With Tim Wu's Help, New York AG Launches Belated Investigation Into Whether ISPs Intentionally Slowed Netflix

from the looking-for-the-silver-bullet dept

A little more than a year ago you might recall that everybody's Netflix performance was in the toilet and the mega-ISPs were being blamed for it. In short, companies like Cogent, Level3 and Netflix all claimed large ISPs like Verizon had intentionally let their peering connections to some other networks saturate, contributing to sluggish Netflix streams. The goal, claimed Netflix and friends, was purportedly to make an extra buck by eliminating the long-standing practice of settlement-free peering, forcing Netflix to pay for direct interconnection to ISP networks if they wanted performance to return to normal.

Except here's the thing: once the FCC's net neutrality rules were passed, all of this double-dipping behavior magically and suddenly stopped. Ports mysteriously unclogged, new mutually-beneficial contracts were signed, Netflix streaming performance returned to normal, and the threat of a regulator actually doing its job now had everybody getting along famously. Our long, dark buffering Netflix nightmare appeared to be at an end.

So it's a little odd for New York Attorney General Eric Schneiderman to announce only just this week that he's launched an investigation into interconnection and streaming performance issues. Schneiderman recently hired net neutrality godfather and Columbia law professor Tim Wu as a temporary "senior lawyer and special adviser." It's now clear why. On behalf of the NY AG, Wu has sent letters sent to NYC incumbents Verizon, Cablevision and Time Warner Cable (pdf) demanding huge swaths of documents related to last mile performance and interconnection:
"This Office is concerned that, for reasons substantially within Verizon’s control, consumers may not be experiencing the speeds advertised. In particular, we are concerned that those paying for premium options, for various reasons mainly related to interconnection arrangements, may not be experiencing proportional increases in experienced speeds. Our concern is that the impact of technical and business decisions made at the point of interconnection between Verizon and other networks may affect end-to-end throughput. In this respect, we are specifically concerned about disruptions to the consumer experience caused by interconnection disputes, and also the possibility that interconnection arrangements may in some instances render irrelevant any benefit of paying for a “premium” option."
Here's the problem. While available evidence from MLAB (pdf) and a generation of bad behavior may certainly suggest companies like Verizon were up to no good, it's not yet possible to definitively prove it with the data we currently have. That data shows this congestion was tied to business policy and not network limitations, but how exactly do you prove Verizon didn't adequately upgrade key hardware to intentionally create congestion? It's unlikely a company as clever as Verizon or Comcast would have acknowledged the anti-competitive potential of such a decision in a memo or PowerPoint presentation.

Perhaps Wu thinks such a silver bullet exists and he can find it. And sure, such proof would certainly be helpful should the FCC's net neutrality rules be struck down in court early next year and it's left to other regulators to hold the mega ISPs to account for bad behavior. On the flip side, with Verizon not very popular in New York right now, this could just be a not-entirely uncharacteristic attempt by Schneiderman to see his name in very bright lights, with the AG coming to the public's rescue only after the threat has already passed.

Filed Under: broadband, congestion, eric schneiderman, interconnection, new york, tim wu
Companies: at&t, netflix, time warner cable, verizon


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 27 Oct 2015 @ 8:38am

    So, not only over for a year, but essentially unprovable, and political motives.

    Typical Techdirt item, then.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 27 Oct 2015 @ 8:44am

      Re: So, not only over for a year, but essentially unprovable, and political motives.

      Here's interesting news. I was able to comment here, but not in the prior article. By which I deduce each "author" (re-writer) has control to approve comments of own pieces.

      BUT that browser session was poisoned within two minutes.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Oct 2015 @ 8:53am

        Re: Re: So, not only over for a year, but essentially unprovable, and political motives.

        Seek help, please.

        reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 27 Oct 2015 @ 9:00am

        Re: Re: So, not only over for a year, but essentially unprovable, and political motives.

        I've never not been able to comment on an article, and that includes one sentence replies from IP addresses I've never used while not logged in at the time.

        I wonder why you constantly have these problems and others don't?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Oct 2015 @ 12:39pm

          Re: Re: Re: So, not only over for a year, but essentially unprovable, and political motives.

          He doesn't have them. He's just using the Bill O'Reilly method of 'dialog'.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Oct 2015 @ 9:09am

        Re: Re: So, not only over for a year, but essentially unprovable, and political motives.

        Shockingly, when your comments aren't filled with terrible grammar, irrelevant ranting, meaningless buzzwords and signatures full of links and irrelevant content, the spam-filter stops thinking you're a bot.

        But then, we already know that you're technically and linguistically inept, so this might actually be news to you.

        reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 27 Oct 2015 @ 8:45am

      Re: So, not only over for a year, but essentially unprovable, and political motives.

      Given that light, I say go for it!

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 27 Oct 2015 @ 8:59am

      Re: So, not only over for a year, but essentially unprovable, and political motives.

      Yet, still concrete fact compared to the average claims of the troll brigade round here. Weird.

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 27 Oct 2015 @ 9:25am

      Re: So, not only over for a year, but essentially unprovable, and political motives.

