change in the law. >> your colleague has already said that the appeals panel should not be the last word when it comes to a net neutrality. >> of course, because it did not go his way. if it had on his way, -- he is not happy about that. >> can congress give the fcc to regulate the internet? >> if we want to change the law, we can. the court ruling is unequivocal in that regard, but we can certainly change the law and give them explicit authority, which is apparently what mr. markey wants to do. >> when you expect some movement on this issue in your committee? >> i will work to make sure there is no movement on it. i do not think we need to

legislate. i think the internet is booming. telecommunication policy in america today, which is based on free markets and private capital, has been very successful. it is one of the key areas of the economy that is expanding and is profitable. if it is not broke, don't fix it. if they choose to do something, we will participate in the hearings and try to make sure that the free market witnesses have equal access to committee. i would predict that we will be able to defeat in the bill that they try to move to regulate the internet. >> in your view, what are some of the implications if congress does pass the bill saying that the fcc can regulate the internet? >> you would have less innovation and freedom on the internet. you'd have a more restrictive internet, probably higher cost.

you would slow down the broadband deployment. the private sector has spent billions and billions of dollars of in the last decade putting in the infrastructure. it is almost ubiquitous now that everyone in america not only has a pc at their home and work, but they also have a hand-held device that has access to the internet. we are in the middle of a big success story. keep in mind, all the court ruled was, comcast said it reserved the right to charge people that used a lot of their broadband capacity for high- definition video, the comcast reserve the right to charge them a little bit more, and perhaps on occasion to manage access at

height peak times. comcast never actually did it. they just reserved the right to do it. the fcc said that contest did not have that right -- comcast did not have that right and that the federal government can set the terms and conditions for the people who are providing the infrastructure of the internet. the court ruled that the fcc did not have that authority and the comcast's of the world to make that investment can make sound business management decisions. people use more and use it more frequently might have to pay a little bit more. comcast nor any other provider has ever tried to restrict access in the sense that little guys did not have the same access as big guys. that never even attended that. >> we have been talking a lot on this program about the national

broadband plan that was just introduced. how does this decision affect that plan? >> i think it makes some parts -- one thing that has been put up for discussion is regulating the internet under title to of the federal communications act. i would say that this ruling makes that a moot point. adult abroad but -- i do not think -- they want to convert the universal service run from a hard-line find to compete or at least to subsidize the private sector in deployment of broadband and throughout america.

i am not opposed to broadbent being deployed throughout america, but i don't see that the private sector is doing it with its own funds, what we need to subsidize or in some cases supplant public funds with private funds. i think this ruling makes certain parts of the broadband proposal more difficult to enact. >> if they move broadband under title two, it would allow them to regulate broadband as it does land lines. senator kerrey was quoted as saying that congress needs to act. and of the congress did not intend for cable and telephone broadbent internet service providers to fall of sought the authority of the fcc to protect consumers. essentially he is saying he thinks it should be under title2.

>> that would be one turk -- one interpretation of his remarks. what that listeners need to understand is that senator kerrey and congressman markey want an internet that the federal government's through the auspices of the fcc has more control over. people like myself want an internet that is as free as possible of government interference. there may be general guidelines that the fcc sets for access, but in a specific case, we let the private sector fund the internet and through free-market interaction, determined the contract by which the big users like google interact with verizon or at&t or comcast. so we have it as government free as possible. senator kerrey and congressman

markey, although they call it net neutrality, that is kind of a wolf in sheep's clothing. they want an internet that the fcc sets terms and conditions on and has regulatory authority. that is what would happen if you put the internet and broadband under title 2 of the federal communications act. >> they are talking about how this is going to become a big lobbying effort, and millions of dollars could be expanded by companies and interest groups to or involved in a net neutrality act. >> people who want to regulate the internet will try to overturn the court ruling legislatively. i do not dispute that an act of congress can trump a court room. i agree, but i do not think congress needs to act. i think the court ruled properly. i think the internet has been a huge success. i think our general broadbent policy that we put in place in

1996 has been a big success. i don't want an activist fcc stepping in and dictating investment decisions and also setting the terms and conditions for pricing and access to the internet. mr. markey and senator kerrey appeared to want that. i don't, and i do not think the american people do. i don't think the majority of the users of the internet do if you explain the issue to them. what confuses the issue is that the term that is used, net neutrality. if you ask people if you are for its neutrality, everybody would answer yes. as it is implemented, net neutrality by mr. markey and senator kerrey is not neutral. it is just the opposite. it is a government regulation of the internet. >> joe barton is the ranking member of the energy and

commerce committee and house of representatives. thank you joining us. >> my pleasure. >> we talked with the general counsel for the group and he argued in front of the three judge panel. >> when you are arguing for free press in front of the three judge panel, what was your strategy? >> they had already argued and it was clear by that point we were going to lose. the question was, how broad or narrow with the ruling be? the treasury -- the strategy was just to encourage the judge to have very clear guidance to the public and the fcc, which is exactly what the court did.

