Public Knowledge has issued the following statement in response to the DC Circuit’s decision in CBS v. FCC, which was issued today.
“It's unfortunate that this decision could put hurdles in the way of outside parties who are trying to make the case against the AT&T/DirecTV or any other merger. In the short term, however, the effect on the AT&T/DirecTV merger is likely to be limited, as the Commission is still fully able to review all relevant programming contracts. The confidential programming information in question, while relevant to the AT&T/DirecTV transaction, was more central to the Comcast/Time Warner Cable transaction, which has been resolved.
“This decision's holding is relatively narrow, as the DC Circuit has largely found that the Commission did not follow its own rules, and its own interpretations of those rules, when issuing certain protective orders. These are correctable issues.
“However, we are worried that this decision contains language that could be interpreted to limit the ability of the public and outside parties to participate meaningfully in the merger review process. It could make it more difficult for outside parties to show that particular confidential information is a 'necessary link in a chain of evidence' before gaining access to it. It is, of course, challenging to make that showing with respect to information one has not yet reviewed, and the FCC's usual practice has reflected that.
“This decision could also protract merger proceedings by requiring that challenges to each individual person who seeks access to confidential material in a merger proceeding be subject to judicial review.
“Finally, this decision does not fully engage with the nature of FCC merger review proceedings. Petitioners who file to block a merger are not merely commenters, but parties to an adjudicatory proceeding, where the FCC sits in judgment. They require access to certain confidential material not merely to inform themselves and offer advice to the FCC, but to vindicate their rights as, effectively, litigants. The FCC's procedures already contain ample safeguards to ensure that such information obtained by a company challenging a merger cannot be used for competitive purposes. One result of this decision could be that more of the FCC's review process takes place behind closed doors, without the benefit of outside expertise.
“These consequences are not inevitable, and the decision leaves room for the FCC to overcome them. We hope they do so prior to the next major transaction being announced.”
You may view the CBS v. FCC decision here.
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