Appeals court tells FCC to let merger docs stay secret

Reuters / Olivia Harris
A federal appeals court has ruled that secret business documents related to the proposed merger between AT&T and DirecTV don’t need to be disclosed.

The Federal Communications Commission said previously that confidential business information involving the relationships between content producers and DirecTV and similar television service providers should be open for the public to analyze.

CBS, Viacom and Disney took aim at the FCC’s request, however, and brought the case to the United States Court of Appeals for the District of Columbia. There, on Friday this week, Circuit Judge David Tatel quashed the FCC’s demands and sided with the producers who insisted that publishing the contracts would “cause substantial harm” to their businesses “and the highly competitive programming marketplace in which they operate.”


In response, the DC Circuit said it did not believe the FCC had adequately proved why disclosure to the public was “necessary” to the agency in determining whether or not to approve the $48.9 billion proposed merger.

“[T]to justify disclosure, the information must be ‘necessary’ to the Commission’s review process. Otherwise, Congress and the Commission have decided, the risk to the affected businesses will not be worth it,” the motion reads in part. According to the appeals court, the FCC’s request does not meet this requirement.

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“We share petitioners’ apprehension about a process that puts tremendous pressure on the commission, the parties and this court to get their ducks in a row in a short time,” the court said in its decision. “In our view, the commission has failed to make its case.”

In response to the ruling, a spokesperson for FCC said the agency was “studying the opinion now and considering the options available to the commission.”

Meanwhile, Dennis Wharton, a spokesman for the National Association of Broadcasters, said in a statement: “We are delighted the court sided with broadcast networks and NAB in protecting highly confidential information from being widely disseminated during merger reviews.”