Listen: FCC, Jets, Yankees discussed on More Than Seven Dirty Words
"More than seven dirty words. The official PODCAST. I'm Evan Schwartz driver the FCC has a lot of lawyers to say the least. In fact there's a whole department of them called the office of General Counsel but within that department there is one lawyer to rule the mall and he just so happens to be my guest today so it is my pleasure to welcome the F. C. C.'s. General Counsel. Tom Johnson. Tom Thanks for coming to the show. Thanks for having me Evan. I understand and this is your first time doing a podcast. It isn't easy to pleasure to do it with you. All right well WE'RE GONNA start out with the most important thing before getting all that boring stuff. You are a a New York Area Sports Fan as am I But in a way we are both kind of strange because you are a mets giants fan. That's right and Diana Yankees jets fan and for those who are unfamiliar. It's usually the opposite. Usually you're a yankees giants fan immense jets fan but the fun thing is that we because because of this. We have both experienced success in our lifetimes. We've also experience just hopelessness and despair. That's whereas so many others only experienced one of those emotions or the other. So what is it like being Mitch Giants Fan Tom. Yeah well I mean as you said. I grew up with people telling me that there was something something wrong with that combination affiliations but actually went to school when I was a preschool with Lawrence Taylor son. So that's how that's how that fandom random started and my dad mets tickets growing up so that just kinda stock but my my my my my dad and my brother actually jets fan so they share in that part of your misery and guess what I like about. Both the mets and the giants is their frequent contenders. There is I mean I can. I can point to four super bowls during my lifetime for Super Bowl. Victories and five appearances and then You know on on that side at least one other appearance Oh so lots of heartache. But lots of good times as well. Yeah so I've enjoyed a five Yankees world series in my time on this earth and I've enjoyed a to AFC championship games or the jets lost and also fumble on Thanksgiving As I was sitting around with my entire family and becoming the laughing stock of the country. So that's been good as a jets fan. That's famous yeah. Yeah so I'm switching gears. How did did you get to be the top lawyer at the FCC? It's not the most obvious career path that takes one to this agency so I always like to start off by asking that question. Yeah so I had a background in sort of general administrative law and appellate law sort of the kind of law that deals with how federal federal agencies make rules and how those rules get challenged in court. I didn't have a specific telecom background but I got that background both in private practice and then out in Charleston in West Virginia I went out to the attorney. General's office out there for a year. To argue appeals and a lot of my colleagues in private practice. We're actually doing that. They were they. Were spending a year or two out in the different states to get that kind of experience. Because a lot of the states are sort of ramping up now suing the Federal Oh government multi-state litigation or filing amicus. Briefs there are lots of great opportunities out out in the states and when I found myself was was sort of the right the right types of skills that the commission was looking for because one thing that we knew was going to happen in this administration and strove every ministration as our our rules are GONNA get challenged and ultimately there's going to be decided by generalists judges so they might not be judges with just a pure telecom background and so one of the benefits of of my experience coming in. Was I sort of look at a lot of these things with a fresh set of eyes and try to figure out. How is this going to be attractive to a cord? How are we going to get this upheld court Gotcha? So that's why we hired you story. Finally this whole time. I was wondering so one thing thing that kind of sets the office of General Counsel Part is that you're not making policy you're not adding regulations or subtracting regulations are changing regulations wins. Those functions are handled by your the media. Bureau for media-policy Wireless Bureau and so on and so on. You're not doing any of that. So it's a quote my my favorite comedy office space. What would you say you do here so basically I would say that it We're responsible both for consulting the commission on legal issues. We're we're their in house counsel we help them make the orders. The the the rules as as legally defensible as possible and then we're responsible for defending those rules if they get challenged in court well one of the things I think is really interesting about the job is that it does to some extent. Lie at the intersection of law and policy. Sometimes the commission will want to do something thing and you'll find that if you if you do X. it's legally risky. Maybe if you do part of ACS it's it's less risky and so you do have these trade offs as to what a litigation risk is and how much policy you can get without taking on unnecessary litigation risk and another big piece of it is at sometimes you can help craft the policy. Let's see in such a way so that all of the different stakeholders are are satisfied. They're happy and that can reduce the chance that you get sued in the first place so I really like aac sort of having one foot in the legal sphere and then one foot in the policy sphere. The office itself has what something like eighty people between seventy and eighty between staff staff. Attorney that depending on how you're feeling on particular right and between those eighty people. Is it safe to say that the officers general counsel probably it takes a look at basically everything that the FCC does from a policy perspective we review all of the orders. All of the orders that get voted on in the open meetings is all of the other orders that come through the commission and really you know a lot of the work that the bureaus are doing as well so So yeah so we have a hand in everything which is which is great because you're not limited necessarily to a particular subject matter and you can try to kind of see the forest for the trees. I mean. oftentimes it's helpful to see how we are interpreting for example particular authority we have in the wireline space one month. And then the wireless space another month. That's happened and so having an office hours a week and sort of collaborate and make sure that we're being consistent that helps both produce better and better policy so obviously