CBS Corp. v. Federal Communications Commission ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2015 Decided May 8, 2015
No. 14-1242
CBS CORPORATION, ET AL.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES
OF AMERICA,
RESPONDENTS
NATIONAL ASSOCIATION OF BROADCASTERS, ET AL.,
INTERVENORS
On Petition for Review of an Order of
the Federal Communications Commission
Robert A. Long argued the cause for petitioners. With him
on the briefs were Mace J. Rosenstein, Andrew Soukup, and
Kevin F. King.
Rick Kaplan, Jerianne Timmerman, Justin Faulb, and Jack
N. Goodman were on the brief for intervenor National
Association of Broadcasters in support of petitioners.
David M. Gossett, Deputy General Counsel, Federal
Communications Commission, argued the cause for respondents.
2
With him on the brief were David I. Gelfand, Deputy Assistant
Attorney General, U.S. Department of Justice, Kristen C.
Limarzi and Daniel E. Haar, Attorneys, Jonathan B. Sallet,
General Counsel, Federal Communications Commission, Jacob
M. Lewis, Associate General Counsel, and Lily S. Farel,
Counsel. Robert B. Nicholson, Attorney, entered an appearance.
Michael K. Kellogg, Scott H. Angstreich, Timothy J.
Simeone, Gary L. Phillips, David P. Murray, Matthew A. Brill,
Matthew T. Murchison, Samuel L. Feder, and John Flynn were
on the brief for intervenors AT&T, Inc., et al. in support of
respondents. John R. Grimm and Christopher J. Wright entered
appearances.
Pantelis Michalopoulos, Stephanie A. Roy, David A.
LaFuria, and Brooks E. Harlow were on the brief for intervenors
DISH Network Corporation and the American Cable
Association in support of respondents.
Before: TATEL, SRINIVASAN, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: To facilitate speedy consideration of
two mergers of major cable companies, the Federal
Communications Commission ordered the merger applicants to
submit certain proprietary documents for review and, central to
this case, proposed to make them available for examination by
other players in the cable industry on an expedited schedule.
Concerned that those documents would reveal information about
their own dealings, petitioners—several other large
entertainment companies—asked the Commission to reconsider.
The Commission refused. Because, for the reasons set forth in
this opinion, we find the Commission’s action both
3
substantively and procedurally flawed, we grant the petition for
review and vacate the order.
I.
The Communications Act of 1934 requires the Commission
to review cable-company mergers. 47 U.S.C. § 310. The heart of
that mandate, section 310(d), prohibits any merger unless it
serves “the public interest, convenience, and necessity.” To
assess a particular merger, the Commission has long required the
parties to submit information about their business. In the context
of cable-company mergers, that information usually includes key
affiliate contracts and negotiation documents. To help it better
understand those materials, the Commission has on occasion
asked third parties—usually people with insight into the specific
industry—to review and comment on them. See Examination of
Current Policy Concerning the Treatment of Confidential
Information Submitted to the Commission, 13 F.C.C.R. 24816,
24831 (1998) (¶ 21) (“Confidential Information Policy”) (“In
recent years, the Commission has . . . permitt[ed] limited
disclosure for a specific public purpose.”).
The issues in this case arise in the context of two proposed
mergers: AT&T seeks to join forces with DirecTV, and, until
recently, Comcast wanted to combine with Time Warner Cable
and Charter Communications. (On April 24, Comcast and Time
Warner dropped their merger bid. See Shalini Ramachandran,
Comcast Kills Time Warner Cable Deal, WALL STREET
JOURNAL, Apr. 24, 2015, available at http://goo.gl/vPG1hh.)
Because the original merger applicants made up five of the
world’s seven largest video-programming distributors, the
Commission requested that they submit for review certain
documents that it believed would help it evaluate these
important corporate marriages.
