1 00:00:00,080 --> 00:00:02,600 Speaker 1: Daniel. What's at stake in this case before the d 2 00:00:02,720 --> 00:00:05,960 Speaker 1: C Circuit Court of Appeals. Well, the question here is 3 00:00:06,000 --> 00:00:08,879 Speaker 1: it has been in the previous three rounds of litigation. 4 00:00:09,000 --> 00:00:13,200 Speaker 1: Is what jurisdiction, if any, the FCC has over the 5 00:00:13,200 --> 00:00:18,400 Speaker 1: ability to regulate broadband network management practices, So the ability 6 00:00:18,560 --> 00:00:22,520 Speaker 1: of broadband providers such as Comcast or Verizon to shape 7 00:00:22,560 --> 00:00:26,599 Speaker 1: the flow of information over their networks, And where will 8 00:00:26,680 --> 00:00:31,520 Speaker 1: this court's decision fit in with the prior decisions. So, 9 00:00:31,640 --> 00:00:34,560 Speaker 1: the Supreme Court said back in two thousand five that 10 00:00:34,800 --> 00:00:38,400 Speaker 1: the Communications Act, which is what gives the Federal Communications 11 00:00:38,400 --> 00:00:42,240 Speaker 1: Commission it's jurisdiction, is ambiguous about the extent to which 12 00:00:43,000 --> 00:00:48,320 Speaker 1: the agency has jurisdiction to regulate broadband. Under traditional administrative 13 00:00:48,400 --> 00:00:51,800 Speaker 1: law procedure, that generally means that um the courts are 14 00:00:51,800 --> 00:00:55,440 Speaker 1: going to defer to the agency's reasonable interpretation of the statue, 15 00:00:55,920 --> 00:00:58,880 Speaker 1: and so in this case, under the Obama administration, the 16 00:00:58,920 --> 00:01:02,720 Speaker 1: agency had interpreted the statute to suggest that broadband providers 17 00:01:02,720 --> 00:01:05,360 Speaker 1: are more like the old telephone network and should be 18 00:01:06,240 --> 00:01:09,240 Speaker 1: saddled with common carriage regulations in order to protect the public. 19 00:01:09,880 --> 00:01:14,000 Speaker 1: The Trump administration FCC repealed that decision and returned to 20 00:01:14,200 --> 00:01:17,040 Speaker 1: a lighter touch regulatory environment, and the challenges whether they 21 00:01:17,080 --> 00:01:20,840 Speaker 1: were UH authorized to do so and whether they did 22 00:01:20,880 --> 00:01:23,440 Speaker 1: so in a way that's reasoned. We won't know the 23 00:01:23,480 --> 00:01:27,040 Speaker 1: Appeals Court's decision for several months, but oral arguments on 24 00:01:27,240 --> 00:01:31,760 Speaker 1: February one, and after the oral arguments, Bloomberg Intelligence gave 25 00:01:31,800 --> 00:01:34,840 Speaker 1: the challengers a slight edge over the f c C 26 00:01:35,120 --> 00:01:39,800 Speaker 1: two judges to one. Did you and reading about that, 27 00:01:40,080 --> 00:01:44,160 Speaker 1: did you think that that was the way it might go? So? 28 00:01:44,200 --> 00:01:48,600 Speaker 1: I think on the larger question about whether the FCC 29 00:01:48,680 --> 00:01:53,240 Speaker 1: can classify broadband under a light touch regulatory regime, my senses, 30 00:01:53,280 --> 00:01:56,640 Speaker 1: the agency has the upper hand. It's gonna be very difficult, 31 00:01:56,680 --> 00:02:00,400 Speaker 1: I think for petitioners to overcome the Supreme courts UH 32 00:02:00,520 --> 00:02:02,919 Speaker 1: pretty strong statement to the contrary, the d C Circuit 33 00:02:02,960 --> 00:02:07,480 Speaker 1: has to defer to the Supreme Court's ruling. On the 34 00:02:07,640 --> 00:02:11,760 Speaker 1: more um answary questions, questions about things like whether the 35 00:02:11,800 --> 00:02:16,120 Speaker 1: agency can preempt state law and whether the agency sufficiently 36 00:02:17,120 --> 00:02:20,399 Speaker 1: had authorization to enact the privacy rules that it did. 37 00:02:20,760 --> 00:02:23,639 Speaker 1: I think that petitioners may have a point there. There's 38 00:02:23,639 --> 00:02:27,240 Speaker 1: sort of nuanced little arguments um that may chip away 39 00:02:27,360 --> 00:02:29,800 Speaker 1: portions of the order, and I think they probably have 40 00:02:29,919 --> 00:02:32,280 Speaker 1: the edge on those two to one. So then where 41 00:02:32,320 --> 00:02:36,760 Speaker 1: would that leave net neutrality rules? So part of it 42 00:02:36,800 --> 