enemies of net neutrality

[Dave Farber <dave () farber net>]

Begin forwarded message:

> From: Erik Cecil <erik.cecil () gmail com>
> Date: November 27, 2009 5:22:22 PM EST
> To: dave () farber net
> Cc: dsearls <dsearls () cyber law harvard edu>, Bob Frankston <Bob19-0501 () bobf frankston com 
> >, Chris Savage <ChrisSavage () dwt com>, Paul Budde  
> <Paul () budde com au>, Gordon Cook <cook () cookreport com>, Dewayne  
> Hendricks <dewayne () warpspeed com>, Sara Wedeman <sara () behavioraleconomics net 
> >
> Subject: Re: [IP] enemies of net neutrality

> Prof. Dave, if this makes it any easier for you, I've put my  
> response up on my blog:
> http://www.erikcecil.com/2009/11/silicon-valley-attacks-prof-farber-on.html
>
> Meanwhile, my prayers are with you and your wife for her speedy  
> recovery.
>
> Kindest regards,
>
> Erik
>
>
> On Fri, Nov 27, 2009 at 1:51 PM, Erik Cecil <erik.cecil () gmail com>  
> wrote:
> Prof. Dave,
>
> I think what really matters is why one is an enemy of Net  
> Neutrality.  Like you, I do not support it at all.  My reasons are  
> primarily legal and practical guided by a decade and a half of  
> representing competitive carriers of all stripes as well as some of  
> nation's largest networks and Internet backbones.  My views,  
> however, are entirely my own; they have nothing to do with the views  
> of any of my existing or former clients, but arise from having deal  
> with these issues before the FCC, every single state public utility  
> commission in hundreds of days of hearings and in multiple federal  
> district and federal appellate courts nationwide.
>
> In a nutshell, Net Neutrality is a top down, disjointed, and legally  
> unsustainable solution to a deep problem in U.S. regulation:  
> monopoly power in the loop plant.  AT&T & Verizon combined are more  
> than twice as large as the rest of the market combined.  The only  
> other companies with remotely near their market capitalization are  
> Google and Apple.  In other words, the real battle is loop versus  
> eyeballs, but there is very little actual competition in any of  
> these areas.
>
> What's insidious about Net Neutrality is not that it aims to open up  
> loop plant, but rather that it is so incapable of doing so.  To  
> really understand this in depth, I'd have to take you through the  
> network configurations, money flows, and the legal theories that got  
> us here.  In a sentence, however, the secret is as follows: you  
> cannot create sustainable rights of common carriage from the legal  
> cloth of the ESP exemption, which is an exception to common  
> carriage.  The FCC has been playing every side of this issue for  
> about a decade now.  They are running out of room, legally speaking.
>
> This legal confusion is further evidenced by the abundance of  
> debate, anger, and utter confusion over Net Neutrality.  The problem  
> is that Net Neutrality is something different to everyone.  The  
> reason, as alluded to above, has to do with the way the law has been  
> written and used to this point in time.  Engineers, like many who  
> have erupted into flame-throwing debate on NANOG and in other  
> places, are mostly getting it wrong because they are having trouble  
> distinguishing between the facts of Net Neutrality - protocols,  
> transmission, edge application versus loop technology verus type of  
> network with which either of those find themselves interconnected -  
> with the law of common carriage, of what's left of the ESP  
> exemption, and the shreds of Computer 1-3, mostly which are gone.   
> Juxtaposed against this fog of technology and technology law is the  
> fact of monopoly verticalization across all technology markets.   
> This is also why Tim O'Reilly is only partially correct when he sees  
> the Internet at war with itself.
>
> What all of these individuals are witnessing is the final breakdown  
> of the rule and order of law, which law was written for a copper and  
> analog world.  That law - the Communications Act of 1934 - has been  
> expertly gamed for years by the incumbents.  They continue to game  
> it with virtuosity, including doing the one thing they do best -  
> wailing and knashing of their teeth as they are thrown right into  
> the briar patch of complex, contradictory, but always regressive and  
> protective regulation which has been their greatest shield against  
> what is and should be the irrelevance of the business models they  
> tell the regulators the rest of us must fund - their ancient  
> copper / analog world.
>
> What they accomplished, however, is the mother of all bait and  
> switch games.  They successfully deregulated the most lucrative  
> parts of their businesses on the retail side, maintained subsidy  
> streams on the wholesale / interconnection side by continuing to  
> require any competing network to subsidize their "voice" services in  
> the name of "low rates" and "state jurisdiction" while they deployed  
> competitive IP networks right over the very facilities their IP- 
> based competitors were (and are) subsidizing.
>
> Net Neutrality doesn't work because it leaves that system in place.   
> It provides no truely legally enforcable rights of interconnection,  
> zero actual rights of common carriage (which by definition are Title  
> II rights; all of Net Neutrality is in no-man's land of Title I),  
> and all of which is about to explode before the DC Circuit or some  
> other federal circuit court (where the judges, unlike the FCC in  
> most cases, reads the statute; see, e..g. http://is.gd/4Hqe6).  This  
> will not last long & the ending will not be pretty.
>
> Accordingly, it is a complete waste of time to hurl epithets.   
> Silicon Valley / nethead space, in particular, is woefully under- 
> informed and out of their depth in the Net Neutrality debate because  
> they mostly don't know a thing about telecommunications or  
> telecommunications regulation, which is the kevlar tail wagging the  
> entire Internet right now.  Time they took a deep breath, stepped  
> way back and asked some questions that have something more do to  
> with the next 30 years rather than the next quarter or next  
> iteration of content or social marketing platform.  How these issues  
> are framed right now will determine whether, when, how, and how much  
> we & our children pay for whatever it is that evolves from the  
> Internet.
>
> Keep the faith and keep questioning.
>
> Yours truly,
>
> Erik J. Cecil, Esq.
> http://www.linkedin.com/in/erikcecil
>
>
>
>
> On Wed, Nov 25, 2009 at 12:52 PM, David Farber <dave () farber net>  
> wrote:
>
>
> I am ranked up there with John McCain and AT&T!
> http://www.voip-news.com/feature/15-Greatest-Enemies-Net-Neutrality-102709/
>
> I only wish people would actually read what I have written.
>
> Dave
>
>
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