The National Cable & Telecommunications Association and AT&T have teamed up to ask the FCC to clarify that its new network neutrality rules do not apply to peering arrangements and Internet backbone services, a question raised in the peering dispute between Level 3 and Comcast that Level 3 has complained implicates those new rules.
They pointed out in a letter Monday to FCC Chairman Julius Genachowski that the absence of clarification from the FCC has "emboldened" similar claims and complaints by Global Crossing, Voxel.net and Public Knowledge, and warn that continued silence could send a "troubling signal" to financial markets and the international community about the government's intent "to exercise control over Internet infrastructure."
Like NCTA and AT&T, Level 3 and the others are looking for a sign from the FCC on how it will apply the rules, since the enforcement regime is on a case-by-case basis. In addition, the FCC could not take action against any current conduct as a violation of the rules since they are not in force yet and won't be until mid-summer at the earliest.
They want the commission to "swiftly, clearly and publicly affirm that arrangements for Internet peering and other Internet backbone services are not subject to the net neutrality rules, and that the agency will decline efforts to become involved in these commercial disputes."
AT&T and NCTA were among the industry players who came to the table to hammer out an acceptable form on network neutrality regs that could supplant Genachowski's initial intention to reclassify Internet access as a telecommunications service subject to some common carrier regs. The chairman had the necessary three Democratic votes to do so, but got pushback from some House Democrats and virtually all the Republicans, as well as ISPs.
AT&T and NCTA didn't think the new regs were necessary, just preferable to the regulatory alternative.
The companies pointed out in their letter that during that time of debate and negotiation, "this Commission has steadfastly maintained... that it has no intention of subjecting Internet peering and other Internet backbone services to net neutrality rules or any other type of prescriptive regulations."
But having acquiesced -- "agreed" is probably too strong -- to the new regs, AT&T and NCTA said that was based on the commission's repeated assurances that those regs could not be read to include certain backbone services like peering agreements and that the regs would "avoid a raft of unintended consequences."
They said the Level 3 complaint, ensuing complaints and the FCC's silence have put any regulatory certainty at risk. NCTA conceded the silence may be the FCC's way of saying, and rightly so, that those disputes should not involve the FCC, but said it would prefer an unequivocal statement to that effect.
Singing on to the letter were NCTA president Kyle McSlarrow and AT&T lobbyist James Cicconi, who were among the stakeholders at the table when the FCC hammered out the compromise regs.
The FCC voted Dec. 21 to expand and codify its network openness principles on a straight party line vote.
Republican Commissioner Meredith Attwell Baker, in an interview with C-SPAN's Communicators, said she, too, was concerned that companies were trying to game the new rules with complaints about backbone services.