Programmers Seek Court Stay of FCC Contracts Call

As expected, major content companies have gone to court to try and get an emergency stay of the FCC's decision to allow hundreds of third parties to access sensitive programming contract information and work product—memos, emails—as part of the FCC's vetting of the Comcast/Time Warner Cable and AT&T/DirecTV deals.

The petition to the U.S. Court of Appeals for the District of Columbia, which was filed Nov. 11, was actually an appeal of the Media Bureau decision, not the full FCC vote to confirm that decision, which came Monday after the companies had already filed the court papers, according to a content company source speaking on background.

Joining in the petition were CBS, Scripps Networks Interactive, Disney, Time Warner, 21st Century Fox, Univision and Viacom.

They will have to be tweaked to address the full commission decision, which the source suggested was rushed and needs a longer look than the couple of hours that dissenting commissioner Ajit Pai said he got before having to cast a vote. But the the basis of the stay request remains the same.

They argue that the Media Bureau's order, and now the "rushed" FCC vote, is unlawful because it "arbitrarily and capriciously"—which means illegally—diverged from its practice of respecting the right of meaningful review of FCC decisions to disclose highly sensitive information.

Before the FCC voted quickly to approve it at the commissioner level, the Media Bureau had ruled on the programmer challenges to who could get the info and why so much was being made available and, they argue, was being insufficiently protected. The Bureau dismissed the challenges, saying it had made modifications to the protective orders to better protect the information.

CBS, Fox et al argue the bureau's own reconsideration of its decision "arrogates to itself the sole right of meaningful review." But what about the full commission review, which included a seven-day delay for court appeals of that decision.

According to the source, Commissioner Ajit Pai had it right when he complained that he was given almost no time to make a decision and could hardly have given the decision the attention it needed—he thus voted against it. That vote, the source says, does not represent careful examination and so the issue has not gotten the sufficient consideration by the FCC that has historically been required before sensitive information is made available to outside parties.

The court will need to rule before 3 p.m. on Nov. 17, when the FCC ruled the contracts and other info—thousands if not millions of pages said the source—will be made available to third parties, including public interest groups.

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.