As Congress begins its new session, there has been a flurry of activity on Capitol Hill to protect the open nature of the internet. On Tuesday, Senators Byron Dorgan and Olympia Snowe re-introduced a bill from last session that bans internet providers from charging certain sites for faster access -- or blocking other sites entirely. The same day, Representative Edward Markey was elected chairman of the House subcommittee that oversees the internet and vowed to hold hearings on the subject, known as net neutrality. The irony of all this regulatory activity? The greatest support for it -- provided inadvertently and unwillingly, of course -- comes from AT&T, which spent tens of millions of dollars on lobbying and advertising over the past year to defeat any regulation.
The roots of the current legislative push lie in the telecom giant's desperate actions during the last week of 2006. AT&T, which had vowed to complete its acquisition of BellSouth by the end of the year, seemed certain to miss its goal. One of the FCC's Republican members had been forced to recuse himself from a review of the deal, requiring AT&T executives to win over Commission Democrats to break the deadlock. So on the last business day of the year, the company sent the FCC a list of concessions. Most significantly, it included a two-year commitment to “maintain a neutral network,” with a detailed description of what that entailed. Both FCC Democrats signed on, and AT&T managed to complete its acquisition just before New Year's weekend.
The company tried to claim the concession was minor -- in a cover letter to the FCC secretary, AT&T Vice President Robert Quinn decried the “wholly unnecessary” commitments his company had made. And yet for open internet proponents, it's hard to see the deal as anything less than a major victory. For a year, AT&T has claimed, disingenuously, that a “neutral” network is an amorphous concept that can't be regulated. Yet when executives faced a delayed merger -- and thus a hit to AT&T's stock price -- company lawyers suddenly were able to craft a succinct legal definition.
The agreement makes plain how dishonest AT&T has been. Just last March, the company's brash chief executive, Ed Whitacre, claimed that opponents of his BellSouth deal wanted to turn the merger “into a referendum on the concept of net neutrality.” The idea, he suggested, was ridiculous. “I'm not even sure what that means.”
AT&T's allies on K Street and in Congress repeated the argument again and again: you can't regulate what you can't define. Former Clinton press secretary Mike McCurry, who shills for AT&T through an astroturf organization called Hands Off the Internet parroted Whitacre's line in the media. In May, he claimed the entire debate was “about how to define network neutrality.”
Weeks later, in a Wall Street Journal discussion with Craigslist founder Craig Newmark, McCurry asked, apparently rhetorically, “what exactly is the definition of ‘net neutrality' anyhow?” Senator Ted Stevens, a reliable telecom ally, used the same tack. When he couldn't ram through a bill without a net neutrality provision, he claimed internet extremists had stonewalled him on a bogus issue. “It's a fetish,” he said. “It's really something that doesn't exist.”
AT&T and other telecom giants amplified this message through massive PR campaigns aimed at Congress and the general public. By mid-year, telephone and cable companies had spent over $45 million dollars solely on lobbying Congress (the year-end total is not yet available). Tens of millions more went to a TV and print advertising blitz.
Now however, all that money seems to have gone to waste. The most notable opponent of net neutrality has, with one letter to the FCC, undercut its most notable argument. Not only can net neutrality be defined, it has been written into a fairly concise regulatory agreement by AT&T's own lawyers. And the company suddenly finds itself in the awkward position of being a net neutrality pioneer. “As the first working rule,” the AT&T agreement “may serve as a model and an experiment for what follows,” Columbia Law School professor Tim Wu noted. The agreement already is serving as a model of sorts -- by motivating efforts in Congress. In re-introducing her internet bill, Senator Snowe explicitly linked it to “the FCC's imposition of net neutrality conditions as part of the AT&T-BellSouth merger.”
The telecom industry is certain to continue its lobbying against any net neutrality legislation. United States Telecom Association President Walter McCormick already has attacked the Snow-Dorgan bill as “government regulation” that “would make it against the law for any company to invest in customized Internet service.” But after AT&T's concessions, one has to wonder whether McCormick and the rest of the industry have any credibility left on the issue.
Alexander Dryer works for The New Yorker in Washington, D.C.
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