ISPs do throttle traffic -- and the FCC can't stop it

Fast lanes exist, neutrality doesn't, and this is all perfectly legal under the FCC's new rules

Gregory Bodnar

Lots of attention was paid this week to a study showing that major ISPs are throttling traffic. At first glance, it seems a clear test case for the FCC's Net neutrality rules, which prohibit blocking, throttling, or creating special "fast lanes" for content. The problem is, this is not the throttling you're looking for, Obi-Wan.

The new rules went into effect a fortnight ago, and aside from scattered accounts of consumers who wrangled price breaks from their cable companies after filing complaints with the FCC about unfair billing practices, and news that Sprint stopped slowing traffic for customers who use a lot of data, very little has changed for Internet users -- or is likely to anytime soon.

Perhaps that frustration explains The Guardian's eagerness to jump on a story, rehashed by others, about a "new" study from Battle for the Net purporting to expose ISPs in the act of deliberately throttling Internet traffic. Except the data isn't new; it was first released by M-Labs in October 2014 and updated in April.

And the "throttling" described is not banned by FCC rules. What M-Labs' measurements demonstrate is the difference in interconnection performance between IP networks and CDNs (Content Delivery Networks) and ISPs in various U.S. cities. For example, in Atlanta, Comcast had median download speeds from GTT of 21.4Mbps during peak hours, while AT&T provided median download speeds of only 0.2Mbps.

Caught in a nefarious act, you might say? Far from it. AT&T makes no bones about it: When a network sends more than twice the traffic it receives, it is required to pay AT&T an interconnection fee, and the company won't upgrade capacity to a CDN with heavy traffic until it is paid. After all, the FCC doesn't require ISPs to upgrade their infrastructures to handle larger volumes of traffic (even though AT&T customers might believe that their hefty monthly tithes entitle them to a network capable of handling the traffic they request).

Apparently GTT's check is lost in the mail, hence the dismal connection to AT&T's network.

This may sound like Internet traffic being held for ransom, but it's all perfectly legal and has been standard operating procedure for 20 years. CDNs and peering connections came about as a means to deliver content faster and more efficiently to Internet users. By making arrangements to put servers inside an ISP network and set up direct connections to ISPs, large content providers were able to facilitate the delivery of their traffic to users.

Today it's estimated that half of all Internet traffic comes from just 30 providers, including Google, Facebook, and Netflix. And more and more of these large content providers have set up their own CDNs, rather than use a company like Akamai, and signed agreements with multiple ISPs for their CDN connections. Companies like Google, Facebook, and Netflix -- and consumers -- have benefited from these kinds of Internet fast lanes for years.

Of course, as TechDirt says, "When Google and Netflix improve their networks, the benefit goes to everyone. When Comcast sets up tollbooths, the only thing that goes to everyone is increased costs.... Every Internet site has to pay once for bandwidth and then a second time to ‘get access' to end users."

Net neutrality advocates argue that ISPs are holding traffic for ransom, but unfortunately, ISPs are seemingly within their rights to do so when it involves a CDN or peering arrangement. Fast lanes into ISP networks are a fact of life; it's fast lanes within the "last-mile" Internet connecting ISPs and their customers that are now illegal.

The FCC chose to focus on the last-mile Internet, leaving interconnection agreements with ISPs mostly untouched -- although the rules do, for the first time, give the FCC the authority to police disputes about congestion and examine complaints about unfair interconnection pricing on a case-by-case basis.

Consumers, of course, are caught in the middle when interconnection disputes arise -- as they did last year with Netflix. ISPs claim (bandwidth) poverty and argue that large content providers should pay up to add additional network resources. CDNs counter that they already paying for Internet access and for the servers and infrastructure needed to facilitate delivery of their content -- content that users want so much they are willing to pay cable companies through the nose to gain access to it -- so ISPs should be footing the bill for upgrading their own networks.

Frustrating for Internet users? Certainly. But while many agree that ISPs are too big, too powerful, and abuse their monopoly by "throttling" interconnections from CDNs that refuse to pay up, the situation is not likely to change any time soon.

As streaming media expert Dan Rayburn commented on his blog, 

 As consumers, we pay ISPs to get a certain level of connection to the Internet, via the last mile the ISPs operate. We do not pay for any kind of "guarantee" to be able to reach a certain website or video service, with a certain level of quality. I get that many consumers think that is what they are paying for, but it isn't.

Suck on them apples.

Still, there is a glimmer of hope that with FCC oversight, ISPs will be more reasonable. Cogent and Level 3, which have long railed against telecoms' shakedowns, threatened to file complaints with the FCC, alleging that ISPs' demands for payments to upgrade interconnection points far exceeded reasonable costs and demonstrated an abuse of market power. Both recently signed new interconnection deals with AT&T, Comcast, and Verizon.

The real problem remains: Consumers have little choice in Internet providers. "In a more competitive market, I suspect the consumer experience would count much more to a provider than the proportionately tiny amount of investment required to manage Internet traffic. When providers shift their priorities towards customers, these kinds of disputes will become extremely rare," commented Stop the Cap! 

Meanwhile, in a world where local ISP monopolies may legally opt to "throttle" interconnections, Simon & Garfunkel's advice to "slow down, you're movin' too fast" leaves few Internet users feelin' groovy.

Copyright © 2015 IDG Communications, Inc.