Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554
In the Matter of
Protecting and Promoting the Open Internet

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)
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GN Docket No. 14-28

OPPOSITION OF COGENT COMMUNICATIONS, INC. TO JOINT PETITIONS FOR

STAY PENDING JUDICIAL REVIEW

Robert M. Cooper
James P. Denvir
Richard A. Feinstein
Hershel A. Wancjer
James Kraehenbuehl
BOIES, SCHILLER & FLEXNER LLP
5301 Wisconsin Avenue, N.W.
Washington, D.C. 20015
(202) 237-2727
Counsel to Cogent Communications, Inc.

May 7, 2015

INTRODUCTION
On May 5, 2015, two separate groups of petitioners requested the Commission to
partially stay the final Order adopted in the above-captioned proceeding (the Open Internet
Order)1 pending judicial review. One joint stay petition was filed by the United States Telecom
Association, CTIA The Wireless Association, AT&T Inc., Wireless Internet Service Providers
Association, and CenturyLink (the USTA Petition). The other was filed by the American
Cable Association and the National Cable & Telecommunications Association (the ACA
Petition). For the reasons set forth below, Cogent Communications, Inc. (Cogent) opposes
both stay petitions.
Cogent strongly supports the Commissions recent adoption of enforceable rules and
procedures that will protect the transformational role the Internet has come to occupy in virtually
every sphere of American life, and ensure that the Internet remains an open platform for all
forms of communication, innovation, and economic growth. The Open Internet Order rests on a
solid legal foundation, both procedurally and substantively, and embodies a series of sound
policy judgments well within the scope of the Commissions authority. As such, Petitioners are
not likely to succeed on the merits.
The purpose of this submission, however, is not to engage in that debate, but rather to
address the assertion that, absent a stay, the Petitioners (or those whom they represent) will
suffer irreparable harm. See USTA Petition at 21-30; ACA Petition at 20-28. That assertion
cannot withstand scrutiny. Indeed, Petitioners have it backwards. While Petitioners profess

Report and Order on Remand, Declaratory Ruling, and Order, Protecting and
Promoting the Open Internet, GN Docket No. 14-28, FCC 15-24 (rel. Mar. 12, 2015).

fidelity to certain core principles of Internet openness or net neutralityand thus exclude the
bright-line no blocking, no throttling and paid prioritization rules from their requestwhat they
effectively are asking the Commission to do is endorse broadband Internet access service
(BIAS) providers ability to achieve those same means through different ends. Specifically, by
seeking to block the implementation of the Commissions case-by-case adjudication process for
disputes concerning the exchange of Internet traffic, Petitioners are looking to immunize BIAS
providers from any accountability for conduct that has harmed, is harming and, if the stay is
granted, will continue to harm, BIAS customers. Thus, the Commission should not be swayed
by the surgical exclusion of the bright-line rules from the stay petitions. Granting the stay would
be tantamount to giving any BIAS provider who chooses to do so a license, through the
manipulation of interconnection strategies and the deliberate creation of congestion, to degrade
consumers access to an open Internet. Such a result would undermine the very principles that
motivated the Open Internet Order. Accordingly, the petitions should be denied.
ARGUMENT
Keenly aware that they are on the wrong side of the law, public opinion and the open and
content-agnostic principles upon which the Internet has operated since its inception, Petitioners
soft pedal the import of their petitions by omitting from their stay requests the Commissions
bright-line rules against blocking, throttling and paid prioritization. See USTA Petition n.2;
ACA Petition n.3. The Commission should take no comfort in Petitioners superficial embrace
of these net neutrality concepts. That is because freezing the overall regulatory framework as
Petitioners propose, and in particular the case-by-case adjudication mechanism for
3

interconnection disputes, would allow them to inflict the exact same harmsand perhaps
worseon the same consumers that the bright-line rules protect.
For at least the past two years, various participants in the Internet distribution chain have
been harmed by, and forced to endure the congestion and corresponding degradation of Internet
content caused by, a number of large BIAS providers. That conduct, which is well-documented
in the record in this proceeding and elsewhere, influenced in part the Open Internet Order.2 As
the Commission knows, congested interconnection facilities can lead to the same type of
customer degradation and prioritization of service that the bright-line rules seek to avoid. For
example, Cogent experienced a dramatic change in its efforts to augment the capacity of its
interconnections with several of the largest U.S. BIAS providers,3 a change that coincided with
an increase in consumer demand for streaming video and other bandwidth-intensive content and
latency-sensitive applications.4 More notably, it also coincided with the time at which Cogent

