Modified FCC Confidentiality Rules for Comcast/TWC, AT&T/DirecTV Broadly Supported

Though neither broadcasters asking for their contracts to remain with the Department of Justice nor those who said the FCC process shouldn’t be altered got what they wanted, all sides said they considered the terms of the modified order satisfactory. “I'm not sure that the extra steps were even needed, but to the extent that it offers reassurance to the filers, it was a good idea,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman in an email. A cable industry official told us the protective order is the best result possible, and one broadcast attorney involved in the proceeding told us that early responses from the FCC indicated it was unlikely to accede to the request that the contract documents be kept out of the record. Though the FCC didn’t take some steps that had been under discussion, such as anonymizing the documents, the joint order is as good as can be expected, he said. It’s unlikely any of the entities that asked for the extra protection will challenge the protective order, the attorney told us; and Comcast told us it “appreciates the Commission’s clarification of the manner in which it would like us to comply with the FCC’s original information and document requests."

The protective order “recognizes the programmers’ and broadcasters’ position that the contracts they entered into with the Applicants should not be received by the Commission nor made available to commenters,” said Media Bureau Chief Bill Lake, General Counsel Jon Sallet and Wireline Bureau Chief Julie Veach in a joint blog post Tuesday (http://fcc.us/ZRnaNB). The order also acknowledges that “remaining ignorant of Applicants’ contract terms would disable the Commission from effectuating its statutory responsibility,” the blog post said.

The modified order protects the documents by prohibiting copying, allowing access only to electronic-only versions and by limiting access to sensitive documents filed in the merger to “outside representatives” who aren’t involved in competitive decision-making, specifically pointing to those involved in retransmission consent and programming negotiations as falling into that decision-making category. Protective orders don’t usually highlight retrans and programming negotiations, a broadcast attorney involved in the matter told us. The protective order also requires all personnel who will be viewing the documents to submit new acknowledgements of confidentiality, and their names will be listed on the FCC’s transaction website, the blog post said. That step will allow anyone involved in programming and retrans negotiations who had previously signed up to view the documents to bow out, the broadcast attorney said. The modified order also allows companies to object if they believe ineligible parties are accessing their documents, and requires those viewing documents to swear on pain of perjury that all copies have been destroyed after the proceeding, the order said.

The two concurrent merger proceedings make this an unusual situation, the FCC said. “Because the AT&T and Comcast transactions are pending simultaneously, the ability to capture an understanding of the programming marketplace is greater, and potentially more troublesome, than if only one were before us,” said the blog post. The FCC officials called the protective order “unique” and implied that such a step won’t be taken in other cases. “These procedures do not create a ‘new normal,'” the blog post said.

With the modified confidentiality orders having been issued, an FCC-requested delay in document submissions in the Comcast and AT&T merger proceedings no longer applies, Comcast pointed out in an email. “With this Order, Comcast expects to complete the document production shortly,” a Comcast spokeswoman told us. -- Monty Tayloe (mtayloe@warren-news.com)