Dish Network, Some TV Programmers and Public Knowledge Argue against Comcast OVD Proposal
The FCC shouldn’t adopt Comcast’s proposal to let some of its in-house attorneys and executives view the distribution agreements between online video distributors and third-party programmers in order to qualify for some of the program-access conditions of the Comcast-NBCUniversal merger approval order, companies and public interest groups said in comments filed at the FCC this week. Dish Network, Public Knowledge and a coalition of TV programmers that includes Disney, CBS, News Corp., Sony Pictures, Time Warner and Viacom each filed separate comments arguing against Comcast’s proposal.
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Comcast executives and in-house counsel don’t need broad access to the contracts, Dish said in its comments (http://xrl.us/bm2p2a). Its outside counsel and consultants can confirm that OVD deals meet the benchmark condition that would let them gain access to NBCU programming, it said. “Given Comcast-NBCU’s sophistication and size, it should be more than able to offer reasonable prices to OVDs without its internal business team discovering highly sensitive pricing information of its peer content firms,” Dish said.
Moreover, forcing OVDs to reveal the details of their agreements with one programmer to another “puts them in an untenable position,” Dish said. “Either [it will] violate a confidentiality agreement with a company with whom it already has a reached a programming agreement; or not avail itself of the Online Program Access conditions” in the Comcast-NBCU deal. And content owners may be afraid to license their programming to OVDs if they know the agreements will reach Comcast-NBCU’s personnel, it said.
Federal law prevents the FCC from granting Comcast’s request, the programming networks said in jointly-filed comments (http://xrl.us/bm2p34). The proposal is “an untimely petition for reconsideration masquerading as a request for clarification,” they said. Furthermore, because the full FCC approved the Comcast-NBCU transaction, it, not the Media Bureau, too must handle this question, they said. Granting the request would give Comcast-NBCU executives access to information that none of its distribution or content competitors possess, the networks said. The Trade Secrets Act and the Administrative Procedure Act also stand in the way of Comcast’s request, they said.
If the FCC had wanted to grant access to the materials, it would have done so in its order approving the Comcast-NBCU deal, the programming networks said. “That it did not say so should be a conclusive signal that a Media Bureau grant of the C-NBCU proposal would be ultra vires” -- the concept that a government employee can’t do something that is beyond the scope of its powers -- they said. “The Bureau simply does not have the power to set aside a decision made by the full commission.”
Allowing OVDs to submit redacted versions of their programming agreements to an arbitrator in the event of a dispute with Comcast-NBCU would keep such OVDs from having to violate the confidentiality terms of their agreements in order to benefit from the online program access conditions, Public Knowledge said. “There will be predictable disputes over redactions and related matters, but these can be handled by the arbitrator’s power to determine ‘allowable discovery and permissible evidence,’ rather than by forward-looking Bureau decisions,” Public Knowledge said.
The Justice Department’s worry over “efforts by the merged firm to evade the remedy’s ’spirit’ while not violating its letter” when it approved the transaction seem to ring true in this context, Public Knowledge said. “Comcast-NBCU seeks to avoid complying with the condition by making extreme procedural demands,” it said. “The Commission should instead clarify the process by which an OVD can submit redacted documents in the context of an arbitration.”