Content Companies Urge FCC to Allow DOJ-Level Protections for Sensitive Information on Comcast/TWC
Large programmers asked the FCC for protections like what the Department of Justice uses, beyond the joint protective orders of programming contract information used in the commission’s review of Comcast’s planned buy of Time Warner Cable. CBS, Discovery, Viacom and other programmers asked for the protection last week, said a memorandum Tuesday on a meeting with the programmers and agency staff last week (http://bit.ly/1rnhFjU). An FCC official wrote the memo. LIN Television, Sinclair and other broadcasters made a similar request Monday (CD Sept 23 p7). The Media Bureau opened a comment period on the issues raised by the programmers and broadcasters, with comments due Sept. 26, said a public notice (http://bit.ly/1DxynSI).
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Affiliation and distribution contracts contain extremely sensitive business data and information, “and highly proprietary and scrupulously protected terms and conditions,” including pricing information, that lie at the heart of how they compete and conduct their business, the content companies said in a filing (http://bit.ly/1oi0qf0). Their concerns are heightened because the proceedings involve major distributors “that are party to potentially hundreds of thousands of affiliation and distribution agreements and because of the extensive nature” of the information and data requests, it said. Like the broadcasters, the content companies claimed that directing the transaction parties to deliver highly sensitive materials to the DOJ would be the only effective way to address the concerns. The FCC joint protective orders don’t provide for any “anonymization” of such materials or for redaction of even highly sensitive price terms, “or include any restrictions on the availability of such materials,” it said.
The FCC is the expert agency, and “it’s a bit strange that the expert agency is allowing people besides the experts to see the contracts,” a media executive said. The commission shouldn’t need outside people to look at these highly confidential contracts, the executive said. Programmers are concerned that third parties will get access to the contracts because they may have an interest in participating in the deal proceeding, the executive said. “They'd have access to the contracts that programmers have with Comcast, which includes prices, terms and conditions found in those contracts."
The executive said Comcast/NBCUniversal was reviewed at the DOJ. The Comcast/Time Warner Cable deal will be reviewed at the commission, giving third parties access to those contracts, the executive said: Although interested parties would have to sign a confidentiality agreement, it’s unclear how the FCC would apply penalties “to someone who isn’t an attorney.” The programmers’ requests aren’t routine, said a cable attorney.
Comcast executives accused Discovery and other companies of “extortion,” during a conference call Wednesday (see separate story this issue). A Discovery spokesman fired back, calling it “unfortunate that Comcast is trying to divert attention away from the real issue,” in a news release (http://bit.ly/1pdsqAD).
Comcast said in reply comments that content companies and independent programmers, like Netflix and Veria Living, are pressing nothing more than “a host of individualized business interests and disputes” (http://bit.ly/1tZ8gA1). “Comcast should be required to provide a clear, transparent and fair route for independents to be considered for carriage,” said Eric Sherman, Veria Living CEO. “For a giant like Comcast -- which is about to control 28 of the nation’s top 30 markets -- to accuse us of extortion is absurd.” The proceeding had a Tuesday deadline for replies. (See separate report in this issue.)