PETITION FOR WRIT OF MANDAMUS [J3LIT USCA Case #14-1236...

ED SI kTES IT OF APPEALS DCTOFcOLUM8tA CIRCUITFO [J3LIT OF COLUMBtA C1ROUII

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— :4HTJITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

)In re CBS CORPORATION, SCRIPPS NETWORKS )INTERACTIVE, iNC., THE WALT DISNEY )COMPANY, TIME WARNER INC., TWENTY-FIRST )CENTURY FOX, [NC., UNIVISION )COMMUNICATIONS iNC., and VIACOM INC., )

)Petitioners. )

__________________________________________________________________________________________

)

PETITION FOR WRIT OF MANDAMUS

Mace RosensteinC. William PhillipsAndrew Soukup

\ Laura Flahive WuKevin King

COVINGTON & BURLING LLP1201 Pennsylvania Avenue, NWWashington, DC 20004-2401(202) 662-6000

November 10, 2014 Attorneysfor Petitioners CBSCorporation, Scripps NetworksInteractive, Inc., The Wait Disneycompany, Time Warner Inc., Twenty-First Century Fox, Inc., UnivisionCommunications Inc., and ViacomInc.

USCA Case #14-1236 Document #1521600 Filed: 11/10/2014 Page 1 of 44

CERTIFICATE OF PARTIES

Pursuant to D.C. Circuit Rule 1 8(a)(4), Petitioners certify as follows:

1. The parties appearing before the Media Bureau of the Federal

Communications Commission (“FCC”) are CBS Corporation, Discovery

Communications, LLC, Scripps Networks Interactive, Inc., The Walt Disney

Company, Time Warner Inc., TV One, LLC, Twenty-First Century Fox, Inc.,

Univision Communications Inc., and Viacom Inc. See Applications ofComcast

corp. and Time Warner Cable Inc. for Consent to Assign or Transfer C’ontrol of

Licenses and Authorizations and Applications ofAT&T, Inc. and DIRECTVfor

Consent to Assign or Transfer Control ofLicenses and Authorizations, Order, DA

14-1605, at 2 & n.4 (Nov. 4, 2014) (A-42 to -52)

2. The petitioners appearing before this Court are CBS Corporation,

Scripps Networks Interactive, Inc., The Walt Disney Company, Time Warner Inc.,

Twenty-First Century Fox, Inc., Univision Communications Inc., and Viacom Inc.

The FCC is the only respondent in this Court. There are no other parties or amici

curiae at this time.

—1—


CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and

Circuit Rules 1 8(a)(4) and 26.1, Petitioners state as follows:

CBS Corporation. National Amusements, Inc., a privately held company,

directly or indirectly owns a majority of the voting stock of Petitioner CBS

Corporation. No publicly held corporation has a 10% or greater ownership interest

in the stock of National Amusements, Inc. To CBS Corporation’s knowledge

without inquiry, GAMCO Investors, Inc., on March 15, 2011, filed a Schedule

13D/A with the Securities and Exchange Commission reporting that it and certain

affiliates owned, in the aggregate, approximately 10.1% of the voting stock of CBS

Corporation.

Scripps Networks Interactive, Inc. Petitioner Scripps Networks Interactive,

Inc. has no parent company, and no publicly-held company has a 10% or greater

ownership interest in its stock.

The Walt Disney Company. Petitioner The Walt Disney Company has no

parent company, and no publicly-held company has a 10% or greater ownership

interest in its stock.

Time Warner Inc. Petitioner Time Warner Inc. has no parent company, and

no publicly-held company has a 10% or greater ownership interest in its stock.

—11—


Twenty-First Century Fox, Inc. Petitioner Twenty-First Century Fox, Inc.

has no parent company, and no publicly-held company has a 10% or greater

ownership interest in its stock.

Univision Communications Inc. Petitioner Univision Communications Inc.

is wholly owned by Broadcast Media Partners Holdings, Inc., which is wholly

owned by Broadcasting Media Partners, Inc. No publicly held corporation has a

10% or greater ownership interest in the stock of Broadcasting Media Partners, Inc.

Viacom Inc. National Amusements, Inc., a privately-held company, directly

or indirectly owns a majority of the voting stock of Petitioner Viacom Inc. No

publicly-held corporation has a 10% or greater ownership interest in the stock of

National Amusements, Inc. To Viacom Inc.’s knowledge without inquiry,

GAMCO Investors, Inc., on November 6, 2009, filed an amendment to a Schedule

1 3D with the Securities and Exchange Commission reporting that it and certain

affiliates owned shares representing 11.3% of the voting stock of Viacom Inc.

—111—


Re pectfully sub ed,

Is! Mace RosensteinMace RosensteinCOVINGTON & BURLING LLP1201 Pennsylvania Avenue, NWWashington, DC 20004-240 1(202) 662-6000

Attorney for CBS Corporation, ScrippsNetworks Interactive, Inc., The Walt Disney Company, Time Warner Inc., TwentyFirst Century Fox, Inc., Univision Corn-

November 10, 2014 munications Inc., and Viacom Inc.

—iv—


TABLE OF CONTENTS

CERTIFICATE OF PARTIES I

CORPORATE DISCLOSURE STATEMENT ii

TABLE OF AUTHORITIES vii

GLOSSARY xi

INTRODUCTION 1

STATEMENT OF JURISDICTION 3

STATEMENT OF RELIEF SOUGHT 3

STATEMENT OF THE ISSUES 3

STATEMENT OF THE FACTS 4

A. Petitioners’ Distribution Agreements 4

B. The Bureau Invites Comment on Whether To Make VPCIAvailable To Third Parties 6

C. The Bureau Permits Third Parties Access to VPCI, But OniyAfter All Objections To Their Right Of Access Are Resolved $

D. Petitioners Seek Commission Review of the October Orders 9

E. The Bureau Grants Its Own Ex Parte Motion forReconsideration And Accelerates Third-Party Access to VPCI 11

F. Petitioners Seek Commission Review of the November Orders 12

REASONS WHY THE WRIT SHOULD ISSUE 13

I. THE BUREAU CLEARLY VIOLATED PETITIONERS’ RIGHT TOSEEK REVIEW OF ITS DECISION TO DISCLOSE HIGHLYCONFIDENTIAL INFORMATION 14

A. Petitioners Have a Right to Meaningful Review of an OrderDisclosing Highly Confidential Information Before DisclosureOccurs 14

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B. The Bureau Clearly Violated Petitioners’ Rights By Sua SponteAccelerating Disclosure of Petitioners’ Highly ConfidentialDocuments While Petitioners’ Challenge to that DisclosureDecision Is Pending 16

1. The November Orders Arbitrarily and CapriciouslyPermit Third-Party Access To Confidential InformationWhile A Challenge To Disclosure Is Pending 17

2. The November Orders Were Adopted Without ObservingThe FCC’s Procedures 21

II. MANDAMUS RELIEF IS PETITIONERS’ ONLY ADEQUATEREMEDY 23

III. ISSUANCE OF THE WRIT IS NECESSARY TO PROTECTPETITIONERS’ CONFIDENTIALITY INTERESTS WHILE THEIRCHALLENGE TO THE DISCLOSURE DECISION IS PENDING 25

