Court of Appeals hears arguments between broadcasters and TNT

Staff writerJune 30, 2014 

Court of Appeals judges heard oral arguments Monday morning in a case that pits Seattle broadcasters against The News Tribune.

At issue is whether sections of contracts between the city of Tacoma’s cable system and Seattle broadcasters can be kept secret. Pierce County Superior Court Judge Ronald Culpepper ruled last year that how much Click Cable TV pays the broadcasters to retransmit their free, over-the-air signal is a trade secret.

Broadcasters argued Monday that their business deals with Click contain closely guarded, highly sensitive commercial information that if released would put them at a disadvantage with their competitors. They claim that the Public Records Act, in recognizing the federal Uniform Trade Secrets Act, protects the information.

“While the Public Records Act is broad, it is not unfettered,” CBS attorney Jaime Drozd Allen said.

James Beck, attorney for The News Tribune, argued for disclosure, saying that the contract details don’t qualify as trade secrets. In addition to the fees the city pays to broadcasters, the contracts contain “non-financial considerations.”

“The public has a great interest in knowing what the city is giving away in a contract,” Beck said.

The case stems from last year’s impasse between Fisher Communications and Tacoma that led Fisher to withhold the KOMO television signal from Click customers. After Tacoma agreed under protest to pay Fisher more money, The News Tribune requested copies of contracts between Seattle broadcasters and Click.

City attorneys decided the contracts should be released under the state’s Public Records Act, prompting lawsuits by broadcasters. They are suing both the newspaper and the city. But on Monday, the newspaper alone argued for disclosure, as three city of Tacoma employees, including Click general manager Tenzin Gyaltsen, looked on.

The three-judge panel quizzed both sides, but reserved most of its questions for broadcasters’ attorneys.

Judges Thomas Bjorgen and Rich Melnick zeroed in on how Culpepper had decided the contracts included trade secrets. Bjorgen asked if the judge, who was given copies of the contracts with portions blacked out, had also reviewed the contracts in their entirety in private.

No, Allen said: Such “review isn’t going to provide additional information in terms of whether something is, or is not a trade secret, or is or is not exempt (from the Public Records Act).” Further, Allen said, the court received 12 declarations, including those from broadcasters, supporting the trade secret exemption under the Public Records Act.

“Isn’t that a determination for the judge to make under the Public Records Act?” Melnick asked.

Allen said The News Tribune could have submitted evidence from other cable systems around the country to prove the information is not a trade secret.

“There is no such evidence,” she said.

However, an analysis by The News Tribune in March revealed steep increases in the fees the city of Tacoma pays to broadcasters.

The newspaper’s analysis revealed precise amounts the city paid to the broadcasters based on public records and information from a private company. But that information is not a part of the Court of Appeals case because the information was revealed after the lower court ruling.

The analysis showed that Fisher’s fees for four channels — KOMO, KUNS, This Seattle and Mundo Fox — increased from 33 cents per subscriber per month in 2009 to $1.33 in 2013.

In all, Click paid at least $4.3 million for retransmission fees to five broadcasters from 2009 through 2013. Retransmission fees are a small slice of what Click pays for programming, but they are cited as one reason why Click has raised rates six times since 2010.

In court Monday, broadcasters asked judges to use federal policy as a guide. Duane Swinton, attorney for the parent companies of KING, KONG, KCPQ and KIRO, said that court should follow the lead of the Federal Communications Commission, which he said has never released retransmission fee amounts.

“The FCC allows review in confidence and that policy should be upheld by this court,” Swinton said.

But Beck said the cases cited by the broadcasters concern the FCC acting as an adjudicator or regulator, not as a customer of the broadcasters. The FCC also relies on the federal Freedom of Information Act, which does not lean as far in favor of disclosure as the state’s records law.

“It’s critical for the public to understand how its government spends money … to assess whether the people approve of how the government’s operating,” Beck said after the hearing.

The Court of Appeals could issue its ruling in a few months.

Kate Martin: 253-597-8542 kate.martin@thenewstribune.com @KateReports

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