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We can best explain why the Commission needs such
documents with a hypothetical. Suppose DirecTV is eager for its
customers to have access to ESPN—ESPN being the most-
watched cable channel among the key 18–49 demographic
group. See Rick Kessell, ESPN No. 1 in Cable Ratings for 2014,
VARIETY.COM, available at http://goo.gl/QQG2Bp. If DirecTV
wishes to offer ESPN to its subscribers, it will have to negotiate
a price with Disney, which owns the channel. Likewise, AT&T
will have to reach its own deal with Disney if it wants to offer its
customers the same sports package DirecTV does. And when
DirecTV and AT&T ask for permission to merge, this
information—what kind of a deal DirecTV agrees to with
Disney, and how AT&T’s compares—could help the
Commission understand what the market would look like if the
two cable companies combined.
Petitioners—CBS, Viacom, Disney, and several other
content producers—have no complaint about the Commission’s
decision to review that information. In fact, they seem quite
eager for the Commission to take a hard look at the proposed
merger, and they agree that those contracts and negotiating
documents are important to the process. They worry, however,
that the Commission plans to show that information to third
parties and that their own proprietary documents have gotten
caught up in the dragnet.
For example, suppose the Commission discloses the
DirecTV and AT&T contracts described earlier. Although the
decision to make this kind of proprietary business material
available to outsiders is not always popular, the Commission
maintains, it is the price of doing business. If two companies
want to merge, they must prove that the merger is in the public
interest, and to do so they often have to release some
information. If the Commission gives third parties access to
information about the merger applicants’ dealings with ESPN
5
and Disney, however, more than just the applicants will be
affected. For instance, by disclosing AT&T’s contracts with
Disney, the Commission will necessarily be disclosing Disney’s
contracts with AT&T. It would therefore be a simple matter for,
say, Fox to peruse those documents, figure out what Disney
charges for ESPN, and then price its own sports channel
accordingly. Not having signed up for that exposure, petitioners
think it unfair and, more important for our purposes, unlawful.
Specifically, they argue that such disclosure is precluded by the
Trade Secrets Act, which prohibits disclosing sensitive business
information unless “authorized by law,” 18 U.S.C. § 1905, as
well as the Commission’s own regulations and internal policies,
which provide that a “persuasive showing as to the reasons for
inspection will be required,” 47 C.F.R. § 0.457(d)(1), that
disclosure must serve a “compelling public interest,” that the
benefits of disclosure must outweigh the costs, and that the
underlying documents must be “necessary” to the review
process. Confidential Information Policy at 24820–21, 24824
(¶¶ 5, 8).
The Commission has been sensitive to those concerns.
Indeed, recognizing that its disclosure decisions could have
significant collateral consequences, the Commission has long
worked to ensure that confidential materials are as protected as
possible—while also serving the public’s interest in meaningful
merger review—by using protective orders. According to the
Commission, such orders “can provide the benefit of protecting
competitively valuable information while permitting limited
disclosure for a specific public purpose.” Id. at 24831 (¶ 21); see
also News Corp.-Liberty Media Corp., 22 F.C.C.R. 12797,
12798–804 (2007) (same).
In petitioners’ view, however, the Commission has not done
enough to protect their information, which has come to be
known as Video Programming Confidential Information, or
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VPCI. Throughout the merger-review process, the Commission
permitted third parties to access highly confidential information,
including VPCI. Although the protective orders contained
certain safeguards to mitigate the risk of unauthorized
disclosure, those protections centered on the merger applicants.
For instance, the orders permitted only outside counsel and
outside consultants not involved in “Competitive Decision-
Making”—that is, negotiating or advising on contracts between
a company and one of the merger applicants—to access VPCI,
and it allowed only the merger applicants to object to disclosure.
See, e.g., Joint Protective Order, Joint App. 246–47, 249–50 (¶¶
2, 7) (April 4, 2014). Petitioners filed comments contesting the
Commission’s decision to disclose VPCI, contending that the
only effective way to address their concerns would be for the
Commission to forgo disclosure of these materials entirely and
instead to review them in secret.
In response to those concerns, the Commission’s Media
Bureau sought public comment on possible additional
procedural protections. After considering those comments, on
October 7, 2014—and here the dates are relevant to the
procedural issue before us—the Bureau issued an order that,
though continuing to permit disclosure to any potential
commenter not engaged in Competitive Decision-Making,
adopted additional procedures to protect third parties from
competitive harm. Among other steps, the order expanded the
definition of “Competitive Decision-Making” to include outside
counsel and consultants working for entities in competition with
any party having an interest in VPCI, not just those in
competition with the merger applicants. It also allowed such
interested third parties, not just the merger applicants, to object
to disclosure. See Modified Joint Protective Order, Joint App.
