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Last Friday morning I was part of a panel on Network Neutrality at the annual NATOA conference. NATOA is the "National Association of Telecommunications Operators and Administrators." Its members are mostly municipal employees who operate their town government's telephone systems, Internet systems and information systems.

My fellow panelists were Josh Silver, co-founder of Free Press, and Matt Wenger, President of The Americas for Packetfront. The panel was ably moderated by Ken Fellman, Mayor of Arvada, Colorado and long-time telecom activist.

Originally, Ray Gifford, former President of the Progress and Freedom Foundation, was to join us, but he had to cancel due to a client emergency to attend to. Another unfortunate last minute cancellation, John Kneuer, Assistant Secretary of Commerce and party to an energetic exchange at SuperNova that Doc, David W and I instigated [the Register story, my transcript, the video].

This left me and Josh without strong anti-Neuts to spar with, but Josh brought a picture of Ray Gifford to talk to, and I took on Kneuer's junk economics and junk history anyhow.

I was the first speaker. Here's what I prepared for Opening Remarks:

I'm delighted that the NATOA Board has taken a strong position for Network Neutrality [.pdf], which it correctly defines as, "non-discriminatory access by all users to all forms of communications services." And I'm gratified that the Board advocates a law to, "prevent communications providers from discriminating or prioritizing the transmissions of any communications services or products based on the content or source of such services and products."

(But if this becomes law, it could significantly weaken Matt Wenger's company, PacketFront. [Packetfront provides deep packet inspection technology as part of its product line. -- David I] So listen carefully when Matt says he favors open networks.)

The NATOA Board made this statement because open access is under attack. A wave of junk economics is sweeping over the United States. Its proponents believe that the marketplace will supplant the rule of law, morality, and concern for our fellow human beings. We've known this is false for about 800 years.

800 years ago a body of law emerged to prevent the abuses of an unregulated marketplace. This law was called The Doctrine of Public Callings. It was the fore-runner of Common Carriage. Under it, shipping networks and trades enabled by them, were **open**!

This openness meant that operators of facilities and trades had a duty to offer competent services to all comers at fair prices, and a duty not to withhold or degrade those services without reasonable cause.

Proponants of junk economics, like Assistant Commerce Secretary John Kneuer, who can't be here today, behave as if corporations exist as profit harvesting machines with no public duty.

Kneuer claims that Network Neutrality is New Law. But that's junk history.

Network Neutrality is Old Law -- 800 years old. But Network Neutrality has suffered three big attacks in recent years, and now it needs to be restored.

The first attack was the FCC Triennial Order of 2003, which removed a telephone company's duty to share its access lines if the access network had fiber-optics in it. The second attack was the Supreme Court's Brand X decision in 2005, which lightened the public duty of Cable-based Internet providers. The third attack was the FCC's DSL order, which came within weeks of the Brand X decision, which lightened the public duties of DSL providers. As a result, today discrimination is legal -- and that's New Law, Bad Law, and it must be overturned.

The 1996 Telecom Act envisioned that competition would supplant regulation. It had some strong pro-competitive provisions, but the Baby Bells and Big Cable mounted a systematic campaign to nullify every pro-competitive provision in The Act, from the Long Distance Entry checklist to TELRIC and Line Sharing. Unfortunately, they won.

Assistant Secretary Kneuer has said that the collapse of competition is the result of the Free Market at Work. This is false. There never was a Free Market. The pre-1996 telephone monopolies had Soviet-style hierarchical structures, ten-year plans, and lock-step thinking that would make a turning tanker look agile. They used their monopoly market-power momentum to Lobby, Legislate and Litigate the 1996 Act into meaningless mush. Now, after a brief moment we nostalgicly call "the Internet bubble" we're back to giant Soviet-style companies in a monolithic marketplace, undisciplined by meaningful competition **or** regulation, that have completely forgotten the Universal Service ethic of the Bell System and have lost any sense of mission, national pride or public duty.

As a result, the United States has a weak Internet with broadband penetration somewhere between 16th and 25th in the world, down from #1 in the late 1990s.

Now we're just beginning to see these unregulated, undisciplined, uncompetitive monoliths abandon all public duty. They decide which organizations can and can't put messages on their networks. They arbitrarily block access to competing services. They reserve the right to terminate service if they decide -- in their sole discretion -- that our use of their facilities "is objectionable for any reason, . . .", or if it, "damages their reputation," or even if we post "off topic messages" to newsgroups. They've announced plans to police the Internet for copyright materials, and they will decide -- in their sole discretion -- what to do about them. They've announced plans to create fast-lane services for Web sites they decide -- in their sole discretion -- that they like, and regular Internet service for the rest of us.

Our use of the Internet should be at **our** discretion, not **theirs**. The NATOA board correctly advocates restoring the law against such behavior.

But Caution! Telephone companies have a long history of manipulating the law for their purposes. My friend Bruce Kushnick wrote a book called The_200_Billion_Dollar_Broadband_Scandal where he documents how telcos have gotten tax breaks and rate relief in return for promises of improved services that they don't keep. For example, they got at least $11B for promising that every customer in New Jersey would have 45 MBit symmetrical service by now. Today **no** household in New Jersey has 45 MBit service, but they kept the money.

Other scandals are brewing -- for example, AT&T promised [.pdf] to offer DSL for $10 a month in its agreement to acquire Bell South, but you can't find their $10 DSL offer anywhere. Are they going to recind the AT&T-BellSouth merger as a result?

Finally, I remind you that the Bells systematically gutted each pro-competitive position even though the 1996 Act established that competition was the Law of the Land.

So I'm not optimistic that a law that simply mandates Net Neutrality will survive the depredations of the monoliths to actually BRING us Network Neutrality. I think we'll need to restore their sense of public duty too, and I'm not quite sure how to do that.

Technorati Tags: AT&T, BellSouth, BruceKushnick, Bushco, DavidWeinberger, DocSearls, NetworkNeutrality, NTIA