Gamers, Cord-Cutters & Net Neutrality

The FCC is Making Games Lag & Videos Jitter

The FCC’s 2015 Open Internet Order marked a monumental shift in Internet regulation in America. In the name of “Net Neutrality,” the FCC imposed proscriptive rules and other substantial burdens on ISPs, restricting their behavior and preventing them from pursuing certain business arrangements. One such arrangement that was banned ex ante, as a per se unreasonable practice, is an ISP agreeing to prioritize some Internet traffic over others in exchange for any consideration (monetary or otherwise).

This issue was fiercely contested in the FCC’s public comment cycle. Some argued that “paid prioritization” would actually benefit consumers and competition. Other commenters acknowledged that paid prioritization could be harmful in some instances and beneficial in others, so they argued that the FCC should adopt a rebuttable presumption against such practices, but evaluate each paid prioritization offering on a case-by-case basis. The FCC, however, was unmoved by these arguments. Heeding cries about the dangers of “fast lanes” and “slow lanes” on the Internet from a massive public outreach campaign, led by self-styled “consumer advocates,” the FCC banned paid prioritization outright.

As a consumer who regularly both plays competitive video games (mainly FIFA, but also some first-person shooters) and streams live video (mainly sports) on the Internet, this angers me. I know from experience that not all Internet traffic is created equal. If my email or software updates are a few milliseconds slower in reaching my computer, I don’t get upset. But if there’s even the slightest bit of lag in an online video game, or jitter in the livestream of a big sports match, I get extremely frustrated.

I’ve lost fiercely contested FIFA matches and also missed key moments in big sports games all because of minor service disruptions in my Internet traffic. Such instances of lag and jitter don’t infuriate me to the point of smashing my controller or breaking my TV — thankfully, I’m not the violent type. However, I have been known to rail off many an expletive in such times, most often cursing the name of Net Neutrality.

The natural first reaction to Internet service disruptions is to blame your ISP. After all, if they’d just done their job better in pushing bits back and forth from your house, the service would’ve kept working, right? Not necessarily. Sometimes the problem is deeper, at an interconnection point or somewhere outside the ISP’s network. And sometimes, as here, there are actually rules in place prohibiting your ISP from trying to serve you better.

Under the Open Internet Order, if an ISP wanted to start assigning priority to Internet traffic they identify as needing special treatment — a certain amount of upstream/downstream bandwidth, low jitter, latency, and/or packet loss — that would likely be okay, as long as (1) they clearly disclose the practice, and (2) the FCC doesn’t determine that the practice violates the nebulous general conduct standard regarding discrimination amongst edge providers.

(The general conduct standard may not be an issue for certain forms of prioritization, such as an ISP prioritizing all Internet traffic it recognizes as being a voice service (VoIP, VoLTE, video-conferencing, etc.), without regard to which edge provider is offering the service. In fact, many ISPs already do this, via software-defined networking, in an effort to better serve their subscribers. In the case of online gaming or livestreaming video, the general conduct standard may be a bigger hurdle to cross, but that analysis will have to wait for another blog post.)

But, even assuming that prioritizing Internet traffic identified as online gaming or livestreaming video wouldn’t violate the general conduct standard, it might still violate the FCC’s ban on paid prioritization. Recall that the “paid” part of “paid prioritization” covers any “consideration (monetary or otherwise),” and recall also that, in contracts, it doesn’t take much to constitute consideration — something as small as a peppercorn may suffice, as may the forbearance of a legal right (e.g., the license to use one’s trademark).

So, if an ISP wanted to try appealing to gamers and cord-cutters by, say, advertising to consumers that it offers premium access to Xbox Live or WatchESPN, that would violate the ban on paid prioritization — even if Microsoft and Disney hadn’t paid for the privileges (or, truly, even if they had received payment from the ISPs), because using their trademarks in the ISPs’ advertising would constitute infringement, and the rights holders forbearing from suing the ISPs for such infringement amounts to consideration. This pro-consumer behavior would therefore be prohibited by the FCC, unless the companies involved could meet the very high bar set in the Open Internet Order for obtaining a waiver from the rules.

To be fair, such premium gaming and livestreaming services could be alternatively styled as a non-BIAS data services (a.k.a. “specialized services”), since the bans on paid prioritization and unreasonable discrimination don’t apply to such services. The rules apply only to broadband Internet access service (BIAS… yes, that’s the term the FCC chose), and such services seemingly wouldn’t qualify as BIAS.

However, in defining BIAS, the FCC’s rules go on to say, “This term also encompasses any service that the Commission finds … is used to evade the protections set forth in this Part.” Thus, if an ISP intentionally designs a premium gaming or livestreaming video service as to fall into the category of non-BIAS data services, they still could be found to be violating the rules if the FCC, in its vast discretion, decides that the services are being used to evade the protections of the rules.

Is it any stretch of the imagination to think an army of minions could once again be marshaled by advocacy campaigns and late-night comedians into filing complaints with the FCC about the crushing impact such services would have on the Internet? Facing the prospect of a widespread populist backlash and potentially massive fines from the FCC, do you think any ISPs and edge companies will be willing to try their hand at offering such services? I, for one, sincerely doubt it.

And thus, we soldier on, trying to enjoy our online gaming and livestreaming video when our connections are good, and trying to ignore the instances of lag and jitter when they inevitably crop up.

Could ISPs and edge providers work together to try to improve this situation? Yes.

Will the FCC allow them to do so? That remains to be seen…

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