Online Video Distributors Refuse to Disclose Peer Licensing Deals, Comcast Says
Online video distributors (OVDs) have refused to disclose their licensing agreements with other major networks when they're seeking access to Comcast/NBCUniversal programming under terms of a condition the government applied to approval of Comcast’s application to take control of NBCU, said lawyers for Comcast/NBCU in a letter to the FCC last week. In the so-called “Benchmark Condition” of the FCC’s order approving the deal, the FCC required Comcast to provide “comparable programming” to OVDs that have at least one agreement with a major broadcast network, pay-TV network, TV or film studio not affiliated with Comcast or NBCU. But OVDs have told the company they can’t share those deals because of confidentiality restrictions, the letter said. The FCC Media Bureau should issue a new protective order to ensure the confidentiality of OVDs’ peer deals, the letter said.
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"NBCUniversal cannot comply with its obligation to shape an equivalent content license for a requesting OVD without appropriate disclosure of the baseline peer deal that NBCUniversal is expected to match,” the letter said. “Without clarification from the Bureau, continued withholding of a peer deal by OVDs in connection with a Benchmark request will impede negotiations, delay resolution of licensing agreements and likely result in arbitration proceedings in most cases, increasing the costs and burdens for both OVDs and NBCUniversal,” it said. The bureau should also clarify that disclosing peer deal terms is required, the letter said.
Comcast/NBCU proposed language for a third protective order in the docket that would limit disclosure of the confidential peer deal information to the parties involved. Under the first two protective orders in the proceeding, third-parties could access the confidential information. Moreover, the order would restrict access within NBCU to its outside counsel, outside experts, in-house counsel and “a limited number of essential business persons that are implicated” by the request. That would typically be the senior executive overseeing the business unit, a mid-level executive to assist negotiations, and a division head who would ultimately approve the deal, the letter said. As many as six executives could get access to the information in that way, but they would only be authorized to use the information “for the purposes of responding to a specific OVD’s request,” the letter said.
Additionally, the 90-day time line laid out in the “Benchmark Condition” would not begin until Comcast/NBCU received the confidential peer deal details, the proposed protective order said. Before reaching that step, the requesting OVD would have to first notify Comcast/NBCU of its intent to invoke the condition and generally identify the programming it’s seeking, the proposed protective order said.
The bureau could issue the protective order under delegated authority, the letter said.