Content Companies File Final Brief in Stay Request; Decision Seen Possible Friday

The U.S. Court of Appeals for the D.C. Circuit may temporarily grant the stay on the FCC’s planned release of Video Programming Confidential Information, but the programmers who requested the stay will likely lose the case on the merits, several communications attorneys following the matter told us in interviews this week. The content companies, which include CBS, Disney, Univision and Viacom, filed their responses on Wednesday to opposition (see 1411170047) from the FCC, as well as from the American Cable Association, AT&T, Comcast, Charter, DirecTV and Time Warner Cable, ending the briefing cycle for the case. Because of the expedited nature of the case, a ruling from the three-judge panel on whether to stay the FCC’s order to share the VPCI with authorized outside counsel is expected Friday, an attorney connected with the case told us. Though Comcast, AT&T and the FCC maintain otherwise, the requested stay is not seen as likely to have a strong effect on the merger review process, several industry observers told us.

Perceived procedural irregularities at the FCC and the irrevocable nature of a decision to release confidential documents are the factors likely to lead to a stay pending judicial review being granted, cable, broadcast and programming attorneys told us. A more temporary administrative stay already is in effect. A rushed commission vote to deny the content companies’ application for review and the Media Bureau's changing its confidentiality orders to allow confidential documents to be released after only a bureau-level review may cause the court to want to take its time reviewing the matter, several attorneys told us. Similarly, released confidential documents can’t be un-released, which may also cause the court to issue the stay to allow it to appropriately consider the issue, the attorneys told us. “Whether a leak is intentional or inadvertent, the resulting harm is identical and cannot be undone,” the content companies said in their Wednesday filing.

Though the FCC argued in its filings that it has shared VPCI in considerations of past transactions, the content companies said that such sharing also has led to confidential documents being inadvertently shared. “AT&T itself was responsible for releasing Highly Confidential Information during the FCC’s review of its proposed merger with T-Mobile,” the content companies said. Comparisons to past deals are also inaccurate because the industry's regulatory structure has changed a great deal, one cable attorney told us. The FCC used as an example provisions for over-the-top content in the Adelphia cable deals, the cable attorney told us. “The point is that protective orders do not always protect extremely sensitive information, and they cannot always safeguard third parties like Petitioners against irreparable harm,” the content companies said. Though most attorneys honor confidentiality agreements, they also learn things under them that they can never forget, a cable attorney told us, adding that the court would likely see it as “a fair question.”

Though the court may issue a stay, most industry attorneys we spoke with believe the programmers will lose on the merits anyway, because the law directs the courts to defer to the administrative agencies in most matters. Retransmission consent contracts, programming documents and merger reviews likely will be seen as too specifically within the FCC’s administrative purview for the courts to want to step in, multiple attorneys told us. The commission has pointed to the extensive confidentiality procedures it enacted for those viewing the VPCI as evidence that it has made an effort to protect the information, and the court is seen as unlikely to disagree with them, the attorneys told us. Not everyone agrees -- the content companies have made “a compelling argument” that raises many questions, an official at one of the programmers involved in the case told us.

If a stay is issued, the delay it creates could lead to some sort of agreement being reached between the content companies and the commission, a programming attorney told us. The FCC could seek to reach an agreement to prevent the merger reviews from being further slowed, the attorney told us. The content companies have been looking to bargain with the commission since the dispute began, but the FCC has been unreceptive, an official at one of them told us. The commission did not comment.

If no stay is issued, the content companies have few options, a programming attorney told us. They could push for an en banc review at the D.C. Circuit, or seek to take the case to the U.S. Supreme Court, but both options are unlikely for a mere stay request, an attorney told us. It’s also possible the court could remand the matter to the FCC, a content company official told us.