>> brought to you as a public service by your local cable or satellite provider. >> host: fcc chairman tom wheeler has presented his net neutrality proposal to the other commissioners. the vote in the federal communications commission is due on february 36th. -- 26th. joining us on "the communicators" this week to talk about that is fcc special counsel gigi sohn. gautham nagesh of "the wall street journal" is our guest reporter. gigi sohn, about a month or so ago chairman wheeler talked about a different proposal that did not include title ii

regulation. whatever happened to that? why didn't that get presented to the commissioners? >> guest: i think you're referring to a couple months ago there was discussion of a hybrid proposal, but that included title ii. and, in fact, there were several different proposals, all of which included title ii. so the chairman really had been considering title ii as part of a net neutrality solution. now i'd say for about four or five months now. >> host: well, our guest reporter gautham nagesh, had a front page story this week in "the wall street journal" on the process -- >> guest: oh yes, i saw it. >> host: what i wanted to ask was some of the companies involved with the white house according to mr. nagesh are pretty successful companies. why do they need further protection, as it were? net neutrality protection, when they've been successful up to

this point? >> guest: well, the reason those groups -- and, by the way, chairman wheeler met with those groups in brooklyn, new york last june grouped like tumbler and kickstarter, they became successful because the internet was open. they got to choose who they got to sell their goods to, you know, they got to choose how they wanted to run their business without an internet service provider in the middle telling them what to do or whether they had to pay for priority service or better quality of service. so that's why they're successful. what they were asking for was for us to preserve those rules. as you know, the rules that were in place in 2010 got struck down by the d.c. circuit here many town -- here in town in january of 2014. so the chairman needed to reinstate rules in order to insure that those companies can continue to thrive. >> host: but has anything changed in the way that the net

operates since 2010? >> guest: well, under the 2010 rules the internet service providers, the broadband internet service providers like verizon, like comcast, they knew that if they prioritized their own content or other content for pay, that somebody could come to the fcc and say they're acting illegally. and for the most part, they behaved. what was really important about those rules was it gave public interest groups and others and companies, edge companies a tool by which they could go to an internet service provider if they felt they were engaging in discriminatory behavior and say hey, look, you know you're violating the rules here. and i think those rules really kept the companies, they kept companies from doing the wrong thing. and similarly, even though the rules were struck down in 2014, the chairman said right away in february, i'm going to reinstate these rules, i'm going to figure out the best way to reinstate

these rules. the internet service providers also were on their best behavior because they knew if they even ran afoul of the 2010 rules that had been struck down they'd be asking for trouble. >> host: gautham nagesh. >> gigi, when the chairman gave that statement you just referred to, he indicated he believe it was possible to preserve net neutrality without changing how broadband is classified. we have seen him evolve to a position where now he's going to be classifying both mobile and fixed broadband as common carriers for the purposes of these rules. why is that necessary? >> guest: let me talk about the chairman's evolution because your article was very interesting, but i do think it missed one fundamental point. your article said that the president, by his announcement calling for title ii, boxed in the chairman, essentially forced his hand. but the fact of the matter is that he was evolving long before that. so let me just give you a couple

of data points. so in june the chairman announced that he was going to do an investigation. the fcc was going to do an investigation into interconnection practices between netflix and comcast and verizon. so we started to see the important of that -- importance of that market. in august he sent a letter to verizon's ceo because they were throttling quote-unquote, unlimited customers and asked them for a response and in response verizon stopped doing that. at that time he started to kind of look at the laws governing mobile broadband and found that, in fact mobile broadband had been regulated -- excuse me, mobile voice, let me correct myself -- had been regulated under title ii of the communications act for 20 years in a light touch way, and it had led to almost $300 billion worth of investment. and, in fact, he met with ctia wireless industry, in september and basically told them in almost no uncertain terms it really wasn't a mystery that he was going to level the playing

field between mobile broadband and fixed broadband when it came to net neutrality rules which was something that was not in the prior rules, the 2010 rules. and then by october he started talking about this hybrid, and that had title ii in it. so there really was an evolution here, and i do find the fascination with the chairman's evolution kind of interesting because nobody talks about i how the president evolved on gay marriage anymore, right? it's not important where he was it's important where he is now. and where he is now is that title ii is the securest legal authority. we've been to court twice okay? some people will argue whether we've lost twice or whether we sort of won the last one because the court said we had authority under 706. but the fact of the matter is there are no net neutrality rules now. he wants to be the last chairman to go to court, and he wants that court to say you are on firm legal ground. >> so it sounds like you're saying that the president's