A. Petitioners Will Be Irreparably Harmed By Disclosure 25

B. The Bureau’s Decision To Permit Third-Party Access to VPCIis Unprecedented And Raises Important and Novel Issues ThatShould Be Addressed By The Commission 27

CONCLUSION 30

CERTIFICATE OF SERVICE 32

—vi—


TABLE Of AUTHORITIES

Cases

AT&Tv. F.C.C.,978 F.2d 727 (D.C. Cir. 1992) 24

Bartholdi Cable Co. V. F.C.C.,114F.3d274 (D.C. Cir. 1997) 16

Cheney v. U.S. District Courtfor the District of Columbia,542 U.S. 367 (2004) 13

Comcast Corp. v. F.C.C.,526 f.3d 763 (D.C. Cir. 2008) 19

Cmt. Care Found.Foimd. v. Thompson,318 F.3d 219 (D.C. Cir. 2003) 23

Consumer Fed’n ofAm. v. F.C.C.,348 F.3d, 1009 (D.C. Cir. 2003) 7, 29

In re Copley Press, Inc.,518 F.3d 1022 (9th Cir. 2008) 26

* In re Kellogg Brown & Root, Inc.,756 F.3d 754 (D.C. Cir. 2014) 13, 25, 28

In re Papandreou,139 F.3d 247 (D.C. Cir. 1998) 26

In re Sealed Case No. 98-3077,151 F.3d 1059 (D.C. Cir. 1998) 13

In re Tennant,359 F.3d 523 (D.C. Cir. 2004) 3

In re von Bttlow,828 F.2d 94 (2d Cir. 1987) 25

Int’l TelecardAss’n v. F.C.C.,166 F.3d 387 (D.C. Cir. 1999) 24

Authorities upon which Petitioners chiefly rely are marked with asterisks

—vii—


Int’l Union, United Mine Workers ofAm. v. U.S. Dep’t of Labor,358 F.3d 40 (D.C. Cir. 2004) 24

* Jeiks v. F. C. C.,146 F.3d 87$ (D.C. Cir. 1998) 19, 23

Mohawk Indus, Inc. v. C’arpenter,558 U.S. 100 (2009) 25

Nat’l Ass ‘ii of Criminal Defense Lawyers, Inc. v. United States Dep ‘t ofJustice,182 F.3d 981 (D.C. Cir. 1999) 25

* Qwest Commc’ns Int’l, Inc. v. F.C.C.,229 F.3d 1172 (D.C. Cir. 2000) 14, 15, 16

United States v. Container Corp. ofAm.,393 U.S. 333 (1969) 26

United States v. Microsoft Corp.,165 F.3d 952 (D.C. Cir. 1999) 16

Yakima Valley Cablevision, Inc. v. F. C. C.,794 F.2d 737 (D.C. Cir. 1986) 20

Statutes

5U.S.C.’706 15

5 U.S.C. § 706(2)(A) 17

5 U.S.C. § 706(2)(D) 21

15 U.S.C. § 1 26

18U.S.C.1905 14

28 U.S.C. § 165 1(a) 3

28 U.S.C. § 2342(1) 3

47 U.S.C. § 402(a) 3

—viii—


Regulations

47 C.F.R. § 0.457 (d)(1)(iv).14

47 C.F.R. § 0.457(d)(1) 14

47 C.F.R. § 1.102(b)(3) 14

47 C.F.R. § 1.104(b) 21

47 C.F.R. § 1.106(a)(1) 22

47 C.F.R. § 1.10$ 22

47 C.F.R. § 1.115 14

47C.F.R. 1.115(g) 21

47 C.F.R. § 1.117 22

Other administrative materials

In re Application for the Transfer of Control of Licenses & Authorizations fromAT&T,19 FCC Rcd. 4793 (2004) 1$

In re Application of Comcast Corp., Gen. Elec. Co. & NBC Universal Inc.,25 FCC Rcd. 2140 (2010) 1$

In re Application of Worldcom, Inc.,13FCCRcd. 11166 (199$) 18

In re Applications for Consent to Assignment And/Or Transfer of Control ofLicenses Adelphia Commc ‘ns Corp.,20 FCC Rcd. 20073 (2005) 1$

In re Applications ofAT&T Inc. & Deutsche Telekom AG,26 FCC Rcd. $801 (2011) 17

In re Applications of Cricket License Co.,28 FCC Rcd. 11803 (2013) 17

In re Century Sw. Cable 71/Beverly Hills, Cal.,10 FCC Rcd. 9340 (1995) 22

—lx—


In re Comcast Corp.,17 FCC Rcd. 22633 (2002) 7, 29

In re Examination of Current Policy Concerning Treatment of Confidential Info.,13 FCC Rcd. 24816 (1998) 5, 15, 26

* In re Examination of Current Policy Concerning Treatment of Confidential Info.,14 FCC Rcd. 2012$ (1999) 15, 16, 20

In re Petition of Telcordia Techs. Inc.,29 FCC Rcd. 7592 (2014) 17

Letter To Malcolm G. Stevenson, ESQ.,25 FCC Rcd. 17042 (2010) 22

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GLOSSARY

Bureau - Media Bureau of the Federal Communications Commission

FCC - Federal Communication Commission

VPCI - Video Programming Confidential Information

—xi—


INTRODUCTION

This petition seeks to protect Petitioners’ highly confidential business

information from being disclosed to third parties, including Petitioners’

competitors, while Petitioners exercise their regulatory and statutory rights to seek

meaningful review of the underlying disclosure decision.

In October 2014, the Media Bureau (“Bureau”) of the Federal

Communications Commission (“FCC”) issued orders providing unprecedented

third-party access to highly sensitive programming distribution agreement

materials (including materials that reveal negotiating strategies) between

Petitioners and cable and satellite system operators. The FCC refers to these

materials as “Video Programming Confidential Information,” or “VPCI.” These

orders were issued in violation of the Trade Secrets Act and the FCC’s rules, and

disclosure will cause substantial harm to Petitioners and the highly competitive

programming marketplace in which they operate.

The validity of the October orders is not currently before this Court. Instead,

those orders are the subject of an intra-agency appeal currently pending before the

five FCC Commissioners (the “Commission”). What is at issue in this petition is

the Bureau’s unilateral decision on its own ex pane motion to change the rules in

the middle of the review process to deprive Petitioners of their right to obtain

meaningful agency and judicial review of the Bureau’s disclosure decision.

—1—


The Bureau’s October orders recognized—consistent with the precedent of

the FCC and this Court—that Petitioners have a right to prevent third-party access

to their highly sensitive commercial information while an objection to disclosure is

pending. Nonetheless, on November 4, 2014, the Bureau—on its own motion,

without notice—reconsidered its October orders and ordered Petitioners’

confidential information to be disclosed on November 13, 2014. The Bureau’s

abrupt change of course—made before the FCC has ruled upon the October orders,

and even though the precedent of the FCC and this Court recognizes that third-

party access to confidential materials should be delayed pending review—

effectively deprives Petitioners of any meaningful review before disclosure.

