D.C. Circuit Grants Stay in Battle Over Access to Content Companies’ Confidential Information
The FCC was set to release today hundreds of thousands of pages of highly confidential documents — including unredacted programming distribution agreement materials and negotiating strategy documents — for inspection by third parties as part of the Commission’s review of the Comcast-Time Warner Cable and AT&T-DIRECTV mergers. On Friday, November 14, however, a coalition of the largest broadcast and cable networks (“Content Companies”) won a temporary stay from the U.S. Court of Appeals for the D.C. Circuit, which halted the FCC’s disclosure of such documents and ordered briefing to help it decide whether the companies’ confidential pricing and negotiation information should be released by the FCC.
The Content Companies, which include CBS Corporation, Scripps Network Interactive, Inc., The Walt Disney Company, Time Warner Inc., Twenty-First Century Fox, Inc., Univision Communications Inc., and Viacom Inc., and are represented by Covington & Burling LLP, filed an Emergency Motion for Stay on November 13. They argued that the release would violate the Trade Secrets Act and the Administrative Procedure Act, and would cause substantial, irreparable harm to them in the highly competitive programming marketplace.
The D.C. Circuit, acting one day after the Content Companies filed their emergency motion, granted on Friday a temporary stay “pending further order of the court,” and ordered the FCC to file its opposition to the stay motion by noon on Monday, November 17. The Content Companies’ reply is due by noon on Wednesday, November 19.
Noting that the FCC has long recognized that distribution agreements are entitled to the highest level of confidential treatment because disclosure could result in substantial competitive harm, the Content Companies are objecting to a protective order issued by the FCC’s Media Bureau that would make the unredacted agreements and negotiating materials available to hundreds of individuals who represent the parties to the mergers as well as other distributors and competing programmers. The protective order would allow access by those individuals before the Commission or a court had a chance to rule on any objections to disclosure to specific individuals. The full Commission affirmed the protective order by a 3-2 vote on November 10, ordering the information released to at least 244 individuals on November 17, prompting the emergency stay motion filed by Content Companies.
The case is CBS Corporation, et al., v. Federal Communications Commission, No. 14-1242.