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Studios: FCC Should Still Vacate Info-Handling Order

The major TV content suppliers have told the FCC that it should not reject their petition to reconsider its new policies for handling and sharing sensitive merger information—including programming contract work product—with potentially hundreds of third parties. They said that nothing their critics have said about that petition should dissuade the FCC from reconsideration.

That came in reply comments to the FCC on its Sept. 11 decision affecting both the protective orders for handling information in the Charter-Time Warner Cable-Bright House merger proposal and information handling and sharing more broadly.

Those signing on to the comments—and filing those initial petitions to reconsider—included CBS, Fox and Disney. Comcast-NBCU filed separately, but in the same vein (see below).

CBS et al. told the commission that nothing that trio of opponents offered up provided a reason to retain the new standards.

"[T]he Opposition does not explain how the Commission has statutory authority to promulgate the Order in the first place," they said in the filing. "Commission authority to avoid notice-and-comment rulemaking or to release sensitive information simply because it is relevant.  Similarly, the Opposition does not address the Commission’s unexplained decision to abandon the 'persuasive showing' standard when disclosure occurs under a protective order and to neuter that standard..."

In the item released Sept. 11, the commission was both setting protective orders to create a framework for sharing sensitive program contract information in the Charter-TWC deal with third parties, and responding to a court remand of its previous decision to share that info in the Comcast-TWC and AT&T-DirecTV deals with potentially hundreds of third parties. The court had called the FCC's protective order policy "confusing and often contradictory," and vacated and remanded it back, saying the FCC was free "to clarify its current policy or to amend it."

The FCC did that in the Sept. 11 order, but the programmers say it is still too broad, and that its wide applicability beyond this merger and even mergers in general to other information requests means it should have been dealt with in another proceeding.

In a separate filing, Comcast-NBCU also said that the protective orders should be vacated and any such changes made only in a separate, docketed proceeding, and only "after public notice and comment, and without causing any delay to this docket."

Challenging the reconsideration petition had been the American Cable Association, Dish, and INCOMPAS (formerly Comptel).