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[IP] more on Give Me Bandwidth . . .





Begin forwarded message:

From: "Faulhaber, Gerald" <faulhabe@xxxxxxxxxxxxxxxxx>
Date: June 21, 2006 11:49:15 AM EDT
To: David Farber <dave@xxxxxxxxxx>, Michael Katz <katz@xxxxxxxxxxxxxxxxx>, Christopher Yoo <christopher.yoo@xxxxxxxxxxxxxxxxxx>
Subject: RE: [IP] Give Me Bandwidth . . .

I think Sara Lai has it right on several counts. Yes, NN is a misplaced debate about market power in last mile distribution...again. Yes, antitrust is a good answer, but recent court rulings have jeopardized the ability of private parties and agencies to bring antitrust suits in this industry. I believe we are of the view that AT is the way to go, but perhaps some Congressional clarification of AT's role in telecoms/Internet space is no bad thing.

This article is one of the most sensible I've seen in some time on this issue.

Comments?


Professor Gerald Faulhaber
Business and Public Policy Dept.
Wharton School, University of Pennsylvania
Philadelphia, PA 19104
Professor of Law
University of Pennsylvania

-----Original Message-----
From: David Farber [mailto:dave@xxxxxxxxxx]
Sent: Wednesday, June 21, 2006 9:03 AM
To: Faulhaber, Gerald; Michael Katz; Christopher Yoo; David Farber
Subject: Fwd: [IP] Give Me Bandwidth . . .



Begin forwarded message:

From: Sarah Lai Stirland <stirland@xxxxxxxxx>
Date: June 20, 2006 11:29:38 PM EDT
To: dave@xxxxxxxxxx
Subject: Re: [IP] Give Me Bandwidth . . .

Hi Dave,

I just wrote an issue paper on this subject of competition in this area. Everyone agrees that antitrust should play a big role in enforcing net neutrality. But antitrust practitioners say the law is broke ...

Issue Of The Week: Monday, June 19, 2006 The Resurrection Of AT&T by Sarah Lai Stirland

Thirty-three years ago, the antitrust subcommittee of the Senate Judiciary Committee held a hearing about AT&T's performance, its communications monopoly and allegations of its anti-competitive behavior. The forum was one of the first public places where the idea of breaking up Ma Bell was first floated. This Thursday, the antitrust subcommittee will preside over a hearing where executives from the companies that used to comprise Ma Bell will discuss the competitive impact of reuniting, as AT&T prepares to acquire BellSouth. The merged firm would reinstate AT&T as the largest provider of communications services in the nation. The questions about the nature of competition in the telecommunications market and the fears that AT&T competitors have of the merged firm's ability to abuse its position remain the same at the dawn of the 21st century as they did in the 1973. Many of the arguments also remain unchanged. Only the vocabulary to describe them has changed.

New Terms, Familiar Debate
One buzz phrase is "network neutrality." It means different things to different people, depending on where they stand along the chain of digital communications networks. Infrastructure providers have characterized it as a dangerously vague concept that would prohibit them from offering specialized -- and sometimes faster -- Internet connections to unspecified kinds of customers willing to pay a premium. Internet companies such as Amazon.com, eBay and Google, along with Bell competitors, have said a mandate that similar types of Internet content be treated equally would roll back recent legal developments deregulating the communications industry. The rule, they assert, would prevent dominant Web providers companies from behaving anti-competitively by "discriminating" against their products and services. In Senate Judiciary Committee testimony last week, long-time telecommunications analyst Blair Levin noted the similarities between today's net neutrality debate and previous telecom discussions. "Network neutrality presents an old policy problem -- whether, and if so, how, to regulate a network -- but with a new set of facts: an unregulated duopoly of the most important platform for economic growth in the country," wrote Levin, now a managing director at Stifel, Nicolaus and Co. "Net neutrality really is a proxy for something else," Jonathan Rubin, a senior fellow at the American Antitrust Institute, said in an interview. Rubin is scheduled to testify at the Thursday hearing about the AT&T and BellSouth merger. "The antitrust perspective is that the network neutrality proponents themselves recognize that the essential problem that net neutrality tries to address is the lack of competition in the broadband access market," Rubin said. "Because of that, this raises the question of what is the best solution to what is essentially a competition problem." Comcast Executive Vice President David Cohen told the subcommittee last week, "Antitrust laws are by far the best way to address any occurrence of the kinds of problems that network neutrality proponents say they are concerned about."

