AT&T-DirecTV Merger: Court Decision May Clear Way for Review

For weeks, the FCC’s time clock for the AT&T-DirecTV merger and the now-dead Comcast-Time Warner Cable merger has been paused as the agency awaited a D.C. Circuit decision on just who could review key dealmaking documents.

That decision was delivered on Friday, and the appellate judges ruled against the FCC and in favor of major media companies that sought to limit access to such things as program contracts.

CBS Corp., 21st Century Fox and the Walt Disney Co. hadn’t publicly weighed in on the mergers, but they challenged an FCC order to allow third parties to review confidentially programming contracts major media companies had as a way of commenting on what the market landscape will look like after consolidation.

Judge David Tatel said, however, that the FCC failed to show that the information was “necessary” to the review process. He also faulted the agency for departing from longstanding practice over the time frame by which media companies could challenge the disclosure of such information.

The decision doesn’t prevent the FCC from reviewing the contracts — just third parties. Media companies argued that, even with protective orders, competitors could gain access to trade secret information.

The FCC hasn’t said whether the decision means a 180-day “shot clock” for the review of the AT&T-DirecTV merger will be restarted, but the commission cited the pending appellate court ruling when it put the “shot clock” on pause.

“We are studying the opinion now and considering the options available to the commission,” an FCC spokesman said.

Comcast and Time Warner Cable called off their merger on April 24 after it became clear that the FCC and the Justice Department would move to block it.

Dennis Wharton, spokesman for the National Assn. 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.”

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