>> my name is monica. i'm with the united nations vibrant program. thank you for sharing your information and knowledge appear today. actually following up and it charles is speaking about, some of the things we're trying to do working with our partners in canada and the u.s. and some of the other countries in south america is using the arctic council as an institutional mechanism to help advance the arctic migratory bird initiative. with canada's leadership we have really come some ways in developing, there's a work plan and there's an implementation strategy. i believe that what has gone up to you, humberto, to invite your engagement as well from mexico, this initiative. i guess one of the questions, are there sufficient institutional mechanisms in place to enable the kind of collaboration we are talking about that sort of the hemispheric level? if not what could be done to

enhance those? a second one would be you've referenced albatross and not enough for you all armed with equipment for the conservation. it's a treaty and another's been much interest in perhaps advancing that, whether it's getting the u.s. to sign on our other countries along a pathway. but eagerly awaiting opportunities to further engage with the countries on advancing that particular treaty. thoughts on institutional mechanisms and ideas welcomed. >> i teach at trinity washington university. if you recall we had a massive oil pollution, oil in the gulf of mexico. i was wondering if you research addressed that in terms of effect it has on migration, bird migration? >> those are both good questions.

i guess for monica's question, there are cons -- conversations going on hemispheric look at the convention on migratory species which in all countries in the western hemisphere are members of, but there was an america's byways framework developed to try to get at these high level policies, an then we could all k together within the government on biodiversity and bird conservation the you have the convention which works on wetlands conservation throughout the mister. we've had conversations about do we are how do we expand the north american bird initiative to be an america's bird initiative, and whether that would work in central and south america, or they would need something different. there are a lot of discussions going on out there. we've been talking with our congress four years, and many ngos have been supporting the u.s. army that and that will

keep him, i think that will still continue, fortunately, we can continue to drive. just quickly on the gulf, i don't think a lot of what was done in the gulf uses a lot of the data that we've used in the report. and over the past number of years has specifically looked at impacts, and also trying to say that we don't only want to just spend the money in the gulf that there are places in canada and other spots will need to spend that money because the species impacted as a set migrate to other places. so this is data that was used to create the report was used to try to impact the restoration and conservation of species in the gulf but not necessarily through this particular report. >> just adding on to the policy mechanisms, i think basically we're trying to explore that. one of the things we did at the trilateral meeting, there's a trilateral meeting between the u.s., canadian and mexican

wildlife agencies that was established partly through the framework of the cec commission on governmental cooperation but basically part of the nafta free trade agreement. so we meet annually and this year we did have representatives from the cms convention migratory species which is the convention or that was the group that created the albatross agreement. this convention as mechanisms to trade agreements within it, which can include signatories who are not part of cms. one of the interesting questions is, how will we as north american countries, none of which are signatories to cms and also something which may be challenged to change, can work together with the cms which does have many central and south american countries as signatories to develop appropriate mechanisms. i think the answers we are still explained that and people are interested in that type of realm

of would be very interesting to get together. it's not my area of expertise. i'm more on the technical side. i coordinated this because it's part of my technical side of it what i am engaged at the pump with a trilateral as well. and so it is an area we want to continue to explore, is what is, in essence i might almost say the lowest overhead and most acceptable approach for getting everybody together. it's challenging because we don't want something that's imposed from any one of the country. we can't say to south america, join us. we need to find a way we can join in a common ground. whether that's through cms or creating a new agreement under cms that we can all sign on to our whether it's through a less formal, and there's networks of non-government organizations that are very well connected. birdlike international already has that network. what we also need is a

government network because that's how we can get some of the policies and legislation's data they needed to implement some of these. >> just a quick comment. as debbie said, the gulf is not reflective year. but one of the big bro grams having talked about here is major and very powerful source of information that is growing very fast. it is considered a database, the fastest growing biodiversity in the world. it's in the hundreds of millions register. now we are arriving at moment of history and science and understand of what distributions and so on that we have never seen. they are developing new statistical tools what they call data mining.

not structured information, and ways to search and dig into that information for trying to get some patterns, trends, conclusions. as i mentioned it's important because they created a particular tool for monitoring bird -- how do you say that? oil? birds affected by the oil problem. they did a follow-up with what was happening with the birds were in there for months, days, weeks and months. that information is all in the website. which also helps people, us to get close to what is happening there and have a sense, what is the dimension of this disaster, problems like that one.

i just wanted to mention that. the other thing is with regard to instruments and mechanisms, well, there is a vision. i think we all sure that. eventually the nafta experience could become america's bird conservation initiative to cover the entire continent. hopefully one day we will get there. i think the three countries have done if a good job in terms of accumulating experience and being more sensitive to each other's needs and concerns. i remember, i forgot to say that. i mean, these were many meetings. we were planning about population objectives and habitat objectives. with the mexicans were thinking capacity building. we are more concerned, i mean, how can we improve, increase our capabilities to really begin to do things.

at the time i think we much better understand and were in the position to also including habitat and population objectives in our priorities, as they can include the capacity building components in the processes. that's like a very good example of the type of change that has happened in the last 20 years. >> before thanking the battle i would be remiss not to recognize the great work of staff members of canada and mexico institute, some of them did make program repairs and so on. want to thank them very much. then i want to send a special thanks to the intellectual author of this collaboration, the person who approached us and came up with acted and that is not yet in the back of the room. -- nadia.

[applause] >> i think humberto's point at the end is exactly what in my vision of kind of north american collaboration in bringing out the best a we all can bring to a collaborative. what you talk about in fact, there are ways in which we need to learn from each other and we need to put together in how to talk to each other and work together. i think you all have given us a great model for this, as look within the wilson center for of the ways in which we can help promote north american collaboration, be it in economic prosperity, security, in many other areas that this is a great model. this is a very, very interesting program for us here, and we hope to continue with the collaboration. thank you all for attending and we hope to see you back here. [applause]

[inaudible conversations] >> here's what's coming up to date o on on c-span2. next in a discussion on net neutrality after the law and technology specialists discuss open internet rules and broadband access. you will about hepatitis c, treatment and prevention efforts. at 1:20 p.m., the air force association hosts a talk about nuclear deterrence. add up to 10 p.m. this weekend's rally to disarm hate. >> today on q&a former defense secretary and cia director robert gates discusses his book, a passion for leadership, lessons on change and reform from 50 years of public service. the program airs at 7 p.m. eastern time. booktv primetime begins at 8 p.m. with his history through the decades.

>> office tonight on booktv primetime on c-span2. >> after his overwhelming primary victory in wisconsin last week, speaker ryan is hitting the campaign trail to help some of his house republican colleagues and gop congressional hopefuls replicate the success. he will visit eight states between now and the end of

august hosting fundraisers in colorado, nevada, oregon, washington, pennsylvania and new york that will bring his august campaign travel total to 12 states. >> the house and senate return to lead to support on tuesday september 6. agenda items include must pass federal spending. they are expected to find zika virus research and prevention programs and pentagon programs. house is expected to consider impeaching irs commissioner john koskinen at the house will be live on c-span and the senate this year on c-span2. >> next to discussion of open internet rules and private access following the d.c. circuit court of appeals decision to uphold the fcc's open internet order. the rules include reclassifying provided as common carriers which gives the fcc more authority to regulate them. technology and law specials debated the claims of legal authority, the chances the supreme court will rule on the case and what this means for consumers. >> so let's get things started

your for those of you who are watching this live stream or if you want to tweet from here, we ask that you use the hashtag title ii, and that's roman numeral two. as we are having this conversation i will be checking twitter and to get some interesting questions i will sort out to the group as well. let's see. first i want to like thank our sponsors, techfreedom, open technology institute and the george washington institute of public policy are putting this on. this will be a great discussion. we've got some interesting panels and i will let each of them introduce themselves and then we will launch right into some questions. let's start on my right. >> i am probably the least experienced on the panel with net neutrality i'm a lawyer and was hired by some of the indicators and to defend the net neutrality rules.

