Broadcasters Want Retrans Deals Kept Out of Comcast/TWC Docket
Broadcasters asked the FCC not to require Comcast and Time Warner Cable to disclose sensitive retransmission consent information as part of the combining cable companies’ response to the agency’s recent request for more information on the deal, said a letter posted Monday in docket 14-57 (http://bit.ly/1sVbe42). Though such documents would be treated as confidential and redacted to anyone not a party involved in the proceeding, said the letter addressed to Media Bureau Chief Bill Lake from E.W. Scripps, Gray Television, LIN Television, Nexstar and Sinclair, it asked that FCC officials instead view the agreements at the Department of Justice. “Given the large number of parties to this proceeding, we have many concerns about the potential widespread dissemination of these extremely competitively sensitive documents, even if only among outside counsel,” said the broadcasters.
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The letter highlights a path around FCC transparency rules that is commonly used during deals, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who’s involved in a petition to deny Comcast/TWC. Since DOJ operates under strict confidentiality rules in its antitrust reviews, documents filed there are viewable only by regulators involved with deals, which can include the FCC, said Garvey Schubert cable attorney Bruce Beckner. It’s not uncommon for the most sensitive documents in deals to be filed only at DOJ, which keeps parties other than the FCC from seeing them, Schwartzman said. “Then the FCC bases its actions on documents the other side couldn’t view,” he said. “It should be enough that there is a protective order.” The FCC declined to comment.
Portions of Comcast’s (http://bit.ly/ZD4919), TWC’s (http://bit.ly/1siGy2h) and Charter Communications’ (http://bit.ly/1DtGOhR) heavily redacted responses to FCC information requests were posted online Friday and Monday. It’s not clear if the companies have more information they still need to submit, or if retrans information is included in their current submissions. Responses to FCC information requests have been “materially late” and “materially incomplete,” said Dish Network in a motion for extension of time filed Monday. Dish wants the deadline for reply comments in Comcast/TWC to be extended by 30 days from when Comcast completes responding to the information request. Replies are currently due Oct.8.
Retrans agreements are commonly treated by broadcasters and pay-TV operators as some of the most confidential documents in the communications sphere, said broadcast attorney Scott Flick of Pillsbury Winthrop, which has clients including LIN and Sinclair. In some deals, the combining companies don’t even view each other’s retrans agreements, Flick said. Comcast wouldn’t comment on the broadcaster request and said via email that it has “an obligation to provide the FCC with the documents they request” and will “continue to work with them to do so.” Charter and TWC had no immediate comment.
Broadcast and cable attorneys said it’s unlikely the FCC would grant the broadcaster request. “I hope they don’t,” Schwartzman said. The FCC wants to be seen as “promoting a fair process,” especially with the intense public scrutiny on Comcast/TWC, said Beckner. The FCC might also have another motive for not granting the request, said a broadcast attorney. In the past, the FCC has shown interest in gathering data on details of retrans agreements, the attorney said. Comcast/TWC could provide a way to get that information, said the lawyer.
The request is an example of broadcasters trying to avoid public scrutiny, said American Cable Association President Matt Polka in an interview Monday. The letter signers did not respond comment. Beckner said there was some truth to the concerns in the letter, comparing the matter to an attorney who represents multiple cable operators in multiple retrans deals. Though such an attorney is bound by confidentiality agreements not to disclose the terms of those deals, he will know how subsequent deals compare with previous ones, giving him a perspective he couldn’t otherwise have. Since existing confidentiality rules already deal with such a situation, the FCC shouldn’t give the retrans agreements in Comcast/TWC special consideration, he said. “Everybody has a right to comment in an FCC proceeding.”