Sen. Al Franken (D-MN) today asked the Department of Justice to examine network neutrality implications of the Comcast/Time Warner Cable merger and the increased power the merger would give Comcast when it comes to negotiating paid peering agreements like the recent one with Netflix.

"I am very concerned that Comcast could use its clout in the broadband market to dictate the content consumers receive and the prices they pay, and these concerns are only intensified by Comcast’s proposal to acquire Time Warner Cable," Franken wrote in a letter to the DOJ . "With more than 20 million customers, Comcast already is the nation’s dominant Internet service provider, controlling about a quarter of the national broadband market and a much higher percentage of the market in many of the local areas in which it operates. By acquiring Time Warner Cable, Comcast would extend its reach substantially, covering millions of additional customers. This would give Comcast even more leverage to manipulate Internet traffic to serve its own corporate interests."

Comcast is not allowed to block or discriminate against Web traffic as a result of conditions on its acquisition of NBCUniversal, but Franken noted that "Comcast’s net neutrality obligations expire in January 2018, which raises the question of what happens after that time."

Franken noted that prior to the NBCUniversal acquisition, Comcast was admonished by the FCC for degrading traffic. That FCC order came in 2008 and sanctioned Comcast for "secretly degrading peer-to-peer applications."

Franken also wants to make peering an issue in the merger review. While big network operators have traditionally engaged in "settlement-free peering," exchanging traffic without payment, consumer ISPs like Comcast have begun demanding payments from Netflix and Netflix's traffic providers. Comcast has won payments both from Level 3 and Netflix, and it's still in a battle with Cogent, one of the companies Netflix pays to distribute its traffic across the Internet.

US regulators have generally treated net neutrality as a concern only over the "last mile" of networks, the connections between consumer ISPs and their residential and business customers. Franken thinks peering and net neutrality should be treated as one issue:

Net neutrality protects consumers by prohibiting broadband service providers, such as Comcast and Time Warner Cable, from picking and choosing which lawful Internet content will reach homes and offices across the country. Settlement-free peering arrangements perform much the same purpose, allowing Internet traffic to flow freely among backbone and last-mile networks without interference from the corporations that control the infrastructure. Because of net neutrality and settlement-free peering, the website for a small hardware store in rural Minnesota loads as quickly as the website for a big, national chain; Vikings fans can read about their team on the website of their choice, whether that’s ESPN or a blog written by a local fan; and an e-mail from a constituent in Duluth gets to me as quickly as an e-mail from my bank. Without open Internet protections, Comcast, Time Warner Cable, and other broadband service providers could block, degrade, or charge extra fees to transmit Internet traffic.

The merger will be reviewed by both the FCC and DOJ. In other news today, Reuters reported that states including Florida, Indiana, and Pennsylvania will join federal regulators in reviewing the acquisition on antitrust grounds.

In response to Franken's comments, Comcast made the following statement: “The Comcast Time Warner Cable transaction will bring millions more Americans under the Open Internet rules as soon as our deal closes. We fully expect that the FCC will have in place Open Internet rules that will apply to all companies by the time our current condition from the NBCUniversal deal expires in 2018. That condition was always meant as a bridge to enforceable rules that would be applicable to all companies in the industry. Comcast has supported the Open Internet rules since they were first proposed and is the only company that is currently required to abide by them.”