Content Companies Ask D.C. Circuit to Halt Nov. 17 Release of Confidential Documents, Overturn FCC Order
Content companies seeking to prevent participants in the Comcast/Time Warner Cable and AT&T/DirecTV proceedings from having access to their programming contracts on Thursday filed a new emergency request for a stay pending judicial review and a petition for review with the U.S. Court of Appeals for the D.C. Circuit. The FCC is set to allow access on Monday to the programming documents to outside counsel who have followed procedures laid out in a series of protective orders (see 1411120029). The content companies, which include CBS, Disney, Scripps Networks and Univision, want the court to block the commission from doing so. “The Court should issue a stay to allow careful review of what the FCC has rushed through its gates,” the emergency motion said. The FCC, AT&T and Comcast didn't comment. However, Comcast filed a motion to intervene in the case late Thursday, arguing that any stay would further delay the merger review. "Petitioners' actions leading up to the release of the Commission Order have already caused undue delay in the transaction review proceeding," said Comcast's motion.
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The petition for review challenges the commission's Nov. 10 order denying the applications for review and emergency stay requests filed by the content companies with the FCC. The Nov. 10 order was “contrary to the Commission's rules and precedent and this Court's precedent prohibiting the disclosure of confidential material when a challenge to the disclosure decision is pending,” said the petition for review.
The FCC hasn't given any rationale for denying the applications for review and departing from its own precedent, the emergency motion said. The Nov. 10 order said the commission is denying the applications for the same reasons stated in a Nov. 4 reconsideration order issued by the Media Bureau, “even though the Bureau itself gave no reason for its departure from FCC precedent,” the emergency motion said. “By rejecting Petitioners’ arguments without articulating any rationale, the Commission failed to justify its exercise of agency discretion.”
The petition attacks the commission's planned release of video programming confidential information (VPCI) as arbitrary and capricious, and contends that the commission failed to examine less harmful alternatives. While releasing the documents before judicial review of the FCC decisions will cause “irreparable harm” to the content companies, a stay will cause no harm, the companies said. The combining companies have agreed that the terms of their contracts should be confidential, the emergency request said. “They cannot complain that their interests will be harmed if the result of a stay is consistent with their underlying contractual obligations.”
A stay won't harm the deals because the FCC already has access to the contract documents, the content companies said. Attorneys involved in the proceeding have said the lack of access impairs their ability to add to the record and help the FCC decide what's in the public interest. Though the transactions clocks being stopped at the moment prevents this from being a serious issue, that would end if the deal review deliberations were to progress without interested parties being able to access confidential information, said Boies Schiller attorney Robert Cooper, who represents Cogent. Cooper said Cogent hasn't sought to access the content companies' VPCI. Though the emergency stay asks the court to keep the FCC from releasing confidential documents on Nov. 17, it doesn't mention the shot clocks, set to start back up that day.