FCC Deal Condition Enforcement Problems Mean It Should OK Fewer Deals, Critics Say
Critics of the Comcast-NBCUniversal transaction said the FCC’s delay in enforcing some of the conditions on that deal suggest it should no longer approve transactions where serious conditions need to be applied to protect the public interest. Pointing to Bloomberg LP’s long-running channel placement complaint as Exhibit A, Public Knowledge, Free Press and Consumers Union officials said the agency should deny more deals. “Behavioral conditions just do not work in a market that is as consolidated as the market for telecommunications services,” said Joel Kelsey, a policy analyst at Free Press. “It’s a lot easier and cleaner and a better outcome for consumers [for the FCC] to live up to its mandate and start denying transactions that are going to lead to a whole lot of regulation” through conditions, he said.
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"Sometimes you just have to say no to a transaction when resources and enforcement are just not there,” said Parul Desai, communications policy counsel for Consumers Union. “We're just at a point where consumers are wondering who’s protecting them.” An FCC spokesman declined to comment.
A pattern is emerging in Comcast’s behavior under the terms of the NBCUniversal merger conditions, said Public Knowledge President Gigi Sohn. Beyond the Bloomberg dispute, Comcast has been pushing back on some other conditions such as online video distributor (OVD) access to NBCU programming, she said. “These issues surrounding whether they're really abiding by the conditions of the merger are really starting to creep out."
Bloomberg filed a response Tuesday to Comcast’s February evaluation of how it’s living up to the FCC’s merger conditions. Contrary to Comcast’s report, the company hasn’t complied with the news “neighborhooding” condition and is favoring its own programming and discriminating against competitors, Bloomberg said (http://xrl.us/bm3bhc).
Comcast doesn’t neighborhood news channels in the way Bloomberg suggests, a spokeswoman for the cable operator said. “And its continued rehashing of the same arguments it has previously made smacks of desperation,” she said. “Any complaints about Comcast’s commitment to independent programming are similarly without merit,” she said. “Since the close of the transaction Comcast has increased carriage of independent networks,” she said, pointing to the increased distribution of the Africa Channel, Mnet and TVOne. Bloomberg said it’s found examples in Crescent City, Fla., and Claxton, Ga., where Comcast has moved news channels around on certain cable systems to put them adjacent to other news networks while leaving the financial-news network in the relative wilderness.
By not resolving Bloomberg’s dispute with Comcast, the FCC is sending a dangerous signal to other independent programmers, said Sohn. “It’s hurting other independent programmers that might want to enforce their rights,” she said. “I'm afraid the commission is not acting with a sense of urgency that’s necessary.”