Don’t Keep Programming Documents at DOJ, MVPDs Say After Broadcasters, Programmers Sought That

The bureau delayed the three-day comment deadline by another three days, including last weekend, to Monday (http://bit.ly/1u3pzQu). After a delay posting them online in the FCC comment filing system, which agency officials said remains backlogged after net neutrality comments overwhelmed it, they appeared in docket 14-90 and on the Office of General Counsel’s transaction page for Comcast/TWC. The FCC seems likely to require that the documents remain there and not go only to DOJ, so commenters on the transactions worth about $133 billion combined can see the confidential materials and use them to base their opinions of the deals, said some industry and public interest lawyers.

At issue is whether the bureau can take steps to keep the documents from going public but allow access to the carriage deals to those who don’t participate in competitive decision-making at other firms who also sign FCC confidentiality agreements, called protective orders. Eight programmers, 13 commercial broadcasters, a college that owns a TV station and NAB said they continue to want DOJ to keep the documents. “The Joint Protective Orders” for AT&T/DirecTV and Comcast/TWC “are insufficient to protect the confidentiality of certain proprietary business materials,” said CBS, Discovery Communications, Disney, Scripps Networks, Time Warner (no longer affiliated with Time Warner Cable), 21st-Century Fox, Univision and Viacom (http://bit.ly/1ue8OSu).

"Confidentiality of Highly Sensitive Materials can be ensured only if they are placed in the custody of the Department of Justice and are made available for review only by Commission personnel,” said the programmers. In an earlier meeting with commission staff reviewing the deals, the programmers discussed a scenario for another protective order where some outside counsel and consultants could see the documents (http://bit.ly/1oAQQ73). A lawyer for those companies declined further comment Wednesday. Smaller programmers backed the bigger ones, including Starz Entertainment (http://bit.ly/10lGBhs) and the Tennis Channel (http://bit.ly/YU2bbv).

The FCC should review retransmission consent agreements at DOJ, “which routinely requests these documents as part of its merger review,” said Cox Media Group, Gannett, Gray Television, Graham Media Group, LIN Television, Nexstar, Raycom, Sinclair, Tribune Media, other companies, Tougaloo College and NAB (http://bit.ly/10lGhiJ). “The FCC has followed this approach in past merger proceedings, and it has allowed the FCC to conduct a thorough merger review without endangering the confidentiality of those agreements.” The broadcasters discussed procedures for retrans information to be placed in the FCC record so commenters on AT&T/DirecTV and Comcast/TWC could confidentially review it. The LIN lawyer who wrote the filing had no further comment. Journal Broadcast backed the other station owners (http://bit.ly/1pGq7W5).

MVPD Concerns

The American Cable Association, CenturyLink and Dish Network, concerned about the impact of mergers and acquisitions on prices for programming at MVPDs not part of the deal, opposed the broadcasters and content owners’ requests. “The importance of informed public input is heightened where, as here, the issue involves programming agreements that are central to the Commission’s evaluation of whether the transaction is in the public interest,” said CenturyLink (http://bit.ly/1nMFa6G). It said Comcast/TWC’s effect on programming costs and the disparity between what those combined firms and MVPD rivals would pay is “crucial to this case.”

Dish said “taking any steps to stifle access to these types of documents would disserve the public interest and prevent interested parties from being able to fully and meaningfully evaluate the Merger Applicants’ arguments.” Interested parties, including the 20-plus that have petitioned the FCC to deny Comcast/TWC, “have the right to challenge these statements and need access to all the relevant documentation,” said Dish (http://bit.ly/1vxTUWT). ACA said the public’s right to participate in such reviews is an “integral part” of them, embodied in the Communications Act and Administrative Procedure Act. “Programmers’ justification for receiving such special treatment is their unrealistic fear that parties obtaining access to their contracts under the Commission’s protective orders may violate the orders causing the Programmers harm despite the fact that such an occurrence is extremely rare and would subject an offender to meaningful penalties,” said ACA (http://bit.ly/1rMKF4S).

AT&T and DirecTV, seeking a quick resolution to the issue, said the rules in the existing protective order issued three months ago on their deal have worked, and it’s unnecessary to change them now. Charter, Comcast and TWC said the current protective order “is sufficient to protect the confidentiality of the types of materials identified by the programmers and broadcasters."

"AT&T made a very compelling argument that creating” in the middle of deal review a protective order for programming contracts “would create enormous document production complexities and burdens” for the FCC and M&A applicants, ACA Senior Vice President-Government Affairs Ross Lieberman told us. He said he hopes the agency won’t give applicants’ retrans and programming contracts “special treatment.”

Parties to the deals might be backing the FCC in keeping the documents so that a court challenger to the transactions won’t have a stronger case to reverse M&A approval because the documents weren’t made part of the commission record, said Georgetown University Institute for Public Representation Senior Counselor Andrew Schwartzman. He had opposed only on his own behalf DOJ’s keeping the documents (CD Sept 29 p9). Broadcasters and content providers wanted Justice to keep the documents “because it’s a completely secret process,” said Schwartzman. “Some day, this is going to blow up in the commission’s face,” Schwartzman said of the practice of having DOJ keep the documents. He warned that a court could reverse a deal on grounds documents weren’t made part of the commission’s record. (jmake@warren-news.com)