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ACA: Access To Programming Contracts Vital To Transparent FCC Merger Review

Limits On Access Would Undermine Process, Set Bad Precedent

PITTSBURGH, September 30, 2014 — The American Cable Association urged the Federal Communications Commission to reject a request by major cable and broadcast programmers to deny third-party attorneys access to their programming contracts with pay-TV providers seeking FCC merger approval. This highly unusual request comes even though the outside attorneys have signed an oath pledging to protect the material’s confidentiality under a penalty as severe as disbarment 

The programmers, advancing unsupported claims that a leak would greatly harm their competitive position, want to limit FCC staff access to the documents to viewing them at the Department of Justice and to either outright deny, or significantly burden, access for third-party lawyers representing clients that are participating in the FCC’s review of the Comcast-Time Warner Cable-Charter transactions and the AT&T-DirecTV merger. 

In comments with the FCC on Monday, ACA urged the agency to reject the programmers’  demands.  ACA said the programmers overlooked that confidentiality breaches are extremely rare (as would be expected given the career-destroying nature of potential sanctions) and that third-party data access was integral to both the FCC’s ability to access whether the pending transactions would serve the public interest and to the ability of parties to the proceeding to support their claims of competitive problems with facts disclosed in the contested documents. 

“By making categories of important data and information off-limits to interested parties, the FCC would significantly curtail the utility of public participation and set a very bad precedent. Such action will undermine the public trust that fair and open proceedings were being conducted,” ACA President and CEO Matthew M. Polka said. 

The programmers seeking special protections for their pricing data include: CBS, Disney, Fox, Discovery, Time Warner, Scripps and Univision and several large broadcast station groups.  Several of the programmers said they do not want their contracts with the multichannel video programming distributors (MVPDs) submitted to the FCC at all, but only to the DOJ, where FCC officials would be limited to reviewing the data at the DOJ. 

ACA’s filing argues the programmers presented unsupported arguments in defense of their request for heightened protection.  Losing access to the data, ACA said, would frustrate its ability to rebut assertions of the merging parties that their deals benefit the public without posing any competitive harms.  The companies seeking to combine have relied upon their programming contracts to advance their interests, and so it’s only fair that those with concerns about the deals have equal access to prove the competitive harms of the transactions and press for key remedial conditions. 

ACA observed the programmers had given no reason why their contracts and related data are any more confidential or commercially sensitive than the thousands of other contracts and documents that the FCC requests and interested parties review every year in connection with dozens of other proposed mergers that are made available through appropriate protective orders. 

“ACA and other parties to the merger proceedings would be greatly harmed in their ability to present their cases to the FCC should access to their programming contracts with the merging parties be categorically denied,” Polka said. 

In its filing, ACA identified a few specific reasons for gaining access to the agreements the merger applicants have entered into with the programmers that will allow it to effectively evaluate whether approving the deal is in the public interest. 

About the American Cable Association: Based in Pittsburgh, the American Cable Association is a trade organization representing nearly 850 smaller and medium-sized, independent cable companies who provide broadband services for nearly 7 million cable subscribers primarily located in rural and smaller suburban markets across America.  Through active participation in the regulatory and legislative process in Washington, D.C., ACA's members work together to advance the interests of their customers and ensure the future competitiveness and viability of their business.  For more information, visit http://www.americancable.org/

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