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Comcast: ACA's NBCU Merger Conditions Are 'Unjustified'

Comcast has told the FCC to reject the American
Cable Association's calls for program access and retransmission
consent conditions on its proposed joint venture with NBCU, saying they are
"wholly unjustified."

In a filing at the commission, the cable operator
said that, as it has demonstrated in "extensive filings" and
economic reports, the transaction "poses no competitive harms" that
need addressing through such conditions, that ACA's
arguments are simply a "rehashing" of its previous calls for
industry-wide changes and are thus neither narrowly tailored or
transaction specific.

ACA's proposed conditions, which have been
endorsed by an alliance of small telcos including the National Telecommunications
Cooperative Association and the Organization for the Promotion and Advancement
of Small Telecommunication Companies, include to apply program access rules to
all TV stations, owned or managed by NBC, as well as to all
regional sports nets (RSNs) delivered either by satellite or terrestrially and
to online distribution; unbundling TV station retrans deals from other
carriage agreements and do the same for RSNs; outside
arbitration for retrans impasses and special arbitration for the smaller
operators ACA represents; and standstill agreements so NBC stations cannot remove
signals during retrans impasses.

Comcast argues that ACA's wish list is essentially
a recitation of its general advocacy for changes to the program
access and retrans regimes
, and that when they do differ, the conditions are
not transaction-specific.

"In short, says Comcast, "ACA's effort
to paint its proposed conditions as tied directly to the transaction are
belied by the fact that...those conditions are part of a pre-existing,
industry-wide, and long-standing program access agenda...
[T]he commission should not impose such conditions in this transaction proceeding,"
the company concludes.

ACA has argued
that most of its conditions are similar to those imposed in other vertical
transactions--ones uniting primarily complementary assets--production plus
distribution, for example, rather than competitive ones (horizontal)--including
Adelphia-Time Warner-Comcast and News Corp.-DirecTV. Where they are new
conditions, ACA argues, they are meant to address problems associated with the
conditions on those prior mergers, or to address "horizontal" harms
in combining video programming assets that were not involved in either of those
two previous mergers.

In terms of the retrans conditions, ACA President
Matt Polka thinks the FCC should not wait for the Comcast/NBCU merger to drive
that stake in the ground. In a "mincing-no-words" statement on the
Fox/Cablevision impasse, he said Fox was exploiting a "shattered"
retrans system and called on the FCC to use broad statutory authority to
restore Fox signals to Cablevision and order arbitration.

suggestion that because ACA has proposed similar remedies in prior
program access rulemaking proceedings, no form of these remedies could
now be transaction specific
in a transaction that involves vertically integration is laughable,"
said American Cable Association President Matt Polka. "The Federal
Communications Commission has never applied such a standard to
determining whether remedies are transaction specific. We're
confident that our remedies will be judged based on their merit in
ameliorating the well-documented harms from the transaction."