statement did not have a significant impact on where the fcc ultimately landed, even though the proposal tracks very closely with what the president called for. >> guest: well, let me say two things. i think it's important to remind people four million americans waiting here, okay? the president did as well -- weighed in here. the president did as well. i think what the president's statement did was rather than force the chairman's hand, give him some cover to do something he already was thinking about doing. but, you know, as a lot of people know, i've been doing this kind of work for a really long time. for four million people to weigh in to an fcc proceeding is really humongous to, and it's amazing. and the chairman listened. and the vast majority of them were asking for a stronger legal authority. they were asking for title ii. i mean, it shocked me, right? i expected people to say we want strong net neutrality rules but for them to specifically ask for this long before the president did is really quite amazing. >> host: gigi sohn, what's the

advantage of a comcast, an at&t, a verizon in your view if this proposal goes through? >> guest: certainty. okay? these companies particularly verizon/at&t, they lived under a title ii regime when they had dsl service. so prior to 2005 so in 2002 the fcc decided that cable modem service was an information service. but dsl service -- which both at&t verizon operated under -- was in title ii service until 2005 when chairman martin after the case had gone all the way to the supreme court and ended up in the brand x case decided that dsl would be similarly deregulated. so it's not like they don't know how to live under this regime and, in fact, this regime is lighter touch, okay? it's only going to apply a hand. of provisions of -- handful of provisions of title ii, especially a lighter touch than they lived with 12 years ago.

comcast similarly, you know they low the rules. this gives them the certainty that we haven't had now for over ten years and frankly even longer than that. it's really been about 15 years now that people have been advocating, first it was called open access then it was could net neutrality. so to put this thing to bed finally after 15 years, i think the companies will find that more salutary than they're acting right now. >> host: when you founded public knowledge in 2001 was net neutrality one of your key goals? >> guest: yeah, it was. >> host: title ii net neutrality? >> guest: no. i think that wasn't -- because remember, in 2001 the fcc hadn't classified cable modem service yet as an information service. that didn't happen until 2002. but remember in 2001 and then in the late '90s everybody was worried about aol and the walled garden right? so they wanted aol to open up its network to other voices. and it wasn't until the

reclassification -- excuse me, the classification of cable modem service happened, and then the reclassification of dsl happened in 2005 that people started to say why did we do this? i think there's an important, important point here. the brand x decision was the decision in 2005 where the supreme court said -- the supreme court looked at the fcc's cable modem decision decision to classify it as an information service. it said this isn't a great decision, it's probably not the best interpretation of the communications law, but it's not arbitrary and capricious. it's not in plain english totally wacky. and i think people misconstrue that brand x case. all the supreme court did in brand x was say the fcc has the discretion to interpret the communications act. and even though it's not the best interpretation, as long as it's not wacky, we have to uphold it. i think that's what's going to happen here.

better here. we reclassify, it will inevitably be taken to court and the court will say whether or not they agree with our reclassification, this is not wacky. this is not arbitrary and capricious. an incident agency -- independent agency has the ability and the legal right to determine what its authority is and determine what the classification of its services are. so i feel, i feel good about the legal authority that we've chosen. >> host: gautham nagesh. >> the broadband industry officials, of course, many of them have a different opinion i think it's fair to say, about the legal authority you've chosen. they say they are okay with net neutrality but that classifying them as a common carrier is a step too far. and as you outlined, the chairman signaled that he intended to forbear from much of the title ii regulations including the possibility of rate regulation. but i spoke yesterday to broadband industry officials who believe that section 201 of title ii would actually contain that rate regulation authority. so even if this fcc does not

choose to use it, have you guys made it easier for a future fcc if they should so choose to regulate broadband pricing? >> guest: yeah, that's a scare tactic, and i know some of the folks that work for the isps are up on wall street right now you know, telling investors and others that, oh, my god, this is going to lead to rate regulation. i think the perfect example again is the mobile industry. it's been under title ii, including 201, for over 20 years, and there hasn't been rate regulation. there's been no rate regulation of a retail service really since cable regulation, you know, 22, 23 years ago. so i think the fear is unfounded. the chairman has said we are not going to rate regulate and, hey, i don't know who the fcc chairman is. the next fcc chairman may try to throw out this whole regime and do something that's more free market oriented or less regulatory. so i don't really buy the next chairman argument because, you know, the rules are only as good as the guy or the gal on the

