AT&T/DirecTV Review Seen Unlikely To Lead to Resurrection of VPCI Issue
The FCC isn’t expected to resurrect the issue of sharing video programming confidential information (VPCI) in connection with the review of AT&T's planned buy of DirecTV, content company and broadcast officials told us. The U.S. Court of Appeals for the D.C. Circuit remanded the protective order on the sharing of programming and retransmission consent contracts to the FCC (see 1505080053). But it's unlikely to issue a new order before a decision on AT&T/DirecTV, said content company officials involved in the proceeding. The commission had argued that sharing VPCI with third parties in Comcast/Time Warner Cable and AT&T/DirecTV was an important part of the review process.
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Approving the AT&T deal without taking up the D.C. Circuit's remand could undercut future FCC attempts to share the contract data in upcoming transaction proceedings like Charter Communications/Bright House Networks/TWC, content company officials said. The commission is studying the D.C. Circuit opinion and considering its options, said an FCC spokeswoman. It's expected to approve AT&T/DirecTV (see 1506100051).
Speed is one reason the VPCI protective order is unlikely to be resurrected, industry officials have said. Creating a new protective order and allowing filers in docket 14-90 time to review the VPCI would delay approval of the AT&T deal. The deal’s 180-day shot clock was stopped at Day 170 because of the court battle over VPCI, as the commission is actively discussing conditions in the deal.
Programming issues aren’t as big a point of contention in AT&T/DirecTV as they were in Comcast/TWC, said a broadcast attorney connected with the VPCI proceeding. Though the FCC confidentiality order sharing the VPCI targeted both deals, it was widely seen as being aimed at Comcast, because of its vertical integration and arguments that it would use anticompetitive tactics, said content industry attorneys. With those arguments not in play, there’s less of a justification for sharing programing and retrans contracts, said the broadcast attorney.
Dish Network was also seen as a major opponent of the Comcast deal, and was one of the loudest voices asking for VPCI to be shared, content officials said. Dish has suggested the AT&T deal could be approved with conditions, and without Dish pushing for the documents to be released, it’s easier for the FCC to let the matter drop, industry officials said. Dish didn't comment. Comcast abandoned the TWC deal.
If the FCC approves AT&T/DirecTV without addressing the court’s remand, it could make it harder to try to share VPCI during a future Charter/TWC proceeding, some content company officials said. But that might not be the case, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman. The commission could still argue that sharing VPCI was necessary in the future deal review, he said. The D.C. Circuit’s opinion provided a road map of how the commission could structure a protective order that wouldn’t be struck down, said a broadcast attorney familiar with the proceeding. “When it reconsiders its disclosure order, the Commission is free to clarify its current policy or to amend it," said D.C. Circuit Judge David Tatel in the opinion.