Mandamus relief is critical to protect Petitioners’ right to obtain meaningful

agency and judicial review of the Bureau’s decision. First, the Bureau’s sua

sponte, ex parte decision to accelerate the effect of its unlawful disclosure decision

violates the FCC’s and this Court’s precedent as well as the Commission’s

exclusive authority to rule on the merits of Petitioners’ intra-agency appeal.

Second, although Petitioners have diligently sought emergency relief from the

Commission, the Commission has yet to act on Petitioners’ requests, giving

Petitioners no choice but to seek mandamus relief to protect Petitioners’ due

process rights. Finally, issuance of the writ will protect Petitioners from

—2—


irreparable harm and ensure that the Commission—and, if appropriate, this

Court—has an opportunity to review the Bureau’s unprecedented decision.

STATEMENT Of JURISDICTION

This Court has jurisdiction to issue a writ of mandamus under the All Writs

Act, 2$ U.S.C. § 1651(a), because the issuance of a writ is necessary to protect this

Court’s jurisdiction to review FCC orders under 28 U.S.C. § 2342(1) and 47

U.S.C. § 402(a). See, e.g., In re Tennant, 359 F.3d 523, 527 (D.C. Cir. 2004).

STATEMENT OF RELIEF SOUGHT

Petitioners respectfully request a writ of mandamus directing the FCC to

prohibit the disclosure to any third party of Petitioners’ highly sensitive

commercial contracts and materials relating to the negotiation of those contracts

while a challenge to the legality of that disclosure is adjudicated.

STATEMENT Of THE ISSUES

1. Should a writ of mandamus issue when the Bureau acted arbitrarily

and capriciously in ordering the disclosure of Petitioners’ VPCI to third parties

effective November 13, 2014, even though a challenge to the Bureau’s disclosure

decision is pending and the FCC and this Court have held that it is improper to

grant third-party access to confidential information in similar circumstances?

2. Should a writ of mandamus issue when the Bureau acted without

observance of procedure required by law by unilaterally accelerating the effect of

its prior decision to disclose Petitioners’ VPCI to third parties, when that disclosure

—3—


decision is the subject of a pending ultra-agency appeal?

STATEMENT OF THE FACTS

A. Petitioners’ Distribution Agreements.

Petitioners CBS Corporation, Scripps Networks Interactive, Inc., The Walt

Disney Company, Time Warner Inc., Twenty-First Century Fox, Inc., Univision

Communications Inc., and Viacom Inc. create, produce, and license popular video

programming for exhibition to the public. To deliver their programming,

Petitioners negotiate affiliation, distribution, and retransmission consent

agreements with content distributors, who make Petitioners’ programming

available to consumers through cable systems, direct broadcast satellite systems, or

other distributors. These agreements are referred to as “Distribution Agreements.”

Petitioners ensure the highest possible level of confidentiality for their

Distribution Agreements, which are subject to tight internal controls by Petitioners

and distributors alike. A-228, ¶ 6; A-233, ¶4; A-238, ¶ 5; A-242, ¶4; A-246, ¶4;

A-250, ¶ 5. Distribution Agreements generally are subject to stringent, bargained-

for mutual confidentiality provisions that prevent each party from disclosing their

terms. Id. These confidentiality provisions not only limit third parties from having

access to these Agreements, but also often limit the universe of the parties’ own

employees who may review them. See, e.g., id.

The FCC repeatedly has recognized that Distribution Agreements are

-4-


entitled to the highest level of confidential treatment. The FCC has acknowledged

that disclosure of Distribution Agreements “can result in substantial competitive

harm to the information provider.” In re Examination of Current Policy

Concerning Treatment of Confidential Info., 13 FCC Rcd. 24816, 24852 (1998)

(“1998 Policy Statement”). The Bureau has likewise observed that Distribution

Agreements and related negotiation materials “contain highly sensitive information

that is central to [Petitioners’] business strategies, including, among other things,

pricing and business terms.” A-103, ¶ 13.

There is no dispute that Petitioners, the highly competitive programming

distribution marketplace in which they operate, and the public interest will be

harmed if the terms of these Distribution Agreements are publicly disclosed. For

example, because Petitioners must negotiate separate Distribution Agreements with

each content distributor, a distributor that knows the terms of a Petitioner’s

Distribution Agreements would have an unfair advantage in negotiating its own

Distribution Agreement with that Petitioner. A-229, ¶9; A-234 to -35, ¶ 7; A-239,

¶ 8; A-243, ¶ 7; A-247, ¶ 7; A-251, ¶ 8. Similarly, if another content owner

learned the terms of a competitor’s Distribution Agreement, it could use that

knowledge to negotiate more favorable agreements for itself and price and market

its own programming in an anticompetitive manner. A-229 to -30, ¶91 8-11; A-234

to -35, ¶(J[ 6-9; A-239, ¶9[ 7-9; A-243, fi 6-8; A-247, ¶91 6-8; A-251, ¶917-9.

—5—


B. The Bureau Invites Comment on Whether To Make VPCI Available To Third Parties.

This Petition arises in the context of the FCC’s ongoing review of two

proposed mergers: one involving Comcast, Time Warner Cable, and Charter

Communications, and another involving AT&T and DIRECTV. In connection

with its review of these proposed mergers, the FCC’s Media Bureau asked the

merger parties to produce certain information to the FCC.

The Bureau’s information requests seek, among other things, the merger

parties’ Distribution Agreements with Petitioners and materials related to the

negotiation of those Agreements. A-98, ¶ 2 & n.4. As the Bureau acknowledges,

the “key terms” of these Agreements “have historically been treated as especially

sensitive from a competitive standpoints and involve highly confidential

information.” A-98, ¶ 2. Fearing that third-party disclosure of their highly

sensitive Distribution Agreements would cause substantial, irreparable harm,

Petitioners joined others in advising the Bureau of their concern that the existing

protective orders in the proceedings did not adequately protect the confidentiality

of their Distribution Agreements and related negotiation materials. A-98, ¶ 2.

The FCC sought public comment regarding those concerns. A-9$, ¶ 3.

Twenty-six parties, filing jointly or individually, opposed disclosure of the

Distribution Agreements to third parties. A-98, ¶ 3. Instead, these commenters

urged the FCC to review copies of these materials that have been provided to the

—6—


Department of Justice in connection with that agency’s parallel review of the

merger proceedings, an approach that would mean the FCC would not need to

place Distribution Agreements and negotiation materials in the record of these

merger proceedings. A-98, ¶ 3. The FCC has followed this approach in other

merger review proceedings— including as recently as the 2010 merger between

Comcast and NBC Universal, see A-235-36, ¶ 10; A-244, ¶ 11; A -252, ¶ 9—and

this Court has sanctioned this approach. See Consumer Fed’iz ofAm. v. F.C.C.,

348 F.3d, 1009, 1012-14 (D.C. Cir. 2003), aff’g In re Comcast Corp., 17 FCC Rcd.

22633, 22636 (2002).

