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Antitrust experts slam Comcast merger
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   October 20, 2014 Chairman Tom Wheeler Commissioner Mignon Clyburn Commissioner Jessica Rosenworcel Commissioner Ajit Pai Commissioner Michael O’Rielly Federal Communications Commission 445 12th Street SW Washington, DC 20554 Re: Comcast - Time Warner Cable, MB Docket No. 14-57 Dear Chairman Wheeler and Commissioners, The undersigned professors of antitrust law and economics submit this letter to the Federal Communications Commission (“FCC” or “Commission”) to assist the Commission in its review of the proposed merger between Comcast Corporation (“Comcast”) and Time Warner Cable, Inc. (“Time Warner”). 1  The Commission must make a determination of whether the  proposed transaction would serve “the public interest, convenience, and necessity.” 2  We note that the FCC undertakes a competitive analysis in the public interest similar to, but distinct 3  from, the traditional antitrust analysis undertaken by the Department of Justice (“DOJ Antitrust”) and the Federal Trade Commission (“FTC”). For the reasons we explain below, we believe that the merger should be blocked in its entirety because it would substantially lessen competition in violation of section 7 of the Clayton Act and is not in the public interest. In this letter, we analyze four issues that, when taken together, require the Commission to  block the merger: -- First, we address important market definition issues. We consider the critically important national market for broadband distribution of content, and in so doing, we draw upon a highly relevant precedent: the  AT&T/MediaOne  transaction in 2000, in which the Department of Justice prevented the merging parties from combining broadband assets that would, like the current transaction, have given them roughly 40 percent of the national market for broadband distribution of content. On the consumer-facing side of the market, we address issues of 1  Applications and Public Interest Statement, In re Applications of Comcast Corporation and Time Warner Cable Inc. for Consent to Transfer Control of Licenses and Authorizations, FCC, MB Docket No. 14-57 (Apr. 8, 2014) [hereinafter Comcast-TWC Public Interest Statement]. 2  Section 310(d) of the Communications Act of 1934, 47 U.S.C. § 310(d). 3   See, e.g. ,  In re Applications of Comcast Corp., General Electric Co. and NBC Universal, Inc. , 26 F.C.C.R. 4238, 4248, ¶ 24 (2011).   Federal Communications Commission October 20, 2014 Page 2 switching costs and potential entry into local broadband access markets, and establish that neither competition from existing DSL providers nor credible entry threats would be effective to discipline the merged firm from engaging in anti-competitive behavior. We also reject claims that either mobile or satellite-based broadband should be included in the relevant market. And we point out that the parties’ “no overlap, no problem” argument, if accepted, would lead to the conclusion that the antitrust laws would permit one party to own the dominant cable provider in every local market in the United States. Such a notion, with no limiting principle, simply cannot stand. -- Second, we address the long-term competitive threat to the merging parties’ cable  business presented by online video distributors (“OVDs”), and show that the merger would significantly enhance the Applicants’ power to foreclose this important competition, resulting in fewer choices for consumers. -- Third, we examine the parties’ claimed efficiencies and conclude that they are inadequate under case law and the 2010 DOJ Antitrust/FTC Horizontal Merger Guidelines (“2010 Merger Guidelines”) to offset the competitive harm threatened by the merger. -- Finally, we explain why behavioral remedies are insufficient to prevent harm to competition and consumers and conclude that the merger should be blocked in its entirety under the Clayton Act and the Communications Act of 1934. I. Market Definition Issues The proposed merger would affect a wide variety of markets. We focus here on the merger’s potential impact on a national market for broadband distribution of content, a market with enormous importance for the future of competition in video programming and distribution. A.   The State of Broadband Competition FCC Chairman Wheeler recently explained the importance of broadband in his speech “The Facts and Future of Broadband Competition.” 4  The stakes are high, as Chairman Wheeler noted that “high-speed connections are crucial not only for the kind of innovation that will educate our children and deliver quality health care, but also improve energy efficiency, fill the employment ranks, and maintain the United States as the world’s innovation leader for the 21st Century.” 5  Competition in broadband creates a virtuous circle in which “the better the available  broadband performance, the more that edge providers will take advantage of that performance 4  Tom Wheeler, Remarks, FCC, The Facts and Future of Broadband Competition (Sept. 4, 2014), http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0904/DOC-329161A1.pdf . 5    Id.  at 2.     Federal Communications Commission October 20, 2014 Page 3 with new applications, which in turn will drive more investment to meet that demand for next-generation broadband.” 