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So how do we interpret the chicanery and double dealing of the last few days? Scott McCollough is a savvy Texas attorney, who has been a friend for nearly a decade and who has crossed swords with Whittacres empire for many years. Scott makes the point that the public interest groups that endorsed the settlement were privy to ATT’s offer in advance and, being too trusting of ATT, got snookered.

Cook’s Edge: I myself called the key Washington representative of one of these groups yesterday morning after i saw Dave Burstein’s critique of the “deal” to ask how he could have allowed himself to be led down the primrose path. He disagreed saying that his (our?) side had won true net neutrality adding that the agreement was not a surprise and had been thoroughly vetted by his organization during the preceding several days. Well now he sees what you get when you trust either Kevin Martin or Ed Whitacre. Let’s hope Both MoveOn and Free Press (organizations which i like, respect and support) have the courage to admit that they were taken.

Here is what Scott wrote on my Symposium mail list this afternoon:

Scott: There have been complaints about those who have criticized the compromise and approval. I am one of those.

If anyone has the notion that I am demonizing any supporter of what most call Net Neutrality who also bought in to what Copps and Adelstein extracted (or not), let me take a moment to disabuse.

First, I do not believe, and have not implied, that Copps or Adelstein, or the folks at Public Knowledge, the Consumer Federation of America and Google — all of whom apparently were participants in the final round of negotiations — are evil in any way. I truly do think they had good intentions. They were just naïve and made a political, tactical and technical error. It happens to the best of us.

They apparently thought they could get some nice sounding promises they could use as a starting point for the next round. I suspect they also calculated that IF AT&T were bound to something meaningful, then AT&T would have the incentive to assist sticking the burden on the rest of the facility providers.

The problem is that they really did not sufficiently consider AT&T’s duplicity. Maybe they (like I did not once but twice when AT&T agreed to something and then breached and regulators refused to enforce the deal) actually thought AT&T would honor the commitment. Maybe they did not think AT&T would stoop so low as to pretend to deal with one bunch while simultaneously working Martin and Tate to promptly scuttle. Now, perhaps, they know who they are dealing with.

Second, I must protest (mildly, but next time it won’t be so mild) one thing about how this went down. I’m used to groups like Public Knowledge and CFA engaging in secret negotiations, paternalistically signing on behalf of those they purport to represent, then acting bewildered and hurt when their “constituents” protest. But there were others involved in the last rounds who are members of other groups and the participants of those groups had no idea this was going down. I won’t name names here, but I represent and work with some of those folks kept in the dark. Had I known about this you can be certain the issues we raised yesterday (the loophole and AT&T’s duplicity) would have been pointed out, and - hopefully - dealt with. I say this not really to chastise those who were at the table but to observe that since we weren’t invited and did not give you a proxy we cannot be bound to the deal you cut and we have every right to point out the defects in it.

I will reiterate my hope that those who got took this time around will remember next time around. While others may disagree I don’t think there is a slice of salami here. We are going backwards since some have now agreed in principle that the rules are different based on the medium used in the last (or 1st) mile, or on the name we apply to the “service.” Worse, the medium (and “service”) that can discriminate is the one that will increasingly be used and the nondiscrimination principle will apply only to the declining portion what is “wireline”. (Did you guys realize they can’t really undertake the deep packet inspection necessary to Whitacre tier on their “wireline” service?) IOW, you just gave them license to discriminate where it is most important they not discriminate and where they can actually discriminate. And you want to build on that in the next session of Congress?

Let us hope that Copps and Adelstein angrily unconcur, the deal unravels and we are back to stalemate. Let us hope that AT&T’s double dealing is publicized. That we can use.

Cook’s Edge: I asked Scott how this un-concurrence might happen?

Scott: FCC orders are not effective until the written order is released. While the written order can on occasion relate back to the date it was announced (as Core learned not too long ago) that is only so if the written order is consistent with what was announced.

Copps and Adelstein did not join in the analysis of the draft order. They merely concurred in the result, contingent on the new conditions. The announcement mentions the conditions and says they are “enforceable”, so they can unconcur since M/T now clearly intend to not enforce. They can do this until the day the written order is released. If they fail to unconcur, then the order becomes final and M/T can later refused to enforce.

Cook’s Edge: Great. Now how about the leadership of Free Press and MoveOn admitting that things turned out differently than they believed and going on the offensive to get their followers to lean on Copps and Adelstein to unconcur!? How quickly could they publish the written order? Bush gave them Tuesday off. Might they publish then anyway or are there more mechanics behind the scene that mean it will take longer?

Scott: I won’t speak to Free Press and MoveOn.org. They likely have egg on face and would need to take a while to strategize removal of same.

As to date of written order? Usually it takes anywhere from 1 week to 1 month to issue. But there have been exceptions either way. This is not a pro forma deal. The Commissioners quite often scrutinize the order again to make sure last minute wheeling/dealing is in fact correctly stated. Like here.

Fred Goldstein: Notable case being the Triennial Review Order. “Adopted” February, 2003. Text released in August. A LOT of wheeling and dealing went on.

Also notable in that escapade was Martin’s role. Martin was the SOLE Commissioner who wanted to get rid of DSL line sharing, a vital element in retail DSL competition. Copps and Adelstein wanted to save UNE Platform. So Copps & Adelstein made a deal with Martin, voting to kill line sharing if Martin would vote to save UNE-P. That became the final Order. BUT there was an appeal, and while IIRC the Remand did not absolutely require UNE-P to be killed, Martin did the deed with the enthusiasm of a Shiite hangman. And kept line sharing dead too. Copps & Addelstein were played for fools.

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