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.

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  • identicon
    Anonymous Coward, 4 Mar 2016 @ 7:02pm

    They can use caps, they can monitor bandwidth usage. They can have their modem back, they can stick their cable TV box where the sun doesn't shine.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2016 @ 7:18pm

    Often there has been a serious problem with the monitoring of bandwidth. Comcast will accept no other measurement other than their own. Yet their measurements don't match up with other places or even routers that monitor incoming and outgoing usage. It's damn fishy that Comcast's measurements always favor Comcast.

    On the part about the claim that Comcost doesn't use the internet for it's services, it admits it uses an IP. OTA television doesn't use an IP, radio broadcasting stations on the air do not use IP (though they may have an additional interface on the internet that does). The only thing that uses IPs are things involved with the internet and computers.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2016 @ 8:00pm

    State Actors enjoy monopoly powers

    Whenever a company like Comcast is working directly with the government to hand over literally anything they can think of on their paying customers, they stop being a private company bound by normal laws and start becoming an extension of that corrupt government. They will never stop encroaching on privacy so long as their are companies willing to make extra money on selling it for additional profit.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2016 @ 1:23am

      Re: State Actors enjoy monopoly powers

      After all, why steal from just your customers when you can steal from taxpayers too?

      reply to this | link to this | view in chronology ]

  • identicon
    Garry, 5 Mar 2016 @ 4:01am

    Conveyors of binary ones and zeros, should not tariff/censor content

    Millions if not billions have been spent arguing about net neutrality and censorship of data via its type and volume.

    Party A pays for certain bandwidth at one end of a communications link, and Party B pays for certain bandwidth at the other end. Each party has the right to expect that they can use their bandwidth in any manner they so choose, to view movies, to hear music, to download/upload documents, inter alia.

    ISPs argue that they should have the right to censor/filter/tariff/discriminate data based on their corporate policies. They do not have the right, and have never had that right. First their was the telegraph, then telephone, then the internet. Telephone gives us the best example, but what I am about to say was also possible on telegraph. Anyone could use their phone line to speak to another party (voice data), send/receive a fax, or connect to an information service to do research, upload/download documents, images, or audio. Then came the internet, just a different technology, the next step in communications, preceded by telegraph, telelphone, and wireless communications. The ISP argues that the internet is different and they have the right to discriminate based on data, they do not. Regardless of the data being sent, voice, documents, movies, inter alia, all data is distilled to electrical/light/radio signals representing binary ones and zeros. In essence, ISP are nothing more than transporters of digital ones and zeros. What those ones and zeros represented at the sender's end of the communication, or at the receiver's end of the communication is of zero concern to the ISP. They should not be toll collectors, deciding that the higher percentage of digital ones and zeros are related to say streaming video, and as a result add a tariff or delay to that traffic. They are already getting paid by the sender and receiver for certain bandwidth. If they want to raise the rates in general at each end, they are free to do so, but not with the condition of type of traffic. Again, all data regardless of content, or method sent, must first be distilled down to binary ones and zeros. ISP are bit conveyors, nothing more, and no court system in the world, should give them any increased stature. If the ISP feels that it is unprofitable to convey certain streaming media, or commercial data for a given purveyor of goods, then they should simply go into another business, and leave the movement of binary ones and zeros to those who understand the mission and related costs.

    I am tired of hearing that companies need the taxpayer to subsidize them so they can make infrastructure improvements, when they decided to give huge dividends to their shareholders rather than making the infrastructure improvements using the corporation's funds.

    Lastly, in terms of infrastructure costs. Computer technologies and data communication technologies are the one area where things are pretty much always cheaper in the future. When I was involved with a fiber project decades ago, we double, tripled, sometimes quadrupled the number of fibers in a cable to ensure we could handle the increase bandwidth of the future. What we didn't know at the time, was that future technologies would find ways to send more and more data on the same fiber pair. Blowing away the data communication limits we knew at the time of installation. A simple one, that everyone can understand is simply breaking down white light into the colors of lets the rainbow. Now each color can carry the same amount of data as the original fiber pair. So think of the overall increase in bandwidth possible should involved parties decide to use their dark fiber (fiber that has not been used to this point, because existing fiber has been able to communicate more and more data).

    So the cost to transmit and data as actually gotten cheaper by the bit. I have no idea if anyone has done a study, but my best guess would be that sending data is now 10 thousand times cheaper than it was in the late 90s. So what exactly is the poor me argument from the major ISPs? As they charge people 4 times what we paid 10 years ago for data? Yes it is faster, but the cost to send a binary 1 or 0 has become far cheaper, than the speed to send a binary 1 or 0 over the internet has become faster for the average home user.

    Bottom line, ISP vendors should be held to the original spirit and law of the telecommunications act, they are simply conveyors of signal, and should not be allowed to discriminate in anyway based on the form or content of that communication once reconstructed at the receiving end.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Mar 2016 @ 4:36pm

    Comcursed never fails to take the lowest road...

    I am preparing to change flats. One of my search criteria was a place with broadband Internet service *NOT* provided by AT&T or Comcursed. I found such with two alternatives to the "Evil Empires"! Further, Google is coming to town (Atlanta) - yaaay!

    Die, Comcursed, die!

    reply to this | link to this | view in chronology ]

    • icon
      Phillip (profile), 6 Mar 2016 @ 10:49am

      Re: Comcursed never fails to take the lowest road...

      same for me. we're currently building a new house partly to get away from comcast and at&t so we made a criteria that the internet service cannot be provided by one of them for us to build in any location. Luckily we found a location that has Gig Fiber provided by Home Telecom, that my friends who have their service love.

      reply to this | link to this | view in chronology ]

  • identicon
    chicken little, 6 Mar 2016 @ 9:23pm

    jeebus

    It amazes me how little anyone cares about this shit. Fucking insane. The world keeps turning, the world keeps burning. Lawsey, lawsey. it shorely is a white mans world.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2016 @ 2:14am

    So:
    Tier 1 - the normal speed unwashed internet
    Tier 2 - the high speed "managed IP infrastructure"

    Hmmm

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 7 Mar 2016 @ 7:16am

    Break them up

    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.

    Then the regulators need to go further than simply opposing a new merger.

    It's a very simple deal. If Comcast follows this list of conditions, they can be a single company together with NBC Universal. Comcast did an abysmal job of following this list of conditions, therefore they can not be a single company together with NBC Universal, therefore they need to be broken up. That's elementary logic.

    reply to this | link to this | view in chronology ]

  • icon
    scatman09 (profile), 7 Mar 2016 @ 9:08am

    boycott or bend over...(or sue)

    a class action lawsuit might be helpful.

    People and corporations do (as much or as little as) what they think they can get away with.

    What other effective means do we have to call their bluff?

    reply to this | link to this | view in chronology ]


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