RICK BOUCHER
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ENERGY AND COMMERCE
CIIAI~MAN,
COMMUNICATIONS, TECHNOLOGY
AND THE INTERNET
ENERGY AND THE ENVIRONMENT
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COURTS AND COMPETITION POLICY
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August 2, 2010
The Honorable Julius Genachowski
Chairman
Federal Communications Commission
445 12
th
Street, SW
Washington, DC 20554
Dear Chairman Genachowski:
,06 NORTH WASHINGTON AVENue
P.O. 1l0X 1Z1111
PULASKI, VIRGINIA 24301
1640) 980-4310
I write regarding the Commission's review ofthe proposed combination oftwo ofour
nation's largest media and entertainment companies - Comcast and NBC Universal.
The key to evaluating any merger or joint venture is to ask how it will affect consumers,
based on the specific facts ofthe business combination. Some combinations may benefit
consumers by enabling the deployment ofnew and better products and services. Others may
harm consumers by limiting the choices available to them.
With the acquisition ofNBC Universal, Comcast will be the largest media company in
the nation. It is currently the largest provider ofbroadband last-mile services and the largest
provider ofmultichannel video distribution services. As further detailed below, I have some
concerns about the potential for consumer harm, particularly with respect to the continued
availability ofa wide array ofvideo programming content to all Americans, regardless of
whether they subscribe to the combined company's various services.
After reviewing the matter, I urge the Commission to approve the Comcast-NBC
Universal combination and to consider and address the following concerns I have in order to
mitigate the potential for consumer harm. I also urge that the Commission approve the proposed
combination by December 1, 20 IO.
1. Programs that are delivered over the air by NBC today and are later made available
on the nbc.com Web site for free online viewing should not be permitted to migrate
exclusively to TV Everywhere or exclusively to any other online program platform or
platforms.
2. Vertically-integrated cable operators are prohibited under current law from entering
into exclusive contracts for the provision ofsatellite-delivered video programming in I)
which the vertically-integrated cable operator has an attributable interest, unless the
Commission determines that the contract is in the public interest. Correspondingly,
the combined company should not be permitted to enter into exclusive contracts that
restrict the availability ofonline video programming content to TV Everywhere or
any other online platform when the company has an attributable interest in that
content.
3. As an analog to concerns about the company's treatment ofaffiliated video
programming, the combined company also should not be permitted to keep its
competitors from offering video programming content that is not affiliated with
Comcast. Specifically, the combined company should not be allowed to enter into
exclusive agreements, nor enforce any existing exclusive agreements, regarding
content in which it does not have an attributable interest that is available on TV
Everywhere or any other online platform. This prohibition should apply when an
exclusive agreement could potentially restrict the availability ofthe unaffiliated
programming on the platforms ofother multichannel video programming distributors
or on other online platforms.
4. IfComcast, or an entity controlled by or under common control with Comcast,
acquires the distribution rights for any high value sporting events, including NFL,
NBA, MLB, NHL and NCAA games and PGA golf events, that were, immediately
prior to Corneas!'s acquisition ofsuch rights, distributed via over-the-air
broadcasting, the combined company should not distribute such programming
exclusively on its pay cable networks or diminish the over-the-air distribution ofsuch
high value sporting events to such an extent as to effectively deprive the public of
free access to such events. I understand that Comcast, NBC Universal and the NBC
affiliates have reached an agreement regarding sports programming, and I request that
the Commission incorporate that agreement into its final order.
5. In response to the concern that at one time, the users of Boxee technology were not
able to access content distributed by Hulu, the combined company should not prevent
any Internet-enabled device from displaying any online programming service in
which the combined company has an attributable interest or an agreement, provided
that such display does not compromise the functionality, appearance and intellectual
property rights ofthe online programming service.
As ofthe date ofthis letter, discussions focused on the potential for passing legislation to
assure Internet openness are underway. Ifthose discussions are successful, Congress will soon
take up legislation that will apply a uniform set ofnetwork openness principles to all broadband
providers. I strongly believe that these principles, once adopted, should have universal
application to all broadband providers and that it would be highly inappropriate to impose
network openness requirements on a single broadband provider prior to the time that rules are
applicable across the industry. Accordingly, I urge that the Commission not impose any
conditions in its order approving the Comcast-NBC Universal combination regarding network
openness. That consideration is best left to the multiparty negotiations, legislation and
Commission proceedings ofgeneral applicability.
I appreciate your consideration ofthese concerns. Addressing them will help ensure that
the synergies that the transaction promises confer benefits on consumers while mitigating the
potential for consumer harm.
Thank you for your attention to this matter.
~
Rick Boucher
Member ofCongress