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from: Technology Daily

AT&T-BellSouth Deal Could Affect 'Net Neutrality' Debate In Congress

By Andrew Noyes

(Tuesday, January 2) The FCC's approval of a merger between AT&T and BellSouth late last week could have implications for the so-called network neutrality debate in Congress, observers said.

Legislative attempts to codify the nondiscrimination principle fell short last year. But the forthcoming 110th Congress, which convenes Thursday, may offer a second chance.

Following months of negotiations, pressure from the two Democrats on the FCC -- Commissioners Michael Copps and Jonathan Adelstein -- and tens of thousands of citizens' letters demanding that a merger without net neutrality be blocked, AT&T agreed to "maintain a neutral network and neutral routing in its wireline broadband Internet access service."

The company pledged "not to provide or to sell to Internet content, application, or service providers... any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's wireline broadband Internet access service based on its source, ownership or destination."

For the next two years, while the newly formed conglomerate is unable to discriminate against Web companies in price or network access, the FCC must strictly enforce the net neutrality provision, declared Public Knowledge President Gigi Sohn.

In the past, AT&T has claimed that its Internet-based television service is not a cable service, and not subject to proposed legislative mandates that would apply to cable -- such as a build-out requirement, Sohn noted.

AT&T should not be allowed to make that claim and attempt to circumvent the net neutrality conditions that apply to every other aspect of its Internet offerings, Sohn contended, adding, "Congress, not an AT&T sleight-of-hand maneuver, should ultimately decide whether net neutrality should apply to cable and video services."

Columbia University law professor Tim Wu, a supporter of the pro-net neutrality group, Save the Internet, said the merger agreement "may one day be remembered as an important moment in Internet history."

Ben Scott, policy director of Free Press, which coordinates the pro-network neutrality campaign, said the deal "once and for all puts to rest the bogus argument that no one can define net neutrality...The FCC just did it, and the sky hasn't fallen."

The merger sets the bar for the entire industry, Scott said. "We are no longer having a debate about whether net neutrality should be the law of the land. We are having a debate about how and when," he declared.

The It's Our Net coalition, which is backed by Amazon.com, eBay, Google, Microsoft and Yahoo, also said it looked forward to working with the new Congress on net neutrality legislation.

But Carole Handler, vice-chairwoman of Foley & Lardner's IP Litigation Practice Group, said it is hard to predict how and whether Congress will handle the issue.

"AT&T is not the only company that is capable of creating fast lanes and slow lanes on the Internet," she said. "Their concession, which helped the FCC allow the merger, doesn't answer the entire question."

The company's "willingness to accept self-regulation to get the merger is a very, very telling admission," Handler said. If after the end of the agreed period, AT&T starts prioritizing content on its pipes, "that could get a strong reaction in Congress," she said.