The FCC's Digital Discrimination Rulemaking: Facilitating Equal Access to Broadband Services

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Welcome to Teleforum, a podcast of
the Federal Society's Practice Groups. I'm Dean
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Reuter, Vice President, General Counsel
and Director of Practice Groups at the Federalist
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Society. For exclusive access to live
recordings of Practice Group Teleforum calls, become
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a Federalist Society member today at feds
dot org. WELLO, welcome to this
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Federalist Society virtual event. My name
is Jack Darwin. I'm Associate director of
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the Practice Groups here at the Federalist
Society. Today we're please to host the
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panel discussion titled the FCC's Digital Discrimination
Rulemaking facilitating equal Access to broadband services.
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Joining us as a stellar panel of
experts bring a range of views to the
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topic and the interests of time,
we'll keep intros very brief. You can
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view our speakers full bios at fedsok
dot org. Our moderator today, Randolph
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Jamay is founder of President of the
Free State Foundation, an independent, nonprofit,
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free market oriented think tank founded in
two thousand and six. After discussion
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between our panelists, if we have
time remaining, we'll go to audience q
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anda. Please enter any questions for
our speakers into the q and a function
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at the bottom of your zoom window. Finally, one has always expressed this.
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Opinions on today's program are those of
the speakers joining us today for their
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delay. The floor is yours Randy, thank you, Jack, and welcome
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everyone. Thanks to the Federal Society
for hosting this important teleforum, and to
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the panelist for taking time to participate, and thanks, of course to the
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audience for joining us. We have
a distinguished panel of experts with us,
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and Seth Cooper, Harold Feld,
and Clint Odam. I'll say just a
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bit about them in a moment a
bit more, but first a word about
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the background for today's program. The
Infrastructure Investment and Jobs Act, signed into
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law on November fifteenth, twenty twenty
one, requires the FCC within two years
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to promulgate rules to quote facilitate equal
access to broadband service close quote and in
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satisfying that obligation, to prevent quote
digital discrimination of access based on income level,
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race, ethnicity, color, religion, or a national origin. Significantly,
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the statue also requires that the rules
take into account issues of technical and
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economic feasibility. The FCC issued a
notice of proposed rulemaking on December twenty two,
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twenty twenty two, and comments and
reply comments have now been submitted.
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Given the importance of widespread access to
broadband services, which I think all of
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the panelists will agree as a worthy
goal, the Digital Discrimination proceeding is one
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of the most important items on the
FCC's plate, so the panelists, from
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their own diverse perspectives, are going
to address key legal and policy issues presented
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in the Rulemaking a one to steal
any of the panelists thunder or take time
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away from them. I'm just going
to list briefly in broad fashion, some
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of the key questions that I expect
will be addressed. Does the Agency have
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authority under the Infrastructure Act or otherwise
to adopt rules that would impose liability on
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broadband providers based on a showing of
unintentional disparent impact or is evidence of intentional
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discrimination required? Two? In considering
liability, how should the agency take into
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account claims relating to the technical and
economic feasibility of making available equal access?
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Three? What impact will the rules
have on investment and innovation under the various
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scenarios? And then finally, what
type of process should the Commission employ in
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considering complaints of digital discrimination and whether
or not to impose sanctions. I think
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those are some of the key questions. Of course, there may be other
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aspects of this proceeding that come up. In fact, I'm sure there will
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be. Now I'm going to give
you the panelists titles and you can get
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their full bios. As Jack said
on the Federalist Society website, Seth Cooper
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is director of Policy Studies and Senior
Fellow at the Free State Foundation. Harold
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felled It's the senior vice president for
a Public Knowledge, and Clint odom is
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Vice President for Strategic Alliances and External
Affairs at T Mobile. I've asked each
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panelist to speak initially for no more
than eight minutes, and to be fair,
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I'm going to enforce that time limit, even though they're all my friends.
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And then I'm going to give each
panelist a few minutes to respond to
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each other, maybe even a couple
of times, and we're going to try
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and save some time for a few
questions from the audience at the end.
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So keep that in mind as we
go along. So with that, Cheth,
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you go first, and then Harold
and Clint will follow after you.
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So take it away, Scheth,
thank you, Randy, thank you to
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the Federalist Society, and thank you
to the fellow panelists who joined us today.
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The key problem with the fccs proposed
rulemaking regarding digital discrimination of access is
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that in important respects it exceeds the
statutory authority. And here I'm talking about
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the SEC's proposal to impose disparate impact
liability on broadband internet service providers. Certainly,
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intentional discrimination is squarely within the statute. If the statute means anything at
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all. It directs the FEC to
rules to prohibit intentional discrimination of access based
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on membership in a protected class.
But the statute does not authorize disparate impact
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liability. And there are three bases
for this just by reading the statute.
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Section six O five or six of
the Infrastructure Act. The first reasons that
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includes language about technological and economic feasibility. It does this in a couple of
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places. First in the declared statement
of policy and Subsection A. It's to
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declare policy the United States insofar as
it's technologically and economically feasible to enable broadband
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access on an equal basis to all
users within a providers area. And in
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that same language is included in the
substantive section B that directs the FCC to
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adopt a rule prohibiting digital discrimination of
access. So the SEC must factor in
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technological, technological, and economic feasibility
into its rules. Now that language technological
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and economic feasibility be speaks the factors
or reasons behind a decision maker's decision.
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In terms of deploying broadband, it
speaks to the decision makers intent rather than
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the end results for the users or
subscribers. The second reason the statutes should
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be read as an intent statute is
it includes the language based on In other
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words, it prohibits digital discrimination based
on one's membership in a protected class.
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That language in other cases has been
construed based on to mean the foundation or
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the source. And again it bespeaks
the decision maker's intent and what's going on,
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rather than the end result for the
users. And that's really bolstered by
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the third and perhaps the most important
fast of the statute. That's the lack
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of any catch all terms such as
otherwise, otherwise, adversely effect or results
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in So you have cases such as
the Texas Department of Housing and Community Fairs
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versus Inclusive Communities Project case from twenty
fifteen and some of the other Supreme Court
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decisions where they look at things like
the Title seven of the Civil Rights Act.
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They look at the Fair Housing Act
the ADA, and they find that
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when the statute has language such as
prohibits actions that otherwise adversely affect members of
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protected class that otherwise adversely effect or
that otherwise language is very key in signaling
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that it's focused on the results rather
than the intent of the decision maker.
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So it's for those reasons that the
statute is best read as an intent based
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statute. And beyond that, as
important is to stick within your delegated authority.
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I think it's the wrong approach to
impose unintentional disparate impact liability. Here
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became providers because it's it's really not
a good idea to impose that kind of
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liability when there are a lot of
factors out there that are beyond the provider's
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control. And so we're talking about
geographic terrain, when we're talking about the
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state of technology, when you're talking
about population density, when you're talking about
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the existence of market competitors or incumbents
with a large market share, when you're
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talking about different regulatory environments in terms
of difficulty in franchise agreements or getting infrastructure
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sited, or even availability of spectrum. A lot of those factors are beyond
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the broadband providers control or ability to
influence that much, and so I think
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the case for imposing to sparate impact
liability becomes much harder given all those factors.
