WASHINGTON — Charter Communications’s acquisition of Time Warner Cable could face the same legal challenges over access to programming contracts as the Comcast-TWC and AT&T-DirecTV merger plans did, depending on how the Federal Communications Commission responds to a court ruling.
With the $48.5 billion AT&T-DirecTV combination expected to be approved by the FCC any day now, attention is turning to Charter and Time Warner Cable.
The cable companies officially filed their application with the commission, which will ask for information as it begins vetting that deal, though it already has a boatload of leftover data from the abandoned Comcast effort.
TWC’s program-contract details were almost distributed widely to third parties during vetting of the aborted Comcast merger, after the FCC concluded it was in the public interest to give hundreds of third parties access to that information, as well as similar information in the AT&T-DirecTV docket.
Programmers balked, sued, and the U.S. Appeals Court for the D.C. Circuit vacated the FCC decision, though it remanded the issue back to the agency for better justification as to why all that information, including email messages and work product, had to be released.
The FCC will need to come up with new protective orders under which information submitted in connection with the Charter-TWC merger is shared with outside parties, and could conceivably take another crack at making the documents accessible under a revised justification.
The FCC’s stated goal is to protect sensitive information while still allowing the public to participate in the process.
In this case, the public mostly means advocacy groups and competitors, to help them shape their comments on the deal.
FCC representatives did not respond to requests for comment, but one attorney following the programming-contract issue said he thinks the agency will not try to repeat the broad dissemination of its previous protective order. He also said the FCC will not have to seek public input before deciding.
“This is a procedural rather than a substantive matter, so the FCC doesn’t need notice and comment to change its practices,” the attorney said. “I assume it will modify its procedures to more nearly conform with the concerns the court raised. I expect that it will adopt much more restrictive procedures for access. I also imagine it will provide a mechanism allowing enough time for a possible challenge.”
