Programmers' court challenge to the FCC's broad dissemination to third parties of programming contracts and work product related to the Comcast/Time Warner Cable and DirecTV/AT&T merger reviews appeared to get a boost in oral argument Friday as the judges pointedly probed the FCC's defense of its decision.
If the court rules in the programmers' favor, it could mean the FCC could reach a decision in the mergers sooner. Judges David Tatel, Sri Srinivasan, and Robert Wilkins heard the case, with Tatel and Srinivasan asking the most questions.
CBS and the National Association of Broadcasters have taken issue with the FCC's decision to make hundreds of thousands of pages of documents available to hundreds of third parties based on the argument that there was a compelling public interest in doing so.
The Media Bureau had decided to make them available under protective orders, and after programmers challenged that, a politically divided FCC took only five days to review and uphold the Media Bureau.
Programmers then challenged that decision immediately, concerned that the bureau might start releasing documents. They sought, and got, a stay from the U.S. Court of Appeals for the D.C. Circuit, which heard oral argument in the challenged Friday (Feb. 20).
The oral argument was focused on whether the FCC sufficiently acknowledged, explained and notified parties as to its change in policy in making so much information so widely available, and whether five days was enough time to review challenges to that policy. Given that the three judges were Democratic appointees, at least one attorney following the case thought that would be good for the FCC, but the commissioner appeared to get the tougher end of the questioning.
The caveat is that judges sometimes play devils advocate, but attorneys in the room usually on opposite sides of media cases agreed that the three-judge panel was tougher on the commission's argument.
The programmers attorney, Robert Long, said that there were two fatal flaws in the FCC order. First that the FCC did not acknowledge its departure from precedent in taking only 5 days to review a challenge to its unprecedented data drop, and secondly that the FCC did not meet its own standard for releasing the highly sensitive information, which includes contracts and e-mails and other work product. Long said he was not asking for the court to determine what would be a reasonable time frame, only that 5 days was insufficient, and insufficiently defended, since the FCC had previously provided 20.
Judge Tatel broke in and, after a series of questions that put Long somewhat on the defensive, pointed out that he was suggesting the FCC's standard was even higher than programmers were suggesting.
FCC Deputy General Counsel David Gossett, who argued the case for the commission, said that the FCC had pointed out twice in the order that it was amending the process and that five days seemed reasonable to the commission. "Time is of the essence in merger reviews," he said, which drew a quite chuckle or two from the audience (some merger reviews have taken well over a year).
Gossett also said the process of reviewing the challenge should be based on narrow facts, and not be an opportunity to delay the documents' release.
Judge Srinivasan questioned whether there wasn't a difference between an amendment and a change in policy. The FCC attorney said a change was a change.
The case appeared to hinge on a missing link, of sorts, that being the FCC's policy language that to make sensitive business documents public there needed to be a "necessary link" between that publication and the public interest, not just a possibility that it might be useful for outside parties to see.
Long said there was not even a mention of that link in the FCC's defense of the order, which he said spoke volumes. He said that was because it would be impossible to make that link between hundreds of thousands of documents, but only, eventually, a small relevant subset.
Gossett said that he did not think the FCC had to establish that link, but that it had anyway in concluding that it was in the public interest for outside parties to see programming contracts related to the mergers of five of the seven largest communications companies. He more than once cited the size of the companies. He also pointed out that the FCC has historically made all relevant documents available to parties petitioning to deny a deal, and that the FCC could also benefit from the input of those third parties as it vets the deals.
The FCC had balanced the interests of all parties, said Gossett, and concluded that sharing the third party documents, under "tough" protective orders, was the way to go.
Judge Tatel appeared to read the FCC policy on sharing documents to require it to establish a more direct link to documents.
Long suggested that the FCC was trying to "crowdsource" the information, which was not appropriate.