Comcast says it will agree to make an online access provision, though one involving outside suppliers rather than its owned content, a binding condition on its proposed Comcast/NBCU deal, according to an ex parte filing posted on the FCC Web site Tuesday (Dec. 7).
Comcast says that its contracts already generally allow unaffiliated nets to make content available online, but "to assuage any concerns in this area," it will agree to the following-worded condition, subject to some caveats: “Comcast will not require unaffiliated content suppliers, as a condition of carriage on Comcast cable systems, to refuse to sell their programming to MVPDs and Online Video Distributors (‘OVDs’).”
The caveats are that "Comcast should have the right, consistent with industry practice, to require that unaffiliated content suppliers not provide their programming for free over the Internet during an initial window," that the company "should also have the right to obtain from content suppliers parity treatment with other distributors, online or otherwise," and that "Comcast should be able to negotiate for a limited period of exclusivity for promotional programming."
Comcast's agreement to the condition came in a response to arguments by online streaming site ivi TV that Comcast contracts with cable networks are "the only impediment" to its video programming distribution model and have prevented various networks from doing business with ivi. Comcast said that argument was "without merit."
Ivi filed an ex parte notice with the FCC last month, which Comcast pointed out in its own ex parte filing this week was four months after the FCC deadline for raising concerns about the proposed $30 billion NBCU joint venture.
Comcast pointed out that it does not even have contracts with two of the networks cited as examples by ivi--Wealth TV and Documentary Channel, which would make it hard for there to be any "Comcast-designed contractual roadblocks."
Of a third example of a company not going business with ivi--Univision--Comcast points out that the reason there may be that it is suing ivi for copyright infringement in court, along with other content owners including major broadcast groups. A fourth, Outdoor Channel, has filed comments in the proceeding praising Comcast for fair dealing and rollout support.
"This commitment isn't worth much because it is undermined by two caveats," said Andrew Shwartzman of Media Access Project, which has been pushing for online conditions. "These loopholes permit Comcast to adopt 'MFN' conditions and periods of exclusivity that make the 'concession' meaningless."