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And when you try to impose such
liability with all those factors outside their
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control, you may more likely have
the effect of disincentivizing the efforts needed to
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expand service to new areas and deployed
to new areas. And so there is
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a problem there about potential disincentive to
investment from that liability and the unknowns that
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are involved. And I would combine
that too with looking at the proceeding has
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been a very interesting There's no showing
that providers have any kind of financial incentive
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to engage in this kind of discrimination. I think would be terrible business.
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And certainly there was no evidence in
the record to suggest any kind of intentional
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discriminations going on. I think that
seems to be conceded. Maybe it's debated
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about whether or not there is disparate
impact liability disparate impacts taking place out there.
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I didn't see good evidence of it, and so I think, and
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for that matter, a lot of
these providers are participants in programs, you
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know, subsidy programs to reach hard
to reach areas in places like that that
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would you reach some of the communities
that some claim would be disparately impact.
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But I think it also speaks to
the point that ascertaining who has access and
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getting these demographic information and things of
that sort to ascertain who has access in
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what classes is a very difficult undertaking
as well. And so these things are
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somewhat out not simply beyond the control
but even the knowledge in some cases of
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the providers to be able to deal
with. And I think the fccs ongoing
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proceeding in adopting broadband maps that's a
real challenge and it shows a difficulty of
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ascertaining who all has access when and
where, and certainly, you know,
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defining it by membership in these classes
would also an extra layer of difficulty in
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complexity. What I think the FCC
should do is stick within the confines of
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the statute and prohibit contentional discrimination of
access based on membership and productive class.
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And if it wants to devote resources
to try and study if there are areas
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that currently you know, there's a
disparate impact in certain communities in certain areas
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by all means do so that knowledge
could be very useful, and certainly I
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think the best approach should be to
financially target those areas with subsidies to make
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sure that it is technologically and economically
feasible to reach people there and have them
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brought up to speed, so to
speak. That all being said, the
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FCC has proposed to impose disparate impact
liability on providers. I think there are
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some things that the FEC could do
if it takes that approach, which I
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don't think it should, that could
make that less objectionable, both in terms
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of its complaint procedures and by adopting
a set of clear harbors. I think
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one thing that the FC should do
is make clear that standing to bring complaints
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about lack of equal access should subsist
in parties in interest rather than outside parties
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who don't have an interest, rather
than making it a free for all.
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And I also think just simply making
it clear about the burden of proof in
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these kinds of complaints. If they
want to show that there's a disparate impact
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liability for unequal access, the burden
should be on the party making the complaint.
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They simply just need to show evidence
as a prima facial showing of discrimination.
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They should at least make some showing
beyond a conclusiory statement that not only
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do they lack access, but also
they'll be required to show that there's no
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technological or economic feasibility barrier to reaching
them. I think that would be very
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important in someone cabining the open endedness
of a disparate impact liability. And I
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also think it very important that providers
not be dinged if there's if a provider,
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if a user or subscriber already has
access to a service by comparable service,
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and that's very important that'd be taken
seriously. They may not be happy
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about lack of availability of fiber,
but if they've got a gigabit cable provider,
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for instance, serving them in the
same area, they should be considered
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comparably served. And I think there's
also a set of clear safe harbors that
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could be the FC could adopt.
Will excuse me for interrupting, but I'm
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actually going to be true to what
I said Ford, but there are some
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clear heart safe harbors that we can
adopt as well. Yeah, no,
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just save safe some And I'm going
to move on now to Harold Feld.
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So Harold, why don't you take
it away? You're on mute, Harold,
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thank you, And I will say
that I think Seth actually reads the
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FCCS NPRM far more aggressively than we
have. I think the NPRM tried very
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hard not to reach any kind of
proposal or conclusion. It asks a lot
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of questions. It asks, of
course, if there were disparate impact,
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how would we measure it? What
would we do it? But I do
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not believe that the FCC has committed
itself to a specific proposal with regard to
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disparate impact or disparate treatment. I
would, in fact say some of our
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friends were somewhat disappointed that the FCC
did not have a proposed rule in this
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regard. So I first of all
want to stress that things are very much
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up in the air now. I
think we need to clarify a number of
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things as we talk about disparate impact
versus disparate treatment, protected class and what
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do we mean we public knowledge have
taken the position that this provision is no
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different than provisions we have seen for
every other form of communication. When it
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has become a matter subject to FCC
regulations. So we start with the telephone
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section two two as there's no unjust
or unreasonable discrimination. We have the Cable
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Act, which includes a franchising provision
in five forty one C which says that
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franchise is much make sure that you
reach all neighborhoods and do not discriminate on
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the basis of income. When we
did section three O nine J to authorize
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auctions, there is language saying that
the benefits should flow to everyone, particularly
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women and minority owned businesses, and
that everyone should have an opportunity to have
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licenses. This comes from that same
tradition. It is necessary because Congress couldn't
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agree on classification of this as titled
two, which would have rendered this subject
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to two O two A, and
there were pending two O two A complaints
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with regard to discrimination prior to reclassification
of broadband as a Title one information service,
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so those were dismissed. So we
have a whole in the law right
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now which permits both intentional discrimination as
well as the kind of market impact discrimination
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that we routinely see that the Communications
Act pushes against, where a rational actor
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says, well, because of income, this neighborhood is not valuable enough for
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me to serve either because the market
penalizes me because you average the return on
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investment for each subscriber. So serving
a lot of poor people brings this down
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or even on the basis of unfortunate
lingering stereotypes with regard to well, you
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know, Latino neighborhoods or poor neighborhoods
or whatever is the basis. But this
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is why it's critically important to remember
that income is a protected class with regard
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to this, which follows in this
tradition of the FCC has an obligation to
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step in where the market would fail, where the rational economic actor would say
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this is not worth it for me
to serve. We have consistently said over
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ninety years it is the job of
the FCC to say, no, you're
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going to do it anyway. Many
of the provisions here are designed to take
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the place of what is the usual
method, which is licensing. We do
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not license broadband providers, So the
FCC is required to set a suitable service
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area where we would say, okay, take the technological and economic factors into
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consideration. We're not going to ask
broadband providers to do the impossible. That's
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what the bid program that forty two
billion dollars to build out to rural areas
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is all about. We're talking about
the little holds that appear because the broadband
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provider didn't think it was worth it
to upgrade this particular neighborhood. There is
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chronic under investment that has been documented, and that chronic under investment for a
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variety of reasons parallels race as well
as income. The point then of the
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FCC in all of this, and
our belief is the FCC has to set
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a set of rules which looks at
all of these factors and says, is
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there a suspicious pattern here within service
area. We've proposed the metropolitan statistical area
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as being the appropriate area where if
this were licensing, you'd average to see
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if you make a suitable profit on
the whole area. So, yeah,
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you want to serve, you want
to cherry pick. You know, this
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is an anti cherry picking statute,
and I think the FCC has that authority
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to it has consistently done this in
every other technological uh you know generation.
