It didn't take long for consumer advocates to line up against the Comcast-Time Warner Cable mega-merger. "Don't let #ComcastTWC kill Competition and Innovation" screamed a Public Knowledge tweet.
But the risks and benefits of this merger are more nuanced than the simple sound bites being issued in 140 characters.
That's not to say that there is not general reason for concern. There are very real risks and it is the job of our nation's regulators to seriously review them. Will the creation of Mega Kabletown be good? Will it be bad? Should it be stopped? Who can we believe?
TV Market Power
With 30 million subscribers, the new company will make what is the already largest TV and broadband provider that much bigger. But does it make it badder?
Remember, there is no law against market power. If there were, I'm sure the government would be working hard to break up Google's near monopoly of the search market. The laws are against abuse of market power. And recent history suggests that Comcast will be a responsible steward of its position.
Since 2002, when they bought AT&T Broadband, Comcast has been the largest MVPD. During that time, I cannot recall the company being involved in a major programming blackout. This is especially true in the three years since the acquisition of NBC Universal closed.
Has everyone always been happy with Comcast? Of course not. And Comcast's programming executives are certainly not pushovers. As someone who has spent years negotiating with them, I can tell you they are very tough, but also fair.
However, there are very real concerns. A major question regulators will ask is, "What is the size of the relevant market?" It's easy to look at the combined company and say, "Oh, they have less than 30% of the market." But that is a national number and Comcast and Time Warner Cable's MVPD operations are local businesses.
A better question is, "What is the market share in their local markets and how does the addition of these new markets impact the competitive balance of power in the wholesale programming market?"
Comcast-TW Cable will have a major presence in 19 of the top 20 U.S. markets. In these local markets today, both companies already each have a very large share of the market. Take New York City, for example, where in Manhattan, DirecTV, Dish and Verizon Fios have little access to the buildings. I would be surprised if Time Warner Cable had less than 60% market share in Manhattan.
The national market power view has to be looked at through the prism of the local market power situation. When it comes to the deals Comcast and TW Cable have with programmers, could any programmer really thrive (or even survive) without access to significant parts of 19 of the 20 largest markets? Probably not.
But don't cry for the programmers. Nearly all of the viewership is owned and controlled by the largest programmers. Over the past decade, the balance of power has shifted away from the MVPDs and towards the programmers. It's a shift whose root cause can be tied directly to the fact that the 1992 Cable Act is a stale set of regulatory rules invented before the commercialization of the Internet and the rise of MVPD competition from satellite and telco. In fact, it's because the pendulum has swung so far towards the programmers that MVPDs now feel they need consolidation to even the playing field.
There is much talk going on about what this deal will mean for indie nets. In my experience, I think Comcast-TW Cable can be a very good thing. Here's why:
1. Comcast has a proven track record as a strong supporter of indie nets. In my time at Ovation, our Comcast distribution grew from small six figures in a single market to eight figures across their entire footprint. But Ovation has not been alone. UP, Aspire, Revolt, BabyFirst, ReelzChannel, Hallmark, Hallmark Movie Channel, El Rey, Bloomberg, BBC America and BBC World News are just a short list all of indie channels that are well distributed by Comcast. While not all networks have always been happy with Comcast (e.g. Tennis Channel), Comcast's overall track record on indie channels is positive.
2. The merger gives the Obama administration yet another opportunity to contractually obligate Comcast to continue to support indie channels, and make sure they don't just survive, but thrive. I would love to see Comcast agree to dedicate a certain percentage of their channel slots to indie networks, on distribution tiers commensurate with the biggest programming services.
Internet Market Power
The broadband market considerations look similar to the TV market power dynamics in that the merger will not change the local competitive dynamics. From a national perspective, the larger scale can improve unit economics, allowing further investment in next-generation wired broadband and improved affordable Internet access. In fact, Comcast has already committed to extend their NBCU-deal obligations to provide standalone, affordable broadband in the TW Cable markets, improving access to millions of consumers in some of our largest urban areas.
The merger will also enable Comcast to better prepare for the coming wireless broadband competition. Verizon, AT&T, T-Mobile and Sprint have hundreds of millions of wireless customers and are all working on next-generation wireless broadband products. Dish and many others are buying up spectrum. The FCC is planning massive incentive auctions to re-distribute 20th century broadcast frequencies for 21st century data. A bigger Comcast will be better able to set a high bar for competition and create a race to the top with these other very big companies.
When the DC Court of Appeals recently vacated the FCC's Open Internet rules, you could hear the collective groan coming from Silicon Valley and consumer advocates. But the Comcast-TW Cable transaction can do more to protect and further the idea of network neutrality than the FCC has been able to do through rulemaking and regulation.
The question is not whether Comcast will support the FCC's Open Internet rules; they agreed to do so three years ago and have already agreed to apply those obligations to the TWarner Cable systems. The question is for how many additional years the Obama Administration is willing to push Comcast to keep net neutrality in place. Open Internet advocates should be cheering this merger.
To all the "tech-perts" who are telling us that cable TV is dead, Comcast just said. "We're all in." What consumers really want is to enjoy the TV they want, when they want, and where they want it. To address this desire, over the past decade, Comcast has transformed itself from a sleepy coax company to something that looks a lot more like a technology company.
Comcast has been at the forefront of next-generation TV development. It spends hundreds of millions on R&D and does hundreds of software updates each year. Their latest X2 cloud-based set-top box experience. is a consumer-friendly engineering marvel of technology and content.
Adding TW Cable's footprint will bring these leading technologies to millions of additional consumers. Increasing the scale creates a virtuous cycle; it will improve the unit economics, supporting ever greater product investments. And Comcast's post-merger scale can even speed up the biggest impediment to a true TV Everywhere experience: getting the big programmers to license the rights at prices that make sense for consumers.
Which brings us to the biggest issue: consumer prices. Can a Comcast-TW Cable lower the price for TV services? Probably not. Can it slow the growth of those prices? Maybe.
The key to slower consumer price growth is slower wholesale price growth. Comcast already pays the lowest wholesale prices and in many instances their affiliation agreements will allow them to apply those prices to any acquired systems. This means that as soon as the merger closes, the wholesale prices currently paid on TW Cable subscribers will decrease. Will a 30M-subscriber Comcast have a greater ability to hold down programming costs than a 20M-subscriber Comcast? Maybe; but it's certainly a better bet than the status quo.
In the end, this merger is about choices. Will the Obama Administration choose to accomplish by negotiation what it and Congress have been unable to accomplish by regulation? Will consumer advocates choose to give up the quixotic battle against "bigness" in order to win the war for the protection of independent voices, improved broadband access, the open Internet, consumer prices and the future of TV? Will Americans agree to give a big company, with a proven track record of not abusing its market power, the benefit of the doubt and take a 'trust but verify' approach to a deal that offers up quite a lot of benefits with identifiable, manageable risks?
I certainly hope so.
Chad E. Gutstein is the former COO of Ovation, an independent arts-focused cable channel.
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