Open Internet Order 205 (We conclude that our actions regarding Internet traffic exchange arrangements
are reasonable based on the record before us, which demonstrates that broadband Internet access providers have the
ability to use terms of interconnection to disadvantage edge providers and that consumers ability to respond to
unjust or unreasonable broadband practices are limited by switching costs.). Those harmed by degradation include
edge providers (like Netflix), transit providers (like Cogent) and, most importantly, consumers who pay for access to
all lawful Internet content.

See Comments of Cogent Commcns, Inc., GN Docket Nos. 14-28 and 10-127 (filed September 15, 2014)
(Cogent 14-28 Reply Comments) at 9-10 (noting congestion Cogent has experienced over the last several years at
interconnection points with certain BIAS providers, including AT&T and Time Warner Cable).

See Fact Sheet: Internet Growth and Investment, Federal Communications Commission, Feb. 19, 2014,
available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-325653A1.pdf (last visited May 7, 2015) (citing
evidence that the number of hours Americans spend watching video over the Internet has grown 70% since June
2010 (Nielsen), revenues from online video services grew by 175% between 2010-2012, from $1.86 billion to $5.12
billion (SNL Kagan), and real-time streaming of entertainment in prime time grew from 42.7% of downloads in
2010 to 67% by Sept. 2013 (Sandvine Global Internet Phenomena Report)); Tom Wheeler, Chairman, FCC, The
Facts and Future of Broadband Competition (Sept. 4, 2014), at 2 ([C]onsumer demand is growing; today over 60%
of peak-time downloads are streaming audio and video.), available at

(and other transit providers) began providing transit services for Netflix. Shortly thereafter, and,
in most cases for the first time, several of Cogents peering partners departed from their
historical port-augmentation practices by (1) using a traffic ratio pretext to demand additional
consideration from Cogent and (2) permitting interconnections with Cogent to become congested
which, in turn, yielded degraded service to Cogents transit customers and, ultimately, the BIAS
providers own subscribers.5
Petitioners do not dispute the consequences of congestion, including dropped packets for
streaming video and VoIP data. Nor do they dispute that such congestion affects bandwidthintensive content (e.g., streaming video) more than other types of content (e.g., email), and that
the content most susceptible to congestion competes directly with legacy services offered by the
largest BIAS providers, all of whom are members of one or more of the organizations seeking a
stay, or petitioners in their own right.6 Indeed, the Commission itself has acknowledged the

http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0904/DOC-329161A1.pdf (last visited May 7,

2015).
5

See, e.g., Cogent 14-28 Reply Comments at 9-10, 12-14; A Measurement Lab Consortium Technical
Report, ISP Interconnection and its Impact on Consumer Internet Performance,
http://www.measurementlab.net/static/observatory/M-Lab_Interconnection_Study_US.pdf (October 28, 2014), at 4
([W]e observed sustained performance degradation experienced by customers of Access ISPs AT&T, Comcast,
Centurylink, Time Warner Cable, and Verizon when their traffic passed over interconnections with transit ISPs
Cogent, L3 and XO.). The M-Lab Report also noted that (a) congestion and under-provisioning were causal factors
in the observed degradation symptoms[,] and (b) the study indicates that Cogent had sufficient capacity in at least
some portion of their network and rules out any across-the-board problems with Cogents network as the cause of
degradation observed for BIAS providers, including AT&T and Time Warner Cable. Id. at 4, 9.
6

As a result, BIAS provider congestion strategies also typically harm some of their subscribers (e.g., Netflix
customers) and Cogent customers (e.g., Netflix) more than others. However, because all traffic exchanged between
Cogent and BIAS providers must pass through common interconnection points, the impact of this conduct is
necessarily broader than its targets. For example, people trying to telecommute from home with Time Warner Cable
as their BIAS provider might face difficulties in connecting to their employers servers, because their employer is a
Cogent Internet access customer. See Susan Crawford, Jammed: The Cliff and the Slope, Medium,
https://medium.com/backchannel/jammed-e474fc4925e4 (October 30, 2014) (explaining how attempts by BIAS