>> before we go on, why are you here? you answered that. but sarah, as we go on, you know, what is your dog in this fight? >> a big dog and if i. i'm sarah morris, senior counsel for new imac is open technology institute. net neutrality has been an issue that has been a long-standing importance to my organization and me personally. why is it important? net neutrality ensures all users can access the lawful content of the choosing of the internet remains an open platform for innovation to flourish, for people to organize, to communicate, to access resources such as educational materials, job applications and metadata allows them to do so without any fear of interference on the part of the internet service provider. >> i'm hal singer, in principle,

economists incorporated. i'm a senior fellow at george washington institute of public policy and an adjunct professor at georgetown's mcdonough school of business. i will answer the next question, why am i here, i think i'm the token economist on the panel also don't have a lot agreed that i don't a look on tv. i've been around a courtroom a few types include in front of the d.c. circuit before so i've a few opinions on what went down. i think my big message today is about as an economist i would like to see the fcc taken seriously the applications of economics and live up to the same cost-benefit standard that other agencies both in an executive branch agencies live up to when issuing orders. i think to not do so is to take the risk with a very, very important and vital segment of the economy. the fcc oversees the tech sector.

this is one of the most important, to put a number to it, isps invest tens of billions a year in infrastructure. those investment sustain over a million jobs per year. the notion that we would take that casually i think is a very, very dangerous. >> since we're going around the horn, i didn't introduce myself. i am maggie reardon, a senior writer at the scene and i've been covering this battle for a decade. it's what's kept me employed. that's why i am here. >> i've got good news for you. job security is therefore you on this front. i'm gus hurwitz, law professor at the university of nebraska college of law. i guess innocents you could say i'm here because of sour grapes. i was excited by name for comment i submitted in this proceeding and also a brief i cowrote with cited by the

dissenting opinion in this case as a good reason to reject the open internet order. why am i here? in a sense because i'm a diminish a law nerd and i think the issues in this case are beyond the fcc or net neutrality. there are fundamental questions of this case raises about how courts go about recruiting agency action and the level of discretion we afford agencies in coming up with decisions. in a sense this is house point but broader. i will be the boring guy on the panel who talks about administrative law spent this panel will not be boring at all. >> so i am berin szoka, we have a range of internet issue. sometimes work with our friends at new america foundation, sometimes were on opposite sides, depends on issue but in this case this issue for me is not about net neutrality. that's always been a red herring.

there really isn't anybody who wants to block content online. we are not really in danger of having our communications throttled. we could deal with all those things, have a narrow ledges of solution to give the fcc authority just in case we weren't about someone doing that but this case is really about the fcc's claim of sweeping powers to regulate the internet as the basis for the so called net neutrality rules. that's why my organization techfreedom has gotten involved but also want a number of silicon valley entrepreneurs and investors got involved in this case. the children would have you believe this is just about the big dogs, many big cable and telephone companies tried to stop the fcc from protecting consumers. this is about lots of people including tech entrepreneurs who are concerned the fcc's overreach could have chilling implications for the entire internet and that we don't know what the next chairman might do with the powers claimed by this fcc. >> it sounds like, sarah, you

might be the lone wolf here in sort of supporting these rules. but, kevin, we've got things split up pretty much on the table. >> the lone wolf. >> my first question is going to be for you. take us a little bit through what this order is and how we got here. >> sure. this order is the third attempt of sec to enact sound, legally sound negative on the rules. this came in the wake of a 2010 decision, verizon v. fcc at the d.c. circuit where the fcc have premised its 2010 rules on a section of authority in the communications act called section 706. long story short, the court in that case said these rules, you demonstrated a basis for these rules, just buy them. however, what you're doing in

this instance is up on what we call common carriage regulations do not common carriers. that provided a roadmap to the fcc to try for the third time, and this time successfully picked the fcc took what the d.c. circuit said in verizon v. fcc to hard. after exploring different options for a path forward with different legal bases for the rules, the fcc ultimately decided to properly reclassify broadband internet access service as a title ii service which provided the legal groundwork for several portions of the fcc's rules are there were three bright line rules, prohibition against blocking, paid prohibitiprohibiti on at olympic they enacted what we call the agenda conduct rule which gives the fcc the ability to look at new harmed as they evolve in the internet ethos system and evaluate them on a

case-by-case basis you a series of six prescribed factors. >> i mean, but the real question that most people disagreed upon here, maybe you can jump in, israeli this whole reclassification, the sec said, you know, basically the courts from what i understood said these rules are okay, we think you have reason to do it. we don't like the authority you used in crafting the 2010 rules. go back, if it's going to be common carrier you've got to classify that topic as common carrier or you can't apply this kind of rules. really, the fight we're having it is about this reclassification. >> that's accurate. i would say, you've been covering this issue for a decade. i was in two moves internet law class back in 2002 when he coined the term. he was writing that paper.

this up in brewing for a long time. to briefly set the stage, the sec issued a policy statement on open internet policy statement back in 2005, and then it was after that that the republican chairman at the time started to use that in enforcement actions to inform merger conditions but there were no binding rules. sera other do this. that was the first attempt to regulate without former regulations. >> that was the comcast -- >> yes. i'm glad you mentioned that because to me that was the fork in the road. any policy debates you can look back and find some point where there was a better way to resolve the issues. emmy that was the first one. what should have happened in that case, so comcast was accused of throttling bittorrent traffic on its network because they toured with binges overwhelmingly for peer-to-peer

filesharing and that was primarily being used for infringing copyrights. what could happen with the federal trade commission could have brought very straightforward action against comcast for deceiving its customers and could've resolved the matter as far as i can tell the only reason that didn't happen is because the republican chairman of the agency at the time decided that he'd like president bush was going to be the decider and his linda gustitus and the fcc is going to do it. we went down one fork in the road of having a federal syndications commission do everything with unclear authority. in fact, no regulations at all. instead of having the federal trade commission what it only does which is protect consumers from deception from unfair practices and anticompetitive behavior. if we'd gone down the other wrote i think we could have addressed the concerns others have raised. >> that was the first slap on the wrist if the democrats coming to control.

obama's sort of, there were many issues he ran on but my recollection this is one of the issues he said yes, i believe in strong net neutrality, he didn't use the word strong. i believe in net neutrality. they crafted these rules in 2010 and then verizon suit which entered the are a lot of people who are really bad at verizon right now. that's how we got here. >> i just want to emphasize the recent verizon sued was because, it was not the regulations themselves to affect verizon made clear it was not challenging the transparency rule and the now blocking rule. it had a policy difference on the margins about what throttling them. its primary content was about a 40, the same thing we're talk about today and it was that kind ended up as sarah mentioned, it ended up being the case that the court in that case said the sec could do anything it wanted over

any form of communications under section 706 of the 1996 telecom act as long as they came up with some story about why that would promote broadband. that was the first sweeping claim of authority. as you said when the courts decided that case, the verizon decision came down, the agency could use that form of authority to issue new net neutrality rules. instead he used that authority plus referring to title ii, the provision of the 1934 act that was used to regulate the old ma bell telephone monopoly. >> there's a little more to destroy the net. the other thing was the court said you could not enact anti-blocking rules. you could not enact the anti-throttling rules without reclassify. it wasn't the case the condition of the opportunity, send the reenact the rules they want to. they had to reclassify. >> this is really important.

much of what you said is accurate, but the part -- that's a lawyer's perspective. >> isn't that what the courts are deciding how? >> in part. the point you keep giving us to is, was this necessary? to the fcc have to invoke title ii or good as kevin argued the fcc simply use section 706. kevin is correct, what the court said is if what you do go so far as to about two common carriage you cannot do it under section 706. >> but anything beyond a multifactor test eventually. common carriage would be any bright line. >> let me break this down for our viewers. remember there were three roles in 2010. the transparency will was not being challenged by verizon. the disincentive of the basis on which that rule could appeal to the issues were, but now blocking rule and the throttling rule.

