Broadcasters Get Court To Stop Consumers From Seeing How Much Cable Companies Pay For Content

The FCC is currently mulling over whether to give its stamp of approval to two huge mergers — Comcast/Time Warner Cable and AT&T/DirecTV — and is intending to make information available to third parties about the deals that that these pay-TV giants make with broadcasters. But even though you and every other cable subscriber wants to know exactly how much Comcast pays for access to channels like ESPN, MTV, and the major networks, the broadcasters want that info kept under lock and key — and they’ve asked the court to stop it from possibly going public.

UPDATE: The D.C. Circuit Court of Appeals has sided with the broadcasters [PDF] and stayed the FCC order, meaning that the documents will not be made available for review on Monday. The FCC has until noon on Monday to file a response and the broadcasters have two days after that to file a response of their own if they choose.

We’ve asked the FCC for comment and will update if we hear back.


Against the broadcasters’ protests, the FCC commissioners said earlier this week [PDF] that third parties would be able to review certain confidential information about programming deals between the broadcasters and pay-TV operators. This information would not be made available online (at least by the FCC) but only viewable in person by attorneys of parties connected in some regard to the merger at FCC headquarters and other “secure sites.”

“It is our considered judgment that permitting access to Confidential Information and Highly Confidential Information under the terms of the Amended Modified Joint Protective Orders will aid the Commission in the expeditious resolution of these proceedings,” explains the FCC.

The notion is that parties who are submitting comments and responses to these mergers should have access to this data in order to make informed statements about the market power that a combined Comcast/TWC or AT&T/DirecTV would have.

Even though there are limitations on who and how this information can be viewed, there is little doubt that it would quickly be shared with the public in some forum.

In an effort to stop these documents from going public, the broadcasters — CBS, Disney, Fox, Time Warner, Viacom, Univision — filed an emergency motion [PDF] for a stay with a federal appeals court in D.C.

“There is no dispute that these materials contain highly sensitive information that, if disclosed, will cause substantial competitive and public interest harms,” reads the motion. “The FCC historically has afforded the highest level of confidentiality protection to these materials.”

The petitioners claim that the FCC’s decision “reflects an agency that disregarded past practice, precedent,” and the rights of the broadcasters.

According to the broadcasters, even if a court ultimately decides that the documents should be made available, the FCC order should be stayed because you can’t take back that confidential information once it’s been made public.

“The harm from disclosure is so substantial and irreparable that this Court has stayed orders disclosing confidential information even when the Court ultimately upheld the disclosure decision,” reads the motion.

The broadcasters claim that the FCC order is “arbitrary and capricious” and in violation of the Trade Secrets Act.

As per the above update, the court agreed to issue the stay on Friday, meaning the documents will not be made available on Nov. 17.

[via Fierce Cable]

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