CT. Tea.

I got through a good portion of it with some breaks. You you know, I I needed coffee and snacks and a nap or two to get through. It's a lot. It's a lot. Right. But, you know, I I think that, for everyday people, there's probably three main takeaways that we should, you know, keep in mind as we move forward on this. So first of all, his proposal appeals to three bright line protections. That's blocking, throttling, and pay prioritization. So, what this really means for consumers moving forward is that the FCC will net will no longer be able to shield consumers from blocking or throttling by their ISPs, and it will allow, ISPs to charge companies for faster access to users. So blocking and throttling means, just to be clear Right. So blocking means, essentially, the ISP prevents people from viewing, certain websites or certain content. Okay. Right? Thralling just means slowing it down. So I I think the most prominent example that we when we think about throttling, what we're really thinking about is the example of what happened with Netflix a few years back when, basically, ISP slowed down access, to Netflix. And so there there's some consumer outcry about that. You know, Netflix was compelled to make an agreement for, you know, better service. But I think that generally when we're thinking about thralling, that is more or less, the prime example that people think about, when we're talking about that. Perfect sense. Okay. Sorry. So you were on point two. Right. And and so, you know, point two, it prevents states and localities from implementing their very own net neutrality, protections. Right? So it preempts state and local actions. So if you are in an area of the country that, where you have proactive legislators who see what's happening in the FCC and want to protect, their citizens from that sort of action and those sorts of practices from ISPs, this action in theory, prevents states and localities from doing so. I think that it will probably be challenged in in court, obviously, like the rest of this order. But for the time being, that's a part, of the rule making put forward by the FCC. Is this the FCC learning their lessons by a lot of states trying to enact broadband privacy laws after they overturn those? So I think that's a part of that. And in the run up to the final order, we saw a number of ISPs submit ex parte filings with the agency asking for this sort of preemption, asking for the FCC to step in and prevent states and localities from doing this. This was not, I believe, a part of the initial notice of proposed rulemaking. This is a new addition. But, you know, I I think it is a reaction to what a lot of states and and localities have done on broadband privacy. You know, there's, I think, some concern from ISPs that they're going to be forced to respond to a patchwork Mhmm. Of of state and local regulations regarding net neutrality. You know, of course, the easy way out for them is to just not violate principles of net neutrality. Abide by the terms of the open Internet order. But, you know, obviously, I think that if they believe that these rules are restrictive, they want to block it any way, shape, or form and this is a step forward in the way of doing that. Okay. And, you know, finally, this advocates protections of cons of consumers, to the FTC. Mhmm. You know, I think this is the component that doesn't really get quite as much attention,

So, you know, on the surface, it would appear there's not necessarily anything wrong with shifting protection of consumers from one agency to another. You know, I really want to stress on the outset that the FTC is an important agency that staff with a lot of hardworking, you know, passionate, dedicated public servants. You know, I I say this in part because I have a friend who works there as a staff attorney. But, you know, this is you know, it is an important agency in the general consumer protection framework. But at the same time, you know, the agency does not have, the same sort of authority to protect consumers compared to the FCC. It does not have, let's say, the same sort of network engineering experience and it does not have the same rule making authority, as the FCC. So, you know, when I talk about rule making, what this really means is that is that the FTC can only pursue violations of consumer rights after the fact.

Any case, so, you know, it it basically, you know, they can only pursue cases on they can only pursue violations on a case by case basis. Right. Right? And the problem with this, particularly in the context of consumer privacy, is that all a lot of these major ISPs have so many subscribers. And this means that millions of people are going to be subject to privacy harms before the FTC takes action. You know, and even then, the agency can only correct the specific practices of the offending ISP. And, you know, given how given the the very nature of privacy harms, right, these harms are specific. They are difficult to correct. You know, because of that, a proactive rule making structure is really, really helpful in this context. But it's not something it is not a power that the FTC currently has. But, you know, more than that, there's another point here that I really want to highlight. You know, right now, it's not even clear that the FTC has a legal authority to regulate many ISPs. You know, the FTC act exempts common carriers, like voice telephone service from its jurisdiction. Right? So the agency cannot regulate common carriers. And right now, there's a case in the Ninth Circuit, which is on the West Coast, regarding the scope of this exemption. And the court in that in the case found that, if a corporation if any component of a corporation has a common carrier component to it, then it is outside Right? So that's AT and T. That's Verizon. Right? So if you are an Internet service provider that also provides voice telephone service or any other sort of common carrier service, you are theoretically outside the jurisdiction of the FTC at this point in time. Right? And now it's, you know, it's worth noting that this case is currently under appeal. It's going to go before the it's gone before the entire ninth circuit. They've already had arguments in the case. Now I I would also mention that FCC knows about this. Right? This is something that we mentioned in our own filings with the agency. This is something that commissioner Brendan Carr said himself, when he was general counsel of the agency, in a filing with the ninth circuit. He current state of the law creates an open gap in the federal regulatory regime. That's a direct quote. Wow. And what this really is is, you know, the f the FCC is essentially blindfolding consumers, blindfolding consumers, pushing them into the middle of a busy highway at night, and trusting that oncoming traffic is going to see them in time to stop. You know, it's reckless. It's a form of administrative malpractice. And I think that, you know, if the FCC moves forward without taking this into account, it's a betrayal of the public trust. You worked really hard on that one. I did. That was good. That was good for us. Yeah. Alright. So,

So after the last election cycle, I'm really hesitant to start making any predictions. You know, anything could happen. Right? But in theory, with the repeal of these rules, these protections, ISPs will be free to block or throttle traffic or implement paid prioritization schemes at at will, in violation of of net neutrality principles. You know, and this might be wishful thinking, on the behalf of consumers, but I don't think they're going to end up going quite that far at least in the short term. Right? I I think that ISPs are going to be constrained by the realities of the electoral process and and by agency rulemaking. Right? So, you know, first, it's worth noting that the FCC chairman is appointed by the president. And without taking a position one way or another on the tenure of the current office holder, I think that given that we may have a a new president in three or so years, there is incentive on behalf of ISBs not to provide a pretext for a shift in rules under new FCC leadership. So that's one component of it. Another part of this is the fact that if the FCCs take any drastic step forward that handicaps innovation from edge providers, you know, Internet based companies, right, there becomes, there it creates, you know, it creates a showing of harm, right, which could then create the kind of grounds necessary to have a stay in court, regarding the net neutrality or appeal. So, you know, with all of this in mind, it's really within the best interests of these ISBs to show that they can be good actors and can and can self regulate. You know, in the short term, I might expect ISPs to allow for some form of pay prioritization on a limited basis. But, you know, again, a lot of this is speculation. A lot of this is contingent on the kind of, you know, political and and legal environment that we're walking into. The hope is that, you know, ISPs defy, some of these expectations moving forward and maintain some form of net neutrality principles. But and, again, I I do think think that there is going to be some form of accountability from from the building public, on some of these issues. Well, sure. And public sentiment with all that pulling seems to very much be on the side of pro net neutrality,

what's the landscape look like? So there's going to be a vote on this on the net neutrality appeal at the FCC on December 14. You know, there admittedly are limited leverage or pardon me, limited opportunities for us to intervene directly with the agency at this point. It seems like the three votes are there on the Republican side of the commission to get this through. You know, that being said, there's two things I think that people can can do and two things I think, are going to be, you know, active levers for, you know, both folks here at CDT and also, you know, for the general public to get involved in terms of protecting principles of net neutrality. You know, the first thing that I think that the general public can and should do is contact your members of congress. Right? So there's not necessarily up those phones. Exactly. Right? And, you know, I understand there's so much going on. It feels like every day there's another crisis. You know, the obviously, the tax tax bill is getting a lot of attention. Right? We've gone through the health care, the the ACA repeal. But, you know, this is another one I think of those fundamental issues. We're talking about fair, open, free access to the Internet. Right? This is, you know, a fundamental part of, I think, modern American life at this point. And so one of the things that people can do is contact your members of Congress and tell them how much you value, a free and open Internet. You know, ask them to speak out. Ask them to to to work with Chairman Pai and the FCC and to interject with him and tell them, what this actually means to you as a constituent. Right? And even if you aren't able to get through to your member of congress to convince them, what this does is it creates an accountability structure. Right? If your member of congress does not stand up for what you believe in, right, then you have a reason to vote for someone else or to work towards someone else's selection in the next cycle. Right? This is obviously not an endorsement of, you know, voting for anybody else. I do not want to go that far. It's not a lot of declared candidates. You're safe right now. Right. You can say whatever you want. Right? But, you know, to to the extent, hold your members of congress accountable. Right? If you value a free and open Internet, you should work with your members of congress to make sure it's protected. The second component of this is this is going to court. Right? This is almost certainly going to be challenged, in court. I don't necessarily wanna go too deeply into legal arguments, but this is going to be challenged in court. This could be a two to three year process about whether or not the FCC is is acting within its authority as an agency. So, obviously, that's something where I think all of it at CT are going to remain engaged. I think it's a process that people should watch very closely. But, you know, I understand that people are frustrated. I understand that people are upset. I think they should be, but this is by no means over. Right. Well, it's a tough road ahead, but we're very lucky to have you working on it. Thanks so much for joining Tech Talk for us. Of course. Alright. Thanks, Brian.