i'm a practitioner, i'm a prosecutor and deal with these cases all the time. but, you know, if we're talking, you know, we have stingrays, we have historic cell tower information, realtime location through third parties. there's all different legal consequences and legal considerations for all three of those. and so, but when you're talking about stingrays, you know, should there be a warrant requirement, i think, yes, personally. and, in fact, in virginia our legislature a couple of years ago required that. i mean, we as prosecutors got together with the aclu and other groups, state police, and we passed legislation to make it clear to law enforcement in a stingray sort of situation that you do need, you have to have a search warrant. it's not clear as far as constitutional law at this particular point in time, although i think we're probably getting close to that. but i agree that a lot of this

information has not been, not gotten out. you know, when we talk about a stingray -- and keeping in mind, a stingray is a brand name, and it's sort of like q-tip or scotch tape or that sort of thing, but it's become almost a generic term like those. .. let's bring dustin into this conversation. he covers cyber and policy.

>> thank you you mentioned the nondisclosure agreement. that's a situation where might be used in a case but it's not known to the judge or defense attorney. i guess why are law-enforcement authorities so excepting to nondisclosure agreements? >> all make a disclosure in the sense that we do not have. [inaudible] so i'm going by the information that i've read and gleaned from looking at various policies. before the hot harris corporation will sell a stingray to someone they require a nondisclosure agreement. the law enforcement agencies have -- let's be perfectly honest, law enforcement does not want to disclose this information because it leads to

people asking questions. well, that's okay. it's all right for people to ask questions but we need to be transparent and have the public to have more trust in what we are doing. so, again in virginia, we, we do require search warrant before we can use a stingray. whatever agency is in virginia that you have stingrays, they have to do a search warrant. it's going to be some sort of disclosure or notice. i will agree, there are the jurisdictions. i've i've read a lot about baltimore where baltimore has a number of stingrays that has used them numerous times, in the the thousands and very little disclosure to the point where they drop cases rather than disclose information. i think to have this discussion, whether it's it's today or in the courts, i think it's only when to lead to positive things.

should the fbi, local police be able to use the surveillance technology that there only to able to use if they sign the nondisclosure agreements. >> we are in agreement, it's a a problem. it's important to understand that this has been condoned by the federal government. we have seen it on two levels. on one hand we've seen local prosecutors in some jurisdictions withholding this information from judges who are reviewing applications. for example, in in washington we found judges who said after the fact, i approve applications in law enforcement didn't tell me what i was approving was a stingray device. in baltimore there was a case where a judge was asking a questionable local attorney and the judge responded you didn't sign a nondisclosure agreement with me. i deserve to have information. even beyond judges, what we are seeing our defendants and their attorneys not being told how

information being used against them was gathered. that was something that the constitution generally recognized. if you're taken to court and the government ceases to charged with a crime, you have a right to know how the evidence was gathered against you. in maryland the estimate there could be several hundred cases where individuals were not informed of this. they filed several requests and emails from the department of justice to local law enforcement and police directing them saying, if you're going to need information about a stingray in court, that has to come from a confidential source, not information from a stingray. this is a just law enforcement officials are attorneys not being aware of the divisive and not being aware of the procedures but rather it was secrecy that has been condoned by the department of justice in one way the department needs to change those policies to make

sure that information about the devices is disclosed appropriately to the public, to the the judges and to criminal defendants. >> i don't practice in federal court, but it's my understanding the doj has a policy that requires for federal use of a stingray that they do have a search warrant. where i got that from, it was a case case decided in the fourth circuit which made a footnote that the doj now has this policy. they've had it for the past year. prior to that they did not have the policy. now they do require search warrant. one of the other things i want to draw a distinction with is the court orders, those are 27 od court court orders. those are basically the communications act and they have a standard that is not up to probable cause. it's not same as a search warrant but it's not a totally standard list procedure. i'm sure there are instances where there is no order at all, but when they do get the orders

they are released and there is a court review of that particular information. now how thorough those are, and a lot of that depends on how much information is put into the order and what questions the judges are asking. i think they need to have a working knowledge of what these things are or what they're signing. if they don't know what they're signing, don't sign until you get more information. >> i just comment to one point, you're right, the department of justice did issue a policy and it did say the default should be for federal agents getting a warrant before they use a stingray. unfortunately the policy has two glaring loopholes. it doesn't apply to states and localities. if you receive a million dollars from the federal government to purchase the stingray, not bound bound by the policy or the requirement.

the second is, that policy, the department of justice and similar policy that was issued by the homeland security has loopholes so the policy said you don't issue a warrant unless it is exceptional circumstance. you know it's not an emergency because there's already an exception for that. we don't know in what cases law-enforcement not getting warrants when they commit so-called exceptional circumstance. while it is a step forward that we are now finally, over a decade after, they're starting to be used now that we have policy that suggests a warrant is required but there's still a lot more that needs to be done to tighten up that requirement. >> and that fx other federal agencies as well. what we have learned out is that the irs is using stingray technology and are not necessarily bound by that requirement either. i think a lot of people are surprised that these agencies use the technology.

why would the irs need to use self contracting technology like a stingray? >> those are all great questions. we haven't seen guidance from the department of justice or department of homeland security. what i think this speaks to is the need for legislation and better policy on this. we can't leave it, the reality is that it took embarrassing news stories, congressional inquiries and over a decade for the department of justice to even issue that limited policy. that is simply not the way should work were using new surveillance technology. it shouldn't be let's put the technology on the street and worry about the privacy concerns and constitutional concern after the fact we need to have that debate in congress and with the public before we deploy them. we think about questions like when should they be used, what privacy policies should they possess, how should they be notified all of those are questions that should be answered on the front-end, not the backend.

>> as an elected official in virginia, doesn't make you uncomfortable that a private corporation private corporation is signing a nondisclosure agreement with a law enforcement agency? >> i think, having not seen the language, yes, i yes, i would question what the language was because we had certain constitutional requirements that we have to live by such as disclosing evidence and information pursuant to discovery. we can't be bound by some contract with a private entity that says this trumps your constitutional requirement. yes, i would have a particular problem with that but i would have to look at the language and see what it says because of the fat i could not disclose it regardless, then i would say i'm not signing it. take your equipment. keep it in mind, we can do this another way. you don't have to have a stingray. the stingray, what the stingray does is it allows law

enforcement to do it directly. we can always ask for a court order. the cell phone provider then provides to law enforcement, it's a little more, i know some require the 27 od standard requirement that has a little lesser standard but we can get this information without having to go through that stingray. we don't have to have that nondisclosure agreement if we choose not to have it. >> have you use that tool regularly? as far as the search warrant? >> we have not. we tend to use more historic cell tower information in the sense, keep in mind, i don't do investigations. i get get the cases from law-enforcement. i don't have an investigator in the office and that's the way it is in most offices. i know in rhode island, it's

done by the attorney general's office. there may be different jurisdictions where their involvement is early on. i've not had the occasion, maybe there would be an occasion where we ask for a search warrant. we do have that route available should we choose to do so. >> to have a problem with law-enforcement having access to that to a? >> to request information, when it comes to requesting location information, our position has always been that it requires a warrant. am when it comes to real-time collection, we have generally been in line with that at the department of justice in most places a the warrant is required for real-time gps location. in terms of historical information, the information of where you've been for the past six months of the past eight months, many jurisdictions don't require warrant. they use a lesser standard.

