The NBCU Comcast Joint Venture On December 3, 2009, Comcast and General Electric (GE) announced their intention to merge GE s subsidiary NBC Universal (NBCU) with Comcast's cable networks, regional sports networks and other assets. Comcast would own 51 percent of the joint venture, GE would own 49 percent, and Comcast would manage the new entity, expected to be worth just over $37 billion. Headquartered in Philadelphia, Pennsylvania, Comcast is the largest operator in the multichannel video programming distribution (MVPD ) industry in the United States, providing cable television service to about 23.8 million customers in 39 states and the District of Columbia. It is also the largest home internet service provider (ISP) in the United States. It also has significant holding in several cable networks (e.g. E! Entertainment Television, TV One, Style, G4, The Golf Channel and Versus) and nine regional sports networks (RSNs). Headquartered in the Rockefeller Plaza in Midtown Manhattan, NY, NBCU owns and operates two broadcast television networks, the NBC television network and Telemundo, ten ownedand operated local television stations in the United States, and numerous cable channels including USA, Bravo, CNBC and MSNBC. It does not operate in the MVPD industry. To complete this deal, the companies needed to get authorization from the US Federal Communications Commission (FCC) to transfer control of broadcast, satellite, and other radio licenses from GE to Comcast. In their application and public interest statement ( the Application ), filed January 28, 2010, the companies expressed the intention to create a new content focused joint venture that will promote the public interest by increasing the quantity, quality, diversity, and local focus of video content and accelerate the innovative `anytime, anywhere` future that Americans want. In the Application, Comcast and GE claim that Comcast s cable programming channels constitute only a tiny percentage of the content industry, and that the new NBCU would account for a mere 12% of total cable advertising revenues, placing it behind Disney/ABC, Time Warner and Viacom. They also claim that the combined company would not have substantial market power in either the (upstream) programming or (downstream) distribution markets, each of which they describe as fiercely competitive. Finally, they claim that the existing regulatory structure, namely the Commission s program access, program carriage, and retransmission consent rules, as well as an established body of antitrust law provide adequate safeguards for any conceivable economic harm resulting from the transaction.
FCC Review, Petitions to Deny and Initial Comments The FCC is required by law to review such transactions to determine if they are in the public interest, convenience and necessity. 1 FCC review includes a thorough analysis of potential benefits and harms of transactions. The FCC may choose to impose remedial conditions to address possible harms. If the benefits of the transaction outweigh the harms (conditional on remedies being in place), the FCC approves the transaction. The potential transaction was, technically, not a merger, because GE would maintain minority ownership for eight years. As a result, the scrutiny did not follow the guidelines used by the Federal Trade Commission (FTC) and Department of Justice (DOJ) in evaluating mergers. However, the FCC and DOJ worked closely together and carefully considered the economic effects of the transaction. The FCC set a deadline of June 21, 2010, for petitions to deny the transaction and initial comments. Several parties responded, expressing various concerns over the anticompetitive impact of this deal: 1. On behalf of the American Cable Association, Professor William Rogerson (Northwestern University, Chief Economist for the FCC 1998 99) wrote reports arguing that the merger would cause horizontal and vertical harm. 2. On behalf of Bloomberg, Professor Leslie Marx (Duke University, Chief Economist for the FCC 2005 06) wrote a report arguing that the merger would have harmful program carriage effects. 2 3. On behalf of the Communications Workers of America, Dr. Hal Singer (Navigant Economics) wrote a declaration arguing that the merger would have harmful vertical foreclosure effects and would harm online competition. 3 4. DISH Network wrote a petition to deny the transaction focusing on vertical foreclosure threats. 5. On behalf of DirecTV, Professor Kevin Murphy (University of Chicago) wrote a report presenting a bargaining theory based estimate of departure rates and discussing vertical pricing effects. 4 6. On behalf of Earthlink, Professor Simon Wilkie (University of Southern California, Chief Economist for the FCC 2002 03) wrote a report focusing on the transaction s effects on broadband pricing. 5 1 27 US Code Section 310(d). 2 Marx, Leslie. Economic Report on the Proposed Comcast NBC Universal Transaction, June 21, 2010. 3 Declaration of Hal J. Singer, June 21, 2010. 4 Murphy, Kevin. Economic Analysis of the Impact of the Proposed Comcast/NBCU Transaction on the Cost to MVPDs of Obtaining Access to NBCU Programming, June 21, 2010.