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This is entirely consistent with that.
I believe the language of the statute is
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entirely consistent with that. And how
this piece fits into the rest of the
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package. You know, we have
money for build out, we have ACP
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to subsidize those who can't otherwise afford. But we have some consumer protection elements
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as well, such as the broadband
Consumer Label for transparency. And we have
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this section seventeen fifty four six h
five six of the ii JA as the
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plugging that you know, final whole
that would otherwise be filled in a title
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too universe. With regard to the
question of process, the the statute very
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clearly says well, the FCC needs
to amend its complaint process in order to
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be able to take complaints. So
I believe the FCC, as it has
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in other situations, should be willing
to accept complaints from individuals, particularly with
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regard to individual discrimination. I'd like
to believe that individual discrimination doesn't exist anymore,
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but I think that we may well
find places where we don't have statistical
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evidence because it's individual cases. But
that should be covered and I'm glad we
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have agreement on that. But additionally, I think that the FCC should be
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able to take um, you know, complaint from individuals, complaints from urban
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you know, from the local government
where local government has seen a pattern complaints
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you brought by organizations on behalf of
their members, the typical sorts of complaints
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that we see in these situations.
I think the FCC should balance all of
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the factors. This is a case
where I believe that traditional ideas of make
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a prima fasci case and then there's
a burden shifting are important, and that
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when we talk of disparate impact versus
disparate treatment, which has become kind of
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the main thing, it's not just
a question of do you need to peer
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into the heart of the the provider
to determine their reality. If the provider
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has said it's just not worth it
for us to serve this neighborhood because insufficient
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rate of return, that is what
income discrimination means. That is what is
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covered. So while I think it
is much less likely that we will see
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evidence of racial discrimination, particularly by
the biggest providers, but we have seen
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cases of under investment where we have
poor neighborhoods, which, unfortunately, for
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reasons we won't discuss here, heavily
overlap with the minority majority neighborhoods. I
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believe that is entirely fair game within
the statute. If you're treating poor people
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differently from the welfare neighborhoods, classic
anti cherry picking provision exactly what the FCC
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was designed to do going back to
nineteen thirty FOURMS. I will add that
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when we get to things that might
constitute more direct forms of discrimination, there's
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a provision of the statute section C, which in fact instructs the FCC to
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work with the Department of Justice and
other agencies. We believe that's a referral
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mechanism, so that if you see
a pattern of discrimination that fits within HUD's
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mandate to ensure no discrimination based on
housing, that there's under investment by public
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housing, you'd refer this to HUD
for their expertise in their statute. Finally,
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I do want to make one important
distinction with regard to this question of
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what does it mean by equal access. Does it mean as long as there's
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one provider that provides, that's okay, or do we mean that every provider
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has responsibility. I believe it is
the latter, because we want to ensure
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here the benefits of competition. This
is not simply what we could think of
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as a carrier of last resort idea
that as long as there is one provider
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in the area that duty is fulfilled. The Statute, we believe reads very
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clearly, particularly when taken in combination
with the other findings within the broadband section
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of the IJA, that particular communities
are being left behind, and that all
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Americans benefit from competition. That Congress
intends that no one should cherry pick with
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regard to the deployment of their service. And I'm sorry, I'm in eight
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minutes, so I'll stop there.
Yeah, no, I actually I gave
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you an extra minute. That was
really helpful. I think, along with
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what I've said in my introduction about
having a diversity of perspectives, which I
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value and I know the Federal Society
does too, I think our audience can
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see that we have that today.
So thank you, Harold, and we'll
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come back to you. And now
we're going to turn to clant Odom with
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T Mobile, So clant you've got
eight minutes as well. Thank you,
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Randy, and I want to thank
the Federal Society as well for the kind
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invitation. And Harold and set are
very well known institutions in this town,
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and I'm really proud to be along
side them to share my perspective. I
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may be one of the few people
in town and maybe even on this panel
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who has served as both a civil
rights executive and litigant and spent some time
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at the Commission and as a regulatory
and telecom lawyer dating back to the to
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the late eighties, if you can
believe it, my first job in this
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business was with the Utilities Telecommunications Council, trying to figure out how utilities were
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going to survive after their spectrum was
taken to create the Personal Communication Service.
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So I've seen quite a bit in
my time, and I've really been fortunate
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to sit on the intersection of both
civil rights law and telecommunications law. And
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this case, as you indicated,
Randy, is maybe one of the most
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significant and important rulemakings that the SEC
is going to consider in some time.
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First, I want to say,
the genesis of this rulemaking is not the
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Infrastructure Investment in Jobs Act. It's
really the longer, more pernicious problem of
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redlining in this country. Many of
you may know that, dating back to
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their earliest parts of the twentieth century, there was really a conspiracy between banks,
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communities, and the federal government to
make sure that people of certain demographic
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groups remained in a particular area African
Americans were literally penciled in a red line
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into certain communities and were denied the
opportunity to have mortgages or to purchase homes
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outside of that encircled area. Jews, many of whom also experience the same
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kind of discrimination, and after years
of fact finding by Congress, after years
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of fact finding by the predecessor to
Huh, Congress finally passed legislation in the
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Fair Housing Act that broke down redlining
and declared it illegal and ripped it from
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its route and acknowledged the federal government's
role in perpetuating this problem. For many
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years, advocates, especially in the
tech realm, have really wanted to make
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an analogy between the pernicious problem of
redlining and digital redlining. In fact,
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this was one of the sort of
subsillentio debates in the Congress as to what
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they were going to call this provision
or what they were going to call this
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phenomenon that we now know as digital
discrimination. There are a lot of people
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who wanted to see it known as
digital redlining, but there are such stark
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and distinct differences between housing discrimination and
employment discrimination and what we are calling digital
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discrimination that the two concepts almost shouldn't
be discussed in the same way, and
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I would think that the Federal Communications
Commission would also share this view, because
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to not share this view would be
a tacit admission that the federal government or
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even the Federal Communications Commission has somehow
been asleep at the switch. Public knowledge
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is brief. The fccs NI and
its notice of proposed rulemaking did an excellent
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job of describing the Commission's existing authority, the authority that it's had dating back
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to the thirty four Act to prevent
discrimination against people in protected classes. This
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is nothing new. I would say
that the Commission has from the beginning had
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the time to end the authority to
entertain complaints about digital discrimination, but has
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never done so. Congress has had
the opportunity to conduct factfinding and hearings on
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the problem of digital discrimination, but
it has not, and it certainly did
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not. In the context to the
Infrastructure Investment in Jobs Act, I think
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it's fair to say the legislative history
on this provision is incredibly thin and look
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nothing like the kind of fact finding
that went into any of the fair housing
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laws, the American the age discrimination
laws, the employment laws. These things
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look completely different. But we're talking
about them as if they share a common
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legal heritage or jurisdictional heritage that just
is not there. T Mobile, for
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its parts, as your viewers know, is a pure wireless company. We
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do not deploy infrastructure through wires as
such that might form along the boundaries of
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jurisdiction or neighborhood. We have radios
that emanate outward in trying to you know,
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connect with receivers. On the other
end, our business is all about
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putting as many people as we can
on our network as possible. The comments
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that we filed before the FCC showed
in great detail how much of the communities
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these protected communities were served. All
of them are upwards of ninety The largest
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single segment of our customer base is
Latina. Between T Mobile and our metro
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brands, these are communities that we
serve. We do very good business with
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these communities and love serving them.
