Media Bureau 'Usurped' FCC Authority, Say Content Companies in New AFR, Stay Request
The Media Bureau “usurped” FCC authority by allowing access to video programming confidential information (VPCI) in the Comcast/Time Warner Cable and AT&T/DirecTV deals before an application for review against doing so had been considered by the full commission, said a group of programmers in an application for review and emergency stay request filed Friday. The content companies, which include CBS, Disney and Viacom, had filed an application for review and a stay request against the Media Bureau’s protective order for documents in the transaction proceedings. Friday's additional filings challenge the bureau’s Tuesday modification of that protective order and announcement that most of the programmer’s objections were being dismissed (see 1411050050).
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The programmer filings are “a shot across the bow” of the bureau, and each side’s lack of concession to the other suggests a possible court battle, said Georgetown University Institute for Public Representation Senior Counselor Andrew Schwartzman, who has said the contract documents should be part of the transactions' record. “Neither side seems to be backing down,” he said. The content companies want the Nov. 4 orders overturned and the process of allowing access to their contract data stayed, the filings say.
The bureau’s Tuesday revision of the confidentially order changed the effect of an objection from the content companies on those seeking to access to VPCI, a content company official involved in the proceeding told us. Under the original confidentiality orders, an objected-to individual would only get access to confidential documents after the objection was resolved in that person’s favor by the FCC and the courts; as of Nov. 4 that access will be granted five days after the bureau resolves the matter in their favor. That means access is granted before the full commission or courts get a bite of the apple, a change that goes against decades of FCC procedure, the content official said. The bureau has “vitiated the Content Companies’ due process rights” and “usurped the Commission’s statutory prerogatives,” the content companies said in their filings Friday. The FCC, bureau, AT&T and Comcast didn’t comment.
By changing the order before the full commission had ruled on the original application for review and the request for a stay, the bureau subverted the commission’s authority and acted on its “own motion for reconsideration,” the content companies said. “Because the Commission’s rules do not permit the Bureau to make additional findings and conclusions to defend an order that is the subject of an application for review, the [Nov.4] Orders should be set aside.”
The bureau might not see it that way, Schwartzman said. “The bureau can modify its own action on its own authority.” The request for stay and application for review are necessary steps for the content companies to take this issue to the courts, which he said is their likely intention. Several content company officials have also told us they see the FCC actions as preparation for a court battle over the matter. Courts are generally loath to get mixed up in administrative procedures for federal agencies, Schwartzman said. The programmers will have the challenge of showing that allowing access to their confidential data will cause them irreparable harm, while the commission will be able to point to the many safeguards in the confidentiality orders, he said.
Judging by previous FCC reactions to the content companies' requests, the new filings are unlikely to stop the shot clocks for the deals from restarting next week, Schwartzman said. There’s no need to halt the transaction reviews while dealing with this issue, a content company official told us -- since the FCC already has the documents in question, it's able to review them without granting access to outside counsel. In the Nov. 4 orders, the bureau said all the parties in the merger proceeding needed access to the VPCI to determine the public interest effects of the deals.