NAB, MPAA: FCC Shouldn't Alter Protective Order Regime

The National Association of Broadcasters and the Motion Picture Association of America (along with Digital Content 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 FCC.

They say the FCC should not be expanding access to sensitive information period, but if it is, it needs to open a separate proceeding.

That came in a letter dated Aug. 12 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.

The chairman circulated the Charter-TWC protective orders 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," they said.

"[I]n prior mergers," they said, "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. There appears no reason for the Commission to alter its previous procedures and third-party disclosure policies to review the proposed Charter/TWC merger."

And if it is going to change it, "then it should request public comment on its proposals," adding: "Reviewing courts have not hesitated to overturn agency orders where the agency did not provide the requisite meaningful opportunity for comment."

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 merger review of Charter-TWC 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.

An FCC spokesperson said late Wednesday that the item had yet to be approved.

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.