00:02:40,480 Speaker 1: depends on what we call sever ability analysis, whether or 43 00:02:40,560 --> 00:02:43,360 Speaker 1: not the order is supposed to hang together as a whole, 44 00:02:43,480 --> 00:02:45,079 Speaker 1: or whether part of it can be struck down and 45 00:02:45,120 --> 00:02:47,640 Speaker 1: the rest can be left in place. The petitioners have 46 00:02:47,800 --> 00:02:51,840 Speaker 1: argued that because the agency lacks authority to enact its 47 00:02:51,840 --> 00:02:54,679 Speaker 1: privacy rules, that the privacy rules were the lynchpin to 48 00:02:54,760 --> 00:02:56,840 Speaker 1: the overall order and therefore the whole thing has to 49 00:02:56,880 --> 00:02:59,760 Speaker 1: be repealed. If that happens, then it would de facto 50 00:03:00,120 --> 00:03:03,520 Speaker 1: store the title to common Carriage regime that the Obama 51 00:03:03,520 --> 00:03:08,480 Speaker 1: administration had put in place. But I think that, um uh, 52 00:03:08,520 --> 00:03:10,880 Speaker 1: the deverability question is one, let's think a bit more 53 00:03:10,960 --> 00:03:15,200 Speaker 1: nuanced than that. The practice of slowing down transmission is 54 00:03:15,240 --> 00:03:18,680 Speaker 1: known as throttling, and in the oral arguments, throttling of 55 00:03:18,760 --> 00:03:22,920 Speaker 1: firefighters data plans got a lot of attention. Can you 56 00:03:22,960 --> 00:03:25,919 Speaker 1: explain what the issue was there? Yeah? I actually found 57 00:03:25,919 --> 00:03:28,560 Speaker 1: this portion of the argument a little bit uh puzzling. 58 00:03:29,000 --> 00:03:33,120 Speaker 1: The argument made by um first responders is that if 59 00:03:33,160 --> 00:03:37,000 Speaker 1: you allow certain companies to pay for priority delivery, meaning 60 00:03:37,280 --> 00:03:40,360 Speaker 1: in the event of congestion, a company can pay for 61 00:03:40,800 --> 00:03:44,839 Speaker 1: UM to get their traffic through first. Then that would 62 00:03:44,880 --> 00:03:49,119 Speaker 1: have the effect of UH slowing down any traffic that's 63 00:03:49,160 --> 00:03:52,040 Speaker 1: not prioritized, And the concern would be that first responders 64 00:03:52,040 --> 00:03:54,360 Speaker 1: would be among those whose traffic would be slowed in 65 00:03:54,360 --> 00:03:57,240 Speaker 1: the event of congestion. In reality, I'm not convinced that's 66 00:03:57,280 --> 00:04:01,800 Speaker 1: the case. Most UH first responders offered in what we 67 00:04:01,840 --> 00:04:05,320 Speaker 1: call an enterprise plan, which are plans that are marketed 68 00:04:05,320 --> 00:04:08,360 Speaker 1: to business and government entities that are not at issue 69 00:04:08,480 --> 00:04:12,120 Speaker 1: in these particular rules. And moreover, if we're if we 70 00:04:12,200 --> 00:04:16,720 Speaker 1: think that certain traffic, like first responder traffic should be 71 00:04:17,120 --> 00:04:19,480 Speaker 1: should get priority in the event of an emergency, I 72 00:04:19,520 --> 00:04:22,480 Speaker 1: think that's an argument in favor of allowing carriers to 73 00:04:23,240 --> 00:04:26,680 Speaker 1: engage in prioritization, not allowing UH not up banning the 74 00:04:26,680 --> 00:04:31,240 Speaker 1: practice of paid prioritization. Another issue was the FCCS claimed 75 00:04:31,279 --> 00:04:37,080 Speaker 1: that net neutrality rules were harming broadband investment, and one 76 00:04:37,120 --> 00:04:40,600 Speaker 1: of the judges really took issue with that and honed 77 00:04:40,640 --> 00:04:44,960 Speaker 1: in on it with some contrary evidence. Yeah, that's right, 78 00:04:45,000 --> 00:04:49,240 Speaker 1: the UH. So the agency has to offer evidence and 79 00:04:49,320 --> 00:04:51,479 Speaker 1: a clear explanation for why it's doing the things that 80 00:04:51,560 --> 00:04:55,120 Speaker 1: it's doing. In this case, the f SEC had argued 81 00:04:55,200 --> 00:04:59,600 Speaker 1: that the original Obama era rules had a negative effect 82 00:04:59,640 --> 00:05:02,920 Speaker 1: on essement, that companies saddled with additional regulations, we're going 83 00:05:02,920 --> 00:05:06,320 Speaker 1: to invest less as a result. The difficulty for them, 84 00:05:06,360 --> 00:05:09,680 Speaker 