D.C. Circuit Issues Administrative Stay of FCC's Planned Release of VPCI

The FCC's planned Monday release of Video Programming Confidential Information in the Comcast/Time Warner Cable and AT&T/DirecTV merger proceedings was halted by an administrative stay issued Friday by the U.S. Court of Appeals for the D.C. Circuit. The stay followed an emergency motion filed by a group of content companies that includes Disney, Viacom and Univision Thursday. The stay is "to give the court sufficient opportunity to consider the merits of the motion for stay and should not be construed in any way as a ruling on the merits of that motion,” said the order. But the granting of the administrative stay is an indication that the court thinks the matter is serious enough that it needs time and a complete record to consider it, an attorney who represents programmers told us. The FCC is to respond by noon Monday, and the content companies are to respond on Wednesday, the order says.

Along with stopping the commission from releasing the confidential documents to approved outside counsel as had been planned for Monday, the administrative stay also means the commissions' 180-day shot clock to review the mergers also won't restart Monday, an FCC spokesman told us. Though the content companies said in their emergency motion that the stay shouldn't have any adverse effects on the merger review and didn’t ask the court to halt the shot clock, the Nov. 10 order that was the focus of the stay included the provision announcing the shot clock's restart date.

Dish, Comcast, Time Warner Cable, Charter, AT&T and DirecTV all asked to be included as intervenors in the case, and Dish, DirecTV and AT&T filed oppositions to the content companies' request for a stay. The content companies are unlikely to win on the merits because the court will likely defer to the FCC's judgment, AT&T and DirecTV said in their joint opposition filing. “Petitioners’ contentions that, for instance, the Commission should have adopted even more stringent protective order procedures are run-of-the-mill disagreements with the conclusion of the expert agency,” said the joint filing. “They do not demonstrate any abuse of discretion.” Staying the Nov. 10 order and halting the release of VPCI will cause harm to Dish, said the DBS company, which has filed in opposition to the Comcast/TWC merger and asked for conditions to be imposed on AT&T/DirecTV. The programming agreements at the heart of the dispute are “key to assessing the competitive effects of the merger,” Dish said. The FCC's move to allow access to the programming information isn't unprecedented as the content companies claim, Dish said. “What is unprecedented is precisely the extent to which the FCC has attempted to accommodate the Petitioners’ concerns by affording them expanded protections.” The safeguards established by the FCC “exceed any safeguards ever before imposed in an FCC protective order, and are more than adequate to ensure that these documents will not be used by competitors for competitive decision-making,” Dish said.