December 14, 2017

FCC Takes Another Swing at Net Neutrality While Netflix Agrees To Pay for Faster Streaming

FCC logoIn the wake of a January court ruling that struck down the Federal Communication Commission’s (FCC) standards for ensuring that Internet traffic is delivered without bias—a standard industry watchers refer to as ‘net neutrality’—the agency has issued a new proposal outlining a set of rules that would ensure Internet users have equal access to the full content of the Internet. Some experts, though, don’t think these new rules will be any more enforceable than those overturned earlier this year.

FCC Chair Tom Wheeler outlined his proposal for a new set of rules in a statement on February 19. While the newly-minted FCC proposal makes some technical changes to the law, the heart of the agency’s definition of an Open Internet remains largely the same, working to ensure that no providers are blocked or discriminated against, and that Internet Service Providers (ISPs) are transparent in telling consumers how they allocate bandwidth on their networks.

“Preserving the Internet as an open platform for innovation and expression while providing certainty and predictability in the marketplace is an important responsibility of this agency,” Wheeler said in the statement, adding that “innovators cannot be judged on their own merits if they are unfairly prevented from harnessing the full power of the Internet.”

Wheeler also noted that the FCC would not challenge the ruling handed down last month from the D.C. Circuit Court of Appeals. That ruling allowed the FCC to continue enforcing transparency in ISP practices and working to ensure broadband access under Section 706 of the Telecommunication Act of 1996. The FCC’s new plan is to make rules similar to those that were recently struck down, but this time under the authority of Section 706. “In light of the Court’s finding that the Commission has authority to issue new rules under Section 706 and the ongoing availability of Title II, the Commission will not initiate any further judicial action in connection with the Verizon decision,” Wheeler’s statement read. The current statement is merely a proposal, with a more formal set of rules expected sometime in late spring.

Just how much success the FCC will have enforcing these new rules under section 706, though, remains to be seen. According to the American Library Association (ALA), there’s a lot riding on Wheeler and his commissioners ensuring that ISPs can’t discriminate between kinds of traffic. We’re really pleased to see that Chairman Wheeler and the FCC are moving forward and revisiting these rules, and we certainly hope they’re successful this time,” said Lynne Bradley, Director of the Office of Government Relations at ALA. “This is a go-to-the-mat issue. The American public can’t afford for them not to get this right.”

While the FCC works to prepare a new set of rules for ISPs, a deal between Netflix and Comcast announced this month could mark a hit to the principle of net neutrality. That deal will see Netflix pay an undisclosed sum to guarantee direct access to Comcast’s network, with the aim of speeding up delivery from Netflix servers to viewers, ensuring that they can watch House of Cards, for example, without annoying buffering issues. By paying for direct access to Comcast’s network, Netflix has a straighter line to home computers, bypassing Cogent Communications, a Tier 1 ISP that distributes content from Netflix and other companies. Cogent CEO Dave Schaeffer this week told the tech news website Ars Technica that Comcast has continued to pressure Cogent for similar payments, despite their new deal with Netflix. While the Netflix and Comcast arrangement is not the first deal of its kind, it is the most highly publicized, and draws attention to the fact that all Internet traffic is not created equal, with companies already making deals to enhance how quickly their content gets to users.

It’s what the Electronic Frontier Foundation (EFF) calls a peering agreement, bringing a content provider and an ISP closer together. The trouble, said EFF spokesperson April Glaser, is that we don’t know how these agreements come together or what they entail. “We think that’s a problem,” Glaser told Library Journal. “A good Internet infrastructure should include transparency.” If the decisions over how to grow Internet infrastructure and who foots the bill for that growth remain opaque, said Glaser, it gives ISPs undue leverage in determining the shape that infrastructure takes—especially as those companies stand to get larger.

With Comcast currently attempting a merger with one of the other big three home broadband providers, Time Warner Cable, that practice could become a well-established precedent in the industry. The Senate Judiciary Committee has scheduled a hearing on the deal for March 26, and Chair Patrick Leahy (D-VT) has stated that issues of open Internet access will be addressed at that time. “The merger of Comcast and Time Warner Cable touches on important policy questions about how Americans access these valuable services,” Leahy said in a statement. “It also presents a critical moment to discuss net neutrality principles that have allowed the Internet to remain an open marketplace for ideas.”

Ian Chant About Ian Chant

Ian Chant is a former editor at LJ and a freelance journalist whose work has appeared in Scientific American and Popular Mechanics and on NPR.



  1. Netflix should never have made that deal with Comcast. That in of itself WILL be the ultimate demise of net neutrality.