1: as Judge Millett pointed out, is that many of these 85 00:05:09,680 --> 00:05:13,520 Speaker 1: companies had gone to investors suggesting that the net neutrality 86 00:05:13,600 --> 00:05:15,880 Speaker 1: rules were going to have no impact, no significant impact 87 00:05:15,880 --> 00:05:19,000 Speaker 1: on their business. And because statements to investors are almost 88 00:05:19,040 --> 00:05:22,760 Speaker 1: like UH statements made to a court under penalty of perjury, 89 00:05:23,120 --> 00:05:26,719 Speaker 1: the question was put to the agency why that wasn't 90 00:05:26,960 --> 00:05:31,200 Speaker 1: evidence that pretty strongly undermined their UH the the agency's conclusions, 91 00:05:31,200 --> 00:05:32,760 Speaker 1: and I don't think the agency had a really strong 92 00:05:32,800 --> 00:05:36,719 Speaker 1: response to that point. In many of these cases where 93 00:05:36,760 --> 00:05:40,880 Speaker 1: there have been rule changes under the Trump administration, for example, 94 00:05:40,960 --> 00:05:45,080 Speaker 1: e p A rule changes, the question is whether the 95 00:05:45,240 --> 00:05:49,440 Speaker 1: proper procedures were followed in order to get to that 96 00:05:49,800 --> 00:05:52,000 Speaker 1: rule change, And a lot of times in the e 97 00:05:52,120 --> 00:05:56,240 Speaker 1: p A cases, the proper procedures haven't been followed. In 98 00:05:56,279 --> 00:06:01,440 Speaker 1: this case, were the proper procedures followed? Yeah? So, um, 99 00:06:01,480 --> 00:06:04,279 Speaker 1: there's two levels of procedure analysis right, one would be 100 00:06:04,880 --> 00:06:08,000 Speaker 1: did you uh doctor teas and cross the eyes? In 101 00:06:08,040 --> 00:06:10,760 Speaker 1: other words, did you allow for sufficient comment? Did you 102 00:06:10,800 --> 00:06:14,000 Speaker 1: address all of the comments um that we were received 103 00:06:14,040 --> 00:06:18,160 Speaker 1: during the the petition. I don't know that those arguments 104 00:06:18,160 --> 00:06:21,039 Speaker 1: are going to carry the day. The strongest argument on 105 00:06:21,080 --> 00:06:24,640 Speaker 1: the main question I think for petitioners is um whether 106 00:06:24,680 --> 00:06:27,800 Speaker 1: the agency's decision was arbitrary and capricious, meaning did the 107 00:06:27,839 --> 00:06:31,479 Speaker 1: agency provide enough explanation as to why it no longer 108 00:06:31,520 --> 00:06:33,480 Speaker 1: believes now would have believed in the court isn't in 109 00:06:33,520 --> 00:06:36,240 Speaker 1: the business of second guessing the agency's judgment, but it 110 00:06:36,320 --> 00:06:38,520 Speaker 1: has to make sure that the agency made a judgment 111 00:06:38,560 --> 00:06:41,720 Speaker 1: and that that judgment was based on substantial evidence. There 112 00:06:41,720 --> 00:06:44,680 Speaker 1: were more than three dozen plaintiffs, and that included state 113 00:06:44,839 --> 00:06:50,520 Speaker 1: attorneys general and consumer advocacy groups. In your opinion, does 114 00:06:50,800 --> 00:06:54,280 Speaker 1: the repeal of net neutrality hurt consumers? We have about 115 00:06:54,279 --> 00:06:56,880 Speaker 1: a minute here. Yeah, I don't think it does. My 116 00:06:57,000 --> 00:07:02,720 Speaker 1: sense is that um uh. Net neutrality was not um 117 00:07:02,760 --> 00:07:06,039 Speaker 1: a regulation that was adopted to address problems that we 118 00:07:06,040 --> 00:07:08,320 Speaker 1: were seeing in the marketplace. It was a prophylactic rule, 119 00:07:08,680 --> 00:07:12,560 Speaker 1: and my concern has been that by forcing all providers 120 00:07:12,560 --> 00:07:15,640 Speaker 1: to treat traffic equally. That you actually make it harder 121 00:07:15,760 --> 00:07:20,119 Speaker 1: for broadband providers to innovate and provide different offerings beyond 122 00:07:20,160 --> 00:07:22,320 Speaker 1: what's currently available in the market now. So I fear 123 00:07:22,400 --> 00:07:25,560 Speaker 1: that once I fits all regulation may limit the ability 124 00:07:25,560 --> 00:07:28,920 Speaker 1: to innovate going forward. Thanks so much, Daniel. That's Daniel Lyons. 125 00:07:28,920 --> 00:07:31,320 Speaker 1: He's a professor at Boston College Law School.