Comcast, a Ballard Spahr client, had also had a strong influence on Philadelphia politics. When the small cable company RCN applied in 1998 for a license to provide cable services in Philadelphia, Rendell openly derided the attempt. After the city council dragged out the process for two and a half years, RCN gave up and left town, saying that it had been forced to respond to “Comcast-scripted” questions. This is the same RCN, recall, that claimed that Comcast had bullied independent contractors in the Philadelphia area to keep them from working for RCN, had carried out an elaborate predatory pricing scheme, and had “demonstrated both the inclination and the wherewithal to use their market power to crush broadband competition in their local markets”—in short, that Comcast's ability “to choke off nascent broadband competition” was becoming “unstoppable.”21
Exclusive franchises had been illegal under federal law for years, but Philadelphia was and is Comcast country. The company poured money into Rendell's campaigns and into Philadelphia for a decade before RCN showed up, and the city and the mayor were grateful for Comcast's good works and millions of dollars. These same civic techniques would prove extremely effective during the 2010 merger discussions.
After leading Ballard Spahr for a little more than four years, during which time the firm had also hired Ed Rendell (who was running for governor at the time), Cohen left the firm to join Comcast in 2002 with a job invented specifically for him.22 As he describes it, as executive vice president for policy, he is part of a troika charting the company's strategic direction. All external and administrative functions report to him. But Cohen's ties with Rendell seem to have only strengthened since he left Rendell's side, making Rendell and Comcast close allies as well. Comcast's acquisition of NBC Universal, Governor Ed Rendell said, would mean more jobs in Philadelphia, where Comcast is headquartered. “The prestige is enormous,” he added. Asked if he expected the merger to encounter any federal regulatory hurdles, Rendell responded, “I have confidence in David Cohen.” Not surprisingly, Rendell was expected to join the Comcast board when he left the governor's mansion in 2011. Even before he left public office, Comcast had the governor doing post-game analysis for Philadelphia Eagles games (Rendell donated the money to charity).23
Cohen's Democratic ties have grown during his time at Comcast. Cohen made about $180,000 in contributions to Democrats between 2006 and 2011, compared to $12,000 to Republicans, according to OpenSecrets.org. Cohen also personally helped raise more than $6 million for President Obama's election campaign in 2008; during the 2008 election cycle, Comcast's political action committee raised more than $2.5 million. At a fundraiser for then-Democratic senator Arlen Specter on September 15, 2009, just months before the Comcast merger was announced, President Obama called out the “luminaries” in the room—Governor Rendell, Mayor Michael Nutter of Philadelphia, various congressmen, and the chair of the Democratic State Party, T. J. Rooney. He reserved particular praise for Cohen: “And I want to acknowledge a special friend, somebody who is a great supporter of mine and is the chairman of this event, David Cohen is in the house. Please give him a round of applause.” Obama had good reason to single Cohen out: in late 2008 Cohen had hosted a fundraiser for candidate Obama featuring rocker Jon Bon Jovi, also an Obama supporter, that raised millions. (For 2012, Cohen has committed to raise $500,000 nationwide on behalf of Obama's reelection committee.)24
Cohen is not just an Obama supporter; he held a fundraiser to help Hillary Clinton retire her campaign debt in early 2009, with Vice President–elect Biden, Governor Rendell, Senator Bob Casey, and Mayor Nutter in attendance. Cohen had been enthusiastic about Clinton, giving her the maximum permitted individual donation, and Rendell had boasted that if Clinton had become president he would have recommended David Cohen to her for deputy chief of staff.25
Donors to the 2009 Specter events were required to write a check for ten thousand dollars or raise a minimum of fifty thousand, even though Specter was already trailing his Republican opponent by a substantial margin. “We would like to generate a literal outpouring of financial support for Sen. Specter,” Cohen said in a letter to Democratic fundraisers.26 All good things come around: Specter had hired Ed Rendell forty years earlier to work in the district attorney's office, Rendell had hired Cohen, and Cohen, now a very powerful man in Philadelphia, was willing to try to save Specter's career. And it was a subcommittee of the Senate Judiciary Committee, of which Specter was a member, that held the hearings on the Comcast merger the following year.
