With the FCC voting 3-2 to enact net neutrality regulations under Title II of the 1934 Communications Act, the focus now shifts to how Comcast proceeds on its planned Time Warner Cable acquisition. The $45 billion deal, combining the two largest U.S. cable TV operators, was announced in February, 2014, and has been in the regulatory slow lane for months as net neutrality took center stage.
Once perceived as virtually guaranteed to be approved given Comcast's formidable lobbying apparatus, the deal is now seen as having no better than a 50-50 chance by many analysts. While Comcast continues to express confidence the deal will be approved and close in early 2015 (and even internally circulated a combined company organizational structure), the dynamic regulatory, political and industry landscapes make any bets on the deal's outcome a total crapshoot.
The Comcast-TWC deal has elicited criticism from the start. Companies ranging from Netflix to Discovery to Dish Network, plus numerous consumer and industry groups, all voiced their concerns about the resulting company's size and possible market power. Comcast responded to these criticisms last September, viewing many of them as competitors or partners simply trying to negotiate for better positions. Meanwhile the FCC's informal "shot clock" for reviewing the deal has been stopped and started twice over haggling about data and document requests.
As if all of that weren't enough, in late January, the FCC announced a new "broadband benchmark" which defines 25 mbps downstream and 3 mbps upstream as the new standard for classifying an Internet access service as "broadband." By this new standard, the FCC found that 55 million Americans, or 17% of the population, don't have broadband access (including 53% of rural Americans).
And, by the FCC's estimate, the combined Comcast-TWC entity would have nearly 55% of all 25 mbps connections in the U.S., well above the 30% market share that has been used as a threshold test when evaluating video subscribers totals in prior cable TV deals.
Given all of this context, the FCC and the Justice Department (which is also reviewing the deal) will no doubt be under huge pressure to reject it. And that brings us to the question of Comcast's next move - to negotiate or litigate.
Although Comcast released a statement expressing disappointment in the FCC's net neutrality decision, it actually supports the FCC's and President Obama's underlying goals of transparency, no blocking, no "fast lanes," etc. But it believes Title II is too blunt an instrument, an archaic model that would dampen investment and innovation. Instead it prefers section 706 of the 1996 Telecommunications Act be used, as a more surgical approach.
But while Comcast's statement warned of the inevitability of industry litigation and additional "internal scrutiny" regarding its own broadband investment plans, one thing Comcast did not say was whether it will itself litigate the FCC's Title II Order. Therefore, the company left open the door to a potential negotiation with the FCC and Justice Department over its response to net neutrality and approval of the TWC deal.
No doubt Comcast always expected government conditions would be attached to the TWC deal to gain approval. So if Comcast now chose to accept Title II net neutrality, it's really just another piece of a larger negotiation. As the biggest U.S. broadband ISP, Comcast agreeing not to litigate (and potentially even watering down some of the cable industry association NCTA's opposition) would enhance the likelihood that Title II is sustained, possibly even in a Republican-led FCC down the road. It could also be a cue to AT&T - whose DirecTV acquisition is also up for FCC/Justice review - that it's better to negotiate than litigate.
From the government's side, the enactment of Title II gives it more cover (especially with public interest groups) to approve the deal because it can point to formal broadband rules that are now in place. Of course a wildcard is the political piece… might yet President Obama weigh in, either subtly or overtly, against the deal, which would lengthen its odds of approval?
Comcast could also go in the opposite direction. Once it reviews the full details of the Title II Order, it may decide it's simply too onerous or ambiguous (or both) to its existing business, and that it needs to be vigorously litigated. If Comcast pursued this path it would clearly place the TWC deal's approval in serious jeopardy, because its uncompromising position would play right into public interest groups' and competitors' concerns, helping fuel their PR efforts.
Overall, Comcast is a very healthy company and doesn't absolutely need to acquire TWC. But TWC would give Comcast far greater scale to fully compete in the online/mobile era, where goliaths like Google, Apple, Amazon, Facebook and others have massive reach. Moreover, the additional TWC scale would open new opportunities for Comcast in areas like business services (particularly in New York City and Los Angeles) plus national WiFi mobile service, leveraging its network of hotspots.
There are so many moving pieces in the Comcast-TWC deal and regulatory landscape, that it's impossible to predict Comcast's move at this point. But in my view, its decision whether to negotiate or litigate Title II is the key thing to watch. Title II and the TWC deal now seem inextricably tied together. How Comcast chooses to play its hand will have a huge impact on the deal's outcome.