Growing questions are being raised about whether Comcast is violating FCC and Department of Justice policies that prohibit the cable company from prioritizing its own content traffic over that of its competitors.

Comcast’s Xfinity Xbox app offers Comcast customers access to Xfinity online video content without eating into their monthly 250GB Internet usage allowance. Netflix has called that exemption unfair, because its content does count against Comcast’s usage cap. New evidence now suggests Comcast may also be prioritizing the delivery of its Xfinity content over other broadband traffic, a true Net Neutrality violation if proven true.

Bryan Berg, founder and chief technology officer at MixMedia, believes he has found proof the cable company is giving its own video content preferential treatment, in this somewhat-technical finding published on his blog:

What I’ve concluded is that Comcast is using separate DOCSIS service flows to prioritize the traffic to the Xfinity Xbox app. This separation allows them to exempt that traffic from both bandwidth cap accounting and download speed limits. It’s still plain-old HTTP delivering MP4-encoded video files, just like the other streaming services use, but additional priority is granted to the Xfinity traffic at the DOCSIS level. I still believe that DSCP values I observed in the packet headers of Xfinity traffic is the method by which Comcast signals that traffic is to be prioritized, both in their backbone and regional networks and their DOCSIS network.

Berg also contends Comcast’s earlier explanation that its Xfinity content should be exempt from its usage cap because it travels over the company’s private Internet network is also flawed:

In addition, contrary to what has been widely speculated, the Xfinity traffic is not delivered via separate, dedicated downstream channel(s)—it uses the same downstream channels as regular Internet traffic.

Berg

Broadband traffic management is of growing interest to Internet Service Providers, who contend it can be used to manage Internet traffic more efficiently and improve speed and time-sensitive online applications like streamed video, online phone calls, and similar services. But manufacturers of traffic management equipment also market the technology to ISPs who want to favor certain kinds of content while de-prioritizing or even throttling the speed of non-preferred content. The technology can also differentiate traffic that counts against a monthly usage cap, and traffic that does not.

Quality of Service (QoS) technology can be used to improve the customer’s online experience or help a provider launch Internet Overcharging and speed throttling schemes that can heavily discriminate against “undesirable” online traffic.

Berg further found that when he saturated his 25Mbps Comcast broadband connection, traffic from providers like Netflix suffered due to the bandwidth constraints.  Because he flooded his connection, Netflix buffered additional content (slowing his stream start time) and reduced the bitrate of the video (which can dramatically reduce the picture quality at slower speeds). But when he launched Xfinity video streaming, that traffic was unaffected by his saturated connection. In fact, he discovered Xfinity traffic was exempted from his normal download speed limit, allowing his connection to exceed 25Mbps.

While that works great for Xfinity fans who do not want their videos degraded when other household members are online, it is inherently unfair to competitors like Netflix who are forced to reduce the quality of your video stream to compensate for lower available bandwidth.

According to the consent decree which governs the merger of the cable operator with NBC-Universal, prioritizing traffic in this way is a no-no when the company also engages in Internet Overcharging schemes, namely its arbitrary usage cap:

“If Comcast offers consumers Internet Access Service under a package that includes caps, tiers, metering, or other usage-based pricing, it shall not measure, count, or otherwise treat Defendants’ affiliated network traffic differently from unaffiliated network traffic. Comcast shall not prioritize Defendants’ Video Programming or other content over other Persons’ Video Programming or other content.”

This graph shows Berg's artificially saturated 25Mbps Comcast broadband connection. The traffic in red represents Xfinity Xbox traffic, which is given such high priority, it allows Berg to exceed his usual download speed limit.

Comcast sent GigaOm a statement that denies the company is doing any such thing:

“It’s really important that we make crystal clear that we are not prioritizing our transmission of Xfinity TV content to the Xbox (as some have speculated). While DSCP markings can be used to assign traffic different priority levels, that is not their only application – and that is not what they are being used for here. It’s also important to point out that our Xfinity TV content being delivered to the Xbox is the same video subscription that customers already paid for and is delivered to their home over our traditional cable network – the difference is that we are now delivering it using IP technology to the Xbox 360, in a similar manner as other IP-based cable service providers. But this is still our traditional cable television service, which is governed by something known as Title VI of the Communications Act, and we provide the service in compliance with applicable FCC rules.”

Our View

Comcast, as usual, is talking out of every side of its mouth. In an effort to justify their unjustified usage cap, they have pretzel-twisted a novel way out of this Net Neutrality debate by paving their own digital highway on a Comcast private drive.

Comcast argues their 250GB usage cap controls last-mile congestion to provide an excellent user experience. That excuse completely evaporates in the context of its new toll-free video traffic. In fact, their earlier argument that its regionally-distributed streaming traffic should not count because it does not travel over the “public Internet” at Comcast’s expense does not even make sense.

Berg provides an example:

A FaceTime call from my house to my neighbor’s—which never leaves even the San Francisco metro area Comcast network, given that both of us are Comcast customers—goes over the “public Internet.”

Yet Comcast’s Xbox streams, which pass from Seattle to Sacramento to San Francisco through all of the same network elements that handle my video call (and then some!) are exempt from the bandwidth cap?

You can’t have it both ways, guys.

DOCSIS 3 technology has vastly expanded the last mile pipe into subscriber homes. If Comcast can launch their own private pipe for unlimited IPTV traffic that travels down the same wires their Internet service does, they can comfortably handle any additional capacity needs to support their “constrained” broadband service without the need to limit their customers’ use.

Usage caps remain an end run around Net Neutrality. Consumers given the opportunity to view content under a usage cap on the “public Internet” or using the “toll-free” traffic lane Comcast created for content from their “preferred partners” will make the obvious choice to protect their usage allowance. Comcast is certainly aware of this, and it is a clever way to discriminate through social engineering. It’s also less obvious. You don’t have to de-prioritize or block traffic from your competition to have an impact, you just have to limit it. Customers who repeatedly exceed their usage allowance face suspension of Comcast broadband service for up to one year. That’s a strong incentive to follow their rules.

Netflix is fighting to force Xfinity traffic to fall under the same arbitrary usage cap regime Netflix endures — a truly shortsighted goal. The real issue here is whether Comcast should be capping any of its Internet service.

Comcast has given us the answer, launching the very bandwidth-intense video streaming it used to decry was contributing to an Internet traffic tsunami.

It’s time for Comcast to drop its usage cap.

Wall Street analysts are predicting the end of free video streaming in the near-term as media and cable companies regain control over online content for themselves.

Cable companies are partnering with content producers to move a growing amount of streamed video content behind paywalls in an effort to protect their core business profits.

The trend is evolving so rapidly, analysts like Laura Martin with Needham & Co. predict the end of free streaming is imminent.  Either customers will pay upfront or use TV Everywhere “authentication platforms” that require evidence of a pay television subscription before being able to watch.

Craig Moffett, an analyst with Sanford Bernstein, perennially sees cable operators as the most likely winners in the billion-dollar entertainment battle.

“They’re winning the broadband wars,” Moffett says of the cable industry. “Broadband is increasingly the flagship product, not the video distribution business.”

Cable networks and program producers are growing increasingly alarmed at the impact video streaming services like Hulu and Netflix are having on their bottom lines.

Case in point: the fall of Nickelodeon, a popular children’s cable network that used to guarantee high ratings and lucrative ad revenue.  Recently the network has fallen off the ratings cliff.  Some careful analysis found the reason why: Netflix.  Nickelodeon, along with many other cable networks, licensed a number of their series to Netflix for on-demand viewing. In households with young children, parents increasingly choose the on-demand Netflix experience for family viewing over the traditional cable channel.

Moffett

That’s a major problem for content producers and networks, and Moffett quotes industry insiders who predict licensing deals for Netflix streaming will increasingly not be renewed (perhaps at any price) as networks retrench to protect their core business.  What is left will soon be behind paywalls, limited to customers who already subscribe to a pay television service.

That line of thinking is already apparent at Time Warner (Entertainment), Inc., where CEO Jeff Bewkes rarely has a good thing to say about Netflix.  His company refuses to license a significant amount of their content for online streaming because it erodes more profitable viewing elsewhere.

Time Warner only licenses older content and certain “serialized dramas” that have proven difficult to syndicate on traditional broadcast television or cable outlets.  But the company keeps kid shows to itself and its own distribution platforms, like Cartoon Network.

When it does let shows go online, it wants them behind paywalls.

Bewkes applauded Hulu’s recently announced plans to move its service away from free viewing.  Authenticating viewers as pay TV subscribers before they can watch “makes sense” to Bewkes.

“Hulu is moving in the right direction now,” Bewkes said.

Big media companies do not want significant changes to the viewing landscape, where major networks front the costs for the most expensive series, and cable networks commission lower budget programs and repurpose off-network content.  Pay television providers bundle the entire lineup into an enormous package consumers pay to receive. That is the way it will stay if they have their say.

“Just because consumers would rather get individual channels a-la-carte, on-demand, and streamed — only what they want to pay for — [if they think] that is inevitably the way the world if going to evolve, not so fast,” Moffett said. “It may be the way consumers want it and it may be the way technologists want it, but the media companies have a say here.”

“There is no way they are going to voluntarily unbundle themselves,” Moffett said.

[flv width=”360″ height=”290″]http://www.phillipdampier.com/video/Bloomberg Moffett on Cable Operators 4-30-12.mp4[/flv]

Craig Moffett talks about the current state of the media business on Bloomberg News.  He sees trouble ahead for online video streaming, as powerful media and entertainment content distribution companies reposition themselves to better control their content… and the revenue it earns.  The big winners: Cable operators, Hollywood, and major cable networks.  The losers: Consumers, Netflix, Hulu, and free video streaming. (11 minutes)

[flv width=”360″ height=”290″]http://www.phillipdampier.com/video/Bloomberg Martin Sees End of Free Streaming TV Content 5-4-12.mp4[/flv]

Laura Martin with Needham & Co. predicts the imminent demise of free video streaming. Media companies can’t handle the loss of control over their programming, and the erosion of viewers (and ad revenue) it brings.  Martin tells Bloomberg News she sees a future of paywalls blocking access to an increasing amount of online video content.  (5 minutes)

Hastings vents on his Facebook page.

As Stop the Cap! has warned Netflix for years, Internet Overcharging schemes like usage caps, usage-based billing, and speed throttles represent an end run around Net Neutrality. If a provider cannot openly discriminate against the competition, slapping usage limits on them (while exempting favored services from that cap) can eventually accomplish the same thing.

Netflix founder Reed Hastings is finally getting the message after a frustrating weekend watching his Comcast usage allowance bleed away while streaming video.  He shared his views on his Facebook page:

Comcast [is] no longer following net neutrality principles.

Comcast should apply caps equally, or not at all.

I spent the weekend enjoying four good internet video apps on my Xbox: Netflix, HBO GO, Xfinity, and Hulu.

When I watch video on my Xbox from three of these four apps, it counts against my Comcast internet cap. When I watch through Comcast’s Xfinity app, however, it does not count against my Comcast internet cap.

For example, if I watch last night’s SNL episode on my Xbox through the Hulu app, it eats up about one gigabyte of my cap, but if I watch that same episode through the Xfinity Xbox app, it doesn’t use up my cap at all.

The same device, the same IP address, the same wifi, the same internet connection, but totally different cap treatment.

In what way is this neutral?

Comcast says it is “neutral” by framing its own Xbox-streamed video as a “set top box replacement,” even though the video that flows to the Xbox console travels down the same last-mile network Comcast says it needs to “protect” with its 250GB monthly usage cap.

Comcast doesn’t actually need a 250GB usage cap, particularly after the company upgraded its broadband facilities to DOCSIS 3 technology.  That vast improvement in capacity at a comparatively low cost (easily recouped by the company’s latest round of rate increases) should be shared with customers.  Instead of “applying caps equally,” Comcast should abandon them altogether.

[Thanks to Earl, one of our regular readers, for sharing the story.]

If you thought paying an average of $86 a month for basic pay television and premium movie channels in 2011 was out of line, just wait.  A new report predicts you could pay $123 by the year 2015 and $200 by 2020 — and that only includes the TV portion of your bill.

That is in keeping with typical annual rate increases, typically blamed on “increased programming costs,” which currently run an average of six percent a year.

The NPD Group, who published the findings, predicts consumers may not sit still for that kind of monthly cable television bill, especially as household incomes for the middle class continue to remain stagnant, even as high fuel and health care prices continue to march higher.

The pay television industry isn’t entirely responsible for the annual rate hikes that nearly always outpace the rate of inflation.  The real money is in programming production and distribution, which is why giant companies like Comcast, Bell, Rogers, and Viacom are buying up programming studios, distributors, and networks at a rapid pace.

With new players like Netflix, Amazon, and Redbox joining traditional pay television and broadcast network bidders, auctions for exclusive licensing agreements bring higher and higher bids.  Ultimately, consumers pay the price in the form of higher bills.  Even cable networks, sensing an increase in the value of their programming, are extracting higher monthly fees at contract renewal time.

The last to arrive at the programming money party?  Local over-the-air broadcasters that used to beg cable companies to carry their channels on the local lineup.  Now some are demanding as much as $5 or more per month per subscriber to allow the cable operator to keep carrying the stations.

“As pay-TV costs rise and consumers’ spending power stays flat, the traditional affiliate-fee business model for pay-TV companies appears to be unsustainable in the long term,” said Keith Nissen, research director for The NPD Group. “Much needed structural changes to the pay-TV industry will not happen quickly or easily; however, the emerging competition between video on demand and premium-TV suppliers might be the spark that ignites the necessary business-model transformation of the pay-TV industry.”

In other words, the more consumers cut cable’s cord and go find other ways to watch their favorite shows, the more unsustainable the traditional pay television business model will become.  Some industry watchers believe cord-cutting is not a major issue.  Others believe continued rate increases will drive customers to cancel service, particularly when alternatives are available. But NPD believes economic factors are the biggest reason for cable cord-cutting.  Those ex-customers are switching back to free “over the air” television, which now delivers better picture quality and often includes additional channels that increase the number of viewing options.

NPD Group research shows most consumers don’t want to exert too much effort to hunt down online programming. Most will put up with their current provider as long as they deliver the shows they want at a price they can afford.  What could change that?  Easy-to-access to a-la-carte programming, perhaps available from services that may soon come built-in with the newest television sets.

“Pay-TV providers offer a convenient, one-stop shop for subscribers, and the majority of customers like it that way,” said Russ Crupnick, senior vice president of industry analysis for The NPD Group. “There is an open window for the industry to meet consumer needs and become to television what iTunes is to music; however, there is also a definite risk if pay-TV providers don’t capitalize on the opportunity — and soon.”

Comcast has changed its explanation why the company’s XFINITY TV service, streamed over Xbox 360 has been made exempt from the company’s 250GB usage cap.

Last week, the company claimed the service traveled over the company’s “private IP” network, exempting it from usage restrictions.  That created a small furor among public interest groups and Net Neutrality supporters because of the apparent discrimination against streamed video content not partnered with the country’s biggest cable operator.

Stop the Cap! argued what we’ve always argued — usage caps and speed throttles are simply an end run around Net Neutrality — getting one-up on your competition without appearing to openly discriminate.