So the idea that T Mobile might cherry
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pick or somehow escape the opportunity to
serve as why the market is possible doesn't
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fit our particular our particular brand.
You know. Seth raised the point earlier,
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which I think is probably the centerpiece
of this discussion, and I could
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talk a lot about the enforcement,
and I could talk a lot about what
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the next steps should be. But
he referenced at twenty fifteen case by the
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United States Supreme Court, the Texas
Department of Housing versus the Inclusive Communities Project.
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They're in a five four decision.
In an opinion written by Justice Kennedy,
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the Supreme Court upheld the idea of
disparate impact liability in the housing and
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civil rights context. He noted,
however, in his decision, that these
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this liability theory was inherently unsuited or
very difficult to apply in concepts outside of
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housing and discrimination, because the absence
of some service could be used as prima
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facial evidence of intentional discrimination or of
a proxy for intentional discrimination. And I
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think we should probably listen to what
Justice Kennedy was talking about in that majority
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opinion. The dissenting opinions, however, were equally important, and I will
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draw everyone's attention to the fact that
Justice Thomas and Alito dissented in that case,
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and they said two things that are
very important. One is Alito said,
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there's nothing in the history, the
legislative history of any of these statutes
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that countenances the ability of a plaintiff
to prove intentional discrimination by statistical or other
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evidence. Justice Thomas went farther and
said discrimination can only be found by intentional
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acts by the discriminating party. There's
probably a six three majority on the United
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States Supreme Court that is an adherent
to one or both of those views.
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And the thing that I have tried
to talk to our friends on the left
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and the right about it, and
our folks at the FCC, is that
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by putting forward a statutory scheme with
very little statutory fact finding on a very
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thin and bootstrap jurisdictional basis, could
very well land this set of rules in
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front of the United States Supreme Court
in a way that would not only eliminate
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disparate impact as a recovery theory in
the communication space, but also in housing,
359
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also in finance, and also in
employment. So we need to be
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very careful, careful here about the
terms that we throw around, and let's
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let some of that forty some billion
dollars of bad money work its way through
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the system, addressing some of the
holes and gaps in our coverage here in
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the United States, and then we
can take a look to see if something
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more needs to be done, I'll
stop there in India a little over time.
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My polodjaies Clip, thank you very
much. You know, I have
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to say that as long as Clipped
has been doing communications policy, he gave
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us some of this history, and
I know Harold as well, I've probably
368
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been doing it even longer. And
with with all of that, I have
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to say that this particular panel U
is really impressive in terms of the scope
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of their knowledge. So again I'm
grateful you're all. You're all here,
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So as promised, what I'd like
to do now is to give each of
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you a chance to, you know, take two to three maybe even four
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minutes and go around and just respond
to uh whatever whatever you would like to.
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And then I'm going to remind our
audience that I'm pretty sure that Q
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and a UH function is open.
So if you have questions, uh,
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you feel freedom put them up there
and we'll see whether we can get to
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those. So we're going to let's
go in the same order, and we'll
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just go in the same order and
uh south you know, take you know,
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maybe three minutes if you'd like,
and at some of the points you
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would like to respond to. Thank
you Randy. As far as the FCC's
381
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rulemaking and my aggressive reading of it, it simply comes from looking at paragraph
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twelve the proposed rulemaking, The FCC
calls for a rule of prohibit policies or
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practices not justified by genuine issues of
technical or economic feasibility that differentially impact consumers
384
00:35:30.199 --> 00:35:36.719
access to broadband internet access based on
membership, based on income level, race,
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ethnicity, color, religion, or
national origin. The second part of
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that definition goes into intentional discrimination.
That second part tracks very closely with what
387
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the statute says. The disparate impact
does not. So I mean it's there,
388
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It's been proposed, and so I
see that there. That seems to
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signal the direction. And my concern
is the satutory issues I spoke with.
390
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But then it's the combination of Yes, this is a very open ended rulemaking.
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If you take a PDF of the
rulemaking and type in a question mark
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00:36:10.199 --> 00:36:15.039
in the search bar, you come
up with one hundred and fifty three responses.
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00:36:15.039 --> 00:36:17.440
So there's one hundred and fifty three
questions the FCC poses, And so
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like any other regulatory matter, that
raises a tremendous issue of UH an aggressive
395
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theory of liability and seemingly open ended
rulemaking. UM, you know, going
396
00:36:30.440 --> 00:36:34.360
on with all those questions, and
so when you don't see it formed and
397
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it's half baked, that's that's really
where the concern comes in. Providers in
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a broadband like just about many industries, they can handle um, you know,
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liability rules. They just need to
have a clear sense of what those
400
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rules are and and and so the
other difficulty comes in with this rulemaking is
401
00:36:53.719 --> 00:37:00.440
there some tension in the language itself. Income level is protected class here and
402
00:37:00.679 --> 00:37:07.760
and um, you cannot prohibit or
discriminate against people based on income level.
403
00:37:07.840 --> 00:37:12.639
And that makes sense, but but
the statute is also concerned with economic feasibility,
404
00:37:13.039 --> 00:37:15.639
right, and so that can have
some impact on the economic feasibility,
405
00:37:15.679 --> 00:37:20.440
and you're getting into kind of a
wheat versus chap problem. And so I
406
00:37:21.039 --> 00:37:22.960
look forward to seeing what the FEC
does with these questions. It's hard to
407
00:37:23.039 --> 00:37:27.840
say more until you get something that's
that's uh, that's that's clear. And
408
00:37:27.880 --> 00:37:30.519
that's also why my remarks have tried
to get a little more clearing and to
409
00:37:30.719 --> 00:37:35.760
meet into some things the FEC could
do to make disparate impact less objectionable.
