Public Knowledge: Comcast's Usage Cap Shenanigans Violate Neutrality, NBC Merger Conditions

from the semantic-patty-cake dept

Consumer group Public Knowledge has waded into the zero rating debate by filing a formal complaint with the FCC (pdf) over Comcast's use of usage caps to give its own streaming video service a notable advantage in the market. As we've long noted, Comcast hits less competitive markets with usage caps and overage fees its own documents suggest are entirely unnecessary. The company then announced it would be launching a new creatively-named "Stream" streaming video platform that would not count against these usage limitations.

And while the FCC's neutrality rules don't specifically ban zero rating (unlike rules in Japan, Slovenia, The Netherlands, and now India), Public Knowledge notes that the FCC could still hold Comcast accountable under the "general conduct" rule, wherein the FCC can crack down on network management behavior that's clearly intended to be anti-competitive on a "case by case" basis:

"Comcast's behavior is...inconsistent with the FCC's Open Internet rules. The FCC adopted an ‘Internet Conduct’ rule that prevents anticompetitive behavior on a case-by-case basis by analyzing the harms it could cause. "Comcast's actions could result in fewer online video choices for viewers nationwide, while increasing its dominance as a video gatekeeper. If its behavior persists, prices will go up, the number of choices will go down, creators will have a harder time reaching an audience, and viewers will have a harder time accessing diverse and independent programming."

The group also notes that Comcast's decision to give its own services an unfair advantage violates the NBC Universal merger conditions, which prohibit Comcast "from excluding its own services from data caps or metering and required it to count traffic from competing online video services the same as its own." One of the many reasons regulators opposed Comcast's attempted acquisition of Time Warner Cable is the realization that the cable giant did a piss poor job adhering to conditions attached to its acquisition of NBC Universal -- despite the fact that Comcast itself volunteered most of them.

Comcast's response? It can't possibly be doing anything wrong because even though you need a Comcast broadband connection to use Stream, the service technically rides over the company's "managed IP infrastructure" and not the broader, unwashed Internet:

"Our Stream TV cable package does not go over the Internet, so it can’t possibly violate a condition which only applies to Internet content. Customers do not access Stream TV through their broadband service. Period."

It's a cloak of semantics Comcast hopes protects it from a regulatory crackdown. The reality is that the FCC's net neutrality rules are worded in such a way that the FCC could hold Comcast's feet to the fire here if it actually wanted to under the general conduct rule. Unfortunately for users and competing streaming services, the FCC has pretty consistently indicated that it sees both usage caps and zero rating as little more than creative pricing, so it remains entirely unclear if Comcast -- or other companies now using zero rating to unfair advantage -- will ever actually be held accountable for it.

Should the FCC continue to refuse to even comment it's sending a rather singular message to other ISPs: that it's perfectly ok to violate net neutrality here in the States, just as long as you've prepared a vaguely coherent bullshit excuse for why you're using your gatekeeper power to hinder would-be competitors.

Filed Under: fcc, mergers, net neutrality, usage cap, zero rating
Companies: comcast, nbc universal, public knowledge