Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcasts. It's been coming,
Speaker 1: applauded by some, dreaded by others, and today marks the
Speaker 1: official end of the federal government's net neutrality rules. Those
Speaker 1: are the regulations that required broadband providers to offer equal
Speaker 1: access to all content on the Internet, enacted during the
Speaker 1: Obama administration. Joining me as Brendan Carr, Commissioner at the
Speaker 1: f c C Brendan, if the FCC is notified of
Speaker 1: service providers blocking, throttling, or pay to play deals, what
Speaker 1: will it do? Well? Thanks for trapping me on. You know,
Speaker 1: consumers are passionate about a free and open Internet, and
Speaker 1: that doesn't change today with our decision. If a provider
Speaker 1: does engage in that conduct as you just described, that's
Speaker 1: going to remain unlawful today as it did yesterday before
Speaker 1: our decision went into place. What shifts is now the
Speaker 1: Federal Trade Commission, the nation's premier consumer protection agency, will
Speaker 1: be taking that enforcement action as opposed to the f
Speaker 1: SEC taking the action. Nine states so far have enacted
Speaker 1: net neutrality laws or governors have signed executive orders, and
Speaker 1: there's pending legislation in other states. How does a patchwork
Speaker 1: of rules affect the national picture that the FCC voted for. Well,
Speaker 1: I think one thing it shows is the tremendous amount
Speaker 1: of common ground that there actually is here on net neutrality.
Speaker 1: There's not a lot of disagreeing about what the basic
Speaker 1: rules of the road is. No blocking, no discriminating, no
Speaker 1: broken promises. Your point also goes to those should there
Speaker 1: be a patrick of state laws that do that, or
Speaker 1: should we have one national law. For my part, I
Speaker 1: would certainly support Congress stepping in and codifying these basic
Speaker 1: rules of the road that there's really no disagreement about
Speaker 1: what we face. Of the FEC was something very different,
Speaker 1: which is this application of this ninet title to regime
Speaker 1: that was used in service of trying to get to
Speaker 1: those basic rules. So you you mentioned that you you
Speaker 1: know you would support Congress. The Senate has already passed
Speaker 1: a resolution to reinstate the rules with bipartisan support. Democrats
Speaker 1: are less than fifty votes from advancing a resolution in
Speaker 1: the House. What's your reaction to that. Yes, that's one
Speaker 1: um effort that we're seeing in Congress that I don't support.
Speaker 1: And here's why. That approach would restore the Title to
Speaker 1: based approach to net neutrality. There's actually other bills that
Speaker 1: have been introduced in Congress, in particular by some Republicans
Speaker 1: that would take those rules, those basic rules the road
Speaker 1: that we all agree about and trying those into law.
Speaker 1: I think that's a better way to go. Let's get
Speaker 1: those basic consumer protections that there's no real disagreement about
Speaker 1: in place, but let's not go back to this title
Speaker 1: to regulatary regime that opposes a lot of negative consequences
Speaker 1: in terms of investment and deployment. Well, if you agree
Speaker 1: about those consumer rules, why didn't the f SEC put
Speaker 1: that into effect when it repealed the law. Yeah, there's
Speaker 1: no real there's not a lot of debate about the rules.
Speaker 1: What we face at the FCC was, again, there was
Speaker 1: this Title two regulatory framework that the f SEC applied
Speaker 1: in the very first time and then use that new
Speaker 1: authority to hang those very specific rules off of So
Speaker 1: what we did was we reversed that decision to apply
Speaker 1: that broader title to framework. With that, the rules that
Speaker 1: were attached to it also went away. And so now
Speaker 1: there's a question of what's the best way to get
Speaker 1: that back in terms of authority. You can do that
Speaker 1: through the Federal Trade Commission, or you can do that
Speaker 1: through Congress passing standalone legislation. But our view is that
Speaker 1: we didn't have the legal authority to put those rules
Speaker 1: back in place once we return to a Title one framework.
Speaker 1: So the f SEC is facing a court challenge over
Speaker 1: whether it had the legal authority to repeal the net
Speaker 1: neutrality rules that's by that two dozen state attorneys general,
Speaker 1: advocacy groups, and industry groups. Where does that stand and
Speaker 1: what's your position there? Sure, yeah, there's a number of
Speaker 1: legal challenges that decision, as there were legal challenges to
Speaker 1: the decision as well. Our decision to repeal Title two
Speaker 1: stands on very firm legal ground. In fact, returning to
Speaker 1: Title one, that's the only legal framework that the Supreme
Speaker 1: Court has weighed in on and blessed. When the Commission
Speaker 1: applied Title one back in the early two thousand's, that
Speaker 1: case went up to the Supreme Court. In the Supreme
Speaker 1: Court blessed it. So I don't think there's any real
Speaker 1: issue with our legal authority, but happy to have those
Speaker 1: court cases play out. Were you surprised that there was
Speaker 1: such a negative reaction by so many people to your
Speaker 1: repeal of the net neutrality rules? You know, people are
Speaker 1: really passionate about it, and I support that. I'm I'm
Speaker 1: I welcome it. I'm glad to see that people have
Speaker 1: participated so robustly in our process. Again, I think the
Speaker 1: differences we were faced with a narrow legal question about
Speaker 1: is title to right or is Title one right? And
Speaker 1: I don't think people are as passionate about that distinction.
