WASHINGTON, DC -- After a full year in merger review, the market is getting antsy about Comcast's proposed $45 billion acquisition of Time Warner Cable. But just as winter looks like it might never end, the review process has a ways to go before the regulatory clouds clear.
Speaking at the ACA Summit here Wednesday, American Cable Association (ACA) SVP of Government Affairs Ross Lieberman predicted that a merger decision won't get handed down until the summer. Noting that regulatory review lasted more than 230 days for the Comcast Corp. (Nasdaq: CMCSA, CMCSK)'s acquisition of NBCUniversal LLC four years ago, Lieberman pointed out that document requests and data analysis have been especially intensive for the proposed merger of Comcast and Time Warner Cable Inc. (NYSE: TWC) merger. (See FCC Demands Details on Cable Licensing Deals.)
Even when a ruling is announced, Lieberman suggested that the losing side is likely to propose new conditions that could throw the decision back into question. "This deal is not going how Comcast had planned," he declared.
At the same, Lieberman said he believes that the odds are still better than 50% that the transaction will get approved by the feds.
Others on a panel discussion moderated by CableFAX Daily Editor-in-Chief Amy McClean were not so sure. Public Knowledge Senior Staff Attorney John Bergmayer wouldn't give a percentage of likelihood, but said he believed the merger would be blocked. He argued that the FCC's recent Title II ruling won't help Comcast because the consumer harms generated by the merger will still be present even under the new net neutrality regulatory regime. (See FCC Vote Shows Net Neutrality Strains.)
Those presumed harms were a topic of much debate on the panel. Dish Network LLC (Nasdaq: DISH) SVP Jeffrey Blum laid out the numerous areas where he sees Comcast amassing too much control of the market. Blum noted that Comcast already has a strong position in advertising (in part because of its acquisition of ad company FreeWheel), strong influence in the set-top market and a strong programming advantage because of NBC Universal. With a deal to acquire Time Warner Cable, he added, Comcast would also gain greater control over the broadband market in the US.
Jon Leibowitz, a partner at Davis Polk & Wardwell, and outside counsel to Comcast, countered that while Comcast would have 54% of US broadband subscribers under the FCC's new broadband speed definition of 25 Mbits/s downstream, most of those customers fall under the footprint that Comcast already controls. If a deal were to go through, Comcast would work to improve service in the TWC regions where high-speed connectivity isn't prevalent.
Bergmayer retorted, however, that just because Comcast doesn't overlap geographically with Time Warner Cable, "that doesn't mean somehow it gets an anti-trust free pass."
Blum added that under the theory that non-overlapping footprints means there's no competition, Comcast would have the right to buy up all of the cable operators in the country. He also declared that the real issue is still that Comcast "has incentive and ability to stifle over-the-top [providers]" because of its combined broadband market share and content ownership.
Speaking to content ownership, Blum underlined his reason for concern by pointing to the conditions placed on Comcast's takeover of NBCU back in 2011. He asserted that those conditions had failed, and cited an example with Bloomberg Television as proof. Blum said Comcast was supposed to include Bloomberg in the same neighborhood of its channel line-up as news network CNN. However, Comcast litigated the terms of that condition for three years.
Blum told the ACA Summit audience that he hopes the Comcast/TWC merger will be blocked, although he wasn't willing to lay any odds. "This is serious," he insisted before the crowd. "It's real… and we are legitimately concerned based on the evidence."
— Mari Silbey, special to Light Reading