Big Test for FCC’s Open Internet Order

WASHINGTON — Public Knowledge’s complaint at the Federal Communications Commission over Comcast’s exclusion of its Stream TV service from customers’ data usage metering could become the first test of the agency’s case-by-case approach to potentially anticompetitive conduct under the agency’s Open Internet order.

The public-interest group said Stream TV — an IP-delivered skinny package of TV programming for broadband-only customers — conflicts with the FCC’s new rules and violates a merger commitment Comcast made in acquiring NBCUniversal.

Public Knowledge said Comcast is using discriminatory billing practices that disadvantage competing online video services by treating Stream TV (currently available in the Boston and Chicago areas) differently than unaffiliated traffic.

“When Comcast bought NBCUniversal, both the FCC and Department of Justice recognized that Comcast could take steps to unfairly disadvantage online video,” the complaint states. “Among other things, both agencies prohibited Comcast from excluding its own services from data caps or metering, and required it to count tra_ c from competing online video services the same as its own.”

The FCC’s Open Internet rules contain a general conduct standard that addresses anticompetitive behavior on a case-by-case basis. There is no bright-line rule against sponsored-data and zero-rating plans.

The agency is independently collecting data from Comcast and others about sponsored-data plans to help figure out how to proceed with such complaints.

Comcast, though, said Public Knowledge didn’t have the facts straight. “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. Customers do not access Stream TV through their broadband service. Period. Public Knowledge saying so over and over does not make it so.”

FCC chairman Tom Wheeler, during a Senate Commerce Committee oversight hearing on March 2, said the agency avoided creating a bright-line rule against sponsored-data plans because a case could be made for beneficial as well as anti-competitive outcomes. The FCC wanted to look at each case individually, he said.

Wheeler told Sen. Brian Schatz (D-Hawaii) the FCC has been collecting information and developing the “data points” necessary to be able to conclude which plans increase choice and lower costs and which are used as a tool against competition. He said the staff was “far down the path” on coming up with those data points, but added it was a “heavy lift.”

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.