Net Neutrality: Has Time Warner Created a ‘De Facto Fast Lane’?

The first FCC complaint against an ISP exposes a potential grey area in the new Net Neutrality regulations.

Net Neutrality has been a source of lengthy litigation, mostly between the Federal Communications Commission (FCC) and Internet Service Providers (ISPs). This conflict came to a head when Verizon won a court case, forcing the FCC to reconsider its regulations. When the FCC announced its new regulations, they were challenged before they officially became law. Now we’re seeing a new kind of challenge, against an ISP for not adhering to the FCC guidelines.

According to the Washington Post, the complaint from Commercial Network Services, a webcam streaming service, alleged that Time Warner Cable was throttling traffic by not agreeing to a ‘settlement-free’ peering deal that would allow the traffic to flow smoothly.

The informal complaint reads:

By requiring any payment to peer at a common public internet exchange (a management policy), TWC is violating the No Paid Prioritization rule thru the creation of a paid fast lane to BIAS subscribers on their network by way of the peering policy.

The complaint also alleges that consumers will be unable to use the full capability of their internet subscription — a de facto fast lane — unless, “The edge-provider has agreed to a ‘commercial transit agreement’ and paid TWC its ransom.”

On the surface it seems pretty clear that Time Warner is at fault. However, this case may still occur in a gray area. Washington Post technology writer Brian Fung says peering and back end services like the one in question may not be covered by the Net Neutrality regulations:

[T]he FCC’s rules only cover the so-called ‘last mile’ between a consumer’s device and his Internet provider […] So the FCC could find that, in fact, TWC hasn’t broken any rules after all.

The fact that this case has been filed as an informal complaint to the FCC probably means CNS is most likely testing the scope of the regulations, rather than asking the FCC enforce them. Now that Net Neutrality is the law of the land, the challenges and exploratory requests are likely to stream in until there is established precedent.