AT&T: 'Google is violating the Net Neutrality tenets we spend millions to make sure don't become law.'

AT&T sent a letter late last week to the Federal Communications Commission calling out Google Voice, the free adjunct Voice Over IP service being tested by Google, for blocking calls to certain high cost telephone numbers.  Robert W. Quinn, Jr., Senior Vice President of AT&T’s Federal Regulatory office complained that AT&T has been forced to complete those calls while Google Voice does not, suggesting that might be the equivalent of a Net Neutrality violation, if not an outright violation of call completion requirements established by the Commission.

These days, almost anything can be defined as a Net Neutrality violation.  If I was a vegetarian and I blocked meat products from my home, I’d probably get a letter from AT&T’s counsel too.

At issue here is the exploitation of a loophole that was established by telecom regulators to provide extra financial support to rural community telephone companies.  When a person places a long distance call, part of the charge is paid to the company that connects the call from the long distance network to the recipient’s telephone line.  The fees long distance companies pay vary depending on the size of the community and the length of the call.  Small rural areas enjoy a higher call completion fee than urban areas do.

Some enterprising individuals discovered the fees being paid to rural phone companies were higher than the actual costs to provide the service.  Traditionally, that extra money was used by rural phone companies, often independent or customer-owned cooperatives, to keep their service costs down and to maintain their equipment.  Long distance carriers didn’t care because the number of calls to these rural communities was comparatively small.

But what would happen if a company set up a telephone number to receive lots of calls that would otherwise never be made to such rural communities?  The result could be a financial windfall.  That possibility persuaded a few rural phone companies to let third parties offer international calling, conference calling and adult phone chat services for no charge beyond whatever the customer has to pay to make the long distance call.  In return, the phone company kicks back a significant portion of the extra income they earn from “call completion fees” to the service providers.

AT&T, among others, got wind of this arrangement and flipped out, complaining they were paying an ever increasing bill from rural phone companies hosting these services.  Anyone with an unlimited long distance plan could call these numbers for free and stay connected for hours at a time.

Unsurprisingly, AT&T blocked calls to these services for a period in 2007, refused to pay for some prior charges, and sued several phone companies.

AT&T/Cingular spokesperson Mark Siegel told Ars that the reason the company has decided to start blocking these services is because high volumes of calls to similar services are costly, and the cost of those calls aren’t passed on to the customer. “We have to pay terminating access for every minute the person is on the line,” Siegel explained. “Typically these companies run them through local exchange companies that charge high access rates, so we end up paying high access charges.”

The FCC intervened and said phone companies cannot arbitrarily block customer access to phone numbers, and the blocks were removed.  Today, the free international long distance calling services are basically gone, but free conference calling lines and adult sex chat services remain, and Google Voice has now discovered the perils of connecting calls, for free, to these services.  So now they have blocked access as well.  Google Voice beta testers report calling blocked numbers results in perpetual busy signals.

AT&T pounced in a letter to the FCC:

Numerous press reports indicate that Google is systematically blocking telephone calls from consumers that use Google Voice to call telephone numbers in certain rural communities.  By blocking these calls, Google is able to reduce its access expenses. Other providers, including those with which Google Voice competes, are banned from call blocking because in June 2007, the Wireline Competition Bureau emphatically declared that all carriers are prohibited from pursuing “self help actions such as call blocking.” The Bureau expressed concern that call blocking “may degrade the reliability of the nation’s telecommunications network.” Google Voice thus has claimed for itself a significant advantage over providers offering competing services.

But even if Google Voice is instead an “Internet application,” Google would still be subject to the Commission’s Internet Policy Statement, whose fourth principle states that “consumers are entitled to competition among network providers, application and service providers, and content providers.” This fourth principle cannot fairly be read to embrace competition in which one provider unilaterally appropriates to itself regulatory advantages over its competitors. By openly flaunting the call blocking prohibition that applies to its competitors, Google is acting in a manner inconsistent with the fourth principle.

Ironically, Google is also flouting the so-called “fifth principle of non-discrimination” for which Google has so fervently advocated (Net Neutrality). According to Google, non-discrimination ensures that a provider “cannot block fair access” to another provider. But that is exactly what Google is doing when it blocks calls that Google Voice customers make to telephone numbers associated with certain local exchange carriers. The Financial Times aptly recognized this fundamental flaw in Google’s position: “network neutrality is similar to common carriage because it enforces non-discrimination . . . Google is arguing for others to be bound by network neutrality and, on the other hand arguing against itself being bound by common carriage,” which leaves Google with an “intellectual contradiction” in its argument.

