Interconnection, Rate Regulation Central to Comcast, Cogent Net Neutrality Filings

The Telecommunications Law Resource Center is the most comprehensive reference and news platform for communications law, covering broadcasting, cable, broadband, telephony and wireless;...

By Lydia Beyoud

Feb. 12 — The Federal Communications Commission's inclusion of interconnection issues and interpretations thereof are at the top of several groups' concerns with the commission's forthcoming Open Internet rules, according to newly posted multiple ex parte filings.

The FCC announced Feb. 4 that for the first time the agency intended to address interconnection issues between broadband Internet providers and edge providers as part of its net neutrality rulemaking (GN Docket No. 14-28). The intent of including interconnection arrangements is to ensure that the exchange of Internet traffic is treated openly between Internet service providers and other networks and services, FCC officials said. That announcement was welcomed by some proponents of a strict Title II regulatory regime, under which ISPs would be reclassified as common carriers.

Multiple filings, however, expressed a need for the FCC to further clarify those issues ahead of the full commission's vote on Feb. 26.

The core principles of net neutrality should apply equally to interconnection arrangements as they do to practices on an ISP's own network, said Internet access and data transport company Cogent Communications Holdings Inc. in an ex parte filing.

Inclusion of interconnection practices within the scope of the Open Internet order is “vital to the preservation and perpetuation” of the net neutrality principles FCC Chairman Tom Wheeler has articulated, Cogent said.

The company called on the FCC to clarify the treatment of interconnection issues in the final Open Internet rules in order to avoid creating loopholes that ISPs could use to circumvent the principles of no blocking, no throttling and no paid prioritization.

Cogent and video streaming service Netflix Inc. have previously claimed their traffic was degraded by congestion that Comcast Corp. and Verizon Communications Inc. declined to fix. Cogent and Netflix have been pushing for reclassification of broadband ISPs as common carriers under Title II of the Communications Act of 1934 in order to stave off potential harms to their business operations.

Interconnection Disputes

Another likely point of contention in what most telecom observers—and FCC senior staff—say is an inevitable lawsuit, is the provision in the Open Internet order granting the commission authority to adjudicate interconnection disputes.

Cogent asked the FCC to require that interconnection points be maintained and operated without congestion while a dispute is being resolved. “If interconnection points are congested during an enforcement proceeding—which could be a substantial period of time—then consumers will not be able to fully utilize the service which they bought from their ISP,” Cogent said.

The FCC should also clarify that any party has standing to make a Section 208 complaint related to interconnection, in order to avoid “unnecessary disputes over standing,” which would only prolong an enforcement proceeding, it said.

‘Just and Reasonable' Standard

Cogent also asked the FCC to provide guidance on the types of costs that could pass the “just and reasonable” standard under Section 201 of the Communications Act, as they would apply to interconnection disputes.

“To the extent a network is entitled to be compensated for interconnection at all, such compensation should include only those costs that are actually and demonstrably ascribed to provisioning the interconnection, as distinct from more attenuated costs,” like systems maintenance costs, Cogent said.

The company said its request shouldn't be read as a call for rate regulation. Rather, all parties and the FCC would benefit from articulation of how the “just and reasonable standard” would operate regarding interconnection practices.

Rate Regulation

Citing concerns about rate regulation, the National Cable & Telecommunications Association would prefer the FCC eliminate any application of Section 201(b), according to its ex parte filing.

Comcast agreed with that same assertion in a separate filing.

“Section 201(b) is the primary source of authority for many of the Commission’s most sweeping and invasive regulations governing the rates for telecommunications services,” NCTA said. Allowing after-the-fact examinations of broadband rates through the FCC's established complaints process “is ‘rate regulation' in the purest sense—no less so than ex ante requirements to file tariffs or to seek Commission approval for rate changes,” NCTA said.

If the FCC does assert jurisdiction over Internet traffic exchange arrangements, “it should make clear that this jurisdiction applies to all parties to these arrangements,” including transit providers and content delivery networks, and not just retail broadband providers, Comcast said.

The FCC indicated it would draw on Section 201 as part of its authority to regulate net neutrality provisions under Title II.

Republican FCC Commissioners Ajit Pai and Michael O'Rielly, as well as other Title II opponents, have said inclusion of that section of the Communications Act would inevitably lead to rate regulations. FCC officials have disavowed those statements, explicitly stating that the Open Internet order would not lead to rate regulation.

Edge Provider Services

Free Press raised concerns over the need for the FCC to include services offered by broadband providers to edge providers under Title II, according to its ex parte filing.

Including such service as a telecommunications service in the forthcoming order could have “absurd” or undesirable policy consequences, the consumer advocacy group said.

Services offered to a “remote” edge provider, with no physical connection between a provider and a broadband carrier, aren't services offered directly to an edge provider, based on any legal precedent or definition, Free Press said. Telecom services must generally be offered directly to a recipient under Section 153(53) of the Communications Act, the filing said.

“If there is no physical connection, and thus no obvious ‘direct' relationship between the carrier and the remote edge provider, it is hard to imagine how the service can qualify as a telecom service under Section 153(53) of the Act,” Free Press said.

Including this provision leaves open the question of whether any and every website could become perceived as the “customer” of every ISP whose end-users visit that given website; ultimately, that question could lead to trouble for the FCC when the order is litigated, Free Press said.

“That bizarre and dangerous result is not necessary to establish Commission jurisdiction over interconnection practices that unreasonably discriminate against and harm end-users,” it said.

To contact the reporter on this story: Lydia Beyoud in Washington at

To contact the editor responsible for this story: Heather Rothman at

Text of Cogent's filing is at

Text of NCTA's filing is at

Text of Comcast's filing is at

Text of Free Press's filing is at