Federal Communications Commission FCC 15-24
harm more than just the parties in a dispute.
500
When links are congested and capacity is not augmented,
the networks—and applications, large and small, running over the congested links into and out of those
networks—experience degraded quality of service due to reduced throughput, increased packet loss,
increased delay, and increased jitter.
501
At the end of the day, consumers bear the harm when they
experience degraded access to the applications and services of their choosing due to a dispute between a
large broadband provider and an interconnecting party.
502
Parties also assert that these disputes raise
concerns about public safety and network reliability.
503
To address these growing concerns, a number of
parties have called for extending the rules proposed in the 2014 Open Internet NPRM to Internet traffic
exchange practices.
200. The record reflects competing narratives. Some edge and transit providers assert that
large broadband Internet access service providers are creating artificial congestion by refusing to upgrade
interconnection capacity at their network entrance points for settlement-free peers or CDNs, thus forcing
edge providers and CDNs to agree to paid peering arrangements.
504
These parties suggest that paid
arrangements resulting from artificially congested interconnection ports at the broadband Internet access
service provider network edge could create the same consumer harms as paid arrangements in the last-
mile, and lead to paid prioritization, fast lanes, degradation of consumer connections, and ultimately,
stifling of innovation by edge providers.
505
Further, edge providers argue that they are covering the costs
500
Letter from Sarah J. Morris, Senior Policy Counsel, Open Technology Institute, to Marlene H. Dortch, Secretary,
FCC, GN Docket Nos. 10-127, 14-28, MB Docket No. 14-57 (filed Nov. 18, 2014), Attach. Open Technology
Institute, “Beyond Frustrated”: The Sweeping Consumer Harms As a Result of ISP Disputes, at 2 (Nov. 2014) (OTI
Consumer Harms Policy Paper).
501
Id. ; Letter from Michael J. Mooney, Senior Vice President and General Counsel, Regulatory Policy, Level 3, to
Marlene H. Dortch, Secretary, FCC, WC Docket No. 05-25, GN Docket Nos. 14-28, 09-191, at 2 (filed Nov. 19,
2014) (Level 3 Nov. 19, 2014 Ex Parte Letter) (explaining that congested interconnection points result in “dropped
packets and a degraded consumer experience”); Sandoval Ex Parte Letter, Attach. at 22-24 (reporting slow
connection speeds during the Comcast-Cogent traffic exchange dispute, and explaining that other applications that
were affected included gaming, VPN, and VoIP (including compliance with 911 standards)).
502
OTI Consumer Harms Policy Paper at 1-5.
503
See, e.g., Sandoval Ex Parte Letter, Attach. at 24 (asserting, for example, that difficulties in using interconnected
VoIP service amidst a broadband provider dispute with a server host or content provider raise grave concerns about
public safety and network reliability).
504
See, e.g., Letter from Markham C. Erickson, Counsel to Netflix, Inc. to Marlene H. Dortch, Secretary, FCC, GN
Docket No. 14-28, Attach. at 2 (filed Aug. 1, 2014) (Netflix Aug. 1, 2014 Ex Parte Letter) (asserting that “[i]n the
case of Comcast, Netflix purchased all available transit to reach Comcast’s network. Every single one of those
transit links to Comcast was congested (even though the transit providers requested extra capacity). The only other
available routes into Comcast’s network were those where Comcast required an access fee.”); Letter from Robert M.
Cooper, Counsel to Cogent, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Mar. 19, 2014)
(Cogent Mar. 19, 2014 Ex Parte Letter); Letter from Joseph C. Cavender, Level 3, to Marlene H. Dortch, Secretary,
FCC, GN Docket No. 14-28, at 1 (filed May 13, 2014) (Level 3 May 13, 2014 Ex Parte Letter) (asserting that “some
of the biggest consumer broadband ISPs have allowed the interconnections between their networks and backbone
providers like Level 3 to congest, causing packets to be dropped and harming their own users’ Internet
experiences”); Netflix Comments at 14-15. But see Letter from Kathryn A. Zachem, Senior Vice President,
Regulatory and State Legislative Affairs, Comcast, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28,
10-127, at 2 (filed Nov. 10, 2014) (Comcast Nov. 10, 2014 Ex Parte Letter) (“Certainly Netflix would not have
entered into direct agreements with Comcast, Verizon, Time Warner Cable, and AT&T unless doing so provided
economic advantages over paying middlemen to reach these same companies—and of course, these arrangements
have in turn reduced Netflix’s need for Cogent’s and other transit providers’ services, not only reducing Netflix’s
costs but freeing up transit capacity for other entities.”).
505
See Internet Association Comments at 22; COMPTEL Comments at 25; Netflix Comments at 12 (arguing that its
dispute with Comcast shows how a broadband provider “can use its terminating access monopoly to harm edge
providers, its own customers, and the virtuous circle by discriminating at interconnection and peering points”);
(continued….)