of the now blocking rule, this is where kevin slightly belied the detail of what the court actually said was the sec had not adequately briefed by the court could have upheld a now blocking rule under section 706. i say this because i think it's clear if you read the decision that the court inelasticity was essentially inviting the fcc to try to get under 706. hinting the blocking rule would've been upheld. the issue was the fcc could litigate the case well and there wasn't anything case that happened between the time the briefs were filed at the time the court decided the case that really ended up being the thing of which everything was decided. the fcc simply failed to ask to file the briefs of the weight of their argument. >> one quick point and then i will move us on. >> i don't think we've told the full story yet on verizon. critically with the fcc did in

the 20th order was really, really different than what it done with a 2015 order. with respect to pay priority, which is what the judge did was whole ball of wax. and 2010 the fcc decided to treat pay priority under case-by-case regime. we are going to call them as we see them. but they created a presumption that any such deal would be in violation of its rules. in contrast in the 2015 order the fcc embraced a blanket ban on paid priorities are this is an important distinction. with due respect, what sarah said about the court offered a blueprint. she mischaracterized it. the blueprint they offered and, in fact, that you used the word blueprint. he said we will follow the blueprint of the court and follow section 76 path under the decision. that is, to treat pay priority under case-by-case regime and flipped a presumption around. >> the court in this case, i know you want to get on but taking us back to the context of what we are and where we're at

in the process, the court has ruled and acknowledgment of the petitions that have been filed, the majority in this case agreed that the judge also decided this case, whether amateur in this case alongside the judge, they acknowledged that the fcc had done what the verizon v. fcc decision have laid out and were proper in the order that they put forward and the way they enacted the rule. >> the crux of it though, i just want to stop, the crux of it is there's a lot of disagreement about how the fcc interpreted the verizon decision in terms of how they should go forward. i think the fcc clearly interpreted the way sarah and kevin are talking about here, that they felt that they had to go through with title ii,

whereas i think the other side feels that though still some authority under this other sections of the communications act. we have so much to cover that if you want to keep arguing this input because everybody keeps saying 706, title ii. it's like what the heck are they talking about? >> could i quickly add another point? >> all right, okay. >> bad news for everyone. moving forward, this is what the courts are going to care about. the courts are going to get about, we have the d.c. circuit panel opinion. there are a bunch of petitions have been filed asking the entire d.c. circuit to review that any. no matter what happens you think of the petitions to review what the d.c. circuit's opinion. the question has nothing to do with what the fcc did. it has to do what the panel of the d.c. circuit did. whether or not they sufficiently reviewed the fcc's action.

we have another layer on top of this. the focus has been, did what the fcc do, it was the fcc did, did they do it right? there's a question to the court. >> let's talk about who is on what side. kevin, i mean, you've got one side that our isps, you know, comcast, at&t, verizon. all those guys. who's on the other side? who is supporting this order? >> there is diversity on both sides. the public interest groups on both sides. there are i think on balance mortgage providers, netflix for example, humble or, kickstarter are among the folks supporting the fcc's rule. because they do net neutrality as essential to their being able to reach their customers. with her services. been on the other side are the russians and other group on our

side are kind of the backbone providers and then the other side there's the telecommunications companies, principally. >> okay. what would -- >> i just want to thank you for very graciously acknowledging that there are people on both sides. i guess the first time i heard anybody on the other side acknowledge that so i really sincerely appreciate that. i just want to emphasize that again, for us, this is not about net neutrality. it's about the fcc's underlying claims of legal authority. the reason that our silicon valley onto printers and investors have gotten involved, people who are pioneers like jeff pulver who in 2004 got the fcc after years of lobbying to draw a clear line between the old title ii regulation and the internet so that his services,

voip, so those would be protected from title ii. the reason they're getting involved in this case is the word the fcc has erased that line and that whatever the agencies do not for one policy and abuse for other ends in the future. >> okay. let's talk about what does this mean, what does it mean for the average consumer. why does anybody care? i have and that pressure all the time when i'm writing stories. what does it mean for the consumer? >> the sec's order, it was a star in several respects an important for consumers in several respects. for the first time if they see applied its rules, extend its rules fully to include mobile broadband. this is an issue but organization worked extensively on which fcc. when you're on your mobile device, many of you are i see in this room, hopefully tweedy nice

things, presumably some of you are on the wi-fi network in this room. some of you are on a 4g or 3g network, cellular network. no matter which network you are protected, you are forcing protections the fcc has historically extended to fixed and now fully extended to mobile. if you were to walk out of the building after being on the wireless, you would simply not be subject to the open internet rules by virtue of just being on a different type of network. that was important. this also means, i think it was berin who sorted noted there were no actual harm's, i'm paraphrasing, but the throttling is a longer away. we suggest that's not true at all, that as a result of his dispute between interconnection, interconnecting parties, their extensive harm for millions of americans got the country for a period of --

>> by that you mean like a netflix interconnecting? to be clear, that isn't sort of the thrust of the majority of this order, right? i mean, that is to examine on a case-by-case basis spewing they did bring connection -- >> for the first time the fcc us would've the authority, which we are still continuing to do research to assess whether the segregation for certain consumer is still ongoing. but we are hopeful the assertion of authority will have a chilling effect on the types of egregious behavior we saw. >> this is part of the challenge in one of the petitions i read, that the chairman announced around the time of the notice of proposed rulemaking that any connection was off the table. one of the challenges is the parties were not given proper notice, but to answer your last question, well, i like it.

to answer your question, how are consumers going to feel, i wanted to bring it back to judge wiggins dissent. in it he was very upset without fcc ignored economics generally, but in particular failed to cite a single article on the economics of two-sided markets. you would think that would be critical to understanding how isps interact with content on one side and with the end user on the other. no citation to had they bothered to find this principle called the seesaw principle. any contributions that an isp could get off of the content providers would put downward pricing pressure on the other side of the market. that is, consumers would face lower prices to the extent the isp could raise someone off the backs of the content providers. that is not going to happen if this rule stands. as i said, paige porter arrangements have been banned. number two, interconnection

agreements are now subject to what are called a just and reasonable standards which effectively means isps can't charge anything they had to charge based on incremental costs but it's turning the traffic which is effectively zero. if there's any doubt to what chairman wheeler wants to i suggest people go to the charter order in which they explicitly set interconnection would be set at zero. what we have from consumer perspective is a big content behemoth, talking a netflix and youtube, will never have to make a contribution to the obit of infrastructure, the isp. the question is, is zero from economic perspective, you will not find a single economist, is as you at the right price a content provider should have to contribute to the overhead? >> two quick points in response. i think the millions of americans who experience systematic and severe degradation for a period of only nine months would be happy that

the fcc has asserted its authority over interconnected use and now can be a cop on the beat. i also, i want to be clear about what we are at in the proceedings, and mackey may be getting to the downward in which case i would be very brief at this point, but we are at a point of well settled law with the exception of narrow and extraordinary path forward for a reversal of this decision. as much as a knife might want to quibble about the economics for the lack thereof in the order, the court has upheld and i want to be very good for anyone watching that we are in a period of time where the court has made the next steps are for specific and cover a certain procedure path forward speed and let me bring this down not because i feel like we are talking way into the weeds. i think we need to understand

what this means. from what i understand, net neutrality has met that my isp can't monkey with my traffic. it can't block where i'm going. it can't limit my access to netflix or some other site, right? on the other side i think what you're saying is, but we are leaving out, because there is no paid priority, the isp can't make my getaway and the lower rates for consumers. we've got zero rating. that's happening. how is that not a violation of net neutrality? it seems like the industry is able to move forward with some sort of new business model. and by the way, i might mention that the isps i've spoken to, i mean, nobody get paid priority because nobody by thanks that there's any money in it.

i don't know if their really is a market for netflix to be paying. so whatever, but go ahead spent a couple of things and i will try and keep this both brief and at an appropriate level. first on the zero rating question. this is an active discussion. a lot of folks thinks it' it's a violation of net income of principles to a lot of folks think it is. some folks point to it as an example of why the principles are problematic. >> but it was explicitly in the order, said that the fcc would decide on a case-by-case basis. so allowing the wireless companies to have some freedom, at least a little bit, to explore different business models. >> right, the longest one dimension. this is really in a sense my court axe to grind on this issue. as a nine was think about this literature on two-sided markets. basically there was an entire economic literature in the 2000.

it developed to study the effects of net neutrality. the results of that literature showed he could be good, it could be that. but to be harmful or beneficial to consumers. it depends on a lot of things. i submitted comments to the fcc that it is a lot that this evidence. when the order came out saying this is what we're doing, i said okay, i want to see the explanation for this. they couldn't come up with an explanation and i want to know what was. there wasn't anything. they just ignored the entire body economic literature that was developed to answer this one question. that's not cool. to sarah's point, sir is exactly right. this is by and large now a settled point of law with respect to the fcc. it frankly is unlikely that the d.c. circuit will grant review and it is unlikely court will get to the supreme court or even if as i think -- >> we'll get to that.

