The first net neutrality complaint is officially in.
Commercial Network Services (CNS), a web and application hosting company based in San Diego, has filed a complaint with the Federal Communications Commission (FCC) against Time Warner Cable Inc. (NYSE: TWC) for violating the new US net neutrality rules. According to the filing, TWC has refused to provide free peering access to CNS at three public peering exchanges. As a result, CNS says its traffic is being delivered over slower, more congested routes, which means its customers are suffering degraded application performance.
CNS argues that TWC is effectively throttling Internet service and offering prioritized access only to those network operators willing to pay for it. However, both the "no throttling" and "no paid prioritization" requirements in the recently enacted Open Internet rules refer to last-mile Internet connections, not to network exchange points. The FCC has said it will examine interconnection disputes, but it has not yet decided what should and should not be allowed in interconnection agreements.
Specifically, FCC Chairman Tom Wheeler said in February that the agency will "create a construct on which to build a record" of behavior on peering agreements, and that it will then analyze that record to determine whether there is a need for government intervention. (See FCC Vote Shows Net Neutrality Strains.)
While the CNS complaint does not realistically address outright violations of the Open Internet Order, it is an interesting test case of the FCC's new authority to review peering disputes. CNS has made clear that it hasn't asked Time Warner Cable for transit service, which would involve using a connection with TWC to access other networks also linked to the broadband provider at other exchange points. (CNS would presumably be willing to pay for transit.) Instead, CNS says it only wants direct access to TWC customers who pay the company directly for Internet service. (See also Interconnect Deals Bear Net Neutrality's Stamp.)
Time Warner Cable has already told numerous media outlets it expects the FCC to reject the CNS complaint as being outside the scope of the Open Internet rules. The National Cable & Telecommunications Association (NCTA) also released the following statement:
"This wholly predictable complaint confirms the harms created when the government intervenes in healthy markets and encourages disgruntled businesses to seek regulatory rents. We encourage the FCC to quickly reject this overt attempt to invite government rate regulation of a market that is robust, competitive and has flourished for decades without government interference."
— Mari Silbey, Senior Editor, Cable/Video, Light Reading