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22 minutes

They say that every major decision made by the FCC results in litigation. And while the FCC has many lawyers across various bureaus and divisions, it's the Office of General Counsel (OGC) that represents the Commission in court. So what's it like being the FCC's chief lawyer? Evan is joined by none other than Tom Johnson, General Counsel of the FCC. They discuss their support for New York-area sports teams, what it's like to defend the FCC in court, and how OGC plays a role in nearly everything the Commission does. They also discuss how governments at the local, state, and federal level interact when it comes to telecom law, and how that interaction has evolved over time. (Disclaimer)


MR. SWARZTRAUBER: Welcome to More Than Seven Dirty Words, the official FCC podcast. I'm Evan Swarztrauber.

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 them all, and he just so happens to be my guest today.

So it is my pleasure to welcome the FCC's General Counsel, Tom Johnson. Tom, thanks for coming to the show.

MR. JOHNSON: Thanks for having me, Evan.

MR. SWARZTRAUBER: I understand this is your first time doing a podcast?

MR. JOHNSON: It is indeed. It's a pleasure to do it with you.

MR. SWARZTRAUBER: All right. Well, we're going to start out with the most important thing before getting to all that boring stuff. You are 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.

MR. JOHNSON: That's right.

MR. SWARZTRAUBER: And I am a Yankees-Jets fan, and for those who are unfamiliar, it's usually the opposite. Unusually you're a Yankees-Giants fan and a Mets-Jets fan. But the fun thing is that we, because of this we have both experienced success in our lifetimes, and we've also experienced just hopelessness and despair.

MR. JOHNSON: That's right.

MR. SWARZTRAUBER: Whereas so many others only experience one of those emotions or the other. So what is it like being a Mets-Giants fan Tom?

MR. JOHNSON: Yeah. Well I mean as you said, I grew up with people telling me that there was something wrong with that combination of affiliations. But I actually went to school when I was -- preschool with Lawrence Taylor's son. So that's how that fandom started, and my dad had Mets tickets growing up, so that just kind of stuck.

But my dad and my brother are actually Jets fans, so they share in that part of your misery. Yeah, I guess what I like about both the Mets and the Giants is, you know, they're frequent contenders. I mean I can point to, you know, four Super Bowls during my lifetime, four Super Bowl victories and five appearances and then, you know, one on the Mets side and at least one other appearance. So lots of heartache, but lots of good times as well.

MR. SWARZTRAUBER: Yeah. Similarly, I've enjoyed five Yankees World Series in my time on this earth, and I've enjoyed two AFC championship games where the Jets lost, and also a buttfumble 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.

MR. JOHNSON: That's famous, yeah.

MR. SWARZTRAUBER: Yeah. So I'm switching gears. How 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 out by asking my guests that question.

MR. JOHNSON: 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 agencies make rules and then 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, 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 were 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 government in multi-state litigation or filing amicus briefs.

So there are lots of great opportunities out in the states. What I found myself was with sort of 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 it's true of every administration is our rules are going to get challenged.

Ultimately, those are going to be decided by generalist judges. So they might not be judges with just a pure telecom background. So one of the benefits of my experience coming in was I could 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 court. How are we going to get this upheld in court?

MR. SWARZTRAUBER: Gotcha. So that's why we hired you, okay.

MR. JOHNSON: Yeah. That's the official story, yeah.

MR. SWARZTRAUBER: Finally, finally it makes sense. This whole time I was wondering. So one thing that kind of sets the Office of General Counsel apart is that you're not making policy. You're not adding regulations or subtracting regulations or changing regulations. Those functions are handled by the Media Bureau for media policy and the Wireless Bureau and so on and so on.

You're not doing any of that. So to quote my favorite comedy "Office Space," what would you say you do here?

MR. JOHNSON: So basically I would say that, you know, we're responsible both for consulting the Commission on legal issues. So we're their in-house counsel. We help them make the orders, the rules as legally defensible as possible, and then we're responsible for defending those rules if they get challenged in court.

