Public Knowledge told the FCC on Wednesday that Comcast's exemption of video service delivered over Xbox 360 from its data caps is a violation of its merger conditions in the NBCU deal and asked the commission to do something about it.
"Comcast is doing exactly what opponents of its merger with NBC Universal feared, using its Internet business to protect its pay-TV business" said Public Knowledge executive VP Michael Weinberg in a statement. "Exempting its own online video services from the data caps that apply to every other online activity creates an unfair advantage."
In its petition to the FCC to enforce the conditions, Public Knowledge said that Comcast has violated the condition that states: "Neither Comcast nor C-NBCU shall engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or prevent any MVPD or OVD from providing Video Programming online to subscribers or customers."Comcast's practice of counting all unaffiliated, but not its own, content against a customer's data cap significantly hinders an OVD from providing content to customers," said Public Knowledge.
Comcast has argued that it is using non-public Internet IP delivery to serve up its cable service, which is distinct from a broadband Internet service. "Any XfinityTV service that travels over the public Internet, including XfinityTV.com and our Xfinity TV app on mobile devices, counts toward our data usage threshold, as they always have," Comcast said earlier this year in response to Public Knowledge complaints. "The Xfinity On Demand content that we will deliver to Xbox 360 will not travel over the public Internet and is delivered in much the same way as we deliver your video service to your set-top box. Your Xbox 360 essentially acts as an additional cable box for your existing cable service via the Xbox 360. As a result, our data caps do not apply."
"If Comcast can simply label a broadband Internet service a â€˜cable' service and thus exempt it from oversight, as it has tried to do here, then all of the Commission's attempts to protect the Open Internet, promote competitive online video service, and enhance consumer choice will be for nothing," said Public Knowledge in the petition.
It takes issue with Comcast's argument that its Xfinity app is a cable offering, saying that is undermined by the requirement that subs have Internet service to access it.
Public Knowledge wants the FCC to force Comcast to stop exempting Xfinity App from data caps and review its entire data-usage regime, something for which it has been pushing for some time. In May, Comcast effectively lifted its data caps in May, saying it was switching to a more flexlible-use model. "We have consistently treated all video carried over the public Internet the same whether it comes from our sites or anywhere else on the public Internet," Comcast reiterated Wednesday. "XfinityTV.com, nbc.com, Hulu, Netflix or YouTube, and every other Internet video site (whether our site or a third-party site) is treated, and will continue to be treated, exactly the same. That's consistent with FCC rules and consistent with what we have always done and continue to do. "