Boucher Advocates Non-Exclusivity But Not Net Neutrality Comcast-NBCU Merger

WASHINGTON: The chairman of the House Communications Subcommittee told regulators today to impose program-access conditions, but not network neutrality, on the proposed Comcast-NBCU merger. Rep. Rick Boucher, (D-Va.) urged Christine Varney of the Justice Department and Federal Communications Commission chief Julius Genachowski to OK the deal as long as online exclusivity and restricted access to sports programming is prohibited.

“If Comcast.... acquires the distribution rights for any high-value sporting events, including NFL, NBA, MLB, NHL and NCAA games and PGA golf events, that were, immediately prior to Comcast’s acquisition of such rights, distributed via over-the-air broadcasting, the combined company should not distribute such programming exclusively on its pay cable networks or diminish the over-the-air distribution... as to effectively deprive the public of free access to such events,” Boucher wrote to the regulators.

Boucher also said NBC shows should be made available for free after airing at, and “not be permitted to migrate exclusively to TV Everywhere or exclusively to any other online program platform.”

TV Everywhere is an authentication-based system by which only Comcast cable subscribers would have online access to Comcast-owned programming. Few deals have included such exclusivity, Multichannel’s Mike Farrell reports. Comcast’s 10-year retransmission agreement included no specifics about online exclusivity, just this: “Comcast will have greatly expanded on-demand access to CBS and Showtime content via their cable and online platforms.”

Boucher urged regulators to assure that all of Comcast’s owned programming be made available to competitors, and that it be prohibited from imposing exclusive carriage conditions on content it does not own.

“This prohibition should apply when an exclusive agreement could potentially restrict the availability of the unaffiliated programming on the platforms of other multichannel video programming distributors or on other online platforms,” Boucher wrote.

He also advocated to extend non-exclusivity to peripheral devices such as Boxee, a set-top that streams online content to TVs. When it came to network neutrality, however, Boucher said hold off. Network neutrality is the principle by which broadband providers cannot interfere with traffic on their networks. The FCC attempted to impose network neutrality on Comcast after it was discovered throttling peer-to-peer traffic in 2007. A federal court ruled against the FCC in April.

“Discussions focused on the potential for passing legislation to assure Internet openness are under way,” Boucher said. “If those discussions are successful, Congress will take up legislation that will apply a uniform set of network openness principles to all broadband providers... accordingly, I urge that the department [and the commission] not impose any conditions on its approval of the Comcast-NBC Universal combination regarding network openness.”

The commission has 115 days to consider Comcast’s proposed $8 billion acquisition of 51 percent of NBCU, according to a shot-clock set up for the process. It has, however, been stopped twice as the commission sought further information from both parties.
-- Deborah D. McAdams