extent to which the degradation of traffic at interconnection points can impact the ability of
transit and edge providers to deliver traffic and/or end users to enjoy any lawful content of their
choosing.7
The consumer harms caused by certain BIAS providers refusal to augment capacity at
interconnection points has reinforced the need for mutually beneficial interconnection
agreements between transit providers and their peering partners. While some BIAS providers
have taken steps to address congested interconnection facilities, others have not. Cogents
preferenceand Cogent assumes the preference of BIAS providersis 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.
While that might have adverse implications for a particular Internet network, of far greater
concern is the fact that the absence of any means to resolve these disputes could jeopardize
innovation and competition from edge providers and injure consumers. That harm is more
concrete and more antithetical to a robust open Internet than the hyperbolic and speculative
concerns raised in the Petitions.

providers to charge Netflix for access to their subscribers can also recklessly affect[] Internet connectivity for
small- and medium-sized businesses). This is but one example of how the peering squeezes employed by certain
large BIAS providers work to hurt more than just Netflix viewers.
7

Open Internet Order 205 (When Internet traffic exchange breaks downregardless of the causeit
risks preventing consumers from reaching the services and applications of their choosing, disrupting the virtuous
cycle.). See also Statement by FCC Chairman Tom Wheeler on Broadband Consumers and Internet Congestion
(June 13, 2014), at 1 (The bottom line is that consumers need to understand what is occurring when the Internet
service theyve paid for does not adequately deliver the content they desire, especially content theyve also paid
for.), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-327634A1.pdf (last visited May 7, 2015).

While both the USTA and ACA Petitions sound similar themes in a strained effort to
concoct a theory of irreparable harm tethered to the Commissions case-by-case adjudication
process for disputes concerning the exchange of Internet traffic, the shortcomings of their
arguments are best illustrated by the declaration of Time Warner Cables Ronald Da Silva.
Mr. Da Silvas declaration is replete with self-serving and misleading statements, the most
noteworthy of which are addressed below.
1. My interconnect partner counterparts have been emboldened by the Order and are
already making onerous demands and engaging in threats that will result in immediate
and irreparable harms to TWC. (Da Silva Decl. 2).
To the extent this allegation relates to Cogent, it is inaccurate. Cogents position since
the release of the Open Internet Order is no different than its historical position and is consistent
with industry norms. Specifically, networks that exchange Internet traffic traditionally have
augmented ports as they become congested.8 Notably, that practice characterized Cogents
relationship with Time Warner Cable, at least until the rapid growth of online video posed an
existential threat to its legacy video business. Cogent has not sought anything more from Time
Warner Cablebefore or after the Open Internet Orderthan a reversion to the norm.

Historically, standard industry practice has been for interconnecting networks to upgrade connections
when they reach approximately 70% capacity, though discussions and negotiations typically begin prior to capacity
reaching that level. Such conversations and the implementation of measures to address capacity constraints are
important because packet loss tends to occur once ports are about 90% utilized. Cogent 14-28 Reply Comments at
17 (citing Declaration of Henry (Hank) Kilmer, Vice President, IP Engineering, Cogent Commcns Grp., Inc., MB
Docket No. 14-57 (filed Aug. 25, 2014) 16). See also Declaration of Ken Florance, Vice President of Content
Delivery, Netflix, Inc., MB Docket No. 14-57 (filed Aug. 25, 2014), 60 (explaining that, historically, a regular
practice of last-mile ISPs was to augment their interconnections when transit or edge provider ports running into
their networks started to regularly go above 70% capacity utilization.); Declaration of Constantine Dovrolis,
Ph.D., Professor at the School of Computer Science of the Georgia Institute of Technology, MB Docket No. 14-57
(filed September 23, 2014), Section 3.2 (Typically, if the utilization of a link during peak-usage time periods is
more than 70%, the link can experience congestion episodes in which traffic is delayed or even dropped.).

