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Comcast has some Xplaining to do

commentary Comcast's shifting explanations for its Xbox deal raise questions about the justification for its bandwidth caps and the different ways it charges consumers for video.

What do you get when you cross Xbox with Xfinity? A double-X rating for obscene power grabs in the video market? Or at least a double-extra-large helping of questions about the potential impact on consumers?

The Xbox Live dashboard featuring Comcast programming Microsoft

Whatever the answer, it's easy to see why Comcast's recent data-cap announcement set off a flurry of Internet chatter. A week ago Monday, the company said that it would not count Xfinity content viewed on Xbox 360s against customers' monthly data caps. Comcast justified its decision by suggesting at first that the Xfinity content was a streaming-video option exempt from Open Internet considerations. Net neutrality principles didn't apply here, Comcast argued, because in this case it controls the entire content-distribution chain.

A few days later, Comcast and its apologists scrapped that explanation. The company now says that the Xfinity content has absolutely nothing to do with the Internet to begin with. It is, Comcast insists, just a cable TV offering and set-top box alternative.

Setting aside the discomforting nature of the earlier "We're a huge vertically integrated monopoly, so it's OK!" defense, the simple truth is that neither excuse makes much sense. And, more importantly, the architecture for getting on-demand Xfinity content onto the Xbox platform proves that Comcast's monthly data caps are arbitrary and unjustified.

Just the FAQs
When news broke that Comcast would not count the Xfinity content against its customers' 250GB monthly data caps, consumer advocates like us sounded the alarm about how this decision could discriminate against other video-streaming options. To defend itself against that charge, Comcast first suggested that the Xbox offering is exempt because content is "delivered over [Comcast's] private IP network and not the public Internet."

Last Thursday, the official explanation changed when the company quietly updated its FAQs. Go to Comcast's FAQ page today and you'll learn that the Xbox feature is "similar to traditional cable television service...delivered to the set-top box." (Though just the day before, NCTA President Michael Powell penned a defense using the since-discarded "public Internet" distinction).

Jump to this week, when Larry Downes declared on CNET that this is more than just "similar to" a cable TV service. Xfinity on your Xbox, Downes wrote, "is not Internet content to begin with. It's television content." You can't deny that Downes got his (Comcast-sanctioned) FAQs straight. He took the revised rationale that Comcast trotted out and doubled down on the rhetoric, chiding Free Press for our response to Comcast's initial justifications.

As far as anyone on the outside can tell, however, Comcast's Xbox content is not delivered in the same way that its cable TV service is. It's true that this content ultimately terminates on a box connected to your television, and we can pause for a moment to laugh at a deal only a cable exec could love: "We'll save you seven bucks a month for an extra cable-box rental, and all you have to do is sign up for a cable TV subscription AND a Comcast broadband subscription if you want to use your Xbox this way." Some savings.

So the comparisons to cable TV service are superficial at best, and a self-serving excuse for double-charging customers at worst. But the real point is that Comcast's Xbox content uses the same channels, protocols, and portions of Comcast's cable infrastructure that house the "public Internet" -- not the (much larger) portion of the network that Comcast uses for its linear cable-channel lineup and video-on-demand options.

Doing it in public
Cable broadband service comes to you on the same wire that brings you a seemingly Xfinite number of cable TV channels. Like other cable-modem providers, Comcast bonds together a small handful of those cable channels and uses that bandwidth to deliver Internet-access service.

The likely reason that Comcast discarded its private IP network rationalization so quickly is that there seems to be no separate network or channel devoted to this Xbox offering. Comcast could put Xfinity-to-Xbox content on a different channel within its cable infrastructure, but there's no evidence that it does. It very likely delivers this content to the Xbox over, if not the "public Internet," then at least the very same channels it uses to provide broadband Internet access.

Why is that important? Even before this Xbox effort came on the scene, Comcast struggled mightily to explain the monthly 250GB data cap it imposes on broadband subscribers. If you haven't yet tired of reading marketing-speak, skim Comcast's "excessive use" policy, which guards against the allegedly negative impact a few "extremely high data users" trigger for other customers.

Yet Comcast already has a much better congestion-management technique -- one that really does prevent heavy users from degrading speeds for everyone. The company looks for actual congestion, then throttles speeds in real time for people using the most bandwidth in the congested area. "[T]he effect of this technique," Comcast notes, "is temporary and has nothing to do with a customer's aggregate monthly data usage. Rather, it's dynamic and based on prevailing network conditions."

Frequently unanswered questions about congestion, competition
So the sheer amount of data that one customer uses in a month has, at best, a tenuous relationship with actual congestion. If I download 250GB a month, but I do so at times of day when my neighbors aren't using their broadband connections, then I'm not negatively impacting anyone else's experience.

The Xfinity Xbox exemption casts real doubt on the justification for monthly caps. According to the new policy, I can download as much video as I want -- as long as it's Xfinity content -- and somehow my use of the network is fine. Customers can use Xfinity on the Xbox to their hearts' content, even though that video uses the same portion of Comcast's network that Internet streaming does.

Is Comcast using its data caps in ways that harm competition against its traditional cable TV service? Or is Comcast just unable, at the end of the day, to justify its data caps as any sort of legitimate and effective congestion-management tool? These are exactly the types of questions that lawmakers and consumer protection agencies need to ask before accepting rapidly changing spin from cable companies and their trade associations.