Richard Whitt, Washington Telecom and Media Counsel for Google, fired back a response on the Google Policy Blog countering AT&T’s arguments:

Google Voice’s goal is to provide consumers with free or low-cost access to as many advanced communications features as possible. In order to do this, Google Voice does restrict certain outbound calls from our Web platform to these high-priced destinations. But despite AT&T’s efforts to blur the distinctions between Google Voice and traditional phone service, there are many significant differences:

• Unlike traditional carriers, Google Voice is a free, Web-based software application, and so not subject to common carrier laws.
  
• Google Voice is not intended to be a replacement for traditional phone service — in fact, you need an existing land or wireless line in order to use it. Importantly, users are still able to make outbound calls on any other phone device.
• Google Voice is currently invitation-only, serving a limited number of users.

AT&T is trying to make this about Google’s support for an open Internet, but the comparison just doesn’t fly. The FCC’s open Internet principles apply only to the behavior of broadband carriers — not the creators of Web-based software applications. Even though the FCC does not have jurisdiction over how software applications function, AT&T apparently wants to use the regulatory process to undermine Web-based competition and innovation.

The HissyFit is on, and it’s almost entirely beside the point.  Once again, Net Neutrality is being used as a convenient flogging tool, this time by a company that spends millions to oppose it, yet sanctimoniously demands others should comply with its founding principles.  While the systematic blocking of telephone numbers may echo the kinds of concerns Net Neutrality protection is designed to address, it’s not as on point as AT&T would have you believe.

Google Voice isn’t even close to being a replacement for telephone service.  It’s not even openly available to the public.  AT&T would have had a stronger argument complaining about MagicJack, the dongle that lets you make unlimited long distance calls for $20 a year.  They go beyond just blocking some of the conference calling services — they actually redirect calls to a recording encouraging customers to instead use one of their own partners instead.

Dan Borislow, inventor of MagicJack says “it is not illegal for us to block calls to [conference calling numbers.]  We have invited other conference calling companies to interconnect to us for free, so we can complete our customers’ calls to them.”

Google’s public policy response isn’t as satisfying as it could have been either, and uses some weak arguments in rebuttal.  Much more important and on point is finding a way to address call completion fee loopholes through a change in telecommunications policy.  The telecommunications landscape has fundamentally changed in ways that existing rules could not have anticipated.  Addressing that issue would provide immediate relief to both AT&T and Google Voice without dragging consumer interests into a telecom policy cat fight.

Unfortunately, that’s a point far too fine for many media types, bloggers, and the sock puppets to understand (or desire to), and the campaign of Waving Shiny Keys of Distraction will carry on, and may have been AT&T’s intention in making such an argument in the first place.

Now that FCC Chairman Julius Genachowski has put the issue of Net Neutrality on the front burner, the often-ludicrous reasons some people give to oppose Net Neutrality are coming out all over the place.  When you find one that is particularly preposterous, use the Contact Us link at the top of the screen and drop us a summary and a link.  We’ll be calling out the silliest and debunking those that might sound good on the surface but have a soft, squishy, logic-free center.

To get us started, this letter to the editor turned up last week in The Seattle Times:

The recent Seattle Times editorial on net neutrality seemed logical on the surface [“Protecting net neutrality,” Opinion, Sept. 22], but in reality was a Robin Hood-style regulation.

Let me pose a question: What would The Times’ opinion be if the Federal Communications Commission mandated The Times’ facilities were open to anyone who wants to use it as they wished?

I suspect the company would probably make an argument that it made the huge capital investment, and therefore should have control over who can or cannot use it.

So explain, what is the fundamental difference between the management of this capital asset and that of a company such as Comcast or any other Internet provider?

I suspect nothing other than another example of government intervention into a business and technology they do not understand. The Times should be thankful they are not focused on the newspaper industry.

I’ve long accused the Federal Communications Commission of being out of touch and not understanding (‘broadband over power lines’ advocacy being a particularly stupid idea on their part), but rest assured, they are well acquainted with the arguments the broadband industry makes to preserve its position.  Providers spend tens of millions of dollars to hire lobbyists to advocate just that.

To use Robin Hood as an analogy puts us squarely in OppositeLand, where ‘up is down’ and ‘right is left.’  Robin Hood was a story about robbing from the rich to give to the poor.  This writer seems to think the “poor” are Comcast and AT&T, and the individual customers most at risk from Net Neutrality abuse are somehow the “rich.”

Perhaps it would have been more apt to suggest the Seattle Times would be guilty of Net Neutrality abuse if it openly refused to print ‘letters to the editor’ or interview people for stories who did not have a home delivery subscription to the newspaper.

A newspaper, of course, is not the equivalent of the global Internet.  It’s just one of countless content creators that use the Internet to make their content more accessible to an online audience, one that might choose to read what they publish.  That’s an important distinction, because Net Neutrality does not interfere with content creators and tell them what they can and cannot say.  It helps protect their independence.  The Seattle Times can print whatever they see fit, and you and I make the individual decision to read or not read what they publish.

