NAB, MPAA to FCC: Don't Alter Protective Order Regime

Petition Agency to Put Item Out for Comment if Changing
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The National Association of Broadcasters and the Motion Picture Association of America (along with Digital Context Next) have teamed up to tell the FCC it needs to seek public comment on its plan for how it treats access to confidential information submitted to the agency.

They said the FCC should not be expanding access to sensitive information at all, but if it is, it should open a separate proceeding.

That came in an Aug. 12 letter to the FCC as the commissioners consider protective orders for the handling of sensitive company information related to the proposed Charter-Time Warner Cable merger that also responds to a court request that the commission better justify the regime for allowing hundreds of third parties, including lawyers for competitors, access to sensitive program contract information. Those orders were proposed for earlier merger reviews of Comcast-TWC and AT&T-DirecTV.

FCC chairman Tom Wheeler circulated the Charter-TWC protective order for a vote rather that put it out for comment.

"While the associations do not object to the commission’s review of sensitive information, we see no persuasive reason why third parties in a highly competitive communications marketplace need access to confidential materials, particularly confidential information pertaining to entities who may not be among the merging parties," the NAB and MPAA said.

"[I]n prior mergers the commission has successfully reviewed the most sensitive materials at the Department of Justice, rather than placing those materials in the public record where they would be made available to potentially large numbers of third parties that sign the applicable protective order acknowledgement," they added. "There appears no reason for the commission to alter its previous procedures and third-party disclosure policies to review the proposed Charter-TWC merger."

Moreover, they said, if the agency is going to change its procedures, "then it should request public comment on its proposals."

"Reviewing courts have not hesitated to overturn agency orders where the agency did not provide the requisite meaningful opportunity for comment," they wrote.

Programmers had led the successful court challenge of the earlier protective orders, but the U.S. Court of Appeals for the D.C. Circuit had remanded the orders and given the FCC the opportunity to better defend them, which the FCC apparently is now trying to do.

According to FCC sources and the Republican commissioners, the new protective order they have been asked to vote on ranges beyond even merger reviews to how the FCC handles sensitive information generally.

Republican commissioners Ajit Pai and Michael O'Rielly have said the FCC should put the protective orders item out for public comment and go ahead and separately start the clock on the Charter-TWC merger review so that a public comment cycle on that deal can be set. But Wheeler has said it does not make sense to do that until the protective orders are set for information that could inform how parties comment on the deal.

So far, Wheeler has voted the item as has commissioner Mignon Clyburn. The Republicans have signaled they want it put out for comment, which would appear to leave Democratic commissioner Jessica Rosenworcel holding the high card. Her office had not returned a call at press time for comment on whether she had voted the item and, if not, what issues she had.

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