Misinformation in defense of net neutrality

Adam Green, responding to Mike McCurry, writes (following Matt Stoller at MyDD) that:

Lie #1: McCurry knows the Internet is not "absent regulation" yet he's willing to deceive the public if it helps his clients. As Matt Stoller points out on MyDD:

What McCurry did not tell the public was that during the Clinton years, the FCC actively enforced net neutrality -- the Internet's First Amendment -- against his telecom clients. Common carrier statutes have in fact been a bedrock principle of telecommunications law since 1934, and in 1996 Congress ratified that with a commitment to network neutrality.

Mike McCurry has a moral obligation to everyone who has ever respected him and looked up to him to answer this question: Do you stand by your statement that the Internet is "absent regulation?" Or do you admit that, like so many parts of our American economy, the Internet does have rules?

This is deceptive--ISPs are not common carriers and Internet services offered by telecoms are not bound by common carriage regulations. Internet services have been classified as information services or enhanced services, and thus don't have to collect fees for universal service or take anyone who comes along as customers. Common carrier means you have to accept everyone as a customer and not discriminate about what traffic that is carried (so long as it's legal), but ISPs can, do, and should set standards beyond what the law requires in order to (for example) keep spammers off their networks. Common carrier status has only an indirect relationship to the Internet and net neutrality--it is about physical interconnection, not about Internet interconnection.

Stoller goes on to describe the FCC regulatory change regarding DSL networks:

Yet less than a year ago, in August, 2005, the Clinton -Gingrich policy of enforced network neutrality was radically upended by the FCC:

The FCC said that phone companies such as Verizon, SBC, BellSouth, Qwest and other local telcos will no longer be regulated by traditional telephone rules when it comes to their DSL broadband services. The FCC agreed unanimously to classify DSL broadband as an "information service" rather than a telephone service. Phone companies will no longer be required open their broadband networks to access by third-party ISPs.

After a one-year transition period, the phone companies can arbitrarily end any agreements they were forced to make with independent ISPs. During the transition year, the ISPs can attempt to negotiate new deals, but the cards are all in the hands of the telcos.

In other words, you know all that nice Clinton-Gingrich policy that made the internet work? Yeah, after a one year transition period, that's gone, as a sort of sunset provision for the free internet sets. This is incredibly sneaky. What McCurry is doing is couching a radical change to the internet in the guise of the status quo.

Stoller makes it sound like this change has something to do with RBOCs' Internet services, but it doesn't. It has to do with other ISPs using RBOCs' last-mile networks to connect consumers to their own Internet services--those ISPs typically don't connect to the RBOCs' Internet services, but rather purchase IP transit from multiple backbone providers.

Contrary to Stoller and Green, there was no "Clinton-Gingrich policy of enforced network neutrality" that required any kind of interconnection between providers of Internet services--rather, there was a requirement that telcos provide the use of their last-mile networks to ISPs to use to carry their own Internet services.

That requirement seems to have been a good one for creating competition among Internet services, but it's important to be clear that we're talking about the last-mile telco networks and not their Internet services or their backbones, though the telcos have continued to try to present that as the issue and many net neutrality defenders have wrongly accepted that as the issue.

Last mile competition, unlike net neutrality, is a real issue, especially for consumer Internet access. It's less of a problem for businesses since there is wider competition available via colocation services, metro fiber networks, and wireless. In my opinion, the best long-term defense against a telco/cable duopoly will be wireless access solutions, though there will no doubt be some others like broadband over power lines.

It is distressing to see net neutrality advocates continue to get basic facts wrong in defense of their poorly thought-out positions. If you don't understand how the Internet works today (technologically, politically, and legally), then you are not in a position to be making proposals about how it should be regulated that are not going to have significant (and likely very bad) unintended consequences.