135–36 (¶¶ 2, 7–8, 10) (October 7, 2014) (“October Bureau
Order”).
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That last protection is critical. The October Bureau Order—
like, petitioners submit, all such orders before it—would have
prevented disclosure of confidential information “[u]ntil any
objection is resolved by the Commission and, if appropriate, by
any court of competent jurisdiction.” Id. ¶ 8. By guaranteeing
agency and judicial review, the order would have prevented
hasty and potentially ill-conceived disclosure decisions.
Petitioners no doubt applauded that review provision, but it
turned out to have an exceedingly short half-life.
Soon after the Bureau issued its October Order,
individuals—mostly representatives of the merger applicants and
other entities interested in the outcome of the proposed
mergers—began filing requests for access to VPCI. Concerned
that some of those individuals also happened to represent direct
competitors, petitioners, on October 15, filed objections to all
these requests. Because the Bureau believed that this broad
challenge would effectively stall VPCI disclosure and therefore
delay the merger-review process until the Commission and a
court could adjudicate each of those objections, it announced on
November 4 that it would reconsider the October Order. In its
decision on reconsideration, the Bureau reaffirmed that VPCI
“must be part of the record available to commenters, subject to
the multiple protections in the . . . Protective Order[] that
minimize any risk of competitive harm as a result of the
production.” Order on Reconsideration, Joint App. 36 (¶ 17)
(November 4, 2014) (“November Bureau Order”). The Bureau
also amended the protective order in one respect central to the
issues before us: it truncated the process for challenging and
reviewing VPCI-access requests. Under the new order,
individuals seeking to view VPCI would be allowed access just
five days after the Bureau—not the Commission or a court—
rejects any objections. Id. at 45 (¶ 36).
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According to the Bureau, with that decision it sought to
balance the “opportunity for the consideration of legitimate
objections” with the need to “proceed[] with the merger review
in a timely manner.” Id. By contrast, petitioners pointed out in a
request for further review that as a result of the latest order,
within five days of a Bureau decision granting access to VPCI,
any objection must be filed with the Commission, and, even if
the Commission issues a decision in time, the objection must be
raised in a court in an emergency proceeding. Again, all within
five days—a requirement that two commissioners strongly
criticized. See Order, Joint App. 3–4 (Dissenting Statement of
Commissioner Pai), 5 (Dissenting Statement of Commissioner
O’Reilly) (November 10, 2014) (“November Commission
Order”).
In an order issued November 10, the Commission denied
petitioners’ application for review and, “for the reasons stated by
the Media Bureau,” affirmed the amended protective order.
November Commission Order ¶ 1. To give the parties time to
seek judicial review of that order, the Commission delayed
access to VPCI for seven calendar days. Id. ¶ 3. Taking the
Commission up on that offer, petitioners sought review in this
court, arguing both that the decision to disclose VPCI at all was
unlawful and that the five-day process was inconsistent with past
agency practice. At the same time, they sought an emergency
stay pending review. In granting that petition, this court’s
Special Panel noted that although the stay precluded third-party
access to VPCI, “[t]he agency has access to the relevant
documents at issue in this matter and can continue to evaluate
the proposed merger during the stay.” Order, CBS Corporation
v. Federal Communications Commission, No. 14-1242 (Nov. 21,
2014).
The dispute here, then, boils down to the following: May
the Commission disclose petitioners’ confidential information to
9
third parties and may it do so on a timeline so swift as to
effectively preclude judicial review? We consider these issues in
turn.
II.
We begin with petitioners’ substantive challenge to the
Commission’s decision to disclose their VPCI, and we look first
to the relevant text. See 5 U.S.C. § 706(2)(A), (E) (agency’s
application of statute and implementing regulations shall be “set
aside” if “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law”). In this case, that text
consists of the Trade Secrets Act, the Commission’s regulations,
and its Confidential Information Policy.
