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Opposition mounting to Wheeler’s proposal to alter protective orders

Confidential Stamp By BP22Heber via Wikimedia Commons

The movie and online publishing industries are joining forces with the National Association of Broadcasters in pushing back against Federal Communications Commission chairman Tom Wheeler’s proposal to alter the privacy protections for confidential contracts and other information shared with the agency in the course of a merger review.

The order would make it easier for third parties to review confidential contracts and other information provided to the FCC by companies, even when the companies are not directly involved in the merger.

“While the associations do not object to the commission’s review of sensitive information, we see no persuasive reason why third parties in a highly competitive communications marketplace need access to confidential materials – particularly confidential information pertaining to entities who may not be among the merging parties,” wrote the National Association of Broadcasters, the Motion Picture Association of America and Digital Content Next.

Calling the order “unfair and unnecessary,” the three trade groups also argue that if the FCC wants to consider changes, the changes should be subjected to public comment.

“Reviewing courts have not hesitated to overturn agency orders where the agency did not provide the requisite meaningful opportunity for comment,” the groups wrote.

Wheeler quietly circulated the order early in August. Until the other commissioners vote on the protective order, Wheeler won’t start the 180-day informal merger review clock for Charter Communications deals to buy Time Warner Cable and Bright House Networks.

“You have a responsibility to those that have confidential information. Why should you start a shot clock in the early stages where people won’t have access to information that will inform how they comment. My colleagues have it sitting on their desk. There is a simple answer, yes or no,” Wheeler said at the August monthly meeting press conference.

The NAB fought the FCC and won in court when the agency tried to loosen protective orders in recent merger reviews.

“The Commission clearly has been able to review major mergers, including the Comcast/NBC and the very recent AT&T/DirecTV mergers, without disclosing competitively sensitive information to third parties,” the groups wrote.