eighth floor enforcing them. so we've got to do our best to set up an infrastructure that will protect consumers that will preserve an open internet which has been the greatest driver of economic development, free speech and innovation this world has ever known. >> there's been a lot of talk through this net neutrality process about preserving the internet the way it is. but the way the internet is today, a large percentage of americans depending on your definition of broadband don't have access to high-speed broadband at home. so that is where, i think the question of rate regulation comes in. isn't there a case of some form of subsidized subsidy or program in order to make broadband available to a greater percentage of american households? >> guest: well, there is a program, but it's called universal service. it's not rate regulation. it's one of the provisions we will not be forbearing from. finish and that insure -- and that insures that people in the deepest rural areas, in the poorest urban areas get an opportunity to have broadband.

now, let me tell you, it hasn't solved the problem. its existence has not solved the problem, and we just put out a study a couple weeks ago that showed that 53% of rural americans do not have access to what we are considering table stakes for broadband. that is 25 megabits per second down and 3 up. and 17% of all americans don't have access. so this is a major problem and we can try to solve it through programs like universal service both through the connect america fund which goes to rural areas and we're also looking at whether lifeline -- which is a subsidy for the poorest americans -- whether that should be a broadband fund. we're also trying to promote competition. everybody's so excited and focused on net neutrality that they have kind of ignored the other item on the docket in february and that's what the chairman has recommended -- again, has to be a vote on february 26th but he has

recommended the preemption of two state laws that prohibit local community broadband provide isers from expanding -- providers from expanding their current foot prohibits. so there are -- footprints. so there are in our calculation, 21 states that have restrictions on communities building their own broadband service whether it's the city themselves, whether it's a public/private partnership whether it's co-ops. there are 21 states that a restrict it, and we believe that if those bounds were freed, were opened then there'd be more competition. competition drives down prices, it results in better service, it results in more service. so we are going to find other ways to promote competition to fill the rural and the urban gap. of. >> host: gigi sohn, what was the rationale behind treating wireless the same as wired broadband? and is this unprecedented in a sense? >> guest: it is unprecedented because the 2010 rules did not have a level playing field with

regard to open internet rules. they applied strongly to fixed, they applied very weakly -- there were, you know, one or two provisions that applied to wireless, but for the most part it didn't really apply to wireless. the 55 % of all internet traffic is now wire he is, mobile wireless. -- wireless. mobile wireless. it is the future. everybody has -- not everybody but most people have a smartphone or a tablet or, you know another device that connects to the wireless internet. it's everywhere. and a lot of households have multiple devices. it just didn't seem to make sense to the chairman anymore in 2014, now 2015 to believe wireless unprotected when it is more than half of the internet traffic. >> speaking of wireless, we do see some more innovative or newer business models have already emerged in wireless, especially in the low cost and the prepaid arena, things could

zero ratings. your proposal indicates that you guys will handle those programs on a case-by-case basis. can you tell us what is the criteria for whether something like a zero rate at facebook program would be permitted under the net neutrality rules? >> guest: so let me explain -- we talked about the legal authority in some detail. let me talk about the actual rules themselves okay? there are three bright line rules, okay? you cannot have an internet service provider cannot block lawful content applications and services they cannot throttle, okay? that means they can't impair or degrade lawful content applications and services. and they cannot engage in paid prioritization. that is, either favor their own affiliated content or another content through consideration. then there's what i call the safety net or catch-all rule. and that basically says that any internet service provider practice that harms user choice or edge provider's ability to

make their content applications and services available to users will be looked at for whether it's discriminatory or not. okay? so the zero rating, we do not take a position on zero rating. but if somebody were to bring a complaint and they'd have to do that, it would be viewed under that safety net lens. >> and let's talk about the other aspect of this order which is it will for the first time give the fcc authority over internet connection where the broadband network tracks to content companies like netflix. can you explain why there are going to be some sorts of paid arrangements allowed there? and, again what the criteria is when the fcc is evaluating them? >> guest: yeah. i don't want to judge whether or not paid arrangements will be allowed. all i will say is what we've done by extending title ii to connection or traffic exchange is for the very first time given companies like netflix google

level iii, cogent, amazon the ability if they believe they're being charged unreasonable rates or they're being discriminated against, if an internet service provider is favoring their own traffic over theirs, to come in and file a complaint and say they are discriminating against us, they are charging unjust and unreasonable rates under section 201 and 202 and 208 of the communications act. so this is a very big thing. because we've never taken -- and this is where it goes further than president's position which is a point i wanted to make before. there were two places where our proposal is actually stronger than president obama's proposal. one is in that. he didn't actually call for us to exert authority over interconnection. and second is we're not only using title ii as a source of authority, we're using section 706 of the telecommunications act of 1996 and title iii -- which covers mobile of the communications act. so we've actually gone further than the president's proposal.

