The FCC Must Prevent Comcast from Discriminating Against Online Video Competititors

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Today, Public Knowledge asked the FCC to address Comcast’s decision to exempt its own online video service from the data caps that it imposes on its subscribers.  Specifically, Public Knowledge filed a petition calling on the FCC to enforce the conditions that it imposed on the Comcast/NBC-Universal merger.

In evaluating the merger, both the FCC and the Department of Justice recognized that a combined Comcast/NBC-Universal would have an enhanced motive to discriminate against unaffiliated online video services that might compete with Comcast’s pay-TV cable service.  Because Comcast controls their subscribers’ connection to the internet, and subscribers could use that very connection to access video services  not controlled by Comcast, Comcast has the ability to manipulate those internet connections in a way that would disadvantage video competitors.

Earlier this year, Comcast announced that it was doing just that.  While every other internet video service available on Xbox 360 and TiVo count against Comcast’s data cap, Comcast’s own Xfinity video app would be exempted.  With that decision, Comcast leveraged its control over consumers’ internet connections to benefit its own online video offering and violated the conditions imposed upon the merger.

Specifically, Comcast violated the FCC's condition G.1.a.:

“Neither Comcast nor C-NBCU shall engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or prevent any MVPD or OVD from providing Video Programming online to subscribers or customers.”

Comcast’s practice of counting all unaffiliated content against a subscriber’s data cap significantly hinders the ability of other online video providers to reach consumers.  This practice is unfair because Comcast exempts itself from the same limitations.

Comcast’s decision is merely the most visible in a developing pattern of ISPs using data caps to exert control over what subscribers can and cannot do online.  This larger issue is why Public Knowledge has repeatedly asked the FCC to ask simple questions, and for ISPs to answer simple questions, about how data caps are developed, evaluated, and evolved over time.

In the meantime, it is critical that the FCC enforce the conditions it imposed upon the combined Comcast/NBC-Universal.  As both the FCC and the Department of Justice understood after reviewing confidential internal documents related to the merger, the combination of the nation’s largest ISP with one of the nation’s largest content owners increased the likelihood of manipulation.  The FCC recognized that when it imposed the conditions, and it is time for the FCC to prevent more damage by enforcing those conditions.

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