Retrans Fight Delays FCC Review of Comcast/Time Warner Cable Deal

The FCC temporarily puts off its review of the Comcast/TWC deal due to a complicated fight on retransmission data

Comcast Time Warner Cable

ABC, CBS, NBC, Viacom, Discovery and Fox are fighting with the FCC to keep totally secret any details of their retransmission payments from cable and satellite systems. The fight is prompting the FCC to put a temporary hold on its timetable for completing a review of Comcast’s $45 billion deal for Time Warner Cable.

The FCC’s Media Bureau on Tuesday announced it stopped the informal 180-day daedline the agency has to review to review Comcast’s deal for the second time. According to the FCC, the agency now is on day 85 of the clock.

It’s the second time the FCC has temporarily stopped the clock for reviewing Comcast’s deal.

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The delay stems from a step the FCC took in response to deal with critics’ concern that combining Comcast and TWC will vastly increase Comcast’s leverage in programming and retransmission disputes.

Broadcasters were willing to provide information about the retransmission payments they get from cable and satellite providers to the Justice Department, but they opposed the FCC getting the information. They feared retransmission data provided in secret would get to competitors and prove a barrier in future retransmission negotiations. They warned the FCC that providing the information would cause “irreparable harm.”

While competitors get no access to Justice Department documents, at the FCC a deal’s opponents get to see much of the confidential information that is provided the agency and then can use that data in their arguments opposing the deal. The only requirement is data must be kept confidential in public filings.

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The latest fight is over broadcasters’ objections to both providing the information and their specific objections to each and every request from outside the FCC’s to see it.

Broadcasters have filed objections to every single request to access the information, including those from officials of the Writers Guild of America West, Cogent Communications Group, the California’s Public Utility Commission; consumer group Free Press, Zoom Telephonics, Monumental Sports and Entertainment, RCT Telecom and from the American Cable Association. Dish has also sought access.

The requests have yet to be ruled on, prompting some of the groups to hold off moving forward on Comcast.

On Tuesday, the FCC’s Media Bureau agreed to the delay to give itself time to rule on the broadcasters’ objections and to ensure that any ruling it makes to permit access leaves deal critics with sufficient time to use the data to rebut Comcast’s arguments.

“We agree with commenters that their current inability to review highly confidential information that has been submitted hampers their ability to meaningfully comment and participate in this proceedings,” the FCC’s Media Bureau said Tuesday.

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Andrew Jay Schwartzman, a lawyer who represents Zoom and has considerable experience in FCC issues, said Comcast is the victim in the latest delay.

Sena Fitzmaurice, Comcast VP of government relations, called the delay “routine.”

Fitzmaurice said, “As we noted previously, it is routine for the FCC to pause the review of significant transactions as it works to create a full record. The Commission is working to hear the concerns of various parties. In the meantime, review of information and evidence already in the docket will continue.  We are confident that the Commission will quickly resolve these issues while continuing its work so that review will be completed in early 2015.”