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).

"The Environmental Wars" Skeptics Society conference

Einzige and I will both be at the Skeptics Society conference in Pasadena tomorrow and Saturday and would welcome greetings from any blog readers, assuming the intersection of our readership and the conference attendees is non-null. At least I'll be able to say hello to Chris Mooney, whose blog I read regularly...

Worst net neutrality analogy ever?

From Susan Crawford:

Think of the pipes and wires that you use to go online as a sidewalk. The question is whether the sidewalk should get a cut of the value of the conversations that you have as you walk along. The traditional telephone model has been that the telephone company doesn't get paid more if you have a particularly meaningful call -- they're just providing a neutral pipe.

If you're going to use a sidewalk as an analogy for a communications pipeline, then the users of the sidewalk need to stand for the communications traffic. Then the question becomes, should users of different types have to pay different rates for the use of the sidewalk to those who build and maintain it (not to the sidewalk itself!). Further, the sidewalk has to keep being made bigger to support all the traffic being carried, and some of the users are in a bigger hurry and are likely to collide with those who aren't, and some of the latter are holding big gatherings between their residences, like a block party in the neighborhoods. Should those guys get to do that for free, or at the same cost as their neighbors who aren't interested in a block party?

UPDATE: I had issued a trackback ping to Susan Crawford's blog post which was accepted, but apparently she decided to delete it. That's rather ironic--she supports net neutrality, but blocks critical trackbacks to her blog. I guess her support of net neutrality isn't based on any principle of fairness or free speech.

UPDATE (June 8, 2006): Susan Crawford responded to a query about this, and attributed the deletion to automatic anti-spam defenses, and invited me to re-issue a trackback, which I will shortly do. I retract the last two sentences of the above update, and apologize to her for my erroneous inference.

UPDATE (March 13, 2008): Actually, I never regained the ability to issue trackbacks or even to reference this blog's URL in comments posted on Susan Crawford's Blogware blog, so all of my comments there refer to my discord.org website instead. She moved her blog in late 2007, but I've not commented or issued any trackbacks to the new one.

Fuck jurisprudence

No, that's not an imperative, it's a description of a new area of law explored in a recent law journal article.

(Hat tip to John Lynch at stranger fruit.)

The Abstract Factory on net neutrality

"Cog" at The Abstract Factory has a good, thoughtful post on net neutrality--and gets hit by astroturfing shills in the comments who almost seem to be trying to change his mind. (He comments further on the shills, a few of which have appeared in the comments at this blog, here.)

Scientologists pay another web visit

As I noted in my "Scientology Sampler" post on March 4, my web sites still get periodic visits from Church of Scientology IP addresses, at that time most recently on January 1. They just came by again on May 22, attempting to look at my online copy of Russell Miller's biography of L. Ron Hubbard, Bare-Faced Messiah, as well as the article I co-authored with Jeff Jacobsen, "Scientology v. the Internet," and my skeptical links pages on Scientology. Here's an example web log entry:

[Mon May 22 11:42:00 2006] [error] [client 205.227.165.11] client denied by server configuration: path deleted/03.3.jl-jj-scientology.html, referer: http://www.google.com/search?hl=en&lr=&rls=GGLD%2CGGLD%3A2005-09%2CGGLD%3Aen&q=Jim+Lippard+Scientology

Then, yesterday afternoon, this blog got a visit and a comment (from a brand-new Blogger account) on my post on Arizona legislators accepting trips from the Church of Scientology in return for sponsoring bills for Scientology's front group the Citizens Commission on Human Rights. This poster, asking why I don't support Scientology's mental health efforts, came across the entry by Googling for "CCHR":

Time of Visit           May 29 2006 4:49:43 pm
Last Page View          May 29 2006 4:59:42 pm
Visit Length            9 minutes 59 seconds
Page Views              4
Referring URL           http://search.blogger.com/?ui=blg&q=cchr
Search Engine           search.blogger.com
Search Words            cchr
Visit Entry Page                http://lippard.blogs...ponsoring-bills.html
Visit Exit Page         http://lippard.blogs...ponsoring-bills.html
Out Click               a number of Arizona legislators have been sponsoring bills
http://www.azcentral...cientologists11.html
Time Zone               UTC-6:00

This individual's source IP, however, is an Ameritech/SBC IP out of Springfield, Illinois (not a big Scientology stronghold like Los Angeles or Clearwater, FL). Illinois is, however, the location where Scientology won a battle to get an exhibit that compares psychiatry to Nazis put back on public property in the Thompson Center--so it looks like the CCHR Chicago has a bit of pull.

