Cogent’s Favoring Of Packets Disregards FCC Rules

For all the discussion around net neutrality, you would think people would want everyone to follow good net neutrality principles, with no exceptions. Whether the company is a last mile provider, transit provider, or network operator, net neutrality only works if everyone follows the same rules. Far too many people are giving Cogent a pass considering they have admitted that they put customers into different classes, prioritized packets based on those classes, and “favored” (their word, not mine) one set of customers over another. All while not disclosing it to customers or to the public, which looks to be in violation of FCC rules.

Cogent told Ars Technica that it implemented this network management policy in a “visible” and “transparent” way, yet the company didn’t discuss it publicly when the system was implemented and I have yet to speak to a single Cogent customer who was informed by Cogent what they were doing. There was nothing “transparent” about it. If Comcast had done this, people would be calling for their heads, rightfully so, and this would be a huge deal. People would be livid. But when Cogent does it, far too many people are willing to give them a pass, since Cogent wants to try to push the blame to the ISPs for what they themselves are doing.

On Cogent’s own website, they have a page called net neutrality where they outline what practices they follow. Cogent says that they “do not prioritize packet transmissions on the basis of the content of the packet, the customer or network that is the source of the packet, or the customer or network that is the recipient of the packet.” Cogent’s own guidelines says they do not prioritize packets, yet they have admitted to doing just that. Cogent should be held accountable and should come clean on exactly what they are doing. Cogent was very quick to say that what they did was “consistent with recommendations from BITAG“, but on page 43 of the document that Cogent references, the BITAG also recommends disclosing network and congestion management practices.

BITAG says the disclosure “should be made available on network operators’ public web sites and through other typically used communications channels, including mobile apps, contract language, or email.” It also gives a bullet list of seven things that should be disclosed including “what types of traffic are subject to the practices“, “the practices’ likely effects on end users’ experiences” and “the triggers that activate the use of the practices and whether those triggers are user-­‐or application-­‐based” amongst others. Cogent followed none of these.

I’m sure some are going to try to argue that Cogent doesn’t need to follow these guidelines as they aren’t an ISP, but that’s not accurate. Anyone who connects customers to the Internet is an ISP and even Cogent calls themselves an ISP on their website since they offer dedicated Internet access. It does not matter if the customer is residential broadband, WiFi, Metro-E, T1 or Wholesale. An ISP is an ISP. Verizon, Comcast, Level 3 all compete with Cogent for different types of customers, mainly enterprise, government, education and wholesale. Nobody should play by a different set of rules, especially when prioritization is used for some other reason. Based on numbers from a Cogent fact sheet, they have over 43,000 customer connections, so many customers could be affected by their practices.

On July 23rd of this year, the FCC put out an enforcement advisory saying that “broadband providers must disclose accurate information to protect consumers“. Based on Cogent not making it public how they were “favoring” traffic, nor notifying customers, Cogent clearly isn’t in compliance with the FCC’s requirement. Unless someone can show me differently, open Internet principles apply whether the customer is consumer or business, so it appears a company that argues and preaches for “strong net neutrality” willfully chose to ignore the most basic aspects of what they publicly advocate. Don’t be fooled by what Cogent is trying to do by pushing the blame back to last mile providers. Cogent ignored the guidelines set forth by the BITAG, the principles on their own website and the advisory by the FCC. If people truly want strong net neutrality, then ALL companies should be held accountable, not only a select group.

  • The FCC’s net neutrality rules apply strictly to retail ISPs. They were never meant to apply to transit providers, who operate in a much more competitive market.

    • danrayburn

      Can you point to any langauge by the FCC that states that? I couldn’t find any. Cogent says they are an ISP.

      • Sure. Here is the 2010 Open Internet Order:

        https://apps.fcc.gov/edocs_public/attachmatch/FCC-10-201A1_Rcd.pdf

        Paragraph 44 limits the application of NN rules to “mass market retail” service.

        And footnote 209 provides that the NN rules do not apply to paid peering arrangements or other forms of interconnection.

        • JLivingood

          FWIW, Cogent said they do have a retail business (those were the bits they prioritized). On their earnings call today they said this is 3% of traffic but over 50% of revenue. I am guessing this serves schools, churches, businesses, etc. and they all likely expect network neutrality protections.

        • danrayburn

          That language I saw, but who’s to say Cogent’s offering isn’t “mass market”? The Internet access they sell isn’t classified as paid peering or a paid interconnect, it’s Internet access. And Cogent is the one who says they prioritized customers packets based on “retail” and “wholesale”.

          • Dan, correct me if I’m wrong, but didn’t the Cogent slowdown occur as a result of saturated interconnect points? The point is, it didn’t occur on the access line sold to edge providers like Netflix, which is the only thing covered by NN rules. It occurred on the back-end.