Bloomberg Files First Carriage Complaint Under Comcast-NBCU Merger Order Provisions
Bloomberg asked the FCC to require Comcast to carry its Bloomberg TV network on a channel adjacent to a “neighborhood” of news programming on its cable systems serving its 35 largest markets. The complaint filed Monday is the first program carriage complaint against Comcast since it bought control of NBCUniversal. Its outcome may reveal both how Comcast and the FCC approach conditions imposed by the FCC on that transaction, industry and public interest attorneys said. “If Comcast is dragging its feet on a condition this clear, we can only imagine how they will live up to conditions that are potentially less clear, said Greg Babyak, head of government affairs for Bloomberg. “We think this is very much a test of how serious Comcast is about obeying the terms of the order,” he said in an interview.
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A Comcast spokeswoman said the order doesn’t require it to move Bloomberg’s channel position. “The so-called ‘neighborhooding condition’ … does not support Bloomberg TV’s request,” she said. “Comcast does not, and since the transaction has not, ‘neighborhooded’ any channels on our system.” Comcast cited a footnote to the merger order that said, “our condition, however, would only take effect if Comcast-NBCU undertook to neighborhood its news or business news channels, which therefore would indicate that there was some value to neighborhooding despite additional search capabilities."
In its complaint, Bloomberg said Comcast carries CNBC, a network Comcast now controls, in a “neighborhood” of an average of 5 news channels in most of its large markets. In some cases, the group of news channels, which Bloomberg is excluded from, is larger than seven channels, it said. It cited a passage from the order that reads “we require that if Comcast now or in the future carries news and/or business news channels in a neighborhood, defined as placing a significant number or percentage of news and/or business news channels substantially adjacent to one another in a system’s channel lineup, Comcast must carry all independent news and business news channels in that neighborhood."
The commission should be able to act quickly on the complaint because the complaint is straightforward, Babyak said. “We're arguing that the language that says ‘now and in the future’ means now and in the future,” he said. “Comcast is arguing that the word ‘now’ has no meaning.” If the commission fails to grant Bloomberg’s request, it bodes poorly for future program carriage complaints, Babyak said. “Quite frankly, if an independent news provider coming up under the order can’t prevail, then it is very hard to imagine how any independent programmer, under any circumstances would prevail,” he said.
The commission should act quickly to resolve the complaint, public interest advocates said. Delay would “signal that Comcast will be able to use hyper-technical and evasive legal tactics” to evade conditions of the merger, Media Access Project Senior Vice President Andrew Schwartzman said in press released. “This is the first test of the FCC’s resolve to enforce the conditions,” he said. Free Press also urged “aggressive enforcement” of the FCC’s merger conditions.