>> host: gigi sohn does anyone have this proposal besides chairman wheeler, jessica rosenworcel, mignon clyburn with, michael o'rielly and ajit pai? >> guest: well, staff do. >> host: right but -- >> guest: outside of the agency? no. >> host: and when will it become public so that a gautham nagesh can report on it or the public can read it? >> guest: it will become public after february 26th. >> host: what happens on february 26th? >> guest: february 26th we will take a vote and we need two other commissioners to vote for this proposal. >> host: and do you think that mignon clyburn and jessica rosenworcel will vote for it? >> guest: i can't speak for them. >> host: what about the fact that the house of representatives and the senate have each held hearings already on net neutrality and that mr. thune and mr. upton are looking at developing bills that would, essentially make this proposal inwon sequential? >> guest: so the fcc as you know, is a creature of congress.

they write our laws. they wrote the telecommunications act of 996 and the communications act of 1934. it is their prerogative to legislate. and that is what they do. but we have to do what we do as well as an independent agency. we need to move forward. it's been over a year now where we've opinion out without rules that protect an open internet. so we're going to move forward, and we'll see what happens. >> host: ajit pai last time he was on this program suggested that the vote be delayed. >> guest: the chairman obviously, disagrees. again, it's been over a year. the internet has nothing protecting it to insure that it's open to insure that users are protected from gatekeeping functions, to insure that edge providers are protected from gatekeepers. we need to move forward and we need to lock this down and be done with this debate that we've been having for 15 years. >> host: gigi sohn, if you put on your public knowledge hat one more time -- >> guest: oh, god.

[laughter] >> host: knowing what you know about this proposal how would you feel about it as the president and founder of public knowledge? >> guest: well, i think it's a victory for the american people, okay? i no longer work for public knowledge, so i'm not going to put that hat on. i have a wonderful successor, a guy named gene but i think he is celebrating. i think the public interest groups are celebrating and i think the four million people who have weighed in -- and frankly, more than that. i'm doing a twitter town hall later today, and i watch that feed that net neutrality speed and people are overjoyed. i've heard people say the biggest cynics among journalists and the public is, wow, i actually believe in government. so people feel like they really made a difference, that democracy worked. i'll never put that public knowledge hat on again, but i no my form -- i know my former colleagues are delighted as are the american people and the other groups that have worked tirelessly for not a lot of money in this space for a long time. >> as you indicated i think

early on in this process especially when his original proposal was announced last spring, your boss was vilified by many people like the hbo comedian, john oliver. and as you indicated, today the public seems very happy about what he has come out with. what has it been like at the fcc to be part of that that roller coaster over the past year? >> guest: it's been wild. look, i lo my job. -- i love my job. i went to government never having been in government before. and, you know, to see the evolution -- want to talk about evolution? see the evolution of how this issue has moved and how things have changed, i have to pinch myself sometimes. it's been crazy but wonderful at the same time. >> host: and is this fight over? we hear about legislation, we hear about court battles and, of course, the next fwcc -- f crushes c could -- fcc -- [inaudible] >> guest: advocates of net knew centrality are going to have to keep fighting on every stage whether it be on the hill,

whether it be in the courts whether it be in the court of public opinion. and we'll have to do, you know if this item gets voted out on the 26th, which i certainly hope it will, we're going to have to keep fighting too. because preserving an open internet is, perhaps the most important thing that this agency can be doing. so i was delighted to see "the new york times" in this morning give a hat tip to chairman wheeler saying he was exercising courage and good sense by putting forth a light touch title ii system. so it's going to be a long battle, but it's going to be one that i'm sure you guys will continue to cover and cover well. >> host: gigi sohn, can the chairman's mark be amended in the february 26th meeting? >> guest: yes. so let me explain a little bit about how the process works. as i said, last evening our mark was circulated. and the different offices basically put their edits what they call on the chain, so basically on the, you know in