Speaker 1: But when it comes to the basic rules of the road,
Speaker 1: as you note, I think that there is a lot
Speaker 1: of common ground on those rules the road. When people
Speaker 1: fear that those basic protections they've come to live by
Speaker 1: are about to go away, that they're pretty fired up
Speaker 1: about it. I think again, that's just the distinction between
Speaker 1: Title two and the basic rules of the road that
Speaker 1: I think are going to continue to stay in place today, tomorrow,
Speaker 1: and the next day. Are you relying on the various
Speaker 1: companies to to follow their pledges of not engaging in
Speaker 1: anything that would hurt consumers that we discussed before. So
Speaker 1: I don't think that we should trust our I s
Speaker 1: p s to dictate our online experience. I don't think
Speaker 1: consumers want to be fully subject to the winds of
Speaker 1: the I s P and we're not. We're not going
Speaker 1: to that regime. So if an I s P, for instance,
Speaker 1: enters into an agreement to act an unfairly or a
Speaker 1: non neutral way by discriminating in favor of an affiliated
Speaker 1: or unaffiliated provider, that's gonna be per se a violation
Speaker 1: of Section one of the Sherman Act. So no, we're
Speaker 1: not relying purely on the good graces of an h S.
Speaker 1: And now we're not relying purely on the disclosures. Although
Speaker 1: those are enforceable, there's additional consumer protections that are in
Speaker 1: place as well. We have just about fifteen seconds here.
Speaker 1: What would you say to consumers who are worried? I
Speaker 1: hear you. I understand that there's a lot of concern
Speaker 1: out there, and it's really been the fears of flame
Speaker 1: have been flamed fanned by some misinformation. The fact is
Speaker 1: you're going to continue to be protected online. You're not
Speaker 1: at the whim of your I s P. Strong consumer
Speaker 1: protections remain in place. Thank you so much. That's Brendan Carr,
Speaker 1: Commissioner at the f c C. The Supreme Court upheld
Speaker 1: Ohio's aggressive voter purging law today by a narrow five
Speaker 1: to four vote along partisan lines. Joining me is Bloomberg,
Speaker 1: new Supreme Court reporter Greg Store, Greg What did the
Speaker 1: court decide? Specifically, Hi do what? What the Court decided
Speaker 1: was that, Uh, this procedure that Ohio uses didn't violate
Speaker 1: a nineteen law that's colloquially known as the Motor Voter Law.
Speaker 1: That law says U states should try to eliminate people
Speaker 1: off the voter rolls if if they're they've moved, or
Speaker 1: if they shouldn't be on there, but they can't remove
Speaker 1: people just because they didn't vote. And the Supreme Court
Speaker 1: looked at Ohio's procedure, which basically involves, UH, if you
Speaker 1: don't vote one time, they send you a postcard saying, hey,
Speaker 1: do you still live here? And if you don't return
Speaker 1: that postcard and don't then don't vote a couple more times,
Speaker 1: they will remove you. And the Supreme Court said that
Speaker 1: was not um removing somebody from the data from the
Speaker 1: voter database just because they didn't vote. So what is
Speaker 1: the history of this. So the history of it is
Speaker 1: is this law was designed to basically make it easier
Speaker 1: for people, uh to to register to vote, but also
Speaker 1: to encourage states to take some steps to clean up
Speaker 1: their databases so that the people who who so people
Speaker 1: who want to vote can vote and and uh, people
Speaker 1: who aren't supposed to vote don't vote. And that that law,
Speaker 1: like a lot of laws, had some provisions that sort
Speaker 1: of cut both ways, and it was trying to it
Speaker 1: was the court trying to figure out how that applied
Speaker 1: to this Ohio procedure. So the liberal justices here voted
Speaker 1: as a block in descent. What was the descent focused on?
Speaker 1: So there were two descents, and Justice Stephen Bryer's descent,
Speaker 1: which which was written for all four of them, was
Speaker 1: was kind of technically focused on the language of the
Speaker 1: three federal law and and whether Ohio violated it. And
Speaker 1: he essentially said, look, when you send somebody this postcard
Speaker 1: and they don't return it, that doesn't mean anything. That
Speaker 1: doesn't mean a whole lot. There's all sorts of reasons
Speaker 1: why they might not return that postcard. Um and in fact,
Speaker 1: the statistics show that very few people do the other
Speaker 1: descent was written just by herself by Justice Sonya Soto.
