Comcast Obvious Target for Challenge to Zero-Rating Services, Experts Say
Public Knowledge's complaint against Comcast's Stream TV streaming video service and data caps is no surprise, even though other companies have their own zero-rating products that have raised red flags, legal experts said in Thursday interviews. Comcast is a far more obvious target than T-Mobile's Binge On, "which can build a case we need to engage in zero rating in order to compete against the big dogs," Boston College Law School associate professor Daniel Lyons said. Stream TV's being "an obvious net neutrality violation ... makes it an obvious target," said Barbara van Schewick, director of Stanford Law School’s Center for Internet and Society.
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One net neutrality expert said targeting Comcast also allows opponents to challenge Stream TV as potentially violating conditions on Comcast's buy of NBCUniversal, as PK has done. That is since the FCC might be unwilling to take immediate action solely on a net neutrality-based complaint because the agency's open Internet rules are being appealed. Comcast said PK is wrong, not the cable ISP.
The FCC will surely follow through on the PK complaint because it seemingly is a good opportunity to address the zero-rating issues the agency teed up in its net neutrality rulemaking and said it was interested in addressing further, Lyons said: "I don't think they're going to duck the issue.”
PK urged the FCC to "stop Comcast’s discriminatory behavior by requiring that it eliminate its data caps to the extent they discourage the consumption of online video or cease discriminatorily zero-rating Stream TV," in its petition posted Thursday in docket 10-56. But PK "doesn’t have the facts straight," Comcast said in a statement. "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." Stream TV already is a subject of interest at the FCC, with the agency having asked Comcast in December for a meeting about the product and its potential skirting of net neutrality provisions (see 1512170030).
PK pointed to the conditions put on Comcast in its buy of NBCUniversal, and the FCC's open Internet rules, as justification for the agency to take action. "Whether or not Stream TV is [a multichannel video programming distributor (MVPD)] service, and whether or not it is a specialized service or some other 'non-broadband' service, and whether or not it is offered over the 'public Internet,' Comcast’s practice of zero-rating Stream TV is illegal," PK said. It said ISPs are allowed to offer specialized services, but Comcast is forbidden from offering a specialized service that is all or mostly Comcast-affiliated content.
PK also said despite Comcast arguments that Stream TV isn't transported via the Internet, it "is 'network traffic' for the purpose of this restriction, no different than traffic from video services like YouTube and Netflix. Customers access Stream TV via their broadband Internet access subscriptions. It is not available on a standalone basis without a broadband connection, as MVPD services such as cable TV are. Stream TV data travels over the same path as other broadband data, from Comcast’s network, and through the cable modem in customers’ homes." And it pointed to issues the FCC has said guide its Internet application rule -- such as end-user control, competitive effects and application agnosticism -- and said Stream TV violates all of them.
“Customers do not access Stream TV through their broadband service. Period," Comcast said. "Public Knowledge saying so over and over does not make it so. The bottom line is that Stream TV doesn’t violate any FCC or DOJ requirement from our NBCUniversal deal, just as the complaints they filed over three years ago which the FCC declined to take action on did not.”
Comcast also said Stream TV "is delivered as a cable service on the same private, managed network that delivers all our other cable television services in the home, and is subject to all the regulations that apply to our other cable TV services such as franchise fees, [public, education and government] requirements, closed-captioning, and emergency alerts. Those regulations don’t apply to content that goes over the Internet, just another demonstration how different Stream TV is than Internet delivered services.”
If the FCC does act on the complaint, one part of the case that likely will get much of the attention is defining the line between a traditional cable service and an online video application, van Schewick said. Implications of Stream TV stretch beyond net neutrality into FCC policy on cable TV, because the agency has pinned its hopes on the over-the-top market to provide competition for MVPDs, she said. Cable operators being able to use their control over Internet infrastructure to their competitive advantage in the OTT market "destroys your only hope for lower prices in traditional cable services," she said.