Merger Shot Clocks Restart; Stop Mega Comcast Coalition Launched

The FCC Media Bureau restarted the merger shot clocks and pleading cycles for the AT&T/DirecTV and Comcast/Time Warner Cable deals on the same day that Dish Network, Public Knowledge and other entities launched their new Stop Mega Comcast Coalition in opposition to that deal. The new group, which also includes content company The Blaze, NTCA, Sports Fan Coalition and others, wants the FCC and Department of Justice to block the Comcast/TWC merger outright, said Public Knowledge President Gene Kimmelman in a conference call Wednesday. “It’s no surprise that the same competitors and special interest groups who’ve gone after Comcast in the past are at it again,” said Comcast in a blog post responding to the coalition launch and FCC announcement of the restarted merger reviews.

Along with getting the clocks ticking, the commission also said it would allow immediate access to highly confidential documents associated with the deals, though not the Video Programming Confidential Information that it's currently barred from releasing by a U.S. Court of Appeals for the D.C. Circuit stay order. “No Reviewing Party shall have access to VPCI pending the court’s decision in the litigation,” the FCC said in an order.

Under the restarted pleading cycle, replies to oppositions in Comcast/TWC -- originally due in docket 14-57 on Oct. 8 -- are now due Dec. 23, said the FCC in its order Wednesday. In AT&T/DirecTV, replies to oppositions -- originally due in docket 14-90 on Nov. 5 -- are due Jan. 7, the FCC said. The commission reset the shot clock for the AT&T deal to Day 70, while the Comcast deal clock is on Day 85, said the order. The pleading cycle and shot clocks could be adjusted further depending on the result of the content companies’ petition for review, the commission said.

Along with restarting the merger reviews, the Media Bureau partially rejected the vast majority of objections filed by the content companies to attorneys seeking access to confidential information, said another order released Wednesday. After this wave of rejections, the only two remaining attorneys barred from access to the confidential information are in-house counsels Ross Lieberman of the American Cable Association and Ellen Stutzman of the Writers Guild of America, West, the order said. Lieberman and Stutzman didn’t comment. According to the order, because the content companies' objections were based on the attorneys having access to VPCI and not other highly confidential information, the bureau finds “no reason” why the objected-to attorneys -- other than Lieberman and Stutzman -- shouldn’t be able to access HCI that isn’t subject to the stay. “When the court determines whether [VPCI] may be made available pursuant to the Modified Joint Protective Orders, we will address the Content Companies’ and the broadcasters’ remaining objections,” the bureau said.

Though the FCC pointed out in a court filing Monday announcing the release of the documents that the content companies had consented to an expedited briefing schedule for their petition for review, the language used doesn’t indicate that the content companies consented to the document release. Programmers are concerned about the released documents, one content company executive told us. Defining VPCI has been left to the merging companies, the content official told us. That could mean documents the content companies believe are protected by the stay could be released as HCI, the official said. However, the Media Bureau order announcing the restarted merger clocks contains an explicit definition for VPCI as any information that is part of an agreement for distributing video programming carried by a multichannel video programming distributor or online video distributor service, or descriptions of price terms or information related to negotiating such agreements.

The FCC's and DOJ’s apparent willingness to take a hard look at the Comcast/TWC deal is the reason for the Stop Mega Comcast Coalition's formation, its members said in a media call Wednesday. Though conventional wisdom once saw the deal’s approval as automatic, that’s no longer the case, Kimmelman said. “The concerns we raised at DOJ and the FCC have been taken seriously,” Kimmelman said. In interviews with groups involved in the merger proceeding, DOJ and FCC officials have been asking ”all good questions,” said Lynn Constantini, president-business development for TheBlaze. There’s “a growing sense that merger” conditions won’t be sufficient to alleviate the comparative harms caused by the deal, said Dish Deputy General Counsel Jeffrey Blum. He pointed to the neighborhooding condition enacted in Comcast/NBCU to protect Bloomberg, and the subsequent years of litigation it spawned. “The power they have over third-party content provides so many covert ways that Comcast can engage in sabotage,” Blum said. “We’re all united in saying the merger should be rejected.”

Coalition members said banding together let them pool resources to oppose the deal more effectively than they would apart. Grouping together lets the entities “formalize coordination,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman, who opposed Comcast/NBCUniversal. Joining up also “emphasizes the breadth of the opposition” to the deal in the FCC’s eyes, Schwartzman said. That could influence commissioners, he said. Fletcher Heald transaction attorney Thomas Dougherty disagreed. Forming a group doesn’t change the facts of the transaction, which are likely to be the only basis for denying the deal, he said. “There is very little in the way of horizontal components” to the deal, he said.

“We understand the questions and concerns that arise any time two big companies merge, Comcast said. “But as even our opponents concede, Comcast and Time Warner Cable do not currently compete for customers anywhere in America.”