One of Robert McDowell’s pet peeves is the practice of attaching conditions to a merger that could not be made mandatory by the full regulatory process. And it’s not even conditions that the FCC asks for – he feels that those proposing mergers come to the Commission with the sense that they have to offer conditions in order to get approval. And the merger that came up was Comcast and NBCU.
Chairman Julius Genachowski said that he could understand why proponents of such a merger would offer conditions – and he said that after carefully collecting comments and building a record on the merger, it was clear that this was a unique merger that could pose a threat to competitors. In particular, combining a huge ISP with a major entertainment corporation could give Comcast the ability to discriminate when it comes to providing content to its internet subscribers. With that in mind, he told questioner Marsha Blackburn (R-TN) that Comcast’s offer to abide by network neutrality rules would be enforced even if the rules are struck down in court.
That exchange actually gets to the crux of the matter. McDowell thinks that only merger-specific conditions. And many Republicans think that network neutrality is totally irrelevant to that merger. But Genachowski, Comcast competitors and many Democrats think it is very much merger-specific. So it becomes a matter not of process, but a matter of opinion as to what is merger specific and what is not.
In general, Genachowski said that if merger principals come in offering conditions, it is completely appropriate to make them mandatory.