CBS, Et Al.: FCC Is Playing Too Fast and Loose With Contract Info

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.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.