By Brendan Sasso - 05/07/12 04:52 PM EDT
Sen. Al Franken (D-Minn.) on Monday urged the Justice Department and the Federal Communication Commission (FCC) to investigate charges that Comcast is engaging in anticompetitive conduct.
In a letter to the two agencies, Franken applauded the FCC's recent decision to force Comcast to place Bloomberg's financial news channel alongside other news networks, but he questioned why the agency took so long.
The ruling was based on a condition the FCC placed on Comcast as part of its merger with NBC-Universal last year, which required that Comcast carry all independent news channels and place them in a "neighborhood" adjacent to other news channels, such as CNN, MSNBC and Fox News.
But Franken said he was disappointed it took the FCC 10 months to rule in favor of Bloomberg.
Comcast argues that four channels should not constitute a "neighborhood," and says it plans to appeal the FCC's ruling.
Sena Fitzmaurice, a Comcast spokeswoman, said in a statement that the company is "fully complying with (indeed exceeding)" its obligations under the merger approval.
She said she believes the full commission will side with Comcast on its appeal and agree to "enforce the conditions as they were originally negotiated and intended."
Franken also questioned whether Comcast's policy of exempting its Xbox video service from data caps violates another one of the conditions of its purchase of NBC-Universal.
The condition, which was imposed by the Justice Department, bars Comcast from treating access to its own video services differently from those of its rivals.
The condition is based on the FCC's net-neutrality rules.
Comcast's Fitzmaurice said the Xfinity On Demand service for Xbox is "indisputably" part of the company's cable service and is not subject to net-neutrality regulations, which govern Internet service.
"When Comcast streams its own services over the open Internet (including XfinityTV.com or nbc.com), such streaming is subject to Comcast’s broadband Internet data usage standards. But the Xfinity app for the X-Box does not stream content over the open Internet and is also part of our Title VI cable service," she said. "As such, it is not subject to the FCC’s open internet rules.”
Franken said he is not "yet prepared to say" whether the practice is illegal, but he urged both agencies to investigate.
"Even if this does not amount to a technical violation, it certainly raises serious questions about how Comcast will favor its own content and services to the detriment of its competitors," he wrote.
He said that if Comcast is allowed to give preference to its own video services, it will discourage competitors from even entering the online video market.
He pointed to news that Sony may drop plans for an Internet TV service and that Hulu may require viewers to subscribe to cable or satellite TV to watch videos on its site.
"These announcements by Sony and Hulu only further demonstrate the need for your agencies to carefully review how Comcast is advantaging or prioritizing its own content to the detriment of online video competitors," Franken wrote.
He said that if Comcast violated any of its merger conditions, it should face "substantial fines and penalties."
He also urged regulators to consider Comcast's "questionable compliance record" while reviewing Verizon's proposed deal with Comcast and other cable companies.
In response, an FCC spokesman said, “the Commission takes seriously its strong and fair merger conditions that protect competition and consumers."
— Updated at 1:43 p.m. with a statement from the FCC and at 3:17 p.m. with a response from Comcast.