Monty Tayloe

The U.S. Court of Appeals for the D.C. Circuit may temporarily grant the stay on the FCC’s planned release of Video Programming Confidential Information, but the programmers who requested the stay will likely lose the case on the merits, several communications attorneys following the matter told us in interviews this week. The content companies, which include CBS, Disney, Univision and Viacom, filed their responses on Wednesday to opposition (see 1411170047) from the FCC, as well as from the American Cable Association, AT&T, Comcast, Charter, DirecTV and Time Warner Cable, ending the briefing cycle for the case. Because of the expedited nature of the case, a ruling from the three-judge panel on whether to stay the FCC’s order to share the VPCI with authorized outside counsel is expected Friday, an attorney connected with the case told us. Though Comcast, AT&T and the FCC maintain otherwise, the requested stay is not seen as likely to have a strong effect on the merger review process, several industry observers told us.

Content companies requesting a stay to stop the FCC from allowing access to confidential programming contracts in the AT&T/DirecTV and Comcast/Time Warner Cable mergers “have no apparent reason to want the commission’s [merger] review to be expeditious,” said the FCC in an opposition response filed with the U.S. Court of Appeals for the D.C. Circuit Monday. The document’s release has already been stayed to allow for an expedited pleading cycle, but the programmers -- which include Univision, CBS and Viacom -- want the document release halted until the court has had time to rule on a petition for review filed by the content companies last week (see 1411140063). The programmers may fear that the mergers will lead to lower prices for programming, the FCC said in their response to the motion to stay. The American Cable Association, Comcast, TWC and Charter joined Dish, AT&T and DirecTV with filings Monday supporting the planned release of Video Programming Confidential Information (VPCI) and restarting the 180-day shot clocks for both mergers. Meanwhile, NAB filed Monday in support of the content companies, arguing the court should stay the release of VPCI. “The Court should ensure that the issues here are carefully and fully considered.”

The FCC's planned Monday release of Video Programming Confidential Information in the Comcast/Time Warner Cable and AT&T/DirecTV merger proceedings was halted by an administrative stay issued Friday by the U.S. Court of Appeals for the D.C. Circuit. The stay followed an emergency motion filed by a group of content companies that includes Disney, Viacom and Univision Thursday. The stay is "to give the court sufficient opportunity to consider the merits of the motion for stay and should not be construed in any way as a ruling on the merits of that motion,” said the order. But the granting of the administrative stay is an indication that the court thinks the matter is serious enough that it needs time and a complete record to consider it, an attorney who represents programmers told us. The FCC is to respond by noon Monday, and the content companies are to respond on Wednesday, the order says.

A video industry shift toward over-the-top delivery could lead to unbundling of content and a decline in revenue for video providers, said Needham & Co. analyst Laura Martin at a Technology Policy Institute panel Friday. CBS's announced plan to offer OTT content (see 1410160058) will cause it to lose ad revenue and some of the money it receives as part of cable bundle, in exchange for the likely smaller amount of money customers will pay to watch its content online, Martin said. “It's a shitty trade.”

A draft NPRM to change the definition of a multichannel video programming distributor to include linear over-the-top video providers will receive broad bipartisan and “bi-industry” support, said FCC Special Counsel for External Affairs Gigi Sohn. The item appeals to broadcasters and cable providers because it will allow more retransmission consent deals and more options for cable companies to provide content, she told the Practising Law Institute's Communications Law in the Digital Age seminar Thursday. Sohn, NAB Executive Vice President Strategic Planning Rick Kaplan, Paul Hastings attorney Sherrese Smith and other panelists also discussed net neutrality, the commission's new rules for joint sales agreements, and the incentive auction.

Content companies seeking to prevent participants in the Comcast/Time Warner Cable and AT&T/DirecTV proceedings from having access to their programming contracts on Thursday filed a new emergency request for a stay pending judicial review and a petition for review with the U.S. Court of Appeals for the D.C. Circuit. The FCC is set to allow access on Monday to the programming documents to outside counsel who have followed procedures laid out in a series of protective orders (see 1411120029). The content companies, which include CBS, Disney, Scripps Networks and Univision, want the court to block the commission from doing so. “The Court should issue a stay to allow careful review of what the FCC has rushed through its gates,” the emergency motion said. The FCC, AT&T and Comcast didn't comment. However, Comcast filed a motion to intervene in the case late Thursday, arguing that any stay would further delay the merger review. "Petitioners' actions leading up to the release of the Commission Order have already caused undue delay in the transaction review proceeding," said Comcast's motion.

A court-ordered emergency stay preventing the FCC from releasing confidential programming and retransmission consent contract information to participants in the AT&T/DirecTV and Comcast/Time Warner transaction proceedings is likely to be granted by Monday, several communications attorneys involved in the proceedings told us. In an order issued Nov. 10 rejecting two applications for review and two emergency stay requests (see 1411070048) from a group of content companies that includes 21st Century Fox, CBS, Viacom and Disney, the FCC established Monday, Nov. 17 as the day it would release the video programming confidential information (VPCI) to outside counsel who have filed for confidential access.

Discussions with Canada and Mexico to coordinate spectrum use in advance of the incentive auction could lead to a regionally harmonized “band plan for the Americas” similar to what was tried with the 700 MHz band plan, said Incentive Auction Task Force Chairman Gary Epstein on a panel at the Americas Spectrum Management Conference Wednesday. Though wireless industry officials at the discussion endorsed a regional or global 600 MHz band plan as a positive, NAB Executive Vice President-Strategic Planning Rick Kaplan said it would be unlikely to succeed because the FCC's proposed variable band plan would be unattractive internationally. Because the plan involves “broadcast and wireless sharing the same yard,” it will be a hard sell outside the U.S., he said. “It's a bad plan.”

The FCC TV incentive auction order’s use of TVStudy repacking software and lack of protection for broadcaster coverage areas should be vacated, NAB and Sinclair said in a joint brief to the U.S Court of Appeals for the D.C. Circuit. Two other aspects of the order, the timeframe for repacked stations to move to their new assigned channel and the definition of competition among TV stations, are attacked in the brief by Sinclair alone, without NAB participation.

The Media Bureau “usurped” FCC authority by allowing access to video programming confidential information (VPCI) in the Comcast/Time Warner Cable and AT&T/DirecTV deals before an application for review against doing so had been considered by the full commission, said a group of programmers in an application for review and emergency stay request filed Friday. The content companies, which include CBS, Disney and Viacom, had filed an application for review and a stay request against the Media Bureau’s protective order for documents in the transaction proceedings. Friday's additional filings challenge the bureau’s Tuesday modification of that protective order and announcement that most of the programmer’s objections were being dismissed (see 1411050050).