Statutory Definitions at Heart of Comcast/PK Stream TV Fight
Public Knowledge and Comcast are 180 degrees apart on whether Stream TV is a cable service or an over-the-top Internet service. Making that determination could be challenging given the hazy distinction between the two, legal experts told us. The statutes defining the two, and their differences, are vague enough that they could be read to indicate Comcast is in violation or the opposite, said Adam Candeub, director-Intellectual Property, Information & Communications Law Program at Michigan State University.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
Comcast in an opposition filed Tuesday in docket 10-56 said the entire thrust of PK's complaint that Stream TV violates conditions of Comcast's purchase of NBCUniversal (see 1603030029) rests on a faulty premise -- that the streaming video service is an OTT offering rather than a Title VI cable service.
Since customers can't watch Stream TV via their broadband subscriptions, Stream TV is like its other cable services, Comcast argued: "[Stream is] delivered to customers' homes over Comcast's private, managed network over Comcast's cable systems" and thus abides with all the regulations that cover Title VI cable services. Similarly, Comcast said, the streaming service doesn't violate any transaction conditions relating to how it treats affiliated and unaffiliated network traffic because such conditions apply only to network traffic delivered over the Internet.
The regulatory distinctions between broadband access services and video delivered via an Internet connection "do not evaporate" because Stream travels via IP instead of analog or digital quadrature amplitude modulation technology or is delivered via a modem or gateway instead of a set-top box, the cable company said. That it has an unmetered cable service alongside broadband Internet access subject to usage allowances "cannot be an appropriate basis for scrutiny" under net neutrality rules, Comcast said. It also argued that other online video distribution services have benefited from Comcast's investments in its broadband network.
Comcast's arguments about Stream TV traveling what it calls a "separate service flow" of a distinct, closed IP path that uses dedicated bandwidth seem to indicate the company thinks a separate service flow exempts it from any such prohibitions under deal conditions or the net neutrality order -- an interpretation the FCC likely wouldn't share, PK senior staff attorney John Bergmayer said. That Stream TV is not available stand-alone "is a pretty significant weakness," he said.
While the conditions and net neutrality language are fairly parallel, the Comcast complaint was deliberately filed as a violation of the deal conditions in part because takeovers too often come with conditions that seemingly get ignored and also because the condition goes more to the heart of the issue, Bergmayer said: "It's a pretty clear prohibition [though] the open Internet avenue remains open."
Comcast may legally be in the right at least when it comes to being in compliance with net neutrality rules, though Stream TV raises issues of consumer harm because it puts non-Comcast services at a competitive disadvantage, said Aleksandr Yankelevich, research assistant professor at the Quello Center for Telecommunication Management and Law at Michigan State University. "It's a matter of letter of the law vs. spirit of the law," Yankelevich said. "My gut here is even that if Comcast is legally within their rights, it's unclear the welfare implications of having zero-rating-type services is beneficial [to consumers] in the context of net neutrality."
Ultimately, the FCC will have to sort out whether streaming video like Stream TV should be considered an Internet service -- which would make Stream TV in violation -- or a cable service, Candeub said. Whichever way the agency rules likely will be appealed, he said.