But one of the things I think's really interesting about the job is that it does, to some extent, lie at the intersection of law and policy, you know. Sometimes, you know, the Commission will want to do something and you'll find that if you do X, it's legally risky. Maybe if you do part of X, it's less risky.

So you do have these tradeoffs as to what a litigation risk is and how much policy you can get without taking on unnecessary litigation risk. Then another big piece of it is that sometimes you can help craft a policy in such a way so that all of the different stakeholders are satisfied. They're happy and that can sort of reduce the chance that you get sued in the first place.

So I really like sort of having, you know, one foot in the legal sphere and then one foot in the policy sphere.

MR. SWARZTRAUBER: Then the office itself has what, something like 80 people?

MR. JOHNSON: Between 70 and 80, yeah, between staff and attorneys.

MR. SWARZTRAUBER: Depending on how you're feeling on a particular day?


MR. SWARZTRAUBER: And between those 80 people, is it safe to say that the Office of General Counsel probably takes a look at basically everything that the FCC does from a policy perspective?

MR. JOHNSON: We review all of the orders, all of the orders that get voted on in the open meetings, 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 yeah. So we have a hand in everything, 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, you know, 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 like ours where we can sort of collaborate and make sure that we're being consistent, that helps both produce better law and better policy.

MR. SWARZTRAUBER: So obviously having a foot in everything or a toe in everything means you're going to see so many different cases. Some of them are going to be interesting, some are going to be probably less interesting, and then some might just downright bizarre. I've had other employees of the FCC come on the show to share some weird stories that they've experienced in their careers here.

Are there any cases that have come across your desk, maybe it's an adjudication, maybe it's a litigation, that are just weird, that kind of stuck in your mind?

MR. JOHNSON: Yeah. Well I guess, I guess one thing is that I hadn't appreciated before this job or my prior job in West Virginia is just some of the challenges that come when an administration changes. So all of the sudden as a federal government, you find yourself on one side of an issue and then you might be on a different side 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 2015 litigation that was upholding or 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 a motions practice that we needed to do in order to make sure that that litigation was stayed, and ultimately that we were able to proceed with our rules. That happens actually quite a bit.

MR. SWARZTRAUBER: And you've recently talked about the interplay between federal, state and local 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.

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 evolves?

MR. JOHNSON: Well certainly states and localities have an important role to play in telecom law, and the Communications Act anticipates 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 are interstate networks, interstate communications networks.

So this is an issue that Justice Scalia explored a lot actually before he became a judge. He was a lawyer advising the White House on communications issues. He wrote this piece called "The Two Faces of Federalism," in which he said look, conservatives are rightly champions of federalism, sort of state and local control of issues.

But there are issues that are of a truly national character, where only the federal government can effectively deal with them, and telecommunications is one because a lot of these networks, especially when you get into broadband networks, emerging 5G networks. I mean these are regional or nationwide networks, and oftentimes when a state or locality tries to impose a particular rule on these networks, it makes it either impossible or extremely costly for them to comply and deploy across multiple jurisdictions.

So this is an area where I think we've been using preemption in a targeted way, to actually further what I would call sort of state and local goals, which should actually free up companies to deploy networks so that these communities can thrive, without being a necessary -- without imposing unnecessary burdens.

MR. SWARZTRAUBER: Is there a particular example from the various different policy battles we've had here that kind of illustrates that interplay?

MR. JOHNSON: Yeah. So I mean I would point to the net neutrality debate for one. I mean one of the things that I found really interesting as I was preparing to defend our appeal before the D.C. Circuit was the support that we had gotten from small wireless providers, particularly in rural or less prosperous parts of the country, that said that the conduct rules that had been imposed on a nationwide level by the prior administration were preventing them from deploying, because they couldn't afford to take on the regulatory or litigation risk. It was too costly for them to figure out how to comply.

In many parts of the country, these were the only option for wireless service for consumers. And so this was just an interesting case in which you saw those rules were hurting local communities. What you're seeing today is states trying to reimpose those very same rules. I think a lesson or a takeaway from this is that oftentimes that acts to the detriment of the very consumers that they're trying to serve.

