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Comcast, TWC, Charter Rely on Former Federal Officials to Aid Merger Review

Wednesday, September 3, 2014

By Bryce Baschuk

Sept. 2 — Comcast Corp., Time Warner Cable Inc. and Charter Communications Inc. have contracted nearly a dozen former Federal Communications Commission officials to help persuade the agency to approve their $45.2 billion merger, according to FCC filings.

Though it is not uncommon for former government officials to advise companies on how to navigate the federal antitrust review process, some of the entities involved in this transaction raise eyebrows because of their recent departure from government, public interest advocates told Bloomberg BNA.

Among the list of federal policy veterans working on the deal are the former chairman of the Federal Trade Commission, a former policy director to FCC Commissioner Jessica Rosenworcel and an FCC senior counsel who led the agency's 2011 approval of the Comcast-NBC Universal deal.

The names were gathered from a Bloomberg BNA review of FCC filings that indicate the outside attorneys the companies have retained and that are seeking access to confidential and highly confidential information related to the agency's transaction review.

Revolving Door

Comcast contracted Jon Leibowitz, who stepped down as FTC Chairman in Feb. 2013, to help advise the company in the merger review process.

Leibowitz, now a partner at Davis Polk & Wardwell LLP, previously warned that the Comcast and Time Warner Cable acquisition of cable systems from Adelphia Communications Corp. could increase each company's control of the regional sports network (RSN) marketplace, in a 2005 competition review statement. The opinion is relevant considering that a post-merger Comcast would control 27 of the nation's 61 largest RSNs and have a dominant position as both a provider of RSNs and as a multi-channel video programming distributor (MVPD), several parties said in filings at the commission.

Charter, which is seeking to purchase 3.9 million of Comcast's subscribers if the deal is approved by regulators, has contracted John Flynn, the former senior counsel to FCC Chairman Julius Genachowski. Flynn, now a partner at Jenner and Block, helped the FCC approve Comcast's last media transaction, the $30 billion purchase of NBC Universal. Flynn left the commission in 2011 and began working at Jenner and Block in 2012.

Also helping Charter with the transaction review is Alexander Hoehn-Saric, the former policy director for FCC Commissioner Rosenworcel from 2012 to Sept. 2013. Hoehn-Saric now works for Charter as a senior vice president of government relations and has signed a confidentiality agreement with the FCC regarding the Comcast transaction.

Charter's Vice President of Regulatory Affairs, Christianna Lewis Barnhart, left the FCC in July 2014, after nearly three years as an attorney at the commission.

Comcast's Cozy Relationships

Many of the former FCC officials representing Comcast, Time Warner Cable and Charter have long since left the agency, but they maintain strong relationships with current commissioners and FCC Chairman Tom Wheeler, who was a former lobbyist for both the cable and the wireless industries.

Comcast has contracted the counsel of Bryan Tramont, the former FCC chief of staff to Chairman Michael Powell and former senior legal advisor to FCC Commissioners Kathleen Abernathy and Harold Furchtgott-Roth. Tramont, now a managing partner at Wilkinson Barker Knauer LLP, is well connected in the communications policy realm and was rumored to be a leading Republican choice for FCC Chairman if Mitt Romney had won the 2012 election.

Comcast executive director of regulatory affairs, Jordan Goldstein, was a senior legal advisor to FCC Commissioner Michael Copps and Comcast senior director and policy counsel, Rudy Brioche, was an advisor to FCC Commissioner Jonathan Adelstein.

Comcast also has enlisted the counsel of three additional legal advisors to former FCC commissioners––Rosemary Harold, Russell Hanser, Adam Krinsky––all partners at Wilkinson Barker Knauer.

Though former FCC Commissioner Meredith Attwell Baker left Comcast this year to lead CTIA-The Wireless Association, her tenure at Comcast was marred by her rapid transition from the FCC to the company whose NBC Universal merger she approved four months prior.

List Goes On

Time Warner Cable has contracted Matthew Brill, a former senior legal advisor to Abernathy. Brill is now a partner at Latham and Watkins LLP.

Time Warner Cable Vice President of Regulatory Affairs, Cristina Pauze, was FCC Commissioner Robert McDowell's legal advisor until 2008.

Steven Teplitz, a former attorney in the FCC Common Carrier Bureau during the 1990s, is now a senior vice president of government relations for Time Warner Cable.

Charter Executive Vice President Catherine Bohigian was formerly a senior advisor to then-FCC Chairman Kevin Martin.

In addition, Charter Communications has contracted Samuel Feder, a former FCC general counsel from 2008 to 2008. Feder is now a partner at Jenner and Block.

‘Very Uncomfortable Problem.'

“This confirms that FCC-land is a warm pond of familiarity,” said Susan Crawford, a former special assistant to President Barack Obama for science, technology, and innovation policy. “Luckily for the public interest, the dedicated civil servants actually responsible for looking at this mega-deal will be fact-driven and reality-based,” Crawford told Bloomberg BNA.

“If you want some indication of why a deal this dangerous and unpopular still has a chance, this list may give you a clue,” Matt Wood, policy director at Free Press, said. “Free Press has long been concerned by, and critical of, the revolving door at the FCC, and this is a great illustration of how big a problem that can be.”

“People have a right to change jobs and move into the private sector,” Wood told Bloomberg BNA. “But you have to sit up and take notice when so many with FCC and antitrust agency ties are hired to work on a single transaction––including the guy who actually ran the FCC's review for the last big Comcast merger.”

“It's problematic when you are talking about people who were at the agency recently and have ongoing relationships at the agency,” Harold Feld, senior vice president of Public Knowledge, said. “But we have to be realistic that talented people are going to move on.”

“This is a very uncomfortable problem that no one has been able to solve,” Feld told Bloomberg BNA. “How you get a set of rules that adequately protects the public and still allows people to make a living after they leave the agency.”

To contact the reporter on this story: Bryce Baschuk in Washington at bbaschuk@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

 

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