Access Necessary To Challenge Claims Deals Will Serve Public Interest
PITTSBURGH, January 5, 2015 – The American Cable Association urged a federal court to allow third parties to examine under strict conditions various programming contracts submitted to the Federal Communications Commission in connection with the agency’s ongoing review of Comcast’s proposed takeover of Time Warner Cable and AT&T’s planned acquisition of DirecTV.
ACA, in a court filing with Dish Network on Jan. 2, said powerful media companies that want to block access are attempting to prevent the FCC from accepting informed public input that relied on the contract terms to demonstrate public interest harms stemming from either merger. In past mergers, the FCC has allowed, largely without incident, access to programming contracts pursuant to protective orders that restrict access to outside counsel who are not competitive decisionmakers on behalf of their clients.
“The FCC has consistently found programming contract terms to be highly relevant evidence indetermining whether a media merger’s approval serves the public interest. Despite the vital importance of such information, the media companies formally seek to deny access to it by third parties even under very restrictive conditions. That has never happened before, and should not happen now,” ACA President and CEO Matthew M. Polka said.
In November, the U.S. Court of Appeals for the District of Columbia Circuit barred the FCC from granting access to ACA, Dish and other third parties, in response to litigation filed by CBS, Disney, Time Warner, Twenty-First Century Fox, Univision Communications, and Viacom, claiming the FCC’s move was unprecedented and would put them at a competitive disadvantage.
ACA and Dish underscored in their joint court brief that the FCC frequently requires access to sensitive programming agreements in media mergers and that the primary difference with past mergers is that the FCC has taken additional measures to protect carriage agreements related to the Comcast-TWC and AT&T-DirecTV transactions. FCC granted access to the terms of programming deals filed with the FCC in connection with Comcast’s takeover of NBC Universal, Comcast and Time Warner Cable’s purchase of Adelphia Communications, and Dish’s attempt to merger with DirecTV.
ACA and Dish stressed that access to the video programming confidential information is critical for intervening third parties because informed review by appropriate third parties is required by law. Moreover, if the FCC were to withhold relevant documents from participants in the merger review, the agency’s final order would be subject to judicial challenge as arbitrary and capricious in denying interested parties the ability to analyze whether additional documents undercut evidence on which the FCC relied.
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 https://acaconnects.org/