Specter was broadly useful to the Comcast team; staffers told me that he set up meetings between senators and Brian Roberts. Although the decision on the merger was made by the Department of Justice and the FCC after Specter left office, his friendly presence at the subcommittee hearing in February 2010 could only have helped. He told those in the hearing room that he “approach[ed] the hearing with a little different perspective because I know Comcast and I know Brian Roberts and I know his father, Ralph Roberts. So I am in a position to attest to a number of critical factors evaluating whether this merger ought to occur. One factor that I can attest to is they are really very good corporate citizens.” Warming to his theme, Specter noted that the Comcast tower distinguished the Philadelphia skyline and, on a personal note, remarked that his son had teamed with Brian Roberts to win the gold medal at the Maccabiah Games squash tournament.27
Cohen is esteemed for his judgment and ability. Legislators and policy makers respect him. In 2008 he moved adroitly to soothe Rep. John Dingell's ruffled feathers at a time when Dingell (D-Mich.) chaired the House committee with jurisdiction over communications. Comcast had planned to move Michigan public, educational, and governmental (PEG) channels to digital-tier Siberia, in the 900s—a shift that would have forced approximately 450,000 analog subscribers in the state to get digital set-top boxes or new televisions in order to receive them. After officials in Dearborn and Meridian Township sued Comcast, a federal court in Michigan ordered the company to leave the PEG channels where they were. Dingell was irate and held a hearing on the matter—and it is not a good thing for any company to have the leading legislator with jurisdiction over its activities angry at it. Cohen flew to Washington, assured Dingell that the whole thing was a mistake, reversed the company's plan, and somehow remained on Dingell's good side throughout the entire affair. “I am pleased that Comcast, which had announced changes detrimental to the way it delivers PEG services in Michigan, has agreed to make a good-faith effort to work out a settlement with the affected communities,” Dingell said. “I want to commend them for that.”28 Cohen was prepared to apologize publicly, saying, “In retrospect, we failed to communicate adequately our goals and to work cooperatively with our local partners to produce a win for everyone.”29 Only Cohen could have pulled that off.
After having been battered by then-FCC chairman Kevin Martin, who was widely viewed as hating the cable industry, Cohen was determined to change the perception of the cable guys in Washington. The National Cable & Telecommunications Association, the cable trade association (now headed by former FCC chairman Michael Powell), jumped in generously to help with the nation's transition to digital broadcast television after Obama's inauguration in early 2009, providing extensive assistance with call-center aid and other efforts to prepare people for the switch.30 And once the new administration was in place, Cohen praised Martin's successor, Genachowski, as “the most qualified person ever to be appointed” FCC boss: “He brings a great intellect, great experience, tremendous organization and a commitment to run fair, data-driven processes that will underline the decisions the commission makes under his leadership.”31
Cohen was Brian Roberts's right-hand man for the merger. In meetings with Hill staff, Cohen routinely interrupted Roberts and took over the discussion. Roberts did not seem to mind; he understood that Cohen knew what he was doing. Roberts wanted the scale and scope that the NBC Universe content would bring Comcast; Cohen was trusted to run the politics and to know where the next right place to be was.32
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As Robert Huber wrote in Philadelphia Magazine in 2009,
For a long time, the Robertses were viewed as civically unengaged and stingy when it came to giving back. So it's quite helpful to Brian Roberts and Comcast that David L. Cohen is a big wheel at Penn Med, and … chairman of the board of the university trustees, and head of the Chamber of Commerce, and still close to Rendell, and a fund-raiser for Barack Obama. Whatever he's doing out in the world, he's executive vice president of Comcast. The David L. Cohen brand has become embedded with the Comcast message. … Cohen's the guy next to the guy. The guy who makes things go, the guy people come to, to help them get things done.33
But even Cohen wasn't ready for what came next.
That February, during a House Judiciary Committee hearing held the same day as the Senate Antitrust Subcommittee meeting, African American members of Congress complained that NBC programming was not sufficiently diverse; the network had not a single African American–targeted show. When Rep. Maxine Waters (D-Calif.) asked NBC Universal president Jeff Zucker why this was, he replied, “we have not found that [African American] show.” When Waters continued pressing, Zucker assured her that NBC was continuing to look for a good African American program. “Let me say that it is very difficult to accept that you cannot find the kind of program I'm talking about,” Waters said. “It is unacceptable to say you don't know … when it could happen. … I don't think black viewers would like to hear that kind of answer.” The same went for the news: Rep. Sheila Jackson Lee (D-Tex.) noted that there is no diversity on the Sunday morning talk shows, including NBC's Meet the Press. Waters and Jackson Lee also asked Brian Roberts why Comcast had just one woman and one African American man on its board; Rep. Luis Gutierrez (D-Ill.) noted that the board had no Hispanics. Roberts was forced to admit that he didn't have a good answer.34
A few months later, things heated up considerably: Waters and sixty-eight other members of Congress, many of them members of the Congressional Black Caucus or the Congressional Hispanic Conference, asked the FCC to extend its public comment period and hold public hearings on the merger.35
Hiring policies, board membership, and programming diversity had no relevance to the competition and concentration issues raised by the merger, but these comments hurt Comcast's public image and were important to the larger public-interest concerns at the FCC. Comcast needed to avoid the kind of interest-group politics that could destroy reputations and scuttle carefully laid plans; indeed, it had attempted to forestall objections through the public-interest commitments in its original filing. Apparently those were not enough.
After the FCC declined to hold the hearing Waters wanted, John Conyers (D-Mich.), chairman of the House Judiciary Committee, arranged for a field hearing in Los Angeles in June. It was Waters's hearing; it was well-attended, raucous at times, frequently interrupted by applause, and nearly four hours long. Taking NBC to task for not having adequate diversity among its executives, Waters said, “If you're telling me how many janitors you're hiring, how many clerks you're hiring—that's not good enough. We know we can always get some numbers at that lower level. So having said that, let's just understand each other. This is about ownership, this is about programming, this is about executive management, this is about advertising.”36 Roberts and Zucker were conspicuously absent, but less senior Comcast executives listened politely. (John D. Rockefeller also made it a practice not to show up at hearings that promised to be unpleasant.)
During that same hearing, Stanley Washington (representing a new group called the National Coalition of African American Owned Media, which appeared to have been formed by the law firm where former FCC chairman Kevin Martin worked) described Comcast as a “plantation” and charged that the company had not done enough to ensure the viability of African American–owned channels. He called for a minority boycott of Comcast.37
There was some question of whether Comcast was carrying any African American content. An earlier effort, the Black Family Channel, had not wanted Comcast to take a stake in its operations as a condition of carriage and had ended up shutting down, leaving just one American cable network with significant black ownership: TV One. “While Comcast carries the network on its most widely distributed tier,” Waters said, “it is worth noting that Comcast owns a 33% stake in TV One.” Washington's group asserted that African Americans make up as much as 40 percent of Comcast's subscriber base but that none of the 250 channels Comcast offered was 100 percent African American owned.38
Comcast had made many contributions to minority charities, and the charities—hundreds of them—sent in letters and calls of support to lawmakers and agencies. (“It is crumbs, and they know it is crumbs,” said Washington at the L.A. hearing.)39 Waters was not moved. “And while we take the opportunity to say to Comcast, we appreciate the donations,” she said at the field hearing, “that has nothing to do with the competition or ownership that we're talking about today. So they should continue to give the 50 cents to the Boy Scouts. But we're talking about competition or ownership. So if there's anybody here today who wants to talk about how much money you have given to the NAACP, the Urban League, to Al Sharpton, to anybody else, this is not the place to do it.”40
The hearing was so striking that NBC's 30 Rock commented on it a few months later, with Queen Latifah playing a fictional congresswoman who chastises NBC for its lack of diversity.41 Waters seemed to think the merger could be blocked: “We have worked long enough at this, we have enough self-confidence to look Comcast in the eye, NBC in the eye and say, not this time, not this time.”42
Waters also said that Comcast had contacted her to ask how the company could satisfy her demands; the Los Angeles Times suggested that she was hinting that she had been offered a bribe. And she intimated that people were afraid to testify: “As some will note, there are a few people who are missing from the panel who were previously scheduled to attend. It is somewhat troublesome that many independent and minority programmers, producers, writers and directors have been afraid to voice their concerns for fear of blacklisting or other forms of retaliation within their industries.”43
Comcast was briefly rattled. Representatives of the company swiftly called legislative offices to take the temperature of the leadership. Would these issues be a problem?
