Unexpected Face Time for Network Neutrality
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Throughout the U.S. House and Senate debates over network neutrality, Republicans steadfastly insist no federal law is needed prohibiting discrimination in the handling of Internet traffic.
The issue, they contend, is already in the hands of the Federal Communications Commission (FCC), which approved network neutrality principles a year ago.
With opponents unable to craft a winning definition of network neutrality, and in the absence of any historical evidence that the concept -- whatever it might be -- is a threat beyond current regulatory controls, the GOP contends: let the FCC monitor the situation.
This is against a backdrop of merging major telecom carriers proposing to charge Internet-content, service and application providers fees based on bandwidth usage.
Under the carriers' plan, those Internet businesses that use the most bandwidth pay the most. Those who can't pay the freight move to the slower lane where, network neutrality proponents argue, they'll be distinctly disadvantaged in their commercial fight for eyeballs.
As evidenced by key votes striking network neutrality language in various telecom bills, both the House and the Senate remain unconvinced the carriers' proposed business model amounts to discriminatory treatment of Internet network traffic, which is what network neutrality is all about.
The FCC, after all, approved four basic network neutrality principles in August 2005. The principles, by the FCC's own admission, have no force of law.
That's given no pause to the House Commerce Committee, the House as a whole and the Senate Committee.
"We don't need anybody to be the first Secretary of the Internet," House Commerce Committee Chairman Joe Barton (R-Texas) said when the House passed his telecom reform bill in June.
In the Senate, New Hampshire's John Sununu commented: "We do already have [network neutrality] principles set forward by the FCC. The House legislation steers in the right direction."
The House version of telecom reform even goes so far as to prohibit the FCC from creating additional network neutrality principles or regulations.
With its leave-it-to-the-toothless-FCC approach on network neutrality, the GOP last week got what it wanted but with an unexpected twist.
Faced with a vote on the proposed merger of AT&T and BellSouth, Republican lawmakers expected FCC Chairman Kevin Martin and fellow Republicans Deborah Taylor Tate and Robert McDowell to block any attempts by the two Democrats on the panel to attach network neutrality provisions to the deal.
Just the day before the scheduled FCC vote, the Department of Justice approved the merger with no network neutrality strings attached. No strings at all, in fact.
But a funny thing happened on the way to the merger vote.
McDowell recused himself from the vote due to his previous lobbying work for competitive local exchange carriers who oppose the AT&T-BellSouth merger.
McDowell's recusal gave Democrats Michael Copps and Jonathan Adelstein an unexpected hand to play against Martin and Taylor.
One of the first cards played was network neutrality.
Without a majority in his pocket, Martin folded, called for two more weeks of public comment and postponed the vote until Nov. 3.
AT&T began tossing out concessions, this time promising some network neutrality provisions in hopes of winning over Copps and Adelstein.
In a new filing with the FCC, AT&T said it is now willing to adhere to the FCC's network neutrality principles for 30 months after the official closing of the merger.
This is in line with what AT&T agreed to in order to win approval for its merger with SBC last year. Verizon agreed to the same thing for its merger with MCI.
Just what are those FCC network neutrality principles?
The FCC says consumers are entitled to access the lawful Internet content of their choice. Consumers also have the right to run applications and services of their choice and plug in and run the legal devices they want.
Finally, the FCC principles state consumers have a right to competition among network providers, application and service providers and content providers.
That's all good on the consumer end of the Internet, but for those on the retail end -- Google, Amazon, eBay, etc. -- the FCC is silent.
There is nothing in the law or in the FCC principles to keep broadband providers like AT&T and Verizon from charging the big players extra fees to deliver their bandwidth-intensive content to consumers.
"It seems they want to double dip -- get paid by consumers so consumers can access Web sites and get paid by Web sites so Web sites can access consumers," Copps said earlier this year.
Consumer groups and smaller rival telecoms are urging Copps and Adelstein to hold out for a fifth FCC network neutrality principle: Broadband network providers must operate on a non-discriminatory basis to those who offer content, services and applications.
Over the next two weeks, various network neutrality proposals will be bandied back and forth in the backrooms of the FCC as AT&T pushes to close the deal.
It's a deal, AT&T points out, that is already blessed by the DoJ, 18 state commissions and three foreign countries, all of which approved the merger without imposing any conditions.
Perhaps AT&T will make some more concessions, perhaps it will not. Martin is proposing a new FCC study of network neutrality issues in hopes of placating the Democrats.
The end result, though, is likely to be the same for network neutrality proponents: you lose ... again.
Or, with the elections looming, they might say ... for now.