MR. SWARZTRAUBER: So this principle of federalism as it's called, or 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 that uniquely affect their own communities.

Is that inherently in conflict with the interstate nature of the Internet? I mean does the Internet and certain technologies as they advance, and we see 5G coming online, does that just basically mean that that principle no longer is valid in telecom, or is it, you know, just different?

MR. JOHNSON: I mean I think the principle is valid, but I think an important part of that principle is you need to look at what is the -- what is the competent authority in a particular area? It's got to be the lowest level of government that's competently able to deal with an issue. So for example, you know, we've had infrastructure reform items dealing with siting applications for 5G services, small cell deployments.

What we found is yes, I mean there is an area for states and localities to play. They can determine where a particular cell tower or small cell is placed. But they can't impose rules that would unnecessarily delay that deployment, that would make it prohibitively expensive, because ultimately these are not local networks. They're 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 the spillover effects, these externalities outside the jurisdiction of the state?

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.

MR. SWARZTRAUBER: It's often said that anything the FCC does of any significance is going to result in a lawsuit. Is that true?

MR. JOHNSON: I think it's -- I think it's often true, because I do think that you've got interests that are often not aligned, and I think it's to some extent inherent in the history of the FCC.

I mean in sort of looking at our regulatory history, I mean the same stories seem to come up again and again, where you have incumbent networks or incumbent technologies, and then you've got new networks, the next generation technology, disrupters.

The problem is that oftentimes, Congress is very slow to update our authority to accommodate for that, or sometimes our own rules are written in a certain way and need to be amended. So you constantly have this battle sort of, you know, opportunities at least for regulatory arbitrage, where incumbents are resistant to change and next generation services really want the change and need the change.

So that's where you get the conflict a lot of the times, and that's where there has been, I think, a lot of litigation over the course of the FCC.

MR. SWARZTRAUBER: Yeah, and in speaking on a previous episode to Dale Hatfield, former Chief Engineer at the FCC, that old saying "nothing is new" continues to play out, even as technology develops and changes, a lot of the same debates, and a lot of the same dynamics in FCC's past still exist today.

Speaking of battles, what's it like to manage a bunch of lawyers? So I myself am not a lawyer, and I can imagine that might be a little difficult. I don't find them to be the most shy people, and I imagine you might have some spirited debates about how to proceed on certain things.

MR. JOHNSON: That definitely happens. I think that at the end of the day, I'm really blessed by the fact that I do have a lot of opinionated, really intelligent, really knowledgeable people on staff, people who both have great legal minds but also have a really deep understanding of the technical issues.

And even outside of my staff, to be able to draw on the expertise of engineers when we need it, draw on the expertise of economists. But you're definitely correct that, you know, there are no wilting flowers at the agency. And so I think that that oftentimes results in better rulemaking and better briefs. In particular I'll say where this comes up a lot is when we moot, do moot courts for oral arguments.

I really think that that's where a lot of my attorneys on the litigation side really shine by playing devil's advocate, by asking the toughest questions we can expect to get from the other side. That ultimately results in a better argument when we're in court.

MR. SWARZTRAUBER: This FCC was once called by a trade publication "The Twitter Commission," and usually that focuses on the five Commissioners, including the Chairman, who are very active on social media, maybe a certain policy advisor and podcast host who also likes to tweet. But it also includes you. Why do you as general counsel tweet?

MR. JOHNSON: So when I got this job, I was actually really impressed by the fact that Chairman Pai seemed so good at both having that depth of policy knowledge, but also translating it through social media, and that he was so social media savvy.

Because I just think in this day and age, to be an effective public servant, to be in this field, you need to both be able to have that policy knowledge, but also to be able to communicate it effectively over modern forms of communication.