>> when you said you knew you were going to lose, could you give some brief indications of how you got that vibe customer >> at that point, comcast had argued and gotten a few softballs. it was incredibly aggressive. when i knew we were going to be in the d.c. circuit, i had a pretty good idea we were going to lose. the last question that was asked was, if you are going to lose, how do you want us to rule against you? when the court asked you how you want to lose, that is a pretty bad sign. >> when you wrote about this, he said we were given the guidance we wanted, but not the answer we did not. >> if the fcc believes they have a mission to keep the internet open and ensure innovation, it

is still available on the internet. what should they do? we were hoping they would continue on their current regulatory framework. as it turns out, that have to go back to the drawing board to regulate broadband. >> is that title 2 that we hear about? >> the analogy i try to use is, when we were talking about the financial collapse and deregulation, people talk about shady instruments that are kind of like insurance but not regulated like insurance. what the fcc it in the bush administration was something similar. a classified network technology as though it were twitter or some unregulated technology.

you have to call insurance it insurance. internet access is not twitter. it is more like phone networks. >> if the fcc wanted to adopt title 2, is it as simple as making a boat? >> 3 votes on the commission. justice scalia thought it was the obvious way of reading the statute. several years ago when the democratic commissioner dissented from the original order, changing this debt to -- changing the statue, he described it as a gigantic -- a gigantic leap into no-man's land. it is not a legal question so much as a political question.

the carriers are very powerful because they give a lot of money to congressman and have a lot of influence in washington. it is a question of if the public will stand up in doing the right thing or will the carriers have their way? >> on the political front, do you think chairman genachowski has the will to do that? >> i think he is a very smart guy. i think that any person indeed any regulator wants to act in favor of the public really needs the public standing loud and strong with them. it takes a lot of will to stand up to these powerful carriers. if the public stands with them and says we stand for an open internet, it should be freer in the u.s. that it is in china even if it is delivered by private companies. it will be a lot easier for him.

>> as far as responses to this, one of those responding was michael powell. he said specifically when he was talking about title 2, that if the fcc wanted to establish itself as internet overseer, it would continue to have jurisdiction of problems. >> michael powell is wrong. he is the one who got us into this mess. he is absolutely wrong. if the fcc reclassifies what they do, they will never have the authority to regulate things on the internet like sharing photos on twitter. >> you talked about the title 2

aspect. your somewhat helpful in some areas. what do you think about this decision and what it means for elements of the national broadband? >> that is where i am slightly less hopeful. this decision goes far beyond network neutrality. that is a concept that people should be able to go wherever they want on the internet and not need permission from their phone or cable company. there is a huge coalition organized around a neutrality. beyond that question of net neutrality, this jurisdictional ruling indicates a huge range of things that they could do in their national broadband plan. it includes things like insuring access to all americans in rural areas and underserved areas, making sure there is cyber security. there's a whole range of things implicated by this court decision that necessitates the

fcc to go back to the drawing board and get on firm regulatory footing. >> chairman waxman said he would work with other democrats on the house energy and commerce commission on finding ways to give the commission more legal authority. what did they do from a congressional standpoint? >> congress could pass a statute that would clarify this issue. i am a little skeptical that congress could move quickly enough. in the meantime, the fcc should get back into the regulatory framework that exists. congress should debate the issue and there will be a fallout review by cable companies. in the meantime, the fcc has to do things to make sure that the broad and infrastructure, which

is falling behind in terms of speed, prices, and openness, does not fall behind in this critical infrastructure and her are economy in the next two years. >> our guest is general counsel for free press. you can find more about their decision in response to it on line. thanks for your time this morning. >> also this week, howard simons, a lawyer who argued on behalf of the national cable and tell commissions -- cable and telecommunications association. >> he says this week's decision about the comcast case, or at least a discussion about the authority the fcc has over broadbent providers. >> i think it may take it to a different chapter, but i don't think it and sit at all -- i don't think it ends it at all. this is the end of the fcc's

authority over broadband. a lot of apocalyptic statements from proponents of net neutrality. i think what the decision actually says is that the fcc has to be more careful and rigorous in finding sources of authority to regulate in this area. >> you said this could open the next chapter. is that what we hear about this week, the title one versus title to? >> that chapter was open already. net neutrality proponents have argued that title 2, the part that regulates the telephone utility, is the proper source of authority for broadband regulation. that is not a new idea. i think the net neutrally proponents have seized on the court decision this week to give more momentum to that. that certainly will be part of the debate. an evil part of the debate will

be the ability of the fcc under title 1, the park that more likely regulates information services, whether title one remains available to the fcc as a source of authority. i think there is a serious debate to be had over the extent to which title one does remain available. >> is there a way to expand title one to give the sec more legal authority? >> i would not say expand taiwan. what the d.c. circuit said was set in a number of cases of the past couple of years. taiwan is not a blank check for the fcc. it is a source -- title one is not a blank check for the fcc. the d.c. circuit court did not take that authority way. what they said to the commission was, if you want use tie 1, you

