more on Alfred Kahn on network neutrality and the Madison River "precedent"

[David Farber <dave () farber net>]

Begin forwarded message:

From: Rob Frieden <rmf5 () psu edu>
Date: November 1, 2006 10:48:20 AM EST
To: dave () farber net
Cc: ip () v2 listbox com
Subject: Alfred Kahn on network neutrality and the Madison River  
"precedent"

Hello All:

	I do have one qualification to Professor Kahn's essay. I am not  
confident that the FCC's action on Madison River proves that it can  
and will respond to unlawful price and quality of service  
discrimination. Operating as a telecommunications carrier and  
nominally still subject to Communications Act of 1934 Title II common  
carrier regulations, Madison River bears interconnection  
responsibilities not borne by Internet Service Providers.  ISPs  
qualify for the largely unregulated information service provider  
classification.  Absent Title II regulation the FCC only has a broad  
public interest mandate under Title I. While the FCC has stretched  
the scope of Title I to include wiretapping and E-911 access, I am  
not at all convinced the FCC could force an ISP, as opposed to a  
telephone or cable television company, to remove "obvious violations  
of antitrust principles."

	I have available a draft unsponsored article in which I acknowledge  
the FCC's swift intervention in Madison River.  See http:// 
papers.ssrn.com/sol3/papers.cfm?abstract_id=893649
However, I note that the Commission might not be so proactive if the  
terminating carrier qualified for ISP, information service provider  
status, a category now applicable to cable modem and Digital  
Subscriber Line service providers such as cable television and  
telephone companies.  If AT&T refuses to adopt network neutrality  
principles on a voluntary basis--as part of its BellSouth merger  
conditions--I am not confident that the FCC could impose them if  
AT&T, operating as an ISP, refused to carry terminating VoIP traffic  
over its long haul or last mile (DSL) network.

        Regards,

        Rob Frieden
Pioneers Chair and Professor of Telecommunications
Penn State University
102 Carnegie Building, University Park, PA  16802
office: (814) 863-7996; fax (814) 863-8161
home: (814) 867-2545
Web page:       http://www.personal.psu.edu/faculty/r/m/rmf5/
Faculty profile: http://www.psu.edu/dept/comm/faculty/frieden.html
SSRN Papers Site: <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm? 
per_id=102928>http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm? 
per_id=102928


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