What appears to be the first complaint by an edge provider regarding interconnection has been submitted to the FCC. In the complaint, dated June 22, 2015, Commercial Network Services (CNS) identifies itself as an edge provider that provides web hosting services.

Specifically, the company describes itself as providing streaming content (including a webcam and Internet radio feeds) as well as services for “automated trading applications.” In connection with its provision of such services, CNS alleges that a broadband provider has violated FCC’s Open Internet Order. According to the complaint, the broadband provider declined to peer with CNS unless CNS enters into a commercial agreement in which it would pay the broadband provider. The complaint alleges that in so doing, the broadband provider violated FCC rules against throttling and paid prioritization, forcing it (and its end-users) to utilize higher latency routes than those that direct peering would provide.

How the FCC reacts to the CNS complaint may shed light on how much freedom broadband providers have in establishing criteria governing parties with whom they will (and will not) enter into peering agreements free of charge. Whether the conduct complained of would constitute a violation of the Open Internet Order remains to be determined. Although the FCC’s new rules barring throttling and paid prioritization appear applicable to last-mile broadband providers, the Open Internet Order expressly excluded commercially-negotiated agreements for the exchange of Internet traffic from the scope of those rules. Instead of a bright-line approach that would prospectively prohibit negotiated arrangements, the FCC explained that it would review such arrangements on a case-by-case basis, under the statutory “just and reasonable” standard set forth under 47 U.S.C. § 201.

The CNS complaint, as the first test of this case-by-case analysis, may help reveal how much maneuvering room there is between the “just and reasonable” standard for interconnection with broadband providers, on one hand, and the bright-line rules applicable to last-mile Internet service, on the other.