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 FCC and Justice Department Monday (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
"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 XfinityTV.com or nbc.com), 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.