No surprise here: The FCC isn’t going to make peering a net neutrality issue

FCC Chairman Tom Wheeler is not going to make peering and interconnection fights part of the agency’s revamp of network neutrality, which may disappoint Netflix and Level 3, but shouldn’t surprise them. According to the National Journal, Chairman Wheeler expressed his opinion at a press conference Monday, after which the FCC issued the following statement to clarify the issue:

“Peering and interconnection are not under consideration in the Open Internet proceeding, but we are monitoring the issues involved to see if any action is needed in any other context.”

The FCC didn’t want to comment further, but it sounds like Wheeler reiterated his comments that he made to me back in January when I asked him about peering fights — the disagreements between content companies, large network capacity providers, and the last mile ISPs that can cause consumer headaches. At that time he called interconnection issues a “cousin” of net neutrality issues, and said that the government had a role to play in ensuring that people and businesses were free to interconnect and innovate on the internet.

However, last month, Level 3 and Netflix both came out with statements and FCC filings that sought to have the agency regulate peering as a network neutrality issue under the FCC’s rethink of the Open Internet Order. Their argument was that peering fights are basically a net neutrality problem that occurs farther back in the network. While there are problems with how interconnection agreements are made today, it’s tough to call it a network neutrality issue, especially since the FCC declined to make it one back in 2010 when it implemented the order.

Given Wheeler’s ambivalence around network neutrality and reluctance to make ISPs too unhappy with new rules that would make ISPs into common carriers (subject to stringent rules about how they carry traffic and interconnect) the Netflix and Level 3 arguments seemed like a stretch. But if you never go, you never know.

If the FCC decides to look at peering, my suggestion is that it does so first by getting the data on both the problem of congestion at the links leading into the ISP networks and by finding out how much ISPs are charging for those links. Only when it has data showing a real problem should it act, but if it has that data it should act quickly. Because as a consumer, I’m getting really tired of watching my Amazon Instant Video and Netflix streams buffer or time out.