More importantly, and why the writer’s analogy misses the mark:  If you or I don’t like The Times and think we can do a better job, we can start our own website and publish our own content.  We don’t need the imprimatur of establishment media to make our own content available to the masses.  Individual readers will judge the quality and value of our content individually, and determine its importance and relevance accordingly.  So you or I don’t need to demand The Seattle Times open up their presses to our content — we can simply publish our own content independently, enjoying the exact same global reach, and have the potential to be just as successful as they are.

But let’s get back to the writer’s premise and adjust it slightly.  The Times pays a web hosting company to make their articles available online.  They have a business relationship with that hosting company, which uses part of that hosting fee to pay for their own pipeline to the Internet.

Meanwhile, you and I pay a monthly fee for an Internet Service Provider (ISP).  We pay them every month to provide unencumbered connectivity to the Internet, which happens to include the website for The Seattle Times.

One day, our ISP mails a letter to The Times and tells them that unless they pay to become a “preferred content partner,” they can no longer guarantee that the newspaper’s web pages will always reach you and I on a timely basis.  In effect, our ISP now wants to be paid twice — once by us to access the Internet, and once by the newspaper for “assurances” their content will reach us at broadband speeds.

The Times doesn’t have a business relationship with our ISP, but you and I do — specifically to provide the connectivity they suggest may soon no longer be guaranteed to those who “use their pipes for free.”

Now the problem becomes clearer to understand.  Even more concerning is that some of these ISPs own and manage news content sites.  Will they charge themselves the same price they ask from others?

Net Neutrality in its entirety protects content producers, like this website, from having its reach impacted.  Remember, one of the biggest strengths of the Internet is that anyone, anywhere, can reach this website or The Seattle Times on equal terms just by typing in the address.  No Internet user or content producer should have to face a blockade from providers that don’t like the message, had their content moved to the “slow lane” for not paying an unprecedented fee, or had their website overshadowed because a competitor leveraged favorable treatment from their “preferred content partner” status.

The advancement of Net Neutrality by the Federal Communications Commission was the topic of this week’s Mixed Media, a feature from WXXI-AM, a public radio station in Rochester, New York.  Scott Fybush, who has been known to drop by Stop the Cap! from time to time, talked with WXXI’s Rachel Ward about Net Neutrality and the Stop the Cap! movement, and why Rochester is such an activist community when it comes to preserving reasonable and fair pricing for Internet access.

A Federal Communications Commissioner comes out strong for net neutrality. WXXI’s Rachel Ward and media and technology reporter Scott Fybush have more. (5 minutes)
You must remain on this page to hear the clip, or you can download the clip and listen later.

If you have any interest in radio or television, Scott’s Northeast Radio Watch is a must-read every week. WXXI’s Mixed Media does a good job of explaining technology stories and their impact on us in a way everyone can understand.

Sen. Kay Bailey Hutchison (R-Texas)

Senator Kay Bailey Hutchison (R-Texas), who often adopts anti-consumer positions on telecommunications policy, has written a so-called “killer amendment” that would prohibit the Federal Communications Commission from enforcing proposed Net Neutrality rules.

Her amendment, informally proposed Monday as part of a House Interior Appropriations spending measure (H.R. 2996) states:

Purpose: To prohibit the FCC from expending any funds in fiscal year 2010 to implement any Internet neutrality or network management principles, or to promulgate any rules relating to such principles.

Hutchison’s amendment has several Republican co-sponsors: John Ensign (R-Nevada), Sam Brownback (R-Kansas), David Vitter (R-Louisiana), Jim DeMint (R-South Carolina),  and John Thune, (R-South Dakota).

Hutchison released a statement explaining the amendment: “I am deeply concerned by the direction the FCC appears to be heading. We must tread lightly when it comes to new regulations. The case has simply not been made for what amounts to a significant regulatory intervention into a vibrant marketplace. These new regulatory mandates and restrictions could stifle investment incentives.”

Ensign said Net Neutrality would punish a telecommunications industry at a time when it’s managing through an economic downturn.

“Any industry that is able to thrive should be allowed to do so without meddlesome government interference that could stifle innovation,” he said.

Brownback also has a history opposing the consumer interests of his constituents.  Back in May, he penned a letter to a Stop the Cap! reader in Kansas openly favoring Internet Overcharging schemes.

Public interest groups are calling on the public to express their displeasure with the Republican senators for their opposition to Net Neutrality.

One possible explanation for the sudden, strong interest by Hutchison and other Republicans to oppose Net Neutrality can be found in their respective bank accounts.  Hutchison accepted $67,300 in campaign contributions just from AT&T, her ninth largest contributor.

