The staff at the Federal Communications Commission decided Wednesday to make a non-decision decision regarding the merger of Comcast and Time Warner Cable, and are recommending turning over the matter, including millions of pages of company documents and 14 months of investigative findings to an administrative law judge to sort out.
The procedural move, dubbed by many regulatory experts as a “deal-killer,” is known officially as a “hearing designation order.” But executives at Comcast know it really means the FCC is sending a strong signal it does not believe the merger is in the public interest.
The sudden recommendation by the FCC is seen by some observers as a coordinated move with the U.S. Department of Justice to let Comcast CEO Brian Roberts know the deal is in serious peril. In 2011, the Justice Department declared its opposition to another blockbuster merger between AT&T and T-Mobile, and the FCC announced its own opposition just a few hours later. The merger was declared dead shortly thereafter.
Placing the matter in the hands of an administrative law judge would mean a drawn-out, complicated hearing that would probably last longer than the 1995 trial of O.J. Simpson. Few companies bother. Even if Comcast decides it will fight, if the Justice Department successfully challenges the merger in court, the hearing designation order is moot and the merger fails.
Most observers expect Comcast will call off the merger before dragging the matter out in a court or hearing room.
The Wall Street Journal broke the story last night, calling it a “significant roadblock.”
Wall Street analysts were more direct.
“The fundamental problem with this transaction is there is no major constituency outside of Comcast and Time Warner Cable that want it to move forward,” said Rich Greenfield, analyst at BTIG Research, which has been predicting the deal falls apart. Mr. Greenfield noted that it would be a “very uphill battle” for Comcast to prove its case through the FCC’s hearing process that its merger is in the public interest. “Is it really worth spending more time and resources to fight the government?”
“I’d never say anything was 100 percent dead, but this is in the 99 percent category,” Greenfield added. “It’s not every day that you have a transaction that is universally hated by everyone outside of Philadelphia,” where Comcast is based.
“No, the Comcast deal isn’t dead yet,” said telecom analyst Craig Moffett on Thursday. “But it’s a bit like an elephant that has been dropped out of an airplane. At around 10,000 feet, it is technically still alive. But it is falling fast, there’s not much you can do to stop it, and its odds of survival are pretty low when it hits the ground. Engaging in a war of attrition with the U.S. government is generally a bad idea and one rarely undertaken.”
The usually brash and confident Comcast was uncharacteristically muted in their response to the latest DOJ and FCC developments.
“As with all of our DOJ discussions in the past and going forward, we do not believe it is appropriate to share the content of those meetings publicly, and we, therefore, have no comment,” said a Comcast spokeswoman.
The apparent looming defeat of the Comcast/Time Warner Cable merger would be a testament to unified opposition from consumers, programmers, competitors, and emerging online video distributors that might one day fully challenge traditional cable television.
“In a democracy like this, you have gather your forces to say no to politically powerful people,” Mark Cooper, a Comcast opponent and research director at the Consumer Federation of America, told the Philadelphia Inquirer.
[flv]http://www.phillipdampier.com/video/CNN Death sentence for Comcast merger 4-23-15.mp4[/flv]
A death sentence for the Comcast-Time Warner Cable merger? Analysts think so. CNN reports on the history of a merger deal that used to be “inevitable.” (1:42)
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