will increase certainty for businesses, investors, and entrepreneurs. ,he interest of innovators their interests, and the interest of broadband providers, and american consumers are aligned. catalyzes at the edge consumer demand for broadband, consumer demand spurs private investment and innovation. our action today will foster an ongoing cycle of massive investment, innovation, and consumer demand, both at the edge and in the core of broadband networks. our action will strengthen the internet job creation engine. our action will advance our goals of having america's

broadband network b the freest and the fastest in the world. the open internet order was the topic of a court case heard this week in d.c., verizon versus the fcc. joins us byell phone. commissioner, what was the argument that was heard at the commission about this open internet order? >> thank you for having me. this is a very and port and topic and you are covered -- important topic. the court arguments earlier this hours, even for two though the original schedule was 45 minutes. that shows you how interested the judges were in the subject matter at hand. legally andx complex factually and one of my

concerns is here we have a room , and are theys determining the fate of how the internet should evolve? that can be a little bit disheartening. engineers and academics and user groups. what is at the heart of the court case is whether or not the fcc had the legal authority to do what it did and there are lots of legal theories, different layers of the statutes. a special question for me back in 2010, what is broken in the marketplace that the fcc was trying to fix? the fcc did not do a bona fide study before leaping and i think that was a mistake. nothing was broken to be fixed and i did not think the fcc had

the legal authority to do what it did. are plenty of other laws on the books that will protect consumers. there is no dispute that the internet should be open and freedom enhancing and a permission must place for all of us to improve our lives. there are antitrust laws and consumer protection laws and that the tension -- potential for class-action lawsuits should internet providers ever discriminate. congress needs to adjust this and the fcc cannot legislate the way it tried to do. >> how long did the fcc applewood this issue of net neutrality? >> -- grapple with this issue of net neutrality?

academically, people could see or contemplate whether or not there would be an economic incentive for internet service providers to discriminate .gainst applications as we have seen the higher use broadband and the mobile screen is becoming the first screen for consumers, i think we have a new era. up the wayrns held they did 10 years ago. >> that was robert mcdowell, former republican commissioner on the fcc. thank you for joining us on "the communicators. joining us is randolph may and gigi sohn.

all, what is public knowledge's involvement and position with regard to the verizon versus fcc case? x public knowledge is a nonprofit advocacy agency. internet users to have an open unfettered internet that is not controlled by gatekeepers. the one that drives economic growth through speech, democracy, creativity. we were supporting the fcc's determination that there was a concern with these bottleneck companies controlling who are the winners and losers on the internet and they have the right

or the legal authority and the authority under the first amendment to protect consumers and protect competition by prohibiting these gatekeepers certain content services and applications over others. >> same question. >> peter, thank you for having me. gigi and i are longtime friends. the free state foundation is a nonprofit and educational and research institution as well. nonpartisan. we are a free market oriented organization. focus onily communications, policy, and internet issues. .hat is our primary focus i have been involved in the net neutrality issue since the very beginning.

that totion has been oppose the adoption of net neutrality rules on both policy and legal grounds. as commissioner mcdowell said, and this is an important point in terms of the policy issues, there was really no evidence and the commission itself did not make any findings that the internet providers have market power. gi has referred to their bottleneck, but that is inconsistent with the commission's own findings, or lack of findings regarding their market power. i start from the proposition that there is not a market failure. if consumers are not being harmed, there is no reason for

the commission to regulate in an anticipatory fashion. i think the commission lacks i think we also were intervenors in this case and we argued the commission's rule violates the first amendment. , thenk the court will hold fcc does not have the authority to regulate these internet writers -- providers as common carriers and that is what the .ommission's rule actually does i think the court's decision would turn largely on what the fcc has done is say, we will regulate you just as we backated common carriers

in the old monopoly telephone era. but there is good news and bad news on what happened monday. to the extent that the telephone and randy and commissioner dowell said congress never gave the fcc the power to regulate broadband notrnet access, there did seem to be much question that they did have that authority. that is good news because if they were to rule otherwise, and you can never tell 100% from an oral argument what the ultimate outcome is going to be. >> and i will agree with that caveat right up front. likes it appeared -- >> it appeared the judges took as a given that the fcc had the authority to adopt these rules