Speaker 1: Mayor and um hers looked at the bigger issues about
Speaker 1: voter suppression and essentially said, this procedure UH puts a
Speaker 1: burden on people when they're trying to go vote, and
Speaker 1: UH therefore we should be very skeptical of it. So
Speaker 1: how about this play out in politics and in the
Speaker 1: midterm elections. So there are about six states that have
Speaker 1: fairly similar procedures that might have been at risk had
Speaker 1: the court gone the other way. UH. Those states will
Speaker 1: be able to use their procedures. Now, it's not a
Speaker 1: huge number of people that are affected, but in some
Speaker 1: states like Ohio that can be closely divided, it can
Speaker 1: make a difference. So two years ago, UH, a federal
Speaker 1: appeals court UH barred Ohio from using its law and
Speaker 1: in fact counted the ballots or the counting of the
Speaker 1: ballots of people who otherwise would have been barred under
Speaker 1: this procedure. UM. And it's easy to imagine and a
Speaker 1: close election that that could make make a difference in
Speaker 1: in some closely divided states. Greg this was a case
Speaker 1: where the Obama administration had opposed Ohio's law and then
Speaker 1: the Trump administration reversed that position and supported Ohio. It
Speaker 1: was Democrats versus Republicans as far as the Amiguus Briefs
Speaker 1: of the States are concerned. Why was this case a
Speaker 1: proxy for the partisan fight over the country's election rules. Well,
Speaker 1: you know, it was what what I mentioned before the
Speaker 1: Justice so Mayor was talking about that this notion that
Speaker 1: these purging procedures are not there in order to the
Speaker 1: argument that they're not there in order to protect against
Speaker 1: voter fraud or anything like that, but to make it
Speaker 1: harder for people, in particular liberals and low income people
Speaker 1: and racial minorities to vote. And uh, it ends up
Speaker 1: sort of fitting into that that battle over whether the
Speaker 1: bigger thing we should be worried about his voter suppression
Speaker 1: or voter fraud. We are in the home stretch of
Speaker 1: a Supreme Court term and we're expecting some cases that
Speaker 1: have really been high profile and controversial. And this is
Speaker 1: the sixth time the Liberals have voted this term as
Speaker 1: a block and have dissented as a block. Rather, does
Speaker 1: that portend future votes in controversial cases coming up? There
Speaker 1: will certainly be some future votes like that. There have
Speaker 1: also been some cases where the Court has managed to
Speaker 1: gloss over a few differences. UH. For example, the masterpiece
Speaker 1: case for the Colorado Baker case from last week, where
Speaker 1: two justices from the Liberals were able to join UH
Speaker 1: with their more conservative colleagues in the majority. Um it.
Speaker 1: There are cases like the travel band, cases like mandatory
Speaker 1: union fees, where in cases like partisan jurymandering where you
Speaker 1: have to imagine there will be some sort of ideological
Speaker 1: divide on the court. Whether the ends up being five
Speaker 1: to four, whether they can come up with a broader coalition,
Speaker 1: that remains to be seen, of course. So we have
Speaker 1: the term where Justice Neil Gorsich has replaced the late
Speaker 1: Justice antiin Scalia. Do you see any any change here
Speaker 1: or do you see just the same five four split
Speaker 1: that we saw for so many years. It's pretty much
Speaker 1: the same five four split. Um, you know. And if
Speaker 1: if Justice Corsi resembles anybody, it's probably Justice Scale in
Speaker 1: terms of his vote patterns. So the one time where
Speaker 1: he did join the Liberals was a case involving a
Speaker 1: deportation provision where he, perhaps as Justice Scalia would have said,
Speaker 1: this provision is not specific enough to UH to apply
Speaker 1: it to somebody. It's too vague um in order to
Speaker 1: it's too vague to be used to justify deporting somebody
Speaker 1: or subjecting them to mandatory deportation. And that's the kind
Speaker 1: of vote Justice Scalia may have taken, may have cast
Speaker 1: as well. But basically, when we're looking at the most
Speaker 1: of the cases that are dividing the Court along ideological lines,
Speaker 1: he is justice course, which is very much joining joining
Speaker 1: his conservative colleagues. All Right, well, Greg, we're gonna be
Speaker 1: hearing from you on Thursday again because the Court announced
Speaker 1: today that it's going to be having sessions have issuing
Speaker 1: different decisions then as well. Thanks so much. That's Bloomberg
Speaker 1: News Supreme Court reporter Greg Store. Thanks for listening to
Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to
Speaker 1: the show on Apple podcast, SoundCloud, and on Bloomberg dot
Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg