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Is Net Neutrality Being Misrepresented?

Larry Downes: Media activists are distorting net neutrality regarding Comcast’s Xbox plan

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Net neutrality is in the spotlight once again after Comcast’s recent announcement about its Xfinity video streaming service. The cable giant said that it would not count the television programming users access through Microsoft’s Xbox against their 250-gigabyte monthly data cap.

On a FAQs page Comcast set up for the use of Xfinity on the Xbox 360, it states:

Comcast Xfinity FAQs

While the announcement is good news for many consumers, some media activists are raising concerns over the implications of the move. Public advocacy groups including Public Knowledge and Free Press fear that it threatens the Open Internet and that it would give Comcast an unfair advantage over other video streaming services.

Does Comcast’s plan put net neutrality at risk? Please share your thoughts.

Tim Wu, who first coined the term net neutrality, is also against Comcast’s announcement and spoke out about it in a recent interview with Marketplace Tech Report. According to him, this move will be detrimental to services such as Netflix.

“The whole idea of net neutrality is to try and guarantee that similar content gets treated similarly,” Wu said to Marketplace Tech Report, “and if you think about it for a second, if something doesn’t count against your cap, obviously it’s getting a preferential treatment. You’re more likely to stream that instead of someone else’s.”

If you remember, the FCC passed the Open Internet Order in late 2010, which is a set of rules intended to preserve net neutrality. At that time, many of these same public interest groups spoke out about the “potential loopholes” that could result if Internet service providers tried to get around the “spirit of the rules.”

These groups and Wu are now saying that Comcast’s latest move does this. In a post on Public Knowledge’s Policy Blog, staff attorney Michael Weinberg wrote:

“This decision is a perfect example of the behavior that net neutrality rules were designed to prevent AND raised additional questions about the true motivation behind data caps… Today’s announcement turns these concerns from theoretical to concrete. Comcast has transformed the competitive online video marketplace into a two-tiered world, where its own online video doesn’t have to play by the same rules as everyone else’s. This is pretty bad–the internet should reward the best services, not the ones with the right corporate owners.”

Larry Downes, Senior Adjunct Fellow at Tech Freedom Not everyone, however, believes this is true. WebProNews spoke with Larry Downes, a senior adjunct fellow at Tech Freedom, who told us that Comcast is not violating the FCC’s rules from both a legal and technical standpoint.

As he explained, all cable programming is exempt from the rules because it is already heavily regulated by the FCC and on the state and local level.

“Since these services are already highly regulated, the FCC decided when it passed its Open Internet rules to exempt from them any programming that happens to come down the cable that isn’t actually Internet content,” he said.

“From a strictly legal sense, the Open Internet rules explicitly exempt any television programming from the rules, so no matter what Comcast is doing here, it’s not gonna violate the letter of the net neutrality rules.”

Downes also told us the claims based on the “spirit of the rules” were also overblown. According to him, television programming, even though it uses the same “last mile” that Internet services do, does not apply to the rules.

“From a technical standpoint, it’s very different in terms of how that data stream is handled [and] how it’s compressed,” he said.

In a piece Downes wrote on CNET called “No, Comcast Is Not Breaking the Internet…Again,” he said:

“If the Xbox service unreasonably discriminates against over-the-top services, then all cable TV unfairly competes with Internet video. That, however, is not the view of the FCC’s Open Internet rules, nor its extensive regulations of cable TV providers. Nor should it be.”

It appears that a large part of the concern that media activists have against Comcast’s plan is based on the issue of capping data. Public Knowledge, for example, has filed multiple requests with the FCC asking more information on data caps.

Downes told us that while he would prefer not to have data caps, he understands why some cable companies are implementing them. He explained to us that the cable infrastructure wasn’t built for the Internet or digital programming. Although cable companies have already invested billions of dollars in order to handle digital services, he said they currently have to make do with what they have until more efficient systems are established.

He, however, pointed out that the claims that equate these issues with net neutrality risks are wrong.

“The advocates believe any new service that is not really clear from a competitor’s standpoint… they kind of like to just paste it with the phrase net neutrality,” said Downes.

“It’s extremely misleading and very unhelpful to try to figure out what is best for customers if we just kind of paste everything with net neutrality,” he added.

According to him, this misrepresentation of net neutrality takes the focus off of finding the real issues. If the programs are given the chance to work, he believes the market will determine if any anticompetitive concerns exist.

In a statement released to WebProNews regarding the opposition to its new policy, Comcast told us:

“Our treatment of the Xfinity services being delivered through an Xbox is wholly consistent with our commitment to maintaining an open Internet and with the FCC’s Open Internet Order.  Our standard is clear. If we are delivering a traditional cable service on a Title VI basis, where the customer is already paying us for that service, and all we are doing is delivering it in IP over our managed network through a different device that effectively serves as an additional outlet in the house, then we don’t believe it should count against their data usage threshold.  There is no ‘discrimination’ here – remember, we do count customer use of XfinityTV.com, the Xfinity TV app and nbc.com against data usage threshold standards (because that’s not a Title VI service being delivered only in the home).”

As for what happens next, Public Knowledge is currently examining Comcast’s new policy to see if it wants to file a formal complaint with the FCC.

Is the future of net neutrality in danger, or are the recent claims distorting the true meaning behind keeping the Internet open? We’d love to hear your thoughts in the comments.

Is Net Neutrality Being Misrepresented?


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