under a particular provision of the communications act. that question does not just go to whether they can adopt not neutrality rules. he goes to whether the fcc can stop fraudulent billing, whether they can protect the privacy of consumers of broadband, whether they can promote universal access to broadband among all americans. , will the fccion be relevant at all? that is good. good is whato randy was talking about. seem to bejudges they were very concerned that the fcc, by prohibiting this discrimination against edge providers, was treating internet access

providers like telephone companies. common carriers have to serve everybody indiscriminately. they cannot discriminate in their rates, conditions, terms. the judges felt this exactly what the net neutrality rules did. you cannot treat non-common carriers like common carriers. let me tell you why the judges should not go with their concerns and why they should allow -- let me finish this one point. the common carrier relationship is formed when an internet access provider has a customer. under the net neutrality rules,

let's say i am verizon and you are a verizon customer. i can refuse to serve you. peter, i do not want to serve you. i will charge you more than i charge randy. there is no customer relationship between edge provider and my internet access provider. the net neutrality rules say if you are iron accents -- if you are an access provider, you can not charge the edge provider twice. there is no relationship between the edge provider and the internet access provider. and this court -- the easier point, when it comes to determine what is a common carrier and what is not, the expert agency should get deference from the court. had to judges telling the

fcc general counsel, this is not how common carriers were. it is in flat contradiction to its precedent and to common sense. >> there is a lot to unpack there. i found someat gig the oral argument. most people walked away thinking the fcc is going to suffer a defeat. asserts it seems like there is not a question the court will say the fcc has some authority over broadband internet providers. that is probably true.

i think they might well do that. i think the more important point is this net neutrality regulation that the commission really the fcc's central effort to exercise the regulatory authority over broadband providers. there are some other things that may do, like in force transparency rules with regard to internet providers. the whole thrust of this -- was to prevent discrimination. that is at the heart of it. thateality is discrimination prohibition that converts the internet providers into common carriers.

if the court writes a decision which strikes the antidiscrimination part of the rule, which most observers took to be the central part of the commission's rule, it has a good part of the commission's authority. it is one thing to say the commission has some authority, the most in porton thing the commission was trying to do was held unlawful, that is the good news really. this will introduce another part of the conversation. a good part of the argument

during the court argument had to ruleth whether the fcc's which prohibited internet providers from charging edge a price for reaching their customers or sending traffic to the broadband providers, whether that was whether the fcc could prohibit that, and it is pretty clear the court is going to say ist part of the rule unlawful and strike that down. , from the point of view

of the internet providers, and what they say they want to do and what verizon said it wanted rule is probably at the heart of what this whole battle is really about. i agree with that. i agree with randy to the extent that it will be a victory for our side if the fcc into having but it cannot exercise that authority in the most meaningful way possible. admittedin -- verizon they want to force edge providers to pay a second toll to get a better quality of service. that fundamentally changes what the internet looks like.

if i could address what commissioner mcdowell talked about. -- we do notew need the fcc to deal with it.dband, let the ftc do when it comes to antitrust do not haveonsumers a lot of rights and ability to bring antitrust cases. it is all about the competition. maybe a google, which could pay for the priority, could bring an antitrust lawsuit, but consumers are very constrained. it does not get to basic consumer markets. the ideal example of where antitrust law would not apply.

, his fccvin martin era found that comcast was blocking peer-to-peer traffic for no good reason. bet kind of case would not one where antitrust would reach it because it was not a competitive issue. orrent wasthat bit t filled with pirated movies, so they just blocked it. by the way, the fcc did have evidence that internet access providers were blocking more blocking orng -- discriminating. they have the right to make predictive judgments.

law is not a strong enough to old and the federal trade commission would not get work on concerns that agencies like mine care a lot about. >> i do not want to address whether the fcc should have absolutely no jurisdiction over broadband providers going forward or whether some people it over in the antitrust realm. that is where it should be, in my view. a problem with this whole proceeding, and a difference is, despite and i pointing to four isolated

incidents that could be classified as net neutrality incidents, there was no evidence of widespread consumer harm. with the way the fcc approach this case. it it itaph 78, knowledge to these rules -- acknowledge these roles would be put in place regardless of 's hadr any of the isp it goes to judge silberman's conversation. in paragraph 78, these net neutrality rules are good because we believe in openness. that sounds good.

openness sounds attractive and it makes a nice slogan. agree the internet is basically open. the other side of it and the problem with the way the fcc approached it, when you put in regulation that has the flat prohibition against discrimination, you have to recognize that there may be a cost to that and there may be trade-offs. trading theabout ballot -- the benefits of openness against the cost. and theycan be real can go to the current two new business models -- two new business models and innovation come at the willingness to invest if the broadband provider believes the only thing it can offer will be just like the next

broadband provider. the fcc did not wrestle at all with this trade-off because openness is good in and of itself. you have to be willing to acknowledge that there are some trade-offs and you have to understand there could be a deterrence to innovation and investment. >> the fcc did recognize it. you heard what the chairman just said. , thatdge providers thrive is good for the network and that is good for the concern -- consumer. you have this virtual cycle. that makes consumers want to buy internet access, ok? 97% profit margin.

these rules have been emplaced -- in place since the beginning. investnounced it will $21 billion in its broadband. these companies are not suffering. they can do innovative business models. there is one business model they cannot do and that is one that picks winners and losers over the internet. the fcc is not saying that you cannot innovate. if verizon wants to have its own content, comcast obviously has its own content. you can notplace, have a two-sided market. >> we are almost out of time. when and what will be the decision by the court of appeals? >> my guess would be it would be three or four months.

i believe the fcc is going to that will beat meaningful in the sense that it the eviscerate the core of net neutrality rule which was this antidiscrimination provision. there may be something left of i thinks authority, but they will suffer defeat. if that is the case, i hope the fcc will not rush to try to reinitiate other proceeding to put in place not neutrality rules again, but that it will engage in watchful ways to see what happens in the marketplace. authority to regulate broadband and protect consumers will be preserved. the antidiscrimination rule will probably be sent back to the fcc.

i expect the fcc to try again. rule willlocking probably be maintained. -- there isd pray one judge we did not talk about, judge rogers. she is likely to uphold the fcc's jurisdiction. the hoping she can convince judge to go with her -- go with her on the deference question. >> this has been "the communicators" on c-span. span, created by america's cable companies in 1979.

earlier this week, house and senate leaders awarded the congressional gold medal to the four girls who died in a birmingham church bombing in 1963. you can see the ceremony tonight eastern.at 8:35 tomorrow, vice president joe fryn speaking at the steak in iowa. >> judges are like umpires. umpires do not make the rules, they apply them. they make sure everybody plays by the rules, but it is a limited role. nobody ever went to the ballgame to see the umpire.

to see whether the fashion zone.thin the strike that suggested the job of the justice was relatively mechanical. when justice kagan was questioned, you do not want the justices to be the focus, you want the law to be the focus. when they make a decision, the law is not always as clear as the ball coming down the center there isrike zone and some degree of judgment that is whether in determining the statute is constitutional or not.

>> a legal scholar on the roberts court sunday night at 9:00. ther this month from nation's capital, look for a tv live coverage of the national book festival. readingne book club is "this town." facebook andon twitter. >> are series on first ladies continues to look at the life of edith roosevelt. in about an hour and a half, awardand senate leaders the congressional gold medal to the four girls who died in the birmingham church bombing in 1963. hillary clinton and jeb bush discussed the situation in syria.

♪ >> that was edith roosevelt, speaking in new york city 20 years after she left the white tose. she was the matriarch our rambunctious family and her husband, theodore roosevelt, was as outgoing as she was private. she was the groundbreaking manager of the white house, overseeing a major renovation that added a west wing, separating the family quarters from the president's office is for the first time. good evening and welcome to c- span's series, "first ladies." edith roosevelt will usher in season two of the series and the 20th century. we have two historians who know