Media consolidation critic Public Knowledge has asked the Department of Justice to investigate Comcast-NBCU's compliance with the conditions of the consent decree under which the companies were allowed to merger.
Those conditions expire next year.
Public Knowledge cited meetings between cable operator RCN and the FCC over what RCN said was anti-competitive conduct by Comcast-NBCU, as well as a letter from Sen. Richard Blumenthal (D-Conn.) seeking an investigation and an extension of the conditions while the investigation is underway.
Public Knowledge says that even if the investigation finds Comcast was in compliance, that would mean the consent decree worked and should be extended and even making it tougher. If they weren't effective, DOJ should require divestitures, Public Knowledge said.
The group's push came in a letter to DOJ antitrust chief Makan Delrahim, who has said that he favors divestitures over trying to enforce conditions imposed essentially to make an illegal transaction legal. DOJ has sued to block the AT&T-Time Warner deal. Those companies were willing to accept behavioral conditions as the cost of business, but DOJ wanted divestitures.
"[T]he dangers the consent decree was intended to remedy remain in place today," Public Knowledge told Delrahim. "Comcast has both the incentive and ability to withhold programming from distribution rivals (or raise their costs), and the incentive and ability to favor its own programming over that of programming rivals." That is the same argument Delrahim made in arguing for the divestitures, and absent those--AT&T says they are not necessary--in suing to block the deal
Asked for a comment on the Public Knowledge letter, Comcast reprised its response when Blumenthal first made the request.
“There is no credible basis to pursue an extension or modification of the consent decree or conditions," the company said. "For nearly seven years, Comcast has met or exceeded all of the commitments and obligations under the NBCUniversal transaction. We have filed six annual compliance reports with the FCC setting forth in detail our exemplary compliance track record, none of which has been challenged or objected to by the Commission or any third parties, including by any member of Congress.
"The DOJ, which has received substantial information about our compliance with the consent decree, has never pursued any enforcement action against us," Comcast added. "All of the market segments in which we do business are more robust and more competitive now than they were before our NBCUniversal transaction, including the explosive growth of online video distributors, which Comcast-NBCUniversal has significantly fostered through hundreds of OVD content licenses, substantial broadband investment and expansion, and inclusion of OVDs like Netflix, You Tube, and Sling TV on our innovative X1 platform. We have reached dozens of content deals with MVPDs without loss of programming to consumers. In fact, the arbitration mechanism created in the FCC order has been used by only one MVPD over seven years. There is simply no precedent and no need for the conditions to be extended or modified, or our transaction revisited.”
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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.