we do not think that is consistent with the constitution but this is an issue that the courts need to resolve or congress needs to act. i think the average person, if you tell them, i think i can track where you've been for the past six months, whether you been to a doctor or an aa meeting, it's extremely sensitive information. as technology progresses, we are finding that historical information is also increasing in accuracy. it's not just the general area where you've been. it could be the building that you are on. as technology develops, i think what we need is the court and congress to step in and say look, this is very sensitive information. you you should get a warrant. law-enforcement should have a warrant. that's what the law requires and that's what most people would want to have happen. >> i think the constitutional requirements are little more complicated than that. you start looking at the united states versus jones which was

decided by the supreme court. the majority of the decision starts with the trust notion but you look at the concurrent, it had four votes and maybe five dealing with what's called the mosaic theory of fourth amendment jurisprudence. what it's saying, i have to to give credit to the professor at george washington law school because he's the one who came up with that, but the mosaic theory is basically, rather than rather than looking in a sequential fashion like we do where we say okay, is event a a violation of the fourth amendment. if no, is event be a violation. if no, is event, is event see a violation is the what the moment. if, the answer is no, it is not a violation. under the mosaic theory which was adopted by the concurrent and was later adopted by a fourth circuit, that panel that was recently reversed is that you might have a situation where

there is no fourth amendment violation until a passage of time. it's that mosaic, this piece of the tile may not be a fourth memo violation but when you put enough pieces of tile together you have this mosaic and i've got a fourth amendment violation you've got that tension between those two and then you've got this third leg of the stool and no pun intended, it's called the third-party doctrine. in a lot of the cases now you look to see whether the third-party doctrine is implied and that is what was recently decided with united states versus graham. they basically said no, this information from cell phones is being provided to a third-party and there's no reasonable expectation of privacy when it goes to a third-party. now, if that was based on two cases from the 1970s that were decided by the supreme court, and the question is if this particular point in time is are these cases dealing with

technology that didn't exist in the 1970s, is that going to be how we decide these particular cases. in one way i agree that this is tough for caselaw to develop. this is something for justice scalia tao and they talked about the realm for the legislatures because it can act quickly and use more information. they're not bound like the cowards are. this is around for the legislature. we're trying to balance the case law. we basically gave guidance to law enforcement by saying you want to do real-time location data, you you want to do stingrays, you have to have us search warrant. it's different in the sense

that, to my knowledge, it's not nearly as accurate as they make it out to be. cell tower information is basically you have a 120-degree angle on the tower in the range goes maybe as far as 2 miles. you've basically got within four square miles were someone's phone might be. now technology grows and grows exponentially. it might very well get to the point soon where it is more accurate but right now it is not that accurate. they mentioned that it is not necessary for location data. you mentioned third-party doctrine. i want to do something that the judges said, they don't realize this is something they are handing over to a service provider. this is not data they are knowingly giving away.

where do you see third-party doctrine going? will the supreme court review it at some point? >> the fourth circuit was the fifth circuit to rule on a historic information. all five have applied the third-party doctrine. the dissent may have talked about that, but the dissent was outvoted 12 - 3. twelve of the judges on the fourth circuit said no the doctrine applies unless the supreme court says differently or, congress, here's an opportunity to delve into this and if you choose to delve into it you are more appropriate for it then we as courts are. the fourth circuit is basically said it's not up to us to get rid of the third-party doctrine. you want to get rid of the third-party doctrine. you want to get you rid of 40 years of jurisprudence. we are going into a brave new world on whether or not we eliminate the third-party

doctrine or this model and to a mosaic theory. mosaic is almost unworkable. i can't give guidance to a cop. you're okay here, you're okay here but on the seventh day, on the seventh day no, now you've crossed the line. we do under the united states, we know hundred and 28 days is too long but we don't know before them. that's where where i think it's appropriate for the legislature to make the call. >> what you think of the review and doesn't need review of the third-party? >> i think the idea of the third-party doctrine in today's day and age would bother most people. the idea that all of us use cell phones and e-mail providers and we have a lot of private information passing through third parties and there have been courts that have acknowledge there are limitations to third-party doctrines. in the sixth circuit in most jurisdictions, just because you use a provider to send your e-mail doesn't mean that there

shouldn't be a requirement and that you don't have an expectation of privacy. i think that many of the cases that are relied on to support this idea that just because you gave your information to a third party, whether the phone company or another company, you have no constitutional rights and you have no reasonable expectation of privacy, this case of data don't really reflect the way we use technology today and the expectation of privacy that people have. the other boy that i think is important to make is about the accuracy of this information. courts have looked at historical information, many of the cases are old and many of them have relied on the reason that this is not very accurate. that's not necessarily true in the stent age. it depends on how many cell towers are in an area. let's say you live in an urban area where there's a lot of cell phone towers, a decision could be quite accurate. there's also things called micro cells. people want better cell phone

service. they want faster service. they have these tinier cells to sort of boost internet service or phone service and a particular area. because of those you might be able to pinpoint locations to a floor of a building because the micro cell might only serve one floor of the building. we are seeing that historical cell phone information is becoming increasingly more accurate. it may pinpoint if you're in a home, church, an aa meeting. because of those reasons and because of the sensitivity that then one data point might have, i think there is a need to put in place the warrant requirement and know whether it is congress or legislatures to do that or if this is an issue that the supreme court ultimately decide, i do think it's important to put in place a lot of policies that protect people's information when it comes to that type of data. >> where would you like to see it decided? >> i think the issue is ripe for congress and for legislatures.

unfortunately what we often see is the courts like behind technology. if it takes two or three or five years for the court to make a decision on something, often the technology has passed the issue they examined. you saw that in the supreme court's opinion in jones where they urged congress to have a role, to to be forward leaning and putting force legislation. it's important to know it's not just phones that have your location information these days. it's all kinds of devices. whether they are fitness devices or apps that track location to provide people services. we are seeing many different companies who now have access to location information. it's very sensitive location information. for that reason, i do think it's important that congress be on the front end of seeing where technology is leading and putting in place the requirements to make sure people feel secure and private. the last thing we want is people saying i'm not going to use this

new device for this app because i'm worried my information isn't secure. >> you mentioned baltimore earlier. there has been some evidence to suggest that in places like baltimore and chicago after the ferguson grand jury decision in baltimore during the freddie gray protest that they were flying planes over there and sometimes string stingrays were being used to track those protesters. is that in any way in your view and appropriate use of this technology? >> i can't condone that. i won't condone that. what purposes you think they would be using that for? >> i think stingrays, this is my personal opinion. stingrays have a use, it is basically in those circumstances where you have to act now or never or pursuant to a warrant as may be appropriate and i think that, again this is

personal and we will probably disagree on this, there's an active mode in a passive mode. the active mode with stingrays as they send out a signal and ping the phone. i will say phone for sake of simplicity. they ping the phone in the phone pings back and says here i am. there's also a passive mode where the stingray just collects, every minute or so your phone will send a single single out to the closest tower, here i am. that way verizon, nextel, t-mobile, whoever it is knows that when a call comes in for your phone to send it to my pocket. my phone is just pinged a minute ago. stingrays can be active or passive. i think because the third-party doctrine is still alive at this particular point in time, if they are using stingrays in a passive mode, i think i think that is a lawful use of that. i think when it's an active law

and you're pinging, you're not looking for particular phone, you are looking for a group of phones, you want to basically spy, i can't condone that. >> in colleagues in other states or at the federal level is one of the reasons are not being used is because the judge would not approve that use that that use would not be appropriate? >> in virginia, warrants are pretty new so i think while there is some concern about that, there's a lot of concern about how to use the warrant, especially in a stingray environment. search warrants are basically designed for static environments where we go to a particular location and a particular town looking for particular item, drugs for instance. when you are using a search warrant for a stingray, you are looking for who knows what and who knows where sort of thing. that particular aspect becomes problematic. >> i think it's important to

remember that whether it's active mode or passive mode, stingrays are essentially mass surveillance situations. you are gathering information about all phones in a particular range. the u.s. marshals service attaches these devices to planes to maximize the area that's effective. given the input implications of that and the effect on the rights of hundreds, if not thousands of people at a given time, i think it's important we have clear standards and policies in place. right right now the reality is, we don't. we don't because the federal government hasn't required states and localities to follow certain guidance and we don't because there's been a concerted effort to hide these devices. now that more information is available, congress and the department of justice have a responsibility to put in place better standard. >> she is the legislative counsel at the acl and mike is a

commonwealth attorney in the state of virginia. thank you for being with us. >> thank you. >> cspan, created by america's cable companies 35 years ago and brought to you as a public service public service by your local cable or satellite provider. >> on friday, the sec robo calls strikeforce met to determine ways to protect consumers from unwanted calls and text. thirty-two other companies are taking part in the effort including apple, google and, google and microsoft. the task force has 60 days to come up with recommendations. this is just under three minutes >> the morning. make sure your microphone is on.

>> this is your meeting, i promise. >> good morning everyone. for those of you i haven't had the opportunity to me, i am allison cutler, consumer of the governor's hero. a major part of my bureaus work is to help consumers stop unwanted robo calls and that is why we are all here today. i am delighted you all could join us. we are pleased to host the first meeting of the robo call strikeforce, and industry group that has come together in response to chairman wheeler's call to give consumers better tools to stop unwanted calls. i look forward to working with you as the commission's liaison to this group. this morning you will hear from several speakers about the importance of protecting consumers from annoying and often fraudulent robo calls. first they will speak about the steps the commission has taken to tackle this problem and ways

the strikeforce can support this effort by delivering effective solutions for consumers. commissioner will then provide remarks and at&t chairman and ceo randall stephenson, chair of the strikeforce will conclude today's meeting. thank you all again for being here this morning and now i will turn it over to chairman wheeler >> thank you, allison, and, and thank you to all of you who have volunteered your time to spend the next 60 days buckle down on this very important issue. it is significant that we have, not just carriers, not just gateway providers, but also equipment and service providers here at this table, because this this is a challenge that is going to require everybody's

commitment. i want to thank my colleagues for joining us today, and i particularly want to thank randall stevens for stepping up to lead this effort. americans are fed up. robo calls are a scourge. it's the number one complaint that we hear from consumers on a daily basis, over 200,000 calls a year into the fcc or into our web-based consumer assistance platform to talk about this problem and complain about how

much consumers are being abused. americans have a right to be fed up with this scourge. it's an invasion of privacy and it is ripe with fraud and identity theft. the problem is that the bad guys are beating the good guys with technology right now. both voice over internet protocol, calls from scammers in foreign countries who rely on networks that are not ready to deal with them. the ability to spoof a legitimate phone number is the downside to a digital environment.

i also want to go back and reiterate that this isn't just a network problem. this is a community problem. this have to do with those who run and operate networks, those who build and operate equipment and those who build and operate services. that is why it is significant that you are all collectively here at this table. the profit motive has driven the bad guys to exploit -- the profit motive has driven bad guys to a level of technical logical innovation that exploits consumers by exploiting networks and equipment. it's not as if the good guys have been standing idly by.

this is something that requires everybody to pull together, and to have an urgency in finding solutions. so thank you to this group for bending to the task of proposing solutions within 60 days. it is significant that the working groups are going to be meeting at least twice a week to keep to that schedule. let me be clear, this is an industry group. we believe in multi- stakeholder solutions, and when the whole echo system can come together,

it can produce good results. without results, we will be forced to look for other solutions because this scourge must stop. so let's set some goals for 60 days hence. authentication standards, number one, authentication standards for voice calls including gateway verifications as well as for pdm voice. we know the standards bodies have been working on this. we need to come to conclusion.

the companies represented at this table are the same ones represented in the standards bodies. let's get to a solution. secondly, we have a group that's going to be working on the tools to allow third parties to develop call filtering training options. it starts with open apis, but let's give folks the opportunity to get creative in finding solutions. thirdly, there must be cross carrier joint efforts to detect and stop the bad guys. maybe it is a do not originate list. maybe you will come up with better solutions, but this is something that has to be multi- carrier, cross carrier and a community solution.

we will set a goal, fourthly, we will set a goal for ourselves at commission and that is, tell tell us what regulators need to do to help you achieve those other three things. we've already said there is nothing in the rules that prohibits carriers from offering call blocking, but if we need to do more, tell, tell us where we need to do more. let me just make one last observation and then i'll turn it over to commissioner. as in any pressing challenge like this, perfect is the enemy of the good. the nature of software, as you all know is start and continually improve.

let's have that philosophy here. let's not sit around and wait for the ultimate solution, let's start solving the issues immediately and then let's improve tomorrow and make it even better the day after tomorrow so, thank you to all of you and randall particularly, thank you to you for your willingness to come together to attack the robo call epidemic, you set an aggressive schedule, we are grateful for that, we look forward to the results in 60 days so thank you to all of you. >> mr. chairman, it's 6:30 pm. you are feeling pretty good this evening because for a change, you are actually sitting down with your wife and children and

grandchildren enjoying a home-cooked meal with your family. now we all know you didn't prepare it, but that is not the point here. [laughter] all of the sudden, you are are interrupted by a ring. you get up, answer the phone and what did you hear on the other end? congratulations tom wheeler you have been selected to receive an all expense paid trip to the bahamas. but now sounds great with everything that's going on but you return to the table and before you can stick a spoon into your favorite dessert, the phone phone rings again and on the mine is a recording that reduces your mortgage payments. not only has your dessert melted but you feel powerless to stop these calls and you are joined by thousands and thousands of others. the commission has heard loud and clear from them. they hate robo calls. in the first 16 months of 2016,

the telephone consumer protection act related issues accounted for more than 175,000 tickets with the fcc consumer help center. we know there is a problem. we know how much consumers dislike these calls and we know how frustrated the public is because they assume that after they registered for the do not call list that all of this would stop. it did not so now it is time to take more action. last summer the commission took the first step by adopting a proposal that reiterated consumers rights to control the calls they receive on both their landline and wireless phone peer the proposal gave providers the green light to implement robo call blocking technologies and ensure consumers they have the right to say stop. that was followed by a series of

letters sent last month by the chairman to all of you, the major providers urging all of you to provide consumers with free call blocking services. i applaud at&t and all of you for not only joining in today's discussion but for stepping up to the plate, enabling us to focus on real actions that will empower our consumers with robust robo call blocking solutions, but we want to ensure that these solutions directly target the problem. the commission has a long history of prohibiting abusive or anti- competitive use of call blocking technologies but consumers want real relief. i am optimistic today that this is the beginning of a real conversation that we will be able to deliver to consumers the change that they are clamoring for. again, i think you mr. chairman

for allowing me to share a few words, i am looking forward to the invitation for dessert, but i want to i want to thank all of you for being a participant because the american people are counting on us to end these daily disruptions. >> thank you commissioner. the question is what do you make for dessert. >> i'm not sure how to interpret that. >> thank you mr. chairman, it's it's great to see all of you here. let me paint a picture for you, one that accurately reflects my experience and hopefully all of yours as well. one monday night in the fall, the kansas city chiefs were battling the dreaded oakland raiders at arrowhead stadium. it was a close close game and you settle in to watch america's team during a clutch fourth quarter drive. just before the snap in the hand off to jamaal charles, the phone rings. you reluctantly answer only to hear a recorded message claiming to be from the irs. the caller said you owe the government money and you will be arrested unless you pay immediately. you hang up, angry at yourself

and you realize you're even angrier once you realize you have missed jamaal charles play into the end zone for a resounding chiefs victory. now artificial and prerecorded calls, robo calls as we know them, our awful. their unwanted and intrusive and many of them like the recent irs related robo calls our scam. robo calls and telemarketing calls are the number one complaint received by the fcc. i think that former senator from south carolina who had the pleasure of meeting with last year put it well. he once call robo calls the scorch of civilization. that is anything but an understatement. now the adoring dislike of these calls inspires our work this morning. we are gathered here at the inaugural meeting of the robo call strikeforce, this industry group has an appropriately

intimidating name and according to its charge it will try to develop ways to prevent, detect and filter out these unwanted calls. like my colleagues, i want to commend the folks that have rolled up their sleeves and committed to solving this problem. a number of people and organizations have already expended sweat equity in this effort and they deserve to be recognized. for instance, the federal trade commission, 202013 robo challenge focused on the industry attention on verbal calling. one of the winners of that challenge was called no more robo has now stopped over 126 million robo calls. between the leading anti- robo calling apps in the united states, the alliance for telecommunications industry solutions are at us, the session initiation protocol and the internet engineering task force secure telephone identity revisited working group where

they have been developing standards to reduce illegitimate caller id spoofing. that's all going to help consumers be able to identify and avoid fraudulent robo calls. in fact, spoofing is the critical input that enables robo calling. i think the work of these dedicated experts in particular, is critical. and last but not least, i also want to express my appreciation to all of you, the industry participants who are here today to form this task force, and especially the at&t and chairman randall stevenson for leading the charge. your efforts will help and this scorch of civilization, something that everyone, other than rachel from cardholder services, would apply. i personally look forward to learning more about the scope of the problem and the potential problems and i hope the participants will ponder a few questions as we labor together to stamp out these unwanted robo

calls. for example, should we encourage congress to pass the bipartisan anti- spoofing act of 2015 introduced by representative barton. it's legislation that would help crackdown on foreign callers that prey on americans using spoof caller id for robo calls. should the fcc take more enforcement actions against unscrupulous telemarketers and from the numerous calls that we receive each month. how can we make it easier for them to tell us about the robo calls they receive and to make it easier for our enforcement bodies to track down and stop those colors. should we carve out a safe harbor for telephone company seeking to provide stop block calls for their customers. would creating a reassign numbers database allow callers to avoid dialing the wrong numbers by mistake and would

granting the petition of 51 consumer advocacy organizations to overturn the exemption for federal contractors close a potential loophole in our regulations? for my part, i hope everybody here, here, government officials, industry representatives, consumer advocates and others can rally around the purpose that i have outlined this morning. to borrow from former president kennedy, let every robo caller no, whether, whether it wishes us well or ill we shall pay any price, bear any burden, meet, meet any hardship, support any solution and oppose any blocks to ensure the survival and the peace of american consumers. it sounds like i may have just won a cruise. if you will excuse me, i have to take this call. thank you very much mr. chairman. >> thank you for bringing us a little theater as well as for threatening the nuclear option.

[laughter] randall, this is your party, we are out of the game now. thank you for doing this. >> thank you chairman wheeler. i really do appreciate you initiating this and in getting this going because i think it's important. i didn't intend to create controversy right away, but i live in dallas texas and allowing commissioner characterization of the kansas city chiefs as america's team is unacceptable. i do appreciate everybody that is here. if you just look at the number of people who are here and being here on short notice is a really big deal. there are 33 companies and organizations on the strikeforce and we represent the entire communications system and the fact that you are here speaks to the complexity of this robo call problem and this is going to require more than individual company initiatives and it's going to have to go beyond one

off blocking applications to address this issue. rubble callers are, as you heard the chairman reference a very formidable adversary and they are hard to stop. technology such as spoofing makes it easier for them to work around all of our various fixes and to cover their tracks. so far we have been coming out this problem piecemeal and i would like to demonstrate that we've had very limited success because these robo calls continue to increase and grow. the strikeforce, we believe will have to take a different approach to addressing this issue and we truly want to deal with this with the entire ecosystem working together. i think that is well represented. we have carriers, device makers, os developers, network designers and as you heard the commissioners speak, regulators and lawmakers are going to have a role to play in this as well. what we are going to have to do is come out of the session with a comprehensive playbook that we

all go out and begin to execute. a lot of people like to portray this as a simple issue to address and i think we all understand it is not. these unwanted calls and span a very wide range. we have calls that are perfectly legal but they are not wanted. things like telemarketers and public opinion surveyors but then on the other end of the spectrum, we have millions of calls that are blatantly illegal. they are violating do not call registry's or worse, they are trying to get identities or steal money. this is where i think government is going to have a very important role to play. in parallel with the technological solutions, we are going to need regulatory and law enforcement agencies to go after the bad actors. shutting down the bad guys is in important step in all of this. we have to stop unwanted robo calls. while it is easy to say, it is hard to do.

at the request, members of the industry have committed to doing the following, to review the id standards and implement them as soon as they are made available by the reviewing body. we need to adopt ss seven solutions, we need to work together with the industry, including every company represented in this room as long as with the standard-setting bodies to evaluate the feasibility of a do not originate list. we have to further develop and implement solutions to detect, assess and stop unwanted calls from reaching the customers and finally we need to felicitate efforts to adopt call blocking technologies on their networks. in preparation for today's meeting, the technical experts representing our companies have had preliminary conversations about both short and longer-term initiatives. we are going to a doesn't discuss those ideas in greater detail today.

we formed several subcommittees to tackle the issues and they will be led by technical experts ranging from apple, at&t, comcast, comcast, level three, no kia, samsung, sprint and verizon. robo calling strikeforce is committing to report back to the commission by october 19. that is 60 days from now. the report will include concrete plans to accelerate the development and adoption of the new tolls as well as solutions and to make recommendations to the fcc on the role government should play in this battle. the fact that so many companies agree on such short notice to be here tells you the seriousness we have about finding a solution here. i want to thank each of you for being here and for your leadership on this. with that chairman, we are ready to get to work. >> thank you, and allison will

you wrap us up here? >> sure. thank you to everybody. i think it was a great kickoff. now just some logistical announcements. this is the end of the kickoff portion of the meeting. we will take a 12 minute break for strikeforce members back into the break room, there is coffee as well and we will reconvene at 1045 with a strikeforce for the working session of the meeting. >> thank you. [inaudible conversation] [inaudible conversation]

>> tonight on q&a, author and investigative reporter talks about the hit broadway musical hamilton and the work he did on it. the show's creator base the musical on a biography of hamilton. q&a starts tonight at 6:30 pm. tonight tonight on book tv, prime time, it's a look at what both members of congress are reading this summer. starting off at 8:30 30:00 p.m., republican senator is reading alter ego's. hillary clinton, barack obama and the twilight struggle over american power. at 940, new hampshire democrat senator is enjoying the right others. republican congressman of wisconsin is reading weight.

at 12:30 a.m., andrea may,. [inaudible] this hunt for shakespeare is what maggie is reading. all of this coming up on book tv tonight on c-span2. throughout this month, we are showing book tv programs during the week and prime time. in case you are not familiar with our weekend features, book tv on c-span2 takes on public affairs programming and focuses on the latest nonfiction book releases through author interviews and book discussions. our signature programs are in-depth, alive three-hour look at one authors work with questions from from viewers. in-depth heirs the first sunday of every month at noon eastern and "after words" is a one-on-one conversation between an author of a newly released book and the interviewer who is either a journalist, public policy maker or legislature familiar with the topic and an opposing viewpoint. "after words" airs every

saturday at ten pm eastern point we will take you across the country visiting book festivals, book parties where authors talk about their latest work. book to be is the only national network dedicated exclusively to nonfiction books. book tv on c-span2. television for serious readers. tonight on the committee caters, virginia commonwealth attorney and aclu legislative counsel on how law enforcement uses cell phone tracking to find criminals and terror suspects. they are interviewed by dustin boldt, a cyber and surveillance reporter. >> the way they operate is essentially by impersonating a legitimate cell phone tower. as a result, what they allow the police to gather things like location, information or serial numbers of not just a target zone but all target zones but also all phones in that area. >> i can think of one particular very gruesome homicide we had a

couple years ago where, while the case wasn't resolved by cell phone information, it basically broke the case. we would've never found the suspect without that cell phone information so it can be very critical. >> watch communicators tonight on c-span2. >> this article posted last night from a federal judge late sunday who issued an order that temporary bars the obama administration from forcing its position that transgender students should be allowed access to restrooms and locker rooms that match their gender identity. schools across the country are beginning to resume classes for the school year. thirteen states attempted to halt the directive from the justice department which inform

schools across the country they could lose federal education funding if they forced transgender students to use bathrooms and locker rooms according to their sex at birth. the obama administration had said the federal directive known as guidance is non-biting. it is meant to clarify the law and offer the administration's interpretation of the law. next, a discussion of open internet rules and access following the d.c. court of appeals decision to uphold the internet order. it includes reclassifying broadband providers as common carriers which gives them more authority to regulate them. technology and law specialist debated the fcc's claims of legal authority, the chances the supreme court will rule on the case, and what all this means for consumers. >> let's get things started. for those of you are watching this live streamed or if you want to tweet from here, we ask

that you use # title to. as we are having this conversation i will be using twitter and throwing it out to the group as well. first i want to thank our sponsors here at freedom, open technology institute and the george washington institute of public policy who are putting this on peer this will be a really great discussion. we have some interesting palace and i will let each of them introduce themselves and then we will launch into some questions. but start here on my right. >> my name is kevin and i'm probably the least experienced person on this panel with net neutrality. i was am a lawyer and was hired to help defend the net neutrality rules in the d.c. circuit. >> before we go on, why are you here?

you answered that, but as we go on, what is your dog in this fight? >> i am sarah morrison senior counsel and director of open internet policy. that 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 that all users can access the lawful content of their choosing and remains an open platform for people to flourish and organize and communicate and access resources such as educational materials, job applications and net neutrality allows them to do so without any fear of interference from the part of their internet service provider. >> all right. >> i'm hal singer, i'm a principal and economist inc.

appeared i'm a senior fellow at george washington's institute of public policy and an adjunct professor at georgetown school of business. i will answer the next question, why am i here, i think i am the token economist on the panel. although i don't have a law degree and i don't play a lawyer on tv, i have been around a court room a few times including in front of the d.c. circuit before. i have a few opinions on what went down. i think my big message today is that as an economist, i would would like to see the fcc take seriously the application of economics and live up to the same cost-benefit standards that other agencies, both independent and executive agencies live up to when issuing orders. i think to not do so is take a risk of a very important and vital segment of the economy. the fcc oversees the tech sector, this is one of the most important, just put a number to it, isps invest tens of billions

of dollars a year in infrastructure and those investments sustain over a million jobs. year. the notion that we would take that casually is very dangerous. >> since we are going around, i am maggie rudin and i am a senior writer at cnet and have been covering this net neutrality battle for a decade. it's what kept me employed. that's why i am here. >> i have good news for you. job security is there for you on this front. :

with the decisions. innocent this is than once point but broader. i'll be the boring guy on the panel talks about administrative law. >> boring? this panel will not be boring at all. >> i want a think tank called techfreedom. we handle a range of internet issues. sometimes work with our friends at new america foundation. sometimes we're on opposite sides. in this case this issue is not about the potential. that's always been a red herring. there isn't anybody who wants to block content online. we are not really in danger that

our communications throttled. we to deal with those things, have a narrow ledge said solution to give the fcc authority but this case is about the fcc's claim of sweeping power to regular the internet as a basis for the so-called net neutrality rules. that's why my organization techfreedom has gotten fall but also why a number of silicon valley entrepreneurs and investors got involved in this case. that chairman would have you believe this is about the big dogs, meaning big cable and telephone companies trying 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 applications for the entire internet and we don't want the next chairman might do with the powers claimed by this fcc. >> it sounds like you might be the lone wolf in sort of supporting these roles.

got things split up privilege on the table. >> i wouldn't be here if i wasn't alone will. >> my first question will be for you. take us through what this order is and how we got here. >> this border is the third attempt of the fcc to enact legal is the net neutrality rules but this came in the wake of a 2010 decision verizon versus fcc at the d.c. circuit where the fcc had premised its 2010 rules on a section of authority in the committee patients act called section seven of sick. long story short the court said these rules, you demonstrated a basis for these le however, what you were doing in this instance is up on what we call common carriage regulation to noncarriers. that provided a roadmap to the

fcc to try for the third time this time successfully. the fcc took what the d.c. circuit said in verizon v. fcc part and after exploringons forh forward with a different legal basis for the rule the fcc decided to properly reclassified broadband internet access service to the title ii service. which provided the legal groundwork for civil portion of the fcc's rules. they were three bright line rules, prohibition against blocking, following the commission enact what we global to call a general conduct rule the fcc the ability to look at new harmed as they evolve in the internet ecosystem and to evaluate them on a case by case basis using a series of six prescribed factors.

>> but the real question that most people disagreed upon here, daryn, that you can jump in, israeli this hole reclassification. the fcc said basically that courts are not understood said visuals are okay. we think of reason to do it. we don't like the authority you used in crafting the 2010 rules. go back and if it's going to be common carrier, you've got to classify the traffic has come and carry or you can't apply those kinds of rules. the fight we're having now is about reclassification. >> that's accurate. i would say, usage of in covering this issue for a decade. i was in the internet law class back in 2002 when he coined the term for he was writing the paper. this has been going for a long time. just to briefly set the stage,

the fcc issued an open internet policy statement back in 2005. it was after that that the republican chairman at the time started to use that enforcement actions to inform merger conditions but there were no biting rules. sarah alluded to this. that was the first attempt by the fcc to regular without formal regulations. spent the comcast bit torrent? >> the comcast bit torrent case. to me that with the fork in the road. any policy that you can look back and you can find some point weather was a better way to resolve the issues. that was the first one. what should have happened in the case, so comcast was accused of throttling bittorrent traffic on its network because bit torrent was being used overwhelmingly for peer-to-peer file sharing and by merely being used for infringing copyrights.

what could've happened was the federal trade commission could have brought very straightforward action against comcast for deceiving its customers and could have resolved the matter. as far as i can tell the only reason that didn't happen is because the republican chairman at the time decided he liked president bush was going to be the decider. he was going to address this in the fcc was going to do it. we went down one fork in the road of having the federal communications commission do everything with unclear authority. in fact, no regulations at all. instead of having the federal trade commission do what it normally does which is protect consumers from deception, unfair practices in anticompetitive behavior. if we gone down the other what i think could have addressed the concerns raised spirit the first slap on the wrist by the courts and the democrats come into control. obama sort of, there were many issues he ran on but from my

recollection this is what he said yes, i believe in strong net neutrality, or he didn't use the word strong. i believe the net neutrality. they crafted these rules and then verizon suit which i'm sure there are a lot of people who are really mad at verizon right now, right? that's how we got here. >> i just want to emphasize the reason for rising suit was because it was not the regulations themselves. verizon made clear it was not challenging the transparency rule and to no blogging world. it had a policy difference on the margins about what throttling me. its primary complaint was about authority, the same thing we're talking about today. the claim into being the case that the court in that case said the fcc could do anything it wanted over any form of communications under section 706 of the 1996 telecom act as long as the agency came up with some

story about why that would promote broadband. that was the first sweeping claim of authority. when the court decided that case, the verizon decision came down, the agency could have used that form of authority to issue new metric of the rules. instead use that form of authority plus reverting to title ii, the provision of the 1934 act that we should to regulate the old ma bell telephone technology. >> there's a little bit more to the story. the other thing that happened was the court said you could not enact anti-blocking rules. you could not enact anti-throttling was without reclassifying. it wasn't the case they had the opportunity, so we could reenact the rules that wanted to under section 706. they had to be classified. >> much of what you said is accurate. but the part -- that's the

lawyer -- >> isn't that what the courts are deciding? >> the point you keep getting that is what is this necessary? did the fcc have to invoke title ii or goo could as kevin arguese fcc simply gives section 706? kevin is correct. if what you do go so far as to amount to a common carriage you cannot do it under section 706. the one thing you can't do -- >> they said anything beyond a multifactor test essentially. common carriage would be any bright line. >> let me break this down for our viewers. there were three rules in 2010 the transparency rule was not being challenged by verizon. indeed, they said no other bases on which the rule could've been upheld. the issues were a no blocking rule, the throttling rule. of the no blocking rule this is where kevin slightly belied the detail.

what the court said was the fcc have not adequately briefed by the court could have upheld a no blocking rule under section 706. i say this because i think it's clear if you read the decision that the court in the last decision was inviting the fcc to try to under section 706 and was hinting strongly that no blocking rule would've been upheld. the issue was th the fcc didn't litigate the case well and it was in any case that happened between the time the briefs were filed and the time the court decided the case that really ended up being the thing which everything was decided in the fcc failed to ask to file new greece. they waved their argument. >> one quick point and then i will move this on. >> i don't think we are told the full story yet on verizon v. fcc and what the fcc did in the 20 to order was really, really different than what it's done on the 2015 order. with respect to a priority which

is what judge william said is the whole ball of wax. in 2010 the fcc decided to treat a priority under a case-by-case regime. we will call them as we see them. they created a presumption that any such deal would be a violation of its rules. in contrast in the 2015 order the fcc embraced a blanket ban on paid priorities. this is an important distinction. with due respect when sarah said the court offered a blueprint, she mischaracterized it. the blueprint they offered, the chairman used the word blueprint. he said we will follow the blueprint of the court and follow the section 706 that under the decision. to treat paid priority on a case-by-case regime and flip the presumption around. >> the court in this case, i know you want to get on a taking us back to the contents of life we are here and we were at in the concept, the court has ruled with acknowledgment of the petitions for rehearing that

have been filed, the majority in this case agreed that the judge who also decided this case, whether a majority in this case alongside the judge, they acknowledged that the fcc had done in fact what the decision that laid out and were proper in the order that they put forward in the way they enacted the rules. >> so the crux of it though, i want to stop, the crux of it is a lot of disagreement about how the fcc interpreted the verizon decision in terms of how they should go forward. the fcc clearly interpreted the way sarah and kevin are talking about, that they felt they had to go through with title ii. whereas i think the other side feels there was still some authority under this other

section of the communications act. we have so much to cover that i do want to keep arguing the same point as everybody keeps saying 706, title ii. it's like what the heck are they talking about? >> dana quigley at another point? >> all right, okay. >> i've got bad news for everyone here. moving forward this is what the courts are going to care about. the courts are going to care about, we have the d.c. circuit panel opinion. there are a bunch of petitions that have been filed asking the entire d.c. circuit to review that opinion. no matter what happens there didn'then could be petitioned te supreme court to review the d.c. court opinion. the question is nothing to do with what the fcc did. it has to do with what the panel of the d.c. circuit the. whether or not be sufficiently reviewed the fcc's action. we have another layer on top of this. the focus has been, did what the