>> but the point i want to make is yes with respect to the fcc, this question is settled. the broader question that central to the d.c. circuit decided this case is very active at the supreme court. >> let's move on. what exactly did the court decide? >> before we move on from this comp i'm not sure people are clear what we are talking about. so just really briefly, so the traditional net neutrality concerns i already mentioned them, transparency, how you run your network, blocking content and throttling traffic. interconnection is a different thing. it's about of the comcast network interfaces with say netflix. i think what sarah is talking about when she talks but this nine-month period was that there were allegations that netflix made that it was being, its traffic was being degraded because broadband provider will hold it hostage. that was used as an argument for the fcc to add on another rule

to the new open internet order regarding interconnection. i just want to say -- >> it was a rule for the first time the fcc would look at these disputes on a case-by-case basis. they did not apply the rule to those situations. >> but the important thing to note is there is a very active debate about what actually happened to you have heard one side of a from there. i would encourage those watching to read dan rayburn, independent stream media expert who pointed out what they really doing was they were playing hardball with broadband providers because, in fact, what most people assume it is broadband providers who have the market power, it turns out companies like netflix really have market power because they have content and if things like house of cards that they can withhold. they withheld out from time warner cable customers in one

dispute under to try to exert leverage. the point is that ended up, netflix ended up getting a better deal through all of this. instead of having to pay third party providers who briefly carried traffic, they got a better deal from comcast. they saved money but they were not happy with it. they try to go to the fcc and get that same thing for free which essentially means that the broadband provider has to bear the cost which means it gets passed on to all of the broadband provider subscribers which means not netflix users into paying for a cost of netflix users. this is the kind of thing, to put this in real world terms, that's what they're talking about. the fcc is being used as a polling in these battles between companies that are just trying to save a buck. it's too on both sides. >> i want to be the about what our research showed, which was regardless of who's at fault in the dispute between, not just netflix and isps becaus it was o

cnet providers that were getting content of different edge companies are content companies. that was why there were various providers who engaging in the litigation on behalf of the fcc. like what the research found was, i haven't heard anyone dispute the actual findings of the research based on our management that project, but said okay, and that is regardless of who's at fault, for nine months customers throughout the united states access content that was not just netflix that it was anything that was latency or bandwidth sensitive. they were getting less than given fcc's old definition of broadband. for us it's very important there is now a cop on the beat regardless of who's at fault in any individual dispute to assess the problem and to ensure consumers are getting the broadband they paid for speed in which the federal trade commission could have done. it is a cop on the beat and has the authority to do that.

>> let's move on and talk about what was the decision. how did this come down? we had the main arguments was about this title t ii issue. does the fcc have the authority to reclassify traffic to enable this rule that even exists? how did that come down? >> so in a 2-1 decision, majority of the panel said the reclassification was proper. the principal thing he said was we haven't talked about, there's a statute year that says a telecommunication service has to be triggered as a title ii common carriage. initial thank him to look at the language and he said look, it's not absolutely clear. it's ambiguous. the agency gets to choose between permissible interpretations of the language,

so long as they do so reasonably. at the beginning of the decisions, look, it's not our job to second-guess the agency about what the best policy. it's just reasonableness. >> the decision upheld this should apply to wireless and upheld this interconnection. .. you want to start with what is the process? how about the boring part?

i guess i'm talking. the court initial opinion was decided by three judges. hey, entire dc circuit, that panel of three judges, they made a mistake for some reason. >> how many people are on the -- how many justices do we have on this? >> 11 active judges and in order to get the entire court to review the panel's decision you have to have a majority of the active judges. there are also a number of senior judges but they don't get to vote on whether or not to hear the unbonk review.

we should say it's hardly ever granted. it's unusual that it will granted here because there's cool administrative law data about some detailed issues in this case that shows that there are questions that the judges need to get into that but could piqued judges' interests. >> everybody keeps talking about it. it's got some really smart stuff in it. does that help the chance that is the full circuit would take it? >> a strong decent can help and cues up a number of issues. it's important to know that the author of the decent, judge williams, he's the judge and he doesn't get to vote on whether

or not the court is going to take the vote on review. >> so the dc certify suit has been called the second most important court in the country because it's the administrative law court. it handles agencies like this and one of the things that the obama administration will be remembered for in a century is that this court shifted from right to left. this was reagan appointees, people who were in administrative law. the president got to make four appointments to the court and several of the republican judges went to senior status. so the balance of the court has shifted. there are 11 judges in active justice, one of them merrick garland, a waiting nomination, he's in nomination hearings. so essentially you have ten active judges and we would need a majority of those to -- to vote to rehear. >> you have two that would probably vote for it.

>> would vote against rehearing. >> right, against rehearing. >> i'm trying to lay out that there are seven democratic appointee on active status, four republicans on active status. that gives you approximation how it might work itself out and might be a reasonable one in this case. but i do want to flag as we start talking about the bigger issues and the supreme court taking this case and the real issue and gus has hinted, everything in america m law mostly revolves around the the chevron case. >> you should cut us off when we say chevron. >> i'm really interested. >> it's important. for decades american courts foundered on how to deal with

questions of unclear laws. all laws are unclear. there's no way to write a statute that the not going to have ambiguity. look, we are not going to deal with this. we are going to look at the statute, ask if it's ambiguous, if it is, then we are going to defer to the agency on an ambiguous interpretation and the idea that would provide democratic institutions to resolve matters and congress didn't like it, congress could rewrite the statute. what i want to flag here is chevron is interested because there's not a partisan split on this, the judges and justices, i will let kevin speak on this, sometimes the democrats like justice briar, maybe we shouldn't be so quick to jump into chevron, maybe before we goat to the two-step process, is

it ambiguous, is it reasonable, maybe we should step zero and ask if this is the kind of thing that's appropriate for us to assume that congress would have intended for the agency to resolve any ambiguity. to me this court case really revolves around that question and that's one that if it makes its way to the supreme court and i think it will, i think you'll see an interesting split. it's not going to be specific to the fcc, it's going to be about where is it appropriate to grant that kind of difference and the court in recent years has come out and said sometimes it's not when it's a issue of major economic importance, it's not or where we think that the agency itself has done something to indicate that even the agency doesn't think it's what congress intended. in those cases the court should look at the statute, make its own decision, sometimes the government wins. the obamacare was a case like

this. we are not going to apply chevron but upheld the statutes in meaning as he understood it, conservatives were angry at him but he was doing something that was a victory in those worried about the administrative state. >> let's say the pool circuit does not take this case, when are we not going to know that? is there a deadline that they have to decide if they're going to take it or not? >> i'm sure we are going say the same thing. >> okay. >> if the answer is no, it's going to be a relative quick decision. if there are decents could take a long as it could take to get this decision, it could be as george william's decent.

when the supreme court looks at this they understand it's so important. >> right. okay, so let's say that they do take it, we go through the whole rehearing again. everything -- we have briefs resubmitted, that kind of thing, is that how it works, kevin? >> in all likelihood would require new briefs and new argument and probably take just about as long as it did this time. >> all right, okay. let's say they don't hear it. they don't take the case, then the petitioners will like i will go to the supreme court, is that what i'm hearing? >> some of them have said that they will. >> okay. >> wouldn't be surprising if they -- [laughter] >> i think the person to my left -- >> it's right across the street from us but i never go over. the cafeteria is not very good. i wouldn't recommend it. >> what are the chances that the supremes would take this?

>> i will just start talking and someone can interrupt me to say something more interesting. that said, this is one of four cases in circuit court of appeals that get to some really interesting questions about difference and in particular how thoroughly courts need to review before granting difference. i think it's the most compelling of the four cases an a lot of talk that the court is interested in clarifying some of the issues. i think there's a much better chance then ordinary, that this case will be of interest to the justices and if it's of interest to the justices it's much more likely -- so if you were in vegas, what are your ads? >> i don't go to vegas. i'm not there.

