September 11, 2015 - 3:46 pm
By Jon Sallet | General Counsel

With the filing of the proposed Charter-Time Warner Cable-Bright House Networks transaction, the FCC staff went to work, first by reviewing the application for completeness and then, when it was officially accepted for consideration, by beginning the analysis of whether the proposed transaction meets the Commission's public-interest standard.

Now, the staff review enters its second phase, when others can contribute their views to the Commission's consideration. Today, the Media Bureau issued a Public Notice establishing the timeline for public comment, shortly after the Commission adopted a Protective Order to be used in the consideration of this transaction.

The first set of public comments will be due on October 13, 2015 and today also marks the beginning of the so-called shot clock, which begins the 180-day period in which the Commission endeavors to complete its review.

Comment is critical to the Commission's informed consideration but not all information can, of course, be public. Indeed, the application itself, which is composed of information chosen by the Applicants, contains more than 100 instances in which information is asserted to be confidential or highly confidential.

This is why the Commission adopted a protective order, which is the legal framework that protects sensitive information given to the Commission while permitting its review by appropriate representatives of third parties commenting on the transaction. In adopting that order today, the Commission both concluded that the use of this protective order best balances legitimate confidentiality interests with its desire to be informed by diverse opinions, and responded to the U.S. Court of Appeals for the D.C. Circuit's CBS decision from earlier this year. In its opinion, the Court called on the Commission to clarify its procedures for handling confidential information in Commission transaction reviews.

The adoption of the protective order is separate from its execution, most notably the selection of confidential or highly confidential information to be governed by the protective order. That process has also begun; today's Public Notice places the unredacted version of the application under the protective order. But that is the only information that is currently subject to the protective order.

The last point bears repeating. The Commission has yet to ask the Applicants or others to produce any kind of video programming information at issue in the CBS decision, thus there has not yet been any decision whether the Commission will collect such information. In the future, if the Commission staff seeks such information, then the protective order procedures ensure that any objecting programmers have ample opportunities to protect their interests before any information is made available under the protective order. But, at the moment, all that is within the protective order is the application itself.

The goal of the transaction review is both simple and profound: To assess whether the applicants have met their burden of demonstrating that the transaction is in the public interest. The Commission conducts that work in close collaboration with the Department of Justice, in concert with the statutory command of the Communications Act and, as always, with a detailed analysis of the particular facts.