Judge Opens Some of Cable Complaint Hearings to Public
Saying he mistakenly closed most of the first day of an FCC hearing (CD April 15 p3) pitting Comcast against the NFL, the presiding judge reversed course and opened more of the case to the public. Chief FCC Administrative Law Judge Richard Sippel said he erred in keeping out reporters and members of the public. “I have a very strong leaning towards openness,” Sippel said Wednesday. “I made a mistake.”
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He wanted to go farther than lawyers from the cable operator and league wanted in deciding that some testimony likely will be open to the public. “I'm not going to remove the reporters from the case for Mr. Furman,” Sippel said. He was referring to Ron Furman, an NFL executive who the league called to testify. Hal Singer, an economist speaking for the NFL Wednesday, can testify “in camera,” or privately, that day, Sippel said. Singer also testified Tuesday.
Attorneys for Comcast and the NFL said they agreed to the terms in a letter from Bloomberg LP, which sought quick release of transcripts of witness testimony. They were wary of allowing reporters and members of the public to hear the testimony as it occurred. They feared confidential information like contractual terms and dollar figures would accidentally become public. “You cannot plan in advance” during a “rushed” proceeding to only ask questions pertaining to non-proprietary information when hearings are open, said Michael Carroll, a lawyer for Comcast. “It’s very much on the fly … dollars and cents numbers are coming out.”
Sippel differed with lawyers for the defendant and plaintiff on whether data in the case are likely to be of much import in the future, and therefore ought to be kept private. “A lot of this seems like it’s historical data,” the judge said. “If we're going to err on the side of ‘we're going to protect it to be sure,’ I'm not sure” that’s okay, he added. Terms of most-favored-nation clauses in carriage deals, if they become public, would hurt future contract talks, said Carroll. But Sippel wasn’t so sure: “At some point that becomes useless information.” Paul Schmidt, the NFL’s attorney, said the league can’t risk going to court and having proprietary information become public.
Sippel said he might have leaned too much toward the participants in the case by deciding to keep much of it private, he said. “Maybe I was sold a bill of goods. Maybe I sucker punched myself.” But later, he said, “I'm not blaming the parties” for his past decision: “I'm taking full responsibility for that.”