague um in order to

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<v Speaker 1>it's too vague to be used to justify deporting somebody

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<v Speaker 1>or subjecting them to mandatory deportation. And that's the kind

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<v Speaker 1>of vote Justice Scalia may have taken, may have cast

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<v Speaker 1>as well. But basically, when we're looking at the most

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<v Speaker 1>of the cases that are dividing the Court along ideological lines,

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<v Speaker 1>he is justice course, which is very much joining joining

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<v Speaker 1>his conservative colleagues. All Right, well, Greg, we're gonna be

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<v Speaker 1>hearing from you on Thursday again because the Court announced

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<v Speaker 1>today that it's going to be having sessions have issuing

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<v Speaker 1>different decisions then as well. Thanks so much. That's Bloomberg

0:13:08.280 --> 0:13:11.640
<v Speaker 1>News Supreme Court reporter Greg Store. Thanks for listening to

0:13:11.640 --> 0:13:14.960
<v Speaker 1>the Bloomberg Law Podcast. You can subscribe and listen to

0:13:15.000 --> 0:13:18.679
<v Speaker 1>the show on Apple podcast, SoundCloud, and on Bloomberg dot

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<v Speaker 1>com slash podcast. I'm June Brosso. This is Bloomberg