An Ex-Regulator's Take on Comcast-NBCU

The Federal Communications Commission has approved Comcast's acquisition of NBC Universal.

Historically speaking, the nation's largest cable operator acquiring a leading broadcast network is a little like the New York Yankees deciding to buy the New York Mets. On many issues in Washington, not to mention a variety of business negotiations, these are longtime enemies -- fighting, often bitterly, over retransmission of broadcast shows on cable channels and so forth.

But the rise of the Internet and the massive upheaval in the media industry has changed everything. Strange bedfellows is the name of the game. The type of company you used to be matters a lot less than the type of company you want to become.

Today, a computer company such as Apple, a Web company such as Google, a cable company such as Comcast, telephone/wireless companies such as Verizon and AT&T, and newcomers such as Netflix (which really doesn't fit into any category) all want to become the same thing--the folks that you turn to when you want to watch something, any place, any time, on any screen (ranging from your iPhone to your 52-inch plasma TV). (For more, read this.)

And the FCC's endorsement of the idea that the government has a role in encouraging this competition is probably the most important aspect of its decision today.

First, some background: How mergers at the FCC will play out is notoriously hard to predict, but the ultimate result is not. The historical truth is that, in virtually every instance, the commission will approve any major proposed transaction. The only time in recent memory that the commission declined to do so was the proposed merger of the two leading satellite-TV providers (Echostar and DirecTV) -- and that marriage was running into problems with other agencies long before the FCC put the final nail in the coffin.

(Yes, then-Chairman Reed Hundt also famously ended rumors of an AT&T and Southwestern Bell merger in 1997 by preemptively declaring it "unthinkable." But those companies simply had to wait until 2005, when a different FCC chairman let it go through.)

The real action at the FCC involves what "conditions" the agency will put on a merger. These are supposed to be narrowly tailored to address specific harms raised by the merger at issue. But, regardless of who is in charge at the agency, it's all relative.

Often, the conditions applied to a particular merger have more to do with what the chairman and commissioners at the time want to achieve on an industrywide basis. It's just easier to get these things done when you have the extraordinary leverage of controlling the timing of a multibillion-dollar transaction that the parties are desperate to consummate.

Conditions reached as a bitter compromise in one merger often become the floor for the those imposed on the very next merger. Network neutrality began as a set of four unenforceable conditions endorsed by the FCC as part of a grand compromise that involved a split commission (two Republicans, two Democrats) deregulating broadband. In the next major merger (SBC-AT&T and Verizon-MCI), the conditions were made mandatory (as they applied to those parties). And in the next major merger (AT&T-BellSouth), a fifth condition was added. The history here is incredibly complex and certainly there were many factors. But it's basically correct to say that all these steps played an important, incremental role in the 3-2 decision last December to implement industrywide net-neutrality rules. (Full disclosure: Until last summer, I was a staffer at the FCC -- for Commissioner Michael Copps and Chairman Julius Genachowski -- and played a role in many of the foregoing decisions, although not the Comcast-NBCU merger.)

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Bruce Gottlieb is general counsel for The Atlantic. He was formerly chief counsel with the Federal Communications Commission and a staff writer at Slate, where he originated the Explainer column.

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