David Cohen had apparently learned from experience that the way to work with interest groups was to continue making promises. To cool the criticism following the Los Angeles field hearing, Comcast prepared for the next hearing—to be held in July 2010 in Chicago under the leadership of Rep. Bobby Rush of Illinois—by making more public-interest commitments. It would add two new independent cable networks to its lineup for three years, with substantial minority ownership for at least one of them each year.44 At the Chicago hearing, Jesse Jackson, president of the Rainbow Push Coalition, called for Comcast to commit to making at least 10 percent of its basic tier consist of minority-owned networks and to set “aggressive benchmarks” to get more minorities both in front of the camera and running budgets and shows.45 Okay, Comcast said—how about four cable networks whose majority owners are African American? It would create “diversity advisory councils” that would meet with Comcast-NBCU executives. Broadcasting & Cable reported that the company had made unspecified pledges about employment, programming, procurement, governance, and corporate giving to a host of Latino organizations. Comcast pledged to add a Hispanic member to its board; expand training, internship, and scholarship programs for minority students; and extend carriage of current African American programming “in key market systems” within six months of the deal's close. Most important, it would pay $20 million into a new venture fund for expanding opportunities for minority entrepreneurs.46
Comcast had turned a bug into a feature while diverting attention from the central issues of market domination: it had managed to make the public's review of the merger focus on diversity instead of market power. The Hispanic groups were on board. Bobby Rush, well known for receiving contributions from the te
lecommunications industry, announced that he was for it, noting his enthusiasm about the deal's prospects for minority media owners and entrepreneurs. Will Griffin of Hip Hop on Demand asserted that Comcast had the best “infrastructure of inclusion” to build upon in the media industry, and that African American consumers and policy makers had more potential leverage with Comcast than any other media company.47
Some observers noticed Comcast had not promised to provide diverse content; when Rep. Rick Boucher (D-Va.) asked about specifics guaranteeing such content in primetime slots, Comcast's Joseph Waz could only say that he was “hopeful,” and NBC Universal's Paula Madison pointed to a “positive trend” in diverse content.48
Waters was having none of it; she noted that Comcast's commitments to diversity were only being made—and very quickly—because she had raised the issue. In her view, Comcast was making concessions only to obtain approval for the merger.49
But none of this mattered. The two-hour hearing was really an occasion to present the press release from Comcast: $20 million was coming, and the groups had signed off. Waters continued to press against the deal from time to time, saying in October 2010 that the proposed $20 million capital fund for minority entrepreneurs was “a marginal amount considering the scale of modern media ownership and associated operational accounts.”50 But in the fall of 2010, she had her own ethics problems to deal with: a House investigation began into whether Waters and Mikael Moore, her chief of staff, had acted inappropriately when they attempted to assist a minority-owned bank, OneUnited, during the 2008 financial crisis. The investigation was postponed in November 2010 and was revived in early 2012, but it appears to be moving slowly in the face of recusals by Ethics Committee members.51
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