>> i think there's disagreement about the odds as well. >> you know, take what i'm about to say with a grain of salt because i'm going to be arguing against, but the supreme court doesn't case cases because they're interesting. it takes about three quarters of the case, it could be statute, constitution, administrative law principle. i haven't seen any circuit conflict alleged of any relevance. the petitioners have incentive to identify because there's also a reason to grant rehearing and they didn't. but the supreme court does decide cases because they are important. in those context, what the petitioner needs to do is important and likely wrongly decided and that's going to be a tough road ahead. in part because it's true that there's some debate about the margins of some of the

administrative law principles, i think it's a terrible case for the court to take up for those who want to change the law, this is at the core of what the justices including justice thomas who, i think, the petitioners would have to count on being on their sign. there's a technical error. the supreme court has already heard this issue before and they said the statute is ambiguous. they already heard this issue. because it's a technical error, we will defer to the agency's resolution. i think any court that wants to change chevron is much more like where it's not that difficult. the agency is doing what a court can do itself within expertise. >> if you're a betting man, what are your odds? >> the ordinary odds, setting

aside the pro se petitions -- >> i would say 5%. to push back a little bit, when i say this case presents issues that the justices will find interesting, i mean they will find to present compelling important issues particularly relating to questions so three points i want to make, first, i believe that both the fcc and dc circuit's interpretation of the brand x was wrong and i believe the three justices on the court are likely to say, no, that's not what we meant, what are you guys thinking and they'll view this as an opportunity to correct that understanding. there is also a series of cases over the last roughly decade dealing with how do agencies

review -- how do courts review agency action when the agency is changing its prior policy and there's some really cool evidence that shows if courts -- and i should give a shout-out to the author of this work, chris walker, professor at ohio university. >> everyone is going to rush and google that. >> this work shows that in cases where an agency is changing its prior policy, if courts grant difference, they've more likely to find agency's decision problematic. and that could be fascinating to the courts. >> take us out of, for example, likelihood. i think it's important for those in the room and those watching to remember that the -- the threshold, there's two thresholds that have to be met

here, once -- one you have to convince dc circuit but we are if we are talking about the supreme court, you to convince the supreme court to actually hear your case which is a very rare occurrence. >> 15%, kevin saying 5%. how about you? >> i won't -- it's unlikely. highly unlikely that it gets heard. if it gets heard, it still has to be decided favorably for the petitioners in order for my other panelists to the left of me to get the outcome that they want. >> we are talking about -- >> you know, timingwise, when would we expect the court if they were going to take it to take it? would it happen like this year? >> 2024. >> two courts we are talking about. the first thing is dc circuit

rehearing and that could take a year. if i have to pick a percentage number the odds are 100% that we get decents. if the decision is not to rehear the case, maybe 100% that we get at least one strong decent, if not several. further elaborating upon our concerns. that means -- >> the one thing i'm thinking, right now we have a supreme court where we have eight justices. it's unlikely if this case were to get to the supreme court if it were to be taken by the supreme court that we would have nine justices by then, hopefully? >> welshing it depends -- well, it depends. just in general unlikely and maybe the rehearing doesn't happen because these are issues at the level of complexity where the court might say, these are things that the supreme court needs to resolve. for whatever reason let's say they deny rehearing but there

are decents written. the whole thing may not be resolved until the next administration and it could be well be by the time the issue goes to the supreme court, 45 days beyond when the dc circuit announces it will grant rehearing. no, we have 45 days in which to file the petitions in the supreme court. >> 90. >> additional 90? it's already been 45. i'm not an appellate lawyer. so another 90 days from then, right, so three months and then the supreme court doesn't have a particular shot clock, i don't know what happens. it seems like a black box to me and the point is that you could very well see a ninth justice put on the court by this time if someone is elected who wants to make the fcc great again, the whole thing could be mooted because the fcc might give up or

not. it's hard to predict but the point is that this is actually likely to take a long time to be resolved and when it does get up to the court, again, i think we are going to have decents that will make this seem like a much more important case than it normally would so i think the odds are a lot higher than 15% but i don't know where to put them. >> okay. let's just assume that maybe it doesn't get to the supreme court. what are the -- what happens then, right? i mean, we've got a presidential election coming up. we've got congress -- before people were saying they were going to do something. do we -- is this -- is this issue over, i lose my job, i have to find a different issue to be an expert on? i don't really want to have to do that. no, i'm just kidding. [laughter] >> if you can judge by the language in the republican platform, i think it's pretty

clear they even used the phrase common carrier and that suggests to a republican president would likely unmantle or dismantle the common carrier regime. so while it's true that so long as we stay within a democratic president and we don't get this reheard by the supreme court, i think it's there. that's very different from lasting protection. it's going to be vulnerable. the neutrality protections are going to be vulnerable to every national election and so that's why i hope we will get a chance to talk a bit on this panel about the prospect of giving the fcc and proponents of neutrality lasting protection through legislative compromise. >> i guess i don't see the fcc as so quick to reverse itself on something that took a decade to finally land on. >> reversed itself in one month when president obama intervened. >> that's not true. >> it is true.

>> look at chairman wheeler's comments. they reversed within a month. >> look at the emails. >> my point unrelated to any accusations of bat intent on the fcc but this is -- this has been an issue that's considered over a decade and the fcc has to reverse itself would have to do at least as much, even if it were inclined to do so would have to do at least as much as it did to get us to this point and i think it's -- what i want to reiterate for the audience and for us here, what we saw play out over the course of 20 -- 2013, 14 and 15, the agency interprets that statute, it does so in different iterations and

sometimes those decisions are overturned by a court and sometimes they're upheld . what we have seen here a long proceeding by multiple parties engaged in very important back and forth debates and a commission that ultimately hearing all of of that input in careful consideration of all the things in front of it, issued a comprehensive order which was carefully tailored to the issue at hand and the dc circuit upheld that. i want to be very clear that we are at a point that this -- with the exception with the narrow past forward that we have debated, this is law -- >> sarah, if i'm hearing you right. would you say that -- let's say nobody takes the case. democrats are going to say, we won, that's it. we are done or do you think --

but do you think -- you're right, there are probably some republican who is support neutrality. >> with 4 million americans, i assume some were republicans. >> right. but in congress do you think that democrats in congress would not be open to -- because my thinking is that perhaps maybe the republicans in congress might want to take this issue up although it seems like they have other issues as well. >> there are a lot of important debates happening at the congressional level and i think that this one has played out and we've seen where we've landed and i think the time now is to move forward and accept the rules as the law of the land. i hope that we don't. >> okay. >> i want to say i really hope that sarah is right and the reason that i'm concerned about the entire issue is because i believe she's wrong. under the approach to revealing

agency changes of policy that the fcc has put forward and the dc circuit embraced, a new fcc could very easily reverse course and i think that we cannot have policy continue to ping-pong back and forth and back and forth. i think that the courts have to hold agencies to a higher standard than they've done so here when agencies are changing decisions and i believe that that's what the supreme court wants and i believe that that's an important reason that there's likely to get to the supreme court because the approach of the dc circuit has taken allowed agencies to very easily change policy preference. >> likelihood jumped above 50% from 15? >> when i say very likely, i'm talking compared to the 5% baseline. i'm at 300% of the baseline. >> okay. [laughter] >> i want to jump in here because this is really important. again, you may think neutrality is great, you may not care,

whatever, you should be concerned here not just about the fcc's claim legal authority under two provisions and title 2, which grant enormous power to regulate the internet but you should be concerned that number one and gus just said this, the agency in order to change its mind because back in 2002 and 2005 said that broadband was not entitled to common carrier service and here came around and said well, actually it is with no real economic analysis and this is what williams decent is primary about and can elaborate upon that. that was step one. claim of power and also we think it's really easy for us to justify changing our minds. step two was don't worry, we know you're concerned about title two, we are going to tailor title two to a modern version. it isn't going to include price controls, unband-aid lg mandate so network would have to basically allow other people to resell the service. don't worry, we are going to

edit all of that out, that power that congress gave us, we know that congress said we were suppose to analyze the competition but we think the market is competitive enough for us to forebear. you understand that it's easy for the agency to do what it wants, then you have and realize that the agency has made it easy for a future fcc to either expand title two to cover other services or to change its mind completely about title two and say, no, no, sorry, doover, we are going to go back to 2005. the fcc can change its mind there too. what you get in the end is a

complete sea-saw. all of it ends up getting decided by elections and how far the agency wants to go to one degree or another. you have no certainty about investment for infrastructure and then you start to worry about the economic that unlearned $1.4 trillion of private investment of broadband since 1996. >> do you think congress will step in then? >> absolutely. republicans have already proposed a legislative deal that would give the fcc authority, as congress passed legislation back in 2006 to do this, that would give fcc authority to address the core issues of neutrality which i think is necessary and i prefer to have fcc. the reality that because the president made this a partisan issue where he drew a line -- >> partisan issue. >> both ways.