So I really, I really took to that as a model and my understanding is that we do, as a Commission, tweet a lot more than other parts of the federal government. There are some parameters you need to be conscious of when you're doing that. But I think that, you know, lawyers are naturally risk averse. But actually this is one area where we ought to be less risk averse. I mean we ought to be getting our message out and we ought to be using social media effectively.

So I've been super-happy with the culture here on that, and I've just been trying to join in.

MR. SWARZTRAUBER: On the other hand, the Giants have not had a winning record since you started tweeting, so maybe there's something to that.

MR. JOHNSON: There's probably a correlation.

MR. SWARZTRAUBER: Definitely a causation as well. Any advice for young attorneys interested in telecom, maybe particular advice for those who are really attracted to the idea of working at the Office of General Counsel? Obviously after hearing this episode basically, everyone's going to want to work for you.

But if there is particular advice for those folks who want to deal with telecom litigation, adjudication, the issues that your department deals with.

MR. JOHNSON: Sure. So I'll give some telecom-specific advice, then maybe some more general advice. So you know, we have an Attorneys Honors Program that has been a great launching pad for a lot of the senior people at the Commission. Our Media Bureau chief, senior advisor to the Chairman, a lot of our alumni came up through the Honors Program.

So it's a two year program in which you have an opportunity to act as a junior attorney in one of the bureaus, and it's open to third year law students and law clerks. So that will open up for 2021 in October. You know, a lot of the resumes we get, you know, you do see -- you know, it's helpful to see someone who's taken administrative law, someone who's -- though it's not essential, someone who has some interest in telecommunications or technology.

There are a lot of internships when you're in law school, both here at NTIA, which deals with the federal spectrum, and a lot of the trade groups that we work with within the industry, you know, in-house like NBC Universal I've seen a couple of times and similar media outlets. I mean there's a lot of different opportunities out there for law students to sort of get their feet wet.

So I would just encourage people to take advantage of those, and to consider the FCC Honors Program.

Then the more general thing I was just going to say is, you know, lawyers are a risk averse bunch, and I would just encourage people not to be as afraid to take some risks with their career. I was in private practice for ten years, and it definitely was a risk for me to say I'm going to move to Charleston, West Virginia for a year and just work on appeals out there. I had no prior connection to the state.

It was a great experience. I got to argue seven appeals in a year, and it led to this job. So I think that sometimes you do need to follow your heart and your passion and look for those outside the box opportunities.

MR. SWARZTRAUBER: Last question, should you eat breakfast the morning of an oral argument?

MR. JOHNSON: So February 1st, 2019 was the day of the Mozilla Net Neutrality repeal oral argument, and it was snowing that morning. I was allowing a lot of, a lot of time for me to get to the courthouse. What I hadn't anticipated, although there were a lot of people arguing, is that this argument would actually last five hours. And so --

MR. SWARZTRAUBER: I listened to like half of it.

MR. JOHNSON: Yeah, that's all right. You can be, you can be excused. Hopefully it was the good half. But at about Hour 3, we take a short break and I was about to get up, and it was right after hearing all of the other side's arguments.

So I needed to sort of strategize about what I was going to say. But then right before they were called back, I realized I'm starving and I haven't eaten anything. I should have packed a granola bar or something. I turned to my wife who's behind me and said "do you have something to eat?" She just gives me this blank stare and then all of sudden they say order, order to counsel.

So I was a little light-headed up there, but I made it through okay. But definitely a lesson for next time.

MR. SWARZTRAUBER: Right. Well we'll leave it there. My guest has been Tom Johnson, FCC General Counsel, and anomalous Mets-Giants fan. Tom, thanks for joining the show.

MR. JOHNSON: Thanks for having me Evan.

MR. SWARZTRAUBER: Follow me on Twitter at evans_fcc and you can follow Tom at --

MR. JOHNSON: tommjohnsonjr. I think I was the 100th Tom Johnson to sign up.

MR. SWARZTRAUBER: Oh wow, so unique. Find this podcast in the iTunes Store or Google Play wherever you get your podcasts. Please leave us a review, because it will help others find the show, and thanks for listening. We'll catch you next time.