Content Companies File Application for Review of Modified Merger Confidentiality Rules
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.
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The Media Bureau hasn’t sufficiently defended its stance against allowing FCC officials to view sensitive contracts though the Department of Justice without putting such documents in the public record, said a programming official with knowledge of the proceeding. The bureau wants the contracts to be public so it can rely on companies and public interest groups to dissect and analyze them instead of relying on its own staff, the programming official noted. Shunting sensitive contracts into the record is a dramatic departure from previous deals, the officials said. Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman said that not considering acknowledgments of confidentiality enough protection is the departure. “For literally decades, the commission has managed confidential data without problems,” Schwartzman said.
The applications for review and the subsequent legal challenge that could follow them could delay Comcast/TWC and AT&T/ DirecTV, communications attorneys said. The content companies haven’t taken a position on the deals on the merits and aren’t seeking a delay, the programming official said. Since they aren’t parties to the deals, the transaction proceedings shouldn’t let any company with the money hire outside counsel to view the contracts of the entire programming industry, the official said.
The content companies have also filed objections to all acknowledgements of confidentiality filed in the proceeding since the modified confidentiality orders were issued (http://bit.ly/1DjxY5j). The orders (see 1410090052) required all parties seeking to look at confidential documents filed in the transactions to re-file their acknowledgements to certify that no one connected with decision-making on retransmission or programming contracts would be allowed to view the contract information. Gannett, Graham Media Group, Gray Television, Raycom and Tribune Media also filed a joint objection to having their documents viewed (http://bit.ly/1sXFakF).
The broadcasters and content companies target two attorneys representing the American Cable Association, Cinnamon Mueller cable attorney Barbara Esbin and ACA Senior Vice President-Government Affairs Ross Lieberman. The broadcasting and cable programmer industries object to Lieberman for not being an “outside counsel” as is specified in the modified protective orders, and contend that Esbin could have decision-making authority for her firm's cable clients. “It’s a big waste of time for all the parties involved,” Lieberman said. Esbin could not be reached for comment. Both attorneys have been certified to view confidential documents in many other proceedings, and Lieberman survived a similar objection from Comcast during its 2010 NBCUniversal deal, he said. “They didn’t do their homework,” he said of the objectors. Under the modified confidentiality orders, Esbin and Lieberman will be able to respond to the objections, and the Media Bureau will rule on whether they fit the criteria to view confidential documents. ACA President Matt Polka said he wasn’t surprised that programmers are objecting to the order and argued that the companies are trying to avoid scrutiny. “We have been an advocate on behalf of consumers,” Polka said.