Why the Massive Cable Merger Might Be Good for Net Neutrality

Con­sumer ad­vocacy groups are already mount­ing their cam­paign to try to kill Com­cast’s $45 bil­lion bid to buy Time Warner Cable. But the deal might ac­tu­ally be good for one of con­sumer ad­voc­ates’ top causes: net neut­ral­ity.

The D.C. Cir­cuit Court of Ap­peals struck down the Fed­er­al Com­mu­nic­a­tions Com­mis­sion’s net-neut­ral­ity rules last month. The rules, form­ally called the Open In­ter­net Or­der, re­quired In­ter­net ser­vice pro­viders to treat all web­sites equally. Lib­er­als and con­sumer ad­voc­ates fear that with the rules gone, In­ter­net pro­viders could start slow­ing down ac­cess to sites like Google and Net­flix un­less the sites pay for spe­cial In­ter­net “fast lanes.” The pro­viders could even block ac­cess to par­tic­u­lar sites al­to­geth­er.

But even with the rules thrown out, there is one ma­jor broad­band pro­vider that won’t be able to dis­crim­in­ate against In­ter­net traffic any­time soon: Com­cast. To re­ceive ap­prov­al from the FCC three years ago to buy NBC-Uni­ver­sal, Com­cast agreed to a slew of con­di­tions, in­clud­ing prom­ising to abide by the agency’s net-neut­ral­ity rules un­til at least 2018 no mat­ter what happened in the courts.

Com­cast said Thursday that it will ex­tend that com­mit­ment to all Time Warner Cable sub­scribers if the mer­ger is ap­proved.

So while the fed­er­al courts have said the FCC over­stepped its leg­al au­thor­ity with the net-neut­ral­ity rules, about 30 mil­lion U.S. house­holds would still be pro­tec­ted from on­line dis­crim­in­a­tion if Com­cast and Time Warner are al­lowed to merge.

“Those In­ter­net con­di­tions would ap­ply Day One,” Com­cast CEO Bri­an Roberts said on a con­fer­ence call with re­port­ers. “I think it’s un­ar­gu­able that’s bet­ter than where the court just va­cated that rule for every oth­er” In­ter­net ser­vice pro­vider.

The deal would also be an op­por­tun­ity for the FCC to force the com­pan­ies to ac­cept new agree­ments, such as ex­tend­ing the net-neut­ral­ity com­mit­ment well bey­ond 2018.

Dav­id L. Co­hen, Com­cast’s ex­ec­ut­ive vice pres­id­ent, sug­ges­ted that the com­pany is open to ne­go­ti­at­ing ad­di­tion­al con­di­tions, in­clud­ing the length of the net-neut­ral­ity com­mit­ment. He ad­ded that Com­cast sup­ports the net-neut­ral­ity reg­u­la­tions and plans to work with the FCC to re­write the rules in a way that can sur­vive court chal­lenges.

“Well be­fore 2018, I think the FCC is go­ing to have a new re­gime in place to provide the same level of con­sumer pro­tec­tion and con­sumer be­ne­fit that the ori­gin­al Open In­ter­net Or­der provided,” he said.

But con­sumer ad­voc­ates ar­gued that net-neut­ral­ity con­di­tions won’t be enough to out­weigh the com­pet­it­ive harm of the deal.

“I think net-neut­ral­ity rules are im­port­ant, which is why they should be in­dustry-wide and shouldn’t ex­pire after a few years,” said John Bergmay­er, a seni­or staff at­tor­ney for Pub­lic Know­ledge. “I think even say­ing that these con­di­tions would be ‘bet­ter than noth­ing’ sig­ni­fic­antly over­sells the case.”

Matt Wood, policy dir­ect­or for Free Press, said the FCC should en­act tough net-neut­ral­ity reg­u­la­tions, not try to ne­go­ti­ate for a tem­por­ary com­mit­ment from one com­pany.

“We don’t need a few more years of ap­ply­ing the old rules to a big com­pany or two — es­pe­cially not in re­turn for a near-na­tion­wide cable TV and ISP mono­poly,” he said.