FCC Win on Releasing VPCI Could Push Back Merger Review Resolution

A win for the FCC in its Court of Appeals battle with content companies over releasing confidential programming and retransmission consent contracts could push back a decision in the Comcast/Time Warner Cable and AT&T/DirecTV transactions, said communications attorneys on both sides of the dispute. Oral argument in CBS et al v. FCC was Feb. 20 (see 1502200051). “They would have to give parties a chance to review the information,” said American Cable Association Senior Vice President-Government Affairs Ross Lieberman. ACA supported the FCC in filings with the U.S. Court of Appeals for the D.C. Circuit, and Lieberman was blocked from access to the Video Programming Confidential Information (VPCI) at the request of the content company petitioners, which include CBS, Disney, Time Warner and Univision.

Though the FCC paused the 180-day shot clock on both deals last week (see 1503130061), citing the pending decision, there are signs the commission’s mergers review is winding down, several attorneys told us. Merger review officials have told groups with an interest in the mergers to make their case to the FCC soon, say attorneys connected to the transaction proceeding. If allowed to run, the shot clocks for both proceedings would run out before the end of March, the FCC said in a recent public notice. Comcast also told us the proceeding should be nearing completion. “The FCC appears to be making significant progress in the review of our transaction in order to bring it to a conclusion,” a Comcast spokeswoman said in a statement last week.

Even though the merger review process may be nearly concluded, the commission argued repeatedly in court filings that allowing access to VPCI was key to the merger reviews, an attorney for one of the content company petitioners said. That means they would have to allow parties time to review and comment on the VPCI, several attorneys told us. “If the court rules that the various parties are entitled to review that information in some form, the commission will have to wait,” said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman. He filed an opposition to the Comcast/TWC deal and spoke in favor of the FCC’s position on releasing the VPCI. If the commission loses and the court rules that the VPCI can’t be released, the FCC would be able to move ahead with the review as it has been, Schwartzman said.

This means that though Comcast filed in support of the FCC in the court proceeding, a commission win is likely to slow the resolution of the transaction. An attorney for one of the content company petitioners in the case suggested that the FCC’s pausing of the 180-day shot clock may have been intended to pressure the court to issue a decision sooner. Other attorneys questioned for this story said the FCC had many reasons to pause the clock, including information requests that were only recently responded to. Comcast and the FCC both declined to comment.

If the court rules in favor of the FCC and the commission doesn’t give parties time to review the VPCI, it would provide ammunition to challenges of any decision to approve the mergers, several attorneys opposed to Comcast/TWC told us. Moving ahead without allowing review of VPCI in that situation would make it easy for opponents to say the FCC hadn’t given them the chance to file informed comments on the deal, Schwartzman said.