Such recommendations have played a role in killing major deals in the past, such as a controversial merger between AT&T and T-Mobile just four years ago. If the FCC decides to kick the Comcast merger over to an administrative law judge, Comcast would have a chance to argue for it. But some policy analysts say a hearing could effectively bring about the merger's demise.
Being referred to a judge sets up a fight with skeptical regulators and can dim the prospect of regulatory approval, the analysts said. That procedural move by the FCC helped convince AT&T and T-Mobile to call off their $39 billion merger in 2011, after the Justice Department sued to block the deal. The same tactic derailed another deal in 2002 involving DirecTV and EchoStar.
Comcast met Wednesday with the FCC, which is studying the deal to determine if it would serve the public interest to approve it. Comcast also met with antitrust officials at the Justice Department.
Officials at both agencies are particularly concerned that the merger with Time Warner Cable could give Comcast the ability to harm independent online video providers, according to people familiar with the matter. Because Comcast would wind up controlling more than 30 million high-speed Internet subscribers as a result of the deal, regulators fear Comcast could become a gatekeeper — hindering access to rival streaming services or forcing them to accept Comcast's preferred terms.
Comcast has argued that the deal would not harm other programming, in part because its content arm, NBCUniversal, is already subject to restrictions that were agreed upon in 2011 when Comcast bought NBCU.
Comcast declined to comment on its meetings with the FCC and Justice Department, saying it was inappropriate to share the content of those meetings publicly. Comcast will be submitting a regulatory filing disclosing its FCC meeting on Friday.
News of the FCC recommendation comes a week after Bloomberg reported that Justice Department staff were "leaning against" the deal, and days after the Wall Street Journal said Comcast would be meeting with DOJ officials Wednesday to "save" the merger.