6  Unfortunately, the dream of real broadband competition has not been realized in the  present marketplace. Chairman Wheeler said that “[a] 25 Mbps connection is fast becoming “table stakes” in 21st century communications. Today about 80 percent of American homes have access to a broadband connection that delivers 25 Mbps or better,” 7  which he later described as “the essential infrastructure for 21st century economics and democracy.” 8  In so doing, the Chairman cast substantial doubt on Applicants’ claim that slow DSL service and mobile and fixed wireless service belong in the relevant market with cable broadband. 9  He said “[t]raditional DSL is just not keeping up, and new DSL technologies, while helpful, are limited to short distances. Increasing copper’s capacity may help in clustered business parks and downtown buildings, but the signal’s rapid degradation over distance may limit the improvement’s practical applicability to change the overall competitive landscape.” 10  As to wireless, the Chairman stated that while “[w]e have great hopes for wireless as a potential substitute for fixed broadband connections, . . . today it seems clear that mobile broadband is just not a full substitute for fixed broadband, especially given mobile pricing levels and limited data allowances.” 11    New Entry. Other high-speed alternatives are not now a significant competitive constraint on cable broadband. At present, Google Fiber has been deployed in only three markets and Google’s national market presence in broadband is tiny. 12  Meanwhile, incumbent cable operators support lobbying efforts to limit the potential growth of Google Fiber and other fiber entry – such as municipal broadband – across the country. 13   6    Id.  at 2-3. 7    Id.  at 3. 8    Id.  at 4. See also , Jon Brodkin, Sorry, AT&T and Verizon: 4Mbps isn’t fast enough for “broadband”— “  FCC chairman says Americans shouldn’t subsidize Internet service under 10Mbps , ” Arstechnica   (Sept 17 2014) http://arstechnica.com/business/2014/09/sorry-att-and-verizon-4mbps-isnt-fast-enough-for-broadband/. 9  Wheeler,  supra  note 4 at 3-5. 10    Id.  at 4-5. 11    Id.  at 5. 12  https://fiber.google.com/cities/. 13  Jon Brodkin, Who wants competition? Big cable tries outlawing municipal broadband in  Kansas , Arstechnica (Jan. 31, 2014), http://arstechnica.com/techpolicy/2014/01/who-wants-competition-big-cable-tries-outlawing-municipal-broadband-in-kansas/.   Federal Communications Commission October 20, 2014 Page 4 Chairman Wheeler also painted a pessimistic view of competitive alternatives in the near term. He stated, “These gigabit developments are positive, but they are not yet pervasive. Looking across the broadband landscape, we can only conclude that, while competition has driven broadband deployment, it has not yet done so in a way that necessarily provides competitive choices for most Americans .” 14  As a result, the Chairman stated, “cable companies  provide the overwhelming percentage of high-speed broadband connections in America. Industry observers believe cable’s advantage over DSL technologies will continue for the foreseeable future.” 15  Thus, for Americans seeking broadband at what Chairman Wheeler called “table stakes” speeds, cable is often the only alternative. B.    National Market for Broadband Content Distribution Distribution of video content over the Internet is among the many important uses of  broadband, and the national market for broadband distribution of content over the Internet is the market that would be most profoundly affected by the proposed merger. This market was  previously recognized by the U.S. Department of Justice in  AT&T/MediaOne , a precedent remarkably similar to the current proposed deal. In that transaction, AT&T owned a controlling interest in broadband provider Excite@Home. Excite@Home at the time had exclusive contractual rights to offer residential broadband service for cable providers AT&T, Comcast, Cox, and others. AT&T sought to merge with cable provider MediaOne, which owned a substantial interest in Road Runner, which had exclusive contractual rights to offer residential  broadband service for cable providers MediaOne and Time Warner. 16  Together, MediaOne and Road Runner controlled approximately 60 percent of residential cable broadband service, and cable broadband constituted approximately 70 percent of broadband service, so the merged entity would have controlled approximately 40 percent of residential broadband service. 17  Because of the merger’s potential anticompetitive effect on the national market “for aggregation, promotion and distribution of residential broadband content,” the Antitrust Division refused to permit the merger to go forward unless the parties divested one of the cable broadband services. The Department’s Complaint stated that: 14  Wheeler,  supra  note 4 at 4. 15    Id.  at 3. 16  Press Release, Dept. of Justice, Justice Department Requires AT&T To Divest Mediaone’s Interest In Road Runner Broadband Internet Access Service (May 25, 2000), http://www.justice.gov/atr/public/press_releases/2000/4829.htm. 17  Complaint, United States v. AT&T  ,    No. 1:00-cv-01176, 12-13 ¶ 34 (D.D.C. May 25, 2000) [hereinafter AT&T Complaint].
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