Sen. Franken to FCC, DOJ: Do Better Job of Enforcing Comcast/NBCU Conditions

Sen. Al Franken (D-Minn.) says the government has been too lax in its enforcement of Comcast/NBCU deal conditions -- he opposed the deal -- and claims that only emboldens the nation's largest cable operator to try and delay resolution of disputes.

Comcast responds that it is complying with conditions, even exceeding them, but "respectfully disagrees" with how they are being interpreted in the case of Bloomberg TV and news neighborhooding.

Franken, long a Comcast/NBCU and general media concentration critic, wrote the Federal Communications Commission and Justice Department Monday on May 7 to say that the government needs to better monitor and enforce the conditions it applied in the Comcast/NBCU deal. Those include public interest conditions from the FCC and competition-related conditions, including network neutrality, levied by DOJ in its settlement with the companies.

He also took the opportunity to say that given what he argues has been "Comcast's questionable compliance record to date and its penchant for challenging all conditions-related complaints," he doubts the FCC can impose sufficient behavioral conditions on Comcast's and other cable operators' proposed sale of spectrum to Verizon to prevent future competitive harms, a deal he has also been critical of.

Franken praised the FCC for last week's decision that Comcast had violated a no-neighborhooding condition in regards to the channel placement of Bloomberg TV on some of its systems. But Franken said it was "unacceptable" that it had taken over 10 months to make that decision.

"The longer the Commission waits to resolve program carriage disputes like this one," he said in letters to the FCC and DOJ, "as well as the pending dispute involving the Tennis Channel, the more it signals to independent companies that they cannot rely on the Commission to provide timely relief from discriminatory conduct."

Franken also pointed to a complaint to the FCC from over-the-top provider Project Concord last fall seeking enforcement of access conditions, saying that Sony had said it might not get into the TV business for fear Comcast might try to slow its video competition. He also took aim at the cable operator for its decision to exempt Xfinity content delivered over Xbox from its data caps, though he stopped short of saying that violated network neutrality conditions in the NBCU deal.

"I recognize that Comcast contends they are not in violation of this condition because video content is being delivered over Comcast's private IP network, rather than the Internet," he said. "I am not yet prepared to say that this appears to be a technical violation of the Commission's merger order or DOJ's final judgment," though he did urge the commission to investigate the Xbox issue.

Sena Fitzmaurice, VP, government communications, Comcast, said that both it and NBCU are "fully complying" with, and in fact exceeding, the deal orders, as it outlined in its recent Annual Compliance Report to the FCC.

"The one complaint by an outside party regarding the NBCUniversal FCC Order has been brought by another very large media company, Bloomberg LLP -- and it has been preliminarily adjudicated," she said. "We respectfully disagree with the Media Bureau's interpretation [and] believe the full Commission will agree on appeal to enforce conditions as they were originally negotiated and intended."

As for the Xbox flap, "Comcast's On Demand service, a service used hundreds of millions of times by our customers every month for the past several years, is indisputably part of our Title VI cable service which is not subject to the FCC's Open Internet Rules - and we are not aware of anyone who has taken a contrary view.

"When Comcast streams its own services over the open Internet (including or, such streaming is subject to Comcast's broadband Internet data usage standards. But the Xfinity app for the Xbox does not stream content over the open Internet and is also part of our Title VI cable service. As such, it is not subject to the FCC's open Internet rules."

The FCC carved out private networks from its open Internet access rules as part of a compromise on those rules that secured the general acquiescence, if not endorsement, of major cable operators glad not to face the alternative proposal of the FCC redefining Internet access as a Title II service subject to mandatory access rules.

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.