Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age (59 page)

60.
Comcast Corporation,
Corporate Responsibility Report
, accessed March 4, 2012, available at
http://www.cmcsk.com/documentdisplay.cfm?documentid=6024øp
.

61.
“Money Politics; Rep. Bachmann in Overdrive; Predicting a GOP Wave; Craigslist ‘Censored,’” transcript of
Anderson Cooper
360
, aired on CNN on September 6, 2010,
http://transcripts.cnn.com/TRANSCRIPTS/1009/06/acd.02.html
.

62.
Gov. Arnold Schwarzenegger, Gov. David Paterson, Gov. Ed Rendell to Hon. Julius Genachowski et al., May 25, 2010, available at
http://transition.fcc.gov/transaction/comcast-nbcu-cgo.html
.

63.
“
Confirmation of Elena Kagan to Be a Supreme Court Justice”: Hearing Before the Senate Judiciary Committee
, 111th Cong., 2d sess. (2010) (Statement of Senator Al Franken).

64.
Ron Chernow,
Titan: The Life of John D. Rockefeller, Sr.
(New York: Random House, 2008), 207.

65.
“Herb Kohl for Senate 1988—‘Nobody's Senator but Yours,’” YouTube video, 0:27, posted by “AlmostOnTheLake,” November 5, 2010,
http://www.youtube.com/watch?v=cZQgY7Plobc
. On industry consolidation and antitrust exemptions for the airline industry, see Senator Herb Kohl, “Kohl Announces Antitrust Subcommittee Agenda for the 112th Congress,” news release, March 10, 2011, available at
http://www.kohl.senate.gov/newsroom/pressrelease.cfm?customel_dataPageID_1464=4332
. On antitrust exemptions for the railroad industry, see Senator Herb Kohl, “Kohl Discusses Railroad Antitrust Amendment on the Senate Floor,” news release, February 29, 2012, available at
http://www.kohl.senate.gov/newsroom/pressrelease.cfm?customel_dataPageID_1464=4928
. On the Sirius–XM satellite radio merger, see “Kohl Says ‘No’ to Sirius-XM Merger,”
Wall Street Journal, Washington Wire
(blog), May 23, 2007,
http://blogs.wsj.com/washwire/2007/05/23/kohl-says-%E2%80%98no%E2%80%99-to-sirius-xm-merger/
.
On the Comcast/NBCU merger, see “Kohl Wants Conditions on Comcast/NBC Deal, Weighs in With DOJ & FCC,” news release, May 26, 2010, available at
http://www.kohl.senate.gov/newsroom/comcastnbc-letter.cfm
.

66.
Kohl, “Kohl Wants Conditions on Comcast/NBC Deal” Senator Bernie Sanders, “Sanders Statement on FCC and Comcast,” news release, December 23, 2010, available at
http://www.sanders.senate.gov/newsroom/news/?id=a9d88ea4-4c3c-45f2-ac70-016493cc40ef
.

67.
“Oversight of the U.S. Department of Justice”: Hearing Before the S. Comm. on the Judiciary
, 111th Cong., 36–37 (2010) available at
http://www.gpo.gov/fdsys/pkg/CHRG-111shrg63323/pdf/CHRG-111shrg63323.pdf
; Senator Al Franken, “Sen. Franken's Speech to Free Press Group in Minneapolis,” news release, August 19, 2010, available at
http://www.franken.senate.gov/?p=news&id=1044
[brackets in the original].

68.
“Bottom Line,”
TheHill
, available at October 4, 2010,
http://thehill.com/business-a-lobbying/lobbying-hires/122495-bottom-line
.

69.
Sen. Al Franken, interview with the author, September 30, 2010.

Chapter 11. The FCC Approves

1.
Media executive, interview with the author, August 6, 2010.

2.
In the Matter of Application of EchoStar Communications Corporation, General Motors Corporation, and Hughes Electronics Corporation and EchoStar Communications Corporation
, 17 F.C.C.R. 20559 (October 18, 2002);
In the Matter of Applications of AT&T Inc. and Deutsche Telekom AG for Consent to Assign or Transfer Control of Licenses and Authorizations
, Federal Communications Commission, WT Docket No. 11-65 (November 29, 2011).

3.
In the Matter of Applications for Consent to the Transfer of Control of Licenses XM Satellite Radio Holdings Inc. to Sirius Satellite Radio, Inc.
, 23 F.C.C.R. 12348 (August 5, 2008).