2. Shortly after the FCC released the text of the Order, [Cogent] contacted TWC seeking
to renegotiate the parties interconnection arrangement and proposed terms that
Cogent claimed are required under the Order's new just and reasonable rubric for
ISPs' interconnection practices. (Da Silva Decl. 3)
For some time, Cogent has attempted to relieve congestion at its interconnection points
with Time Warner Cable. Unlike other BIAS providers with whom Cogent has negotiated, Time
Warner Cable has largely refused to even discuss the issues, much less work collaboratively to
address the harms it is causing its own customers.9 Moreover, in March 2014 Cogent even
offered to pay the capital costs associated with the upgrades it was requesting from several BIAS
providers, including Time Warner Cable.10 Time Warner Cable has yet to accept, or even
respond to, the offer. Accordingly, the notion that Cogent somehow is using the Open Internet
Order as a sword to impose new demands on Time Warner Cable is litigation-driven positioning,
designed to create the faade of irreparable harm where none exists.
3. The Order significantly undercuts TWCs ability to resist [Cogents] demands and
creates a compulsion to serve that has never existed before. (Da Silva Decl. 4-5)
At its core, this argument boils down to a request by Time Warner Cable that it be free to
continue operating in an unjust and unreasonable manner. If Time Warner Cable reverts to the
historical norm and upgrades its ports with Cogent and other transit providers as they approach

Time Warner Cables conduct also illustrates the degree to which it is willing (and able) to use
interconnection practices with transit providerswhich it tries to downplay as mere business disputesas a means
to inflict harm on edge providers that pose a competitive threat to its business.
10

See Press Release, Cogent Offers to Pay Capital Costs Incurred by Major Telephone and Cable Companies
Necessary to Ensure Adequate Capacity, Cogent Commncns Grp. (March 21, 2014), available at
http://www.cogentco.com/en/news/press-releases/631-cogent-offers-to-pay-capital-costs-incurred-by-majortelephone-and-cable-companies-necessary-to-ensure-adequate-capacity (last visited May 7, 2015).

or surpass 70% utilization, it has nothing to fear from the presence of a case-by-case adjudication
process because there will be no case.11
Yet even if Cogent or another entity were to commence such a case, Time Warner Cable
still would not be irreparably harmed. That is because if a case were filed, and if Time Warner
Cable lost and was ordered to remedy congestion, then it still could reverse those remedial
measures if it and its co-petitioners were to succeed in overturning the Open Internet Order. In
other words, given the modest costs associated with remedying congestion and the ease with
which port upgrades can be reversed, there is no risk of irreparable harmother than the risk
that Time Warner Cables customers might grow accustomed to a better broadband Internet
experience and service. That, however, is hardly sufficient to warrant a stay.
4. Time Warner Cable alleges that it will be required to devote substantial resources to
defending itself against interconnection complaints that arise from its disputes with
Cogent, costs that it might not be able to recover if the Order is struck down. (Da Silva
Decl. 8)
Time Warner Cables lament over the amount of legal fees it might incur to defend itself
against a potential interconnection enforcement proceeding also rings hollow. The Commission
made clear in the Open Internet Order that the record revealed competing narratives with
respect to congested Internet traffic exchange, such that it needed a device to learn more about
the greater context of the disputes surrounding it.12 Accordingly, any legal expenses incurred in
connection with a Section 208 complaint will not be wasted, as it will allow the parties to

11

Nothing in the Open Internet Order (nor in Section 201) requires Time Warner Cable to serve (i.e.,
interconnect with) Cogent or any other transit or edge provider, nor has Cogent ever suggested to Time Warner
Cable (or any other BIAS provider) that it does.

12

See Open Internet Order 200.

continue their efforts to persuade the Commission that their narrative is correct. And even if
the Section 208 proceedings were later found to exceed the Commissions jurisdiction, the filings
made in those proceedings would facilitate the ultimate resolution of the ongoing Internet traffic
exchange disputes.
5. Both the ACA Petitioners and Mr. Da Silva cite comments by Cogent executives as
evidence of Cogents intention to file an interconnection lawsuit. (ACA Petition at 23;
Da Silva Decl. 7)
Cogents statements quoted by Time Warner Cable and Mr. Da Silva are not threats, but
merely recognitions that an enforcement process for interconnection disputes now exists and can
be used to resolve the current uncertainty over the obligations parties have to maintain
interconnection points when they have already agreed to interconnect. Petitioners appear to
believe that BIAS providers cannot prevail in such a proceeding. And while Cogent tends to
agree, at least insofar as certain BIAS providers are concerned, it does so not on the basis of a
belief that the matter will be decided by an agency that seems to place broadband providers and
interconnection parties on decidedly uneven ground. ACA Petition at 23. Instead, the
vulnerability of firms like Time Warner Cable is attributable to their abuse of gatekeeper
positions to try to coerce monetary concessions from edge and transit providers, a practice that is
antithetical to the open Internet principles the Commission has sought to preserve for years. Put
differently, such practices are unjust and unreasonable. But to reiterate, the case-by-case
adjudications that Time Warner Cable and others seem desperate to avoid can, in fact, be readily
avoided through good-faith discussions and negotiated agreements that foster, rather than impair,
an open Internet.
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CONCLUSION
For all of the foregoing reasons, Cogent respectfully requests that the Commission deny
the USTA and ACA petitions.

