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Editorial: Time to Tee Up Comcast–NBCU Approval

Flash: We just got the news that Comcast is responsible for global warming, the Gulf oil spill and Lindsey Lohan’s latest trip to rehab.

Just joking, but not by much.

Last week, a couple of complaints were filed against Comcast that immediately were latched onto by foes of the Comcast-NBC Universal deal as ammunition in their fight to block the merger or load it down with so many conditions it falls of its own weight. As the FCC gets closer to a decision—though maybe not as close as Comcast and NBCU had hoped—critics are reaching for anything handy with which to bash Comcast.

Without regard to the merits of any of the complaints (one of which appeared not to have much), the mere fact that someone complains is not evidence of wrongdoing.

Comcast pointed out that one of the lawyers listed on a complaint—by modem maker Zoom Telephonics—was Kevin Martin. Yes, the same Kevin Martin representing deal opponents and the same Kevin Martin who is the former FCC chairman. Comcast did not come right out and say there was likely an ulterior motive in the timing of the complaint, though in addition to naming Martin, it pointed out the complaint was backed by longstanding critics of the merger.

Frank Manning, Zoom Telephonics president, assured B&C that the timing of its complaint was due solely to its need to replace modems, and that Martin was hired because “of the expertise of the firm’s attorneys in this area.” Manning said he reached out to Martin. “I initially approached Kevin Martin because I thought he was unlikely to have a conflict that would preclude him from representing Zoom,” he said.

Certainly Martin would have no conflict in complaining about Comcast.

We are told that the current draft order on the Comcast/NBCU decision is a couple of hundred pages long, which unless it is a really long “Dear John” note to the deal means it is probably a combination of conditions—everybody expects them—and some recounting of the huge data drop the FCC required of Comcast and NBCU as it vetted their deal.

That deal is expected, even by some critics, to be approved by both Justice and the FCC, with the only question being what and how many more conditions Comcast will have to agree to beyond its own voluntary ones. Arbitration for carriage negotiations for regional sports networks is likely, given precedent in previous deals and the FCC’s jones for sports programming as akin to indoor plumbing and electricity in the pantheon of must-haves. Online access conditions are a big X factor, as is Comcast’s stomach for them.

Well, FCC Chairman Julius Genachowski may have given some indication of when the deal would not be done when he dropped the bombshell of a network neutrality order last week, with a planned FCC vote on Dec. 21. It would be appropriate if the Comcast deal announcement came on Dec. 25, given that it has become something of a Christmas tree, trimmed with public interest pledges and decked with commitments on diversity, news, localism, and independent programming.

But the deal may not be done by the end of the year, given that at press time other commissioners had yet to “see any paper,” as one source put it, and they would be knee-deep in the big muddy (our term, not the source’s) of network neutrality in the interim.

The FCC might even want to get network neutrality done first, so that it doesn’t have to put parallel conditions in the Comcast/NBCU deal anticipating an order.

And not to bury the lead, but the FCC and Justice ought to approve this deal, and sooner rather than later, so Comcast and NBCU can get on with the business of remaking themselves for an uncertain and challenging future.