Network Neutrality and Consumer Demand for “Better Than Best Efforts” Traffic Management - Rob Frieden | Fordham IPLJ
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Network Neutrality and Consumer Demand for “Better Than Best Efforts” Traffic Management
Rob Frieden

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26 Fordham Intell. Prop. Media & Ent. L.J. 71

Article by Rob Frieden*





he Internet increasingly offers a preferred medium for access to video and other types of high value content1 that may require Internet Service Providers (“ISPs”) to use special efforts to ensure superior quality of service (“QOS”).2 ISPs have made substantial investments in infrastructure upgrades to satisfy growing demand for networks capable of delivering bandwidth intensive traffic at higher transmission speeds. Additionally, they work to accommodate consumer expectations of having content access anytime, anywhere, through any medium, via any device, and in any screen presentation format. Early adopters of new video delivery technologies rely on both wireline and wireless alternatives to “legacy” media such as broadcast, cable, and satellite television. Consumers have declining tolerance for “appointment television”3 that limits access to a specific time, on a particular channel, and in a single presentation format.


Already some video content consumers have “cut the cord” and abandoned traditional video media options replacing them with online platforms offering access to live content as well as streaming of stored content. The terms Internet Protocol Television (“IPTV”)4 and Over-the-Top Television (“OTT”)5 refer to the ability of content creators and new or existing content distributors to provide consumers with access to video content via broadband links, in lieu of, or in addition to, traditional media. New distribution media have the ability to deliver “mission critical” bits requiring highly reliable conduits for the immediate (“real time”) transmission of video content and their instantaneous display. IPTV and OTT can offer consumers new options for accessing “must see” video content,6 such as live sporting events.


This Article assesses whether and how ISPs can offer QOS enhancements, at premium prices for full motion video, while still complying with the new open Internet rules and regulations established by the Federal Communications Commission (the “FCC” or the “Commission”) in March, 2015.7 This Article explains that having made the controversial decision to reclassify all forms of Internet access as a telecommunications service, the FCC increases regulatory uncertainty. In particular, the FCC has evidenced skepticism whether ISPs, providing retail first- and last-mile broadband service to residential subscribers,8 can offer QOS enhancements that serve real consumer wants, without harming competition and the ability of most content to arrive on a timely basis using conventional “best efforts” routing.9 This Article suggests that the FCC expand its “narrow” waiver criteria10 to allow retail ISPs to join their upstream counterparts,11 and provide video delivery enhancements that do not degrade conventional best efforts routing, or prioritize traffic in ways designed to disadvantage competitors.



* Pioneers Chair and Professor of Telecommunications and Law, Penn State University; 102 Carnegie Building, University Park, Pennsylvania 16802; (814) 863-7996;; web site:




  1. Viewing of [Online Video Distributors] video programming on multiple devices is becoming increasingly prevalent. SNL Kagan estimates that as of 2013, more than 53 million U.S. households watched online programming with at least one Internet-connected device, including computers, game consoles, streaming media players, television sets, and Blu-ray players, with an average of 4.8 such devices per online viewing household.  In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Sixteenth Report, 30 FCC Rcd. 3253, para. 10 (2015).

  2. “OVDs account for an increasing portion of Internet traffic during peak hours. For instance, Sandvine states that Netflix accounted for 34.2 percent of peak period downstream traffic in March 2014, compared with 31.6 percent during the second half of 2013.” Id. para. 11.

  3. “A secular trend toward narrowcasting has intensified on the web, as more individuals forsake appointment television for the ‘long tail’ of online content.” Frank Pasquale, Beyond Innovation and Competition: The Need for Qualified Transparency in Internet Intermediaries, 104 Nw. U. L. Rev. 105, 110 (2010).

  4. IPTV offers consumers with broadband connections options to download video files or view (streaming) video content on an immediate “real time” basis. See In re Sky Angel U.S., LLC, Order, 25 FCC Rcd. 3879 (2010). Some of the available content duplicates what cable television subscribers receive therein triggering disputes over whether cable operators can secure exclusive distribution agreements and prevent an IPTV service provider from distributing the same content. “Sky Angel has been providing its subscribers with certain Discovery networks for approximately two and a half years, including the Discovery Channel, Animal Planet, Discovery Kids Channel, Planet Green, and the Military Channel. Sky Angel submits that these channels are a significant part of its service offering.” Id. para. 3. For background on IPTV, see In-Sung Yoo, The Regulatory Classification of Internet Protocol Television: How the Federal Communications Commission Should Abstain From Cable Service Regulation and Promote Broadband Deployment, 18 CommLaw Conspectus 199 (2009).

  5. “Over-the-top VoIP [and other] services require the end user to obtain broadband transmission from a third-party provider, and providers of over-the-top [services] can vary in terms of the extent to which they rely on their own facilities.” In re Preserving the Open Internet, Report and Order, 25 FCC Rcd. 17905, para. 22 n.48 (2010).

  6. Video has greater potential to cause disruptions in service in light of the substantial amount of content that ISPs must handle quickly so that frames of content arrive in time for immediate display. See Henry H. Perritt, Jr., Technologies of Storytelling: New Models for Movies, 10 Va. Sports & Ent. L.J. 106, 132 (2010).

  7. In re Protecting and Promoting the Open Internet, Report and Order on Remand, Declaratory Ruling, and Order, 30 FCC Rcd. 5601 (2015) [hereinafter 2015 Open Internet Order]; see also In re Protecting and Promoting the Open Internet, Order Denying Stay Petitions, 30 FCC Rcd. 4681 (2015) [hereinafter Order Denying Stay] (order denying requested stay of the 2015 Open Internet Order).

  8. The FCC’s definition of broadband Internet access emphasizes the offering of service that reaches nearly all sources of content as opposed to services that offer enhanced delivery for specific sources of content.

    [B]roadband Internet access service (BIAS) [is defined] as: [a] mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.

    2015 Open Internet Order, supra note 7, para. 187.

  9. The Internet developed initially as an academic curiosity, based on a commitment to the “end-to-end principle.” This principle requires that all Internet traffic, whether an email, a Voice over Internet Protocol (VoIP) “call” or a video stream, be treated equally and managed through “best efforts” connections. In such a network, data packets pass from one router to another without the prioritization of any particular packets. In practice, this means that Internet traffic reaches its destination at varying times, depending on the traffic levels of the relevant Internet communications links.

    Philip J. Weiser, The Next Frontier for Network Neutrality, 60 Admin. L. Rev. 273, 280 (2008).

  10. “Under the rule we adopt today, the Commission will ban all paid prioritization subject to a narrow waiver process.” 2015 Open Internet Order, supra note 7, para. 107. “We anticipate granting such relief only in exceptional cases.” Id. para. 132.

  11. The 2015 Open Internet Order maintains the largely unregulated information service classification for ISPs operating upstream from operators that provide “retail” broadband subscriptions.

    [Title II, common carrier regulated] broadband Internet access service does not include virtual private network (VPN) services, content delivery networks (CDNs), hosting or data storage services, or Internet backbone services (to the extent those services are separate from broadband Internet access service). The Commission has historically distinguished these services from “mass market” services and, as explained in the 2014 Open Internet NPRM, they “do not provide the capability to receive data from all or substantially all Internet endpoints.” We do not disturb that finding here.

    Id. para. 190 (citations omitted).