The deadline for comments regarding the Comcast/NBCU merger has come and gone, resulting in over 10,000 filings from a wide variety of groups. From fears over loss of diversity to concerns over media localism, many commenters seem to see the process as a vehicle for their favorite causes rather than as a review of the effects of the merger itself.
In light of this, it seems like a good time to highlight the recent TPI paper by James Speta, “Screening and Simplifying the Competition Arguments in the NBC/Comcast Transaction.” In the paper, he states that antitrust analysis of the proposed merger between Comcast and NBC Universal should focus only on its effect on competition in relevant markets and resulting harm to consumers. Specifically, the analysis should ask:
- Does the transaction actually make matters worse in a relevant way, in a relevant market? For example, claims that cable companies behave badly by charging high prices to consumers are irrelevant unless the merger increases market power in a way that allows the cable companies to increase prices even more. Similarly, claims that the broadcast market is not performing well are irrelevant because the transaction does not relevantly change the broadcasting market – it simply changes control of the stations.
- Does the transaction injure competition in a manner that harms consumers? Antitrust laws are designed to protect “competition not competitors.” Thus, claims that the merger will harm certain competitors because a merged NBC-Comcast will be able to offer uniquely attractive products or services do not mean that the transaction injures competition in the manner that the antitrust law recognizes.
Hopefully, regulators will focus on the task at hand and not be distracted by irrelevant—even if well-meaning—comments filed in the proceeding.
