By producing compelling online content and interfacing directly with its customers, Netflix is holding a powerful card—and I’m not talking about its Emmy-award-winning show. Rather than playing this card, Netflix is asking the Federal Communications Commission (FCC) to intervene in its dealings with Internet service providers (ISPs). Before delving into Netflix’s potential counter-strategy and the need (if any) for regulatory intervention, a bit of background is in order.
FCC Chairman Tom Wheeler announced last week that the agency is launching a new investigation of “interconnection” agreements, which as the name suggests, govern connections between Internet networks. Interconnection has taken center stage since Netflix struck deals with Comcast and Verizon in February; prior to those direct connections with ISPs, Netflix paid “transit” providers such as Cogent and Level 3 to obtain access to the ISPs’ networks. Presently, interconnection arrangements are governed by private contracts.
Interconnection issues are not implicated in the FCC’s pending Open Internet proceeding, which addresses the treatment of traffic within an ISP’s network, as opposed to on its doorstep. Yet some companies are trying to conflate the issues and leverage the religious fervor and grassroots political machines of the net neutrality movement. Adding to the drama is Netflix’s suggestion that it was forced to accept terms for direct connections at gunpoint; according to some accounts, the counter-parties were purposefully degrading the quality of the connection with Netflix until Netflix coughed up some cash.
Is there a constructive role for the regulator? The Progressive Policy Institute (a D.C. think tank with which I am affiliated) held a conference on interconnection last month, and invited Wharton Professor Kevin Werbach to make the case for FCC regulation of interconnection. At the conference and in his writings, Werbach cited some classic interconnection showdowns, including Comcast-Level 3 and Verizon-Cogent, as the basis for intervention: A benevolent referee could resolve these disputes quickly, Werbach argues, and get traffic flowing to Internet customers.
To evaluate the potential benefits of intervention, I looked into these disputes and was surprised by what I found: Based on historical frequencies, the likelihood of a dispute between networks is rare, and the likelihood of a dispute leading to a service outage for consumers is even rarer. By my count, there have been just six major interconnection disputes since 2002 (five of which involved Cogent)—about one every other year—and the average number of days without service across these disputes was close to zero. In other words, even when these disputes occur, traffic generally continues to flow pursuant to a standstill agreement while the dispute is worked out. Unless something has radically tipped the balance of power in the Internet ecosystem, history suggests that the benefits of the FCC’s intervening in these affairs—in terms of forgone service outages—are likely small.
On the other side of the ledger, inserting the FCC into these negotiations could impose significant costs on society. For example, mandatory interconnection at regulated rates could undermine the incentive of ISPs to expand or enhance broadband networks. Some have blamed mandatory roaming for certain wireless operators’ decision not to build out in high-cost areas (but rather rely on roaming). Moreover, the FCC’s assistance could discourage access-seeking networks, including transit providers and some large content providers such as Google, from expanding their networks into last-mile services. According to this cost-benefit analysis, the FCC should stay out of these affairs.
Two other considerations should give the Chairman pause about intervening on interconnection. First, for customers who are hooked on Netflix exclusive content, such as House of Cards or Orange Is the New Black, Netflix is the “must-have” network. I could access the Internet at super-fast speeds through my cable operator or my telephone provider (and soon through my mobile device), but there is no good substitute for what Netflix is producing. So if push came to shove, and my ISP started fooling with my Netflix connection, I would consider switching ISPs to see whether Frank Underwood maintains his presidency or Piper Chapman gets out of jail. Although this choice in super-fast connections is not available to all customers—by the FCC’s latest count, nearly three-quarters of U.S. households are served by two or more wireline ISPs with download speeds of at least 6 Mbps—the choice is available to enough households to make the ISPs think twice about degrading Netflix.
Second, Netflix has a potent counter-strategy that, if deployed, could be significantly more powerful in its dealing with ISPs than regulation: By charging its subscribers different prices based on their ISP, Netflix can gently steer its customers to “low-priced” ISPs—that is, ISPs that charge low or no interconnection fees. For example, Google Fiber, an ISP with a limited national footprint, recently announced that it would abstain from charging Netflix (or any content provider) an interconnection fee.
Like a credit card, Google Fiber is best understood as a “platform provider” that connects end users with content providers. When certain credit cards sought to impose relatively higher fees on merchants, merchants countered by imposing surcharges (or discounts) on the merchandise to steer customers to the lower-priced cards. Some large banks responded by imposing a “no-surcharge rule” on merchants, forcing merchants to charge the same price for goods regardless of which card was used. Following the abolition of no-surcharge rules in Australia (a similar movement is afoot in the United States), the number of merchants surcharging payment card transactions has increased steadily over time, leading to a significant reduction in merchant transaction fees.
Applying that lesson here, Netflix could charge Google’s customers a discount (say $6.99 per month as opposed to its standard $7.99 charge) for Netflix service. Alternatively, Netflix could charge customers of a high-priced ISP a surcharge (say $9.99 per month). By revealing to its subscribers the identity of the low-priced ISP, this counter-strategy could temper the interconnection charge of the high-priced ISP. Unlike cable networks, which rely on the cable operator to interface with the video customer, Netflix and other online providers are customer-facing and thus wield significantly greater bargaining power in their dealings with the platform provider—as long as they are willing to use it.
I asked a Netflix spokesperson at a recent Aspen Institute event whether Netflix has contemplated this counter-strategy. His answer, which begins at about 1:50:32 on the video, was (1) he has at least considered it, but (2) the interconnection fee charged by ISPs to date was “so small” in relation to Netflix’s content costs that a surcharge would not make sense. Admittedly, my question was tough, but this answer does not engender much sympathy for Netflix’s plight.
Before seeking further regulatory intervention, Netflix should avail itself of all potential counter-strategies in its dealings with ISPs. To do anything less is to ask the FCC to carry your water. As Frank Underwood put it, “There is but one rule: Hunt or be hunted.” Netflix is holding a powerful trump card that potentially obviates the need for regulation, but it seems disinclined to use it. Until Netflix has gone on the hunt and failed, the Chairman should shelve interconnection rules and focus his attention on the Open Internet rules now pending before him.