Partly a response to government mishandling of confidential
business information, the Trade Secrets Act makes it criminal
for government officials to publish such information unless
disclosure is “authorized by law.” 18 U.S.C. § 1905. In this case,
the Commission’s regulations provide the necessary authority:
although “[t]rade secrets . . . are not routinely available for
public inspection,” the Commission may, despite the Act’s near-
categorical protection, disclose private information upon a
“persuasive showing as to the reasons” for doing so. 47 C.F.R.
§ 0.457(d)(1), (2).
This case presents two questions: what exactly does that
persuasive showing entail, and has the Commission made its
case? Before considering those questions, however, we need to
address an antecedent issue: must the Commission make a
persuasive showing in cases like this one at all? We ask that
question because the regulations say only that “a persuasive
showing as to the reasons for inspection will be required in
requests for inspection.” 47 C.F.R. § 0.457(d)(2). The
regulations say nothing about what should happen where, as
here, the Commission decides to disclose confidential
10
documents on its own, not in response to a request. The
Confidential Information Policy—a document the Commission
wrote ostensibly to clarify the contours of its approach to the
kind of private documents at issue here—is no more helpful.
Framing the persuasive-showing mandate almost entirely in the
passive voice, the Policy allows disclosure if “‘a persuasive
showing’ is made,” Confidential Information Policy at 24822 (¶
8) (emphasis added), and requires the Commission to determine
that a “‘persuasive showing’ has been made to warrant
disclosure,” id. at 24821 (¶ 6) (emphasis added). But made by
whom—the requester or the Commission? And what happens if
there is no requester and the Commission decides to disclose
confidential information on its own initiative? The Policy
provides no answers.
Notwithstanding this confusion, the Bureau concluded in its
November Order that it must make the persuasive-showing
finding whether or not someone requested disclosure.
Specifically, it observed that section 0.457(d) “permit[s]
disclosure” of confidential information “on a ‘persuasive
showing’ of the reasons in favor of its release.” November
Bureau Order ¶ 23. Commission counsel admitted as much at
oral argument. See Oral Argument Recording at 22:02 (“I think
we’re in a world where the persuasive-showing standard
applies.”). For purposes of this opinion, we shall therefore
assume that the persuasive-showing standard applies to the
Commission’s disclosure of petitioners’ documents and, because
there is no requester, the Commission itself must satisfy the
requirement. See Thomas Jefferson University v. Shalala, 512
U.S. 504, 512 (“We must give substantial deference to an
agency’s interpretation of its own regulations.”).
With this issue out of the way, we turn to the first of our
two questions: What must the “persuasive showing” look like?
To answer that question, we return to the Confidential
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Information Policy. In places the Policy appears to make clear
exactly what is required: The Commission permits disclosure
where it “has identified a compelling public interest in
disclosure,” and “the rules also contemplate that the
Commission will engage in a balancing of the interests favoring
disclosure and nondisclosure.” Confidential Information Policy
at 24822 (¶ 8). But even if the Commission finds that the public
interest and the balance of equities favor disclosure, it will “not
automatically authorize . . . release of such information.” Rather,
“the Commission has adhered to a policy of not authorizing the
disclosure of confidential financial information on the mere
chance that it might be helpful, but insists upon a showing that
the information is a necessary link in a chain of evidence that
will resolve an issue before the Commission.” Id. at 24823 (¶ 8)
(internal quotation marks omitted).
If that were all the Confidential Information Policy had to
say on the matter, we could stop there: in order to justify
disclosure to third parties, the Commission would have to
demonstrate that “necessary link.” But in Paragraph 17, which
the Bureau never mentioned in its November Order, the Policy
casts some doubt on that requirement: “Because [the
Commission] believe[s] that a case-by-case determination is
most appropriate . . . [it] decline[d] to adopt a blanket rule
requiring the requester to demonstrate that access is ‘vital’ to the
conduct of a proceeding [or] necessary to the ‘fundamental
integrity’ of the Commission process at issue.” Id. at 24829
(¶ 17).
