NAB: Release of Contracts in Merger Review 'Unlawful'

The National Association of Broadcaster has told a federal court that the FCC's decision to make thousand of pages of programming contract documents available to third parties in two high profile merger reviews is a "surprising and dramatic" and "unlawful" departure from established FCC precedent that could harm its members.

NAB Monday filed a petition with the U.S. Court of Appeals for the District of Columbia asking it to grant a stay of the FCC's decision as parties began lining up behind their respective sides. (The American Cable Association asked the court to deny the stay, for example, in a similar petition to intervene in the case.)

NAB said it is just talking about third-party access to those documents, not FCC access to them, which it has no beef with.

It says the stay is necessary because, as the FCC's Republican commissioners have pointed out, "no one can 'unsee' any documents to which they have been privy." That is the irreparable harm that is one prong of the test for granting a stay.

"Given the serious issues presented and the immediate and irreparable harm that will befall NAB’s members, this Court should stay the effect of the FCC’s Order while it carefully evaluates whether the FCC’s disclosure order violates the Trade Secrets Act and the Administrative Procedure Act," NAB said. A three-judge panel of the court — Judges Brett Kavanaugh, Cornelia Pillard and Judith Rogers — Friday 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, emails and other documents available starting Monday 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 had asked for a brief from the FCC and its backers by Monday and from content companies seeking the stay by Wednesday.

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.

The companies filed a stay request with the court Nov. 10, 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 asserts that 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 Corporation, Scripps Networks Interactive, Inc., The Walt Disney Company, Time Warner Inc., Twenty-First Century Fox, Inc., Univision Communications Inc., and Viacom Inc.

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.