Kevin Drum gets it wrong on net neutrality and common carriage

Kevin Drum writes:

The 1996 Telecommunications Act defined two different types of service, information services (IS) and telecommunications services (TS), and cable companies were originally classified as IS and telephone companies as TS.

Right so far, except that Internet service is classified as an information service, not a telecommunications service. Keep that in mind as you read his next two sentences:

Although both cable companies and telcos provide local internet access, the backbone of the internet is carried exclusively by telcos, which were regulated as common carriers under the tighter TS rules. The common carrier rules effectively enforced the principles of net neutrality on the internet backbone.

This is just wrong. Common carriage rules require telcos to allow third parties to connect to their telephony networks or to use their networks for private line connections between two points. Common carriage does not require interconnection to anybody's Internet network. There is not and there has never been a legal requirement that any Internet service provider or backbone allow all comers to connect to their Internet services--and thank goodness, because that means ISPs and NSPs can deny services to spammers or other entities that don't agree to their terms of service/acceptable use policies. ISPs qua ISPs and NSPs qua NSPs are not common carriers!

While there are Internet backbone links that use telco networks, these were typically the networks of long-distance telcos (AT&T, Sprint, MCI) or next-generation fiber telcos (Qwest, Global Crossing, Level 3) rather than the last-mile telcos (such as the Regional Bell Operating Companies). Now AT&T, MCI, and Qwest have been acquired by or acquired last-mile telcos (SBC, Verizon, and U.S. West, respectively), but the last-mile telcos subject to common carriage didn't build the backbones.

Why do net neutrality advocates continue to get this wrong, even after being corrected repeatedly?

UPDATE: BTW, I should note that Harold Feld (who has commented here) has specifically agreed that he'd like to impose common carriage requirements on broadband providers (meaning that last-mile telcos and cable companies would have to allow others to provide services over their access networks, so you could buy Earthlink, AOL, Yahoo, or Panix Internet service from your local cable company or telco--the situation would be like it used to be with DSL providers and local telcos). I'm not sure what other elements he would advocate--whether he'd apply similar requirements to wireless providers (requiring them to let anybody be a mobile virtual network operator), ban QoS, ban anything less than full Internet service over any medium, count non-residential services as broadband, etc. (And Harold, if you read this, I'm still waiting to hear responses from you here (on your own blog) and here (on mine, about HR 5417).)

By contrast, Timothy Karr at Save the Internet has explicitly denied that he's equating net neutrality and common carriage, but hasn't said what he does mean. (And Tim, you haven't responded to my final comment here on your own blog, either.)

UPDATE June 11, 2006: Tim Lee rightly questions Drum on this point as well, asking whether Internet backbones have really been under such regulations, which leads to some further information about peering agreements. I've pointed him to this post from last November about peering (see in particular the linked Geoff Huston paper).