CircleID

The biggest communications policy moment since the AT&T divestiture has just happened: The $100 million-dollar-march (or more — what Comcast spent to make sure this happened) has ponderously, self-evidently reached its conclusion with the FCC's approval of the merger between Comcast and NBCU. It wasn't the subtlest campaign; it didn't need to be; it was effective in its discipline and heavy persistence. The tweets are flying and the journalists are already weighing in.

Commr. Copps's dissenting statement gets off a few good lines:

"[T]his Comcast-NBCU joint venture grievously fails the public interest. I searched in vain for the benefits. I could find little more than such touted gains as 'the elimination of double marginalization.'"

"[T]his is simply too much, too big, too powerful, too lacking in benefits for American consumers and citizens. I have respect for the business acumen of the applicants, and have no doubts that they will strive to make Comcast-NBCU a financial success. But simply blessing business deals is not the FCC's statutorily-mandated job."

We don't have the order yet, and the details will matter a great deal. What DOJ will say is also so important. Their new merger guidelines (as of Aug. 2010) state that merger analysis is "necessarily predictive" and that "merger enforcement should interdict competitive problems in their incipiency." How will DOJ decide to interdict the competitive problems created by this merger?

I've spent the last year reading every article and pleading I could about the deal, and talking to everyone who was willing to talk to me. This deal sheds a great deal of light on the current state of telecom policy. More importantly, it should remind us of the history — how did we get here? It has taken government intervention at every step of the way to protect nascent industries in the communications world — cable, DBS, and the Internet all required brave moves in competition policy — so… now what?

By Susan Crawford, Professor, Cardozo Law School in New York City. Visit the blog maintained by Susan Crawford here.

Related topics: Access Providers, Broadband, Policy & Regulation, Telecom