Combined, AT&T donated more than $400,000 among the six Republicans opposing Net Neutrality, and one of those senators, John Thune, used to work for a DC lobbying firm that was hired by Comcast.

The details were compiled by Sam Gustin, a reporter for DailyFinance:

Over the course of his career, Sen. Sam Brownback, a Kansas Republican, has received $220,914 from “telephone utilities,” including some $83,130 from AT&T, his second-largest donor, in the form of employee and lobbyist donations to his campaign and political-action committees. Sprint Nextel has given Brownback $35,550 over the course of his career.

Two of the co-sponsors of the bill, Sen. David Vitter of Lousiana and Sen. John Ensign of Nevada, who have both seen their reputations tarnished after sex scandals, have been on the receiving end of AT&T’s largesse. AT&T and predecessor BellSouth have donated $82,050 to Vitter’s campaigns and political-action committees. And over the last four years, AT&T has donated some $61,250 to Ensign’s campaign and political-action committees. Verizon-related entities donated $46,600 to Ensign during that period.

During that time, AT&T has donated $63,750 to the campaign and political-action committees of Sen. Jim DeMint, the South Carolina Republican. AT&T is DeMint’s second-largest donor.

Sen. John Thune, the South Dakota Republican, has not received significant donations from the telecom industry since his 2006 defeat of Sen. Tom Daschle, then Senate majority leader Tom Daschle. But from 2003 to 2005, Thune served as a senior policy adviser to the D.C. lobbying firm of Arent, Fox, when its client Comcast, the largest cable company in the U.S., paid some $40,000 in fees.

[Update: Yesterday evening, Washington Post reporter Cecilia Kang reported that the Republicans were, at least for now, backing off on pushing for their amendment:

“While we are still generally opposed to net neutrality regulations, we have decided to hold off on the amendment because [FCC Chairman Julius Genachowski] approached us and we are beginning a dialogue,” said a staff member on the committee.

Hill watchers said the amendment itself represented standard operating procedure when attempting to block regulatory agency policy decisions, but characterized the Hutchison amendment’s chances of passage as remote.  Hutchison and the Republicans are in the minority in the Senate.]

Professor Geist

The Canadian Radio-television Telecommunications Commission, the Canadian equivalent of the Federal Communications Commission in Washington, may be forced to consider American broadband policy before defining Net Neutrality and its role in Canadian broadband, according to an article published today in The Globe & Mail.

[FCC Chairman Julius Genachowski’s] proposal – to codify and enforce some general principles of “Net neutrality” – comes as the Canadian Radio-television and Telecommunications Commission is expected to release its own position this fall, after public consultations this summer that prompted feedback from tens of thousands of Canadians.

“The kinds of principles that the FCC is now looking to put into rules are precisely what the CRTC heard from many groups this past summer,” said Michael Geist, a University of Ottawa professor who holds the Canada Research Chair in Internet and E-commerce Law. “The kinds of concerns that Canadians have been expressing have clearly been taken to heart by the FCC.”

Many Canadian citizens have been unhappy with the CRTC after a summer of hearings and policy decisions which have almost universally-favored Canadian broadband providers’ positions.  The CRTC seemed skeptical during hearings over the urgency to enforce Net Neutrality protections and stop provider’s throttling of peer to peer networks.  But consumers were even more upset when the Commission agreed with Bell, Canada’s largest phone company and wholesale broadband provider, and allowed the company to impose “usage based billing (UBB)” (Internet Overcharging) on wholesale buyers — primarily independent Internet Service Providers.  Canadian customers attempting to avoid usage caps and consumption billing relied on more generous policies from independent providers, policies likely to be revoked with the imposition of UBB, potentially making flat rate broadband service in Canada largely extinct.

In general terms, Net neutrality refers to the concept that access to all legal content on the Internet should be equal. The concept often comes up in relation to the practice of “bandwidth throttling,” where ISPs limit the transfer speed of certain kinds of data – such as the transfer of large movie files between users – but not other kinds.

Many large Canadian ISPs have argued that network management doesn’t affect Net neutrality, and taking away an ISP’s ability to manage its network results in worse service for a large number of customers.

Currently, there is no uniform practice among large ISPs in Canada when it comes to network management. Some firms throttle bandwidth during certain times of the day, whereas other limit bandwidth all the time, or not at all. A CRTC ruling this fall could go a long way toward implementing a uniform code for all ISPs.

“In light of what we’ve seen today, [the CRTC ruling] will be particularly telling because the benchmark now isn’t just what the CRTC heard during this hearing, the benchmark now is our neighbours to the south,” Prof. Geist said. “The CRTC will in many ways be measured up against what the FCC is doing in the U.S.”

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