Bryan Berg, the Founder and CTO of MixMedia, has kicked up a controversy over whether Comcast is prioritizing its broadband traffic in violation of a consent decree the cable giant signed to gain the FCC's blessing over its merger with NBC-Universal as well as in violation of the FCC's Open Internet or net neutrality rules. Berg engaged in a series of experiments with a new Comcast app for the XBox which allows users to watch the operator's Xfinity cable service live and streamed on the device.
His conclusion: even though Xfinity is using the same RF spectrum that Comcast's Internet service uses, Comcast is using differentiated services code point, or DSCP, bits, at the edge to ensure that the Xbox service gains priority over other traffic. Berg set out to intentionally exceed his Comcast Internet service download cap to see what happens to his Netflix-to-the-PC traffic versus his Xfinity-to-the-Xbox traffic. Sure enough, when congestion was high, Netflix slowed down but Xfinity did not. Berg concluded that the DSCP codes found in the Xfinity bits are signals to "prioritize" that traffic over competing traffic.
Comcast has denied Berg's accusations, both to Stacey Higginbotham at GigaOm and on the company's own blog. Chief technologist Tony Werner wrote that "we provision a separate, additional bandwidth flow into the home for the use of this service — above and beyond, and distinct from, the bandwidth a customer has for his or her regular Internet access service. Our Xfinity TV content is provided through the Xbox over that separate service flow, and therefore does not use a customer's provisioned Internet service capacity."
Therefore, Xfinity-to-the-Xbox is not an Internet service at all but a separate and distinct transmission that is nothing more than regular cable service, only routed to the Xbox ,which acts much like a cable set-top box. This is nothing but "our traditional cable television service, which is governed by something known as Title VI [italics added] of the Communications Act, and we provide the service in compliance with applicable FCC rules."
Title VI of the Communications Act is a crucial fact in this controversy. Title VI governs the regulation of traditional cable services, which do not require non-discrimination in the way that the Open Internet rules or consent decree provisions do. (The jurisdictional issues surrounding the net neutrality regulations are themselves controversial and complex. See this CRS paper for an excellent summary of the byzantine jurisdictional routes that the net neutrality regs have taken.)
The issue then isn't whether Comcast is in compliance with the Open Internet or consent decree requirements. The issue is whether multichannel video-over-IP is a traditional cable service under Title VI. Comcast says it is.
Video-over-IP delivered to the Xbox is exactly the same thing as regular cable service delivery, which is video-over-QAM (quadrature amplitude modulation), Werner said. It doesn't go over the public Internet, like Netflix or Hulu. It is separate and apart from Internet content and it doesn't affect the quality of promised broadband service.
When Comcast first announced its streamed version of Xfinity, the company squarely took on the issue of Title VI. In a statement, it said:
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)."The obscure and legalistic Title VI is the key to this debate. The question is not whether Comcast engaged in discrimination but whether Xfinity-to-the-Xbox is a cable service.