ACA: DOJ Needs to Keep Leash on Comcast/NBCU

The American Cable Association has called on the Justice Department to open an antitrust investigation into Comcast-NBCUniversal. It would be a way to keep Justice overseeing the company after the conditions it imposed on the merger expired earlier this year. ACA is saying the government still needs a leash on the company, rather than unleash. The ACA said the problems Justice saw in 2011 when it imposed the conditions are still problems.

Comcast-NBCU said the ACA's call is meritless and "constitutes an inappropriate attempt to gain leverage in the commercial marketplace."

But President Donald Trump, who is no fan of NBC News or most big media companies with news operations that have reported critically on him, took note of the ACA letter in a tweet:


ACA President Matt Polka

ACA President Matt Polka

ACA was not complaining about the additional spotlight, thanking the President for his input. A spokesman for the group said they did not know how the President became aware of the letter, though his Tweet came after it was reported by Multichannel News and others.

ACA wanted Justice to extend the conditions, but that didn't happen, though antitrust chief Makan Delrahim has signaled that one of the reasons he favors spin-offs over behavioral conditions like those put on the merger is that it is hard to enforce them. He also said Justice would keep an eye on the company now that the conditions have sunset. But ACA suggests it needs to do more than monitor to keep the company in line, plus monitoring alone may not be enough to protect the rivals who have information about the company's business practices that they want to share.

ACA also asked the FCC to toughen its program access rules given that the conditions were going away, but the FCC has not done so.

Related: ACA Says Deal Conditions Should Last Longer

ACA has long complained that large program suppliers force bundled carriage and impose unfair terms due to their size and market power on the smaller entities it represents.

"By opening a formal investigation, the DOJ will demonstrate seriousness of purpose and give it the ability to collect sufficient information to determine whether Comcast-NBC is acting anticompetitively," ACA said.

ACA's letter seeking the investigation was addressed to Delrahim and offered ACA's cooperation, including providing some info on Comcast-NBCU's business practices. ACA has long said the merged company has the incentive and opportunity, and willingness, to inflict anticompetitive harms given its size relative to the smaller cable and broadband operators ACA represents.

"NBCU has shown a willingness to harm rivals, even while being subject to the 2011 DOJ and FCC conditions," said ACA President Matt Polka. "In light of these concerns, which also have been expressed by members of Congress and a diverse array of stakeholders, the Antitrust Division should immediately open an investigation into the firm’s behavior."

"In 2011, the DOJ and FCC recognized that the combination of programming and distribution assets within Comcast-NBCU created such serious competitive problems that the transaction could only be approved with robust remedies. Since that time, as demonstrated herein, Comcast-NBCU’s dominant position in the market has not lessened, and in fact, it is even greater-and the 2011 remedies are no longer in effect. As a result, Comcast-NBCU is unleashed, and consumer and rivals are bound to suffer harm."

"The video programming and distribution markets are incredibly competitive," Comcast countered in a statement. "New programmers and distribution platforms are offering consumers increasing choices on what and where to watch. At Comcast NBCUniversal, we are competing in this dynamic environment the way we always have – by continuing to innovate and conducting our business in compliance with antitrust laws and other legal requirements. Among other things, Comcast Cable has brought Netflix and YouTube to our X1 platform. And NBCUniversal has provided content to Hulu, Netflix, and hundreds of other traditional and over-the-top providers."

One of Delrahim's big issues with the AT&T-Time Warner deal, which Justice sued to block because AT&T would not agree to spin-offs rather than behavioral conditions, is that he saw it as incentive and opportunity for that merged company to disadvantage over-the-top rivals by limiting their access to either the company's programming or distribution network.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.