e-mail, in the document itself. and we decide whether we want to accept some we decide whether we want to reject some we decide whether we want to negotiate some. so, you know, it's going to be a process over the next couple weeks. also in the next two weeks people can come in, interested partieses -- and people should know that, right? so the door is not closed to the public. the this has been a very open and transparent system and docket, and we want to keep it that way. so people are still encouraged to come in only in the next two weeks because one week before the meeting -- it's called the sunshine period where we all kind of go into our hovels and put the finishing touches on the item -- but for the next two weeks people can come in, you know, try to make changes. obviously, they're not going to know everything that's in the document. but, you know, they'll try to add thing subtract things, and the offices will put in their additions and subtractions, and

we'll see what we come up with. i'm hoping since i you know, i have seen the document that it substantially stays the same because it's really a terrific and very strong order. >> host: so it cannot -- it's an up or down vote at the february 26th meeting correct? >> guest: well -- >> host: or could a republican commissioner say let's change the language here to that? >> guest: yeah. look, you can concur in part and dissent in part. and in a lot of ways the fcc is like a court in that way, which is one of the reasons why we don't, you know, make this, you know, whole item public. so, yes, there's a give and take. and even, you know, sometimes even those that dissent get some gives anyway. it would help if they would concur. we might be willing to, you know, give a little bit more. but, yeah, it's a give and take much like a court. >> host: gautham. >> assuming that the fcc does vote in favor of the proposal on february 26th, when will the rules take effect, and how will

the public know that they are working? >> guest: okay. so once we vote on the rules they go to something called the federal register which is where all the rules are published. and 30 days after that the rules become effective, and it will be the time where people will start to file lawsuits and so on and so forth. i think the way people will know that the rules are working is when they don't see many or any complaints filed at the fcc, and they get full, fair robust broadband without any throttling, without any blocking without any paid prioritization. people are used to the control that the internet gives them. it really is amazing when you see these little start-ups. in a pre-internet era, they wouldn't have had a chance. you see activists around the world using the internet to, you know gather people together to do protests, to do actions. ferguson, missouri, is a perfect

example. that wouldn't have been possible before the internet. but people know the internet that they love, and they know how it works, they know how they want it to work, and they know how they don't want it to work. so i think the best thing that can happen is nothing happens. and people have the internet that they've come to depend on every day. >> host: and finally gigi sohn i want to ask you, there's been a storyline in the media about this being the most polarized fcc, more 3-2 votes than any other fcc in history. how do you respond to that? >> guest: i've been doing fcc work in some way or another since 1988. this story keeps coming up year, you know every single time every newed administration. there are always -- new administration. there are always battles. have these issues become more partisan in the past ten years? probably so. but there's always been, you know, interparty battles. there's been battles between party -- people of same party at

the fcc. i just don't see anything new here. it's like groundhog day the same story about partisanship gets written every single administration. i don't find it a whole lot different now. >> host: closing question? >> so every article about your boss, tom wheeler refers to him as a former cable and wireless lobbyist. >> guest: i hate that, yeah. [laughter] >> how should he be remembered now after his tenure at the fcc is over? >> guest: i think chairman wheeler will be remembered as a perp for whom the american people -- as a person for whom the american people was his biggest and most important client. i mean, he really -- i really wish people could see him in some of our staff meetings or when he's out of the spotlight, because that's what he cares about. he cares about doing the right thing. it's not an accident that a i went to go work for him, you know? it was not an accident that he asked me to come work for him. he really has progressive values, he really cares about serving the american public. and the thing i guess upsets

me the most, that people don't see his whole body of work. what he's done for disability access, for public safety, what he's going to do on the community broadband, you know? what he's done to promote over-the-top video service. he's had a huge body of work in only about 14, 15 months and it's all in the public interest. so, you know i wish people would look more broadly. and i know when he does leave office gautham nagesh will do that story about how tom wheeler, former, you know wireless and cable lobbyist turned around and just supported the american people and passed policies that upset his former colleagues greatly. >> host: and gigi sohn is special counsel to the fcc. gautham nagesh is with the "wall street journal." ms. sohn, we look forward to having you back and we look forward to having the chairman on the show. >> guest: i love the show you know that, and i'd love to be back.