Cogent to FCC: Cable Ops Have It Backwards

Says stay of Title II would allow for harmful degradation, prioritization

Network services firm Cogent has asked the FCC not to stay its Title II reclassification. In a filing at the FCC opposing stay requests by cable and telco firms, Cogent says that the petitioners will not suffer irreparable harm — one of the requisite showings for receiving a stay.

Instead, Cogent says, if the FCC does grant the stay, ISPs will not be able to use the new general conduct standard to address conduct that "has harmed, is harming and, if the stay is granted, will continue to harm, BIAS [Broadcast Internet Access Service] customers."

The company is preaching to the choir. The FCC majority, which voted to reclassify, is unlikely to suddenly decide the rules are likely to be illegal and overturned, which is another of the legal showings necessary for getting a stay.

Cogent has argued that ISPs are allowing interconnection congestion and degradation of service, which has the effect of the same kind of prioritization that the FCC's bright line open Internet rules, which cable and telcos are not asking be stayed, are meant to prevent.

The FCC, in reclassifying ISPs under Title II, also put middle mile interconnection agreements under that regime, although under a case-by-case review regime rather than the bright-line rules against blocking, throttling or paid prioritizing traffic that it applied to ISP's last-mile connections with its subs.

"While some BIAS providers have taken steps to address congested interconnection facilities, others have not," the company told the FCC. "Cogent’s preference — and Cogent assumes the preference of BIAS providers — is that such interconnection agreements be negotiated in good faith among peering partners. However, if that does not occur in specific instances, then the stay sought in the USTA and ACA Petitions would leave a peering party facing an obstinate or commercially unreasonable negotiating partner with no recourse."

Companies asking the FCC to deny the stay petitions have until Friday to weigh in.

The National Cable & Telecommunications Association and America Cable Association have already signaled they will seek a stay in the U.S. Court of Appeals for the D.C. Circuit, where both have sued the FCC over Title II reclassification.