2015 AALS Meeting - Personal.psu.edu

Interconnection Issues Raised in the
Network Neutrality Debate
A presentation at the
2015 Annual Meeting of
The Association of American Law Schools, Washington, D.C.
January 5, 2015
Rob Frieden, Pioneers Chair and Professor of Telecommunications and Law
Penn State University
Web site : http://www.personal.psu.edu/faculty/r/m/rmf5/
Blog site: http://telefrieden.blogspot.com/
Renewed Attention to Interconnection
and Compensation Arrangements
The Network Neutrality debate now includes questions whether and
how the FCC should evaluate the commercial reasonableness of ISP
interconnection agreements.
The potential for conflicts has increased as interconnection has
become more contentious and less cooperative.
Different stakeholders offer conflicting frames:
A maturing, commercialized Internet ecosystem with double-sided
markets necessitate unregulated flexibility to create new options for
end-to-end connectivity vs.
Retail ISPs operate as terminating monopolies have the incentive
and ability to engage in anticompetitive practices that threaten
innovation and consumer choice.
What Has Triggered Conflict?
Current conflicts result from traffic imbalances, the growing torrent of video, new
ventures concentrating primarily on downstream traffic delivery and possibly ISP
frustration with profit margins vis a vis companies making use of their conduits.
However the seeds of conflict started far earlier when senior telecom managers grew
frustrated with differences in cost recovery models between telecom and the Internet.
In 2005 then CEO of Southwestern Bell, Ed Whitacre lamented:
“Now what they would like to do is use my pipes free, but I ain't going to let them do
that because we have spent this capital and we have to have a return on it. So there's
going to have to be some mechanism for these people who use these pipes to pay for the
portion they're using. Why should they be allowed to use my pipes?
The Internet can't be free in that sense, because we and the cable companies have made
an investment and for a Google or Yahoo! or Vonage or anybody to expect to use these
pipes [for] free is nuts!” source: Businessweek, Online Extra: At SBC, It's All About "Scale and Scope“ (Nov. 6, 2005); available at:
The Whitacre-preferred mechanism: metering and charging for each leg of an end-toend routing.
Achieving End-To-End Connectivity in Telecom
Telecom interconnection and compensation arrangements achieve “seamless”
connectivity by segmenting and pricing out separate links voluntarily, or as
required by law, policy or regulation.
Source: Michael Yoka , History of Telecommunications, (n.d.) available at: http://www.mikundan.com/Portfolio/winstaru/WUContents/courses/intro/1history1.htm.
Many different options: end-on-end (A + B + C); end-to-end (A+B + B+C); local,
long distance; domestic; international; intrastate; interstate; intra-LATA; interLATA; roaming; sender pays; receiver pays, first mile, middle mile, long haul, last
mile, international accounting rates, etc.
Achieving End-To-End Connectivity
in the Internet Cloud
Seamless connectivity achieved between servers, routers and broadband subscribers
using the telecommunications transmission networks of many, often-unaffiliated
Source: George Ou, http://www.digitalsociety.org/2009/11/fcc-nprm-ban-on-paid-peering-harms-new-innovators/
Interconnection arrangements initially less calibrated and metered in light of external
subsidies, assumption of traffic parity, complexity and expense in metering.
Initially a peering vs. transit dichotomy; new options use metering and other better
calibrated usage measures.
Source: George Ou, Digital Society, http://www.digitalsociety.org/2010/12/division-of-laborbetween-broadband-and-cdn/
What Can Prior Telecom Interconnection Tell Us About
Current and Future ISP Disputes?
Digitization supports a single, common network for both voice and
data services.
Both telecom and Internet carriers willingly interconnect, without a
compulsory duty to deal.
The process works without much dispute until complaints of
arbitrage and cheating, e.g., leaky PBXs, international call reorigination, and “bandwidth hogging” by unmetered end users
and/or content providers.
Many senior managers oversee a combined telecom/ISP portfolio.
What Can Prior Telecom Interconnection Tell Us About
Current and Future ISP Disputes?
Telecom arrangements address only carriage, with limited
consideration of the content. ISP arrangements may focus on
bandwidth and bit transmission speed, but the value and
profitability of content carried are not ignored.
Telecom cost causation is easier to identify and assign even with
anomalies created by law or policy; ISPs may demand
compensation from multiple sources for a single transaction, e.g.,
retail, end user broadband subscriptions plus transit, paid peering
and surcharges from upstream ISPs and even content sources, e.g.,
Telecom interconnection rates assumed to have close linkage to
cost while ISPs negotiations factor in supply and demand elasticity.
Many Interconnection Models Work
in the Current Phase
ISPs consider price and QOS discrimination essential for generating new profit
centers; “better than best efforts” offered in lieu of a single “best efforts” model.
