Comcast Must Put Bloomberg in News Neighborhoods, FCC rules

The commission’s ruling enforces a condition of the Comcast/NBCUniversal deal that requires Comcast to place independent news and business channels in the same neighborhood of its programming guide that carries other news and business channels, if it groups such channels together at all. Comcast has disputed that it had such neighborhoods, and a Bloomberg complaint after the merger led the Media Bureau to issue an order saying Comcast does have some news neighborhoods on some systems. However, that order was clarified as only applicable to standard definition systems and then stayed by the bureau pending commission review (CD July 1 p7).

The commission’s order affirmed Media Bureau decisions that the merger conditions required Comcast to group Bloomberg in news neighborhoods, but permits Comcast to select which news neighborhood for Bloomberg’s channel. The commission also ruled that “four news or business news channels within any five adjacent channel positions qualifies as a news neighborhood.” This number was the focus of Pai’s dissent -- he said the small requirement means that virtually any group of news channels would qualify as a neighborhood. This definition expands the merger condition “beyond its terms, to the detriment of Comcast, cable programmers, and ultimately consumers,” Pai said in remarks included with the order. The number of channels required for a neighborhood should be eight or more, he said. “After all, Comcast may create news neighborhoods consisting entirely of independent news channels — clustering Bloomberg next to CSPAN, C-SPAN2, and C-SPAN3 — and still comply with the condition,” said Pai.

The FCC order also rejects Comcast arguments that telling it where to carry Bloomberg violates its First Amendment rights. Comcast agreed to the neighborhooding rule as a condition of the merger, the order said. “Therefore, having secured the benefit of the Commission’s conditional approval, Comcast is now foreclosed from challenging the condition,” the order said. A Public Knowledge attorney saw that as the right decision. “Whatever you think about program carriage, it’s good to see the FCC making sure that merger conditions have some effect,” said John Bergmayer in an interview.

Pai also expressed doubt about the commission’s authority to enforce the merger condition. The Communications Act doesn’t give the FCC the power to regulate news neighborhoods, he said. “Whatever the wisdom of the condition when it was adopted, we should resist expanding its scope when its continued enforcement cannot be assured,” he said.

The order also said the neighborhooding condition applies separately to SD and HD networks. Comcast had argued that it could fulfill the condition by neighborhooding only Bloomberg’s HD channel. “If Comcast carries both an SD and HD version of an independent news network, each is treated as a different channel and is independently entitled to carriage in an SD or HD news neighborhood respectively,” said the order. The order overruled Bloomberg arguments that Current TV isn’t a news channel. News channels have programming from 6 a.m. to 4 p.m. that is “focused on reporting and analysis relating to public affairs or local affairs of general interest or relating to business,” said the FCC.

Comcast said it’s “evaluating options” in response to the commission’s ruling. “The FCC’s interpretation very likely will lead to significant and unwarranted burdens on us, our customers, and other programming networks,” said Comcast in a released statement. “We are disappointed that the FCC failed to constrain the Media Bureau’s overly broad construction of the News Neighborhooding Condition,” said Comcast. The FCC was “correct in January 2011, when it deemed the condition necessary to ensure that the merger was in the public interest,” said Bloomberg Head of Government Affairs Greg Babyak.

Resolving the Bloomberg/Comcast dispute should allow the FCC to act more swiftly on future complaints of Comcast’s handling of the news neighborhooding condition, said acting Chairwoman Mignon Clyburn in remarks attached to the order. She called the dispute “complex” and said she hoped her “colleagues will act quickly on other matters involving conditions adopted in connection with this transaction.”