What, then, must the Bureau do to justify disclosing
confidential business information? In its November Order
interpreting the Confidential Information Policy, the Bureau
acknowledged that its “persuasive showing” must include
“identif[ying] a compelling public interest in disclosure” and
that “[t]he rules also contemplate that the Commission will
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engage in a balancing of the interests favoring disclosure and
nondisclosure.” November Bureau Order ¶ 23. Although the
Bureau lifted these requirements wholesale from the first two
sentences of Paragraph 8 of the Policy, it inexplicably failed to
include the next sentence, which, recall, makes up a major part
of that same paragraph: The Commission will “not automatically
authorize . . . release of such information” just because
disclosure is in the public interest or because the information
will be helpful to the process. Instead, the information must
serve as a “necessary link in a chain of evidence.” Confidential
Information Policy at 24822–23 (¶ 8). The Bureau believed the
first half of that paragraph binding. It has given no reason why
the second half—the necessary-link requirement—should not
also control. In these circumstances, and notwithstanding
Paragraph 17’s enigmatic and unexplained language, we
conclude that Paragraph 8’s necessary-link finding is an
unavoidable component of the persuasive showing the
regulations require.
To sum up: to make the persuasive showing necessary to
disclose petitioners’ confidential documents, the Commission
must explain (1) why disclosure is in the public interest, (2) why
it is a good idea on balance, and (3) why the information serves
as a “necessary link in a chain of evidence.” The Bureau’s
November Order easily clears the first two bars. The benefits to
the public are obvious: third-party review of VPCI documents
will ensure a sounder decision. If “a large number of . . .
documents [were excluded] from review by commenters,” “it
would deprive the commenters of the opportunity to argue that
the documents have significance in ways that are not apparent to
the Commission.” November Bureau Order ¶ 16. This different
perspective on materials that the Commission is considering
facilitates informed decision making. At the same time,
petitioners have offered no evidence that the Commission will
countenance disclosure of the kind described earlier—say,
13
allowing executives at Fox to see Disney’s contracts. And we
have reason to doubt that they could make that case, as the
governing Protective Orders limit VPCI access to “outside
counsel of record” and “outside consultants” who are not
“involved in Competitive Decision-Making.” See October
Bureau Order at 2. The new order also confirms that anyone who
obtains access to VPCI may use it “solely for the preparation for
and conduct of [the merger] proceeding.” Id. ¶ 6. The risks
involved in disclosure thus appear minimal. Accordingly,
disclosure would serve the public’s interest in a thorough review
process, and the benefits outweigh the harms.
But the Commission falters at the last requirement: the
confidential information must be necessary to the Commission’s
review process. In its Order, the Bureau concluded that VPCI is
“highly relevant . . . to the pending transactions”—even
“central.” November Bureau Order ¶ 23. In normal parlance,
however, “relevant” and “central” are not the same as
“necessary.” Something is “relevant” if it merely “ha[s]
significant and demonstrable bearing on the matter at hand.”
WEBSTER’S NEW COLLEGIATE DICTIONARY 976 (Henry Bosley
Woolf, ed., 1977). A piece of information is “central” if it is “of
cardinal importance.” Id. at 181. By contrast, something is
“necessary” only if it is “absolutely needed” or “required.” Id. at
767.
We think this linguistic distinction makes the best sense of
all relevant texts. The Trade Secrets Act exists for an important
reason—Congress has decided that confidential business
information should be private unless there’s good cause to
disclose it—and the Commission recognizes as much: its
regulations acknowledge that “[t]rade secrets . . . [are] not
routinely available for public inspection,” 47 C.F.R. § 0.457(d),
and the Confidential Information Policy makes clear that
disclosure will not be “automatic[]” but will instead be proper
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only in limited circumstances, Confidential Information Policy
at 24822–23 (¶ 8). By contrast, because corporate business
documents will almost always be relevant to a merger between
two industry participants, allowing the Commission to disclose
confidential information based on mere relevance would mean
that such information would, subject to the governing protective
orders, be routinely available for inspection. We must read the
statute and the Commission’s precedents to avoid that
construction if we are to be faithful to Congress’s plan and to the
Commission’s own historical approach.
