Sports Fans Coalition joined a coalition of consumer advocates, labor interests and video service providers urging Comcast President and CEO Brian Roberts
to drop litigation that seeks to overturn an FCC regulation he has pledged to follow even if his company prevails in court. Comcast joined Cablevision taking the FCC to court over its decision on a program access requirement designed to ensure that programming owned by cable operators is shared with competing cable and satellite TV providers so that sports fans are not left out in the cold asking
‘Where are my games?’
Here is the full text of the letter:
Mr. Brian L. Roberts
Chairman and CEO
Comcast Corporation
1 Comcast Center
Philadelphia, PA 19103
February 19, 2010
Dear Mr. Roberts:
The undersigned groups submit this letter in response to your statements in recent congressional hearings on Comcast’s proposed merger with NBC Universal. We take this opportunity to voice concerns regarding Comcast’s commitment to abiding by the Federal Communications Commission’s program access rules.
In litigation pending before the U.S. Court of Appeals for the District of Columbia Circuit, Comcast seeks to eliminate a key component of the program access regime: the ban on exclusive contracts between a cable operator and a satellite-delivered cable programming network in which a cable operator has an ownership interest. In light of Comcast’s participation in this litigation, Sen. Al Franken questioned you on the subject of Comcast’s commitment to abiding by the rules. In response to further questioning during the hearing, you promised that Comcast would adhere to FCC program access rules even if the court declares them to be invalid.
We share Senator Franken’s concerns regarding your pledge. Your assurances are undercut by the fact that your company has a history of opposing the program access rules and is currently trying to dismantle critical parts of the program access regime.
Indeed, one of Comcast’s proposed voluntary merger commitments involves applying FCC program access rules to retransmission consent negotiations with NBC owned-andoperated TV stations only “for as long as the FCC’s current program access rules remain in place.” Conspicuously absent from this promise is any acknowledgment that if Comcast is successful in eliminating the exclusive contract ban in litigation, the “current” program access rules would not apply, and Comcast’s commitment will have vanished before the merger review is even concluded.
Moreover, it is highly unusual that Comcast would continue to spend shareholder dollars to overturn an FCC regulation that it has promised to follow regardless of the case’s outcome. The fact that Comcast has not withdrawn from the litigation raises questions about whether your company will follow through on this commitment.
Withdrawing from the litigation would neither assuage all of our concerns about Comcast’s past and present actions with regard to the program access rules, nor diminish the need for the Dept. of Justice and FCC to conduct a thorough review of your transaction. It would, however, be an important gesture to bolster the promises you made to Congress on February 4th.
Respectfully,
American Cable Association
Communications Workers of America
Consumer Federation of America
Consumers Union
Free Press
Media Access Project
National Telecommunications Cooperative Association
Organization for the Promotion and Advancement of Small
Telecommunications Companies
Public Knowledge
Rural Independent Competitive Alliance
Satellite Broadcasting and Communications Association
Sports Fans Coalition
What was Sen. Franken so mad about? Watch some of the back-and-forth here, and Matthew Lasar provides some excellent play-by-play on Sen. Franken’s line of questioning during the Senate Subcommittee Hearing here:
“I worked for years for NBC,” noted former Saturday Night Live cast member and now Senator Al Franken (D-MN) in his opening remarks. “I really feel I owe a lot to NBC, but what I know from my previous career has given me reason to be concerned… very concerned” about the merger.
Franken recalled that back in the 1980s, the television networks urged the FCC to drop its Financial Interest and Syndication (FYN-SYN) rules, which barred networks from owning all but a small chunk of the programming that they aired—which the agency did. The senator recalled that, at the time, NBC executives promised that relaxing FYN-SYN would not lead the network to favor its own content.
“But by 1992 NBC was the single largest supplier of its own primetime programming,” Franken continued. “Today, if an independent producer wants to get its own show on NBC’s schedule, on any network’s schedule, it is routine practice, and you guys know it, for the network to demand at least part ownership of the show… And that’s just a fact. So while I commend NBCU and Comcast for making voluntary commitments as part of this merger, you’ll have to excuse me if I don’t trust these promises.”
Later on in the hearing, Franken disclosed that Comcast’s Roberts had met with him days earlier, claiming that the FCC’s program carriage rules would protect consumers. “You said that those rules will make sure that you always have a wide variety of programs because they forbid you [NBC] from discriminating against other company’s programs.”
With that, Franken pointed to a large sign board behind him with a quote from Comcast in its recent battle with the NFL Network over which tier on Comcast would carry the sports channel.
“The Commission is simply not equipped or constitutionally empowered to make an independent assessment of the myriad, complex, and dynamic considerations that affect carriage, tiering, and pricing decisions,” said the quote from Comcast attorneys. “Thus the First Amendment requires that the Commission exercise extreme caution before interfering with any carriage decision.“
“In other words,” Franken continued irately, “looking to get approval for this merger, you sat there in my office and told me to my face that these rules would protect consumers but your lawyers had just finished arguing in front of the Commission that it would be unconstitutional to apply these rules.”
Roberts looked a little offended by Franken’s comments. “When we met, perhaps I was confused. I thought that we were talking about program access, now you are talking about program carriage,” he explained—the latter category deals with where programs will appear on a cable distribution system after they have been granted access.
“Whether it’s program access or program carriage, did you not say that this rule protects the people of Minnesota?” Franken declared, then asked NBC’s Zucker about those FYN-SYN questions. “I think my characterization was pretty accurate, don’t you?”
Zucker paused. “It’s a long time ago and I think there’s a lot of factors that went into back then…”
“C’mon,” Franken interrupted. “You guys said: ‘We’re in the business of ratings! Why would we favor our own programming’?”
“I can tell you what’s happening today,” Zucker pressed on. “NBC has just ordered 20 pilots for new shows…”
“I think what you did was put an NBC-produced show [the now-canceled Jay Leno Show] on at ten o’clock for five nights a week is what I think you did,” Franken retorted.
According to The Washington Post, the two current stake holders of NBC Universal, Vivendi SA and General Electric, Co., are playing hardball with respect to the price of shares sold to Comcast in the proposed merger deal. Vivendi which holds a 20% stake in NBC says the current figure is ’several hundred million dollars off. While this news on the surface would appear to be a sign of some relief to consumers and sports fans, it’s really only delaying the inevitable. 