By contrast, only three commenters supported third-party access to raw,

unredacted Distribution Agreements and related negotiation materials. A- 137 &

n. 10. Each of these commenters purchases (or represents purchasers of)

Petitioners’ programming, and each would benefit commercially from access to

information about competitor’s pricing and other terms. A-98 to -99, ¶ 2. One

commenter, DISH Network, is a large purchaser of Petitioners’ programming and

justified its demand to review Distribution Agreements on the ground that it

intended to “view and analyze” prices paid by competitors of Petitioners. A- 177.

As the attached declarations make clear, many Petitioners are negotiating new

Distribution Agreements with DISH Network, and would unquestionably be

—7—


harmed if DISH learned the terms of other programming agreements. See, e.g., A-

235, ¶ 8; A-247, ¶ 7; A-251, ¶ 9.

C. The Bureau Permits Third Parties Access to VPCI, But Only After All Objections To Their Rights Of Access Are Resolved.

On October 7, 2014, the Bureau issued three orders that collectively

permitted third parties to access what the Orders called “Video Programming

Confidential Information,” or “VPCI.” A-97 to -26. Two of the Orders—referred

to as the “Protective Orders”—modified the existing protective orders in both

merger review proceedings. A-lOS to -126. The other order explained the

Bureau’s reasoning for providing access to VPCI. Collectively, these three orders

are referred to as the “October Orders.” A-97 to -104.

Together, the October Orders permitted anyone who certified they were

eligible to access Highly Confidential Information—a universe of information

covering materials less sensitive than VPCI—also to access VPCI. A-99 to -100.

The list of entities seeking access to Petitioners’ VPCI includes distributors that

currently are negotiating Distribution Agreements with several Petitioners, and

who will gain an unfair advantage in contract negotiations if they gain access to

Petitioners’ Distribution Agreements and negotiation strategies. A-235, ¶ 8; A

247, ¶ 7; A-251, ¶ 9.

Because of the sensitivity of the information, the Protective Orders ensured

that Petitioners would have the right to have their objections considered by the

—8—


Commission—and, if necessary, the courts—before disclosure would be made to

any requesting person. The Protective Orders expressly provided that any third

party whose highly sensitive information would be disclosed under the Protective

Orders “shall have an opportunity to object to the disclosure of its Confidential

Information or Highly Confidential Information to any potential Reviewing Party.”

A-109, ¶ 8; A-120, ¶ 8. The Protective Orders also provided, consistent with the

precedent of the FCC and this Court, that the objection would prevent any

individual from accessing Highly Confidential Information (including VPCI) until

the “objection is resolved by the Commission and, if appropriate, by any court of

competent jurisdiction.” A-109, ¶ 8; A-120, ¶ 8.

D. Petitioners Seek Commission Review of the October Orders.

On October 14, 2014, Petitioners filed an intra-agency appeal—called an

“Application for Review”—asking the full Commission to review the legality of

the Bureau’s decision to make their VPCI available to third parties. A- 127 to -59.

The Application for Review described how the October Orders (1) failed to

adequately protect the confidentiality of Petitioners’ VPCI, and (2) failed to satisfy

the high burden imposed by the Trade Secrets Act, the FCC’s rules, and this

Court’s precedent to make a “persuasive showing” why third-party access to VPCI

is necessary for review. A-129. The Application for Review was accompanied by

—9—


a request to stay the October Orders. A-i 50 to -190. The Commission has yet to

act on either the Application for Review or the stay request.

To prevent access to their VPCI until the Commission resolved their

Application for Review, Petitioners exercised their right under the Protective

Orders to file objections to more than 260 individuals who submitted requests to

access Petitioners’ VPCI in the merger proceedings.’ A-42 to -43, ¶ 2. Echoing

their Application for Review, Petitioners objected that the Trade Secrets Act and

the FCC’s rules barred third parties from accessing Petitioners’ VPCI. A-43, ¶ 4.

Petitioners were not alone in asserting categorical objections to the

disclosure of their most sensitive competitive data. For example, Hilton

Worldwide also asserted categorical objections to any request for third-party

access to its highly sensitive pricing information, and—like Petitioners—urged the

FCC to make only aggregated, anonymized data available. A-2 15 to -20. These

objections were consistent with the views of three merger parties, who supported

the Department of Justice review procedures embraced by Petitioners. A-210.

Because the Protective Orders permitted any individual entitled to accessHighly Confidential Information a corresponding right to access VPCI, these Orders placed Petitioners in the position of having to object to each individual’s request to access Highly Confidential Information, even if the requestor had no intention of accessing VPCI. A-99 to -100. Petitioners repeatedly told the FCC that,if given the option, they would object only to individuals who seek access to VPCIand would not object to any request to access other forms of Highly ConfidentialInformation. A-7 1 to -72.

—10—


E. The Bureau Grants Its Own Ex Parte Motion for ReconsiderationAnd Accelerates Third-Party Access to VPCI.

On November 4, 2014—while Petitioners’ intra-agency appeal was pending

before the Commission, and before the briefing cycle in that proceeding was

complete—the Bureau issued four additional orders that accelerate third-party

access to VPCI. A-i to -51. Three of the orders relate to the Protective Orders and

were issued on the Bureau’s “own motion” for reconsideration; no party asked the

Bureau to reconsider any of the October Orders. A-I to -41. Two of these

Orders—referred to as the “Amended Protective Orders”—revise the Protective

Orders by making just one change (discussed below) that accelerates the risk of

imminent, unlawful disclosure to third parties; the Amended Protective Orders

otherwise are identical to (and contain the same flaws as) the Protective Orders.

A-20 to -41. The third order explains the Bureau’s rationale for issuing the

Amended Protective Orders. A-i to -19. The final order disposes of the objections

Petitioners had filed against nearly all of the requesting individuals. A-42 to -52.

Collectively, these four orders are referred to as the “November Orders.”

The immediate effect of the November Orders is that the Bureau will grant

245 third-party individuals access to “hundreds of thousands of pages” of VPCI on

November 13, 2014, notwithstanding a pending intra-agency appeal. A-46, ¶ 12;

A- 17, ¶ 34. The operative protective orders no longer prohibit disclosure of

Petitioners’ VPCI while a challenge to third parties’ right to access that material is

—11—


under review by the Commission or a court. A-18, ¶ 36. Instead, the Bureau

revised Paragraph 8 of the protective orders to permit access within “five (5)

business days after any objection is resolved by the Bureau in favor of the person

seeking access.” A-18, ¶ 36; A-24, ¶ 8; A-35, ¶ 8. By denying the categorical

objections Petitioners had asserted—even though the merits of those objections are

pending before the Commission—the Bureau thus has permitted 245 individuals to

access Petitioners’ VPCI beginning on Thursday, November 13. A-46, ¶ 12.

F. Petitioners Seek Commission Review of the November Orders.

On Friday, November 7, 2014, Petitioners filed a second intra-agency appeal

seeking Commission review of the November Orders. A-53 to -76. In contrast to

the Application for Review challenging the October Orders—which objected to the

merits of the Bureau’s disclosure decision—Petitioners’ new ultra-agency appeal

objects to the Bureau’s decision to change the rules prohibiting disclosure in the

middle of the appeal process. A-59. By revising its orders to give third parties

access to Petitioners’ VPCI while a challenge to that disclosure decision is

pending, the Bureau has effectively usurped the Commission’s exclusive authority

to rule on the merits of the October Application for Review. A-66 to -68.

