by Kevin Coates | Dec 10, 2009 | Net Neutrality
Erik Cecil’s recent post on net neutrality is generating discussion on several mailing lists. I agree with a lot of what Erik says – particularly summing up the underlying problem as “monopoly power in the loop plant”, a point which seems so obvious to my (European, antitrust-influenced) eyes, that I often stare with bemusement at some of the debates (and court judgments) in the US. But I wonder about the implied strategy of abandoning the net neutrality proposals in favour of some form of network access regulation. Calling for net neutrality to be abandoned because it does not address the most fundamental problem reminds me a little of the old joke about the tourist asking the local for directions and receiving the reply, “Well, I wouldn’t start from here.” Although the validity of the 1996 Telecom Act and its unbundling provisions has been upheld in principle, the various FCC attempts to implement unbundling in practice were struck down hard by the courts, seemingly giving little or no deference to FCC discretion. Then with the shift in approach of the FCC under the Bush Administration, came the broadband de-regulation measures of 2003-2005 where first the cable networks, then the telecoms broadband networks were moved out of the scope of Title II of the 1996 Act and into Title I, ruling out any form of mandated third party access. This was upheld in court, with a ruling that seemed to give the FCC significantly more margin for discretion in deregulating, than the FCC had been given in its earlier attempts at regulating: the most notable example, probably being the court agreeing...