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NBCU to sit out Apple TV? Maybe not.

Apple TV

NBCU may not be able to hold back programming from the rumored Apple TV service, as the Wall Street Journal reported today.

In fact, the merger conditions imposed by the FCC and DOJ on Comcast when it acquired NBCU in 2011, may require NBCU to cut deals with over-the-top services, according to Guggenheim analyst Paul Gallant.

A condition of the Comcast/NBCU merger requires the company to make “comparable programming available on economically comparable terms.” The condition is in effect through early 2018.

“Apple could use the condition to obtain NBCU programming that is comprable to whatever Apple acquired from Fox, Disney, etc. If Fox and CBS license their [owned and operated TV] signals to Apple, that would seem to require NBCU to sell NBCU O & Os to Apple,” Gallant wrote in his report.

Resolving any dispute over a programming agreement would rest with the FCC which would decide the meaning of “comparable programming” and “economically comparable terms.”

The FCC is currently in the middle of a comment period over its proposal to redefine what it means to be a cable service, which could open up new programming rights for over-the-top video services. FCC chairman Tom Wheeler has indicated that it is important for the commission to encourage more competition in the video marketplace.

“Consumers have long complained about how their cable service forces them to buy channels they never watch.  The move of video onto the Internet can do something about that frustration – but first Internet video services need access to the programs,” Wheeler wrote in an October 2014 blog post about the proceeding.

These are familar issue to Comcast/NBCU which is in the middle of the regulatory review of its $45 billion purchase of Time Warner Cable. “Apple surely knows that Comcast is in an awkward position where it has to appear accommodating lest it be painted with the brush of a bully.  The very appearance of the article plays to the worst fears of the opponents of the deal,” said Wall Street firm MoffettNathan Research in a separate report.

Apple’s efforts to get into the TV business has been a staple of Wall Street and tech rumors even before Steve Jobs told his biographer “I finally cracked it.” And until Apple CEO Tim Cook or his successor invokes the iconic “one more thing” at a future media event, the rumors of an Apple TV set or service will continue.