The Commission has not yet ruled on either intra-agency appeal (or the

emergency stay requests that accompanied these applications); pursuant to the

Commission’s rules, briefs may still be submitted in response to both appeals. See

—12—


47 C.F.R. § 1.115(d). With only one full business day remaining before hundreds

of individuals—some of whom represent entities currently involved in negotiating

Distribution Agreements with Petitioners—gain access to Petitioners’ VPCI, the

Commission’s inaction has given Petitioners no choice but to seek emergency

relief from this Court to prohibit the disclosure of their VPCI until the legality of

that disclosure decision can be adjudicated.

REASONS WHY THE WRIT SHOULD ISSUE

Mandamus relief is available when three conditions are met: (i) the

Petitioners’ “right to issuance of the writ is clear and indisputable”; (ii) the

Petitioners have “no other adequate means to attain the relief’ desired, and (iii)

“the writ is appropriate in the circumstances.” In re Kellogg Brown & Root, Inc.,

756 F.3d 754, 760 (D.C. Cir. 2014) (quoting Cheney v. U.S. District Courtfor the

District of Columbia, 542 U.S. 367, 380-8 1 (2004)). This Court has not hesitated

to grant mandamus to prevent improper disclosure of highly confidential

documents protected by law. See, e.g., Kellogg Brown & Root, 756 F.3d at 761

(attorney-client information); In re Sealed Case No. 98-3077, 151 f.3d 1059, 1077

(D.C. Cir. 1998) (grand jury information). It should do so here.

—13—


I. THE BUREAU CLEARLY VIOLATED PETITIONERS’ RIGHT TOSEEK REVIEW OF ITS DECISION TO DISCLOSE HIGHLY CONFIDENTIAL INFORMATION.

A. Petitioners Have a Right to Meaningful Review of an Order Disclosing Highly Confidential Information Before Disclosure Occurs.

Congress enacted the Trade Secrets Act to prohibit a government agency

from ordering the “unauthorized release of trade secrets and commercial

information.” Qwest Commc ‘ns Int’l, Inc. v. F. C. C., 229 F.3d 1172, 1177-78

(D.C. Cir. 2000). There is no dispute that Petitioners’ VPCI is covered by the

Trade Secrets Act, meaning that disclosure is prohibited unless it has been

otherwise “authorized by law.” 18 U.S.C. § 1905. As the Bureau acknowledges,

A-13, ¶ 23, Petitioners’ VPCI may be disclosed here only if a “persuasive

showing” has been made why that material must be made available to third parties

in connection with the Commission’s review of these merger proceedings. 47

C.F.R. § 0.457(d)(l), (d)(1)(iv).

Both Congress and the FCC have given third parties the opportunity to

appeal a decision to disclose highly confidential information. The FCC’s rules

permit a party to file an intra-agency appeal with the Commission challenging any

decision made by the FCC’s staff to release confidential information to third

parties. See 47 C.F.R. § 1. 102(b)(3), 1.115. Likewise, through the

Administrative Procedure Act, Congress has given parties the opportunity to

—14—


challenge an agency’s decision to release confidential information to third parties.

See, e.g., 5 U.S.C. § 706; see also Qwest, 229 F.3d at 1180-84 (concluding that

FCC acted arbitrarily and capriciously by ordering release of party’ s confidential

information to its competitors).

These rights are meaningless unless a party’s confidential documents are

protected from disclosure until the merits of the disclosure decision are reviewed.

For this reason, it has been the FCC’s policy for more than 15 years that no third

party should be permitted access to confidential documents when a challenge to a

disclosure decision is pending and, indeed, “until the court denies a stay request.”

See 1998 Policy Statement, 13 FCC Rcd. at, 24856-57).

This policy was challenged by proponents of disclosure in that case on the

ground that access to confidential information should be permitted under a

protective order while a challenge to the disclosure decision is pending. In re

Examination of Current Policy Concerning Treatment of confidential Info., 14

FCC Rcd. 20128, 20129 (1999) (“Reconsideration Statement”). The FCC rejected

that argument:

[D]isclosure pending review would effectively moot anyapplications for review because it would place the assertedly confidential information in the hands of all partiessigning the protective order without first granting the objecting party the opportunity to seek Commission or judicial review of the disclosure decision.

—15—


Id. The FCC reached this conclusion even though “disclosure may be delayed

pending the appeals process.” Id.

This Court also has recognized that parties’ confidentiality information

should be protected from disclosure while a challenge to the decision is litigated.

In a case involving disclosure by the FCC, this Court recognized that it is

appropriate to stay a decision to make confidential documents accessible to third

parties while the merits of that decision are under review. See Qwest, 229 F.3d at

1176 n. 12 (noting that stay request was granted while petition for review was filed

challenging the FCC’ s disclosure decision). Significantly, this Court has granted

this temporary relief even when it ultimately concluded that confidential

documents should be made available. See, e.g., United States v. Microsoft Corp.,

165 F.3d 952, 954 (D.C. Cir. 1999) (noting that materials should be protected from

disclosure during judicial review of that disclosure decision); Bartholdi Cable Co.

v. F.C.C., 114 F.3d 274, 279 (D.C. Cir. 1997) (same).

B. The Bureau Clearly Violated Petitioners’ Rights By Sua SponteAccelerating Disclosure of Petitioners’ Highly Confidential Documents While Petitioners’ Challenge To That Disclosure DecisionIs Pending.

For two independent reasons, the November Orders violated Petitioners’

well-established right to obtain meaningful review of the Bureau’s decision to

provide third-party access to Petitioners’ VPCI before disclosure occurs.

—16—


1. The November Orders Arbitrarily and Capriciously PermitThird-Party Access To Confidential Information While AChallenge To Disclosure Is Pending.

The November Orders arbitrarily and capriciously make Petitioners’

confidential information available to third parties beginning on November 13, in

violation of the FCC’s and this Court’s precedents prohibiting such disclosure

when a challenge to the legality of such disclosure is pending. See 5 U.S.C.

§ 706(2)(A) (agency action unlawful if found to be “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law”).

The Protective Orders issued in October were consistent with the FCC’ s and

this Court’s precedent prohibiting disclosure while a disclosure decision was

pending. Those orders prohibited any individual from accessing Petitioners’ most

sensitive information until any “objection is resolved by the Commission and, if

appropriate, by any court of competent jurisdiction.” A-109, ¶ 8; A-120, ¶ 8.

These orders contained the same language the Bureau cited as an example of the

FCC’ s “long-established procedures” that prohibit disclosure of confidential

information until the challenge had been resolved by the Commission or a court.2

2 E.g., In re Petition of Telcordia Techs. Inc., 29 FCC Rcd. 7592, ¶ 10 (2014)(barring disclosure “[u]ntil any objection is resolved by the Commission and, ifappropriate, any court of competent jurisdiction”); In re Applications of Cricket License Co., 28 FCC Rcd. 11803, 11806 (2013) (same); In re Applications of AT&TInc. & Deutsche Telekom AG, 26 FCC Rcd. 8801, 8803 (2011) (same); In re Application of Comcast Corp., Gen. Elec. Co. & NBC Universal Inc., 25 FCC Rcd.(continued...)

