The National Association of Broadcasters has told a federal court that its retransmission consent deals with MVPDs are among their "most closely guarded secrets" that should not be shared with third parties.

That came in NAB comments filed Monday (Dec. 15) with the U.S. Court of Appeals for the District of Columbia in support of a challenge by CBS and other programmers to the FCC's decision in the Comcast/Time Warner Cable and AT&T/DirecTV merger reviews to make contracts and work product from retrans and other programming deals available to hundreds of third parties.

The court has stayed that FCC decision and Dec. 15 was the deadline for briefs from CBS, the other programmers, and NAB, which was granted leave to intervene in support of the programmer challenge.

The FCC is free to view and vet those contracts (as the court made clear when issuing its stay of the decision to let third parties also vet them).

NAB says that is fine with broadcasters.

"NAB is not arguing that the Commission should not have access to the programming agreements and negotiating materials submitted by the merging MVPDs," the association said, according to a copy of the filing obtained by B&C. "But revealing to other MVPDs or their representatives the terms of agreements and details of negotiations with the merging companies --which collectively negotiate with television stations in almost all of the nation's 210 television markets-- would play havoc with broadcasters' ability to negotiate retransmission consent agreements on anything approaching a competitively level playing field. Notably, those entities supporting the broadest third-party disclosure before the FCC and in this Court are either competing MVPDs or trade associations representing them."

NAB notes the "breathtaking scope" of the documents given the size of the transactions, pointing out the FCC also recognized that could be problematic. "One of the merging parties --DirecTV-- has retransmission consent agreements with television broadcasters in all but a handful of the nation's 210 television markets," said NAB. "Comcast, Time Warner, AT&T and Charter collectively have agreements covering most of the major television markets in the United States [the deal includes system spin-offs to Charter].

NAB suggested its stations are not interested in being part of the transaction --except the NBC stations owned by Comcast-- but that the FCC "has dragged our member stations unwillingly into the current controversy by permitting disclosure of their most confidential information to third parties who would use that information to disadvantage them."

NAB also says that release of the information does not square with the FCC's prior implementation of rules under the Trade Secrets Act that "confidential financial information can only be disclosed after a 'persuasive showing' of the need for disclosure. And under the FCC's long-standing interpretation of that mandate, confidential information should not be disclosed, even under a protective order, 'on the mere chance that it might be helpful.'"

The FCC adopted protective orders for the information that limit third party viewing to outside counsel and no one involved in "competitive decision-making." But NAB said that as a practical matter, nothing prevents outside counsel from using the knowledge gained to advise clients about FCC rulemakings governing programming negotiations or on negotiating strategies. Then there is the possibility that outside counsels become inside counsel, where it would be tough to "unknow" the "detailed, industry-wide" contract information in the documents.

"The Commission failed to give serious consideration to whether this sweeping disclosure was necessary, whether alternatives would meet third parties' needs, or whether the holes in its protective orders would render them nugatory," said NAB. "Under well-established standards, the ruling under review cannot be sustained."

Joining CBS in challenging the FCC decision were Scripps, Disney, Time Warner, Twenty First Century Fox, Univision, and Viacom.

A group of programmers have told a court that the FCC has not provided sufficient protections for confidential business information it is ready to share with some 260 outside parties.

CBS and other programmers filed the opening brief in their court challenge to the FCC's decision to let third parties see program contracts and work product as part of the FCC's review of the proposed Comcast/Time Warner Cable and AT&T/DirecTV mergers.

The U.S. Court of Appeals has stayed that FCC decision while it hears the underlying arguments.

In their opening brief, CBS, et al. provided three reasons the court should vacate the FCC's order disclosing contract info to third parties.

1. The FCC has not provided sufficient opportunity to review disclosure decisions beforehand, particularly given that they say a party alleged to be a competitive decision maker--precluded from viewing the documents per FCC protective orders--is being given access.

2. The FCC made no "persuasive showing" that disclosure was necessary.

3. The FCC had reasonable alternatives to disclosure, including releasing redacted or anonymized data, as they had requested. And if the FCC contends redaction would be unduly burdensome, that is only because it overreached in the amount of third-party contract info it demanded.

They also ask why the FCC did not require a particularized showing from third parties of how access to the information would help the FCC make the decision about the deals.

Then there is the issue of the number of outside parties the FCC is willing to share with. They say that if the FCC has to share all that confidential information, which it argues it doesn't, then it should have to minimize the risk of disclosure, which means limiting the number of exposures. Instead, "the protective orders in these cases have been signed by more than 260 individuals so far, and additional Outside Counsel or Outside Consultants are entitled to sign the protective orders if they represent an entity that merely intends to participate in these proceedings at some unspecified point in the future."

Joining CBS in challenging the FCC decision were Scripps, Disney, Time Warner, Twenty First Century Fox, Univision, and Viacom.

Intervening in support of the FCC and its decision are the American Cable Association and the parties to the two mergers, who don't want the decision delayed by extended court challenges.

The FCC has signaled that it may wait until the case is resolved before deciding on the mergers, which could push that decision into late spring of 2015. The FCC and its supporters will have a chance to make their cases in mid-January. Oral argument is scheduled for Feb. 20, but with a decision expected no earlier than April, according to one lawyer involved in the case, and perhaps as late as June. If the court ultimately ruled in the FCC's favor, the commission would likely give third parties a chance to see the documents and weigh in before deciding, which could mean mid-summer before a decision.