hold on. let's remember 2006 republicans passed a update, rewrite of communication's act that gave fcc authority to enforce the internet policy statement. so they were ready to do a deal and it didn't work out, okay, in 2010 the democratic chairman to his credit and henry try today negotiate and republicans thought they were about to win the house and so they didn't want to do a deal and that was passed and republicans have offered a deal in -- >> come on. they offered a deal as the democrats were running their victory lap. [laughter] >> there are good reasons -- >> they were gutting the authority. i don't think there's a great deal for them. >> if you're a democrat, you should be terrified because it means the fcc can forebear from every part and the entire rest of the act with essentially no analysis. so in other words, there are lots of good reasons why both

reasons would have wanted this resolved with a clear statute. we resolve policy matter and give agency a standard and courts hold agency to that. it doesn't come with no collateral damage. >> the order was 400 pages long. to suggest that this was an unreason decision to avoid any analysis is just untrue. >> do we want to make apologies to tim and cite him now? >> tim brennan was one of the chief economist. >> former fcc and a democrat. >> that the fcc ignored in rule making. we talked about analysis but i'm going to stick with economic analysis. with respect to economic there

was really nothing done on this score. to an economist you have to demonstrate that not only does your policy generate benefits in excess of cost but rule out possibility that alternative like case-by-case treatment could generate even greater net benefits and there's a one-line dismissal despite economist are jumping up and down consider less restrictive, no analysis, just the word cumbersome, we think case by case would be too cumbersome. i want to pick up on one thing that baron said if that's okay on the major economic import or major economic ig níficance. he's quoting from a supreme court case king versus burwell

and baron mentioned infrastructure and we talked about the tens of billions. ii want to tell you about what's happened since, now we have data coming through which to me is quite frightening. in 2015 where we had three quarters of the year, we had for the first time since recession we had a decrease. you look at the top three only three that have reported so far but they are the biggest three. decline of $2.3 billion of compared to first six months of 2014 which is the last six month interval. i do think that this is an issue of quote, major economic significance, end quote, given

how much money is at stake. >> throttling isn't allowed. >> i think there's a lot of disagreements on those numbers. as the court recognized as fcc justified decision on multitude of factors, to ask the fcc to base their entire decision on cap x -- >> on economics. >> it does not require agencies to undergo a cost benefit analysis under the statute. >> i agree with you. mostly every other agency under the sun is obliged to respect fcc. they issued a two-pager des -- disclaiming any possibility. i think congress separate from the neutrality stuff needs to strongly consider the idea of imposing a cost-benefit standard which is no different from what

the epa is subject to, or all of the executive agencies. >> and the epa does require to respond to facts in the record and there was a great deal of economic evidence that the agency ignored miscon trued -- misconstrued or frankly misstated. >> do you think it's a neutrality wall here or are we talking about a rewrite of the act which could take a decade? anybody? >> i think we have invested more time than anybody. >> not more than me and will. >> the 1934 communication's act which applied 1887 railroad

network, congress really didn't significantly update until 1996 and when they did, they really didn't even do it with the internet clearly in mind. they were writing before home broadband was a thing. we don't have time to get into the history of all that but the point is that just about every reasonable person that was involved in telecom policy agree that the act is outdated and this is a kind of problem when an agency is trying to use the framework in a world where we don't have the silos anymore. all the things are blurred together and we do need an up date. i would love to find groups in the center, center left and so on that would come to the table and agree that there was an agency that has broad power but has to justify when it uses that power and that's the issue

raised and when the chief economists raised. if we are going to serve consumers, we have to be careful about doing it. we have to weigh cost and benefits, that was the point of judge williams. >> baron, are you saying that this should be dealt with in a new rewrite of the telecom act? >> ideally, yes. there's a spectrum of options where you could do a narrow deal that resolve the issues of net neutrality and section 706 hasn't been talked about much today but would regulate any company, google, facebook and yahoo, all those companies regulated by fcc which is essentially a blank tech. if i'm the tech world, i'm worried about that. and the other people like al, we don't agree in a lot of things but there are people who see

ways to sweeten the pie to do a deal. >> to make this concrete, the compromise that i have in mind is to give the fcc the authority to do precisely what it wanted to do in the 2010 order but under a new source of authority. that is they tried it under 706 and they couldn't and so -- if you look those rules and can live with those rules, which are a compromise. if you ask an economist, is it a good to do case by case with the presumption against, they say no. the presumption should be in favor. but i think that you can convince enough people in the middle of the aisle to go along with what the 2010 order did and just grant it in a new source of authority. that would be a starting point. you would have to take the sweeteners to get democrats to go along. >> we are happy with the order. >> well, let her speak. that was my question to sarah.

baron, everybody should be worried, this is so scary, this could totally flip. you guys don't seem worried. >> contrary we have not seen the disastrous consequences of this decision and, in fact, we have seen -- i'm hoping that we will see a chilling effect on any harmful behavior that we had seen leading up to the open internet order and, you know, as the commission pointed out, there are a lot of actors involved in the internet ecosystem that are not just the ifp's, applications online, there are users who we haven't really talked enough about. and so, you know, this is -- this is a bigger picture than any sort of -- whatever sort of

economic analysis absent, this is well reasoned comprehensive and really quite spotful on the part of the fcc, i think that we are seeing as, you know, looking for the fires that come as a result of this -- this terrible order as my colleagues on the table would describe, we haven't seen that. we see an effective regulatory regime that's been upheld by the court and has been settled. >> no one is yelling fire and no one is predicting -- >> i would say the petitions for rehearing -- >> i'm talking about consequences of the network. the question is if we could get same protections, who cares how they are granted, just so the fcc has authority to protect consumers. if we can do the same thing but without any of the downside, you

might not think it's significant -- >> i just want to step in, though, because the argument on the other side was the deal put on the table -- >> i'm not defending that. >> because that was not give the same authority to the fcc. okay. new deal. i'm not speaking for sarah but i think he said we already won. [inaudible] >> maybe. democrats in this room need to ask themselves what they're going to do when trump really takes the fcc and does with it what he wants to do, seriously, right in and i've layed out for you that the fcc has made super easy for them to change their mind to expand regulation if they want to, to lower the regulatory burden opinion they want to, to unforebear, the fcc can do essentially what it wants. if you give that power to a person who doesn't have any particular principles, right, is going to go wherever the winds

lead him, you're going to be terrified by the result. to say, well, nothing bad has happened yet, of course, this particular fcc has every incentive not to use the other powers that it has claimed. they want to make sure everybody believes the lie that it has presented. it's been modernized, tailored, don't worry, we will just wait. >> i will make one observation on somebody who has not invested in this. [laughter] >> a lot of the debate has been about fears and what will happen in the future we don't really care about particular issues, what we care is about the power. and then the neutrality folks have identified some problems but are mostly concerned with -- we don't have no interest in doing that. my only point is there's a lot of time left to see if any of the bad things happen and people will be able to take action when that does. of course, we will able to

review any new rule that the agency set forth and congress can take action and the people can elect presidents and elected representatives who will respond to this. i don't think it's the worst thing in the world that elections have consequences including for administrative agencies. >> i want to get to some questions here because we are running out of time n. the audience here, do we have anybody here who has a burning question. you came all the way over here and you think i have to ask this. nobody? i've been checking and i'm getting a lot of comments but no so many questions here at all. really, nobody here in the room has a question? we've got one taker. >> i paid him to ask a question but i don't know what it's going to be. >> all right. cross your fingers. >> so there's obviously a lot of legal debate here and a consumer at home who uses the internet might be asking what does it mean for me and in particular i

think about online video games which are often and video and once you kind of watch it, you have interruptions and then you have the cash video, why should someone who plays online care about this debate? >> okay. who wants to answer. >> that was the beautiful evan. he's allude to go one -- alluding to one of our court concerns. i keep saying that most of this policy is not actually that controversial but there are on the margins, setting aside the issue of netflix, that's a lot of what apparently drove the fcc, drove the president apart from losing the election, midterm election to get involved here was the idea that they need ed to band prioritization and

people would be worse off. what we pointed out is that, in fact, there are lots of services out there where you as a consumer are much better off if you can pay for that to be part of the package you're getting for it to be given priority because most of what you do, you don't care about the packets getting on time. you are streaming video, you can have it buffered. what our petitioners are concerned are live services like void. if you wanted to deliver high-quality void, you're in a much better position. there's a market for that. fcc with no economic analysis, this is house point but not talk talking about two sides at all, no, we are going to prevent that at all from being a thing that you can pay for, it doesn't matter if users want it. that's crazy.