Consistent with that goal, this court has affirmed the
relevant/necessary dichotomy in a nearly identical situation. In
Qwest v. Federal Communications Commission, we decided that
a general desire to permit broad public participation, or even an
interest in a more effective decision-making process, must yield
when sensitive information will be disclosed to competitors. See
229 F.3d 1172, 1180–84 (D.C. Cir. 2000). The question in that
case, much like the question here, was whether the Commission
could release private business data to supplement its own audit
procedures. The Commission argued, as it does here, that it
would get “useful information about the accuracy and validity of
the audits” if “commenters were allowed to examine how those
general procedures were actually implemented.” Id. at 1183. We
held that although “broad[] comment [might have] greatly
assist[ed] the Commission in resolving the issues” before it, the
Confidential Information Policy suggests that “assistance” is not
enough. Instead, disclosure is proper only if the information
disclosed is absolutely necessary to the process. In that case, we
thought it “unclear why” that information was necessary,
observing that the audit methodology could be “evaluated in
theoretical terms as applied to hypothetical situations or to a
composite of raw data without identifying an individual[’s]
sensitive commercial information.” We also noted that “[o]ther
ways of avoiding the release of raw audit data to competitors
15
might be equally effective for the Commission’s purposes.” Id.
Crucially, the petitioners had failed even to offer an alternative,
yet it was enough for the court that “on the basis of the record,
[it could not] tell that other ways would not be equally
effective.” Id.
So too here. We have no doubt that petitioners’ VPCI, as
well as commenter analysis of it, would be helpful to the
Commission’s evaluation of the proposed mergers since those
documents “contain[] information that is central to the
contracting parties’ . . . business strategies.” October Bureau
Order ¶ 13. And review of those business strategies is in turn
essential to the Commission’s merger-review process, as “[a]
critical issue” in that process is how each proposed transaction
“will alter the incentives and abilities of the resultant companies
as they bargain with [programmers].” November Bureau Order
¶ 11. The private documents at issue here thus “provide what is
likely the best evidence available to test the validity of
allegations as to how incentives and abilities . . . vary with size,
integration, and other characteristics that the transactions would
alter.” Id. Are the documents relevant? Absolutely. Important?
Sure. Central? Probably. The Commission would thus be
derelict if it failed to consider VPCI as it evaluates the proposed
mergers.
But to justify disclosure, the information must be
“necessary” to the Commission’s review process. Otherwise,
Congress and the Commission have decided, the risk to the
affected businesses will not be worth it. And we simply have no
idea whether VPCI is necessary to that process. It might be, for
example, that, as in Qwest, other information—or information in
another, less compromising form—could be sufficient to analyze
the merger. Nowhere does either the Bureau or the Commission
make the jump from useful or relevant or central to necessary.
16
In short, by failing to explain why VPCI is a “necessary link
in a chain of evidence that will resolve an issue before the
Commission,” the Commission has failed to overcome its—and
Congress’s—presumption against disclosure of confidential
information. We shall therefore vacate the Commission’s Order.
With that conclusion established, we turn to one more
interpretive issue that deserves mention. Although the
Confidential Information Policy makes it apparent that the
Commission must show that something is a “necessary link in a
chain of evidence,” the key passage is susceptible to two
interpretations. The Commission will “not authorize disclosure
of confidential financial information on the mere chance that it
might be helpful, but insists upon a showing that the information
is a necessary link in a chain of evidence.” Confidential
Information Policy at 24823 (¶ 8). But what does “it” refer to?
And which “information” must be necessary: the information
gleaned from third parties or the confidential information itself?
Looking at the two clauses of the sentence together, we read the
“information” referred to in the second clause to describe the
confidential information at issue—after all, the word
“information” in the first clause refers to those confidential
documents—and, consequently, we take the “it” to refer to that
same confidential information. So, replacing the pronoun with
“that confidential information,” we believe the Commission
meant to say this: it will “not authorize disclosure of confidential
financial information on the mere chance that [that confidential
information] might be helpful, but insists upon a showing that
the [confidential] information is a necessary link in a chain of
evidence.” In other words, we understand the Commission to be
saying that it will not allow outsiders to view confidential
information unless the information itself is necessary to the
evaluation process. This makes sense. In order to vindicate the
goals of the Trade Secrets Act, the Commission will refuse to
disclose confidential documents unless it has a good reason to
17
do so—namely, that it would benefit from third-party comment
on information that is necessary to the review process.
