Nexstar Media Inc. v. Comcast Cable Communications, LLC

Opinion

COVINGTON Mitchell A. Kamin BEIJING BRUSSELS DUSA| FRANKFURT JOHANNESBURG Covington & Burling LLP LONDON LOS ANGELES NEW YORK PALO ALTO 1999 Avenue of the Stars SAN FRANCISCO SEQUL SHANGHAL WASHINGTON Los Angeles, CA 90067-4643 APPLICATION GRANTED — 1 riazsasza7s9 of, | sO ORDERED ™m amin@cov.com

Via Electronic Filing —7 “John G. Koelll, US.D.J. October 13, 2021 The Honorable John G, Koeltl United States District Court for the Southern District of New York Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York, NY 10007-1312

Re: Nexstar Media Inc. v. