PK Slams Comcast in Push for Data Cap Inquiry

Public Knowledge Monday continued to press the FCC to look into usage caps.

After using reports of the new Apple iPad consuming large chunks of data plans to call for investigations into wireless data caps, Public Knowledge followed up with a jab to Comcast's midsection Monday over its wired pricing, and threatened the roundhouse punch of network neutrality to make its point that the FCC should get serious about investigating data limits.

Public Knowledge President Gigi Sohn was responding to reports that Comcast was not counting the Xfinity video service it offers through Xbox against its broadband data caps, but was doing so for other video services via Xbox.

"The reports that Comcast is offering a video product through the Xbox 360 without the data counting toward the customer's data cap raises questions not only of the justification for the caps but, more importantly, of the survival of an open Internet," she said. "This type of arrangement is exactly the type of situation the Federal Communications Commission's  rules on the open Internet were designed to prevent -- that an Internet Service Provider juggles the rules to give itself an advantage over a competitor. This is nothing less than a wake-up call to the Commission to show it is serious about protecting the open Internet.  It also shows, once again, that the Commission should take the first steps toward understanding data caps."

Comcast says that the Xfinity service does not violate FCC rules.

"Comcast is committed to an open Internet and has pledged to abide by the FCC's Open Internet rules -- and our policies with respect to XfinityTV and the Xbox 360 fully comply with those rules and our commitments," the company said in a statement. "Any XfinityTV service that travels over the public Internet, including and our Xfinity TV app on mobile devices, counts toward our data usage threshold, as they always have. The Xfinity On Demand content that we will deliver to Xbox 360 will not travel over the public Internet and is delivered in much the same way as we deliver your video service to your set-top box. Your Xbox 360 essentially acts as an additional cable box for your existing cable service via the Xbox 360. As a result, our data caps do not apply."

Asked whether PK would file a complaint at the FCC, a PK spokesman said he was not sure. The FCC's network neutrality rules went into effect last fall, but no complaints of violations have apparently ensued (an FCC spokesman was checking at press time), though the FCC has been sued over the rules by Verizon and MetroPCS.

Free Press Policy Director Matt Wood joined Public Knowledge in criticizing the Comcast practice, but suggested that, technically, there might not be any grounds for complaint.

The FCC's codified and expanded network neutrality rules do not apply to private networks, something Free Press criticized at the time.

"Comcast tries to justify preferred treatment for its own video on the Xbox 360 by claiming that the content is delivered over a private IP network rather than the public Internet. But not counting this video against a Comcast customer's monthly data limit gives the Comcast product an unfair advantage against other Internet video services," said Wood. "Unfortunately, such anti-competitive tricks may be allowed by loopholes in the FCC's Open Internet rules, proving once again that the FCC failed to deliver on the promise of real Net Neutrality."

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.