GOP Commissioners Didn’t Get Some FCC Staff Briefings on Comcast-NBCU

"Clearly, he’s really only been negotiating with the Clyburn and Copps offices” until the week of Jan. 3, said a commission official of Genachowski. That’s “when substantive negotiations started with the Republican offices,” the official said. “It’s not uncommon, it’s even routine, for a chairman to want to get the endorsement of their political base before negotiating with the other party."

Clyburn and Copps, or their aides, heard about staff reviews of Comcast-NBC Universal at meetings held at the request of the commissioners’ offices, agency officials said. At those meetings, representatives of just one of the FCC members were present, they said. The discussions included updates about the commission review and information about conditions being developed, they said. The commissioners and their aides didn’t necessarily suggest conditions, but they did get to hear what they might be and ask questions of officials working on the review, agency officials said. Commission representatives declined to comment, as did the Baker and McDowell offices.

Involving the FCC Democrats closely may have been done in an effort to make them comfortable that the conditions on Comcast-NBC Universal would be extensive enough, speculated officials inside and outside the agency not privy to Genachowski’s thinking. They said fully informing Clyburn and Copps about deal restrictions early on means that, regardless of how they vote on the deal, they'll have had a chance to learn about how the commission is trying to reduce any harm that the combined company could cause competition and consumers. With the Republicans, generally inclined to seek fewer conditions on any deal, Genachowski and his aides could use the time after the order circulated to try to show them that the curbs wouldn’t be so strict as to make the deal unworkable as a business proposition.

The Republican FCC offices learned firsthand about most of the conditions around the time that the draft order circulated, agency officials said. They and their Democratic counterparts spent significant time last week discussing possible changes to the Dec. 23 draft, a new version of which was expected by agency officials to circulate late last week. That may move the matter along toward a final vote, which could he held this week, agency officials said. The first draft proposed applying what some see as a type of net neutrality rule to Comcast as an ISP. It would require the company to sign deals with online video distributors for Comcast-NBC Universal programming sold to pay-TV companies and to sell subscription-video providers the combined company’s national cable channels and regional sports networks (CD Jan 6 p2; Jan 7 p3). All conditions would last seven years except as specified, agency officials have said.

Some lawyers watching the deal said the partisan split in attendance at meetings where members of the transaction review team frequently briefed eighth-floor dwellers came in a deal review that had procedural flaws, though not violations of FCC rules or statutes. There’s no commission policy on inviting representatives of all commissioners’ offices to this kind of briefing, and chairmen have handled the matter differently from each other and from deal to deal. “There is no set tradition on how it is done,” said Senior Vice President Andrew Schwartzman of the Media Access Project, which opposes the deal. FCC officials said that at some meetings, all the commissioners’ offices were represented, often to discuss potential timing of the review or other topical and less substantive issues with staffers including John Flynn, who’s leading the Comcast-NBC Universal review. Some other agency officials said commissioners felt they got the information they needed and did get meetings when they requested them.

Possible procedural shortcomings led some nonprofits and companies with concerns about the deal to get less information than they would have preferred, they said. They said ex parte filings from Comcast reporting on such meetings lacked details, so those opposed to or concerned about the deal were out of the loop on what the conditions might be. That meant they were a step behind in trying to propose conditions of their own and react to possible deal curbs, or they learned only secondhand what Comcast was discussing with the commission, said officials including Schwartzman and Policy Director Corie Wright of Free Press.

Critics also point to what they saw as intensive bargaining between representatives of the chairman and executives of Comcast in recent weeks, which they think creates an unflattering impression of the commission as trying to ensure that conditions are acceptable to the acquirer. Comcast also drew heat for not fully responding to FCC requests for information, which critics of the deal also said left them with incomplete information. In particular, Wright said Comcast never gave the commission copies of all carriage deals since 2006, as required in question 44 of a discovery request that Media Bureau Chief Bill Lake sent May 21 (http://xrl.us/bhmv6x). Wright said she has heard that the cable operator instead submitted the contracts to the Justice Department, where FCC officials apparently reviewed them. A company spokeswoman had no comment.

Deal critics said the commission began its review on a promising note, making public the several document requests that were made of Comcast-NBC Universal and saying it would not entertain last-minute proposed conditions unless they were a result of newly found information (CD March 19 p2). “The commission started out really well in the process,” Wright said, citing the March request for all concerns to be expressed upfront. “That all seemed to devolve in a number of ways,” she said. Paltry ex parte filings, such as one reporting on meetings Jan. 6 between Comcast CEO Brian Roberts, Baker and McDowell (http://xrl.us/bietyi), “provide very little information that would allow other parties to determine what is being negotiated,” Wright said.

Deal review has been marred by “a lack of transparency” and “the unusual degree to which this is treated as a negotiation with Comcast” on conditions, said Schwartzman. “It is evident that this was treated much more like a negotiation than the usual application process, in which the commission decides what it thinks appropriate conditions are and does discuss some of the details with the parties but doesn’t say, as I gather has been done here, `would this be OK with you or make me an offer,'” he said: “This is combined with the startlingly non-transparent misuse of the ex parte process” by Comcast.