AT&T Net Neutrality Condition: Win, Lose or Draw?

Unsurprisingly, in an area as complex as this, opinion has split on what the merger conditions mean. Some, like Tim Karr and Columbia Law Professor Tim Wu, and Matt Stoller hail the conditions as an important victory. Others, such as Cardozo Law Professor and ICANN Director Susan Crawford, Jeff Pulver, and Dave Burstein think AT&T has cleverly played us for dupes by giving us conditions with loopholes that render the conditions meaningless. While others, like Dave Isenberg, strike a middle ground. Others, pointing out that the conditions only last two years,

What do I think? As I observed in July, when we got got some conditions out of the Adelphia transaction, evaluating wether you won or not in opposing a merger is a tricky business. But I reject the idea we got taken for a ride. To the contrary, anybody who thought this merger was going to provide the answer to the net neutrality issue, or eliminate the need for national legislation, does ot understand what was going on or what we were trying to accomplish.

And no, this doesn’t make a bad merger good. I certainly would have preferred seeing the FCC reject the merger. But given broad hints from Dingell that he never wanted the Ds to go that far, and given the fact that McDowell could have decided to come off the bench in June if the merger was still pending (since the Ds could not get a majority to vote to refer the matter to an Admin Law Judge), I don’t think a rejection was realistic to expect.

More detailed analysis below.

If this were the Superbowl, we have just improbably ground out another touchdown in a nasty, brutal running game. All hail to CU, CFA, Free
Press and others (including, if I may, my employer Media Access Project) that carried the ball on this, especially when we were at fourth an five when it looked like Martin could bring McDowell off the bench. And it is an amazing comeback from the first half of the year, when we got our butts kicked in the House Telecom Subcommittee vote.

But the game is far from over, and no one who seriously plays in this arena thinks that we have somehow solved the problem. Nor do we have any illusions that this even solves the problem for AT&T. We know AT&T will bust its lawyerly brain to find and exploit loopholes. Given AT&T’s network, the boundary between tradition video services (which the Ds agreed to preserve via the IPTV exception, because they want to preserve the more positive aspects of cable law — such as program access and franchise requirements (if the recent FCC action on franchsing gets reversed by the courts or Congress)), and broadband services is very tricky indeed. AT&T has already tried to play the “dual purpose technology” card, claiming to be an “information service” and therefore exempt from franchising while seeking the benefits of being a cable video service when it suits them. And, as others point out, the merger conditions only last two years

But we have gained three very significant things:

1) A clear definition of network neutrality that covers the transport chain from the backbone to the final residential end user.
Forgive language that would get me an FCC fine, but that’s fucking huge. A number of us have been very worried about the vertical integration of
backbone and residential delivery, and having a definition that covers this issue, one that could be ported into federal legislation, is
enormous.

2) Network neutrality will apply to WiMax point to point. This breaks the wireless barrier. We have established that ANY non-mobile platform,
regardless of medium of transmission, can be and should be subject to network neutrality. Again, that’s fucking huge.

3) We just took the biggest, baddest player on the block, the most defiant anti-NN company, and made them cry uncle in public. As Matt Stoller explains, we have made Ed Whitacre and his chorus of industry shills eat their words that we can’t define net neutrality or come up with a way to “regulate” the network that doesn’t create impossibly large costs of service or prevent companies from making money. AT&T can hardly turn around an yelp about how accepting net neutrality makes it impossible to do profitable build outs when they just agreed to both net neutrality and universal deployment of broadband. When the telcos and cable cos try to trot out their tired arguments in the next Congress, they will have to explain why the great spokeman for that argument, good old Ed “no using my pipes for free” Whitacre, has shown by his actions that net neutrality and unviersal affordable bradband can happily coexist.

Those are pretty good political points to open the dance in 2007.

Would I have traded those points for three votes to reject the merger? Hell no. But there weren’t three votes to reject the merger. And, as I pointed out at the time, while McDowell’s brilliant speech gave the Ds leverage, it also put pressure on them to resolve the merger quickly.

Which brings me to a personal point. People here gave up their holiday and sweated blood over this accomplishing major advances for the movement and pulled off a big victory. It doesn’t solve every problem, but it provides huge momentum going in to 2007.

So comments that we got “duped” or “sold out” or didn’t accomplish squat irritiate me somewhat. The people who broke their backs moving this are under no delusions about how much remains to be done. To return to my football analogy: would it really encourage a team that has just ground out a first down from fourth and ten to get boos from the crowd because they haven’t won the game yet? While reasonable minds can differ on whether to put this ultimately in the win column, the lose column, or the draw column, I hope folks will give those who fought hard for what we got a due measure of respect and some indulgence of their celebrating the positives we did achieve.

So yes, we need to study the possible flaws in this definition of network neutrality. We need to come storming out of the gate the first week of ’07 to make sure every Senator and Representative knows this deal is not enough and we will not rest until real network neutrality protections become permanent law. And we need to redoubl our efforts in state legislatures, where the telcos hope to advance their franchise “reform” agenda.

But can we do it in a way that doesn’t piss all over our accomplishments? Especially when, frankly, I think we have good cause to celebrate how ’06 came out.

Stay tuned . . .