410
00:37:36.280 --> 00:37:38.239
UM. I started to talk about
having a clear set of bright line safe
411
00:37:38.360 --> 00:37:42.920
arbors. I think that would be
very helpful. For instance, where broadbound
412
00:37:42.960 --> 00:37:47.199
providers have significant reliance interests, if
they've deployed to an area in reliance of
413
00:37:47.360 --> 00:37:52.400
merger conditions at the FCC or a
state commission imposed, if they deployed to
414
00:37:52.480 --> 00:37:55.559
an area pursue into a franchise agreement
by a state or a county for instance,
415
00:37:55.639 --> 00:38:00.159
that authorized or a city, um
they should be given a safe harbor
416
00:38:00.199 --> 00:38:04.880
from liability by complying there and not
be a response. We think that are
417
00:38:04.880 --> 00:38:07.239
outside their territory of the franchise agreement. I think there could be a safe
418
00:38:07.280 --> 00:38:10.719
harbor if the provider wanted to provide
to a certain area but they were denied
419
00:38:10.880 --> 00:38:17.000
access to rights of way, or
their infrastructure was denied permits for approval to
420
00:38:17.119 --> 00:38:22.760
be constructed or upgraded, things of
that sort, or they're complying with a
421
00:38:22.800 --> 00:38:28.440
federal subsidy program like Lifeline or something
like that. And you know, I
422
00:38:28.519 --> 00:38:36.280
appreciate everything that all the panelts had
to say. I think also that intentional
423
00:38:36.320 --> 00:38:42.119
discrimination is not a toothless thing.
You can show patterns you don't need to
424
00:38:42.159 --> 00:38:45.239
show necessarily in someone's mind. If
you can show a pattern that can from
425
00:38:45.280 --> 00:38:49.840
which you can have an inference of
discrimination. I think that's very important.
426
00:38:50.599 --> 00:38:52.559
You just need to get more meat
on the bones. And again, I'm
427
00:38:52.599 --> 00:38:55.559
just interested in seeing what the su
actually do in resolving many of these one
428
00:38:55.599 --> 00:39:00.679
hundred and fifty three questions that they
post. Thanks. I was in my
429
00:39:00.840 --> 00:39:05.840
mind I was going to ask you, guys, if you didn't delve into
430
00:39:05.920 --> 00:39:15.559
it maybe again about the juxtaposition between
income being identified as a protected characteristic and
431
00:39:15.960 --> 00:39:21.920
on the one hand, and on
the other hand, the requirement to take
432
00:39:21.960 --> 00:39:27.119
into account technical and economic visibility.
And I think you said something like that's
433
00:39:27.400 --> 00:39:31.920
uh we versus Jeff problem, which
I haven't heard that phrase before, but
434
00:39:32.079 --> 00:39:38.320
that's that seems applicable. So Harold, take, you know, take three
435
00:39:38.400 --> 00:39:45.119
or four minutes, and then we'll
move on to Clinton. You're muted again.
436
00:39:45.519 --> 00:39:47.679
I did it again. Sorry.
Um, First, I had to
437
00:39:47.760 --> 00:39:52.599
address Clint's point about T Mobile.
I don't know that this is about a
438
00:39:52.800 --> 00:39:59.159
particular provider of OAT and T certainly
there have been a lot of questions raised
439
00:39:59.159 --> 00:40:05.679
about their under vestment in a lot
of communities. But I will point to
440
00:40:06.719 --> 00:40:09.880
the we're quoting Supreme Court justices.
I will point to Oliver Wendell Holmes and
441
00:40:10.159 --> 00:40:15.280
his famous speech The Path of the
Law, which emphasize that we don't make
442
00:40:15.440 --> 00:40:22.079
law for good men, we make
law for bad men. Are you know
443
00:40:22.159 --> 00:40:27.320
we can have lots of good actors
and still have our laws are directed for
444
00:40:27.559 --> 00:40:32.320
addressing the bad actors. And given
the lengthy history of cherry picking within the
445
00:40:34.079 --> 00:40:38.000
context of telecommunications services, I think
there's a lot of good reason for Congress
446
00:40:38.280 --> 00:40:42.440
which made explicit findings. It's true, I have to agree with Seth there's
447
00:40:42.599 --> 00:40:49.159
very little legislative history. But Congress
did make explicit findings with regard to the
448
00:40:49.880 --> 00:40:55.199
problems of lack of access and pointing
to a specific finding that communities of color
449
00:40:55.920 --> 00:41:00.679
and low income communities as well as
rural communities are particularly impacted. So I
450
00:41:00.880 --> 00:41:06.079
do think that that bears weight.
I think there's a lot of evidence in
451
00:41:06.320 --> 00:41:14.360
the record with regard particularly to the
question of cherry picking and discrimination of access
452
00:41:14.440 --> 00:41:20.039
against low income Americans. You have
to have the infrastructure there for the subsidy
453
00:41:20.119 --> 00:41:22.199
program to work, and there's sort
of an interesting relationship that people are talking
454
00:41:22.199 --> 00:41:27.400
about now about how ACP supports the
infrastructure once it's built, and how we
455
00:41:27.519 --> 00:41:31.599
need the bid program to build out
the infrastructure. So again, we believe
456
00:41:31.719 --> 00:41:36.800
all these features of the statute go
hand in hand to work with each other.
457
00:41:37.519 --> 00:41:43.360
I don't think you need bright line
safe harbors so much as a totality
458
00:41:43.400 --> 00:41:46.599
of the circumstances and guidelines. I
think, especially we're going to have to
459
00:41:46.719 --> 00:41:52.119
do this on a case by case
adjudication basis. We're going to have to
460
00:41:52.199 --> 00:41:57.280
work out a number of things,
for example, technological economic feasibility. These
461
00:41:57.400 --> 00:42:00.679
can come up in a variety of
ways. We've listed in our comments where
462
00:42:00.719 --> 00:42:05.000
we think, you know, the
FCC should provide guidance and say, yeah,
463
00:42:05.119 --> 00:42:07.639
you know, we these sorts of
things might be problems. And I
464
00:42:07.760 --> 00:42:13.920
absolutely agree that where the provider has
been denied a right of way, that's
465
00:42:13.960 --> 00:42:17.440
a significant issue. And you know, you can't be held accountable for what
466
00:42:17.559 --> 00:42:22.159
you can't do. We've set in
our statute you can't do. You know,
467
00:42:22.480 --> 00:42:25.880
this is about not asking ISPs to
do the impossible, but it is
468
00:42:27.400 --> 00:42:30.719
asking them to take a broader view
of what is possible to avoid the traditional
469
00:42:30.840 --> 00:42:37.639
problem of cherry picking in provision of
services. Finally, in light of the
470
00:42:37.679 --> 00:42:44.199
concern about the Supreme Court and these
rules, I will point out two things.
