Public Knowledge Tells FCC That Comcast's Streaming Video Service Flouts Open Internet

Comcast Watchable - H 2015
Courtesy of Comcast

Five years ago, the Federal Communications Commission approved Comcast's acquisition of NBCUniversal. On Feb. 26, Comcast celebrated the anniversary by patting itself on the back in a 19-page report illustrating its commitments to the distribution of unaffiliated programming.

On Wednesday, however, the non-profit group Public Knowledge continued to make the case that Comcast's so-called "zero-rating programs" related to data usage caps is something that the FCC should do something about. As early as 2012, Public Knowledge was complaining that Comcast was charging consumers extra money for surpassing certain thresholds but exempting its own video services from the data caps. Then, it was the Xfiniity Video App on XBox; now, it's Comcast's streaming video cable service known as "Stream TV."

Public Knowledge has now updated a petition originally seeking to enforce merger conditions to argue that the zero-rating Stream TV is inconsistent with the FCC's Open Internet Rules, known by many as "net neutrality." 

According to the new petition (see here), Comcast imposes a 300 GB data cap on many of its customers, but that's hardly enough to satisfy the average American who watches about 31 hours of video per week.

"The impact of the artificially low usage cap is fairly straightforward in dollar terms," states the petition. "For broadband subscribers to have unlimited access to Stream TV content, they must pay an additional $15 a month. To have the same unlimited access to a competitor, such as Netflix, Hulu, or Amazon Prime, the same subscriber must pay $35 a month for 'unlimited' broadband, on top of the cost of the streaming service. For example, Hulu’s commercial-free plan costs $12 per month. Using the Hulu example, the result of Comcast zero-rating Stream TV is that it costs a subscriber an additional $32 per month to have unlimited use of a non-affiliated online video service. This is precisely the kind of anticompetitive behavior the Commission foresaw, and sought to prevent, in both the 2010 Comcast/NBC-Universal Order and the 2015 Open Internet rules."

Comcast doesn't believe an IP cable service — not just Stream TV, but also AT&T's U-verse and CenturyLink's Prism — is quite the same as the Internet-delivered video subject to FCC rules.

"Stream TV cable package does not go over the Internet, so it can’t possibly violate a condition which only applies to Internet content," says Comcast in a statement. " Customers do not access Stream TV through their broadband service. Period. Public Knowledge saying so over and over does not make it so."

Public Knowledge in its petition (which is different than a formal complaint) argues that Stream TV is "network traffic" with data traveling over the same path as other broadband data and viewers watching Stream TV on the same computer or mobile devices they use to watch other online video services. 

It states: "Put another way, Comcast appears to believe that it need do nothing more than physically locate the servers which offer a given broadband service on its own property for that service to be categorically immune from various consumer protection policies. Arguments of this kind fail for a variety of reasons."

It's not clear whether the FCC intends to examine the issue. The regulatory agency is currently before a DC appeals court in a bid to defend its authority to regulate the Internet like a utility. Much of the focus thus far has been on paid prioritization of digital traffic. This dispute hints at the future controversy over the scope of the FCC's broadband-related oversight.