>> first i hear that no one wants to do prioritization and we shouldn't be worried because nobody is going to do that anyway and now paid prioritization would be the best thing. but i want to go back to the inner connection point and if you care about sensitive applications, you should be very worried about what happens when carriers don't play nice with each other at the point of traffic handoff and having the fcc able to step in and evaluate those disputes as they come up or evaluate data, consumer user data that's collected measuring network health to identify if there are problems where the fcc could step in. >> you're creating a false dichotomy. the question is should the price always be zero, should netflix

and youtube always pay zero for connection. i suggest you go back and look and they suggested the rates reasonable under title 2 which translates into english as effectively zero. >> this is one of the issues that someone will have plenty opportunity to challenge if and when they care about this. this is one of the issues that will be addressed by the courts should somebody actually want to bring connection dispute to the commission. all the commission has said that it's opened to hear them. another example, i think, of why so much of what people are complaining about is really not really right to be revolved by the supreme court. >> i have a question, though, because i think one of the other arguments here on the other side is if we have these rules and you sort of alluded to this that you're seeing a decline in cap x

spending, i think the other argument is that ifp's would not -- would not introduce new kinds of business models, we haven't seen that. again, we are not really seeing this bad effect that a lot of companies said that they -- >> maggie, i think what we want to see, my organization and many allies is to compete and our worried has been that as you allow these new models to happen on the sort of other side of -- of the market, then that disincentiveses the carriers from up grating -- upgrading networks. >> i don't see how -- >> one of the things in the background here that's really

informing, that informs a lot of the debate over this issue is type one versus type two errors, problems that you see and problems that you don't see. historically the model has been companies go out and come up with new ideas and put them in the marketplace and if they're problematic you'll get in trouble, the concern on the baron side of the equation here is now companies need to get permission from the fcc or concerned that the fcc is going to be policing their business models and sarah is really demonstrated the point here by saying, well, if we allow companies to develop things that monetize the other side of the markets they're going to have less incentive to compete. actually they have more incentive to compete. one of the reasons that we haven't seen much interest in developing paid prioritization-type business models is because everybody is concerned that the fcc is going to come down like a hammer. >> in all fairness the rules have been in place for a year.

there are many years that nobody -- [laughter] >> with the presumption against. they took that to mean that we basically can't do that. >> before then the concern about regulation and the telecom carriers have known, hey, if we do anything involved prioritization and i apologize for using oti here but do anything involving paid prioritization, they are going to use as political to regulate us. they are not going to give us the opportunity to compete so we need to take this off the table. >> the fcc did in 2015 order was they identified three egregious practices, blocking, throttling and paid prioritization, those are the only three bright line rules. they did say they would evaluate with specific criteria but i am just not seeing how -- the --

the disastrous consequences of the narrow -- >> you couldn't find a single economist who would say that a voluntary arrangement that makes two parties better off and make consumers better off is egregious. >> of course, we are not going to see the problems. and there could be good here. >> i just want to emphasize, a lot of the push for neutrality has been in the name of permissionless innovation which is another short catch phrase that everybody believes in. it's hard to argue against any of the abstract principle. think about permissionless innovation. we don't want to broadband provider to say no to my service. fine, if that's a concern, we can address that concern. there's ways to do that. the example of ever happening

are incredibly few far between and were either dealt with by the company itself very quickly or authority. hold on, let me just finish, sarah. my point is that's -- that's one form of permissionless innovation, what gus is saying, we have now turned this on its head because when we talk about the fcc having overview of things but as al noted setting presumption against them, what we are really talking about is getting rid of permissionless innovation, you as innovator, avoid services that are real-time and extremely high quality, one of our interveners wants to do unbundling and break it apart, pay $40 a month or whatever, you decide what you want on wireless plan and that starts to look like paid

prioritization. you have to go to the fcc and say can i do this. that to me -- >> i think what the fcc was trying to guard against and i think what made consumers look at this and worry about is, you know, for broadband in particular most people, a lot of people have one choice. they have one broadband provider and they are afraid that that provider is going to dictate based on paid priority which services they can get and which they don't get. and so do we get to a point where our broadband, our internet experience starts to look like a cable tv experience. >> to response to baron, i would point to the 150 companies who send a letter to the fcc very,

very early on in the fcc's proceeding which articulated why paid prioritization would be so harmful for them. and so, you know, i'm appreciative of the fact that on your side of the interveners are some that are concerns about the rules, there are hundreds of companies that were concerned and other organizations and investors that were concerned about what would happen in the absence of the rules. >> i will quick i will say comments why paid prioritization was problematic and fcc mischaracterized comments to justify in the order. >> okay, wait, but we are going to have to -- i'm going to cut you guys off because we are getting very close. i want to give everybody an opportunity to a final statement here because we are about five minutes out from ending this and so what wants to go first.

so when you have a debate like this when you have people saying something, even if it's overwhelming people, there could be beneficial uses, you don't ban it, what you do is write a rule that's flexible enough to allow the agency to go after harmful practices but allow good things to happen. that didn't happen here on paid prioritization. the agency because it ignored economics wrote a brightline rule that was not frankly driven by substance, it was driven by politics. this is what i would like to say in closing, you can say that there was a deep amount of analysis behind this but the fact is the agency was heading towards a more moderate position, the democrats lost the midterm elections and the president decided that he needed to have a series, a portfolio of things to point to reassert himself and that's why he came in and gave speech and asked for title 2. and to give you how lit it will white house -- little the white

house cared, they didn't reference title 2. nobody cared about the details, purely driven by politics. the fcc had to completely change its course without issuing new order, opening the door in countless ways for other concerns in the future to arise by virtue of what they did, by have you ever chie of -- have you virtue and this is not a stable foundation for regulating the internet. it will have unintended consequences. if the court does not stop it, congress has to. >> over the last 40 minutes or so of the discussion we have gotten in the weeds of the substance, good policy or not, i want to take us back to the case at hand and i just want to

remind us all that the appeal's process moving forward is not about the substance of is net neutrality good or bad policy, it's about the process by which courts review agency action, they are really important questions here. there's a lot of interesting stuff going on recently at the supreme court, that's what will get this to the supreme court if it does get to the supreme court so i will close by saying, will nobody think of the courts. [laughter] >> i want to make it clear that at least from my vantage i'm not arguing against net neutrality. i think that protections need to be in place. the fcc needs to have the authority to regulate among other things to make sure they're not done in a discriminatory way. but the result that we wound up here is an absolute mess. it throw it is baby out with the

bath water. it treats zero rating, former preferencing under case by case. so the whole thing is a hodgepodge, it makes no sense and the best solution i think as baron put it have congress resolve the issue once and for all so that we are not here wondering if they're going to take net neutrality. >> i want to just recontextualize this, the reality is that we are most likely at the end of the litigation pathway here and that these rules for better or for worse, whether you like them or you don't, will remain the law of the land and so i want to just be very reasonable what the

next steps are. there are two options from a legal standpoint. one is to go -- one is rehearing on bonk and the other the supreme court and as readies cussed both have very unlikely. >> i will just say i understand in -- and this discussion demonstrates that policy issues are complicated, the legal question isn't, i don't think. it involves straightforward application of settled administrative law principles, judges are not economist and much well suit today decide what policies are good or bad for the internet than are the folks at an expert agency like the fcc no matter how much you may disagree with them and as a consequence, i think, if somebody doesn't like the rules that have been issued here they are much better off going to congress or winning an election than trying to get this overturned by the courts. >> okay. all right. i just want to thank all of the

