Minnesota Senator Al Franken (D) says that Comcast is thumbing its nose at net neutrality rules by offering an exemption to data caps when it comes to its Xfinity video services on Xbox Live. He feels so strongly about it that he has sent a letter to the Federal Communications Commission (FCC) and the Department of Justice (DOJ) asking both agencies to investigate the company. At the heart of Franken's complaint is that the content that is streamed directly to the Xbox console will not be counted against subscribers' 250GB monthly data cap.
This practice has angered other streaming services such as Netflix who see Comcast's special exemption rule for its own video services as the company's way of making its products more attractive. After all, why wouldn't a subscriber use a service that doesn't take away from their monthly data cap?
Of course, some of the blame needs to go back to the FCC who allowed the practice of data capping as a compromise with the telecom industry when it wrote its net neutrality rules. The DOJ did not listen to advocacy groups who predicted that a Comcast – NBC Universal merger would lead to Comcast giving its video content preferential treatment over other similar services.
In his letter, Franken said he was dismayed to learn that Sony Entertainment Network was delaying its Internet TV service because it was afraid that Comcast would impose data caps on it.
"Even if this does not amount to a technical violation, it certainly raises serious questions about how Comcast will favor its own content and services to the detriment of its competitors," wrote Franken in his letter. "Comcast's actions will almost certainly drive consumers to Comcast's Xfinity Streampix, rather than other Internet video streaming services, which I fear will thwart your agencies' efforts to create an open and level playing field for current and future competitors of Comcast."
He goes on to urge the FCC and DOJ to investigate these allegations and to impose significant penalties if violations are found.
Sena Fitzmaurice, vice president of government communications for Comcast, argued that since the service doesn't go over "the public Internet," it is not violating net neutrality rules:
"Comcast and NBCUniversal are fully complying with (indeed exceeding) the transaction orders as detailed in our recently filed Annual Compliance Report," he claims in his response. "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 XfinityTV.com or nbc.com), such streaming is subject to Comcast's broadband Internet data usage standards. But the Xfinity app for the X-Box 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."