CBS, Fox, Et Al Slam FCC's 'Un' Decision On Merger Docs

Argue Being Available to Third Parties, "Unprecedented, Unnecessary, Unexplained"
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Content companies Wednesday told a D.C. court that it definitely needs to block the FCC's decision to make thousands of programming contract documents in the Comcast/time Warner Cable and AT&T/DirecTV merger reviews available to hundreds of third parties.

Companies seeking the stay are CBS, Scripps, Disney, Time Warner, Twenty-First Century Fox, Univision, and Viacom, joined by the National Association of Broadcasters in support. On the other side is the FCC, joined by AT&T, Comcast, Charter, DIRECTV DISH, and Time Warner Cable, which all oppose the stay.    

CBS et al said they are likely to win on the underlying merits of their challenge of the FCC decision and the protective orders the FCC asserted protected that sensitive information and allowed it to be shared. They also call the sharing of not only contract info but work product including e-mails and memos "Unprecedented, Unnecessary, and Unexplained."

"In a highly irregular process, the FCC has trampled Petitioners’ rights by ordering the disclosure of an unprecedented amount of Video Programming Confidential Information (VPCI)," the companies told the U.S. Court of Appeals for the District of Columbia. "A stay is necessary so the Court can carefully consider the merits of the FCC’s disclosure decision before third parties gain access to hundreds of thousands of unredacted pages of highly sensitive contract, negotiation, and strategy materials. Absent a stay, Petitioners’ appeal is moot."

The companies sought the stay after the FCC's Media Bureau approved modified protective orders and rejected their challenge to making the information available to third parties like public interest groups and competitors. They refiled it after a politically divided full commission voted to uphold the Media Bureau.

The court has not ruled on the stay, but postponed the FCC's planned Nov. 17 sharing of the documents until it heard from both parties. The FCC and its backers weighed in Nov. 17, content companies had until today.

The court must now rule on the stay, after which it will have to rule on the underlying challenge to the FCC order though, per above, the content companies point out it would be moot without the stay. In the meantime, hundreds of parties are lined up to view the documents and the FCC's informal shot clock on both deals is in pause mode, a point the FCC made when arguing against the stays.

In fact, one of the reasons the parties to the deals are on the FCC's side is the potential impact on the timing and even outcome of the reviews. The FCC has signaled that the stay would delay that timetable, and might even affect whether the deal gets done.

At least that applies to the parties in the deal. Dish likely is looking for more ammunition to use in opposition.