Quicker, Thorough Comcast-NBCU Review May Help Genachowski Image
Intensifying FCC review of Comcast-NBC Universal shows which issues the agency is focusing on that likely will be addressed in the final merger order, while holding import for how industry, legislators and others perceive Chairman Julius Genachowski and the agency itself, said former commissioners, communications lawyers and antitrust specialists. That more career staffers are spending additional time on Comcast’s multibillion dollar plan to buy control of NBC Universal and late Monday made another request for information from the companies (CD Oct 5 p8) shows an FCC intent on a thorough review. Should that be done with dispatch, Genachowski’s quest to get a reputation as able to timely decide on complex issues may be helped, said lawyers not part of the deal.
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The data requests show a focus on how much smaller subscription-video providers pay for content versus larger rivals and on how consumers and Comcast competitors are affected when linear programming goes online and is seen on TVs connected to the Web, said antitrust and other lawyers who reviewed the documents. The accessibility of Comcast-NBC Universal’s channels on pay-TV, over-the-top and online still are thought to be areas where the commission will devote considerable time in the merger order (CED July 12 p4). While approval by both the FCC and Justice Department is expected by many observers, there may be numerous FCC conditions in those areas, they said.
The FCC could be speeding up review of Comcast-NBC Universal amid indications DOJ may hope to act this year on the deal, cable lawyers said. That could mean commission review ends in December or January instead of later in the first quarter or even the second quarter as some commission officials had indicated earlier (CD Aug 12 p5), the lawyers and others said. “I think this is moving quicker” than a Q1 or Q2 finish, a cable lawyer said. “I think more people in the industry are coming to realize that as well.” A December end to DOJ review, accompanied by the commission finishing its evaluation shortly afterward makes sense, another cable lawyer said.
The Media Bureau seems to be devoting enormous resources to the deal, agency and industry officials said. That may be coming at the expense of quick action in other areas such as completing the broadcast media ownership review in 2010 as mandated by Congress or wrapping up the Future of Media inquiry this year, as had been a goal of some at the agency, a commission official said. FCC and DOJ spokespeople had no comment on the time frame for their reviews.
"If the commission can finish its review close to the time that DOJ finishes its review, that would be a positive in terms of showing that the commission is dealing with high-profile issues at least as fast as other federal agencies charged with reviewing the proposed transaction,” said communications lawyer Henry Rivera. The former Democratic FCC member is now with Wiley Rein and not working on Comcast-NBC Universal. “Finishing the Comcast-NBCU review at the same time as or close to when the DOJ finishes its review would demonstrate that, notwithstanding the Commission’s work load, it is trying to deal with major transactions in a reasonable amount of time,” Rivera said.
"It is an opportunity for Chairman Genachowski to address a major issue and try to get it done in a timely manner,” said Harold Furchtgott-Roth, a former Republican commissioner. “Unfortunately, the precedents are quite varied” in how long it takes to get major deals reviewed by the agency, ranging from six to nine months to two years, he said: “It’s a very broad window” and “different people have different views of what’s reasonably timely."
"I don’t see any particular pressure on the chairman to act on this particularly quickly” nor a particular constituency other than Comcast seeking that, said antitrust law expert Michael Hazzard of Arent Fox: “I don’t see him acting particularly quickly on this just to say he acted particularly quickly.” Hazzard still expects conditional FCC approval of Comcast-NBC Universal in the first quarter, he said. The latest information request shows the bureau is concerned about how the deal may impact prices rural companies pay for content, he said.
Each of the several dozen questions the bureau asked Monday are “very specific,” said antitrust lawyer Christopher Kelly of Mayer Brown. Much of what’s sought “ought to be reasonably producible, it is hard data” or “it could be a lot of this already has been produced to DOJ, so it’s just a matter of handing over a disk that already exists,” he said. “It’s interesting though that it reaches so far and so broadly at this stage.”