Antitrust Law Daily Wrap Up, ACQUISITIONS & MERGERS NEWS: FCC stops clock in Comcast-TWC merger review, citing delay in document production, (Dec 23, 2014)

By Lynn Stanton,TR Daily

The FCC has again stopped the clock on its internal 180-day review period for considering the proposed merger of Comcast Corp. and Time Warner Cable, Inc., and related transactions involving Charter Communications, Inc., citing the discovery of “a significant number of responsive documents that were not timely produced to the FCC.”

The clock is stopped as of December 22, day 104 on the transaction review timeline, for three weeks, and will restart on Jan. 12, 2015, the FCC’s Media Bureau said. However, the December 23 deadline for reply comments in the MB docket 14-57 proceeding remains in place.

The clock in the Comcast proceeding was previously stopped on October 3, which was day 85 on the transaction review timeline, with the intention of restarting it on October 29. The action was taken to provide additional time for review of and comment on material the companies filed with the Commission on certain effects of Comcast's acquisition of NBCUniversal.

Before the clock could restart, the bureau issued an order stopping the clock in both the Comcast-TWC transaction review and the separate AT&T, Inc.–DirecTV transaction review, pending consideration of the objections of programmers and broadcasters to their programming and retransmission consent agreements being viewed by third parties as part of the merger reviews. The FCC restarted the clock in both proceedings earlier this month in the wake of a court ruling that stayed, pending judicial review, an FCC order providing for third-party access to the programming and retransmission consent agreements and related documents.

In a December 22 letter to officials at Comcast, TWC, and Charter, Media Bureau Chief Bill Lake said, “Beginning in December 2014, Commission staff learned that in excess of 7,000 responsive documents had been withheld [by TWC] based on an inappropriate claim of attorney-client privilege. These documents were produced to the Commission on December 9 and 10, 2014, and Commission staff was advised that a complete revised privilege log would be provided in mid-January, 2015. During the week of December 15, 2014, Commission staff learned that in excess of 31,000 responsive documents had not been produced to the Commission due to vendor error, and would be produced on December 30, 2014. After Commission staff expressed concern about the delays in production of the missing documents and the privilege log, TWC now advises Commission staff that it will produce these missing documents and a complete privilege log on December 22, 2014.”

“The effect of these late disclosures has been to slow down the Commission’s review of the Comcast/TWC/Charter transaction, in particular because sections of the review that staff had thought were complete now must be reopened to take account of the additional documents that have been disclosed,” the letter continued. “This does not simply require examining the additional documents, but re-running many of the document searches and reconsidering the analyses that staff thought were complete. In addition, staff has been hampered in its review of TWC’s privilege log because, after only a cursory review of the log, it was apparent that many entries were incomplete which hampered review of TWC’s privilege claims,” Lake added.

News: AcquisitionsMergers Antitrust