ACA, Dish: Programmers' Arguments on Deal Docs 'Surreal'

'FCC Effort to Make Programming Documents Available is Hardly Unprecedented'
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The American Cable Association and Dish Network teamed up to tell a federal court that it should allow third parties to see programming documents related to the proposed Comcast/Time Warner Cable and AT&T/DirecTV mergers.

The U.S. Court of Appeals for the D.C. Circuit has stayed the FCC's decision to make the documents available pending its decision on an underlying challenge in that court to the FCC decision by programmers including CBS, Disney, Fox, Scripps, Time Warner (a separate company from Time Warner Cable) and Viacom. They say the FCC is trying to make too much VCPI (Video Programming Confidential Information) available to too many people without sufficient protections.

In an intervenors brief to the court Monday in support of the FCC, ACA and Dish said that those programmers had depicted a "surreal world where the ordinary need for review of programming documents in a media merger proceeding has somehow become unprecedented, and the extraordinary protections that the FCC has already afforded Petitioners have correspondingly become insufficient."

They say that the programmers' central argument that the document production is unprecedented is bogus. "Carriage agreements and similarly sensitive documents have routinely been requested, and provided, in major media merger reviews..." it says, including in the Comcast/NBCU merger, which was approved in 2011 and Comcast and TWC's purchase of Adelphia cable systems in 2006.

In fact, they say, if anything is out of the ordinary, it is the level of protection of the FCC has afforded those documents, including not allowing remote access to them.

"Petitioners claim that the FCC should read the VPCI documents without the benefit of any third party review, and then rely on their contents when reaching a decision on the proposed mergers. That has never happened, and it cannot lawfully happen," ACA and Dish said.

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