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By Lydia Beyoud
Jan. 13 — The fact that some confidential information involved in the FCC's two ongoing merger reviews has been inadvertently placed in the public record should prove media companies' claims that they are likely to suffer harm if their video programming information is revealed to third parties, according to a filing obtained by Bloomberg BNA Jan. 13.
CBS Corp., Viacom Inc., Twenty-First Century Fox Inc. and others said this fact and other reasons bear out their petition that their most confidential information could be publicly disclosed as part of the Comcast Corp.-Time Warner Cable and AT&T Inc.-DirecTV antitrust reviews by the Federal Communications Commission.
“When a huge volume of highly confidential information is revealed to hundreds of people, there can be no dispute that disclosures may occur,” the filing said.
The filing is the latest in which media content companies that are not part of the merger arrangements have sought to have an FCC order to disclose their documents overturned by the U.S. Court of Appeals for the District of Columbia.
Further, FCC statements that it cannot defend its order and ultimate merger decision if it doesn't release all of the media companies' video programming confidential information (VPCI) to outside experts is wrong, the brief said. The FCC said in previous filings that without such disclosure, its decision would run the risk of a judicial challenge as unsupported by substantial evidence and be attacked as arbitrary and capricious.
The companies said the Administrative Procedure Act requires the FCC to ensure “only that ‘the most critical factual material that is used to support [an] agency's position on review' has been ‘exposed to refutation'.” But petitioners said anyone seeking to overturn the FCC's decision in the courts would have to meet a very high burden to show the agency had failed to comply with this obligation.
“The FCC also does not dispute that media mergers have been approved without providing third-party access to VPCI, and none has even been challenged, let alone overturned, on the basis that the Commission failed to make VPCI available to third parties,” the brief said.
The merger parties and intervenors in the case, which include direct competitors with the media companies, have said that Congress granted the FCC wide latitude in how it conducts its proceedings, and that FCC policy requires that antitrust review be conducted expeditiously in order to avoid instability in the marketplace.
Respondents and the FCC have said the suit has delayed the merger review unnecessarily, that the petitioners' objections to any individual reviewing their information were overly broad, and that the FCC's modified protective orders gave appropriate balance to concerns about disclosure with the need for expeditious antitrust review.
The FCC order is currently under a stay pending a decision.
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Text of the petitioners' brief is at http://op.bna.com/der.nsf/r?Open=tbay-9sqrfd.
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