    • That’s the same exact thought that went through my head when I heard the news.

    • a lot of deals like that have been done before between google and yahoo and ISPs just the media did not take notice of it until now

  2. Interesting thought – Netflix uses at a minimum 35% of the entire Internet bandwidth daily with night usage approaching 50% of all the domestic Internet bandwidth capacity. Explain how fair that is to all the other websites vying for consumer access to the available capacities? Let us not even go to the question of who paid and pays for all that Internet networking capability. Somehow – Net Neutrality has to consider the brute user in light of everyone else building websites .

    • Corey Hines says:

      Sam Spade, Netflix isn’t using that bandwidth, their customers are. Those customers are largely Comcast’s customers as well and are paying for the bandwidth. They also pay for access to the internet, the whole internet. We used to have AOL and Compuserve, then we got the internet. Now we are going back to a model like AOL and Compuserve. Those services wereawful compared to the internet and will be worse the second time around. The people paying for the network capacity and equipment are the Comcast/Netflix customers. Whether or not the direct peeringrelationship is good or bad and for whom, try not to forget that the very customers of both companies are paying for the network, the serviceand the bandwidth.

    • gsuburban says:

      It’s not Netflix doing anything, its the ISP customer using 35% of the entire bandwidth. It’s no different than people suddenly clicking away on line and creating a sudden surge of FedEx trucks to drive to a certain locale. If the streets don’t support all of the added FedEx traffic, who’s fault is that, FedEx?

      What Comcast and Verizon are wanting is for FedEx to pay a fee to upgrade the roads. Problem is, in the Netflix case, both of the “last mile” ISP providers are for the most part, fiber optic networks. So, any that knows fiber, they know fiber is unlimited and there isn’t really any bottle neck but the upper managers who read reports are looking at the amount of data going to the customer and not much of it coming from the customer. due to this, the greed in management says, “That not how we do things, it’s lopsided so who’s the source of all this data”?

      Well, in my example, it’s FedEx. but FedEx isn’t really the source, the source is the customer who hired FedEx meaning the Netflix customer. This example simply shows you that the ISP, Comcast and Verizon, do not want to provide what they promised their customer in order to make arguments that FedEx is going across their roads too much and too often. There’s no rule or agreement that anyone business such as FedEx or UPS etc can or cannot use the roads. They are there, they are free to use and so forth. It’s been this was since the early 1990’s with no complaints. What has changed is a manipulation which stems from Greed.

      I vote no internet police be allowed or else.

  3. NobodyHome says:

    Looks like Google might just make the entire argument moot as they keep advancing Google Fibre.

  4. The story here is not quite correct. This is not really a net neutrality issue. As I understand it, in the past, Netflix, like almost all other media companies, relied on third party content delivery networks (CDNs) to transport their streams (the technical term is “transit”) from their servers to ISPs such as Comcast, Verizon, Time Warner, etc. Because the ISPs already had agreements with these CDNs, whereby the CDNs actually have servers within the ISPs’ own network, there were very few bandwidth problems involved with streams reaching the ISPs. More recently, Netflix has begun building their own CDN so they can control transit from their servers to the ISPs. The problem at the moment is that this process is as yet incomplete and they haven’t been able to negotiate placing their own server endpoints within the ISPs’ network. On the face, it sounds like something the ISPs would want to allow, but from a pure business point of view, it has to be negotiated and takes time. A key article to read is Dan Rayburn’s analysis, “Inside The Netflix/Comcast Deal and What The Media Is Getting Very Wrong” from February 23.

    Here I quote: “Commercial interconnect relationships, also referred to as paid peering agreements, have been around since the Internet started, and it’s how the Internet works. Commercial interconnect deals have NOTHING TO DO WITH NET NEUTRALITY. Implying otherwise shows a complete lack of regard in understanding how traffic is and has been exchanged across networks for the past twenty years. The media as a whole should stop trying to insinuate or imply that everything that happens between two networks comes down to Net Neutrality. It doesn’t.”

  5. To be clear, what WOULD be a net neutrality issue is this:assuming Comcast had good caches of Netflix content already within their network (i.e., has been received from Netflix via whatever CDN) and then saw fit to throttle delivery of that content to their users, THAT would be a net neutrality issue. Simply negotiating a new interconnect agreement with a content provider is not; that’s business as usual.

  6. Net neutrality is an issue that needs to be fought for, and the first step is to keep up with the issue as much as possible. If anyone needs a refresher on the basic issues, here’s a great short mockumentary: