Public interest groups, including Media Access Project and Free Press, have asked the FCC to "defer
action" on the Comcast/NBCU joint venture until Comcast makes its
programming contracts back to 2006 part of the FCC record in the transaction,
the FCC staff can review them, and groups like themselves can view them, subject
to protective orders, then comment on them.
The FCC's transition team, backed by the chairman, has already
given its tentative approval of the deal, subject to mandatory and voluntary
conditions, but MAP and company say the FCC promised not to
make a decision until it had reviewed the entire record.
In a letter to FCC Chairman Julius Genchowski and the other
commissioners dated Tuesday, they pointed to the chairman's testimony in a Mar.
11, 2010 Senate hearing on the deal that the commission's merger decisions are
made "only after we compile and review a full record."
They point out that Comcast had not complied with the FCC's
request that it provide information on "certain programming
contracts," specifically all programming contracts struck since 2006.
"[I]f opponents are denied access to this information subject to the
strict protective orders designed to protect the confidentiality of business
information," they argue, "there will not have been a full
opportunity for them to file facts and arguments based on that data."
The groups concede that the information was provided to the
Justice Department--with which the FCC is working closely--and that when they
asked John Flynn, senior counsel to the chairman for transactions, whether the
FCC staff had reviewed the documents, he said that the FCC staff had access to
them and that "it is aware of its obligation to ensure that the
Commission's record reflects documents upon which the Commission has relied in
its review of the pending applications."
But that is not sufficient, they argue. "It is not enough
that some members of the Commission staff might have had access to these
contracts at the Department of Justice. First, any such review makes the
material part of the record on which the Commission will act, and requires that
they be placed in the Commission's record. More importantly, any such
examination would be without the benefit of arguments as to their significance
from the interested parties."
A Comcast spokesperson had no response to the letter, but referred
to the company's response when Bloomberg leveled the same charge of
noncompliance last month. It characterized the charge as a last-minute attempt
to derail the deal and not the first time it had tried to do so. Comcast
said it had not "refused to produce the documents, but that their
production had been deferred after conversations with commission staff.
"Simply put, Applicants have fully complied with all Commission
requests," Comcast said in that Nov. 22 letter, a statement it was
standing by Tuesday (Dec. 28). The company also cited its over 500,000 pages of
business documents and said it "strained credulity" for Bloomberg,
and now MAP and company, to suggest there was insufficient information on
which to base a public interest finding on the deal, which is the FCC's charter
in approving or denying the transfer of the NBCU station licenses.
The groups are looking to put the brakes on a vote that could
happen as early as the first week of January, though more likely mid-month, after
some commissioners and staff return from the Consumer Electronics Show in Las
Vegas (Jan. 6-9).