—17—


The November Orders remove these protections. The Amended Protective

Orders issued on November 4 no longer contemplate the possibility of Commission

or judicial review of a disclosure decision. Instead, individuals may access

Petitioners’ VPCI as early as November 13. A-18, ¶ 36 (authorizing access “five

(5) business days after any objection is resolved by the Bureau in favor of the

person seeking access”); A-46, ¶ 12 (disposing of objections asserted against 245

individuals on November 4, 2014).

The November Orders thus subvert Petitioners’ right to obtain meaningful

agency and judicial review of a disclosure decision before disclosure occurs.3 The

Orders also deviate from the decades-long practice of the FCC of prohibiting

individuals from accessing highly confidential information while a challenge to

their right to access that information is pending. It is black-letter law that “a

subordinate body like the [Bureau] cannot alter a policy set by the Commission

2140, 2145 (2010) (same); In re Applications for Consent to Assignment And/OrTransfer of Control of Licenses Adelphia Commc’ns Corp., 20 FCC Rcd. 20073,20080 (2005) (same); In re AT&T, 19 FCC Rcd. 4793, 4797 (2004) (same). Seealso In reApplication of Woridcom, Inc., 13 FCC Rcd. 11166, 11178 (1998) (barring disclosure “[u]ntil any such objection is resolved by the Commission and anycourt of competent jurisdiction prior to any disclosure ... in favor of the personseeking access”).

For example, numerous parties have objected to various individual requeststo access highly confidential information and VPCI on the grounds that those individuals are engaged in competitive decisionmaking. See, e.g., A-70 & n.4 1. If theBureau overrules these objections, these individuals will be afforded prompt accessto Highly Confidential Information and VPCI unless the parties obtain relief fromthe Commission or a court within five days of the Bureau’s decision.

—18—


itself.” Jeiks v. F.C.C., 146 F.3d 878, 881 (D.C. Cir. 1998) (per curiam). The

Bureau’s “unexplained departure from precedent must be overturned as arbitrary

and capricious.” Comcast Corp. V. F.C.C., 526 F.3d 763, 769 (D.C. Cir. 200$).

The oniy explanation the Bureau offers for its sudden and abrupt departure

from the precedent of the FCC and this Court is a determination that the language

in the Protective Orders—language entirely consistent with past precedent, see

supra at 18 n.2—had the effect of “suspend[ingJ indefinitely. . . effective

participation in the proceeding.” A-1$, ¶ 36. This is incorrect. Petitioners have

not sought to suspend any aspect of the merger proceedings “indefinitely.” FCC

review of the proposed mergers can continue unimpeded: the FCC has full access

to all of the documents at issue here, and Petitioners have not sought to block FCC

access to their VPCI. Petitioners seek only to preserve their right to effective

review of the Bureau’s October Orders and the underlying decision to permit

disclosure to third parties.4

The Bureau’s assertions of delay ring especially hollow here. The FCC has

already noted that confidentiality interests take priority over disclosing sensitive

In fact, when another participant—Hilton Worldwide—asserted similar categorical objections intended to prevent any third party from accessing its highlyconfidential information, see A-215 to -19, the Bureau sustained Hilton’s categorical objection and concluded that it could complete its review of the merger proceedings without placing Hilton’s highly confidential information in the publicrecord, see A-224. The Bureau offers no explanation why Hilton’s categorical objection was sustained but Petitioners’ identical objection was rejected.

—19—


information to third parties even if “disclosure may be delayed pending the appeals

process.” 1999 Reconsideration Statement, 14 FCC Rcd. at 20129. If the Bureau

truly believes that the inability of certain individuals to access certain types of

Highly Confidential Information hampers its review of these transactions, it could

have embraced a proposal offered by one of the participants to the proceeding.5 A-

197 to -98. Under this proposal, individuals seeking access to Highly Confidential

Information would indicate whether they also sought access to VPCI. A- 197 to -

98. If that proposal was adopted, Petitioners offered to withdraw any objection

that prevented third parties from accessing Highly Confidential Information other

than VPCI. The Bureau ignored this proposal, even though “[tJhe failure of an

agency to consider obvious alternatives has led uniformly to reversal.” Yakima

Valley Cablevision, Inc. v. F.C.C., 794 F.2d 737, 746 n.36 (D.C. Cir. 1986). The

Bureau’s silence is surprising, given that this proposal would allow third-party

access to other forms of Highly Confidential Information while simultaneously

Under the Protective Orders, any individual who seeks access to HighlyConfidential Information is also entitled to access VPCI. A- 109, ¶ 8; A- 120, ¶ 8.In addition, the form Acknowledgment individuals must execute to gain access tothis information does not permit individuals to indicate whether they seek access toVPCI or whether they seek access only to other, non-VPCI, Highly ConfidentialInformation. A-li 5; A- 126. To prevent the unlawful disclosure of their VPCI, theProtective Orders placed Petitioners in the position of having to object to each individual who requests access to Highly Confidential Information, even if that individual has no intention of accessing VPCI. A-42 to -43, ¶ 2. Petitioners repeatedlytold the FCC that, given the option, they would object only to individuals who seekaccess to VPCI. A-71 to -72.

—20—


protecting Petitioners’ confidentiality interests in their VPCI while their challenge

to the October Orders is pending.

2. The November Orders Were Adopted Without ObservingThe FCC’s Procedures.

The Bureau’s sua sponte decision to accelerate the effect of its disclosure

decisions violate FCC procedures that give the Commission—not the Bureau—the

final say over a decision to make confidential documents available to third parties.

See 5 U.S.C. § 706(2)(D) (agency action unlawful if taken “without observance of

procedure required by law”).

FCC rules give the Commission—not the Bureau—final authority to rule on

an intra-agency appeal. 47 C.F.R. § 1.115(g); see also 47 C.F.R. § 1.104(b)

(providing that an “application for review will in all cases be acted upon by the

Commission”) (emphasis added). In a tacit acknowledgment that the October

Orders are flawed, the Bureau acted on its “own motion” to rehabilitate those

Orders. A-i, ¶ 1. The Bureau did so even though no party asked it to reconsider

the October Orders, even though the validity of those Orders is now before the

Commission, and even though it provided no notice to any party (including

Petitioners) that it was doing so. Because FCC rules do not permit the Bureau to

make additional findings and conclusions to defend an order that is the subject of

an internal agency appeal, the November Orders should be set aside.

—21—


Nothing in the FCC’s rules or precedent gives the Bureau authority to

reconsider on its own motion an order that is the subject of an intra-agency appeal.

For example, while the FCC has said that the Commission can act on its own

motion to modify orders issued by the Commission or the FCC’s staff, see 47

C.F.R. § 1.108, 1.117, there is no comparable grant of authority that authorizes

the Bureau sua sponte to revisit prior decisions that are before the Commission.

