When Comcast first unveiled its plans to not count XfinityTV traffic towards bandwidth caps, it said that this was permissible since it is a service separate from its high speed access, with the Xbox acting as another set-top box and with traffic travelling over its own separate IP network. But the closer the scrutiny gets, the less separate it all looks.
Indeed, several sources out there are directly challenging this now, suggesting that all Comcast has really implemented is QoS. In recent articles, both Dan Rayburn and Brian Berg have taken a detailed look at the actual data being transferred to find out Comcast's implementation. Bits from Xfinity and bits from Netflix, MLB, or other over-the-top sources apparently differ only in their QoS tag. The former are high priority CS5, and the latter are low priority CS1. Others from deeper in the industry have told me similar details offline.
In other words, Comcast's service is separate from its Internet Access service only in a virtual sense. There is no separate, parallel pipe when it comes to the last mile, the bits are mingled - just tagged differently. Comcast may count it differently, but it comes from the same pool of bandwidth. Maybe further upstream there is actual separation, but this is true for all traffic at some point - that's the content provider side of things. Nobody cares about traffic caps anywhere except where the bottleneck is, and that's where the traffic here is mingled and separated only by a QoS tag.
This doesn't mean that Comcast is slowing anyone down or delivering traffic differently - you certainly *can* do that with QoS tags but from what I hear there is no evidence of that. All they seem to be doing with the QoS tags is using them to counting the bits differently, as in they're not counting the XfinityTV ones against the cap.
Yet that's precisely what the NBCU consent decree says they can't do, so either they're violating the order or they're rubbing the DOJ's nose in a loophole they had ready before the ink was dry.
As GigaOm's Stacey Higginbotham characterized a letter from Senator Franken, the DOJ and FCC seem to be letting Comcast walk all over them. But whether the lawyers have threaded a way through the needle of the letter of the law is irrelevant in the grand scheme of things. If it is possible to simply slap a QoS tag on your own traffic and call it a new service separate from the Internet Access service, then the entire concept of net neutrality is already dead and we should just bury now it before it starts to attract flies.
Some would argue that's how it should be. In fact, I myself am not sold on pure net neutrality, and have wondered openly if the 800-number model that AT&T and Verizon are said to be readying might offer something to the discussion if implemented in an open and accessible manner. Net neutrality as demanded by the most strident proponents is a political solution to an economic problem (that's not a good thing).
But let's at least not play pretend. Net neutrality with arbitrary, virtual self-exceptions is just a bit Orwellian. (All bits are treated neutrally, just some more neutrally than others...)
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