FCC Information Requests Undermine VPCI Argument, Say Programmers
Recent FCC information requests to third-party companies connected with the Comcast/Time Warner Cable transaction review (see 1501050043) undermine the agency's arguments for releasing video programming contract information (VPCI), said programmers in a response brief to the U.S. Court of Appeals…
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for the D.C. Circuit in their challenge against the agency. The request asked companies such as Netflix for summaries of pricing information and contract terms. “Having concluded both that the summarization of specific contract terms is 'workable' and that it provides an adequate and appropriate basis for the Commission to evaluate contract data, the FCC is ill positioned to assert that it must release hundreds of thousands of pages of VPCI to third parties,” said the programmers, which include Disney, 21st Century Fox and Viacom. The FCC hasn't refuted the content companies' arguments that requiring the release of the contract information was a departure from its usual process, the programmers said. Though the FCC has said that not including the VPCI in the record would leave its deal review decision vulnerable to court challenge, the content companies disagree. D.C. Circuit precedent doesn't require the FCC to “dump hundreds of thousands of pages of highly confidential documents in the record and wait for third parties to determine what is relevant,” the programmers said. “The FCC is well aware of the issues raised by the merger parties’ competitors, and there is no disagreement that the FCC is capable of examining the VPCI itself.”