Similarly, the FCC has said that a request to reconsider interlocutory orders like

the October Orders “will not be entertained.” 47 C.F.R. § l.106(a)(1).

In the few instances where FCC staff has acted when the validity of its

decisions is pending before the Commission, the staff has done so in a way that

protects meaningful Commission review of its actions. See, e.g., In re Century Sw.

Cable 11/Beverly Hills, Cal., 10 FCC Rcd. 9340, 9341 (1995) (staff stayed effect

of own decision when intra-agency appeal is pending). Here, by contrast, the

November Orders have the opposite effect: they have accelerated the effect of the

October Orders in a way that deprives the Commission of a meaningful

opportunity to consider the validity of those orders.

Similarly, for administrative efficiency reasons, the FCC previously has

treated an intra-agency appeal as a petition for reconsideration by the staff if the

appeal raises new issues, see, e.g., Letter To Malcolm G. Stevenson, ESQ., 25 FCC

Rcd. 17042, 17043 (2010). That is not the case here. None of the November

—22—


Orders assert that the Application for Review presented any new questions of fact

or law. To the contrary, the Bureau expressly declined to treat the Application for

Review as a petition for reconsideration, acknowledging instead that the

Application for Review “remain[ed] pending before the Commission.” A-6, ¶9.

The November Orders thus subvert the Commission’s exclusive authority to

rule on the Application for Review by making Petitioners’ VPCI available to third

parties on November 13, 2014. If access to this VPCI is permitted—as the Bureau

proposes to do—the Bureau will have effectively deprived the Commission of a

meaningful opportunity to review the propriety of the October Orders. Yet “[tJhere

is no authority for the proposition that a lower component of a government agency

may bind the decision making of the highest level,” as the Orders will effectively

do here. Cmty. Care .Found. v. Thompson, 318 F.3d 219, 227 (D.C. Cir. 2003);

accord Jeiks, 146 F.3d at 8$ 1 (“[A] subordinate body like the Division cannot alter

a policy set by the Commission.”).

II. MANDAMUS RELIEF IS PETITIONERS’ ONLY ADEQUATEREMEDY.

Petitioners have diligently exhausted all alternative avenues for relief, and

mandamus is the only way to protect Petitioners’ right to obtain review of the

October Orders by the Commission and this Court.

Petitioners filed their ultra-agency appeal challenging the October Orders

one week after the orders were issued. Although Petitioners asked the Commission

—23—


to stay those orders, the Commission had no need to rule on the stay because

Petitioners’ objections protected their VPCI from third-party disclosure under the

Protective Orders. Then, three days after the Bureau revised its Protective Orders

unlawfully to accelerate its improper decision to give third parties access to the

VPCI, Petitioners filed another intra-agency appeal and stay request.

The Commission has not ruled on any of these intra-agency appeals. With

oniy one business day remaining before Petitioners’ VPCI becomes available to

third parties, and in light of the Commission’s delay in ruling on Petitioners’ stay

requests, Petitioners have no choice but to seek emergency relief from this Court.

The November Orders are the subject of a companion Petition for Review

filed by Petitioners, but if this Court concludes it lacks jurisdiction over that

Petition for Review,6 a writ of mandamus remains the only mechanism available to

Petitioners to protect the confidentiality of their VPCI while their challenge to the

underlying disclosure decision is pending. This Court has repeatedly recognized

that “liberal use of mandamus” is appropriate “in situations involving the

6 Although this Court has indicated that, as a general rule, it lacks jurisdictionto review the Bureau’s orders, see, e.g., Int’l Telecard Ass’n v. F.C.C., 166 F.3d387, 388 (D.C. Cir. 1999), that general rule does not apply here because the Bureau’s November Orders, if left undisturbed, “defea[tJ this Court’s prospective jurisdiction” over the question of whether Petitioners’ VPCI is protected from disclosure by the Trade Secrets Act and the FCC’s regulations. Int’l Union, United MineWorkers of Am. v. U.S. Dep’t of Labor, 358 F.3d 40, 43 (D.C. Cir. 2004); see alsoAT&T v. F.C.C., 978 F.2d 727, 73 1-32 (D.C. Cir. 1992) (agencies may not evadejudicial review by using “administrative law shell game[s]”).

—24—


production of documents or testimony claimed to be privileged.” See In re von

Bitlow, 828 F.2d 94, 98-99 (2d Cir. 1987); Kellogg Brown & Root, 756 F.3d at

761; cf Mohawk hzdus, Inc. v. Carpenter, 558 U.S. 100, 111(2009).

III. ISSUANCE OF THE WRIT IS NECESSARY TO PROTECT PETITIONERS’ CONFIDENTIALITY INTERESTS WHILE THEIRCHALLENGE TO THE DISCLOSURE DECISION IS PENDING.

In the absence of the writ, Petitioners’ VPCI will be disclosed, and they

“will be harmed in a way not correctable on appeal.” Nat ‘1 Ass ‘n of Criminal

Defense Lawyers, Inc. v. United States Dep ‘t of Jitstice, 182 F.3d 981, 987 (D.C.

Cir. 1999). Issuance of the writ will also give the Commission—and, if

appropriate, this Court—the opportunity to consider the merits of the Bureau’s

unprecedented decision to make “hundreds of thousands of pages of programming

contract materials” available to representatives of Petitioners’ competitors and

distributors. A-17, ¶ 34; see Criminal Defense Lawyers, 182 f.3d at 987

(mandamus relief appropriate when issue “raises important and novel problems or

issues of law”).

A. Petitioners Will Be Irreparably Harmed By Disclosure.

If disclosure occurs while Petitioners’ challenge to that disclosure decision is

pending, Petitioners will be irreparably harmed. As this Court has repeatedly

recognized, post-disclosure appellate review is “obviously not adequate” to protect

confidentiality interests because, by the time of the appeal, “the cat is out of the

—25—


bag.” In re Papandreoit, 139 F.3d 247, 251 (D.C. Cir. 1998), superseded by

statute on other groicnds as recognized by Price v. Socialist People ‘s Libyan Arab

Jamahiriya, 294 F.3d 82, 90 (D.C. Cir. 2002); see also In re Copley Press, Inc.,

518 F.3d 1022, 1025 (9th Cir. 2008) (“Once information is published, it cannot be

made secret again.”).

The harm from disclosure is especially acute here. The FCC itself has long

acknowledged that third-party access to Petitioners’ VPCI “can result in substantial

competitive harm” to Petitioners. 1998 Policy Statement, 13 FCC Rcd. at 24852.

The Bureau similarly observed that Petitioners’ VPCI “contain highly sensitive

information that is central to [Petitioners’] business strategies, including, among

other things, pricing and business terms.” A-l03, ¶ 13. The antitrust laws prohibit

competitors from sharing these contract terms precisely because access to such

information can facilitate agreements that unfairly restrain trade and competition.

See 15 U.S.C. § 1; United States v. Container Corp. ofAm., 393 U.S. 333, 337-38

(1969) (holding exchange of price information violated the Sherman Act).