fcc do, get with the fcc did, did they do right? there's a question to the court do what they're supposed to be right? >> let's talk about who is on what side. you've got one side the isps, comcast, at&t, verizon. who is on the other side? who is supporting this order? >> there's diversity on both sides. the public interest groups on both sides. there are on balance more edge providers, netflix for example. tumblr, kickstarter are among the folks supporting the fcc's rule because they view net neutrality as essential to their being able to reach their customers with their services. on the other side, another group on our side of the case are the backbone providers, cogent. on the other side there is the

telecommunications companies, principally. >> okay. spent i just want to thank you for very graciously acknowledging that there are people on both sides. i think it's the first time i heard anybody on this site acknowledge that. i 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 our governors and investors have gotten involved, people who were pioneers like jeff pulver who back in 2004 got the fcc after years of lobbying to draw a clear line between the old title ii regulations and the internet so that his services, voip, a free will dial up and essentially bondage, so those would be protected from title ii. the reason they're getting involved is the are worried that

the fcc has erased that line and whatever the agency is doing now for one policy could be used for other ends in the future. >> okay. let's talk about what does this mean for the average consumer. why does anybody care? i have to answer that question all the time when i'm writing stories for publication. sarah, what does it mean for the consumer? >> the fcc's order was historic in several respects an important for consumers in several respects. for the first time if you see applied its rules, extend its rule fully to include mobile broadband. this is an issue my organization worked extensively on with the fcc. what does it mean for consumers? when you on your mobile device, many of you are i seem different, hopefully tweeting nice things. i assume some of you are on the wi-fi network in this room. some of you are on a 4g or 3g network.

it means no matter which network you are on your protected, you are afforded the same protections that the fcc has historically extended to fixed and now fully extended to mobile. it avoids the absurd result which a few to walk out of the building after being on the why was he would suddenly not be subject to the open internet rules by virtue of just being on a different type of network. that was important. it also means, i think it was better in the kind of noted that when the actual harms -- i'm paraphrasing, but the following as a logger -- we suggest signs that's not true at all. as a result of disputes between interconnection, interconnecting parties, there was extensive farm for millions of americans got the country for period of -- >> by that you mean like a netflix interconnecting? >> yes. >> to be clear that isn't the

thrust of the majority of this order, right? that is to examine on a case-by-case basis. >> they did bring interconnection spent the first time the fcc asserted the authority to hear interconnection claims that we are continuing to do research to assess whether desegregation for certain consumers is still ongoing. what, we are hopeful the assertion of 30 what a chilling effect on the type of egregious behavior we saw. >> this is part of the challenge in one of the petitions i read, that the chairman had announced about a time of the nose of proposed rulemaking that interconnection was off the table. one of the challenges is the parties were not given proper notice that interconnection would be. to answer your last question, well, i like it. i like that. to answer your question about how are consumers going to feel, i wanted to bring it back to judge williams%.

and it -- dissent. he was are upset have the fcc ignored economics generally, but in particular failed to cite a single article. you would think that would be critical to understanding how isps interact with content on one side and with the engines on the other side. no citation to had they bothered to find out this principle called a seesaw principle, i will try to put in english from any contributions that an isp could get off of the content providers would put downward pricing pressure on the other side of the market. consumers would face lower prices to the extent the isp could raise money off the backs of content providers. that is not going to happen if this rule stands. as i said, hey priority arrangements have been banned. number two, interconnection agreements are now subject to what are called the just and reasonable standards which effectively means isps can't

charge anything. have to charge me something for the cause but it is effectively zero. if there's any doubt as to what chairman wheeler wants, i suggest people go to the charter order in which explicitly set interconnection would be set at zero. what we have from consumers perspective is the big content behemoth, talking netflix and youtube, one of have to make a contribution to the overhead of the infrastructure, the isp. the question is, from an economic perspective, you will not find a single economist, is zero the right price for the content provider should have to contribute to the overhead? >> to quit points in response. i think the millions of americans who experience systematic and severe degradation for a period of at least nine months would be happy that the fcc are happy the fcc has asserted its authority over interconnection disputes and now can be a cop on the beat as those disputes played out.

i'm going to be clear about where we're at in the proceedings and you may be getting to that down the road to which i will be for grief at this point but we are at a point of won't settle law with the exception of a couple of narrow and extraordinary past four for a reversal of this decision. as hal they want to quibble about the economics or lack thereof in the order, the court has upheld and i want to be clear for anyone watching that we are in a period of time where the court has made a cease, the next step, very specific and cover a certain -- >> let me bring this down 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 meant 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. on the other side what you're saying is but we are leaving out, because there is no pay priority, the isp can't make money at different way and then 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. i might mention that the isps i spoken to, nobody did pay priority because nobody really thinks that there's any money in it. i don't know if there's a market for netflix to be paying -- so whatever but go ahead.

>> a couple of things and i will try and keep of both brief and that an appropriate level. first on a zero rating question to this is an active discussion to a lot of folks thinks it's a violation of net neutrality principle to a lot of folks thinks it is. some folks want to thousands of by the pretzels are problematic. this is a very -- >> it was explicitly in the order, said the fcc would decide a case-by-case basis. so allowing, you know, the wireless companies have some freedom at least a little bit to export different business models. >> along this one dimension. this is really in a sense michael ax to grind on this issue. as hal was saying about this literature on to cite markets, basically there was an entire economic literature in the 2000. it is developed to study the effects of net neutrality.

the results of that literature showed it could be good, could be better it could be harmful or beneficial to consumers but it depends on a lot of things. i submit comments to the as either introduced a lot of this evidence. when the order came out saying this is the one doing your i said i want explanation. they could not conceivably come up with an explanation i want to know what it is. they just ignored the entire body of economic literature that developed to answer this one question. that's not cool. to sarah's boy, said is exactly right that this is by and large a settled point of law with respect to the fcc. it frankly is unlikely that the d.c. circuit will grant on the long review and is unlikely the court will get to the supreme court. even if as i say -- >> will get to that. >> but the point i want to make is yes with respect to fcc's

this question, the broader question that essential to the d.c. circuit decided this case is very active at the supreme court. >> let's move on to what exactly did the court decide? >> before we move on from this interconnection think i'm not sure people are clear what we are talking about. just really briefly. the traditional net neutrality concerns i already mentioned is transparency, i.e. when a network, blocking content and throttling traffic. interconnection is a different thing. it's about how the comcast network interfaces with same netflix. i think what sarah is talking about wha when she talks but ths nine-month period was that the were allegations that netflix made that it was being come its traffic was being degraded because broadband providers were holding 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 rules to those situations. >> but the important thing to note is that is a very active debate about what actually happened to you for one second circuit i would encourage those watching to read dan rayburn, independent stream media expert who comments on this entry to both all netflix claims to point out what they're really doing is they're playing hardball with broadband providers because, in fact, what most people assume it's broadband providers have the market power, it turns out that companies like netflix really have market power because they have content and if things like house of cards that they can withhold. they would tell that from time warner cable customers in order to try to exert leverage. the point is just they ended up, netflix ended up getting a better deal through all of this.

instead of having to pay third party providers, they got a better deal it would seem from comcast the basic money but they were not happy. that they can try to get to the fcc and get the same thing for free which essentially means that the broadband provider has to bear the cost which means they can pass on to all of the broadband provider subscribers which means non-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 we're talking about. the fcc is being used as a pawn in these battles between companies. they're just trying to save a buck. it's true of both sides. >> i want to be very clear about what our research showed which regardless of who was at fault in the dispute between them not just netflix and isps. is also transit providers that were carrying content. that was as kevin noted why the

workers transit providers who are engaging in the litigation on behalf of the fcc. what the research found was, i haven't heard anyone dispute the actual findings. the research was based on our measurement lab process. regardless of who's at fault, for nine months customers throughout the united states access content that was not just netflix. anything latency or bandwidth sensitive. they were getting less than even the fcc's old definition of broadband. for us it's important that there's no a cop on the beat regardless of who's at fault in any individual dispute to assess the problem and to ensure that consumers are getting the broadband they paid for. >> which the federal trade commission could have done. >> okay, okay. but let's move on and talk about what was the decision? how did this come down? the main argument was about this

title ii issue here is the fcc has the authority to reclassify traffic, to enable this rule to even exist? how did it come down? >> kevin perhaps. >> in a two to one decision the majority of the panel said the reclassification was proper. they rejected a variety of objections to it but the principle thing that they decided was look, we haven't even talked about the there's a statute that says a telecommunication service has to be treated as title ii common carriage. the initial thing they do is look at the language and said look, it's not absolutely. it's ambiguous. under a settled administered law principles, in that case the agency gets to choose between permissible interpretations of language so long as it has done reasonably. at the beginning of the decisions come it's not our job to second-guess the agency about

what is best policy. it is he also held this apply to wireless. it also upheld this interconnection. spent rejected from the first and then the challenge. >> so it was a homerun. so they were popping champagne. still popping champagne. they're totally psyched. >> they are still drunk. >> we can agree on that part. the drunk part. drunk with power. >> so then now we are we in this process? slamdunk for the fcc. what are the appeals about? >> she would talk about the substance or do you want to start with the process? >> let's talk about the process and where we're going and then we can get into the meat spent i guess i'm talking so i will keep talking. >> that's the boring part. >> that's what professors do.

