at&t's Trojan Horse Take 2

For some mysterious reason, perhaps related to the way I posted the photo of the Trojan Horse from Flickr, the text of yesterday's post disappeared leaving only the picture.  So I'm reposting the text today while I try to figure out what went wrong with yesterday's version.

SavetheInternet.com calls the at&t “concessions” and the FCC’s consequent acquiescence in the at&t/BellSouth merger a “striking victory for Internet freedom advocates”. Although this group deserves great credit for getting the Democratic Commissioners of the FCC to take a harder line initially than their Republican colleagues, a better description of the definition of Internet neutrality crafted by at&t would be a “Trojan Horse”.  It is a dangerous mistake for us Trojans (advocates of a neutral Internet) to wheel the at&t definition of net neutrality through the walls of the city and more particularly into the halls of Congress; it could turn into law.  It is better to recognize tactical defeat than claim a false victory.

Professor Tim Wu laid out the case for this being a victory on behalf of SavetheInternet.com.  His is a reasoned analysis, certainly worth reading.  But I think he is wrong.

There are three things wrong with the at&t definition of Net neutrality:

1. It applies only to the Internet access network, not to the backbone network. There is even less competition in providing backbone network than in providing access.  This merger and the previous merger of AT&T and SBC and the merger of Verizon and MCI all decrease competition on the backbone.  Cable providers, local ISPs, and radio all provide some measure of competition on the access network.  None of them compete substantively in providing backbone.  So it is on the backbone network that there is the greatest danger.  Professor Wu acknowledges that the backbone network is excluded from the agreement but says this is currently defensible because of “the existence of a working, de facto neutrality scheme.”  Not comforting since it is the future actions of the newly enhanced monopoly which are a danger.
2. It is only for two years or until Congress passes some law regarding Net neutrality.  It is reasonable for this to sunset IF there is a  Net neutrality law; I’ve been hoping there won’t be need for one because of the danger of (perhaps) unintended consequences.  It is not safe for a dominant player in an uncompetitive but crucial industry to be allowed to provide other than neutral service for as long as it has monopoly power.  But, two years from now, that’s exactly what the at&t agreement allows even if there is no protective legislation.
3. It excludes both IPTV and private VPNs created for corporate clients.  Like Professor Wu, I have no quick answer regarding VPNs; I’m not sure corporations shouldn’t be able to buy them which means someone has to be allowed to provide them.  That needs more thought.  But the IPTV exclusion gives at&t everything it always wanted; and opportunity to create a dominant position in video on the web based on its monopoly power over the underlying transport.  That should not under any circumstances be permitted.

Professor Wu and others take comfort from a clause that says that the exclusion of IPTV and corporate VPNs “shall not result in the privileging, degradation, or prioritization of packets transmitted or received by AT&T/BellSouth's non-enterprise customers' wireline broadband Internet access service from the network side of the customer premise equipment up to and including the Internet Exchange Point closest to the customer's premise.”  Again, this is limited to the access network.

Interestingly, the last assertion is an oxymoron and an engineering impossibility which might be used to force some level of real neutrality on at&t.  Not to be too technical but, in the end, prioritization always means making a choice between too many claimants on a scarce resource:  the claimant that gets the resource is advantaged; the other is relatively disadvantaged; any claim to the contrary is sophistry.  Of course, if a network is vastly overbuilt, then no decision may ever have to be made.  But, if that were at&t’s intent, they would have no need to carve out the exclusions in the first place.

What are important now are three more things:

1. monitor by any means possible for violations of Net neutrality by at&t and others;
2. do NOT use this definition of Net neutrality in legislation or regulation;
3. watch the review of at&t’s past merger by Judge Emmet Sullivan;  any modifications he make to that also applies to this one.

at&t Gives Both Sleeves From Its Vest is an earlier and more complete analysis of at&t’s concessions.