having a foot in everything or tow and everything means you're going to see so many different cases some of them are going to be interesting. Some are going to be. We probably less interesting than some. Might be just downright bizarre. I've had other employees of the on the show just share some weird stories that they experienced various in their careers. Here are there any cases that have come across your desk. Maybe it's an adjudication maybe litigation. That are just weird kind of stuck in your mind. Yeah well I guess one thing is that I hadn't appreciated before this job or my prior job in West Virginia's just some of the challenges that come when went into administration changes all of a sudden is a federal government. You find yourself on one side of an issue and then you might be on the different sides of the issue in the same case After there's a change in administration so we had to think through some of those issues when I came in the two thousand fifteen litigation that was upholding or defending defending President Obama's his FCC's net neutrality rules. All of a sudden we had a new rulemaking in the hopper where we ended up. Repealing those rules and so there was motions practices that we needed to do in order to make sure that that litigation was with stayed ultimately that we were able to proceed with with our roles and that happens actually quite a bit and You've recently talked about the interplay between federal state and local all governments when it comes to telecom regulation and all three of them play a role and not just in telecom but in every area policy area basically in government in the United States. And how do you see the roles of each of these levels of government. And then I'll ask you how you see. Those rules evolving as basically technology involves we'll certainly states and localities of an important role to play telecom law and the Communications Act anticipates estimates a role for them to play on matters of state and local concern but This is an area where what we're essentially regulating for the most part art interstate networks interstate communications networks and so. This is an issue that UH justice. Scalia explored a lot actually before he became a judge he was lawyer advising the White House on communications issues. And you wrote this piece called the two faces of federalism which he said look. Conservatives are rightly champions of federalism sort of state and local control of issues but there are issues that are truly national character were only the federal government can effectively deal with them and telecommunications is one because a lot of these network networks especially when you get into broadband networks emerging five G. networks these are regional or nationwide networks and oftentimes state or locality tries to impose particular rule on these networks. It makes either impossible or extremely costly for them to comply and deploy across multiple jurisdictions. And so this is an area where I think we've been using preemption in a targeted way EH. To actually further what I would call sort of state and local goals which is actually free up companies to you deploy network so that these communities can thrive without being without imposing unnecessary burden. Is there a particular example from the various. It's different policy battles. We've had here. That kind of illustrates that interplay. Yeah so I mean I would point to the net neutrality debate for why line I mean one of the things that I found really interesting as I was preparing to defend our repeal before the DC circuit was the support that we had gotten froms. small wireless providers particularly in rural or less prosperous parts of the country. That said that the conduct rules that had been imposed just on a nationwide level by the prior administration were preventing them from deploying because they couldn't afford to take on the regulatory Tori or litigation risk is too costly for them to figure out how to comply and in many parts of the country. These were the only option for for a wireless service for consumers and so this was just an interesting case in which you saw those roles were hurting local communities. What you're seeing today is states trying to reimpose those very same roles and I think a lesson or takeaway takeaway from this is that oftentimes at acts to the detriment of the very consumers that they're trying to serve so this principle of federalism as it's called or you're in Catholic social thought it's called subsidiarity this idea that states and localities being closer to the people ought to have a say on those issues who's that uniquely affect their own communities is that inherently in conflict with the interstate nature of the Internet. I mean does the Internet and and certain technologies as they advance and we see five G. coming online. Does that just basically mean that that principle no longer is valid in Telecom Or is it just different. I mean I think the principle is valid but I think important part of that principle is you need to look at what is the. What is the a competent authority in particular area? It's gotta be the lowest level of government that's competently able to deal with an issue. So for example you know we've had infrastructure picture reform items dealing with citing applications for five G. Services. Small cell deployments. And what we've found is yes. I mean there is an the area for states and localities to play They can determine where a particular cell tower or small cell is placed. But they can't can't impose rules that would unnecessarily delay that deployment that would make it prohibitively expensive because ultimately these are are not local networks there are regional or national networks. And so we always have to think about that balance. Is this truly an issue. That is unique to this locality or is it something that has is the spillover effects. These these externalities outside the jurisdiction of the state and that is where I think we as the FCC have the authority to sort of use preemption in a conservative manner to actually unleash private market forces to deploy these networks it's often said that anything the FCC does of any significance is going to result in a lawsuit. Is that true. I think it's I think it's often true because I do think that you've got interest that are often not aligned. I think it to some extent in here here and in the history of the FCC in sort of looking at our regulatory history. I mean the same story seemed to come up again and again where you have. Incumbent networks or incumbent technologies and then you've got new networks the the next generation technology disruptors and the problem.."