Confusion In The Courts?
Yet several players in the world of antitrust and telecommunications note that recent court decisions have blunted antitrust enforcers' tools. House Judiciary Committee Chairman James Sensenbrenner, R-Wis., is among the critics. Sensenbrenner sponsored legislation to clarify congressional intent behind the existing body of antitrust law. But the House failed to include that language in the telecom bill it approved at the beginning of the month. Testifying before Senate Judiciary last week, Sensenbrenner said, "A record of considerable judicial confusion has developed in our nation's courts." Specifically, he cited a series of appellate and Supreme Court rulings. In 2000, the 7th U.S. Circuit Court of Appeals ruled in Goldwasser v. Ameritech that a group of consumers could not use antitrust law to sue Ameritech, a dominant telecom carrier, because the 1996 Telecommunications Act addresses the issues and pre-empted antitrust law. The Supreme Court in 2004 affirmed that line of thinking when it ruled against a complainant who had sued Verizon Communications (then Bell Atlantic). Curtis Trinko charged that Bell Atlantic had denied AT&T's customers non-discriminatory access to Bell Atlantic's network, in violation of both communications and antitrust law. "This is precisely the judicial analysis that Congress precluded in the 1996 act, and this holding has done violence to remedial antitrust enforcement and competitive gains in the telecommunications marketplace," Sensenbrenner told Senate Judiciary. His observations are shared by Bell competitors and a former Justice Department attorney who played a role in prosecuting the government's decades-long antitrust suit against the old AT&T. "The Trinko opinion is remarkably tendentious and unremittingly hostile to the application of the antitrust laws to regulated industries," Philip Verveer, a partner at the law firm of Willkie Farr and Gallagher, said during a House Judiciary subcommittee hearing in 2005. "The decision greatly overvalues the ability of regulatory agencies to adjudicate monopolization claims and undervalues that of antitrust prosecutors in courts."

<snip>
...

On 6/19/06, David Farber <dave@xxxxxxxxxx> wrote:


Begin forwarded message:

From: "Robert J. Berger" <rberger@xxxxxxx>
Date: June 19, 2006 5:17:38 PM EDT
To: David Farber <dave@xxxxxxxxxx>
Subject: Give Me Bandwidth . . .

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Give Me Bandwidth . . .
No one to root for in the net neutrality debate.
by Andy Kessler
06/26/2006, Volume 011, Issue 39
http://www.weeklystandard.com/Utilities/printer_preview.asp?
idArticle=12348&R=ECCBA034

FINDING IT HARD TO UNDERSTAND the "net neutrality" debate? On one side
are the hip, cool, billionaire web service companies like Google,
eBay, Yahoo, and even Microsoft. Net neutrality is their rallying cry.
Despite the fact that they are basically schlocky ad salesmen on a
grand scale, they're pushing this quaint, self-serving '60s notion
that the Internet is a town square--all for one and one for them, or
something like that. Everyone should be allowed to hang out in the
town square and use it as they please, one low price, eat all you want
at the buffet.

On the other side are the monopolist plumbers like Verizon and AT&T
and Comcast. These are the folks who laid the pipe that delivers the
Internet--the blogs and pirated movies and photos of Shiloh
Brangelina--to your house or office. They think the Internet is more
like a giant shopping mall, and they're the mall owners. You the
customer can walk around as if you were in the town square, but the
tenants (see billionaire web service companies above) are going to
have to pay for the upkeep of the premises. If they're one of the
anchor stores, they might pay a lot.

In an effort to skim their own fees off the Google crowd, lobbyists
and Congress have also taken up the fight. So far, the telcos are
winning--a bid to add net neutrality language to a telecommunications
bill was shot down 269-152 by the House on June 8--but this is one of
those bizarre issues where both sides are off their rocker.

If Congress doesn't act, does this mean Apple might pay 10 cents per
iTunes download to Bellsouth? Will Google have to pay 5 percent of ad
revenue to AT&T for speedy delivery of your search results? Will we
pay $1 per video played in your browser to Comcast? Silly, right?
Well, not so fast, and that's the problem.

