Net Neutrality and Rights of Way

I just ran across an interesting point regarding net neutrality and what it means that telcos no longer are required to abide by it:

The Bells claim privileges based on over 100 years of practice that may or may not coincide with the intent and limits of the original deals, but the resulting laws explicitly require a public purpose in exchange for the right-of-way concessions.

The obligations established on a state by state basis sometimes include build-out requirements or other compensation, but they all specify that access to state right-of-way at largely no cost or limit requires common carrier status (aka net neutrality.) The loss of common carrier status invalidates the contracts. The Bell companies have no access to state right-of-way for deployment of private, closed, non-neutral, non-common carrier network deployments.

Why Even Bells Need Net Neutrality, By Daniel Berninger, Written by Om Malik, Posted Tuesday, May 9, 2006 at 7:07 AM PT

I hadn't made the connection between net neutrality and rights of way, but clearly there is one. And that's not all!

The same article asks later:

Does anyone believe government should grant public assets to private entities for private purposes?

Why yes, there are some old men in Washington who believe that! The U.S. Supreme Court ruled last year that eminent domain could be applied for private development purposes, rather than just for the public good?

Fortunately, 34 states have passed various forms of limitations on eminent domain.

I hadn't previously made the connection between abrogation of net neutrality and eminent domain, but it seems there is one.

Is granting a very few (fewer now that AT&T is cleared to buy Bellsouth) telephone companies monopoly rights over telephone and Internet and then letting them also control physical rights of way good risk management?

-jsq

Comments

[Eilsel Yagupam]

AT&T's views on net neutrality is tied up to its long-term plans, i.e., they sincerely believe that centralized video content correlates with business opportunities in the future.

[chris witteman]

These are the same arguments that we made to the California Supreme Court in 1985 or thereabouts, in Witteman v. Jack Berry Cable TV.

Essentially, we argued that Cal Govt Code 53066, which allows cable television to use public utility easements, was unconstitutional because it worked a taking of the underlying property owner's interest - the homeowner (or his predecessor) had only granted an easement for public utility -- i.e., common carrier -- purposes, and not for any and all communication interests that may use wires. Thus, the use of those easements by non-common carrier cable (see 1984 Cable Act) was outside the scope of the easement.

We lost. A year after accepting our case for review, and after 3 members of that court were removed by an insurance company-funded initiative, the Cal Supreme Court summarily dismissed review as "improvidently granted."

The irony is that a common carrier regime was originally proposed by the Nixon administration for cable television, but never adopted. And when we talk about network neutrality that is essentially what we're talking about - a common carrier system.