FCC Won’t Move on Bloomberg/Comcast Neighborhooding Dispute, Attorneys Say
The FCC won’t take up the Bloomberg/Comcast channel placement dispute anytime soon, despite a plea last week (CD June 27 p16) from the financial news channel for the agency to act on the two-plus-year-old matter, several cable industry attorneys told us in interviews. With the recent Tennis Channel program carriage dispute decision against the FCC from the U.S. Court of Appeals for the D.C. Circuit (CD May 29 p1) and a new chairman unlikely to take office right away, the attorneys said the current commission probably won’t quickly resolve the issue. The dispute revolves around conditions of the Comcast/NBCUniversal deal and the placement of the Bloomberg TV network in the same neighborhood as other news networks owned by Comcast.
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An item on the matter was listed as being “on circulation” by the agency since February. “Once you start circulating, you get into that middle world,” said one cable attorney connected to the case. “With an interim chairwoman, it’s harder to move an item that’s not short and sweet, or related to a primary issue,” such as the spectrum auction, he said.
"The FCC had a pretty high hurdle to show discrimination,” said Cohn and Marks cable attorney Ronald Siegel of the May 28 Comcast v. FCC Tennis Channel decision. Several cable attorneys cited the ruling as a deterrent to the FCC acting on the Bloomberg matter. Concurring opinions in that case referenced the First Amendment implications of channel placement, and multiple attorneys said the FCC wants to stay away from those sorts of arguments at the moment. “Doesn’t this go to the core of what editorial discretion an operator has?” said Baker Hostetler cable attorney Gary Lutzker. “It’s almost like the government telling a newspaper they have to put sports in the first section.” Bloomberg, Comcast and the Media Bureau had no comment for this story.
However, the First Amendment argument could be seen as “spurious,” said Public Knowledge Senior Counsel John Bergmayer. Since Bloomberg’s channel placement was one condition of the NBCUniversal/Comcast combination, Bergmayer said the core issue of the dispute is “the rule of law,” not the First Amendment. “The commission surely has to enforce its own decisions,” Bergmayer said. “A failure to do that is failure of commission effectiveness overall.” Former FCC Commissioner Michael Copps, who voted against the deal, said the dispute shows that the agency needs to follow up on the promises made by companies that come before it. “The commission needs to follow up on the conditions it imposes,” said Copps, now at Common Cause. “It’s easy to make commitments, but [the FCC] has to do more than rely on reports” from the companies themselves, he said.
The commission is also much less likely to address a controversial issue with acting Chairwoman Mignon Clyburn having only just taken office and Chairman nominee Tom Wheeler waiting to take over, said several cable attorneys and others. “The commission being in transition raises a particular challenge,” said Bergmayer. The incentive auction is also a factor, said Siegel. “We have a new chairwoman with a really heavy agenda,” said Siegel. “They're not focusing on a lot of other things.” Lutzker said that it’s not unusual for the commission to take a long time to address applications for review even when it’s fully empanelled. “Applications for review are not dealt with rapidly,” he said. “Unless there’s a political motivation for moving fast."
The FCC should “direct Comcast to immediately move BTV into every SD news neighborhood on each of Comcast’s channel lineups in the top-35” markets, said Bloomberg in a filing Wednesday (http://bit.ly/1cnx7ky). The two companies have been battling on the issue since Comcast bought control of NBCUniversal in 2011, when the FCC ruled as a merger condition that if Comcast carries news or business channels in a neighborhood, it has to carry all independent news channels in that neighborhood. Comcast has said since the transaction that a grouping of four news channels doesn’t constitute a neighborhood.
After the deal, Bloomberg filed a complaint against Comcast, eventually leading to a Media Bureau order saying the operator had news neighborhoods on some systems and must carry the indie on those systems, said the programmer’s filing. However, the bureau then clarified that the rule only applied to standard definition systems, and then stayed the “neighborhood order” pending “commission review,” Bloomberg said. “Some two and a half years after the adoption of the news neighborhood condition in the Merger Order -- and more than one year since the Bureau initially said BTV should be neighborhooded within sixty days -- BTV continues to be carried in fewer than half of Comcast’s news neighborhoods, representing a small fraction of Comcast subscribers.”