471
00:42:44.320 --> 00:42:50.199
One we had in the Supreme Court's
case last week with regard to the
472
00:42:50.320 --> 00:42:58.199
Indian adoption laws, that Congress can
act pursue into other goals when it creates
473
00:42:58.320 --> 00:43:02.800
what looked like racial preferences. So
there the Court acknowledged acknowledged that Congress was
474
00:43:02.880 --> 00:43:08.039
concerned with preserving the political structure of
tribes, the culture of tribes, and
475
00:43:08.159 --> 00:43:12.320
that that was important. Now they
punted on the equal protection question, but
476
00:43:12.519 --> 00:43:17.280
there was an acknowledgement that that was
a valid goal of Congress. Here we
477
00:43:17.400 --> 00:43:23.239
are talking about ensuring universal provision of
Broadbent, which again a valid goal of
478
00:43:23.440 --> 00:43:30.000
Congress. And I will conclude with
this thought experiment. Let us pretend that
479
00:43:30.119 --> 00:43:36.119
the FCC said we're going to go
with disparate impact for income discrimination, but
480
00:43:36.880 --> 00:43:42.880
disparate treatment for racial discrimination. And
what would we say then? Would we
481
00:43:42.960 --> 00:43:47.000
still have the same fear that the
Supreme Court would come in and say,
482
00:43:47.079 --> 00:43:52.320
you can't do disparate impact based on
low income? The Congress can't have concerns
483
00:43:53.000 --> 00:43:58.840
with regard to income discrimination that there's
no history of cherry picking and telecommunications.
484
00:43:59.559 --> 00:44:05.719
I think not. And if we
agree that income provides a suitable reason for
485
00:44:06.119 --> 00:44:10.320
disparate impact analysis. I think that
we can take the same approach with regard
486
00:44:10.440 --> 00:44:16.679
to racial discrimination religious discrimination and say, yeah, this is what Congress intended.
487
00:44:16.719 --> 00:44:22.679
Congress intended the same thing that they
intended with low income discrimination in these
488
00:44:22.800 --> 00:44:28.920
categories, and that the Court should
view this as a Communications Act Universal service
489
00:44:29.000 --> 00:44:37.840
provision rather than an attempt to remedy
past wrongs such as the housing antidiscrimination provisions.
490
00:44:37.320 --> 00:44:43.039
Harold, you are inside of my
mind, which worries me a little
491
00:44:43.039 --> 00:44:47.320
bit. Book, But I was
going to ask you about Clan's reference to
492
00:44:47.559 --> 00:44:53.400
the Supreme Court, which to me
seemed to be would seem to be a
493
00:44:53.480 --> 00:45:00.199
valid concern and may shelby. But
you anticipated that and gave a response that
494
00:45:00.199 --> 00:45:06.199
Claip may have a further response to
that, then whatever else he wants to
495
00:45:07.639 --> 00:45:15.719
add. At this point clapped thank
you first. You know, Harold referenced
496
00:45:15.800 --> 00:45:21.239
the fact that the NPRM and probably
the NI before that, was fairly open
497
00:45:21.400 --> 00:45:27.599
ended set of questions. He may
be a bit too modest here in his
498
00:45:27.880 --> 00:45:35.679
description of the NPRM. P K
has always been an avid advocate in a
499
00:45:35.840 --> 00:45:43.280
very strong voice of the FCC.
My sense from just being around the place
500
00:45:43.360 --> 00:45:49.880
for a while is that the SEC
is probably writing bits and pieces, if
501
00:45:49.920 --> 00:45:52.719
not the entirety of what this report
and order is going to look like.
502
00:45:53.559 --> 00:46:00.119
Congress has given the agency a deadline
of November fifteen. The addition potentially of
503
00:46:00.199 --> 00:46:06.920
Anagomez to the FCC h you know, shifts the dynamic of the FCC and
504
00:46:07.159 --> 00:46:13.519
probably gives the chairwoman a lot more
leeway as to what the content of those
505
00:46:13.599 --> 00:46:17.960
rules are going to be public knowledge. And even my former colleagues in the
506
00:46:19.039 --> 00:46:23.400
Civil Rights Bar have been in and
I think they have been very persuasive advocates
507
00:46:23.960 --> 00:46:29.639
at the FCC. And I think
some of the things that appear to be
508
00:46:29.760 --> 00:46:35.599
open questions may not be completely open. They may actually be decided and I
509
00:46:35.719 --> 00:46:42.719
hope that they've been decided in the
in the very smart way that Harold has
510
00:46:42.840 --> 00:46:51.719
articulated that gives a lot of shrift
to constitutional law principles and tries to avoid
511
00:46:51.880 --> 00:46:58.880
constitutional questions. Even if one were
able to satisfy constitutional questions or avoid them
512
00:46:59.119 --> 00:47:04.039
entirely, there's still the basic question
that set identified aptly at the beginning of
513
00:47:04.159 --> 00:47:07.360
his remarks, which is, you
know, what is the actual authority the
514
00:47:07.400 --> 00:47:14.360
FCC to act here? And will
it overreach in adopting a report in order.
515
00:47:15.199 --> 00:47:17.960
That is my concern. You know, I'm a former staffer of the
516
00:47:19.000 --> 00:47:22.599
General Council's Office the FCC. We
would review. I reviewed, you know,
517
00:47:22.800 --> 00:47:29.480
probably hundreds of items of rulemaking items, all with an eye to where
518
00:47:29.519 --> 00:47:31.840
that it creates legal risk. And
what is that legal risk? There is
519
00:47:31.920 --> 00:47:42.679
legal risk here completely and overreach just
playing vanilla administrative law violations if the FCC
520
00:47:42.920 --> 00:47:49.800
overreaches in what it's proposing to do
here, and I do I want to
521
00:47:49.880 --> 00:47:55.039
also acknowledge Harold's reference to Oliver window
Holmes and and the adage about bad men.
522
00:47:55.760 --> 00:48:00.920
One of the things that I am
concerned about from my company is the
523
00:48:00.239 --> 00:48:07.800
prospect of being labeled a company that
has somehow engaged in intentional discrimination because we
524
00:48:07.960 --> 00:48:15.920
have not yet built in the order
and in speed with which the FCC or
525
00:48:15.920 --> 00:48:22.760
a complainant would like, And if
statistical evidence or the absence of some fact
526
00:48:22.239 --> 00:48:27.360
can be used as an inference of
discrimination, no one wants to be in
527
00:48:27.480 --> 00:48:32.599
that space. And the Enforcement Bureau
can wield a lot of power in both
528
00:48:32.920 --> 00:48:37.960
you know, its ability to find, its ability to issue an LS,
529
00:48:37.159 --> 00:48:44.679
or its ability to settle and actually
dictate the way that broadband companies build out
530
00:48:44.800 --> 00:48:50.000
their networks, allocate their capital,
and make deployment decisions. You want to
531
00:48:50.039 --> 00:48:53.840
make this complaint go away? I
tell you what, Just give these people
532
00:48:53.880 --> 00:48:58.840
a five get out, just give
this, you know, just give them
533
00:48:59.199 --> 00:49:04.519
some fiber back call here. Let's
make this all go away and we And
534
00:49:04.840 --> 00:49:08.519
the way you get to that leverage
situation is by the threat of being labeled,
535
00:49:08.920 --> 00:49:14.119
you know, with a you know, scarlet letter as a as a
536
00:49:14.199 --> 00:49:19.039
company that has engaged in intentional discrimination, the evidence of which, the proof
537
00:49:19.079 --> 00:49:22.960
of which is that you have not
deployed or upgrade of your network in this
538
00:49:23.119 --> 00:49:28.760
particular area. And that is that
is troubling, I imagine for all ISPs,
539
00:49:28.800 --> 00:49:31.880
and reputationally certainly for a company like
ours. It really prides itself on
540
00:49:32.079 --> 00:49:39.719
having ubiquitous, affordable service to every
community that we can connect to. Thank
541
00:49:39.800 --> 00:49:45.679
you, clan. I think it
was Harold. I believe that referred to
542
00:49:45.639 --> 00:49:52.960
maybe employing a quote totality of the
shortcumstances test and what Harold did that I
543
00:49:53.119 --> 00:49:59.519
was thinking about in South I'll probably
have this And maybe it was Justice Scalia.
