Concern similar to case it is trying to make in AT&T-Time Warner appeal

The Department of Justice has written Comcast to let it know that the department will be watching as the program access-related conditions DOJ imposed in the NBCU merger expire at the beginning of next month, according to Bloomberg, which said it had a copy of the letter.

DOJ required that the combined company "make available to online video distributors (OVDs) the same package of broadcast and cable channels that it sells to traditional video programming distributors." In addition, it has to "offer an OVD broadcast, cable and film content that is similar to, or better than, the content the distributor receives from any of the joint venture’s programming peers."

Bloomberg reported that DOJ antitrust chief Makan Delrahim had written Comcast to warn that Justice would continue to monitor how the company "handles" program distribution and asked for notice of any changes.

That letter comes as the department is pointing to the Comcast-NBCU merger's potential harms without conditions as one of its arguments in its legal challenge to the AT&T-Time Warner merger. So the letter could buttress DOJ's argument in the AT&T-Time Warner case about the potential dangers of unremediated mergers of content and distribution.

In its appeal of a court decision not to block the AT&T-Time Warner deal, as DOJ had asked it to do, Justice had called the FCC's conditioned approval of Comcast-NBCU a "remedial order to curb the harm of that merger."

Justice had argued similar harms of a combined AT&T-Time Warner withholding from or boosting prices of, must-have content (like HBO), particularly to potential over-the-top rivals, required spin-offs of Time Warner programming assets, a deal it said would have created a second vertically integrated programmer (after Comcast-NBCU) with even more incentive and opportunity to hurt its rivals absent those spinoffs. AT&T would not spin off the assets, which led to the DOJ suit.

"[T]he reasonably probable effect of the merger was to increase fees paid by distributors other than AT&T’s DirecTV for Turner programming, just as the FCC found that an unremediated merger of Comcast with NBCU would have done," Justice said in appealing the judge's decision in AT&T-Time Warner.

Even without the conditions on Comcast-NBCU, the FCC still has program-access rules that could be used to address complaints about pricing or access to content.