have to link the exercise of authority to some affirmative grant of authority that congress has given you in some other part of the communications act. what it does, it is a framework designed to keep the commission focused on how use is title 1 authority so that it is linked to their statutory responsibilities and not totally open-ended. >> before the decision, the chairman had announced the idea of formalizing for principles. what does the decision mean for that process of formalization? does it stop it or change it? >> i don't think it necessarily has to stop it. i think what the decision does is put the commission to the test of articulating bases in

the communications act. the communications act itself recognized that textest. in the announcement of the proposed rule last fall, the fcc asked the question, which provisions of the communications act can we link our proposed net neutrality rules to in order to exercise our so-called hot what authority? this is not an easy even for the fcc. they recognize this was something they would have to lay out in order to justify title 1. braxton so much went back to the original act, because of this decision is it a wrap reworking of the act itself as an effort that would be made? >> certainly there are those that have called for that in the communications industry. there are folks on the hill

since it -- who suggested maybe it's time to look again at the communications act and updated. i think those efforts are always appropriate to consider. i think the communications act as it stands today is a robust document that potentially provides authority for the fcc to regulate in the broadband area if it proceeds carefully and if it can justify. the ball is back in the court of the fcc to explain how they can do that. the decision is not even a wake- up call. is more like the snooze button going off. you have to be rigorous and analytically precise. the problem with your that was overturned was it was none of those things. >> if there are legal questions that have to be addressed if

the reclassifications take place, where some of those questions? >> the fundamental question is what has changed since 2002 when the fcc birds classified broadband intermission services? i think there's a real factual hurdle that the commission would find difficult to get over. the characteristics of broadband service the commissioner relied on in 2002 really have not changed that much. internet access is really a service that connects people to the internet. the underlying transport the broadband is not separately sold to people. you do not by a pipe plus internet access. when the supreme court upheld a determination that broadband service was an information service, they themselves relied on that factual determination. there was quite a debate back and forth.

whether there were two separate offerings are 1 separate offering, was it a pizza with toppings? yes, that is what offering, or was it a dog on a leash, two separate offerings? the fcc said it was a pizza with toppings, and the supreme court agreed. their growing to have to say what characteristics are different. >> some have advocated for the reclassification. do you think the commission has the will to do it? >> i think it's too early to say. there have been people at the commission who have long advocated this approach. i think the tradition dating back to the clinton administration has resisted those calls. as the complexity of regulation that reclassification would bring down on broadband, a title 2 regulation is not just

telephone regulation. is railroad regulation. the communications act, the telephone section was lifted from the interstate commerce act in 1880, designed to regulate railroads. that was lifted from centuries of english common law that go back to cartage loss from the 1700's. that is not a regulatory framework that is the upriver broadbent in the 21st century. were you surprised with the unanimous decision from all three judges? >> i was not surprised by the decision. i think there were clear in their questions. it is a truism that you cannot conclude much from an oral argument. in this case, i think the oral argument did foreshadow the decision. >> when you put out a statement on the contest decision, you call this a dangerous situation.

why use those words? >> it is a dangerous situation in that currently, under the existing legal theories that the commission has cobbled together, there is no recourse if an internet access provider blocks content or refuses to let you go to all what -- to go to a website that you want to go to our interviewers with your communication over the internet. that is the situation most policymakers think is not tenable, and not what congress intended in the 1996 telecommunications act. >> later on he said the decision by the commission to proceed against broadband providers under title to. how did you get to that? >> this is a very good decision for us and for the internet community and for consumers. it is a clear repudiation of the legal foundation beginning in

2002 that the fcc put together, relying on what they call ancillary authority to govern and police the activities of internet access providers for doing the wrong kind of things. in 2002, the fcc said that cable modem services, and later they said that telecommunications services that provide internet access were not telecommunications services, they were information services. many thought that was the wrong decision at the time. one of the assumptions that led to that decision have not panned out to be the case. in 2002, many policy makers thought that by 2010, consumers would have many more choices for internet access. you would have broadband over power lines and satellite and wireless. what we have come to learn is that for the foreseeable

future, most consumers will have one or maybe two choices for high-speed internet access. these companies are really the gatekeepers and control the on ramps to the internet, which is the public forum. because of their gatekeeper role and because of the service they provide, they really ought to be considered essential communications platforms, just like the telephone. if you consider them to be essential platforms, which the internet has replaced telephony as a central platform, then was the fcc reverses the 2002 decision, then they are on solid legal foundation. they can proceed forward against the very acts that comcast engaged in which caused this complaint to happen in the first place. >> is that the title 2 reclassification? >> yes. it is not that complicated procedure.

essentially it happened in 2002 to declassified, and the commission can revisit that decision and reclassified the services into title 2. it does not mean they are subject to the full bore of title 2 regulations. we would not be talking about regulating these providers. we would be talking about -- the rules people are talking about to protect consumers are in place. you have certainty that point for innovators in silicon valley that they can come up with products that will not be blocked interfered with. the telecom companies and cable companies have certainty because they know what the legal foundation is and what the rules are. consumers have certainty that their internet experiences will not be -- it benefits all shareholders in the space.