ReadWriteEnterprise

Back in December 2006, as part of its agreement to merge with former regional Bell operating company BellSouth, AT&T made a pledge to the Federal Communications Commission. In that pledge, AT&T promised it would maintain a fair and neutral policy toward all Internet packet routing, applying no privileges based on packets' origin, content, or destination.

It's perhaps the clearest definition of net neutrality that has ever been devised. So a group of AT&T shareholders have been wondering why the company is running from it. Last month, they sought a shareholders' vote to effectively embed AT&T's 2006 net neutrality language as network policy. AT&T sought the Securities and Exchange Commission's permission to block that shareholders' proposal. Yesterday, after five Democratic senators weighed in, the SEC denied AT&T's motion, and the proposal now must go forward.

What keeps Internet service providers from being responsible for, and perhaps prosecuted for, the content trafficked over their networks is a provision of a law that Web advocates ironically opposed while it was being argued in 1998: the Digital Millennium Copyright Act. As long as ISPs do not take interest in the nature or technical breakdown of that content, then its creators and publishers can't hold them liable for intellectual property theft - this is the "safe harbor" provision.

That law isn't going away any time soon. Meanwhile, the recording and publishing industries - stymied by the ineffectiveness of prosecuting individual IP violators - know that the ISP is the one remaining place where they can attack the problem of IP theft. (Certainly they can't prosecute themselves and their own partners for ineffective security.)

It's a familiar argument in anti-merger proceedings against two prospective partners, and you've probably read it plenty of times before: With a manageable plurality of competitors in any market, it's easier for the market to settle upon competitive price points. But when you make an argument any number of ways, any number of times, at some point you're bound to say something that your opponent just may be able to poke a hole in.

That's what might have happened yesterday with the U.S. Justice Dept.'s objection to AT&T's proposed takeover of T-Mobile, filed yesterday in D.C. District Court. The DOJ team was making a point about the positive, beneficial state of affairs in the current wireless market.