after the d.c. circuit opinion, there was a period that expired this past friday during which parties can file what's known as a petition for en banc review. the court initial opinion was decided i3 judges. en banc review this day, entire d.c. circuit, that panel of three judges made a mistake for some reason. the entire court -- >> how may people are on, how many justices? >> i believe it is 11 active judges. in order to get the entire court to review the panel's decision he'd have a majority of the active judges. there's also number of senior judges that they don't get to vote on whether or not to the en banc review. we should say en banc review is rarely granted it's only granted in extraordinary cases. that is i think a better chance than usual the en banc review we

granted, in particular because there are some really cool administrative law data about some detailed issues in this case that shows there are questions courts need to look at the i won't get into that but it could be some of the judges interest. it's also an important question. that said, it's unlikely the petition for en banc review will be granted. >> the dissent was pretty long. >> the opinion was pretty long. >> everyone keeps talking about it, like its customer response to any. does that help the chances that the full circuit would take? >> a strong dissent can help and it gives up a number of issues. it's important to know that the author of the dissent, judge williams come as a judge on senior status. he doesn't get to vote on whether the court is going to take the en banc review.

>> the d.c. has often been called the second most important court in the country because it's the administrative on corporate it handles agencies like this. one of the things the obama administration will be remembered for in his entry is that this court shifted from right to left. this was a bastion of reagan appointees, people who work sort of approach the constitution as administrative law. the president got to make for appointments and several other republican judges went to senior status. the balance has shifted. there are 11 judges in active status, one of them merrick garland is awaiting nomination hearings. so he is accused the essentially have 10 active judges and we would eat the majority of those to vote. >> you already have two that would probably vote for it. >> would vote against rehearing. i'm just trying to lay out that

there are seven democrats, a point is on active status and four republican on active status. it may be a regional want on this case but i want to flag as was her talk about the big issues and the supreme court taking this case, the real issue is really about how much deference due courts give administrative agencies. tab 26 alluded to this. everything in america administrative law mostly revolves around this chevron case. this 1984 supreme court decision. >> you should cut us off when we say chevron. >> go ahead and explain what it is. i'm really interested spewing this is important. for decades american courts foundered on how to deal with questions of unclear laws. all laws are going to be unclear. there's no way to write a

statute that is a quick of some ambiguity. they came up with a bunch of test and the court came up with a standard that said look, we're not going to deal with this. we are going to look at the statute, ask if it's ambiguous. if it is then we will defer to the agency on an ambiguous interpretation. the basic idea was that would allow politically accountable supposedly more democratic institutions to resolve these matters and if congress didn't like it, congress could rewrite the statute. that's a basic idea chevron. what i want to flag is chevron is interesting because there's not a partisan split on this period i'll let kevin speak for his old boss, justice breyer, in fact sometimes democrats like justice breyer has said maybe we shouldn't be so quick to jump into chevron deference. maybe before we get to that two-step process of asking is ambiguous and is the agencies are patient reasonable, maybe we should have steps year, ask

whether this is the kind of thing appropriate for us to assume that congress would have intended for the agency to resolve ambiguity. to me this court case revolves around that question and that's one if it makes its way up to the supreme court, i think it will, i think he was an interesting split on this. it's not going to be along partisan lines. nothing with mr. chairman and will not be specific to the fcc. it will be about where is it appropriate to grant that i deference. the court in recent years in an array of decisions has come out and said sometimes it's not when it's a major up economic imports. or we think the agency itself has done something to indicate that even the agency doesn't think this is what congress has intended. in those cases the courts should look at the statute a new, make us a decision. the obamacare case was a case like this where the chief justice said we would not apply chevron. we will look at this idea of the

statutes meaning as he understood it. conservatives were very angry by using something in many ways was a victory for those who worry about the administrative state. >> let's say that the full circuit is not take this case. when are they going to know that? is there a deadline have to decide? >> i'm not an expert what i will answer anyway. >> we have an expert on the panel. >> there's no deadline. >> but i would say if the answer is no, it's probably going to be a relatively quick decision. unless there's a dissent. if there is a dissent could take as long as it took to get this decision because those to be as long as judge williams of dissent was in this case. what i'm hoping for is if we get some decent to elucidate these hard issues so when the supreme court looks at this they understand why this case is so

important and this fundamental issue of deference in that state. >> let's say that you take it. we go through this whole rehearing again. we have briefs submitted, that kind of thing. >> the d.c. circuit has discretion on how to proceed. they would require new greece and you argue that would take probably just about as long as it did this time. >> let's say they don't hear it. they don't take the case. the petitioners will likely go to the supreme court speak with some of them have said that they will. wouldn't be surprising. >> i think the person to my left would be chomping at the bit to submit one of those petitions. >> right across the street from us but i never go over. the cafeteria is not very good. would not recommend it. >> what are the chances the supremes would take this? >> i want to start talking and someone can interrupt me to say something more interesting.

the simple answer is always low. it's always a crapshoot to try get a case before the supreme court. that said, this is one of i think for cases that are currently proclaiming up to the circuit court of appeals that make it to some really interesting questions about deference, any particular how thoroughly courts need to review agency decision-making before granting deference. i think this is the most compelling of those cases and there's a lot of talk that the court is interested in clarifying some of these issues. i think there's a much better chance that ordinary that this case will be of interest to the justices. it's much more likely -- >> if you were in vegas what are your odds? >> i don't go to vegas. defcon is going on in vegas and i'm still not there. spent i think there's disagreement about the odds as well.

>> take what i'm about to say with a grain of salt because i will be hard to argue against. the supreme court doesn't take cases because they're interesting. it takes about three quarters of the cases it does in order to resolve certain conflicts over the meaning of federal law to be statute. it could be administrative law principle. i haven't seen any circuit conflict alleged of any relevance in this case. the petitioners have an incentive to identify because it's also a reason to grant rehearing en banc and they didn't. but the supreme court does decide in both cases because they are important, and in those contexts what the petitioner really needs to do, it's important and very wrongly decided i think that would be a tough road to hell. in part because it's true there's some debate at the margins i think this is a terrible case for the court to take up for those who want to change the logic of this is that

the core of what the justices including justice thomas who the petitioners would have to count on being on their side, think chevron deference up to a point which is a technical area. we haven't talked about brand x. with the supreme court has already heard this issue before and they said this statute is ambiguous. they already heard this issue and they said in an opinion written by justice thomas this is ambiguous. we will defer to the agency's revolution of ambiguity. anybody who wants to get the court to change chevron is much more likely to a success in the case where the debate is really not that technical. it's the agency doing what a court could very easily to itself within its expertise. >> if you were a betting man, what are your odds? >> the ordinary odds, so setting aside opposing him a petitions is about 5%. i would say, although that-that

but not much more. >> i would say 15%. to push back a little bit, what i said, this case presents issues that i think the justices will find interesting. i mean it would like to present compelling important issues, particularly relating to questions, so three points i want to make. first, i believe that both the fcc and the d.c. circuit interpretation of brand x. was wrong. i believe the three justices currently on the court are likely to say no, that's not what we meant. what are you guys thinking? they will view this as an opportunity to correct that understanding. there is also a series of cases over the last roughly decade dealing with how to agencies review -- how to courts review agency action when the agency is

changing its fire policy? there are some really cool empirical evidence that shows if courts grant, i should give a shout out to the author of this work, as walker, or fresh at ohio state university -- >> everyone will rush in google that. >> this work shows in case of an agency is change its fire policy, if courts grant deference the more likely cannot afford to agencies holding if he did not grant deference they are more likely than not to find agency's decision problematic. this is an incredible discontinuity amongst agency decision-making and deference doctrine. that could be fascinating to the court. >> take us out of the weeds a little bit. i think it's important for those in the room and those watching to remember that the threshold, there are two thresholds that have to be met. whitish have to convince the d.c. circuit cuba here, but you

have to convince the supreme court to actually hear your case which is a very rare occurrence. i won't quibble over percentages but it's much, much, much less likely, 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 get the outcome they want. >> timing wise, when would we expect the court if they're going to take it, to take it? what did happen like this your? >> 2024. >> there are two quarts we're talking about. the first thing is the d.c. circuit court rehearing. as we said that could take a year if the artisans being written.

