The TV and movie studios and broadcast nets have asked the FCC to reconsider its protective orders in the proposed Charter/Time Warner Cable/Bright House merger, saying they are illegal violations of the Trade Secrets Act and Administrative Procedures Act.
Those provide the framework for how the FCC deals with sensitive business information submitted by the parties wishing to merge, including programming contracts with program providers, like studios and broadcast networks.
The petitioners are the same groups who petitioned the FCC to reconsider its protective orders and their sharing of program contract info in the Comcast/TWC and AT&T/DirecTV merger reviews, then took the FCC to court when it declined to do so. The U.S. Court of Appeals for the D.C. circuit overturned those orders, saying the FCC had not sufficiently justified its decision for making program contract work product widely available to the representatives of hundreds of third parties, including competitors and consolidation critics.
But the court also remanded the orders back to the FCC for better justification. In the meantime, the FCC nixed the Comcast/TWC deal and approved the AT&T/DirecTV deal.
When it came out with the Charter/TWC orders Sept. 11 the FCC combined those with more general guidance about the handling and sharing of information, including with third parties. The Republican commissioners had issues with the orders and dissented either in whole or in part.
In the petition, filed Oct. 13, the programmers say that amounts to a "sweeping modification" of its confidential information policies that "guts" fundamental protections for sensitive information.
They say the Sept. 11 order's provision for sharing information with the public on only a showing of relevance contravenes the court's "command" that a showing of "necessity" was needed before sensitive information should be disclosed and violated Trade Secrets Act protections.
They also argue since the FCC provided the new guidance through the Charter/TWC protective orders, rather than through a notice and comment procedure where interested parties, including the public, get advance notice and could weigh in, it is a violation of the Administrative Procedures Act.
And even if the FCC could adopt a "relevance" standard for releasing confidential info -- which it can't, say petitioners -- the order violates the APA because it does not acknowledge the change in the FCC's "persuasive showing" standard or new "relevance" standard in place of the stricter "necessary standard."
The FCC has said it has used "necessary" as a standard previously, but the programmers say that is not correct.
Filing the petition were the Motion Picture Association of America and the U.S. Chamber of Commerce and, individually, CBS, Disney, Scripps Interactive, Time Warner, Twenty First Century Fox, Univision and Viacom.
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.
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