panelists here and the audience online, on tv and right here in the room, to thank you all. [applause] [inaudible conversations] >> next you'll hear about hepatitis c and prevention efforts from researchers and policy officials. at 1:20 p.m. the air force association hosts a talk about nuclear deterrence and at 2:10 p.m. rally to disarm hate. today robert gates, discusses

the book a passion for leadership, lessons on change and reform of 50 years of public service. the program airs at 7:00 p.m. eastern time. book tv prime time begins at 8:00 p.m. with u.s. history through the decades, first 1960, radicals, hippies and the year that america lost its mind and found its soul. howard, 67 shots. the end of american innocence. at 10:05 steve olson talks about his work, eruption, untold story about mount helen, all of this tonight on c-span2. on c-span tonight portions of the annual conference with app developers, venture capitalists and activists discussing

information technology. here is a preview. >> there are already over 250,000 lists on the platform so you can imagine the different directions they go in when you have all the different people trying something in the early days. asa kura is an adult film star. it was extremely interested the combination of physical stuff and emotional stuff that you go through before that. i think if you ask anyone in the room, could you write me a quick essay on what it was like on the way to disrupt, you would be like, oh, are you serious. if you could ask list the thoughts on the way here, i think it comes out easy. if you list your favorite hikes, you're actually saying about you and that comes out in the margins event -- even in the recommendation list.

>> the conference in new york city will air tonight on c-span at 8:00 p.m. eastern time. researchers and federal health policy officials talk about efforts to combat hepatitis c in the u.s., panelists discuss ways in which costs could be lowered an medication more widely available specially to poor patients. [applause] >> thanks, carl. good day everyone. i would like to echo carl's thank you to senator's support to bring us together today and spend a few moments talking about public health problem that cdc urges a critical one for the united states. the key take aways of what i will be covering over the next few moments are really itemized here. we have a large burden of people living with hepatitis, about 3 and a half million.

this is an infections that is really -- poses progressively more severe health complications the longer one is affected with mortality approaching 40%. the u.s. is experiencing increase number of hepatitis c related deaths and new infections adding to that burden that i've already spoken of. we have proven strategies and tools that when brought together with have dramatic impact on increasing morbidity, mortality and transmission but we have barriers standing in the way of people gaining access to those. that said, recognizing those opportunities there's efforts under way to put the u.s. on the path toward the elimination of hepatitis c. as i mentioned, we have about 3 and a half million people living with hepatitis c, based on our surveys of the general population, the great majority

of those, the perps born between 1945 to 1967, the so-called baby-boom generation. reason for that is many people were infected years ago before the virus was discovered in 1989 when the blood supply was not screen for the virus and other risk factors that were more common at the time, transmission within health care through unsafe healthcare practices as well as drug use injection drug use. we also don't want to lose sight of that some of the general population surveys don't include critical population that have high prevalence of hepatitis c particularly those in correctional settings and those american indians and alaskan natives u just to name two. dr. fried will go into more detail about this. hepatitis c when you contract it

typically causes few symptoms, they often do not prompt you to go seek medical attention but then sets up in the liver and gradually creates inflammation which then leads to scarring, that scarring rose more severe over time lead to go -- leading to more scarring and cirrhosis. in addition, hepatitis c causes diseases outside the liver. it increases your risk of diabetes and very kidney diseases among others. so it's life threatening virus. now, once infected, people remain infected more often than not, about 70% of people remain infected for life in the absence of treatment and so we begin to model what happens if you don't

treat -- if you don't diagnosis and care people properly, you have this wave of increasing morbidity and mortality over time leading up to about 2030 in the absence of effective diagnosis care and treatment upwards of a million people could die of hcp related complications. when we look at statistics from the health system, we show projections are coming to pass unfortunately. healthcare costs arising as you can see in one of the slides and mortality from hepatitis c is inclearing. in 2013 the number of deaths from hepatitis c required to be reported to cdc combined. so it's easily the most common cause of infectious diseases that are reported to cdc.

because of this large proportion of people who are in this baby-boomer cohort, cdc in 2012 recommended a one-time test for people born in those years and show that it was of good value for the u.s. health system. we also recommended testing for people who have active ongoing risks in particular persons who inject drugs. now, transformational moment, indeed, in u.s. medicine when we began to have oral therapy for hepatitis c, previously we haven't been able to treat and cure a chronic viral infections to this extent and with this disagree -- degree ofsafety. one bill and 90% cure.

as well as profound public health benefit. just a modest implementation of the cohort strategy and linking people to care and treatment, we can overt over 23,000 deaths in the coming years as well as decreasing transmission to others. that said, the so-called care for hepatitis c is not good and it's not up to the task to seize that opportunity and reach that goal. there's a decrease in proportion . and then a smaller number who have been treated and successfully cured. and there's a variety of reasons for that, low provider knowledge, low public awareness,

health systems that don't have the tools in place to make that easy process ceses moving from diagnosis to caring treatment and also a concerned about drugs of hepatitis c that have resulted payers with limited policies that limit medications. there's been events that have begun to losen up the restrictive reimbursement policy. when the first drugs came out around 2014 they were priced 84 to $94,000 per course. that said, the center for medicaid and medicare put medicaid programs on notice that their policies should be in line with national recommendations for treatment and that they should not be unduly denying treatment to people who fit

those recommendations. in the same time period since 2014, new drugs have come on the market that were introduced as a lawer price point, through negotiation systems like the va begin to go get very favorable prices for these curative courses reportedly as low as $17,000 and then legal actions through the court system where patients were protesting through legal action these restrictive criteria has resulted in those restricted criteria being deemed inappropriate. what you see there on the map is that we have seen about over 30% now of medicaid programs have broaden reimbursement criteria. that's definitely heading in the right direction. while the cost of drugs is becoming less of an issue, we

don't want to lose site of the systematic that we need to have in place so that population particularly those with limited or poor access to health care are not missing out on the life-saving treatments. this is just one demonstration project that we put together and put in place with our local collaborators in philadelphia targeting neighborhoods with poor access to health care including the homeless. fist of -- first of all, 11 times greater than the general population of the u.s. but also show that despite those limitations, we successfully tested for current infections and high portion of the persons were successfully linked to care and sites where they could receive treatment. these barriers can be overcome and the opportunities for the individual and public health can be realized. at the same time we are battling

a second epidemic among people that inject drugs in particular. we are seeing large increases in transmission. really tracking increase in drug use particularly oral prescription, opioids as well as heroin. when we look at the demographic profile, they tend to be young, less than 30, almost always among white persons and equally male/female living in nonrural areas of the country. you can see by this map it's a national problem. the states in red reporting increases in hepatitis c. some states more than others as

i will show you in a moment but almost all states having an issue now with new infections adding to this disease burden. now, given that we have more young people who are becoming infected and equal number that are male and female, that means an increasing number of women of reproductive age becoming infected and produces risk to infant. 5 to 15% of infants born of hepatitis c infected mothers will become infected themselves. as we reported several weeks ago, about 22% increase overall in the country of women with hepatitis c giving birth to infants and in states like kentucky which we profiled in the report, we've seen explosive increases where one in 67 infants are now born to an hcb infected mother in the state of kentucky, this is a whole new

risk population that we have to respond to and see how we can prevent transmission for them. where hepatitis c is being transmitted it poses a risk for transmission of other-borne viruses. hepatitis b is one but also hiv, we had an explowsive outbreak in southern indiana in scott county last year where population, a community that had a pref lanes of hepatitis -- prevalence of hepatitis c was spread rapidly. we've done modeling as shown here highlighting counties that are most vulnerable to those hiv outbreaks. the key driver of that is that these counties have high rates of hcb transmission so hcb

transmission is happening, hiv can follow. what we are trying to do is help those communities ramp up prevention services. the other map shows you where programs are located in the program. you can see a big disconnect where the most vulnerable counties and where the programs are and we need to bring that prevention service capacity to bare in these counties. we have also done modeling to show how big an impact can you have on hcv transmission, just making those programs available, persons who are injecting have access to clean equipment, can have some affect, 27% decrease. if you ramp up access to drug treatment so people can help people get off drugs, that also can reduce transmission, but the biggest impact is when you put together those two interventions