Is the seeming victory for net neutrality all a sham? That’s what I would have expected. Now, via Dave Farber’s mailing list, comes a suggestion that maybe it is all smoke and mirrors:
Dave Burstein, who knows more about DSL than probably just about anyone, lets us know that the fine print in the deal actually may negate the network neutrality premise. The wording is a little tricky, but while they agree not to remove network neutrality from their standard network, hidden in the middle of a later paragraph is this sentence: “This commitment also does not apply to AT&T/BellSouth’s Internet Protocol television (IPTV) service.” At first that might seem innocuous, but Burstein has pointed out that AT&T’s always planned on using the IPTV network as that high-speed toll lane it wants Google, Vonage and others to pay extra for. Burstein notes that AT&T isn’t even set up to put quality of service on their existing network — so the agreement not to violate network neutrality on that network is effectively meaningless. It is, he claims, a sleight of hand that successfully fooled a bunch of people into supporting the deal, and will probably help it get approval. AT&T promises not to violate network neutrality on a network they never intended to use that way, and carves out permission to use it on their new network, where they had planned all along to set up additional tollbooths.
On the other hand, Harold Feld remains the optimist:
It’s not over until we get it into law. But we now have a strong definition for network neutrality and a clear acknowledgment of why we need it and how it will work.
Step by step, by the numbers, we move the ball steadily forward to the goal.
And, Columbia’s Tim Wu also thinks this is a big win. And he suggests that the exceptions are not necessarily that serious.
And, indeed, one of the shibboleths of the anti-neutrality crowd has been that the concept itself is too amorphous. Well, they can’t say that any more.
I still think this debate mires us deep in the second or third best because, as I’ve said before, we are now stuck in a position where we can’t trust the market to sort this one out, as we might usually want to do. The core problem is regulatory choices by the current administration. We used to have a rule which required the owners of the last mile of wire/fiber to give access on fair terms to competing providers.
This administration reversed that rule, so now there isn’t true competition for the provision of household broadband. Instead most consumers face a monopolist or at best a DSL/Cable duopoly. If we had true competition at the consumer endpoint we at least have some hope that the outcome would preserve the public goods aspects have interoperability and a place for the small and quirky.
So for me the real issue isn’t regulation to achieve “net neutrality”. The real issue is keeping the consumer from being made captive in the first place. But that’s not on the policy menu at present given the power of the (ever bigger) telcos.
For the record, here’s some of the text of AT&T’s letter, with some of the key exclusions,
This commitment does not apply to AT&T/BellSouth’s enterprise managed IP services, defined as services available only to enterprise customers  that are separate services from, and can be purchased without, AT&T/BellSouth’s wireline broadband Internet access service, including, but not limited to, virtual private network (VPN) services provided to enterprise customers. This commitment also does not apply to AT&T/BellSouth’s Internet Protocol television (IPTV) service. These exclusions 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, as defined above.
This commitment shall sunset on the earlier of (1) two years from the Merger Closing Date, or (2) the effective date of any legislation enacted by Congress subsequent to the Merger Closing Date that substantially addresses “network neutrality” obligations of broadband Internet access providers, including, but not limited to, any legislation that substantially addresses the privileging, degradation, or prioritization of broadband Internet access traffic.
At&t will go down soon.