The secret FCC proposal holding up the start of the Charter merger review clock

The Federal Communications Commission hasn’t started the informal merger review clock on the Charter deals because of a secret proposal FCC Chairman Tom Wheeler is tying to the review process. It’s so secret that not even the media companies that would be affected knew about it until they spoke to people in the FCC. The only official indication that anything was circulated is a two-line item listed under the FCC’s “items on circulation list.” Chairman Wheeler wants to weaken the legal standard used to determine if certain confidential information given to the commission in the course of a merger review can be shared with third parties.

The proposal was circulated to the other four commissioners as part of the standard protective order for the Charter deals (which would start the merger clock). If Chairman Wheeler’s proposal is adopted, it could be déjà vu for the media companies that fought and won a legal challenge in the D.C. Circuit Court of Appeals against the FCC to keep proprietary programming agreements confidential from third parties during the review of the AT&T-DirecTV and Comcast-Time Warner Cable deals. While the case was pending, the FCC paused the merger shot clocks for both deals. The FCC “wants to make it easier for the agency to disclose proprietary information without telling anybody. It’s a substantial change in how the agency does business,” said one broadcast exec. Media companies including CBS, Scripps Networks Interactive, Time Warner Inc., 21st Century Fox, Viacom, CBS, and Disney, held discussions with the staffs of the other four commissioners. In an ex parte filed July 31, the media companies argue that “disclosure of their competitively sensitive information was not necessary to the commission’s evaluate of the proposed transaction,” noting that the FCC had “successfully reviewed two proposed mergers [AT&T-DirecTV and Comcast-Time Warner Cable]…without disclosing such information.” If the FCC wants to modify its policies and procedures for protecting confidential information, the FCC should hold a separate proceeding and seek public input, the media companies argued.