Telcos and cable companies have no choice but to lobby for legislation
that bars neutrality. Because without the ability to extract money
from the webbies for the use of their not-so-fast Alexander Graham
Bell-era wires (forget that you and I already overpay for this), AT&T
or Verizon might not have any business model going forward. With no
real competition, they'd rather keep U.S.
telecommunications in the Flintstone era and overcharge for calls to
Grandma than upgrade their networks. Since 1998, telecommunications
companies have outspent computer and Internet firms on politicians
$231 million to $71 million, just to keep the status quo.

Hate to break the news, but your "fast" DSL Internet access is no
longer considered high speed. In parts of the world, cell phones are
faster. Have you wondered why Internet video doesn't fill your
computer monitor and look like a DVD, but instead is pixelated dreck
in a tiny one or two inch square? Well, Comcast is dragging its heels,
too. With better video over the Internet, who would want E!, let alone
the Style Network? Because of this Fred and Wilma thinking, the United
States is 16th in the world in broadband use (behind
Liechtenstein!) with East Timor catching up fast. The French may burn
Citroëns, but they get 10 megabits for 10 euros--50 times your "fast"
Internet access for half the price. That's just not right.

We'll never get 10 megabits to our homes, let alone the multiples of
that speed that are possible and affordable today if these telco
Goliaths keep covering up their crown jewels. As Dean Wormer might put
it: Fat, drunk (on profits), and stupid is no way to go through life,
son.

But the answer is not regulations imposing net neutrality. You can
already smell the mandates and the loopholes once Congress gets
involved. Think special, high-speed priority for campaign commercials
or educational videos about global warming. Or roadblocks--like
requiring emergency 911 service--to try to kill off free Internet
telephone services such as Skype. And who knows what else? Network
neutrality won't be the laissez-faire sandbox its supporters think,
but more like used kitty litter. We all know that regulations beget
more lobbyists. I'd rather let the market sort these things out.


<snip>

So how do we fix this? Are we stuck in telco hell? Silicon Valley can
ignite a political arms race and spend more on lobbyists, but why play
an old man's game? Instead, these webbies should get creative, change
the rules. Bam-Bam, not Barney Rubble is the future. Take the telcos
and cable companies out at the knees.

Here's an idea: Start screaming like a madman and using four letter
words--like K-E-L-O. And fancier words like "eminent domain." I know,
I know. This sounds wrong. These are privately owned wires hanging on
poles. But so what? The government-mandated owners have been
neglecting them for years--we are left with slums in need of
redevelopment. Horse-drawn trolleys ruled cities, too, but had to be
destroyed to make way for progress. How do we rip the telco's trolley
tracks out and enable something modern and real competition?

Forget the argument that telcos need to be guaranteed a return on
investment or they won't upgrade our bandwidth. No one guarantees
Intel a return before they spend billions in R&D on their next Pentium
chip to beat their competitors at AMD. No one guarantees Cisco a
return on their investment before they deploy their next router to
beat Juniper. In real, competitive markets, the market provides access
to capital.

Without even being paid by the hour, I read through the Supreme
Court's Kelo v. City of New London eminent domain rulings. Surely
there exists some clever Silicon Valley counsel to twist the wording
of the precedent. The telcos may want to treat the Internet like a
shopping mall that they own, but the premises are looking awfully
sketchy. So start with this line: "Economic underdevelopment and
stagnation are also threats to the public sufficient to make their
removal cognizable as a public purpose."

Sure, property rights are important, but that doesn't mean we can't
shake a cattle prod at our stagnant monopolists and say "update or get
out of the way." The mantra should be "megabits to phones and gigabits
to homes." We'll only get there via competition.
Regulations--even regulations that look friendly to the Googles and
Yahoos and hostile to the telcos--will just freeze us where we are
today.



<snip>



We don't even know what new things are possible. Bandwidth is like
putty in the hands of entrepreneurs--new regulations are cement. We
don't want a town square or a dilapidated mall--we want a vibrant
metropolis. Net neutrality is already the boring old status quo. But
don't give in to the cable/telco status quo either. Far better to have
competition, as long as it's real, than let Congress shape the coming
communications chaos and creativity.


------------------------------
Robert J. Berger - Internet Bandwidth Development, LLC.
Voice: 408-882-4755 eFax: +1-408-490-2868 http://www.ibd.com




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--
Sarah Lai Stirland
http://www.sarahstirland.com




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