Republican FCC commissioners Ajit Pai and Michael O'Rielly said Thursday that FCC should launch the merger review shot clock on the Charter-TWC deal and begin its review while they continue to vet the protective orders for the deal, which they say represent changes to commission policy not confined to merger reviews.
Those orders are also responsive to a court remand giving it a chance to better defend how the FCC handles access to merger documents after the court vacated protective orders in the Comcast-Time Warner Cable and AT&T-DirecTV mergers.
FCC chairman Tom Wheeler circulated the Charter-TWC protective orders earlier this week and the FCC's Media Bureau signaled a pleading cycle would start once those orders were in place, which requires a full commission vote given that they deal with underlying procedures per the court remand.
“We are deeply dismayed that the FCC’s leadership seems unwilling to begin the formal review of the Charter Communications/Time Warner Cable/Bright House Networks transaction until Commissioners agree to change the FCC’s procedures for protecting confidential information," the commissioners said.
"We don’t plan to allow this maneuver to deter us from giving careful scrutiny to the important item in front of us, which if adopted, would apply not only to future transactions but all Commission proceedings. Among other things, we believe that the better course would be for the Commission to seek public input on these proposed procedures before moving ahead."
They urged the FCC to start the review and not wait for the orders vote.
The commissioners did not provide any details about what was in the orders, but a Republican FCC official said that it would allow third parties to see programming contracts, but would extend beyond the Charter/Time Warner Cable deal to establish rules for all transactions. And whats' more, would deal with treatment of confidential information generally,
He called it "unacceptable" that to say the review of the transaction would not begin until the commission has deciced on changes to how it treats confidential information outside of transactions in what he called an "important and serious order."