The deadline for comments to the Federal Communications Commission on the proposed merger of Comcast and NBC Universal has passed. There are a slew of Web form statements against the marriage and a large number of short letters in favor. Many of the latter come from local politicians or groups like The Boys and Girls Club of Cape Cod and Little Angels of Elgin, Illinois, beneficiaries of Comcast or NBC philanthropy.

But you've got to give credit to the Public Knowledge group for slipping one of their favorite subjects into the debate. The organization says that it doesn't like the merger, but can see it moving forward under various conditions... like network neutrality.

The Commission must impose strict non-discrimination rules that prevent the [new] entity from interfering with the distribution of non-affiliated content through filtering, blocking, or degrading distribution. The growth of Internet distributed content should not be stifled simply because the newly formed entity would prefer consumers continue paying for its MVPD [multi-channel video program distribution] service.

That's right. PK says the union can go forward as long as Comcast agrees to the very net neutrality rules it got a Federal appeals court to overturn back in April.

De-prioritizing

The big antitrust question that everyone's asking is how much of the pay TV market this merger will gobble up—that is, how big of a horizontal deal are we talking about here. But a huge broadcasting network combining with a cable company represents a vertical merger as well. And that's what has PK worried.

"Comcast's ability to control users' access to content means that it can unfairly discriminate against non-NBCU content," PK warns, "either by refusing to connect users to the online video content of established competitors, or, more likely, simply de-prioritizing or throttling the bandwidth available to these competitors versus NBCU content."

But the group doesn't just want "strict non-discrimination rules" attached to the new entity. The government should also require it to provide wholesale broadband access to unaffiliated Internet Service Providers. In other words, line-sharing, which cable companies have never been required to offer.

"Allowing unaffiliated ISPs to access the last mile networks of the newly merged entity and compete for Internet customers would impose a valuable check on any anticompetitive impulses," the filing notes.

Public Knowledge wants the FCC to reverse its famous Cable Modem Order of 2002, which let the big cable ISPs off the hook with wholesale access to competing ISPs. That ruling defined cable Internet as an "information" rather than a "telecommunications" service. The Supreme Court eventually approved the move in its 2005 Brand X decision.

Anyway, what the heck—no harm in asking, right? The FCC did impose net neutrality conditions on the AT&T/Bell South merger of late 2006. And the agency is now reconsidering that 2002 Cable Modem Order, of course, in its new "Third Way" net neutrality proceeding.

As for the future of this deal, the Congressional Research Service seems to think it will be approved; before it does, both the FCC and the Department of Justice have to weigh in on the proposal.