Now Comcast hopes to make its own end run around the topic by changing the language in its FAQ:

Before:

After:

Although the words have changed, the story stays the same.

The key principle to remember:

Data = Data

Comcast suggests its Xbox XFINITY TV service turns your game console into a set top box, receiving the same type of video stream its conventional cable boxes receive.  The cable company is attempting to conflate traditional video one would watch from an on-demand movie channel as equivalent to XFINITY TV over the Xbox.  Since the video is stored on Comcast’s own IP network, the company originally argued, it creates less of a strain on Comcast’s cable system.

AT&T's U-verse is an example of an IP-based distribution network.

But the cable industry’s inevitable march to IP-based delivery of all of their content may also bring a convenient excuse to proclaim that data does not always equal data.  They have the phone companies to thank for it.

Take AT&T’s U-verse or Bell’s Fibe.  Both use a more advanced form of DSL to deliver a single digital data pipeline to their respective customers.  Although both companies try to make these “advanced networks” sound sexy, in fact they are both just dumb data pipes, divided into segments to support different services.  The largest segment of that pipe is reserved for video cable TV channels, which take up the most bandwidth. A smaller slice is reserved for broadband, and a much smaller segment is set aside for telephone service.

AT&T and Bell’s pipes don’t know the difference between video, audio, or web content because they are all digital data delivered to customers on an IP-based network.  Yet both AT&T and Bell only slap usage caps on their broadband service, claiming it somehow eases congestion, even though video content always uses the most bandwidth. (They have not yet figured out a way to limit your television viewing to “maintain a good experience for all of their customers,” but we wouldn’t put it past them to try one day.)

What last mile congestion problem?

Comcast’s argument for usage limiting one type of data while exempting other data falls into the same logical black hole.  Comcast’s basic argument for usage caps has always been it protects a shared network experience for customers.  Since cable broadband resources are shared within a neighborhood, the company argues, it must impose limits on “heavy users” who might slow down service for others.

We've heard this all before. Former AT&T CEO Dan Somers: "AT&T didn’t spend $56 billion to get into the cable business to have the blood sucked out of (its) veins."

But in a world where DOCSIS 3 technology and a march to digital video distribution is well underway or near completion at many of the nation’s cable operators, the “last mile” bandwidth shortage problem of the early 2000s has largely disappeared.  In fact, Comcast itself recognized that, throwing the usage door wide open distributing bandwidth heavy XFINITY TV over the Xbox console cap-free.

As broadband advocates and industry insiders continue the debate about whether this constitutes a Net Neutrality violation or not, a greater truth should be considered.  Stop the Cap! believes providers have more than one way to exercise their control over broadband.

Naked discrimination against web content from the competition is a messy, ham-handed way to deal with pesky competitors.  Putting up a content wall around Netflix or Amazon is a concept easy to grasp (and get upset about), even by those who may not understand all of the issues.

Internet Overcharging schemes like usage caps and speed throttles can win providers the same level of control without the political backlash.  Careful modification of consumer behavior can draw customers to company-owned or partnered content without using a heavy hammer.

Simply slap a usage limit on customers, but exempt partnered content from the limit.  Now customers have a choice: use up their precious usage allowance with Netflix or watch some of the same content on the cable company’s own unlimited-use service.

Nobody is “blocking” Netflix, but the end result will likely be the same:

• Comcast wins all the advantages for itself and its “preferred partners”;
• Customers find themselves avoiding the competition to save their usage allowance;
• Competitors struggle selling to consumers squeezed by inflexible usage caps.

It is all a matter of control, and that is nothing new for large telecom companies.

Back in 1999, AT&T Broadband owned a substantial amount of what is today Comcast Cable.  Then-CEO Dan Somers made it clear AT&T’s investment would be protected.

“AT&T didn’t spend $56 billion to get into the cable business to have the blood sucked out of [its] veins,” Somers said, referring to streamed video.

Obviously Comcast agrees.