Wow, what took you so long? Comcast bends net neutrality rules

It's not the internet, stupid! It's our managed network

Comcast has started bending the intent behind net neutrality rules with a new service, just as those rules are heading to a DC court this week.

The telco giant has announced a "Stream TV" service that is available only to its Xfinity internet customers. It will cost $15 a month and it comprises a small group of TV channels from its normal cable package, but notes that the service will not impact people's internet data caps – a practice known as "zero rating."

The service has net neutrality advocates up in arms, however, for two reasons. First, the inclusion of "zero rating" services – as T-Mobile recently and controversially has done with its Binge On service, where it excludes specific video services from its data caps – means that network operators are carving out ways to charge content providers in future.

But second, the Stream TV FAQ section contains some interesting semantics that show that the company is determined to implement the very market differentiation that net neutrality rules were designed to prevent.

In response to the self-asked question: "Will Stream TV use data from my Xfinity Internet monthly data usage allowance?," Comcast responds:

No, Stream TV is a cable streaming service delivered over Comcast's cable system, not over the Internet. Therefore, Stream TV data usage will not be counted towards your Xfinity Internet monthly data usage.

Under the FCC's rules, it is debatable whether this is allowed: a company selling internet access with a data cap decides that, for a small monthly fee, the data cap won't apply if you use specific services.

The fear is that telcos – and mobile phone operators – will use control of their networks to make certain "preferred" services more attractive to their millions of customers, and then turn around to content providers and demand payment from them to be allowed on the preferred list. It's the scenario that the Open Internet Order was designed to tackle (among other things).

When is the internet not the internet?

Comcast is obviously aware that this service – and its accompanying money-making opportunities – may fall foul of the FCC and so it is clearly preparing to argue that the net neutrality rules don't apply to it because it isn't using the internet per se, but its own managed network. That you have to be a customer of its internet service to sign up to the service is just by-the-by.

It's not entirely clear how anyone will be able to tell what service is provided over the internet and what is provided over Comcast's network, since they come through the exact same wire. But Comcast's lawyers are no doubt looking forward to arguing that point for many years in the courts.

Of course it is also worth noting that for years, Comcast has been "discounting" its internet access package if people also sign up to its cable service, to the extent that it can work out cheaper to have cable and not use it than pay "full price" for internet access.

Meanwhile, what the rules will come down to and how strongly they will be applied is also causing AT&T similar concerns.

Politico reports that the company's senior VP Robert Quinn said at the Telecom Symposium on Tuesday that the company didn't feel it could provide the same service as T-Mobile's Binge On plan because it wasn't sure how the FCC would react.

He went on to note that the company has "had to shelve a bunch of stuff because we've got to wait and see," saying that there have been weekly calls with AT&T's business units and their lawyers to "figure out whether that stuff we've invested in ... would be a violation of the order."

To court!

In other words, exactly what net neutrality advocates feared would happen was already in the wings, and now the telcos are trying to figure out how to make those new services – which rely on the telco being able to control or restrict what data is allowed to flow over its network – work regardless.

All of which makes the hearing this Friday in Washington DC all the more relevant. It will be the first oral hearing of the case brought against the FCC by the big telcos over its net neutrality rules.

As you may recall, the last set of rules over the internet was thrown out by the exact same court after Verizon challenged them. Although the FCC spent several months longer than expected checking that its plan would hold up to an inevitable legal challenge, it is far from certain that the court will agree to them.

If they do hold, it looks almost certain that the FCC will quickly be back in court trying to enforce them – and semantic variations on them. ®

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