Low Chance Seen of Much Delay in Comcast-NBCU FCC Deadlines

The FCC is likely to stick close to its comment deadlines for Comcast’s purchase of control of NBC Universal after a request for a 45-day delay backed by a many advocacy and industry groups, agency and industry officials predicted. That the groups cite no reasons specific to the deal structure to extend a May 3 deadline to file oppositions make it unlikely that the Media Access Project (MAP) and supporters will succeed in getting approval to have final comments due Aug. 1, they said. The Media Bureau built in extra time for comments (CD March 19 p2) in part to rebut time-constraint criticisms, an agency official said. Initial work among staffers reviewing the deal continues, commission officials said.

Supporters of the delay and some others said an onslaught of comment deadlines in other FCC proceedings, lack of public availability of an economic analysis by the companies until just before comment was sought on the deal last week and a request in that public notice augur for extension. A lengthy economic analysis submitted by Comcast, NBC Universal and NBCU parent General Electric was posted in docket 10-56 two days before the public notice, they noted. And the notice asked opponents to make their qualms and any curbs clear in initial comments, they said.

The commission often is reluctant to extend deadlines for decisions on deals, as opposed to rulemakings, without reasons specific to the transaction that would go beyond those offered in the requests for delay this week, said lawyers who reviewed the filings. Chairman Julius Genachowski’s pledge for efficient and transparent review of deals seems to leave little room for significant delay in this case, they said. Delay of several days or a week seems much more likely than a 45-day extension, they said. A Media Bureau spokeswoman declined to comment.

Pointing to a plethora of other proceedings and the small size of groups needing more time to participate wouldn’t normally be a reason for the commission to grant an extension, said an agency official. Realizing the complexity of the deal, the Media Bureau allowed 45 days to comment, more than is typical, the official and others noted. Staffers from that and other bureaus and offices continue early efforts as part of a transactional review group formed to evaluate the deal, commission officials said. New for this deal is the formation of a steering committee likely to consist of front-office officials from those bureaus and offices to help oversee the process, they said.

"Generalized requests are not routinely granted” though they sometimes are, said Barbara Esbin of the Progress and Freedom Foundation, a former Media Bureau front-office staffer uninvolved in the deal. “It would be surprising if this request for extension of time were granted. Essentially it says nothing more than there’s a lot going on, our resources are stretched thin.” Genachowski’s comments portend “the return to the way business was conducted during the [implementation of the] ‘96 Act,” she said: “There were a lot of proceedings. They had deadlines” and all or almost all.

"I would be surprised if they got what they asked for,” said a cable lawyer not involved in the deal. “Maybe instead of a straight no they'll get a little bit of time. … If I were a betting person, my over/under would be they get no more than 14 days.” An extension of five-days or some other “minor” period of time is possible, Esbin said. Lawyer Paul Feldman of Fletcher Heald believes there’s a “good argument” for an extension, he said. “The number of moving pieces in this deal, the broad market and national impact” are plausible reasons, said Feldman, who represents video providers not involved in the deal. “The argument for an extension of time is enhanced if the commission is serious about their statement that all arguments should be front-loaded in this proceeding. So I think that adds something to it for sure."

It was the commission that “left the door open for Comcast to front-load as much of the information as possible,” said Vice President Ross Lieberman of the American Cable Association, a supporter of MAP’s request, referring to the economic analysis. The bureau has been said to have waited to issue the public notice until the analysis was filed, at the merging parties’ request. “While I can understand the public interest statement was made available in January, the economic report wasn’t until recently,” Lieberman said. “That’s the part that’s going to take the most amount of time to both debunk the assertions they make in it as well as put forward our own case."

"If the commission is interested in getting a good record, to make its decision one way or another, it really needs to give the parties more time,” said President Andrew Schwartzman of MAP, which opposes the deal outright. “What’s specific to this deal is it’s the only merger that’s being considered at the same time that the commission is issuing its National Broadband Plan and is considering network neutrality” and “the staff is urging us to participate in these proceedings, and we can’t do everything,” he continued. MAP’s filing listed seven FCC dockets where comments are due next month or in May.

Add to that a May 17 deadline for initial filings at the 3rd U.S. Circuit Court of Appeals on appeals to media ownership rules (CD March 24 p13), said Policy Counsel Corie Wright of Free Press. It also opposes the Comcast-NBC Universal deal outright and supports MAP’s request for more time. “The bottom line is we can say til the cows come home how this merger should be blocked, but unless we can provide the commission with the information to show that this is correct, then it’s just us talking,” Wright said. “We need time to frame it effectively and to make sure the commission has all the data it needs.”