FCC Sets Up Teams to Review Transactions

Last week the FCC made two important announcements concerning its review of the applications filed for approval of the Comcast – Time Warner Cable – Charter cable merger and spin off transactions, and at the same time the agency formally started the time clock running on its review. The FCC announced the formation of teams to review the transactions, and established the filing dates and rules for formal participation. The depth and breadth of the review teams suggests the FCC will engage in a serious examination of oppositions and comments seeking that conditions be imposed on the approvals – provided that the comments/objections are well supported and made in a timely fashion. This review provides a unique opportunity for local governments to object to the merger (even if the merger is not subject to review at the local level) and provides an opportunity to raise concerns about the merger’s effects on localities, as well as to seek conditions that could protect local communities, should the FCC decide to approve the merger. This could include, for example, conditions that protect PEG, and that ensure Comcast does not abuse its control over the “last mile” broadband connection to the home. But as we explain below, the window for local governments to effectively make their concerns known is small – and could close late next month.

Transaction Review Teams: A steering committee composed of top members of major bureaus and offices — legal, media, wireline, wireless and international — will oversee review of the Comcast transactions and the AT&T-DirecTV merger. The review teams also include an attorney formerly with the Department of Justice’s Antitrust Division and two Northwestern University professors with economics and business expertise.

Rules for Public Participation and Filing Dates: The pleading cycle has three stages and anticipates two different types of responses to the applications — comments on the applications and petitions to deny the applications. The difference between the two types of filings is material. Filing a petition to deny will preserve your rights to take further action if you are unhappy with the FCC’s decision on the applications. Simply filing comments generally does not allow you to seek reconsideration of the FCC’s decision or appeal a final decision to the courts.

The due dates for filings are as follows:

Comments on Applications / Petitions to Deny Applications: Aug. 25

Responses to Comments / Oppositions to Petitions to Deny Applications: Sept. 23

Replies to Responses to Comments / Replies to Oppositions to Petitions to Deny: Oct. 8

Although ex parte communications (outside the above dates) will be permitted in limited circumstances, the FCC’s public notice warns participants that only timely participation can ensure that your issues will be fully considered. Specifically, the notice states “petitioners and commenters should raise all issues in their initial filings. New issues may not be raised in responses or replies. A party or interested person seeking to raise a new issue after the pleading cycle has closed must show good cause why it was not possible for it to have raised the issue previously. Submissions after the pleading cycle has closed that seek to raise new issues based on new facts or newly discovered facts should be filed within 15 days after such facts are discovered. Absent such a showing of good cause, any issues not timely raised may be disregarded by the Commission.”

That makes August 25 the key filing date to have your voice heard. Now is a great time for interested communities to create a coalition so that critical issues can be timely raised.

For more information about the merger, please click here: http://www.fcc.gov/transaction/comcast-twc