Comcast’s ALL CAPS reply to TWC-merger critics

It’s hard to know who the intended audience was for the 300-plus page Jeremiad unleashed this week by Comcast and Time Warner Cable in support of their proposed merger. The comments were nominally directed to the FCC, as part of its review of the deal, in reply to comments filed with the agency by opponents of the merger. But I’m not sure the companies really helped themselves in that regard.

Much of the filing consists of a recapitulation of arguments Comcast had already submitted to agency, only louder. Much of the rests a series of essentially ad hominem attacks on the motives of its critics, particularly Netflix, which the filing accuses of blatant self-interest and bad faith, and Discover, which it accuses of “extortion,” for demanding better carriage terms from Comcast in exchange for refraining from opposition to the deal.

As for the objections raised by organizations “purporting to represent the public interest” (sic), the filing waves those off as “unfounded” scare-mongering or as insufficiently “transaction-specific” to be addressed in a merger review proceeding.

Here’s the thing: As Comcast should know from its own experience, this isn’t the FCC’s first rodeo. I doubt either the commission or the staff need a lot of coaching to recognize the motives of Comcast’s competitors and vendors in filing comments on the deal. Harping on them just sounds pedantic.

More to the point, it’s not clear why their motives should be relevant to the FCC’s inquiry. Netflix is self-interested? You don’t say. It’s a profit-seeking corporation. It’s no more, or less, self-interested than Comcast is in seeking to acquire TWC in the first place. Neither’s motive is really relevant to the FCC’s mission to protect the public interest, which will turn on the results of the merger review, not on the motives of its participants.

As for Comcast’s airy dismissal of objections it views as insufficiently merger-related, that’s not really Comcast’s call to make. The whole point of involving the FCC in merger reviews is that it is bound by statute to apply a broader public interest standard, rather than the sort of narrow legal standard that enforcement agencies like the Justice Department or the Federal Trade Commission would apply. The filing’s legalistic parsing of the complaints reads more like a motion to dismiss a lawsuit brought to stop the merger than a case for its public interest benefits.

Which may be the real problem here. The filing, from its intemperate and tendentious tone to its voluminous heft, leaves the impression of company increasingly worried that the process is slipping away from it, and contemplating the real possibility that the merger could be blocked or loaded down with so many conditions as to make it unattractive. Swagger has given way to peevishness.