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Public Knowledge today told the Federal Communications Commission (FCC) that it must impose three conditions guaranteeing access to programming and to telecommunications networks if Comcast should is to be allowed to purchase NBC Universal.
You can find the compete filing here.
In its filing with the FCC, PK said the Commission first “must impose strict non-discrimination rules that prevent the entity from interfering with the distribution of non-affiliated content through filtering, blocking, or degrading distribution.”
This condition is necessary for two reasons, PK said: “A combined Comcast-NBCU entity would have a distinct incentive to ensure that video streaming of television programs from NBC.com (or from Hulu, of which NBCU owns a 32% share) would load faster and play back more smoothly than programs from ABC.com or any other competitor's website.” Second, there is the danger that, “the merged entity can withhold NBCU content from online sources, conditioning access upon a consumer subscribing either to Comcast's MVPD service, its broadband service, or both. The ability to tie the two services together, combined with the increased bargaining power of having more programming to withhold, would permit the merged entity to draw consumers away from other MVPD providers.”
Second, PK said the FCC must take into account a realistic view of the program-distribution landscape. The Commission “must recognize that temptation for anticompetitive behavior flows largely from Comcast’s control of last mile networks,” PK said: “The newly merged entity should be required to offer wholesale broadband access services to unaffiliated ISPs. Allowing unaffiliated ISPs to access the last mile networks of the newly merged entity and compete for Internet customers would impose a valuable check on any anticompetitive impulses.” Earthlink has proposed this condition as well in more detail.
Third, the FCC must also impose conditions to prevent the newly merged entity from abusing its position as a source of programming. PK recommended that there be “expanded program access requirements for all content controlled by the newly merged entity.”
PK said that, “In addition to existing obligations to make content available to traditional MVPDs on reasonable and nondiscriminatory (RAND) terms, the Commission should require that the content be made available on RAND terms to OTT providers and other non-traditional competitors to MVPD service. This will guarantee that the newly merged entity will not attempt to stifle the development of potential competitors by starving them of popular programming.”