Modified FCC confidentiality orders protecting documents in the AT&T/DirecTV and Comcast/Time Warner Cable transactions aren’t enough for sensitive contract data, said CBS, Viacom and other content companies in a joint application for review (http://bit.ly/1voV5ZV) and a request for an emergency stay (http://bit.ly/1rJO7bt) posted Friday. “The Orders were promulgated in the face of both substantial public comment opposing disclosure and the Commission’s historical recognition that disclosure of these programming contracts would cause substantial competitive harm,” said the emergency stay, also filed on behalf of Disney, Discovery Communications, Scripps Networks, Time Warner Inc., TV One, 21st Century Fox and Univision. A similar application for review from a group of broadcasters objecting to the orders is likely to be filed soon, an attorney connected with the proceeding told us.
Modified confidentiality rules for sensitive documents filed in the AT&T/DirecTV and Comcast/Time Warner Cable merger proceedings strike a good balance between protecting information and preserving public access, broadcast attorneys, cable industry officials and a public interest lawyer told us Wednesday. The modified version of the FCC’s usual protective orders was issued Tuesday (http://bit.ly/1ndec7A) in response to requests from broadcasters and programmers not to have valuable contract data in the public record (CD Oct 2 p10).
Modified confidentiality rules for sensitive documents filed in the AT&T/DirecTV and Comcast/Time Warner Cable merger proceedings strike a good balance between protecting information and preserving public access, broadcast attorneys, cable industry officials and a public interest lawyer told us Wednesday. The modified version of the FCC’s usual protective orders was issued Tuesday (http://bit.ly/1ndec7A) in response to requests from broadcasters and programmers not to have valuable contract data in the public record.
The Justice Department isn’t the place for storing confidential documents on deals to carry programming on pay TV, said some cable-, satellite- and telco-TV interests that opposed broadcasters’ and cable channels’ requests for DOJ to keep the data (CD Sept 25 p6; Sept 23 p6). The FCC should host such documents and can keep them private, not DOJ where they would be only seen by commission officials and not other petitioners in FCC reviews of the two biggest media deals now pending, said multichannel video programming distributors. The Media Bureau last week sought comment on the pay-TV programmer and TV station data housing requests on AT&T’s planned purchase of DirecTV and Comcast’s plan to buy Time Warner Cable and divest some subscribers to Charter Communications (http://bit.ly/1sNsuhI). Hoping to get their deals approved, the combining companies didn’t oppose giving the documents to the FCC.
The FCC Media Bureau extended the comment deadline in a proceeding on requests from programmers and broadcasters to expand protections of highly confidential documents involved in the review of the Comcast/Time Warner Cable deal and AT&T/DirecTV. Comments are due Sept. 29, the bureau said Friday in a public notice (http://bit.ly/1u3pzQu). Comments were originally due Sept. 26, after the bureau issued a public notice Sept. 23. A public interest attorney urged the FCC to reexamine how it handles highly sensitive documents in review of pending transactions. The practices should be reexamined “to insure that all documents considered by the Commission staff are within the direct jurisdiction of the Commission and made part of the record,” said Andrew Jay Schwartzman of the Georgetown University Law Center, in comments filed in dockets 14-90 and 14-57 in his personal capacity. Until the FCC changes the procedures to provide full transparency, interested parties “will not be able to participate fully in the Commission’s review of assignments and transfers, and the Commission runs the risk of judicial reversal in these or other future proceedings,” he said in comments. The FCC’s practice of “making house calls” to the Justice Department to review documents that aren’t included in the record before the agency is “fundamentally unfair and exposes the commission to great jeopardy on judicial review,” he said. There’s no need to adopt the proposed measures to give additional protection to sensitive documents, he said. The FCC has ample authority to modify its ordinary protective order process to impose a higher than usual degree of protection if circumstances arise, Schwartzman said.
The FCC Media Bureau extended the comment deadline in a proceeding on requests from programmers and broadcasters to expand protections of highly confidential documents involved in the review of the Comcast/Time Warner Cable deal and AT&T/DirecTV. Comments are due Sept. 29, the bureau said Friday in a public notice (http://bit.ly/1u3pzQu). Comments were originally due Sept. 26, after the bureau issued a public notice Sept. 23 (CD Sept 25 p7). A public interest attorney had urged the FCC to reexamine how it handles highly sensitive documents in review of pending transactions. The practices should be reexamined “to insure that all documents considered by the Commission staff are within the direct jurisdiction of the Commission and made part of the record,” said Andrew Schwartzman of the Georgetown University Law Center, in comments filed in dockets 14-90 and 14-57 in his personal capacity. Until the FCC changes the procedures to provide full transparency, interested parties “will not be able to participate fully in the Commission’s review of assignments and transfers, and the Commission runs the risk of judicial reversal in these or other future proceedings,” he said in comments. The FCC’s practice of “making house calls” to the Justice Department to review documents that aren’t included in the record before the commission is “fundamentally unfair and exposes the commission to great jeopardy on judicial review,” he said. There’s no need to adopt the proposed measures to give additional protection to sensitive documents, he said. The FCC has ample authority to modify its ordinary protective order process to impose a higher than usual degree of protection if circumstances arise, Schwartzman said.
The departure of Attorney General Eric Holder likely will not have major implications for the big communications mergers and acquisitions before regulators -- AT&T/DirecTV or Comcast/Time Warner Cable -- nor on M&A that could be in the works, industry lawyers told us. Holder said Thursday he will leave after a successor is in place. He is one the last top administration officials left from the beginning of the Obama administration in 2009.
The departure of Attorney General Eric Holder likely will not have major implications for the big communications mergers and acquisitions before regulators -- AT&T/DirecTV or Comcast/Time Warner Cable -- nor on M&A that could be in the works, industry lawyers told us. Holder said Thursday he will leave after a successor is in place. He is one the last top administration officials left from the beginning of the Obama administration in 2009.
The Prometheus Radio Project asked that its petition for a ruling requiring the FCC follow the diversity requirements of the 3rd U.S. Circuit Court of Appeals be uncoupled from other court challenges to the FCC 2014 quadrennial review Further NPRM, said a motion filed in the U.S Court of Appeals for the D.C. Circuit Friday. Such rulings, called Writs of Mandamus, are sometimes used to compel agencies to take specific actions. The D.C. Circuit is already considering a motion from Prometheus to move the consolidated court challenges to the quadrennial review and the commission’s joint sales agreement attribution rule to the 3rd Circuit (CD Sept 10 p22), but the mandamus request should be considered separately, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who represents Prometheus. That venue change is under consideration by a D.C. Circuit merits panel, but the order shifting the matter to the panel was silent on the mandamus issue, Schwartzman said. The mandamus request should be shifted to the 3rd Circuit regardless of what happens to the other parts of the case since it concerns that circuit’s remand to the FCC that “the Commission failed to collect the data or conduct the studies necessary” to meet the Third Circuit’s requirements, said Prometheus’s filing
Broadcasters asked the FCC not to require Comcast and Time Warner Cable to disclose sensitive retransmission consent information as part of the combining cable companies’ response to the agency’s recent request for more information on the deal, said a letter posted Monday in docket 14-57 (http://bit.ly/1sVbe42). Though such documents would be treated as confidential and redacted to anyone not a party involved in the proceeding, said the letter addressed to Media Bureau Chief Bill Lake from E.W. Scripps, Gray Television, LIN Television, Nexstar and Sinclair, it asked that FCC officials instead view the agreements at the Department of Justice. “Given the large number of parties to this proceeding, we have many concerns about the potential widespread dissemination of these extremely competitively sensitive documents, even if only among outside counsel,” said the broadcasters.