Content Delivery Networks Complicate Debate Over Net Neutrality

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The net neutrality debate is often framed as a fight by everyday citizens to prevent telecoms like AT&T Inc. and Comcast Corp. from using their servers to throttle or slow the internet traffic of business rivals, as evidenced by a segment from HBO comedian John Oliver that went viral in May.

But internet service providers’ opponents in the long-running Washington fight — major content “edge” providers like Amazon.com Inc., Facebook Inc., Google Inc. and Netflix Inc. — don’t exactly have clean hands in the fight, according to analysts who say those firms have a way of favoring their content, in the form of content delivery networks.

CDNs are clusters of servers that cache data from content providers to reduce the delay before a transfer of data begins — a way for the prominent and deep-pocketed sites to load more quickly than others. The networks are often owned by third party companies like Akamai Technologies Inc., while some of the largest content providers have built their own.

Globally, 71 percent of all internet traffic will cross CDNs by 2021, compared with 52 percent last year, according to a report published in June by Cisco Systems Inc.

Those networks have the ability to discriminate against and interrupt content flows, according to Dan Rayburn, principal analyst at Frost & Sullivan and executive vice president of Streamingmedia.com.

Rayburn suggested that the Open Internet Order enacted by the Federal Communications Commission in 2015 was myopically focussed on ISPs.

With all interested parties claiming support for net neutrality as the issue garners more attention in Washington, discussion tends to boil down to classification for broadband internet service providers under Title II of the Communications Act of 1934. And that largely misses the point, Rayburn said.

“If you’re thinking rationally about this, you’d address it with CDNs, with transit providers, with backbone providers,” Rayburn said. “You’d address it with everybody.”

Content providers say that without Title II, which under the 2015 Open Internet Order gave the FCC the authority to regulate companies like Comcast and Verizon, their content and applications would be vulnerable to blocking, throttling and paid prioritization. ISPs say they have no problem with rules that ensure net neutrality principles, but that uncertainty created by the Title II classification, usually reserved for utilities, hampers the level of investment they’re willing to make in much-needed infrastructure.

Tech firms like the ones represented by the Internet Association say CDNs shouldn’t be regulated the way ISPs are because anyone is free to invest in the technology that brings content closer to the end user and eases congestion on the main thoroughfares, leading to a better experience for everyone.

“Unlike ISPs, CDN providers do not serve a gatekeeping role as the only path for edge providers to reach that ISP’s subscribers,” the Internet Association, which represents companies like Amazon and Facebook, wrote in comments filed this month with the FCC. “CDNs’ computers are not bottleneck facilities.”

Net neutrality will be front and center at a Sept. 7 hearing hosted by the House Energy and Commerce Committee. Chairman Greg Walden (R-Ore.) this week called on the chief executives of major content providers and rival telecoms to state their cases publicly at the upcoming hearing, in the hopes of finding some compromise.

Walden said he’s sent invitations to the CEOs of Alphabet Inc., Amazon, AT&T, Charter Communications, Comcast, Facebook and Netflix.

The other side of the Capitol is also keeping a close eye on the debate.

Sen. Mark Warner (D-Va.) said in an interview Wednesday that he’s “anxious to see whether the CEOs respond to Mr. Walden’s invitation. There ought to be a way to sort through this.”

Warner declined to comment on the Title II spat.

While Title II has become a sticking point, industry analysts say what matters more is that the rules as a whole sidestep interconnection agreements between ISPs and large content providers, as well as a huge portion of the data-carrying architecture that includes content delivery networks.

The FCC’s majority wrote in its 2015 Open Internet Order that it didn’t have enough experience with those operations, and so it didn’t apply the net neutrality rules to them.

Commissioners Michael O’Rielly (R) and Ajit Pai (R), who’s now FCC chairman, pointed out in their 2015 dissent that the agency retained the ability to penalize bad actors involved in internet traffic exchange under their general conduct standard – seven guidelines, including competitive effects, consumer protection and free expression, that they intended to use on a case-by-case basis in considering complaints brought to the commission.

ISPs oppose the general conduct standard. During his testimony Tuesday, O’Rielly spoke to their concerns in calling for Congress to address net neutrality.

“I fully support legislation; it’s the only way we’re going to get lasting peace on the issue,” he said. “There cannot be clear rules of the road if you have a general conduct standard that roves about and does whatever it wants at any time done by bureau staff.”