544
00:50:00.599 --> 00:50:05.599
I think in one of the cases
who who who was quite dismissive.
545
00:50:05.679 --> 00:50:08.280
I forget it was a different context, of course, but he said something
546
00:50:08.400 --> 00:50:15.119
to the effect of it's that old
totality of the circumstances get tasks, which
547
00:50:15.199 --> 00:50:23.079
can can be problematical sometimes at least
in some context. Okay, I uh,
548
00:50:24.199 --> 00:50:30.159
I know there's one question in the
Q and A. Uh, and
549
00:50:30.840 --> 00:50:37.119
we've got ten minutes left before the
program in so if there are other questions,
550
00:50:37.760 --> 00:50:44.079
feel free audience members to put them
up in the Q and A.
551
00:50:45.400 --> 00:50:49.000
I think we've we've really covered a
lot of ground. We could spend a
552
00:50:49.039 --> 00:50:53.519
lot more time on this and maybe
you know who knows before the November deadline.
553
00:50:54.039 --> 00:50:59.679
Uh, maybe we'll we'll do it
again. Uh. One thing that
554
00:50:59.760 --> 00:51:04.639
came to mind in the discussion about
the Supreme Court and the Commission's authority in
555
00:51:04.760 --> 00:51:07.840
the last two days, I've two
or three days, I've actually tuned into
556
00:51:07.920 --> 00:51:14.320
two different teleforums at which Chris Wright, a former FCC General Counsel, has
557
00:51:14.960 --> 00:51:22.199
has been on the panel. And
these events have concerned the Commission's authority,
558
00:51:22.119 --> 00:51:30.199
especially with respect to the Major Questions
doctrine. And again that may be you
559
00:51:30.320 --> 00:51:34.679
know, a subject for another day
here, but one thing that Chris said
560
00:51:34.920 --> 00:51:37.199
really struck home with me and you
guys may have heard him say this.
561
00:51:37.400 --> 00:51:43.760
He said, you know, it's
it's quite natural and pretty much routine for
562
00:51:43.840 --> 00:51:49.880
the Commission with everything they do to
help the action, no matter how help
563
00:51:49.960 --> 00:51:52.880
minor it might be, is the
most important thing since the invention of slice
564
00:51:53.280 --> 00:51:58.480
bread. And a lot of that
comes through in the statements and news releases
565
00:51:58.519 --> 00:52:04.000
and whatever, and and but if
you're sitting in the General Council's office now,
566
00:52:05.519 --> 00:52:10.719
you might want to tell, you
know, the commissioners that don't make
567
00:52:10.840 --> 00:52:16.199
everything into a major question if it's
not already obviously one. But this might
568
00:52:16.280 --> 00:52:21.440
actually, in my view, possibly
be one. But let's put that aside.
569
00:52:21.800 --> 00:52:25.679
Okay, I'm going to hit this
Q and A button and in the
570
00:52:25.760 --> 00:52:30.320
meantime, I probably have another question
if we end up any time. And
571
00:52:30.480 --> 00:52:35.599
this may not be I'm not sure
it's on point, but it's an important
572
00:52:37.000 --> 00:52:42.159
it's an important question that's being asked, I think, and it's it's relevant
573
00:52:42.199 --> 00:52:46.599
to in my view to bring it
up. This question goes like this,
574
00:52:46.960 --> 00:52:53.079
Many government and business websites are not
accessible to disabled persons who use a system
575
00:52:53.119 --> 00:53:00.760
of technologies. This is probably not
intentional. It is a design issue.
576
00:53:00.400 --> 00:53:07.800
There's this lack of access to government
commerce not constitute and inequity. To me,
577
00:53:07.920 --> 00:53:13.800
it's always important when you're talking about
issues like this or accessibility. I'm
578
00:53:13.840 --> 00:53:19.719
not sure whether the statue is intended
to get to that, but certainly it's
579
00:53:19.800 --> 00:53:22.440
important to the FEC. So you
guys have a lot of expertise. Who
580
00:53:22.519 --> 00:53:29.119
wants to answer that question? I
saw the question. I'll take a crack
581
00:53:29.199 --> 00:53:34.119
at it, and this may not
be precisely the answer, but it struck
582
00:53:34.159 --> 00:53:38.400
a chord with me. When I
served as a legal advisor to Chairman Kennard,
583
00:53:38.519 --> 00:53:43.679
one of the last items that we
worked on was a was an audio
584
00:53:43.800 --> 00:53:50.880
description item. It was also an
accessibility issue, and the FEC took remnants
585
00:53:50.920 --> 00:53:53.760
of his authority in lots of different
ways and cobble to get it together and
586
00:53:53.880 --> 00:54:06.679
imposed on m VPDs and even movie
producers or the obligation to inject into all
587
00:54:06.760 --> 00:54:12.400
of its films and all of its
video and audio description requirement. That is
588
00:54:12.440 --> 00:54:15.800
to say, if there's a moment
where there's no words being uttered on the
589
00:54:15.880 --> 00:54:20.639
screen, you would have a narrator
who would come along and say, you
590
00:54:20.719 --> 00:54:24.400
know, a tear rolls slowly down
the person's face, or a sunset rising
591
00:54:24.559 --> 00:54:30.599
over the the you know, over
the mountains, very important from an accessibility
592
00:54:30.639 --> 00:54:34.239
standpoint. Everyone thought it was a
wonderful idea. We've got to do it.
593
00:54:35.320 --> 00:54:39.039
Then Commissioner Pole said all of the
above, except the FCC just does
594
00:54:39.119 --> 00:54:44.840
not have the authority to do it. And there's no amount of cobbling disparate
595
00:54:44.920 --> 00:54:50.400
pieces of authority together to make the
point to do this. And he must
596
00:54:50.440 --> 00:54:52.360
have seen it must have seemed harsh
at the time for him to dissent on
597
00:54:52.480 --> 00:54:57.880
an item that was so popular and
was so important to make sure that the
598
00:54:58.719 --> 00:55:02.079
the the heart of hearing or I
mean, I'm sorry, the visually impaired
599
00:55:02.320 --> 00:55:08.000
or blind community could participate in the
same way that everyone else did in video.