Anyway, this is a good opportunity to recommend reading Janet Reitman's "Inside Scientology" from Rolling Stone magazine from February, an excellent overview and introduction to Scientology's beliefs and history.

Children detained at Guantanamo Bay

The London Independent reported yesterday that more than 60 detainees at Guantanamo Bay were under 18 at their time of capture, including some boys as young as 14. One child prisoner, Mohamed el Gharani, was accused of involvement in a 1998 al Qaeda plot in London, even though he was 12 years old at the time and living with his parents in Saudi Arabia.

British officials say the UK had been assured that juveniles would be held in a special facility called "Camp Iguana," but only three juveniles were treated as children.

A senior Pentagon spokesman says that no one being held now at Guantanamo Bay is a juvenile, though London lawyers say there are at least 10 still being held who were 14 or 15 when captured. (Those statements are not contradictory.)

Dishonesty from Paul Nelson

Paul Nelson, who has usually been known as one of the few honest major advocates of intelligent design at the otherwise disreputable Center for Science and Culture at the Discovery Institute, has fallen temptation to make his case stronger by being deceptive about what one of his opponents said in a debate. Ed Brayton gives the full account.

UPDATE (May 30, 2006): The discussion continues, with Paul Nelson's involvement in the comments, here.

Wine shipping in Arizona to become legal

Despite the attempted astro-turfing by beverage distributors, Arizona Senate Bill 1276 has passed. Actually, the wholesalers agreed to a compromise--the bill only allows shipping by wineries that produce less then 20,000 gallons of wine per year (and which obtain an Arizona domestic farm winery license and pay state taxes). The fact that the wholesalers agreed to a compromise based on wine production shows that they didn't really believe their own arguments that this created a new risk of underage drinking.

More on last-mile options in Phoenix

I've posted this as an update on the original post, but it's also worth bringing out as a separate posting. I've made a few minor changes here (e.g., to insert the point about Cable America that is made elsewhere in the original post).

Douglas Ross (directorblue) has called this list "bogus" and claimed that only two of the options (Qwest and Cox) actually count. He rightly dismisses Cable America from the list on the grounds that Cox entered into an agreement to acquire them in January of this year--I grant his point and that reduces the number of broadband providers by one.

He dismisses Covad because it uses Qwest last-mile wires, but goes on to say, inconsistently, that he would count other cable resellers if the Brand X decision had gone the other way and providers like Cox were forced to enter into relationships like Covad has with Qwest. My observation is that if those reseller relationships exist and the reseller provides access to its own Internet network, then that is enough to foster a competitive environment. It doesn't matter whether it's government-mandated, it matters whether it exists.

Doug rejects all the wireless options out of hand on the grounds of Verizon's EVDO terms-of-service. (His section about why WiMax isn't viable doesn't actually discuss WiMax at all, only EVDO terms-of-service.) He misses the point that Sprint Broadband and Sprint EVDO are *two different services*--he doesn't actually give a reason to reject Sprint Broadband.

He says he doesn't understand why I put the City of Tempe's municipal WiFi network in the list--I did so because Tempe is right in the middle of the Phoenix metropolitan area (and noted Chandler's metro WiFi in-development, which is just south of Tempe, for the same reason). These are real options for people moving to the Phoenix area and for anyone who is willing to move to get different broadband service. (And certainly broadband options in an area are an important factor in choosing a place to live.)

Finally, he rejects HughesNet because it is unsuitable for VOIP or P2P. At least he doesn't say that HughesNet should be mandated to change the laws of physics in order to provide those services under net neutrality.

Doug's position on net neutrality appears to be that nothing counts as broadband unless it supports every application he wants to use. But it's important to note that the net neutrality bills in Congress *do* count all these options and place regulations on them--they count anything as broadband that is greater than 200kbps in one direction, whether wired or wireless. I don't see Doug volunteering to exempt things he doesn't count as valid broadband options from broadband net neutrality restrictions.

It appears to me that Doug's position is that whoever builds an infrastructure capable of supporting what he wants has to provide it to him, without recovering the costs of that infrastructure by charging any third parties. But I bet he also is unwilling to pay an unsubsidized rate to use such a service.

(UPDATE: I was just looking at Doug's blogroll, and he's pretty strong evidence that net neutrality positions don't necessarily correlate with political positions. Doug's political blog links include Michelle Malkin, Little Green Footballs, and the dishonest nutcases at "Stop the ACLU.")