The fees local broadcasters charge Click Cable TV’s roughly 22,000 subscribers are potentially a trade secret that should not be made public – at least, not by his court.
That’s essentially what Pierce County Superior Court Judge Ronald Culpepper decided Friday by granting a preliminary injunction to block the city-owned cable network from releasing its so-called “retransmission consent agreements” to The News Tribune.
“I don’t really like this decision too much, because I’m a great believer in the Public Records Act,” Culpepper said. “… But I also have concerns about the effects this could have on the Click Network” if the records in question were released.
James Beck, an attorney for the newspaper, said The News Tribune plans to appeal Culpepper’s ruling to the Washington Court of Appeals based on the public’s “right to know how its government operates.”
“The Public Records Act states that the people `do not give their public servants the right to decide what is good for the people to know,’” Beck added. “But unfortunately, this is exactly what occurred Friday when the public was denied the right to inspect a government contract.”
At issue is whether the fees KOMO, KING, KIRO and other local broadcasters charge Click – Washington’s only publicly-owned cable network – constitute protected trade secrets or whether they’re public contracts subject to disclosure under the state’s records act.
The newspaper sought copies of the fee agreements in February, after Click and Fisher Communications – KOMO’s corporate owner — settled a new three-year fee deal. Those negotiations, which stalled for more than a month, led Fisher to pull six stations off of Click for all of January. After a new deal was struck, the stations were restored, but neither Click nor KOMO provided details about the newly negotiated fees.
After The News Tribune requested the agreements, city attorneys for Click determined they were public records. But the network provided the newspaper only copies for some with all fee information blacked out. Four of the broadcasters later sued Click and The News Tribune to block full disclosure; a fifth broadcast company also intervened on the case.
On Friday, the broadcasters’ lawyers argued the fee information constitutes a trade secret exempt from disclosure because such prices are routinely negotiated in secret industry-wide to protect both corporate bargaining positions and consumers from pricing collusion.
If disclosed, they claimed, public awareness about Tacoma’s fees could financially harm broadcasters and alternatively set a negotiating floor for retransmission fees nationwide, driving up prices for consumers.
“The highest fee being paid by Click today will be the starting point,” said Duane Swinton, a lawyer who represented three of the companies.
Judith Endejan, Fisher’s attorney, added if the fees became public, local broadcasters with agreements with Click all likely would seek to raise their fees in the future, or avoid new contracts with the publicly-owned network, leading Click to lose channels and customers and fall “into a downward death spiral.”
“That’s not just hyperbolic speculation,” Endejan added. “That’s the hard, cruel fact of the broadcast world.”
Beck countered that broadcasters who carried out such threats would violate federal anti-trust laws. He added the fees simply didn’t meet a trade secret threshold of being “novel” information.
“This isn’t a secret formula, like WD-40,” Beck said. “There’s nothing novel about a government contract.”
But Culpepper disagreed, ruling the “information has some value partly because it’s confidential.”
He added he harbored concerns “about the potential ripple effect” disclosure could cause on programming fees elsewhere and “the potential to damage Click.”
By granting the injunction, Culpepper said he sought to “maintain the status quo” until a court could permanently decide the issue.
“I look forward to the Court of Appeals’ decision,” he said.