Net Neutrality: Far from a Done Deal

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Network-neutrality advocates got a holiday surprise just before the new year, when AT&T finished negotiations with the Federal Communications Commission (FCC) over its proposed merger with BellSouth. Before they would vote to approve the merger, the FCC's two Democratic members forced AT&T to accept a number of conditions, including an explicit network-neutrality pledge. In the agreement, released December 29, AT&T reluctantly promised "not to provide or to sell to Internet content, application, or service providers ... any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's wireline broadband Internet access service based on its source, ownership or destination."

SavetheInternet.com and other groups greeted AT&T's concessions as a major victory. Columbia's Tim Wu called it "a milestone in the history of the Internet." And it was indeed a remarkable turnaround for AT&T, considering Whitacre's past vehemence on the matter.

But the agreement was far from a cry of surrender from ISPs. AT&T agreed to adhere to an equal-access provision for only two years, or until Washington enacts network-neutrality legislation. And while the combined AT&T/BellSouth will own the largest single chunk of the Internet's infrastructure in North America, the agreement has no impact on the other big backbone owners: Verizon, Qwest, and cable companies such as Comcast.

Critics have also pointed out a large loophole in AT&T's agreement. The "wireline broadband Internet access service" mentioned in the agreement referred only to the company's existing copper-wire DSL service. AT&T's "U-Verse" TV and Internet service, being rolled out in San Antonio, Houston, Milwaukee, and up to 30 more cities by the end of 2007, is based on fiber-optic technology and therefore isn't affected by the concessions, notes Susan Crawford, a cyberlaw expert at Cardozo Law School.

U-Verse includes both television programming and a high-speed Internet access package cobranded with Yahoo. Since it's not covered by the merger agreement, AT&T is theoretically free to make deals with Yahoo and other Internet companies to speed their content to U-Verse subscribers. "AT&T is effectively saying, 'We'll keep existing "broadband" access neutral. But when it comes to our new super-duper "AT&T Yahoo! High Speed Internet U-verse Enabled," well, that's not up for negotiation,'" Crawford writes.

New laws that would supersede AT&T's agreement and other net-neutrality compromises may have brighter prospects in the new Democratic-led Congress. Already, Senators Byron Dorgan (D-North Dakota) and Olympia Snowe (R-Maine) have reintroduced a bill, the Internet Freedom Preservation Act, that would amend the 1934 telecommunications act to impose strict network-neutrality requirements on broadband service providers.