Interconnection Remains in Play in Net Neutrality Debate

Those on either side of the issue say they don’t know after meeting with agency officials where the agency may be headed. But it appears to be “on the radar,” said Robert Beury, vice president of Cogent Communications. “They were asking questions about it so they must be thinking about it,” he said. Coming down to the final weeks before Wheeler has to circulate an order before the February meeting, advocates on both sides are pressing their case to General Counsel Jonathan Sallet, according to ex parte filings.

NCTA officials, including CEO Michael Powell, told Sallet and Wheeler’s senior counselor, Philip Verveer, Monday the agency hasn’t sufficiently raised the issue and can't legally impose Title II regulations on interconnections in the proceeding, the group's ex parte said. Representatives of Comptel, Cogent and Level 3 met Jan. 9 with Sallet and Associate General Counsel Stephanie Weiner, according to another filing, to press for rules that cover not only ISP actions in the last mile to consumers, but also the point where traffic is handed off to the provider by a backbone provider.

Citing commission staff familiar with the record, an agency spokesman said Thursday that interconnection was discussed at the staff-led roundtables. The record also includes comments from many parties on the subject from both sides of the debate, including AT&T, Comptel, Level 3, Netflix and Verizon, the spokesman said.

NCTA officials said dealing with interconnection in the net neutrality order would be a shift for the agency, according to its filing. The 2010 Open Internet Order said its rules weren't intended “‘to affect existing arrangements for network interconnection,’” NCTA officials said. Wheeler last March said “peering is not a net neutrality issue,” and said if traffic-exchange agreements were to be addressed, it should be in a separate proceeding (see 1404020028), NCTA said.

But the commission won't have fully dealt with net neutrality concerns if it doesn't deal with interconnection, said Angie Kronenberg, Comptel general counsel, in an interview. She participated in the Jan. 9 meeting. “If you don’t address it, it will be a big opportunity for the large [Internet service providers] to thwart Open Internet rules,” she said. “What good are rules saying you can’t block or throttle traffic at the last mile if you can do it at the interconnection point?” The agency is “being careful to avoid doing anything more than is needed” given the Internet has thrived, Beury told us.

NCTA argued that the Administrative Procedure Act bars the commission from regulating whole Internet traffic exchanges under Title II as part of the upcoming order. The NPRM the commission issued in May, “does not provide notice of any proposal to adopt any new Internet traffic-exchange regulations pursuant to Title II,” NCTA said, according to the ex parte filing. “Rather, the portions of the NPRM seeking comment on the application of Title II are focused on the potential reclassification of retail broadband Internet access service as a telecommunications service. Nowhere did the Commission remotely indicate that it was considering classifying the distinct wholesale Internet traffic-exchange services that ISPs provide to other network owners as Title II telecommunications services,” the filing said.

The NPRM said the 2010 rules didn't pertain to interconnection agreements and tentatively concluded the agency should maintain that approach. It did seek comment “on whether we should change our conclusion," but it sought comment on “how can we ensure that a broadband provider would not be able to evade our open Internet rules by engaging in traffic exchange practices that would be outside the scope of the rules as proposed?" Though saying interconnection is separate from net neutrality in March, Wheeler in June ordered the agency to collect information on the interconnection agreements. “Consumers need to understand what is occurring when the Internet service they've paid for does not adequately deliver the content they desire,” Wheeler said then (see 1406160033). NCTA argued in a footnote in the ex parte filing that the agency can’t use the results of the study to enact rules, because the information collected is confidential, “depriving the Commission of any public record that could be invoked in support of new rules.”

Regulations aren’t needed anyway, NCTA officials said, because of a “remarkably competitive transit exchange marketplace,” including content delivery networks.” Imposing regulation could cause harms, including undermining incentives for edge providers and CDNs to help ensure efficient traffic management, increasing costs to consumers and disrupting long-term contractual relationships and business models, NCTA said. NCTA at the meeting also reiterated its opposition to a Title II approach and called for forbearing from all rules, particularly Section 202 (see 1501150017).

Kronenberg and Beury disputed that the agency can't legally deal with interconnections, saying much has been entered in the proceeding’s record on the issue. “We’re on the record. Netflix is on the record. Level 3 is on the record. There’s an extensive record,” Beury said.

Cogent, Comptel and Level 3 told commission officials there’s “ample evidence already in the record that some broadband Internet access service providers already have used their terminating access monopoly to demand tolls at the point of interconnection, simply to allow content that their end users requested to be delivered at the speeds for which the end users have paid,” in their filing. ISPs “have allowed their ports with Level 3, Cogent, and others to congest, and refused to augment capacity until those providers pay,” the filing said.