Sen. Al Franken today penned a letter to the FCC and Department of Justice, arguing that Comcast's decision not to apply data caps to Xbox streaming, among other things, runs afoul of the conditions imposed on the cable provider's merger with NBC Universal.
In the year since the Comcast-NBCU deal was approved, a number of complaints have been filed with the FCC, but the agency has failed to take timely action, Franken wrote.
"I am concerned that if the Commission fails to address conditions disputes in a timely manner, it will only incentivize Comcast to challenge future conditions and delay resolution of disputes through a protracted complaint process," the Minnesota Democrat said.
One of the issues Franken mentioned in his five-page letter was Comcast's decision not to impose its 250GB residential data cap on those who stream Xfinity TV content via the Xbox 360. The move recently prompted Netflix CEO Reed Hastings to accuse Comcast of violating the FCC's net neutrality rules.
The conditions of the NBCU merger, Franken said, included the requirement that Comcast not prioritize its own video programming over that of a competitor. "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, but I urge both of your agencies to investigate this conduct immediately," he wrote.
If anything, the move "raises serious questions about how Comcast will favor its own content and services to the detriment of its competitors," Franken said.
The announcement has reportedly prompted Sony to reconsider launching an Internet TV service over fear of Comcast data caps, Franken said.
In a statement, a Comcast spokeswoman said its Xfinity app for Xbox "does not stream content over the open Internet [and] is not subject to the FCC's open Internet rules." Streaming over the open Internet, like Xfinitytv.com or nbc.com, "is subject to Comcast's broadband Internet data usage standards," she said.
"Comcast and NBCUniversal are fully complying with (indeed exceeding) the transaction orders as detailed in our recently filed Annual Compliance Report," the Comcast spokeswoman continued.
Franken, meanwhile also mentioned the recent dispute between the cable provider and Bloomberg, which argued that Comcast placed the news channel away from other news channels on the cable lineup, in violation of the Comcast deal. The FCC recently ruled that Comcast must put Bloomberg near similar channels.
Franken, however, said the FCC took too long to issue a ruling; more than 10 months. "I have heard from several independent channels that they fear retaliation if they file a complaint against Comcast," Franken wrote. If they have to wait almost a year to get a response, "the more it signals to independent companies that they cannot rely on the Commission to provide timely relief from discriminatory conduct."
On the Bloomberg issue, the Comcast spokeswoman said the company "respectfully disagree[s] with the Media Bureau's interpretation," and plans to appeal.
Finally, Franken asked the DOJ and FCC to take the Comcast complaints into account when it reviews Verizon's pending purchase of $3.6 billion worth of spectrum from a group of cable companies that includes Comcast. The deal includes an agreement for the cable companies to bundle Verizon Wireless service for special triple- or quad-play services.
"I am particularly concerned that this type of coordination and collaboration will only further harm consumers and will throttle competition in the online video space, and I urge you to closely examine these issues in the course of your investigations," Franken concluded.
For more from Chloe, follow her on Twitter @ChloeAlbanesius.