Dated: May 7, 2015

Respectfully Submitted,

/s/ Robert M. Cooper

Robert M. Cooper
James P. Denvir
Richard A. Feinstein
Hershel A. Wancjer
James Kraehenbuehl
BOIES, SCHILLER & FLEXNER LLP
5301 Wisconsin Avenue, N.W.
Washington, D.C. 20015
(202) 237-2727
Counsel to Cogent Communications, Inc.

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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of

)
)

Protecting and Promoting the Open Internet

)
)

GN Docket No. 14-28

DECLARATION OF ROBERT N. BEURY JR.

I, Robert Beury, declare under penalty of perjury on this 7th day of May 2015 that:
1. I am the Chief Legal Officer of Cogent Communications, Inc., a multinational, Tier 1
facilities-based ISP. Cogent specializes in providing businesses with high speed Internet access,
Ethernet transport and colocation services. Cogent's facilities-based, all-optical IP network
provides services in over 180 markets globally.
2. I have read the foregoing Opposition of Cogent Communications, Inc. to Joint Petitions
for Stay Pending Judicial Review ("Cogent Opposition").
3. This declaration is submitted in support of the Cogent Opposition in GN Docket No. 1428.
4.

The allegations of fact contained in the Cogent Opposition are true to the best of my

personal knowledge and belief.

Robert N. Beury Jr
Chief Legal Office
Cogent Communications, Inc.

CERTIFICATE OF SERVICE
I, Hershel A. Wancjer, do hereby certify that on this 7st day of May, 2015, I caused the
foregoing Opposition of Cogent Communications, Inc. Opposition to Joint Petitions for Stay
Pending Judicial Review to be served on the following individuals via electronic mail:
Marlene H. Dortch
Secretary
Federal Communications Commission
Marlene.Dortch@fcc.gov

Kathleen M. Sullivan
Quinn, Emanuel, Urquhart & Sullivan LLP
kathleensullivan@quinnemanuel.com
Counsel for USTelecom

Chairman Tom Wheeler

Federal Communications Commission
Tom.Wheeler@fcc.gov

Helgi C. Walker
Gibson, Dunn & Crutcher LLP
hwalker@gibsondunn.com
Counsel for CTIA

Commissioner Mignon Clyburn

Federal Communications Commission
Mignon.Clyburn@fcc.gov
Commissioner Jessica Rosenworcel
Federal Communications Commission
Jessica.Rosenworcel@fcc.gov
Commissioner Ajit Pai
Federal Communications Commission
Ajit.Pai@fcc.gov

Peter D. Keisler
Sidley Austin LLP
pkeisler@sidley.com
Counsel for AT&T
Stephen E. Coran
Lerman Senter PLLC
scoran@lermansenter.com
Counsel for WISPA

Commissioner Michael ORielly

Federal Communications Commission
Mike.ORielly@fcc.gov

David H. Solomon
Wilkinson Barker Knauer, LLP
dsolomon@wbklaw.com
Counsel for CenturyLink

Jonathan Sallet
General Counsel
Federal Communications Commission
Jonathan.Sallet@fcc.gov

Jeffrey A. Lamken
MoloLamken LLP
jlamken@mololamken.com
Counsel for American Cable Association

Michael K. Kellogg
Kellogg, Huber, Hansen, Todd, Evans &
Figel, P.L.L.C.
mkellogg@khhte.com
Counsel for USTelecom, CTIA and AT&T

Miguel A. Estrada
Jonathan C. Bond
Gibson, Dunn & Crutcher LLP
mestrada@gibsondunn.com
jbond@gibsondunn.com
Matthew A. Brill
Latham & Watkins LLP
matthew.brill@lw.com
Counsel for National Cable &
Telecommunications Association

/s/ Hershel A. Wancjer

Hershel A. Wancjer