Ex-FCC Enforcement Chief ‘Concerned’ About Future of Agency

Thomas "Tom" Wheeler, chairman of the Federal Communications Commission (FCC), listens during an open meeting to vote on internet regulations in Washington, D.C., U.S., on Thursday, Feb. 26, 2015. Photographer: Pete Marovich/Bloomberg

Boies Schiller Flexner announced Thursday that it recruited Travis LeBlanc, the outgoing top enforcement lawyer at the Federal Communications Commission, as a partner who will work on privacy and cybersecurity matters.

While at the FCC, LeBlanc led the charge on enforcement actions related to consumer protection and fraud but he fears the agency will move in a different direction under the Trump Administration.

“I’m concerned that there isn’t going to be enforcement at the FCC in the future,” he said. “I’m really concerned about that.”

Travis LeBlanc (Courtesy)
Travis LeBlanc (Courtesy)

LeBlanc will be based out of Boies Schiller’s Washington, D.C. office, but said he’ll spend a large chunk of his time in Silicon Valley, where he’ll join four other partners at the firm’s Palo Alto office.

“Part of our strategic mission is to grow our presence in Silicon Valley,” he said. “It’s almost like a start-up law firm. It’ll be fun.”

LeBlanc took over as chief of the FCC’s enforcement bureau in 2014, and had previously served as a senior advisor to then-California Attorney General Kamala D. Harris and as a Special Assistant Attorney General, where he worked on privacy protections in mobile apps and led the restructuring of the state’s Office of the Solicitor General.

Before that, he served under the Obama Administration as an attorney in the U.S. Department of Justice’s Office of Legal Counsel and worked as a litigator at Williams & Connolly in Washington D.C. and at Keker & Van Nest in San Francisco.

Big Law Business spoke to LeBlanc during his first week on the job to talk about what upcoming policy changes at the FCC will mean for his clients and for consumers, and why he’s concerned about them. The following interview has been edited for length and clarity.

 

Big Law Business: What kinds of clients will you be representing, and what work will you be doing?

LeBlanc: I’m going to be working on privacy and cybersecurity issues. It’s an area where, in the last few years in government, I’ve been very active, both on the state level in California and on the national level at the FCC. I’m going to spend a lot of time working on the issues that tech companies face when dealing with government regulatory bodies, the kinds of issues that say, an Uber faces when trying to enter a new city, or what Airbnb faces when trying to figure out how laws about public accommodation apply to them. As someone who’s had state experience and federal experience and who’s been in the private sector in the Valley in the past, I believe I have a skill set that will be extremely valuable to a lot of tech companies, and being backed by the litigation powerhouse at Boies Schiller, should we need to go down that road, will be a huge asset.

 

BLB: Will you be doing any lobbying work?

LeBlanc: No. I expect to be working on specific matters, like companies embroiled in investigations. Sometimes a federal enforcement action or a state action spawns a private class action or another private action. I expect to be advising companies on the front end to help avoid becoming ensnared in a federal or state legal issue, then advising them when there is an incident, then helping them should it turn into an actual enforcement action or litigation, so legal services for the full cycle of an issue.

 

BLB: With the new Republican administration, what policy changes do you expect to see coming down the pipeline at the FCC?

LeBlanc: At the FCC, I expect to see an attempt to reverse the open internet order, which is more commonly known as net neutrality. About two years ago, the FCC reclassified Internet Service Providers (ISPs) as common carriers, and that reclassification has been fought by some of the largest companies in the industry, as well as by Republicans over the last few years, and it’s expected that Chairman Ajit Pai will attempt to reverse it.

[Editor’s note: Pai, a Republican who has been on the commission since 2012, was elevated to Chairman by President Trump in January. He has called net neutrality a “mistake.”]

It’s going to be a ton of work. I would liken the challenges that the Republicans will bring [against net neutrality] to repealing the Affordable Care Act. The question is, what do you replace it with? In this instance it’s complicated because it’s in litigation in federal courts, and so far in litigation the FCC has won in the DC circuit. Given all the complexities, it’s a lot easier said than done, but they’re going to be chipping away at it.

The number two issue will be privacy. Last year, the FCC passed some of the most protective privacy and security regulations around in internet, in particular around broadband internet services. Rules that require ISPs to tell you the information that they collect from you, to allow you to opt out of this. It’s basic consumer protection. And when there’s a breach, it put in place measures to help you after a breach. If the FCC gets rid of these protections, then consumers will have nothing. And that’s a big deal. Think about how much your ISP can know about you — your phone is with you all the time, so your phone carrier knows where you are, they know who you’re calling, they can see all the websites you’re visiting. And for some people, their mobile phone carrier is also their cable company at home, their phone company at home, their internet provider at home.

You can imagine a world in which you go on television and see an ad about something you just searched for on the internet 20 seconds ago. If that’s taken away, that’s a very big deal. And it gets scarier, when you realize that in the current state, the Federal Trade Commission doesn’t have the authority to [regulate this area], because the FTC has a carveout in its jurisdiction so they have no jurisdiction over common carriers.

 

BLB: Aside from policy changes, do you think enforcement priorities will shift?

LeBlanc: I’m concerned that there may be a lack of enforcement. Over the last few years, we were very active in ensuring we were enforcing consumer protection laws and the pro-competition provisions of the communication act, we were active in preventing fraud waste and abuse, we were active in preventing over-billing from cable companies, in going after companies that had 911 outages. Last night, AT&T had a massive 911 outage. We fined companies millions of dollars for that. When you think about that one time you need to call 911 and you pick up your phone and get a busy signal, that’s a big deal. People die. I’m concerned that there isn’t going to be enforcement at the FCC in the future. I’m really concerned about that.

The general belief is that the federal government, in the next few years, is going to be much less active when it comes to enforcement, and state attorneys general will be much more active. Just look at the travel ban from the President, and you were seeing who was leading that fight: the attorney general of Washington. And the Attorney General of New York is being very aggressive in the tech space.

 

BLB: What’s it like switching sides amid all this change and uncertainty?

Le Blanc: There is a bar for a little while [Editor’s note: one year] that will prevent me from working on the same things I was working on at the FCC. I’ve worked in private practice before, and even when I was in government, we really were pursuing the public interest. Part of our job was to protect consumers but also to promote competition, which means encouraging companies to enter the market.

For me, I love innovation. I believe that innovation promotes competition as well. The innovators that are trying to break in, that’s who I hope to continue to support in private practice. A lot of innovators, the companies that are disrupting the way we think about business, are in Silicon Valley. As they disrupt the marketplace they’re also in the position of disrupting the regulatory and legal structure that we’ve set up. Helping them deal with the problems that come from being disruptive is a space where I can offer them particular value.

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