Cable modem maker Zoom Telephonics has filed a complaint with the Federal Communications Commission charging that Comcast has subjected the firm to a battery of "unreasonable, irrelevant, time-consuming, and costly requirements" that will block the availability of its modems at the retail level, pushing subscribers to rent or lease modems from Comcast instead.

"Comcast's new testing regime, as well as its arbitrary refusal to test certain new cable modems, therefore threatens all of the benefits associated with a competitive retail market for devices such as cable modems," Zoom's filing with the FCC insists. And given Comcast's huge share of the cable market, if the ISP giant prevails, Zoom will likely abandon any efforts to introduce new modems to the US.

Thus "consumers will be faced with fewer choices, higher prices, and less innovation," Zoom warns.

The complaint comes as Comcast also faces accusations that it is selectively jacking up prices for competing online video streamer Level 3 Communications. And it is being framed by media reform groups as yet another component in the case against the proposed merger with NBC Universal.

"This is one more reason why the FCC should block the Comcast's acquisition of NBC," declared the Media Access Project's Andrew Schwartzman in a statement sent to us. "Time and time again Comcast has demonstrated that it is willing to use its clout to block competition."

The controversy is even being cast as another violation of the FCC's open Internet principles—an interesting charge given that Zoom's attorney, former FCC Chair Kevin Martin, oversaw those principles and the modem maker's complaint. But for Frank Manning, President and CEO of Zoom, the bottom line could be the survival of his company.

"I'm not predicting our demise," Manning told us in an interview. "We hope it isn't about that. But we worry that it is."

Testing one, two, three

Comcast controls a huge chunk of the cable ISP subscription market in the United States. Zoom is the nation's second biggest supplier of retail level cable modems, and its DOCSIS 2.0 and 3.0 offerings already undergo a battery of tests before they hit the stores.

First, independent labs inspect them for compliance with the FCC's Part 15B rules, which regulate electronic emissions levels. These tests usually take about four weeks to complete and cost about $8,000. Next, they're tested for safety by a certified laboratory. These exams review the devices for heat, fire, and electric shock risks. They last around six to eight weeks and cost a little more than the FCC exams.

Last, Zoom devices undergo testing for adherence to Data Over Cable Service Interface Specification, or DOCSIS, standards. These are done over at a center approved by CableLabs—the industry's DOCSIS standard overseer. Each new model must pass a suite of tests for interoperability and data flow efficiency before it is approved. These reviews can take as long as eight weeks and cost $75,000.

But on top of all this, Comcast now has its own testing requirements for connectivity, to which modem makers gladly or reluctantly submit, given the company's huge share of the market. These inspections can take as long as nine weeks.

Under no obligation

Over the summer Zoom decided that it needed to build a new version of its DOCSIS 2.0 cable modem, since parts for the current model were no longer in supply. Zoom's 2.0s are more popular with consumers because they're less expensive than 3.0 models, the company says. The plan was to release one version with a wired Ethernet Local Area Network port, and another with wireless connectivity.

But Comcast Vice President Jeff Smith informed Zoom CEO Manning that it was less than enthusiastic about testing another 2.0 device, contending that 2.0s are "not capable of reaching the higher speed tiers that Comcast has begun to offer and that increasingly will become the norm of the marketplace."

Furthermore, "Contrary to what you suggested in our conversation and in your letter to me," Smith wrote, "Comcast is under no obligation to certify Zoom's or any other vendor's high speed Internet devices for use with Comcast's broadband Internet network."

Nonetheless, Smith said that the ISP would think about it. "A representative from Comcast will contact you with additional information in the next few weeks," his letter concluded.

But when when Zoom staff reviewed the requirements in Comcast's proposed Physical and Environmental ("P&E") testing regimen, they questioned whether the standards listed had anything to do with product safety. These included temperature, weight, voltage, and even labeling standards that Zoom's complaint insist would "neither protect Comcast's network from harm nor prevent theft of service."

"For example," the complaint explains, "Comcast evaluates the performance of cable modems at temperatures far above those generally found in the United States and far above those at which many electronic devices are designed to operate. Zoom's cable modems support operation at ambient temperatures from 0° to 40°C (32° to 104°F). For reference, the Apple iPad is specified to operate from 0° to 35°C (32° to 95°F), and a typical HP PC (for example, the model HP Pro 3130 Minitower) is specified to operate from 5° to 35°C(41° to 95°F). Even if a cable modem were to suffer decreased performance at extremely high temperatures, this would not cause harm to the network or facilitate theft of service."

After discussing the situation with various suppliers, Zoom concluded that its revised DOCSIS 2.0 modem would not pass Comcast's tests, which would cost the company about $40,000.

We asked Comcast for comment on the protest, and received this statement:

Comcast wants to make sure devices our customers purchase at retail will work well and are safe, and we have not asked Zoom to submit to testing that is any different than what we ask of every other cable modem manufacturer we work with. We even offered to let Zoom do the safety testing at their own Chinese manufacturing plants, but they refused this offer. As Zoom decided not to take advantage of the courtesy we offered to simplify testing, we will be more than glad to explain to the FCC as we have already explained to Zoom how their refusal to permit any performance or safety testing of its device will harm consumers.

We read Comcast's reply to Manning, who called it "laughably absurd and incorrect. It's shocking to me that they would put that into writing. They're mixing a bunch of requirements into one sentence that have nothing to do with reality."

The complaint

Zoom's filing asks the FCC to stop Comcast from requiring cable modems sold at retail outlets to submit to its P&E tests before they can be attached to Comcast's network. The company invokes Title 47 subpart 76.1203 of the Communications Act as the primary basis for its complaint.

A multichannel video programming distributor may restrict the attachment or use of navigation devices with its system in those circumstances where electronic or physical harm would be caused by the attachment or operation of such devices or such devices that assist or are intended or designed to assist in the unauthorized receipt of service. Such restrictions may be accomplished by publishing and providing to subscribers standards and descriptions of devices that may not be used with or attached to its system. Such standards shall foreclose the attachment or use only of such devices as raise reasonable and legitimate concerns of electronic or physical harm or theft of service. [italics added]

Since the Act defines "navigation devices" as "[d]evices such as converter boxes, interactive communications equipment, and other equipment used by consumers to access multichannel video programming and other services offered over multichannel video programming systems," and a cable modem is such a navigation device offering "other services" (broadband access), Comcast's allegedly restrictive and unfair tests run afoul of the law.

Several days ago Comcast did send Zoom a compromise offer, which would allow Zoom to do Comcast's P&E testing for the specific DOCSIS model in question at a facility of Zoom's choice and without charge. But like so many of these conflicts, this one has taken on a far larger significance.

For the small battalion of reform groups and trade associations who want net neutrality rules and strong public interest strings attached to the Comcast NBCU merger, the Zoom complaint is Strike Three, yet another bullet point in their case against the cable ISP, following the 2008 BitTorrent controversy and this latest battle over Level 3.

For Zoom's CEO, however, the company's move is clearly an act of last resort, perhaps even one of desperation. "I feel very threatened by this situation," Frank Manning insisted. "Comcast forced us to do what we did."