In the latest round of the dispute between Comcast and Bloomberg over what constitutes "news neighborhooding," Comcast has filed an extra comment in response to Bloomberg's reply comment, telling the FCC it needed the extra comment to respond to "the host of new and erroneous legal and factual assertions raised in Bloomberg's Reply," which it says violates FCC rules against raising new issues in replies.
"These new arguments and assertions not only lack merit," said Comcast, "but Bloomberg's decision to introduce them for the first time on Reply represents a flagrant violation of the Commission's rules. As the Commission has recognized, matters accessible to the complainant at the time it filed its complaint 'should [be] raised in earlier filings,' not strategically reserved for reply. Bloomberg's reliance on such procedural gamesmanship underscores and confirms the fundamental lack of merit in its Complaint." Comcast filed both its request for the FCC to accept its extra comment, and the extensive comments themselves.
Bloomberg filed the complaint with the FCC in June, asking it to require Comcast to move its Bloomberg Television news channel into "existing news neighborhoods" on Comcast systems, saying that not to do so violates a condition in the FCC's order approving the NBCU deal. Comcast replied to the complaint, then Bloomberg's final volley was an 82-page defense of its definition of news neighborhood and argument that Comcast moves channels all the time and would not be put out by doing so again, which it filed at the end of last month.
Comcast Wednesday asked the FCC to accept its "surreply," which is an additional comment, because it said Bloomberg had brought up new arguments, and introduced flawed data, that needed addressing.
Comcast argues that Bloomberg tries to have it both ways, contending that neighborhooding is commonplace in the cable industry, while arguing during the merger proceeding that cable operators generally did not neighborhood, though they might do so when transitioning to digital. "This reversal not only untethers the Condition from any potential Transaction-related harm," said Comcast, "but also offends the doctrine of judicial estoppel, which "prohibit[s] parties from deliberately changing positions according to the exigencies of the moment."
Comcast says Bloomberg is trying to introduce new, "flawed" statistics to try and show that Comcast "frequently repositions networks" and says Bloomberg's "overreach" would compel content-based judgments that implicate the First Amendment.
It is up to the FCC's Media Bureach to decide whether it will take Comcast's reply to a reply into consideration as it vets Bloomberg's complaint.
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