When a consumer’s OTT video stream starts rebuffering, or suffers packet losses resulting in degraded quality, it’s often hard to know where to direct blame. The problem is typically caused by congestion somewhere between the content’s originating server and the consumer’s receiving device. But exactly where in the chain of transit that congestion is occurring, and more importantly who is responsible and why, can be difficult even for engineers — and virtually impossible for consumers — to ascertain.
Back when it appeared the FCC was poised to classify interconnection arrangements between last-mile ISPs and third-party transit and content providers as a new, distinct type of Title II service the question of liability for congestion in the chain of transit suddenly became urgent for those involved in wholesale traffic exchanges.
Fearing the new classification would leave them at a disadvantage in negotiating interconnection agreements with content delivery networks (CDNs) and other transit providers and worried they’d be blamed for problems occurring elsewhere in the transit chain, ISPs rushed to the FCC to insist that any new rules regarding traffic exchanges cover both parties to the exchange.
“[I]f the FCC decides to assert jurisdiction over Internet traffic exchange arrangements, it should make clear that this jurisdiction applies to all parties to these arrangements, not just retail broadband providers,” Comcast wrote in a filing on Feb. 11. “Other parties to such arrangements, including transit providers and content delivery networks (“CDNs”), are engaged in the transmission of Internet traffic and have the ability to create congestion and performance issues that could impact consumers.”
In an ex parte notice on Feb. 12, Cox Communications wrote:
[I]n the event the Commission does decide to assert jurisdiction over Internet traffic-exchange arrangements, any new rules or complaint process should apply evenhandedly to both sides of any peering or transit relationship. Subjecting only broadband Internet access providers—and not their commercial counterparties—to regulatory oversight would introduce significant competitive distortions, arbitrage opportunities, and other harms.
Indeed, for a mid-sized provider like Cox, which often exchanges traffic with far larger entities, it would be particularly unjustified to become subject to one-sided regulatory mandates. We explained that any network operator (such as a transit provider or content delivery network) that exchanges Internet traffic with ISPs must transmit information by wire or radio (thus falling within the subject matter jurisdiction of the Act); moreover, if the Commission deems the traffic-exchange functions performed by ISPs to constitute a telecommunications service under Title II, then so too (as a matter of both law and policy) must the equivalent functions performed by other network operators be subject to the same classification and regulatory treatment.
For their part, CDNs scrambled to avoid being caught up in the new regulations.
“The Order should clearly confirm that caching and related services offered by CDNs (including content providers that self-provision CDN services) are not Title II services,” Akamai wrote in a filing on Feb. 9. “CDNs store popular content on servers within ISPs’ networks at multiple points close to consumers, and use specialized mathematical algorithms to identify which servers can most efficiently respond to
consumers’ requests for content…CDNs do not themselves transport any communications; consumer requests for content, as well as the content sent back, are transmitted over the best-efforts Internet to the consumer by others. Accordingly, the CDN services are not “telecommunications” within the meaning of the Communications Act.”
As it happened, the FCC seems to have changed course at the last minute and decided not to classify interconnection as a distinct Title II service. Instead, the commission said it would review complaints about ISPs’ interconnection practices and take any necessary enforcement actions pursuant to its newly asserted Title II authority over internet access services, including a new general conduct standard prohibiting actions that harm consumers or competition.
That would appear to get CDNs off the Title II hook for now. But the skirmishing over the issue between ISPs and CDNs reflects just how fraught the question of liability for congestion in the chain of transit has become as traffic volumes, driven largely by OTT services, increase. And it’s hard to see how applying a general conduct standard instead of Title II is going to un-freight it.
Any enforcement action by the FCC resulting from an interconnection dispute will inevitably involve blame-fixing, which means the finger-pointing isn’t likely to stop.