FCC Restarts Review ‘Shot Clocks' for Comcast-TWC, AT&T-DirecTV Mergers

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By Lydia Beyoud

Dec. 3 — The FCC will immediately allow third parties to review media content companies' highly confidential information that isn't covered under a court-ordered stay of disclosure, it said in a Dec. 3 public notice. The Federal Communications Commission announced it is also resuming its 180-day merger review “shot clock” and pleading cycles on the proposed AT&T Inc.-DirecTV and Comcast Corp.-Time Warner Cable Inc. deals.

“Because Reviewing Parties can access Highly Confidential Information that is not VPCI [video programming confidential information], the pleading cycles are restarted to allow interested parties to provide comments that do not rely on VPCI,” the FCC said.

The agency initially paused its informal shot clock on the deals in October to allow the merger parties additional time to respond to information requests. The FCC subsequently held the pause when a group of media companies, including CBS Corp., Twenty-First Century Fox Corp., Viacom Inc. and the Disney Channel, petitioned a federal court for a stay of disclosure of VPCI between their companies and the merger parties CBS Corp. v. FCC, D.C. Cir., No. 14-01242, stay order, 11/21/14. The information would be reviewed by third parties under an FCC protective order as part of the merger review process.

When the court determines whether VPCI may be made available pursuant to the joint protective orders, the FCC “will consider what further adjustment to the pleading requirements or transaction review clocks may be appropriate in light of the Court's ruling to provide adequate time for Reviewing Parties to review and comment on the VPCI and for the Commission to consider such comments in its analysis,” the public notice said.

Industry Insight

Media companies are concerned that competitors, including Dish Network and companies represented by the trade group the American Cable Association, could gain a significant advantage in future negotiations by gaining an industry-wide overview of contractual agreements and other video programming information.

The FCC's joint protective orders are intended to prevent individuals with direct business dealings for the reviewing parties from reviewing the VPCI. The agency has said it needs third-party input on the merger proceedings in order to determine whether to approve the deals.

Pursuant to that matter, the FCC also issued an order Dec. 3 rejecting media companies' objections to certain individuals reviewing VPCI.

The companies objected to outside counsel and consultants for Netflix Inc., Dish Network and ACA accessing the information “on the ground that either they are directly involved in negotiating programming or retransmission agreements or their work requires them to consult with those involved” in such negotiations, the FCC said.

The agency determined that until the court stay is lifted, “the objections on these grounds are not ripe.” Thus, unless the individuals identified in the order's appendix do gain access to the VPI, “the fact that they may be involved in negotiating programming or retransmission agreements does not expose the Content Companies or the broadcasters to competitive harm.”

The FCC said it would address the content companies' and broadcasters' remaining objections to third-party reviewers when the court makes a decision on the petition for review.

New Filing Deadlines

The U.S. Court of Appeals for the District of Columbia Circuit granted a stay of disclosure Nov. 21 pending the media companies' petition for review of the FCC order.

Replies to the responses or oppositions to the Comcast-Time Warner Cable proceeding (MB Docket No. 14-57) must be filed by Dec. 23, and by Jan. 7 for the AT&T-DirecTV proceeding (MB Docket No. 14-90), the FCC said. The clock for the AT&T-DirecTV proceeding is reset to Day 70, and to Day 85 for the Comcast-Time Warner Cable deal.

The final date for petitioners in CBS Corp. v. FCCto file reply briefs is Jan. 13.

Comcast Opponents Coalition

Dec. 3 also marked the announcements of a coalition of opponents to Comcast's $45.2 billion proposed acquisition of TWC. The coalition includes a number of groups who've already taken a stand against the deal out of concern that it would lead to a telecommunications industry behemoth that would harm consumers and market competition.

In a Dec. 3 statement, Sena Fitzmaurice, Comcast vice president of government communications said it had hundreds of supporters. “We understand the questions and concerns that arise any time two big companies merge. But as even our opponents concede, Comcast and Time Warner Cable do not currently compete for customers anywhere in America,” thus maintaining the status quo in the number of consumer choices in cable and broadband providers, she said.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com

Text of the public notice is at https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1739A1.pdf.

Text of the order is at http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db1203/DA-14-1740A1.pdf.