Will FCC Formally Modify its Historic Cable TV Industry Market Share Rules?

Something potentially more interesting than smaller Charter Communications buying Time Warner Cable are afoot. 

The wild card at the moment is that Comcast might consider buying Time Warner Cable, a move that Comcast, the biggest U.S. cable company, would have avoided a decade ago, to avoid running afoul of Federal Communications Commission and Department of Justice anti-trust scrutiny and oppostion.

Though some would note that the rules were informally modified in a key way some time ago, the U.S. cable industry basically continues to operate under FCC rules that no single cable company can serve more than about 30 percent of U.S. subscribers. Some confusion exists, though.

In 1999, the FCC, in a unanimous vote, redefined the concentration rules and relevant markets to allow AT&T to buy Mediacom, theoretically allowing AT&T to serve potentially 40 percent of U.S. homes. But that is a slightly different issue. 

AT&T represented new telco industry competition, and was not a legacy cable operator.

The FCC cable market share rule remains in effect, formally, but the thinking was that AT&T would be able to offer competition to the incumbent cable TV companies.

Given the many changes in the video market over the last decade, might the FCC be willing to take a different look at concentration? 

The FCC once barred a merger by DirecTV and Dish Network, as that would result in one U.S. satellite provider. But in markets that structurally are different now, does it make sense to regulate industry by industry, or look at the whole market.

Even the definition of the "market" might be enlarged to include over the top providers such as Netflix, as well.

Although the old 30 percent cap was technically not changed, the revisions to the definitions of markets and cable ownership effectively raised the ownership cap for cable television to the rough equivalent of 36 percent and even more for video service, albeit only when it was a telco that could gain that much share (AT&T has not done so yet).

In other words, regulators were willing to look at competition and concentration not simply in terms of "industry silos," but service by service. 

So the interesting new challenge is, what if Comcast does make a bid to buy Time Warner Cable, pushing Comcast into a range that exceeds the traditional FCC market share rules?

Will Comcast be allowed to do so, and if so, will it be because its video market share is shrinking, while its voice and high-speed Internet access share is growing? At the time, the FCC thinking about competition and market share was that it makes a difference whether the market share being considered is cable in video services, or telcos in voice, not just inter-industry or intra-industry concentration measures. 

Though it would be notable if Charter bought Time Warner Cable, the bigger policy ramifications would come if Comcast were to try and buy Time Warner Cable.