Cable-Industry Document Access Case Could Delay Mergers
Opponents of Comcast’s deal for Time Warner and AT&T’s buyout of DirecTV were given some access to documents

By Brent Kendall
Wall Street Journal

Feb. 20, 2015 2:04 p.m. ET

http://www.wsj.com/articles/cable-industry-document-access-case-could-delay-mergers-1424459077


WASHINGTON—A federal court case about access to sensitive cable-industry documents continues to complicate U.S. regulatory reviews of two major mergers: Comcast Corp. ’s deal for Time Warner Cable and AT&T Inc. ’s planned acquisition of DirecTV .

A three-judge panel of a U.S. appeals court here voiced concerns Friday about a decision by the Federal Communications Commission to give opponents of the mergers limited access to video-programming contracts between the merging companies and TV-channel owners such as CBS Corp. , Walt Disney Co. and Viacom Inc.

Robert Long, a lawyer for the content companies, argued the FCC acted in a “totally unprecedented” manner in allowing representatives for third parties like Dish Network Corp. to have access to confidential business documents, including hundreds of thousands of pages of materials on pricing and negotiating strategies for dealing with distributors like Comcast. Disclosure of the material “would be highly damaging,” Mr. Long said during a nearly hour-long session before the U.S. Court of Appeals for the District of Columbia Circuit, which has blocked the FCC from allowing access to the material while the case continues.

David Gossett, a lawyer for the FCC, said the commission has established strong protections restricting access to the documents to a limited number of outside lawyers and consultants who work with third parties challenging the mergers. They will have access to the materials only for the purposes of providing input during the FCC proceedings and would face severe sanctions if they disclose or use the information for competitive business purposes, Mr. Gossett said.

Because the FCC is examining the buying power of distributors like Comcast in the video-programming market, the documents are critical for the agency’s review, including enabling third-party challengers to provide informed input to the government, Mr. Gossett said.

The three-judge panel peppered the FCC’s attorney with questions.

Judge David Tatel said everyone agreed the FCC should get access to the documents, but he questioned whether the agency followed its own policies in deciding to allow access to third parties.

Judge Sri Srinivasan suggested that the FCC needs to demonstrate that the material it wants to show was not only relevant for the merger reviews but also necessary for the agency to reach a decision on the deals.

Judge Robert Wilkins acknowledged that third parties would be barred under FCC rules from disclosing confidential information, but he questioned whether that prohibition would really prevent people from using the information they learned in the future.

The FCC and the merging parties have warned the video programmers’ objections to document access threatened unacceptable delays in the merger review process. The judges didn’t signal exactly when they would rule.

Comcast announced its deal with Time Warner Cable a year ago. AT&T unveiled its plans to acquire DirecTV in May.

Both the FCC and the Justice Department are reviewing the proposed deals.


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