Growing Expectation of Interconnection to Be in Net Neutrality Order

Comptel, which has been pushing for interconnection to be included, suggested specific language on the issue for the order, in a letter to the commission Wednesday. Robert Beury, vice president of Cogent Communications, which also backs interconnection rules, supported the suggested rule, in an email to us Thursday. NCTA and representatives from cable companies including Comcast and Time Warner Cable expressed concern in a Jan. 16 meeting with commission officials about being subject to more disclosure rules in the pending order than what was in the 2010 net neutrality order, an ex parte filing said. NCTA also said “it would be irrational” for the commission in the pending order to “impose obligations” on ISPs about the performance of edge providers’ services and applications.

With the highest profile aspect of the debate, reclassification, having been settled with Wheeler suggesting that he’ll propose a Title II approach (see 1501070054), the focus on the specifics illustrates how the debate is getting to the nitty-gritty. “We are getting into the actual drafting of the rules and the industry seems to have realized that there is now going to be a rule in February as well as a classification decision and they need to actually pay attention to that,” said Public Knowledge Senior Vice President Harold Feld, of NCTA concerns about additional transparency rules. It's an issue he said has gotten little attention over the past several months.

As NCTA noted in a separate ex parte filing last week, Wheeler said in March that “peering is not a net neutrality issue,” and that if traffic-exchange agreements were to be addressed, it should be in a separate proceeding (see 1404020028). The cable association declined comment. Since then there have been some high-profile interconnection disputes, one opponent of interconnection rules said in speculating about reason behind the shift. In addition, several advocates, like Comptel and Cogent, also have been pushing for the agency to deal with interconnection (see 1501150054), saying the agency wouldn’t be dealing with concerns about an open Internet without it.

ISPs “have the ability to impose access tolls not only on their last-mile network but also at the point of interconnection between their last-mile network and other networks,” Comptel wrote. “Yet, no matter where these providers sets up their tollbooths, they are acting on the same harmful incentives and the harm to the Open Internet is the same.” Comptel acknowledged broadband providers don't believe the 2010 rules dealt with interconnection, but only regulated the last mile. It urged the commission to adopt rules similar to the 2010 no blocking and no unreasonable discrimination rules. Beury called Comptel’s suggested language “a simple rule that addresses a specific problem without constraining the Internet with unnecessary regulation.” The advocate for a broadband provider said if rules on interconnection agreements are included, “someone over there will need to explain how this is not regulating rates on the Internet."

NCTA said “Comptel’s assertion that the 2010 order intended to ban paid peering arrangements ignores language where the FCC said exactly the opposite -- that its no blocking rule would not affect paid peering arrangements. Indeed, interconnection issues have always been understood to be distinct from net neutrality,“ in a statement emailed to us.

Cable representatives in the Jan. 16 meeting told FCC Chief Technology Officer Scott Jordan, Deputy Wireline Bureau Chief Matthew DelNero, Deputy Consumer and Governmental Affairs Bureau Chief Mark Stone and other commission attorneys there are challenges to developing accurate and reliable information on the performance of interconnection links between networks. There's “no basis” for imposing mandatory disclosure obligations on ISPs without a “parallel obligation” on the “other side of the arrangement,” they said. A requirement for either party to report congestion would be “exceedingly difficult,” the cable representatives said, because congestion can develop overnight.

The filing said that at the meeting were NCTA’s Steve Morris, associate general counsel, and Jim Partridge, vice president-industry and technical analysis; Comcast’s Mary McManus, senior director-FCC and regulatory policy; TWC’s Terri Natoli, corporate vice president-regulatory affairs and government relations, and Jason Weil, principal engineer-standards and policy; Cox Enterprises’ Jennifer Prime, regulatory affairs director; Charter Communications’ Alex Hoehn-Saric, senior vice president-government affairs; and Cablevision’s Emmett O’Keefe, vice president-federal affairs.

“This is a pretty standard industry response to disclosure requirements,” Feld said. "Either it's too hard to do it right or doing it simply wouldn't tell the full story. Industry is rather fussy, like Goldilocks looking for porridge, but never finding one that's just right.” Free Press Policy Director Matt Wood also likened the cable arguments to the fairy tale, asking, “can anyone take NCTA seriously when it simultaneously opposes transparency requirements because they may be too hard and also because they may be too simple? Cable can pretend all it wants that voluntary disclosure is the porridge that's just right; but we all know how well cable customer service goes when these guys are left to their own devices. They aren't the least popular companies in America for nothing.”