if i have to take a percentage number i would say the odds are 100% that we get, if the decision is not to we hear, eight out of 100% that we get at least one strong dissent, if not several further elaborated upon our concern. >> the one thing i'm thinking is right now with the supreme court where there are eight justices. it's unlikely if this case were to get to the supreme court, if it will be taken by the supreme court, that we would have nine justices by then, hopefully. >> it depends on how long this drags out. if i am right, but to everybody on the panel agrees we hearing in general is unlikely and maybe the rehearing doesn't happen because these are the issues at a level of complexity with the court might say these are things for the supreme court. whatever reason let's say the d.c. circuit denies rehearing but there are these descents. those dissents, the whole thing

may not be result into the next administration. it could very well be by the time the issue goes up to the supreme court, so that will be fortified is gone but the d.c. circuit find announces what they're going to grant rehearing. if they said no, we are fortified is a which to file a petitions with the supreme court. >> an additional 90. >> ninety total. it's already been 45. i'm not an appellate lawyer. this is why they pay kevin that big box. another 90 days from ben. so three months then the supreme court doesn't have a particular shot clock. i don't know what happens. it seems like a black box. the point is you could very well see a knife 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. the point is this is likely to

take a long time to be resolved. when does get up to the court i think we will have the sense that will make us seem like a much more important case than it probably would. i think the odds are higher than 15%. i don't know where to put that. >> let's just assume that maybe it doesn't get to the supreme court. what happens then? we've got a presidential election coming up. we've got congress before people were saying that they were going to do something. is this issue overcome is my job over? 20 to fight a different issue debate expert on? i really don't want to have to do that. just kidding. spent if you can judge by the language in the republican party platform, i think it's pretty clear to even use the phrase

common carrier, and that suggests to me that republican president would likely dismantle the common carrier regime. while it's true so long as we stay with democratic president and we don't get this we heard by the supreme court, that's very different from lasting protection. it's ephemeral. it's going to be vulnerable. these protections are going to be vulnerable to every national election. that's what i hope we will get a chance to talk of it on this damn about the prospect of giving the fcc and proponents of net 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 spent reversed themselves in one month when president obama intervened. >> that's not true and you know that. >> look at chairman wheelers comments. they were reverse within a

month. >> look at the e-mails. >> my point being unrelated to any -- i don't know if these are accusations of that intense on the fcc -- >> yes. >> this is an issue that's been carefully considered and iterator upon for over a decade. the fcc, to reversed 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 to this point here. i think what i want to reiterate for the audience and for those here, what we saw play out over the course of 2013, 2014, 2015 was an important political process that work. congress writes a statute, the agency interprets that statute, it does so in different iterations. sometimes those decisions are overturned by a court and sometimes they are upheld. what we've seen is a long

proceeding with multiple parties engaged in very important back and forth debate and a commission that ultimately hearing all of that input and under careful consideration of all the things in front of it issued a conference of order which was carefully tailored to the issue at hand, if the d.c. circuit upheld that. i want to be clear we're at a point where this is, with the exception of any of these never asked her a passport that we've debated a bit, this is settled law and i think -- >> if i'm hearing you right, would you say that, let's and nobody takes this case, democrats are going to say we won, that's it, we are done. what do you think? you're right. there are probably some

republicans support net neutrality. >> 4 million americans, i assume some of them were republicans. >> right. but in congress do think the democrats in congress would not be open, because my thinking is that perhaps maybe the republicans in congress might want to take this issue up the other seems like they have a lot of other issues. >> the 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. i think the time is to move forward and to accept the rules as the lawful and. >> you think the rules will just be accepted. you don't think we will see -- >> i hope we don't. >> i really, really hope that sarah is right. the reason that i'm concerned about this at issue is because i believe she is wrong. under the approach to reviewing agency changes of policy that the fcc has put forward in the d.c. circuit has embraced, a new fcc could very easily reverse

course. i think we cannot have policy continuing to ping pong back and forth and back and forth and back and forth. i think the courts have told agencies to a higher standard than they had done so here when agencies are changing decisions. i believe that's what the supreme court wants and i believe that's important reason that this is likely to get to the supreme court. the approach of the d.c. circuit has taken allows agencies to the easily change their policy preference. >> du jour likelihood of just jump above 15%? >> what i see very likely i'm talking compared to the 5% baseline. i'm at 300% of the baseline. >> i want to jump in because this is really, really important. again you may think net neutrality is great, you may not care, whatever. you should be concerned not just about the sec's claims the authority under again to

provisions transit and title ii witchcraft and enormous power to regulate the internet but you should be concerned because number one, the agency in order to change its mind, back in 2002 and 2005 said broadband was not a title ii common carrier service. angier said actually it is with no real economic analysis. this is what williams said this primer about your that was step one. claim of power and also we think it's easy for us to justify changing our minds. step two was don't worry, we know you're concerned about title ii, we will tailor title ii down to a modern version. it isn't going to put price controls and unbundling mandates so that network would have to basically about other people to resell the service. don't worry, we'll and all that because because congress gave us this power to forbear the people tailored to act.

that forbearance power that congress gave us, we know congress said was most analyze competition as part of forbearance but we think the market is competitive enough for us to forbear but it's not competitive, so we don't need regulation in the first place. we do this together in understanding both cases what the agency has done is make it really was easy for the agency to do whatever it wants, then you have a realization that the agency has made it easy for a future fcc to either expand title ii to cover other services which is what our entrepreneur intervenors are worried about, or to change its mind completely about title ii and say sorry, to overcome will go back to when were in 2005. but also on forbearance the fcc can just change its mind. what you get any and is a complete seesaw. in other words, all of thi thiss the courts don't step in, all us into getting decided by elections on behalf of the

agency wants to go to one degree or another. if you that if i but you have no certainty about investment for infrastructure. then you start to worry about the economic stake it gets unleashed $1.4 trillion of private investment since 1996. you get the possibility for an fcc -- >> do you think congress will step in? >> absolutely. republicans have already proposed a legislative deal that would give the fcc authority just as congress passed legislation back in 2006 to do this, that would give the sec's authority to address the core issues of net neutrality. i think it's unnecessary. republicans have offered that deal and contrary to what sarah said, around is because the president made this a partisan issue ready to a line in the -- >> parts issue. >> but again could hold on. 2006 republicans passed a

rewrite that gave the fcc authority to enforce the open internet policy statement if they were ready to do a deal and it didn't work out. in 2010 the democratic chairman to his credit tried and henry waxman try to negotiate and republicans thought they were about to win the house so they didn't want to do a deal. now republicans have offered a deal in complete sincerity and democrats -- >> come on. they offered a deal as the democrats are running the victor let. why would they take a deal? >> there are good reasons. >> they were -- i don't think was a great deal. >> if you're a democrat you should be terrified because it means the fcc can forbear from every part of this order an entire rest of the act with essentially no analysis. in other words, there are lots of good reasons why both sides would've wanted this resolved with a clear statute, the kind of what democracy is supposed to

work where we resolve policy matter, by the statute, given agency standard and the courts hold the agency to that. >> the order was 400 pages. this is maybe not done under the exact analytical framework that you would have liked to have seen or that hal would like to see but to suggest this was an unreasoned decision devoid of any analysis, it's just untrue. >> do we want to make apologies to tim brent at the site him speak with you should explain. >> tim brent was one of the three chief economists that judge williams decided. that the fcc ignored in its rulemaking. we talk about analysis but i just got to stick to the economic analysis. with respect to economics, there's really nothing done on this score. to an economist you would have to demonstrate not only does

your policy generate benefits in excess of the cost but will out the possibility that some less restrictive alternative like case-by-case treatment could generate even greater net the difference. there's a one line dismissal despite the fact three former chief economists were saying consider less restrictive, there's a one-to-one dismissal no analysis just with the word cumbersome. nevermind the fact that the case-by-case to take care of it zero rating cases which are effectively the same thing to an economist. ..