Level 3 Communications

Michael Mooney

“Chicken” | A Game Played as a Child and by some ISPs with the Internet

Published March 18, 2014

In the wake of the DC Circuit’s net neutrality ruling, there has been quite a bit of media attention around congestion on the Internet and its effects on consumers, including alleged impacts on the quality of Netflix video streams and the ability to use Amazon Web Services.  There is further speculation that this congestion could force large content distributors into cutting deals directly with Internet Service Providers (ISP) to avoid congestion the ISPs themselves are perpetuating.  While this is news du jour, it is a problem that has really been around for several years. The problem is the game of “chicken” some last mile ISPs are playing with the Internet.

A few questions to set the table:

Is your broadband connection really slow sometimes? Do movies or videos download poorly, not at all or become pixilated? Do you get messages like this one below?


Do you assume, “Jeez, lots of people must be using the Internet right now”?   

You might be wrong.

The Internet is a series of fiber and wireless networks owned by carriers around the world that connect consumers to content and applications available on the Internet. No single provider – no matter how big – connects to all of the subscribers on the Internet or to all of the content on the Internet. To connect it all together (to give all subscribers access to all content), providers must spend money and connect their networks together. This “network of networks” is the Internet.

Residential broadband ISPs promise their subscribers access to all of the content on the Internet, not just some of it. They also know full well that, in the Internet as it exists today, much more data will be downloaded by consumers (think of watching an HD Netflix movie) than uploaded (think of clicking your mouse to ask Netflix to send you that movie).  As such, all ISPs offer download speeds that are faster than upload speeds.

To honor the promises they make consumers, these ISPs must then connect their networks to the other networks that can supply any Internet content the ISPs cannot provide themselves (which is most of it). It also means that as overall Internet content gets bigger (think of HD movies versus e-mails), all providers must “augment” their networks – making them bigger to accommodate the exponential growth due to the Internet’s success.

Some ISPs, however, have refused to augment their networks UNLESS the content providers they connect to agree to pay them to do so. Viewed in the light most favorable to these ISPs, they want content suppliers to pay not only for their own increased costs of supplying more robust Internet content, but also for any increased network costs of the ISPs, too. This is not only unreasonable on its face, but it is entirely inconsistent with published reports indicating that returns on invested capital for ISPs are excellent, and are expected to improve even further, driving considerable additional growth in economic profits. More cynically, these ISPs simply view these arbitrary tolls as new sources of revenue for their last mile bottleneck monopolies or as a way to unfairly discriminate against content that competes with the content the ISPs themselves supply.

So what if content providers refuse to pay? Some ISPs agree to augment capacity on reasonable terms.  But other ISPs try to strong arm the content providers into paying by playing a game of “chicken” with the Internet.  These ISPs break the Internet by refusing to increase the size of their networks unless their tolls are paid. These ISPs are placing a bet that because content providers have no other way to get their content to the ISPs subscribers, that they will cave in and start paying them.

None of this is new. These last mile ISPs know full well the consequences of what they are doing. We wrote AT&T about it in February 2011. We have written to other ISPs about it since then. In each of these cases, we offered to sit with the ISP to hammer out a fair, equitable, scalable and resilient network architecture, but to no avail.  We have also advised the FCC of the issue on more than one occasion, beginning in 2013 and as recently as three weeks ago.

And while this game of chicken plays out, and it is playing out right now, many ISP networks remain too congested to handle all of the Internet traffic their subscribers paid them to deliver, and here is some of what can happen:

  • VoIP telephone calls may not be connected, may be disconnected if connected initially or, while connected, may have poor quality or be unintelligible. This includes 911 calls.
  • Access to online video applications (like Netflix, Sony, Apple, Google, Amazon and others) or online streaming services (Major League Baseball, for example) can be impacted, resulting in an inability of subscribers to use those services. These problems are particularly bad at peak usage times.
  • Interactive web browsing can be adversely affected. Subscribers and businesses using the Internet to complete banking transactions, access medical records, cast a vote, visit social networking sites or access employer data and systems while working from home (or telecommuting) will find that their applications are running slowly, and in cases of extreme congestion, browsing sessions may fail completely. Users may also get error messages, causing them to wonder whether whatever transaction they were trying to complete – such as online purchases or banking – were even concluded.

So if you think your Internet connection is slow just because lots of people are online at the moment, you could be wrong. You could be a victim of your ISP’s game of chicken.

Some say network neutrality is a solution looking for a problem. We disagree.

UPDATE: On Friday, March 21, 2014, Level 3 made our most recent filing with the FCC regarding this net neutrality issue. Read the full brief.