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ACA Asks Court Not to Stay FCC Protective Order Decision - Multichannel

ACA Asks Court Not to Stay FCC Protective Order Decision

Says Programmers Unlikely to Prevail on Appeal; Access to Contracts Critical
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WASHINGTON — The American Cable Association Monday asked the U.S. Court of Appeals for the D.C. Circuit to deny a request by content providers to block the FCC's release to interested third parties -- including ACA -- of documents related to the Comcast-Time Warner Cable and AT&T-DirecTV merger proposals.

ACA filed a motion to intervene on the FCC's in the stay request filed by those content companies -- CBS Corp., 21st Century Fox and others -- against a Federal Communications Commission decision to make those documents available.

On its own motion, the court has temporarily postponed the FCC's release of the documents -- which had been scheduled for 3 p.m. Monday (Nov. 17) -- while it gathers more input on the stay request. The FCC provided its response Monday, and ACA asked the court to accept its filing in support of the FCC and in opposition to the stay.

The ACA, which represents smaller, independent cable operators, said it is concerned about the competitive affects on its smaller and medium-sized members by the deals, which is why it has said the FCC should be allowed to make programming contracts it is vetting more widely available. "These potential effects cannot be fully examined, understood, or addressed by parties, including ACA, without access to VPCI [Video Programming Confidential Information]."

The ACA told the court that its members would be harmed by not being able to access info on which to base their arguments about the potential harms of each merger.

The ACA said the stay is not warranted because the programmers are unlikely to win their appeal of the decision on its merits and would not be irreparably harmed. The programmers have warned, and Republican FCC commissioners who voted against the modified orders agree, that there is obvious harm in releasing the info before the appeal is resolved because it is a bell that cannot be unrung if the court ultimately decides the FCC was wrong to have released them.

The content companies have until Wednesday (Nov. 19) to tell the court why they think the agency cannot sufficiently protect the documents, and flesh out their issues with the FCC process that produced the protective orders the commission has said are sufficient to protect that sensitive information.

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