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AT&T Concessions Prove Meaningless

January 10, 2008
By Jason Lee Miller

Remember how after AT&T made Net Neutrality concessions to get their merger with BellSouth approved, FCC Chairman Kevin Martin was so quick to remind everybody that the FCC had no teeth to enforce that? Well, the lack of teeth is coming back to bite us.

Let’s review. At the end of 2006, Martin had this to say about making sure AT&T followed it’s own commitment to maintaining a neutral network:

while the Democrat Commissioners may have extracted concessions from AT&T, they in no way bind future Commission action. Specifically, a minority of Commissioners cannot alter Commission precedent or bind future Commission decisions, policies, actions, or rules.

A little over a year later, Congress is threatening investigations into abuse of power as well as Martin’s apparent telco-industry favoritism. Martin’s been so pro-telco and so anti-cable that you wonder if there’s an office waiting for him at AT&T once he gets out of the FCC �” which couldn’t be soon enough for us or him.

At CES in Las Vegas, observers were surprised at AT&T’s sudden commitment to fighting piracy on its network. This hasn’t been much of a concern in the past. But sure enough, as a New York Times blogger reported, AT&T is working with the entertainment industry to become an Internet traffic cop.

AT&T lobbyist James Cicconi told a group of people that the company was developing technology for network-level filtering �” or deep packet inspection �” to fight content piracy for the RIAA, the MPAA, and NBC Universal. Echoing Cicconi, NBC Universal general council Rick Cotton specifically highlighted peer-to-peer networks as the biggest problem.

So in effect, despite AT&T’s prior unenforceable “commitments” and efforts to dispel Network Neutrality concerns as myths, the company wants to decide what content gets through its network and what content doesn’t, including from p2p networks, which cable rival Comcast is facing investigation for blocking. (Don’t forget that in addition to competing with cable for internet access business, AT&T is delving into TV delivery, too.)

But why the sudden interest in piracy? TechDirt’s Mike Masnick has connected some interesting dots. He writes:

A clue may be found in an MPAA FCC filing over the summer, where it spoke stridently against any network neutrality rules, for fear that such rules might make it impossible for ISPs to police content…. Basically, the MPAA (mainly NBC Universal) was offering up a compromise plan to the telcos: you support us by policing your network and we’ll support you in trying to double charge popular websites…. in its greed to be able to set up extra tollbooths, the company appears to recognize that using “piracy” as an excuse for blocking is a way in the backdoor, potentially even around the very promises AT&T made to keep the net neutral for 30 months in order to get approval to buy BellSouth.

He also notes that becoming network content police, AT&T opens itself up to more liability. In the past, the Digital Millennium Copyright Act was sufficient safe harbor for the telco.

What can the FCC or other government agencies do about it? Like Kevin Martin said last year, nothing really. AT&T’s “agreement” didn’t mean a thing. And legislation? Well, the Democrats promised but have to deliver. Who knows? Maybe the election won’t be too much of a distraction to get it done by the end of 2008.