New alternatives to the peering/transiting dichotomy: use of Internet Exchange
Points; paid peering (Comcast-Netflix); CDN surcharges (Level 3-Comcast),
equipment co-location, e.g., Netflix Open Connect Network; “specialized
networks” and Intranets; Multiprotocol Label Switching and non-carriers like
Google securing Autonomous System identifiers.
Retail ISPs providing last mile service test pricing limits in their 2-sided market by
tiering and raising end user monthly subscriptions at the same time as they impose
surcharges on upstream ISPs, and offer paid peering options to highest volume
content providers, e.g., Netflix.
Retail subscribers become agitated when QOS suffers and they come to
understand that improvement is contingent on a surcharge payment upstream.
What does their subscription guarantee?
New Incentives Risk Network Balkanization
and Challenges to the Goal of Ubiquitous Access
Level 3-Comcast Dispute
In late 2010 Comcast imposed a traffic delivery surcharge when Level 3 became
a major CDN for Netflix in the U.S.
Level 3 characterized the surcharge as a discriminatory toll while Comcast
framed the matter as a commercial peering dispute.
Comcast is correct if one narrowly focuses on downstream traffic termination.
But more broadly the dispute raises questions about the scope of duties Comcast
owes its broadband subscribers and whether Level 3 is entitled to a good faith
effort by Comcast to abate the traffic imbalances with upstream traffic.
It also raises questions about the flow of compensation due participating carriers
downstream from sources with which retail ISPs do not directly interconnect. 10
Misconceptions (or Misrepresentations)
in the Level 3-Comcast Dispute
Retail ISPs providing the “last mile” delivery of traffic customarily do not
directly receive compensation from upstream sources of content such as
Google, Netflix, YouTube and Hulu.
The peering process traditionally involves directly interconnecting carriers.
This means (absent paid peering) Netflix has the responsibility of securing the
services of a CDN, such as Level 3, but Level 3 bears the direct interconnection
burden with retail ISPs such as Comcast.
It is untrue to assert that hyper giant sources of traffic, do not pay for delivery of
their content.
Note that Comcast successfully imposed a surcharge on its peering partner
Level-3 when Netflix traffic upset the balance of traffic flows.
Once an advocate for network neutrality, Netflix has opted for higher QOS through
a paid peering arrangement with Comcast. Netflix directly interconnects with
Comcast at many locations thereby reducing the number of networks and routers
typically used. Virtually overnight Netflix traffic congestion problems evaporated
thanks to lower latency and faster delivery speeds.
Paid peering, providing “Most Favored Nation” treatment of specific traffic streams,
has triggered a vigorous debate over what constitutes reasonable price and QOS
Netflix’s payments to Comcast are offset in part by reduced or eliminated payments
to CDNs, but the accrual of more revenues for retail ISPs raises concerns about
rising bottleneck/last mile control.
Will surcharge demands and better than best efforts become the new normal even
for venture with modest traffic volumes previously accommodated by the standard
best efforts model?
Consequences of the Netflix-Comcast Deal
Pressure to Upgrade--More better than best efforts routing options with the possible
risk that content sources with far less volumes than Netflix might face severe pressure to
migrate from standard, best efforts delivery.
Higher Broadband Profit Margins--Broadband rate increases through tiering
transmission bit rate and download allotments. Likely substantial narrowing in the gap
between wireline (200 or more Gbytes) and wireless (250 Mbytes to 10 Gbytes).
More Subscriber Options for Avoiding Download Debits--ISPs will “soften the
blow” of stingy download caps with expanded opportunities for “sponsored data” by
content and service providers who pay the retail ISP in lieu of it metering the download.
ISPs Demand More Incentives to Upgrade--ISPs will leverage network upgrades in
exchange for better interconnection terms with content providers, CDNs and upstream
More Interconnection Compensation Disputes—Lots of finger pointing when QOS
declines. Was Netflix to blame when it made the entire 2d season of House of Cards
available for “binging” or was it cheapskate CDNs, or something nefarious at the last
The FCC and other national regulatory authorities (“NRAs”) will continue to struggle to find
a lawful way to impose ground rules on ISP interconnection and compensation arrangements.
NRAs will try to rely on commercial negotiations, but also may impose good faith,
transparency, truth in billing and reporting requirements, especially for better than best
efforts, specialized arrangements. NRAs may use a complaint resolution process to address
ISPs appear to have solidified their control over the Internet ecosystem, despite the
conventional wisdom that content rules. When content demand triggers congestion, the
content provider and its subscribers end up paying more.
ISPs will frame content prioritization as a necessary to manage a scarce resource, while
opponents will accuse ISPs of creating scarcity and rationing a resource that previously
managed to deliver content without surcharge or congestion.
Increasing advocacy for reclassification of Internet access as a public utility, common carrier
service. However, in the U.S. common carriers can engage in “reasonable” discrimination.
ISPs probably can offer paid traffic prioritization, provided it’s available to all “similarly
situated” carriers and content providers.