We've all heard how Comcast is exempting its own IP video traffic from its bandwidth caps. But by doing so, it's not just the FCC's Net Neutrality rules they are taking on, but the terms of the consent decree that allowed them to buy NBC Universal just last year. And as some others noted at the time, it's actually in there rather explicitly.
From Section V. Prohibited Conduct, in section G. Practices Concerning Comcast's Internet Facilities:
- Comcast . . . in the provision of Internet Access Service, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s Internet Access Service.
- If Comcast offers consumers Internet Access Service under a package that includes caps . . . it shall not measure, count, or otherwise treat Defendants’ [i.e. Comcast, GE and NBCU] affiliated network traffic differently from unaffiliated network traffic. Comcast shall not prioritize Defendants’ Video Programming or other content over other Persons’ Video Programming or other content.
Comcast's argument to the net neutrality crowd is that their Xfinity TV service isn't part of their Internet Access Service, as they travel on different pipes. But here Comcast seems to have agreed not to 'measure, count, or treat' network traffic differently when it comes to caps, and different pipes or not it's still network traffic. Sending their own traffic down a separate pipe that doesn't get counted seems impossible to reconcile with this language. It's still network traffic, and it's quite explicitly being treated and counted differently.
To put it another way, this restriction on counting differently with a cap would have no meaning at all if one could bypass it by doing what Comcast says it is doing. Clearly the DOJ meant this clause to have meaning, so I doubt the agency is particularly pleased to have had it bypassed so brazenly.
Now, I know that reneging on promises made to the FCC and DOJ for the purposes of getting M&A approved isn't exactly uncommon in the telecommunications industry. But generally one waits a few years and just quietly forgets to follow up while sending the regulators gourmet donuts or something. This is a tad more public, yes?
Perhaps it's also more enforceable, since few seem to think that the FCC's Net Neutrality rules will hold up in court for long. After all, Comcast has another deal in front of regulators right now - the sale of AWS spectrum to Verizon. Surely the DOJ would be hesitant to approve that deal with conditions if the conditions it added so recently have been ignored or bypassed with such ease.
It's not just the upstart Netflix anymore. The Japanese giant Sony says Comcast's capping maneuvers are hindering their own big video plans, according to ArsTechnica yesterday.
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