The full commission has upheld the Media Bureau's decision for Bloomberg in its news neighborhooding complaint against Comcast and will require Comcast to neighborhood SD as well as HD channels.
The commission upheld the bureau definition of a neighborhood, and rejected Comcast's First Amendment challenge.
"We agree with the Bureau's decision that four news or business news channels within any five adjacent channel positions qualifies as a news neighborhood, regardless of whether the channel grouping existed before or was created after the Comcast-NBCU Order," the FCC said. "We reject a challenge from Comcast that the Media Bureau's interpretation of the condition infringes Comcast's First Amendment rights. We also find unpersuasive Bloomberg's argument that, if Comcast's channel lineup has more than one news neighborhood, the condition obligates Comcast to carry independent news and business news channels in all of those neighborhoods. We also reject a contention by Bloomberg that the Media Bureau wrongly categorized some networks as news. Finally, we affirm the Bureau's determination that its initial Order dealt with the issue of carriage of the standard definition ("SD") version of Bloomberg Television in SD neighborhoods and we clarify that the condition generally applies separately to SD and high definition ("HD") networks; that is, if Comcast carries both an SD and HD version of an independent news network, each is treated as a different channel and is independently entitled to carriage in an SD or HD news neighborhood respectively, where an SD or HD news neighborhood exists."
The FCC voted the item Wednesday, but it took a while for commissioner statements to be finished and ready for public consumption.
In May 2012, the FCC agreed with Bloomberg that Comcast needed to move the independent news channel into "news neighborhoods" -- groupings of news channels in adjacent channel positions -- to comply with the NBCU deal condition. That condition was meant to prevent Comcast from favoring its co-owned news nets, like MSNBC or CNBC, over independents.
In August the FCC, in an order clarifying its May 2 order to Comcast to neighborhood Bloomberg TV, stayed the effectiveness of that order as it applied to markets with only a single standard-definition news neighborhood and no vacant adjacent channels.
The FCC said the partial stay would reduce consumer disruption if the FCC changes its decision per the review for which Bloomberg itself has asked.
Both Comcast and Bloomberg sought full commission review for different reasons, Comcast wanted the commissioners to overturn the finding that it had not complied with the NBCU deal condition requiring it to put competing news nets adjacent to "neighborhoods" containing its co-owned news nets and others. Bloomberg wanted clarification that Comcast, to fix the problem, had to "neighborhood both standard definition and high definition channels."
"The Commission was correct in January 2011, when it deemed the condition necessary to ensure that the merger was in the public interest," said Greg Babyak, head of government affairs for Bloomber LP. "The Commission is correct today, in moving to keep the important promise it made to the public. We very much appreciate the diligent work of so many at the Commission and in the public interest community in promoting the availability to the public of diverse sources of news."
"We are disappointed that the FCC failed to constrain the Media Bureau's overly broad construction of the News Neighborhooding Condition," said Comcast VP, government relations, Sena Fitzmaurice. "As it is currently being interpreted, the condition goes well beyond the express language of the FCC's Comcast-NBCUniversal Order and what is justified by the evidence in that case. The FCC's interpretation very likely will lead to significant and unwarranted burdens on us, our customers, and other programming networks. We are evaluating our options."
That would include taking the FCC to court.