4.
Ibid., 12375 (“the price cap condition ameliorates possible harm to consumers, and the new programming packages offer consumers more pricing choices”).

5.
Media executive, interview with the author, August 6, 2010.

6.
In the Matter of SBC Communications Inc. and AT&T Corp. Applications for Approval of Transfer of Control
, 20 F.C.C.R. 18290, 18392 (November 17, 2005);
In the Matter of Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control
, 20 F.C.C.R. 18433, 18537 (November 17, 2005); “Consumers are entitled to access the lawful Internet content of their choice … to run applications and use services of their choice … to connect their choice of legal devices … [and] consumers are entitled to competition among network providers, application and service providers, and content providers” (
In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, et al.
, 20 F.C.C.R. 14853, 14988 [September 23, 2005]).

7.
In the Matter of Verizon Communications
, 20 F.C.C.R. at 18573 (Statement of Comm. Kathleen Q. Abernathy).

8.
Thomas M. Koutsky and Lawrence J. Spiwak, “Separating Politics from Policy in FCC Merger Reviews: A Basic Legal Primer of the ‘Public Interest’ Standard,”
Phoenix Center Policy Bulletin
no. 18 (May 2007): 14.

9.
“[W]e refer to ‘intermodal competition’ as the competing provision of services over alternative technological platforms” (
In the Matter of Review of the Section
251
Unbundling Obligations of Incumbent Local Exchange Carriers, Implementation of the Local Competition Provisions of the Telecommunications Act of
1996, Deployment of Wireline Services Offering Advanced Telecommunications Capability
, 16 F.C.C.R. 22794 note 73 [December 20, 2001]).

10.
Stuart M. Chemtob, “The Role of Competition Agencies in Regulated Sectors,” Fifth International Symposium on Competition Policy and Law, Chinese Academy of Social Sciences, Beijing, May 11–12, 2007, 5, available at
http://www.justice.gov/atr//files/06/15/76/f061576/public/speeches/225219.htm#N_1_
.

11.
In Re Applications of Ameritech Corp. and SBC Communications Inc., for Consent to Transfer Control of Corporations Holding Licenses and Lines Pursuant to Section
251
and
310(d) of the Communications Act and Parts
5
,
22
,
24
,
25
,
63
,
90
,
95
and
101
of the Commission's Rules
, 14 F.C.C.R. 14712, 14887 (October 8, 1999). “While the SBC-Ameritech merger was consummated in October 1999, SBC has yet to compete in those markets outside of its region. Under the merger conditions placed on SBC by the FCC, it is liable for voluntary penalties for failure to enter the 30 out of region markets” (
ALTS [Association for Local Telecommunications Service] Response to NTIA [National Telecommunications and Information Administration] Request for Comment on Deployment of Broadband Networks and Advanced Telecommunications Services
, December 19, 2001, available at
http://www.ntia.doc.gov/legacy/ntiahome/broadband/comments3/ALTS.htm
).

12.
“Most importantly, all of the commitments we have made, and conditions that we have agreed to, are wholly consistent with the manner in which we have always intended to conduct the Comcast and NBC Universal businesses. None of them will prevent us from executing on our business plans or will impair the competitiveness of any of our businesses.” (David L. Cohen, “Regulatory Approval Received for Comcast/GE Joint Venture for NBC Universal,”
Comcast Voices
(blog), January 18, 2011,
http://blog.comcast.com/2011/01/regulatory-approval-received-for-comcastge-joint-venture-for-nbc-universal.html
).

13.
In May 2011, Meredith Attwell Baker announced that she would leave the FCC, when her term ended in June, for a position as senior vice president for government affairs for NBC Universal. See Marguerite Reardon, “FCC Commissioner Leaves for Comcast,”
CNET News
, May 11, 2011,
http://news.cnet.com/8301-30686_3-20062054-266.html
; Edward Wyatt, “F.C.C. Commissioner Leaving to Join Comcast,”
New York Times, Media Decoder
(blog), May 11, 2011,
http://mediadecoder.blogs.nytimes.com/2011/05/11/f-c-c-commissioner-to-join-comcast/
.

14.
John Dunbar, “Ex-Reps. to Aid Comcast Takeover Bid,”
Politico
, May 26, 2010,
http://www.politico.com/news/stories/0510/37772.html
.

