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more on Alfred Kahn on network neutrality and the Madison River "precedent"
From: David Farber <dave () farber net>
Date: Wed, 1 Nov 2006 12:16:53 -0500



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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