The US government's landmark open internet policy is about to face its first real-world test—and now federal regulators must confront tough questions about streaming video for consumers.
A San Diego-based company that livestreams sunny Southern California views has filed a complaint with the Federal Communications Commission alleging that Time Warner Cable is violating the agency's newly adopted net neutrality rules.
Commercial Network Services wants Time Warner Cable to carry its San Diego harbor webcam for free, under a process known as "settlement-free peering." The broadband giant's refusal to do so constitutes a violation of the FCC's "no paid prioritization" and "no throttling" rules, according to CNS.
"TWC is acting as gatekeeper and degrading our ability to exercise free expression," CNS CEO Barry Bahrami wrote in the complaint. "TWC's management policy is restricting the open exchange of internet traffic."
Time Warner Cable insists that the new rules do not require it to carry CNS webcam traffic for free, and says that it is confident that the FCC will "reject any complaint that is premised on the notion that every edge provider around the globe is entitled to enter into a settlement-free peering arrangement."
The CNS complaint, which was first reported by The Washington Post, is the first major grievance filed with the FCC since the agency's new rules went into effect earlier this month. The complaint poses a particularly thorny challenge for the FCC because it concerns "interconnection," the behind-the-scenes process by which broadband companies and bandwidth providers exchange data to ensure the reliable flow of internet traffic.
The new FCC rules are primarily designed to regulate the "last mile" connection from giant ISPs like Comcast into the customer's home—not the business relationships that broadband companies strike to facilitate smooth internet access for consumers.
Traditionally, interconnection hasn't been controversial. In the past, telecom giants reached straightforward arrangements in which bandwidth providers agreed to exchange roughly equal traffic at no cost. But the rise of bandwidth-intensive services like Netflix has created an imbalance that has led big broadband companies like Comcast and Verizon to demand compensation from content companies.
Over the last year, Netflix has struck deals with many of the major US broadband providers to ensure that its streaming videos reach customers without a hitch. These are the fees that CNS hopes to avoid.
Bahrami says that he's not complaining on financial grounds. "This is not about money," Bahrami told Motherboard in a phone interview from his home in San Diego. "It's about the principle of the open internet."
In his complaint, Bahrami wrote that Time Warner Cable's behavior degrades "consumer quality of service by unnecessarily increasing latency and virtually eliminating the possibility that they will be able to enjoy the broadband quality access to the internet that they are paying for unless the edge provider has agreed to a 'commercial transit arrangement' and paid TWC its ransom."
"This is not a valid complaint, and there is no way the FCC is going to side with them"
CNS appears to face long odds because the FCC's new policy "does not apply the open internet rules to interconnection," according to Dan Rayburn, a telecom analyst at Frost & Sullivan and one of the 14 founding board members of the Streaming Video Alliance, which includes some of the nation's largest streaming video companies.
"This is not a valid complaint, and there is no way the FCC is going to side with them," Rayburn said. "The rules say you can't block or throttle, but there's no rule that says Time Warner Cable has to give CNS settlement-free peering. I don't see how the FCC could possibly say there's a violation here."
In its order, the FCC says that while it will "consider claims involving interconnection," its current posture is "to watch, learn, and act as required, but not intervene now, especially not with prescriptive rules."
The FCC's decision not to apply the open internet rules to interconnection—but rather to reserve the right to police possible abuses on a case-by-case basis—underscores how ambiguity in the new policy has created uncertainty for big broadband companies as well as smaller "edge providers" like CNS.
A FCC spokesperson declined to comment on the CNS complaint.
Harold Feld, senior vice president at DC-based digital rights group Public Knowledge, is skeptical. "After a brief scan of the complaint, I can't say that I see this as a net neutrality violation," Feld said. "Net neutrality is not about free peering for everyone."
Matt Wood, policy director at DC-based public interest group Free Press, says that despite the fact that interconnection is not explicitly covered by the main rules in the FCC's new policy, the agency still has the authority to act in this case.
"Interconnection issues are not under the bright line rules, but the FCC expressly reserved jurisdiction to consider the facts and determine whether practices are unreasonable," Wood said. "It depends on whether the ISP is charging for legitimate costs or—as cable and phone companies have done on several occasions—if the ISP is just charging the site an unjustified access toll to reach its broadband customers."
In a statement to Motherboard, Time Warner Cable said that its interconnection practices are "not only 'just and reasonable' as required by the FCC, but consistent with the practices of all major ISPs and well-established industry standards."
Correction: A previous version of this post misidentified Dan Rayburn's affiliation. He is one of the 14 founding board members of the Streaming Video Alliance, not the founding member of the Streaming Video Alliance.