Although this understanding has guided our analysis, we
note that even if the Commission meant to say in Paragraph 8 of
the Confidential Information Policy that disclosure—not the
information itself—must be a “necessary link,” the agency still
failed to make its case. This is because in adopting the
governing protective orders, the Commission made no effort to
explain how disclosure of VPCI to any and every qualifying
entity that might file a comment in this proceeding is necessary
to the process. The potential commenter’s willingness to sign the
protective order does not, as the Commission would have it,
answer this question by itself.
In reaching these conclusions, we emphasize that we have
done our best to make sense of the confusing and often
contradictory materials in light of the Commission’s own stated
understanding of them. Given this, we take no position on what
the Commission should do next. When it reconsiders its
disclosure order, the Commission is free to clarify its current
policy or to amend it. It may, for instance, explain who must
make the required “persuasive showing”; what must be a
“necessary link in a chain of evidence”—the confidential
information itself or third-party comments on it; and whether
“necessity” is the standard at all.
III.
This brings us to petitioners’ procedural challenge. When an
agency departs from past practice, it “must provide a reasoned
analysis indicating that prior policies and standards are being
deliberately changed, not casually ignored.” Ramaprakash v.
Federal Aviation Administration, 346 F.3d 1121, 1124 (D.C.
Cir. 2003) (internal quotation marks omitted). It must, in short,
explain why it has changed its policy. Until November 2014,
18
when the Bureau ordered disclosure of petitioners’ sensitive
business information, the Commission always allowed aggrieved
parties to seek review at the agency level and, if necessary, by a
court—all before the Bureau could disclose the information.
Indeed, as the Commission has made clear, it has long
recognized that confidential information should remain
confidential until the merits of a disclosure decision have been
fully resolved. See Confidential Information Policy at 24832,
24856–57.
That practice makes sense given that review can be effective
only if it occurs before confidential information is disclosed to
third parties. “Disclosure followed by appeal after final
judgment is obviously not adequate in such cases—the cat is out
of the bag.” In re Papandreou, 139 F.3d 247, 251 (D.C. Cir.
1998); see also Ruckleshaus v. Monsanto Co., 463 U.S. 1315,
1317 (1983) (once trade secrets are disclosed, they cannot “be
made secret again if the judgment below ultimately is”
reversed).
The November Bureau Order, however, eliminates pre-
disclosure review. If the Bureau orders disclosure, it may now
make the documents in question available to third parties “five
business days after” it resolves any “objection . . . in favor of the
person seeking access,” even if neither the Commission nor a
court has had an opportunity to weigh in. November Bureau
Order ¶ 8. So under the new protective orders, aggrieved parties
like petitioners have only five days to challenge the Bureau’s
decision to disclose their information, and if they fail to
convince the Commission or a court either to stay or to overturn
that decision, they are out of luck.
The Order thus amounts to a substantive and important
departure from prior Commission policy. According to
petitioners, the Commission has failed entirely to acknowledge
this difference, much less to explain it. For its part, the
19
Commission insists that it has met its obligation to explain a
departure from prior policy, pointing to Paragraph 36 of the
Bureau’s November 4 Order. Because that paragraph represents
the Commission’s entire explanation, we think it worth quoting
almost in full. The Bureau begins by announcing that it is
“amend[ing] paragraph 8 of the Modified Joint Protective
Orders to remove any doubt about whether a party is able to
suspend indefinitely another party’s (or every other party’s)
effective participation in the proceeding simply by filing an
objection.” November Bureau Order ¶ 36. After reciting the new
five-day rule and before doing some housekeeping, the Bureau
stated that “this approach provides an appropriate balance
between providing ample opportunity for the consideration of
legitimate objections and proceeding with the merger review in a
timely manner.” Id.
In our view, the Commission has failed to make its case.
For starters, although the Commission concedes that the Bureau
has changed the governing protective orders, the Bureau
acknowledged nowhere in its Order that the new rule departs
from longstanding practice. The Commission insists that by
adding the five-day rule to the protective order, the Bureau did
acknowledge that it was breaking from precedent. That is, the
Bureau acknowledged the departure—by departing. This, of
course, is completely insufficient. An agency must “provide a
reasoned analysis indicating that prior policies are being
deliberately changed.” Ramaprakash, 346 F.3d at 1124
(emphasis added) (internal quotation marks omitted).
In the alternative, the Commission argues that by
acknowledging it was altering the protective orders, the Bureau
recognized the larger policy shift. But admitting to a technical
change in the governing documents is a far cry from
acknowledging a fundamental departure from longstanding
20
policy. Instead, it seems like the old policy is being “casually
ignored.” Id.
On this issue, then, the Commission begins in a deep hole.
Worse still, it offers an exceedingly thin rationale for the new
rule. By suggesting that the five-day rule prevents a party from
getting in the way of another party’s effective participation in the
process, we take the Commission to be saying that the Bureau
was concerned about a large number of protests gumming up the
works, and that a five-day time limit to raise such concerns
would avoid that consequence. We see two serious problems
with this rationale.
First, the Commission never explains how the old rule,
which precluded disclosure until a court had a chance to weigh
in if necessary, actually slowed things down. As the Special
Panel observed in its order granting a stay in this case,
petitioners’ objections do not prevent the Commission from
accessing VPCI and conducting its review of the proposed
mergers. In fact, the stay prevented the Commission neither from
restarting its internal clock for completing its review of the
proposed transactions—at least for a time, see Public Notice
(DA 14-1739) (Dec. 3, 2014), available at
http://goo.gl/hvNlDX—nor from issuing additional data requests
to the merger parties, nor from setting new schedules requiring
all submissions in both merger proceedings to be filed by mid-
January 2015, id.
The Commission’s claim that the Bureau adopted the
shortened review procedure because petitioners have “abus[ed]
the objection process” by challenging every one of the 266
requests for access to VPCI rests on a similarly flawed premise.
The vast majority of those challenges—some 230—were general
challenges to the disclosure of VPCI. Because neither the
Commission nor the court had yet ruled on the propriety of
disclosing VPCI when petitioners filed their objections, how
21
could anyone think that petitioners abused the process by
bringing those concerns to the agency’s attention? In other
words, given the Commission’s failure to act on petitioners’
intra-agency appeal and emergency stay request, the objection
process represented the only administrative avenue open to
petitioners to protect their right to meaningful pre-disclosure
review. And finally, because, as the Commission itself pointed
out in another context, few complex challenges will remain once
the global challenge is resolved, the review process is unlikely to
get bogged down even without the expedited, five-day rule.
Moreover, even were speed a potential concern, the
Commission has failed to explain why expedited review is so
important here given that it has followed the old rule through
dozens of merger reviews over the last fifteen years. See In the
Matter of Examination of Current Policy Concerning the
Treatment of Confidential Information Submitted to the
Commission, 14 F.C.C.R. 20128 (1999) (¶ 4) (providing for pre-
disclosure judicial review even though “disclosure [could] be
delayed pending the appeals process”). So why not continue to
allow pre-disclosure review? Companies like petitioners often
oppose disclosure, and given the competitive stakes it seems
safe to assume that companies opposing disclosure will
challenge it in court. Are there usually fewer challengers? Fewer
challenges? Nothing in either the Bureau’s Order or the
Commission’s brief sheds any light.
We conclude with a cautionary observation. Although
petitioners emphasized their departure-from-past-practice
argument, they suggest a substantive concern as well: “the
Operative Protective Orders fail to give Petitioners a meaningful
opportunity to ensure” that they “will not be harmed by
disclosure.” Petitioners’ Br. 17. We share petitioners’
apprehension about a process that puts tremendous pressure on
the Commission, the parties, and this court to get their ducks in a
22
row in a short time. We say this not to prejudge the question, but
simply to emphasize to the Commission that should it choose to
retain the five-day rule, it must not only come forward with a
“reasoned analysis” for this dramatic break from the past, but
also explain why speed is so important as to justify limiting one
of the fundamental principles of administrative law—judicial
review. See Mach Mining, LLC v. Equal Employment
Opportunity Commission, 575 U.S. (2015), slip op. at 8
(reiterating and explaining the “strong presumption favoring
judicial review of administrative action”).
IV.
For the foregoing reasons, we grant the petition for review
and vacate the Commission’s order.
So Ordered.