Judges Question FCC’s Need To Share What Comcast & DirecTV Pay To Broadcasters

Those following the merger of Comcast with Time Warner Cable and AT&T’s acquisition of DirecTV may remember that the FCC had hoped to make some of the cable companies’ confidential contract information available to parties with a direct interest in these deals. In November, a federal appeals court preliminarily sided with the broadcasters and temporarily blocked the FCC from sharing this info, and this morning the court heard arguments from both sides on whether or not these contracts should be kept under lock and key for good.

The FCC believes it needs and has the authority to share these documents, which would include information about how much the pay-TV companies pay to carry cable and network TV programming, with lawyers for a small number of parties who may be impacted by these mergers.

After the Commission rejected a request by the media companies to rethink this sharing, the broadcasters — CBS, Disney, Fox, Time Warner, Viacom, Univision — got a federal appeals court in D.C. to issue a stay preventing the FCC from making the info available.

The FCC was allowed to review the documents for its evaluation of the two mergers but no one outside the Commission currently has access to them.

This morning, the three-judge appeals panel probed the necessity of making these documents available to interested parties and whether the FCC had sufficiently considered the broadcasters’ objections to its policy.

The broadcasters claim that the FCC only took five days to consider their initial concerns before narrowly deciding to move ahead with sharing the confidential info. In court today, the networks’ lawyers said the Commission had previously taken 20 days to consider such issues.

But FCC Deputy General Counsel David Gossett told the panel that the Commission pointed out its policy change twice and that five days was a reasonable amount of time to make a call regarding the broadcasters’ concerns.

“Time is of the essence in merger reviews,” which Broadcasting & Cable reports got a bit of a laugh from the audience who has seen the Comcast/TWC merger stretch beyond the 1-year mark.

The FCC contended that the networks’ issue isn’t that the Commission didn’t think enough about the objections, but that five days wasn’t a long enough delay in the process.

The judges questioned whether there was definitely a “necessary link” between sharing this confidential information and upholding the public interest or if this sharing was being done based on the mere possibility that these parties might find something material in the documents.

The lawyer for CBS accused the FCC of “crowdsourcing” opinion on the mergers, while Gossett pointed out that the FCC has previously made relevant documents available to affected parties and that there is a benefit to third-party input on mergers.

If the court decides that the documents are to remain confidential and can’t be shared, that might slightly expedite the last stages of the FCC’s review of these two mergers, both of which are headed into the home stretch anyway.

Judges Probe FCC On Document Release [B&C]