1. It's unfortunate that yesterday's drama had to come in the context of a merger clearance. I tend to agree that mergers aren't the right moments to apply laundry lists of conditions that may or may not serve public interests. I'm confident that the Democratic commissioners and the consumer advocates were negotiating in good faith, but it all smacks of a private deal -- a back-room deal, done to ensure completion by some company's internal deadline. (Kudos to the person who can figure out why year-end 2006 was so important.)
That's not the way national policy should be made. And here I'm going to point to my service on the ICANN Board, where all of my colleagues on the board operate in good faith and with the best of intentions. But we often trip ourselves up on this front. In my personal view, it's not right to have one-off merger clearances (or one-off registry contracts) that are made behind closed doors dictate policy. Doing it that way puts everyone on shaky ground. It's always a better idea to work towards rules of (1) general applicability (2) that are decided in advance by (3) some process that (4) brings the issues to the attention of everyone who might be interested. Nothing's perfect; legislation itself is always a "deal" as well. But whatever we can do to reduce the deal-like atmosphere is good.
In the net neutrality context, all this means is that we should take the momentum generated by this merger discussion and use it to drive towards generally-applicable, clear-as-possible legislation.
2. SBC/AT&T have been arguing for years that any "IP platform service" (they'd now call it IPTV) should be removed from regulation. Back in February 2004, SBC filed a petition asking that the FCC forbear from subjecting these "platforms" to traditional telephony regulation. That petition was eventually denied on the grounds that it wasn't clear whether such regulation would be applied to such "platforms."
What was an "IP platform" to SBC at that point? SBC wasn't entirely clear -- they said "IP platform services" were "those services that enable any customer to send or receive communications in IP format over an IP platform, and the IP platforms on which those services are provided." But the FCC noted that SBC intended its petition to cover its new fiber networks: In "ex parte filings SBC suggested that, at least with regard to the facilities portion of the relief
requested, its petition is intended to cover newly constructed fiber-to-the-node and fiber-to-the-home IP networks that SBC plans to roll out later this year."
The argument hasn't stopped -- just a few months ago, SBC/AT&T filed a letter with the FCC saying that its "U-verse" wasn't a cable service (and so not subject to local franchising rules) because it was interactive. AT&T also let the FCC know that the Connecticut PUC had made the same determination.
What's U-verse? It's the "IP Platform" under a different name. It used to be called Project Lightspeed, and here's how SBC/AT&T described it to the Connecticut regulator: "The Project Lightspeed network will integrate IP-video with voice, data and other applications (all ultimately to be IP-based) in a manner that is not possible over existing broadband or cable networks. Because the various applications will amount to data packets traveling over the same broadband pipe, the services will interoperate and communicate in a way that makes each service more useful than it would be standing alone."
It's SBC/AT&T's fiber network:
With AT&T U-verse, it’s all coming together. The AT&T U-verse portfolio integrates digital video, AT&T Yahoo! High Speed Internet U-verse Enabled, and in the future, voice over IP services. AT&T U-verse TV – AT&T’s premier, 100 percent IP video offering – features leading content, quality high-definition programming, and enhanced capabilities unlike anything on the market. (emphasis in original)
The point of all this quoting is that SBC/AT&T have been working steadily for years to have their fiber optic "IP Platform" (however named) treated differently than traditional telephone or cable services. They see this platform as an integrated whole -- a "portfolio" of services. They see it as different from their now-traditional DSL offering. That's why the exclusion of "IPTV" from the neutrality language in yesterday's merger document is troubling. IPTV, to AT&T, likely means "U-verse," and U-verse includes internet access ("U-verse Enabled") as well as everything else. At the least, the reference to IPTV is deeply ambiguous.