600
00:55:09.159 --> 00:55:16.960
And it turns out on appeal the
DC Circuit sent the rules back and
601
00:55:17.039 --> 00:55:20.440
said, you know, this is
a noble idea, but you just don't
602
00:55:20.480 --> 00:55:25.000
have the authority to do it.
Years later, led by I believe now
603
00:55:25.039 --> 00:55:30.360
Center Marquee, they created a law
to address this specific problem, and Congress
604
00:55:30.960 --> 00:55:35.280
passed it, the President signed it, and the FEC put it into law.
605
00:55:35.880 --> 00:55:39.639
There are lots of very well intended
important things that the FCC can do
606
00:55:40.079 --> 00:55:44.920
with its authority, and certain things
that it can't do, and that will
607
00:55:45.000 --> 00:55:47.719
it will sometimes overreach and trying to
do because it's the right thing or it's
608
00:55:47.719 --> 00:55:52.519
a good thing. And I think
that's a cautionary tale for what's going on
609
00:55:52.760 --> 00:55:58.599
here. The FECs has always had
authority to be able to go after a
610
00:55:58.679 --> 00:56:02.960
lot of the types of discriminate that
are being described in the in the eigen
611
00:56:04.800 --> 00:56:07.239
Whether it has the authority to do
some of the things that are being urged
612
00:56:07.280 --> 00:56:13.559
that it is being urged to do, it could set back the cause for
613
00:56:13.679 --> 00:56:19.119
many years while Congress has to go
and actually write and pass a law that
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00:56:19.320 --> 00:56:23.920
does what the SEC tried to do
unsuccessfully under its own authority. Thank your
615
00:56:23.960 --> 00:56:30.760
client. Hey, there's another question. It's possibly war of a statement,
616
00:56:30.960 --> 00:56:37.800
but you know it because it concerns
another group of persons that the f SEC
617
00:56:39.039 --> 00:56:44.320
and others always have a concern about
it, I think it's worth at least
618
00:56:44.800 --> 00:56:52.840
uh stating that and also whether there's
any reaction. The statement is although tribal
619
00:56:53.000 --> 00:56:59.639
members are part of the protected class
tribes or sovereign nations and should be a
620
00:56:59.719 --> 00:57:08.239
done supparately and discrimination action and the
fc FCC should require consultation with tribe on
621
00:57:09.559 --> 00:57:17.639
spectrum. The I don't know whether
someone has a reaction. I'll take that
622
00:57:17.840 --> 00:57:23.480
because we public knowledge has been a
very strong advocate of this UH. We
623
00:57:23.719 --> 00:57:30.639
have advocated that yes, tribes are
sovereign. We have proposed mechanisms by which
624
00:57:30.760 --> 00:57:36.960
tribes could gain access to federal spectrum
under existing law. We have suggested in
625
00:57:37.119 --> 00:57:42.320
this is part of the national Spectrum
strategy. We reiterated those comments here in
626
00:57:42.599 --> 00:57:49.440
the question of in this proceeding on
the grounds of facilitating equal access. We
627
00:57:50.239 --> 00:57:58.480
have raised it in other spectrum proceedings
where the FCC, now to Chairwoman Rosomorsel's
628
00:57:58.480 --> 00:58:02.519
credit, has asked in what have
been traditionally viewed as technical proceedings, how
629
00:58:02.639 --> 00:58:09.559
these things will impact digital equity and
inclusion, which I think is a very
630
00:58:09.639 --> 00:58:19.239
important recognition that spectrum and other technical
policies have huge impacts. So I'm in
631
00:58:19.320 --> 00:58:24.000
agreement. I'll also note that there
is a now an outstanding memorandum of understanding
632
00:58:24.079 --> 00:58:29.440
with the Department of the Interior,
U and TIA in the FCC with regard
633
00:58:29.519 --> 00:58:36.000
to working with the tribes on spectrum
access on tribal land. So I think
634
00:58:36.480 --> 00:58:40.880
agree, and it's feasible under existing
law and whether it's under seven under this
635
00:58:42.000 --> 00:58:47.719
proceeding or under other authorities we should
move forward. Good Thank you, Harold.
636
00:58:47.719 --> 00:58:54.639
I'm glad we did get those two
questions because I think they added context
637
00:58:54.760 --> 00:59:00.559
to this discussion we're having just a
general way, so I think it ought
638
00:59:00.599 --> 00:59:05.800
to be evident to our audience and
everyone who's going to have a chance to
639
00:59:05.920 --> 00:59:12.119
see this that they really are major
questions and whoops, I better be careful
640
00:59:12.119 --> 00:59:19.920
about using that term here. They're
important questions in this proceeding that someone later
641
00:59:20.039 --> 00:59:25.199
may argue, or major questions in
a legal context. But we all agree
642
00:59:25.280 --> 00:59:30.599
they're important because, as I said
at the beginning, I don't have any
643
00:59:30.679 --> 00:59:36.000
doubt that I didn't have any doubt
and don't that all of the panelists support
644
00:59:36.719 --> 00:59:45.480
the the ultimate goal of making equal
access available to everyone. It's it's their
645
00:59:45.559 --> 00:59:50.559
questions about how you get there,
and that's what we've been exploring today.
646
00:59:51.159 --> 00:59:57.079
So our time is up, and
I just want to close by thinking once
647
00:59:57.159 --> 01:00:02.360
more, Clint Odom, Harold Field, and Seth Cooper. It was a
648
01:00:02.679 --> 01:00:08.599
terrific discussion for sure, and I'm
going to turn it back to Jack Darwin
649
01:00:08.760 --> 01:00:13.280
now. Thank you very much,
Randy, and I'll ll go your thanks
650
01:00:13.320 --> 01:00:15.760
to the rest of our panelists as
well. That was a great discussion,
651
01:00:15.239 --> 01:00:19.119
and thank you to our audience for
tuning into today's event. Check out our
652
01:00:19.119 --> 01:00:22.280
website fedsok dot org or follow us
on all the major social media platforms at
653
01:00:22.400 --> 01:00:27.320
fed socks to stay at to date, but that we are a journed Thank
654
01:00:27.360 --> 01:00:31.440
you, Thank you for listening to
this episode of Telephone, a podcast of
655
01:00:31.519 --> 01:00:37.280
the Federal Society's Practice Groups. For
more information about the Federal Society, the
656
01:00:37.360 --> 01:00:40.760
Practice Groups, and to become a
Federal Society member, please visit our website
657
01:00:40.840 --> 01:00:43.000
at FOC dot org.