7. On behalf of the Consumer Federation of America, Consumers Union, Free Press and Media Access Project, Dr. Mark Cooper and Mr. Adam Lynn wrote a declaration focusing on the transaction s effects on online video competition. 6 In response, Dr. Mark Israel (Compass Lexecon) and Professor Michael Katz (University of California Berkeley, Chief Economist for the FCC 1994 96) presented economic arguments for the proposed benefits of the transaction and arguments disputing the harm in the other reports and declarations. 7 The FCC held a public forum July 13, 2010, discussing the proposed transaction. In response to the Israel Katz report, Professor Rogerson wrote a second report August 19, 2010 (and later a third report November 8, 2010) disputing some claims. Professor Rogerson s three reports can all be found on the website for the American Cable Association at http://www.americancable.org/filings_testimonials_and_letters_2. June 21: FCC Comments regarding the Comcast NBCU Joint Venture (scroll down and click on the attachments. Professor Rogerson s first report begins on page 58 of that.pdf file). August 19: FCC Reply Comments regarding the Comcast NBCU Joint Venture (click on the attachment. Professor Rogerson s second report begins on page 73 of that.pdf file). November 8: FCC Ex Parte regarding the Comcast NBCU Joint Venture ("Rogerson III") (click on the attachment for Professor Rogerson s third report). The FCC Decision On January 18, 2011, the FCC issued its Memorandum Opinion and Order, 8 which included (among other things) the following remedies (most to last 7 years): The FCC introduced improvements to its commercial arbitration process for resolving disputes about prices, terms and conditions for licensing content from NBCU Comcast. Arbitration will follow Major League Baseball style final offer arbitration, where each 5 Wilkie, Simon. Consumer Sovereignty, Disintermediation and the Economic Impact of the Proposed Comcast/NBCU Transaction, June 21, 2010. 6 Declaration of Dr. Mark Cooper and Adam Lynn, June 21, 2010. 7 Israel, M. and M. Katz. Economic Analysis of the Proposed Comcast NBCU GE Transaction (REDACTED), July 20, 2010. http://www.comcast.com/nbcutransaction/pdfs/redacted%20israel%20katz%20reply%20report%20 %20FINAL.pdf 8 Federal Communications Commission 11 4, In the Matter of Applications of Comcast Corporation, General Electric Company and NBC Universal Inc. for Consent to Assign Licenses and Transfer Control of Licenses, January 18, 2011. http://www.fcc.gov/fcc 11 4.pdf
side submits a bid and the arbitrator chooses one. Small MVPDs will have the opportunity to have legal fees waived. The FCC requires that NBCU Comcast provide to all MVPDs, at fair market value and non discriminatory prices, terms and conditions, any affiliated content that it makes available to its own subscribers or subscribers to other MVPDs. The FCC requires that NBCU Comcast offer its programming to online video distributors (OVDs) on the same terms given to an MVPD. The FCC requires that NBCU Comcast make comparable programming available at comparable prices, terms and conditions, to OVDs that enter into agreements to distribute content from NBCU Comcast peers. The FCC requires that NBCU Comcast not exercise control of (or withhold programming from) Hulu. The FCC requires that NBCU Comcast not discriminate in video programming distribution on the basis of affiliation with NBCU Comcast. Moreover, if Comcast neighborhoods its news (including business news) channels, it must include all unaffiliated news (or business news channels) in that neighborhood. The FCC requires Comcast to add 10 new independent channels within eight years on its digital tier. This order also includes details of both the FCC s own economic analysis and the ways in which it was influenced by the arguments advanced by the various Professors and other consultants. The FCC also released a more compact summary of the conditions and commitments. 9 On the same day, the DOJ and five state attorneys general (from California, Florida, Missouri, Texas and Washington) filed a lawsuit in the District Court for the District of Columbia to block the venture, and simultaneously entered into a settlement of that lawsuit. 10 In a DOJ press release Christine Varney (Assistant Attorney General in the Antitrust Division) stated "The Antitrust Division worked in close cooperation and unprecedented coordination with the Federal Communications Commission (FCC) to reach a result that fully protects competition, allowing businesses to bring new and innovative products to the marketplace, providing consumers with more programming choices." 11 9 FCC press release January 18, 2011. http://www.fcc.gov/daily_releases/daily_business/2011/db0118/doc 304134A1.pdf 10 Consent Decree, US, CA, FL, MO,TX, WA v. Comcast Corp, General Electric Co, NBC Universal, Inc. January 18, 2011. http://www.comcast.com/nbcutransaction/pdfs/comcast NBCU%20Consent%20Decree.pdf 11 Department of Justice press release Tuesday, January 18, 2011. http://www.justice.gov/atr/public/press_releases/2011/266149.htm
Assignment There are far too many issues to cover in one day or in one case memo. We will discuss issues relating to online video content and to Bloomberg s neighborhood complaint in class, but do not concern yourself with them in preparing your memo. There are also far too many related documents to provide a comprehensive list for you to read. Marshall information you can find on the internet news releases, economic reports, journal articles (yes, some have already been written) and answer the following questions. 1. How can this transaction add value? That is, if, as they claim, NBCU and Comcast are not going to significantly benefit from increased market power (which would capture more of existing value), why did they pursue and complete this joint venture? 2. What are the main arguments advanced by Rogerson for the harm caused by the transaction? Discuss both horizontal and vertical harm. 3. Do the remedies the FCC includes in their memorandum opinion and order adopted January 18, 2011, respond to the concerns listed in the Rogerson reports? 4. What are the strategic implications of these remedies for small to mid size cable companies? Be creative. You are free to use anything you can find, but account for author points of view in using what you find and detail your references if they are not listed in the discussion above. Above all, recognize that this case assignment differs from previous assignments in that there are many interesting questions relating to this case whose answers we do not yet know. Also, you should be able to answer questions 2 and 3 relying on just the first Rogerson report and the information above.