Comcast-NBCU Review Seen Over Before FCC ‘Shot Clock’ Hits 180 Days
There’s precedent for the FCC to pause the so-called shot clock in its review of Comcast’s plan to buy control of NBC Universal, though doing so more than once as the commission has in this case is somewhat rare, veteran agency and industry officials said. That the FCC has twice paused the clock, moved back to day 37 and held there until the companies file additional materials, augurs that the commission will end the review before day 180, the agency’s goal in reviewing all deals, they said. Thorough review by the commission and Justice Department had been expected and doesn’t necessarily mean the deal won’t be approved (CD Jan 19 p8).
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The clock would have been at day 103 as of Tuesday if the commission hadn’t paused it twice. The reason for the latest hold (CD June 25 p1) is that commission staffers reviewing the documents, due June 11, had problems converting some of the electronic files, an agency official said. The documents may not have been in the correct format, the official said.
There were technical issues associated with NBC Universal’s filing and the company expects to complete its submission soon, a company spokesman said. Comcast also has said it plans to resubmit the information the commission seeks shortly. A company spokeswoman didn’t reply to messages seeking comment and a Media Bureau spokeswoman declined to comment.
The FCC under Chairman Kevin Martin didn’t routinely pause merger clocks and deal reviews sometimes took longer than six months after a pleading cycle was established, missing the agency’s goal. Under predecessor Michael Powell, deal clocks were put on hold on occasion, including on America Online’s purchase of Time Warner and EchoStar’s failed attempt to buy DirecTV from General Motors. Current Chairman Julius Genachowski seems to want to adhere to the 180-day clock, commission and industry officials said. The offices of other FCC members haven’t been extensively briefed on the decisions to pause the clock in Comcast-NBC Universal and neither commissioners nor bureau staffers seem to disagree with those calls, agency officials said.
"On any major deal, I think it’s not unusual, and prudent parties expect, that it may take more than 180 days from” issuance of the public notice starting the pleading cycle to FCC disposition of the matter, said communications lawyer David Turetsky of Dewey & LeBoeuf. He’s not involved in Comcast-NBC Universal and was speaking generally. “As a lawyer, you would have to advise your client that there is likely to be some dialogue in that the 180 days from the public notice is not necessarily something they should take to the bank … on any major deal. There just are a variety of reasons that happens. You can look back at XM/Sirius.” The FCC reviewed Sirius’s plan to buy XM for 412 days before approving it in 2008.
The FCC under Powell “tried to only stop the clock in good faith when something wasn’t happening that should have been,” said Ken Ferree, Media Bureau chief under Powell. That was for “things that were beyond our control,” he said. “At the end of the day, I wouldn’t make too big a deal of it. I take it on good faith that they have good reason why they can’t proceed now” with the clock continuing to elapse, Ferree said. “In a way that thing has become sort of an albatross,” he continued: “The commission created it on its own to sort of hold its feet to the fire and look admirable” but “it just gives people something to complain about” and can be gamed.