15.
“Comcast has become one of the bigger meal tickets in Washington, on its way to spending more $12.5 million [in 2010] in lobbying, more than six times the amount it spent around the time of its last major merger, the 2002 acquisition of AT&T's broadband Internet business” (Cecilia Kang, “Comcast's Fast-Growing Washington Presence,”
Washington Post
, February 4, 2010, available at
http://voices.washingtonpost.com/posttech/2010/02/comcasts_mighty_washington_pre.html
); Hill staffer, interview with the author, August 23, 2010.

16.
Federal Communications Commission, “John Flynn Named Senior Counsel to the Chairman for Transactions,” news release, May 19, 2010.

17.
Government official, interview with the author, January 20, 2011.

18.
Ibid. Several other people also mentioned this.

19.
Content-industry employee, interview with the author, August 6, 2010.

20.
Washington, D.C., bloggers such as Marvin Ammori have noted Chairman Genachowski's reputedly “thin skin.” See Marvin Ammori, “The FCC Chairman's D.C. Reputation: Or the Wimpy Kid Who Could Preserve an Open Internet,
Marvin Ammori
blog, December 1, 2010,
http://ammori.org/2010/12/01/the-fcc-chairmans-d-c-reputation-or-the-wimpy-kid-who-could-preserve-an-open-internet/
.

21.
Josh Silver, “Comcastrophe: Obama's FCC Approves Enormous Corporate Media Merger for Comcast/NBC,”
Alternet
, January 18, 2011,
http://www.alternet.org/media/149579/comcastrophe%3A_obama%27s_fcc_approves_enormous_corporate_media_merger_for_comcast_nbc/?page=entire
.

22.
“
The Comcast/NBC Universal Merger: What Does the Future Hold for Competition and Consumers”: Hearing Before the Subcomm. on Antitrust, Competition Policy and Consumer Rights of the S. Comm. on the Judiciary
, 111th Cong., 15–17 (February 4, 2010) (Statement of Andrew Jay Schwartzman, President and Chief Executive Officer of Media Access Project).

23.
Harold Feld, “Where Does Comcast/NBC Rate on the ‘Trade Association Scale'?”
Huffington Post
, December 3, 2009,
http://www.huffingtonpost.com/harold-feld/where-does-comcastnbc-rat_b_379574.html
. See also Harold Feld, “Public Knowledge Comment on Comcast-NBCU Merger,” Public Knowledge, January 18, 2011,
http://www.publicknowledge.org/publicknowledge-comment-comcast-nbcu-merger
.

24.
John Eggerton, “Public Interest Groups, Cable Ops, Unions Slam Comcast/NBCU Merger,”
Broadcast Union News
(blog), February 4, 2010,
http://broadcastunionnews.blogspot.com/2010/02/public-interest-groups-cable-ops-unions.html
.

25.
Letters opposing and in support of the merger can all be found through the FCC's Electronic Comment Filing System, available at
http://apps.fcc.gov/ecfs//fulltext/form.jsp
.

26.
A Hill staffer told me in an interview on September 3, 2010, that blocking the merger was always considered unrealistic. “[T]he elimination of double marginalization of NBCU programming costs likely will result in some benefits for consumers” (
In the Matter of Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for Consent to Assign Licenses and Transfer
Control of Licenses
, 26 F.C.C.R. 4238, 4335 ([January 20, 2011]). Jonathan B. Baker, “Comcast/NBCU: The FCC Provides a Roadmap for Vertical Merger Analysis,”
Antitrust
25, no. 2 (spring 2011): 36–42, available at
http://transition.fcc.gov/osp/projects/baker_vertical_mergers.pdf
(“When analyzing vertical mergers, the antitrust enforcement agencies employ a contemporary economic analysis of exclusionary conduct, but they have not litigated any vertical merger challenges to a decision in the modern era. All such mergers have been permitted to proceed without a challenge, or challenges were settled by consent.”).

27.
“Malone Says Telecoms Lack ‘Firepower’ Versus Cable,” YouTube video, 06:04, posted by “
Bloomberg
,” July 14, 2010,
http://www.youtube.com/watch?v=QUbQRwKXeCU
; “John Malone and David Faber,” video of interview, 41:07–41:22,
CNBC
, November 23, 2009,
http://video.cnbc.com/gallery/?video=1340949341
.