Level 3 calls for net neutrality rules to extend to all ISP activities

Even if advocates for net neutrality win the battle at the FCC over “no discrimination” rules, they could still lose the war if ISPs subvert the spirit of those rules by applying chokepoints at deeper layers of the internet. For practical purposes, this would mean that any internet traffic would reach your house at the same speed — but that some types of that traffic, especially from video-heavy websites like Netflix, would arrive in a degraded condition.

This, anyway, is the fear of Level 3(s lvlt), an internet communication company that has been  raising the alarm over ISPs that demand “tolls” behind the scenes to guarantee certain types of internet traffic get passed through to the end customer.

On Monday, Level 3 proposed in a blog post that the FCC adopt interconnection rules that would require ISPs to accept traffic without requiring a fee beyond what they charge to their customers:

If Internet content is delivered locally – in the ISP’s local market closest to the location of the ISP’s customer requesting the content – the ISP must accept the traffic and deliver it to its customer without charging a fee. The ISP could require the aggregation of some minimum amount of traffic to avoid an obligation to interconnect with “everybody”.

More broadly, the company also stated that ISP’s should not be able to prioritize some websites’ content over others, nor impose data caps that don’t apply to the ISP’s own offerings.

Level 3, however, also appeared to acknowledge that maintaining interconnection points isn’t a one-way street, stating in the blog that “no one should get a free ride” and that websites and back-end companies “must also do their fair share of the work to deliver content to the ISP.”

Level 3 is basically asking the FCC to require that ISPs do their bit to maintain the gates at which traffic comes and goes from the rest of the web. Here is how Level 3 depicted the traffic distribution process in Monday’s blog post (Level 3 is a CDN and backbone provider as depicted in “option 2 and 3”) :

Level 3 peering graphic

In the past, the process for passing traffic through these interconnection points has been uncontroversial as a result of “peering” agreements under which ISPs and companies like Level 3 agreed to accept the other’s respective incoming or outgoing internet traffic. Recently, however, a new flood of inward-bound video traffic has led ISPs to demand payments for upgrading the critical inter-connection points — if the likes of Level 3 failed to pay the toll, then the interconnection gate would not be big enough, and the end-customer would see a dreaded “buffering” message while trying to watch Netflix or YouTube.

Level 3’s call for new rules, then, is a way for it to call foul on certain ISPs that it thinks are playing unfair; the company’s blog post does, however, also points to some ISP’s that it claims are acting in good faith.

So does Level 3 have a point? Are certain ISP’s playing dirty at deeper levels of the internet?

For now, there’s not enough information to say for sure, but the FCC is looking into it as part of the broader process of remaking rules for the internet (previous net neutrality rules collapsed in court in January).

Depending on what the agency discovers in its inquiry, it could grant Level 3’s wish by imposing anti-discrimination rules that would reduce some of the ISPs’ leverage to demand that CDNs and content providers pay tolls.

The FCC is currently in the midst of a comment period on the net neutrality debate, and final proposed rules are not expected till late in the year.

Correction: an earlier version of this story referred to Level 3 as a content delivery network. It was updated at 4pm ET to say that the company is also a backbone network provider.