FCC Will Look Into Netflix’s Peering Complaints, Chairman Says

The FCC will look into issues raised recently by Netflix and other companies about Internet traffic delivery, chairman Tom Wheeler said at a hearing Tuesday, as he faced a bipartisan chorus of complaints about his recent net neutrality proposal.

Most lawmakers on the House Communications and Technology Subcommittee focused on the FCC’s net neutrality proposal released last week, which would open the door to allowing Internet providers to offer fast-lane service. Critics of the plan say that it would violate the spirit of net neutrality, which is that Internet providers should not discriminate against any legal Internet traffic and it should mostly be treated equally.

Democratic lawmakers complained about the fast-lane plan and said the FCC should consider re-regulating Internet lines, which would give the agency clearer authority to police broadband providers. Republicans mostly echoed concerns raised by phone and cable companies, which don’t want their lines re-regulated under rules written for old phone networks.

Although little new ground was broken during the two-and-a-half hour hearing, Wheeler did offer a few hints about his thinking on some issues:

Wheeler said that the FCC “needs to look at and will be looking at” an issue raised by Netflix about deals it has had to cut recently to get its traffic delivered more quickly to Comcast*, Verizon and other Internet providers.

Content companies routinely enter into peering, or interconnection, agreements with middle-mile Internet providers to carry traffic more efficiently across the Internet so it can get to consumers more quickly. Netflix recently signed a paid deal to deliver traffic directly to Comcast’s network after customers complained about delayed videos. But Netflix has complained about the need to do so.

Net neutrality advocates have been pushing the FCC to re-regulate, or reclassify, broadband lines under Title II so Internet providers can’t offer fast-lane service, or paid prioritization. They’ve taken issue with recent arguments by Internet providers that Title II wouldn’t ban the sort of fast-lane service that most people seem upset about.

Count Wheeler among those who agree that Title II wouldn’t ban the fast-lane model. “There is nothing in Title II that prohibits paid prioritization,” Wheeler said at the hearing Tuesday, adding, “As a matter of fact, we have all kinds of paid prioritization existing today.”

He added that he expects the agency will get plenty of comments about what it could do under various legal theories.

The FCC chairman has made noises in the past suggesting that he thought allowing Internet providers to experiment with offering paid prioritization to content companies was okay.

“Providing exclusive, prioritized service to an affiliate is not commercially reasonable,” Wheeler wrote in a blog post last month trying to explain his controversial fast lane/slow lane proposal. (Note: He doesn’t say anything about Internet providers offering exclusive, prioritized service to a nonaffiliate.)

Those days appear to be over, however, a victim of the outpouring of the thousands of complaints the agency has received since news of his fast lane/slow lane proposal leaked.

Rep. Doris Matsui, D-Calif., was among the Democrats complaining about the proposal Tuesday, and Wheeler was quick to note several times that the agency hasn’t made a final decision on anything yet. Also, he said he supports net neutrality, too.

“There is one Internet. There is not a fast Internet, there is not a slow Internet, there is not an urban Internet, there is not a rural Internet,” Wheeler said. “Everybody ought to have open, equal access to the capacity delivered by the Internet.”

Rep. Peter Welch, D-Ver., brought up an interesting issue that some have pointed to in recent days, namely that there isn’t any law preventing Internet sites from blocking broadband providers.

Last year during a dispute between Time Warner Cable and CBS, the cable company’s broadband customers were blocked from watching full-length episodes on CBS.com. “Is this the beginning of the cable-ization of the Internet?” Welch asked Tuesday.

“I think it is the right question,” Wheeler responded. “I think there is reason to be concerned when because I happen to subscribe to an ISP who is in a dispute with a program provider, that the program provider blocks all access from all IP addresses coming from that ISP. I think that is something that is of concern and that we all should worry about.”

Despite the fact that AT&T’s $49 billion deal to acquire DirecTV was on the front pages of newspapers Monday, the word “DirecTV” was uttered just twice during the hearing Tuesday.

“Can anyone here today piece together the effects of a Comcast-Time Warner merger and an AT&T-DirecTV merger on consumers and a free and open Internet?” Rep. Anna Eshoo, D-Calif., asked rhetorically. (Apparently no one could, because her question remained unanswered.)

Rep. Diana Degrette, D-Col., also tried pinning Wheeler down on industry consolidation, noting there have already been two major proposals so far this year. “All things being equal, do you think industry consolidation is good or bad for the consumers?” she asked.

Wheeler dodged that question. “What we’re doing is opening a record on each of them,” he said. “And we’ll make that decision based on the record that is developed for each.”

* Comcast owns NBCUniversal, which is an investor in Revere Digital, Re/code’s parent company.

This article originally appeared on Recode.net.