Court Stays FCC Order On Merger Contracts

Court, On Own Motion, Stays Decision Until It Is Briefed On Issue Nov. 17

The U.S. Court of Appeals for the Disctrict of Columbia says the FCC can't make Comcast/Time Warner Cable and AT&T/DirecTV programming contracts available to third parties just yet.

A three-judge panel of the court--Judges Brett Kavanaugh, Cornelia Pillard and Judith Rogers--Friday (Nov. 14) granted at least a brief stay of the FCC's Nov. 10 order that would have allowed the commission to start making the contracts, memos, e-mails and other documents available, starting Monday (Nov. 17) at 3 p.m..

The court said it wanted more time to consider the motion and that the stay--which was literally a "brief" stay because it was to allow for briefs to be filed--should not be construed as a ruling on the merits of the stay. So, the court's stay was on its own motion, rather than in response to the content companies' request for the stay.

The court has asked for briefs from the FCC by Monday at noon and programmers by Nov. 19.

Content companies filed their latest volley Nov.13 in the ongoing legal battle over the FCC's decision to allow third-party viewing of highly sensitive programming contracts as part of the review of the Comcast/Time Warner Cable and AT&T/DirecTV merger reviews. It was actually the re-filing of a previous court request made only days ago.

That latest filing was an amended petition for a stay of that FCC decision by the U.S. Court of Appeals for the District of Columbia.

The companies filed a stay request with the court on Monday, but that was a stay of a Media Bureau decision to allow potentially hundreds of third parties access hundreds of thousands of pages of those documents and the memos and emails about how the deals were done. The bureau Wednesday released the modifications it made to protective orders. A politically divided commission then voted to uphold that bureau decision Monday after the companies had already filed, so they had to amend the filing to reflect that they were now challenging a full commission decision.

The petition says the FCC's decision "violates the Trade Secrets Act and the Administrative Procedures Act, and will cause substantial, irreparable harm to Petitioners and the highly competitive programming marketplace in which they operate."

The refiled petition also makes use of Republican dissents from that Monday vote, in which Commissioner Ajit Pai described the process — he says he was given virtually no time to digest the item before being told he had to vote on it — as "procedural shenanigans." Pai also has issues with making the info widely available, particularly memos and emails detailing the negotiations.

Filing the original and amended petitions were CBS Corp., Scripps Networks Interactive, Inc., The Walt Disney Co., Time Warner Inc., Twenty-First Century Fox, Inc., Univision Communications Inc., and Viacom Inc.