Comcast, Bloomberg Impasse Over Channel Placement Unlikely to be Resolved
Comcast and Bloomberg show no sign of ending an impasse over what channel positions the cable operator carries Bloomberg TV on its systems. Both sides seem dug in on their stances about whether Comcast needs to put the financial news channel near clusterings of other similar networks in its channel lineups, according to interviews with an FCC official and a Bloomberg executive and recent filings from both companies.
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That leaves as the likely way to resolve the dispute the FCC acting on Bloomberg’s pending complaint against Comcast, agency and industry officials said. The complaint alleges that the cable operator violated the conditions of January’s order approving its purchase of control in NBCUniversal. Bloomberg contended it must go in the same neighborhood as other news channels including those owned by the combined company, in the last filing in the comment cycle on its complaint (http://xrl.us/bmb3zu). The defendant again contended on Wednesday that it doesn’t need to move Bloomberg TV because it didn’t create a new neighborhood after the NBCUniversal deal. A Comcast spokeswoman declined to comment on whether the two sides can reach a deal.
"We are light years apart,” said Greg Babyak, Bloomberg’s head of government affairs. “Effectively, Comcast doesn’t believe the condition applies to them” and “as they would define this, the condition would have no meaning,” he continued. The Media Bureau, which wrote the order approving Comcast-NBCUniversal, can resolve on its own Bloomberg’s complaint, Babyak said. He said Bloomberg doesn’t want the issues in the case to go before an administrative law judge, because that would take more time and the order’s conditions last through January 2018. Comcast has asked the bureau to send the complaint to an FCC ALJ, if the bureau doesn’t fully dismiss the case (CD July 29 p8).
An ALJ wouldn’t have particular expertise on the issue, because it’s a “policy and legal call” to be made by the regulator, Babyak said. It could take longer for the judge to issue a recommended decision and for the commission to then decide whether to adopt it, versus a bureau or commission action, he said. “Even under the best of circumstances, with the commission or bureau making the call, that would still put us at the end of this year or early next.” That means more “time that we would have this protection” of the neighborhooding condition being in force having elapsed, Babyak said. “If we go to an ALJ -- if past is precedent -- we could certainly imagine two-and-a-half years on top of that.” He cited the FCC’s decision in June dismissing WealthTV’s program carriage complaint against Comcast and three other cable operators. Chief FCC ALJ Richard Sippel recommended in 2009 the complaint, sent to him in 2008, be dismissed. Bloomberg said a hearing on its complaint amounts to an attempt by Comcast to “send the parties on a wild-goose chase to delay the resolution.”
"Comcast is fully complying with all conditions in the NBCUniversal Order,” a spokeswoman for the cable operator said in a written statement. “Bloomberg’s proposed interpretation of the neighborhooding condition in the Order is entirely fabricated, nonsensical and inconsistent with industry practice. Bloomberg’s continuing pleas for special government treatment should not be rewarded, especially since their lobbying efforts were already rejected by the Commission during the transaction review when the FCC’s order clearly stated: ‘We decline to adopt a requirement that Comcast affirmatively undertake neighborhooding.'” Bloomberg noted the order said the condition applies if the cable operator “now or in the future carriers news/and or business news channels in a neighborhood."
Bloomberg and Comcast seemed far apart on their interpretation of that condition when they met with FCC officials before the complaint was filed, said an agency official. “Rather than applying to news neighborhoods that Comcast carries ‘now or in the future,’ Comcast instead wants the condition to cover only news neighborhoods that it might create ‘in the future,'” Bloomberg said in a filing posted Wednesday to docket 11-104. “Comcast, however, is obligated to comply with the news neighborhood condition that the Commission adopted, not a hypothetical version that Comcast wishes the Commission had adopted instead.” In answering the complaint, “Comcast presents a parade of horribles of what will occur if it is required to abide by the plain meaning” of the condition, Bloomberg said. “These claims are substantially exaggerated and belied by experience” -- which it said is buttressed by the fact that 3.6 percent of all networks on Comcast were relocated by the operator in an 11-month period this and last year.