As a child growing up in Wisconsin, visits to the department store Kohl's were a yearly rite of passage, providing a pair of back-to-school pants at 50 percent off. My youthful self—squirming in discomfort every time mom called back into the changing room, "How do those fit in the crotch?"—could never have predicted that one day, decades in the future, the owner of that store would sit in Congress... and try to keep Comcast away from Hulu in an effort to defend Internet delivery of shows like Lost.

Wisconsin senator Herb Kohl has moved on up from his days as discount department store magnate, and he now chairs the Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights. In that role, he has taken a natural interest in the proposed Comcast/NBC buyout. Yesterday, Kohl outlined his own preferred conditions on such a deal in a letter to the FCC and the Department of Justice, both of which are reviewing the deal.

What does Kohl want? Comcast to stay out of Hulu after any purchase. When does he want it? Within a year.

Out of Hulu for good



Kohl's concern is that "over-the-top" Internet-delivered video poses a serious challenge to the existing business model of a cable company like Comcast. If Comcast acquires NBC and takes over NBC's 32 percent stake in Hulu, the company might be tempted to cripple the service, or weigh it down with enough conditions to make sure people stick with expensive, separate cable subscriptions. Kohl writes:

Millions of consumers have begun to utilize Internet web sites such as Hulu to view full-length programming that has traditionally been shown on cable and broadcast television. And, numerous companies are experimenting with new business models for delivering content directly to consumers over high speed internet connections—including television and blue-ray disc manufacturers, Apple TV, Roku, Boxee, and Zillion TV, to give a few examples. Industry reports have estimated that 800,000 households have even dropped their traditional MVPD [multichannel TV] subscriptions, preferring to view video content over the Internet (often referred to as "cord-cutters"). It is clear that video over the Internet has the real potential to become a strong competitive alternative to traditional MVPD providers and offer consumers new choices to obtain video programming without expensive MVPD subscriptions.

Herb Kohl (or, most likely, a staffer) knows about Boxee! And Roku! And he's interested in Internet video! This is such terrific stuff that we'll forgive him for the "blue-ray" comment.

"After the acquisition, Comcast will have the incentive to exercise its influence as a part owner of Hulu to ensure it does not become a competitive threat to Comcast's cable television services," the letter continues. "If Comcast exercised such a strategy, it could effectively starve these new, emerging Internet distributors of the content they need to compete. Comcast has already begun to roll out its 'TV Everywhere' model of distribution, under which Comcast subscribers can have full access to their cable programming wherever they are. While this business model unquestionably offers benefits to consumers, it also could potentially harm competition should it become the exclusive manner in which programmers deliver their content over the Internet."

In Kohl's view, Comcast should be forced to divest NBC's stake in Hulu within one year of the acquisition. In addition, he wants "a requirement that Comcast not seek to prevent or coerce programmers from keeping their content off Internet web sites or Internet distributors as a condition of carriage on Comcast."

Of course, a cable ISP has all sorts of ways to obtain a similar outcome. One could simply slap tiny data caps on the "Internet access" side of the business, high enough to do Web surfing but low enough to prevent large-scale video viewing. (To its credit, Comcast's published caps have been a relatively generous 250GB per month.) One could throttle video sites like Hulu. (Comcast's recent win in court against the FCC has effectively abolished the agency's existing claims to net neutrality oversight.)

Kohl's requests bring political pressure on the agencies to impose these kinds of conditions, but Kohl has no direct authority over the deal.

Comcast sent over a statement about the letter, one expecting "that any conditions will not unduly burden either Comcast or NBCU’s businesses."