The Bureau’s disclosure decision nevertheless gives Petitioners’ competitors

and distributors access to Petitioners’ Distribution Agreements with the country’s

largest programming distributors. As the attached declarations illustrate, a

distributor that knows the terms of Petitioners’ Distribution Agreement with that

distributor’s competitors will have an unfair advantage in negotiating its own

—26—


distribution agreement with that Petitioner, and has no incentive to negotiate or to

arbitrate reasonable rates or other terms and conditions with the Petitioner. A-229,

¶ 9; A-234 to -35, ¶ 7; A-239, ¶ 8; A-243, ¶ 7; A-247, ¶ 7; A-251, ¶ 8.

This harm is not merely theoretical. One large distributor has expressly

asked for access to Petitioners’ VPCI, citing an alleged need to “view and analyze”

Petitioners’ Distribution Agreements. A-177 . Agents of a trade organization that

represents small- and medium-size distributors have also asked to review pricing

information. A-177 to -78. Several Petitioners currently are negotiating contracts

with these distributors, each of whom would benefit commercially from access to

the agreements of their competitors. See A-235, ¶ 8; A-247, ¶ 7; A-25 1, ¶ 9.

In response, the Bureau asserts that the protections employed in the

Amended Protective Orders are sufficient to prevent these harms from occurring.

Petitioners vehemently disagree, and they have asked the Commission to review

the validity of the Bureau’s conclusion. The Bureau cannot circumvent this review

by unilaterally deciding Petitioners’ views lack merit and accelerating the very

harm Petitioners will suffer.

B. The Bureau’s Decision To Permit Third-Party Access to VPCI isUnprecedented And Raises Important and Novel Issues ThatShould Be Addressed By The Commission.

The Bureau’s decision to provide third-party access to “hundreds of

thousands of pages” of Distribution Agreements and related negotiation materials

—27—


is unprecedented in size and scope. The underlying FCC proceedings—in which

commenters overwhelmingly opposed making VPCI available to third parties—

“convincingly demonstrates that many organizations are well aware of and deeply

concerned about” the effect of the Bureau’s disclosure decision. Kellogg Brown &

Root, 756 F.3d at 763 (finding mandamus relief appropriate in similar

circumstances). The merits of that decision are not yet before this Court; they are

before the Commission. However, mandamus is necessary to give the

Commission—and, if appropriate, the Court—the opportunity to consider the

merits of that decision.

In prior merger review proceedings, the FCC has typically reviewed VPCI

either in camera or at the Department of Justice, rather than making these materials

available to the public. The Bureau has not disputed Petitioners’ assertion that the

FCC followed this approach as recently as 2010 in connection with the proposed

merger between Comcast and NBC Universal, a merger that raises issues similar to

the issues in these two mergers. See A-235 to -36, ¶ 10; A-244, ¶ 11; A-252, ¶ 9.

Petitioners have asked only that the FCC employ the same review procedure here

that was used prior merger reviews.

Notably, even the Bureau cannot identify any prior merger proceeding where

it made a comparable amount of VPCI available to third parties. To be sure, the

Bureau identified two other merger proceedings where it made Distribution

—28—


Agreements available to third parties. A- 10, ¶ 19. But the universe of Distribution

Agreements made available there was substantially smaller than here, where the

Bureau proposes to place “hundreds of thousands of pages of contract

programming materials” in the record of the proceedings. A- 17, ¶ 34. Further, the

Bureau does not dispute that negotiation materials have not been made accessible

to third parties in prior merger proceedings. The Bureau’s decision to do so here

stands in sharp contrast to the FCC’s longstanding recognition that the Bureau has

“an obligation not to overreach in [itsJ discovery requests when confidential third

party agreements are at issue.” In re Corncast, 17 FCC Rcd. at 22639.

The Bureau’ s decision to make VPCI available to third parties is even more

startling in light of the Bureau’s admission that it does not know whether all of the

VPCI it intends to make publicly available in the merger proceedings is even

relevant to its review of the proposed mergers. See A-8 to -9, ¶ 16. In prior

proceedings, the Commission has coordinated its review of highly confidential

documents with the Department of Justice so that it can “focus its inquiry on the

public interest issues that are truly relevant to a proposed transaction.” In re

Comcast Corp., 17 FCC Rcd. at 22640. This Court has long approved of this

approach. See Consumer Fed’n ofAm., 348 F.3d at 10 12-14, aff’g In re Comcast,

17 FCC Rcd. at 22636.

—29—


In short, the Bureau proposes to make available an unprecedented amount of

VPCI to third parties. The Bureau has done so even though:

Access to [Petitioners’ J contracts could allow someone toobtain a detailed, industry-wide overview of the currentand future programming market. Indeed, because theAT&T and Comcast transactions are pending simultaneously, the ability to capture and understanding of theprogramming marketplace is greater, and potentiallymore troublesome, than if only one were before us.

A- 192. When Petitioners raised serious questions about the adequacy of the

Protective Orders and the legality of the Bureau’s decision to authorize disclosure,

the Bureau then acted to accelerate the implementation of, and circumvent review

of, its disclosure decision by issuing the November Orders. Those orders

accelerated precisely the public interest harms that Petitioners demonstrated will be

caused by the Bureau’s disclosure ruling, usurped the Commission’s right to

evaluate the merits of this decision, and vitiated Petitioners’ right to seek

meaningful agency and judicial review of the Bureau’s unprecedented decision.

Mandamus is therefore appropriate to protect Petitioners’ due process rights.

CONCLUSION

For the foregoing reasons, this Court should issue a writ of mandamus

directing the FCC to prohibit the disclosure to any third party of Petitioners’ highly

sensitive commercial contracts and materials relating to the negotiation of those

contracts while a challenge to the legality of that disclosure is adjudicated.

—30—


DATED: November 10, 2014 Respectfully submitted,

Is! Mace RosensteinMace RosensteinC. William PhillipsAndrew SoukupLaura Flahive WuKevin KingCOV1NGTON & BuRuNG LLP1201 Pennsylvania Avenue, NWWashington, DC 20004-240 1(202) 662-6000

Attorneys for Petitioners CBS Corporation,Scripps Networks Interactive, Inc., The WaltDisney Company, Time Warner Inc., Twentv-first Century Fox, Inc., UnivisionCommunications Inc., and Viacom Inc.

—31—


CERTIFICATE OF SERVICE

I hereby certify that, on this 10th day of November 2014, copies of the fore

going Petition for a Writ of Mandamus were served on the following parties by the

manner indicated:

By First Class Mail and Electronic Mail: By first Class Mail:

Federal Communications Commission Eric H. Holder, Jr.Jonathan Sallet Attorney GeneralGeneral Counsel United States Department of JusticeFederal Communications Commission 950 Pennsylvania Avenue, N.W.445 12th Street, S.W. Washington, D.C. 20530Washington, DC 20554Jonathan.Sallett@ fcc.gov

/5/ Mace RosensteinMace Rosenstein

Attorneyfor Petitioners CBS Corporation,Scripps Networks Interactive, Inc., The WaltDisney Company, Time Warner Inc., Twenty-First Century Fox, Inc., UnivisionCommunications Inc., and Viacom Inc.

—32—


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