What’s more important: Programmers’ right to keep the terms of their pay-TV deals private? Or the right of the FCC and the public to let regulators consider all potential benefits or harms of media mega mergers before deciding to approve or oppose them? The FCC, Comcast, and AT&T linked arms in taking the latter view today in filings at the US Court of Appeals in DC. It is considering a motion by CBS, Disney, Discovery, Time Warner, and others to bar anyone outside of the FCC from seeing programming contracts. That would overrule the commissions’ decision to make them available to some people under highly controlled circumstances as it weighs Comcast’s planned acquisition Of Time Warner Cable and AT&T’s purchase of DirecTV.
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The FCC challenged the programmers “overheated rhetoric” in arguing that they could lose leverage in contract negotiations if others see the terms of previous deals. Regulators say that “only a very restricted category of persons” will be allowed to look at the information – and it wouldn’t include anyone engaged in “competitive decision-making.” They would have to promise to keep details private at risk of criminal prosecution or disbarment. That’s important, because outsider comments about the deals “will be critical to the agency’s review of the pending mergers.” And programmers offer “no factual basis” to conclude that violations “will inevitably occur.”
Comcast — in a joint filing with Time Warner Cable and Charter Communications — and AT&T agree, at least in part because they want the FCC to get moving on their deals. “Not a single business person or even an in-house attorney is permitted to see” the information, Comcast says. If the court refuses to let expert consultants privately offer their views then it would “unjustifiably delay the substantial public interest benefits” of its merger. Separately, Dish Network says in a filing that details from the programmers’ contracts “are key to assessing the competitive effects” of the deals. The satellite company opposes the Comcast one, and wants conditions on AT&T.
But the National Association of Broadcasters asked the court to block the FCC. It has documents that include information about prices and conditions for carrying a station’s programming. If information from the deals is disclosed it might “provide third parties a once-in-a-lifetime opportunity to gain a material advantage in future negotiations” with broadcasters, the trade group says. For example, if a cable or satellite company knows that a TV station backed down at the last minute in one negotiation, then another distributor “may be induced to act more intransigently in negotiations with that station than it might otherwise have, thinking that the same tactics will work again.”
On Wednesday, programmers will submit their briefs responding to the ones filed today.
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