      It's provable by the "it's blood obvious when you look at the evidence" standard.

      This investigation implies that the AG thinks that the evidence meets the court's "beyond any reasonable doubt" standard.

      But yes, neither is as good as a mathematical proof. Only Comcast, the RIAA, Rightscorp and the DOJ set the bar that high for their claims.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Oct 2015 @ 8:46am

    You'd be suprised, though you shouldn't be, about what people put in their emails.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 27 Oct 2015 @ 9:02am

    Rattling the saber

    I doubt they expect this lawsuit to go anywhere honestly, as without iron-clad evidence of Verizon intentionally sabotaging the interconnection points to force Netflix to pay them, they're not likely to get anywhere in court.

    If I had to guess, this is most likely intended as a threat to better their bargaining position regarding the fiber deployment Verizon promised but failed to deliver on. While I doubt Verizon was stupid enough to be sending around messages about how they were holding Netflix hostage by intentionally screwing around with their network, I'm sure Verizon would love to not have to do through the discovery process, where all sorts of other 'inconvenient' little tidbits might surface.

    Basically the NY AG is threatening to look through Verizon's books in an attempt to make them more agreeable on other matters, and score some PR points doing it.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 27 Oct 2015 @ 9:06am

      Re: Rattling the saber

      Bah, 'investigation', not 'lawsuit'.

      reply to this | link to this | view in chronology ]

      • identicon
        JoeT, 27 Oct 2015 @ 9:39am

        Re: Re: Rattling the saber

        Except it's an NY AG investigation... so Verizon's emails will be trawled through, and the one idiot who openly sent email saying that they're not upgrading the network port to twist Netflix's arm will be found.

        reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 27 Oct 2015 @ 9:08am

    It's unlikely a company as clever as Verizon or Comcast would have acknowledged the anti-competitive potential of such a decision in a memo or PowerPoint presentation.

    Companies don't write emails; people employed by companies do. With everything from the Microsoft antitrust trial in the 90s to the Snowden leaks as precedent, why are you skeptical about the existence of a smoking gun just waiting to be found in this particular case?

    reply to this | link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 27 Oct 2015 @ 9:10am

      Re:

      (Argh. Add "And people make dumb mistakes all the time." between the second and third sentences there, to make my response more coherent.)

      from the why-oh-why-does-techdirt-not-support-comment-editing? dept

      reply to this | link to this | view in chronology ]

    • icon
      Karl Bode (profile), 27 Oct 2015 @ 9:24am

      Re:

      "why are you skeptical about the existence of a smoking gun just waiting to be found in this particular case?"

      Because I've studied, written about, and watched Verizon for fifteen years, ten hours a day? They don't document this kind of stuff. They cover their tracks. They have fantastic lawyers, and rarely if even do they even suffer from whistle blowers (unlike AT&T).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Oct 2015 @ 10:11am

        Re: Re:

        I'm sure they monitor connection points, so graphs should at least show the congestion taking place. But yeah I'll agree that finding purposeful congestion to block specifics would be hard. Most likely you'll see trouble tickets and emails back and forth from VZ, Cogent, L3, HE, et al about upgrading at specific IX points and complaints about financials on the agreements.

        reply to this | link to this | view in chronology ]

      • identicon
        PRMan, 27 Oct 2015 @ 10:52am

        Re: Re:

        It really doesn't matter. Dealing with that sort of investigation is a major hassle and business expense.

        They are going to get the message that they can't do this sort of stuff in the future, which is the whole point.

        And who knows, they may find that one idiot's e-mail after all.

        reply to this | link to this | view in chronology ]

  • identicon
    Joel Coehoorn, 27 Oct 2015 @ 10:07am

    I think the last sentence hit it on the head. The purpose of the AG position in many states, especially including New York, seems to be to puff up a politicians prospects for higher office.

    That said, I think there is a good chance he will be able to find an incriminating document. The actual network folks at these companies tend to know what they are doing, and none of them want their network to underperform. Some of them will have raised formal requests internally to improve these interlinks as part of normal procedure, and someone will have had to formally decline these requests. The decline decisions did not happen in a vacuum. It may have mostly been face to face meetings, but there's a good chance that at least *some* discussion of this decision is retrievable.

    reply to this | link to this | view in chronology ]

  • identicon
    Tim Wu, 28 Oct 2015 @ 9:07am

    Investigation

    Without going into details, I want to suggest that the point of the investigation may be different than this article speculates

    Tim Wu

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Oct 2015 @ 12:43pm

    Perhaps Wu thinks such a silver bullet exists and he can find it. And sure, such proof would certainly be helpful should the FCC's net neutrality rules be struck down in court early next year and it's left to other regulators to hold the mega ISPs to account for bad behavior. On the flip side, with Verizon not very popular in New York right now, this could just be a not-entirely uncharacteristic attempt by Schneiderman to see his name in very bright lights, with the AG coming to the public's rescue only after the threat has already passed.

    Or all of the above?

    reply to this | link to this | view in chronology ]


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