Policy

Bloomberg, Comcast Square Off

6/20/2011 12:01 AM Eastern

Washington -- Picture
former Federal Communications
Commission
chairman Kevin Martin in
a cardigan, donning tennis
shoes and asking “Won’t you
be my neighbor? — or else.”

In the first test of the
Federal Communications
Commission’s order approving
the Comcast/
NBCU joint venture,
Bloomberg L.P., whose
lawyers include the abovenamed
former chairman
and Comcast critic, has
asked the commission to start making the nation’s largest
cable operator move Bloomberg TV adjacent to other
news nets in major markets.

Bloomberg has hired the firm of David Boies to team
with Patton on the Comcast condition challenge. That
teams Patton Boggs’ Martin, who was a Bush campaign
lawyer during the
Florida recount, with
Boies, Al Gore’s attorney
in Bush v. Gore,
and his firm.

Comcast said
Bloomberg’s allegations
are baseless and
it has no intention of
blowing up its channel
lineups to comply
with a condition it
says the FCC did not
impose, at least in the
way Bloomberg is interpreting
it.

The complaint will
likely come down
to the def init ions
of “neighborhood,”
“now” and “significant
number or percentage”
in the FCC’s order requiring a “narrowly tailored”
channel placement condition.

“[T]he evidence clearly indicates that Comcast right
now extensively groups news channels [like Fox News
Channel, MSNBC, and CNN] into new neighborhoods,”
Bloomberg said in its complaint. “Moreover, the FCC
order expressly states that the news neighborhooding
condition applies to news neighborhoods that Comcast
carries ‘NOW or in the future,’ thus meaning that it applies
to any news neighborhood that Comcast carried as
of the date of the FCC order (Jan. 18).”

Bloomberg wants the FCC to make Comcast move
Bloomberg TV into “existing news neighborhoods” as defined by Bloomberg, within 60 days in the top 35 DMA’s
in the country.
Bloomberg’s definition of a neighborhood is at least four
news channels in a block of five adjacent channels. Generally
speaking the “neighborhoods” Bloomberg is looking
to get real estate in consist of Fox News Channel, CNN,
Headline News, MSNBC and CNBC.

Comcast says four networks is clearly a minority of
“news and/or business channels” and insufficient to qualify
as a neighborhood.

“This has become a test of how serious Comcast is about
abiding by and implementing the conditions set by the
Commission. So far, Comcast
is failing that test,”
Bloomberg government
affairs execut ive Greg
Babyak said of the filing.

“The FCC Order in the
Comcast NBCUniversal
transaction does not require
Comcast to ‘neighborhood’
Bloomberg,”
Comcast said Monday in a
statement. “The FCC clearly
stated that ‘we decline to
adopt a requirement that
Comcast affirmatively undertake
neighborhooding’
and that the neighborhooding
condition ‘would
only take effect if Comcast-NBCU undertook to neighborhood
its news or business news channels.’”

According to Bloomberg’s interpretation, examples of
Comcast’s failure to comply includes in Washington, D.C.,
where it carries CNN, Headline News, CNBC, MSNBC, and
Fox News on adjacent channels 35-39 and Bloomberg Television
on channel 103.

Comcast pointed out in its own letter to the FCC
that it made its channel placement decisions on MSNBC
and CNBC long before it entertained the NBCU
deal.

Bloomberg officially asked Comcast to move Bloomberg
TV May 26, but there had been intimations of a legal difference
of opinion early in the process.

On the same day the deal was approved—Jan. 18--
Bloomberg President Dan Doctoroff had called the
neighborhooding condition “strong action” to preserve
independent programming, while Comcast EVP David
Cohen said the FCC had not included a general neighborhooding
condition, and drew a distinction between that
and the narrower neighborhooding condition Bloomberg
had initially sought.

Neil Grace, spokesman for FCC chairman Julius Genachowski,
had no comment on the complaint or what the
chairman meant by “neighborhood” when he approved
the order.

A spokesman for FCC commissioner Michael Copps said
they were reviewing the complaint, which was filed early
Monday morning, and that the FCC’s review should be
“thorough and expeditous.”

September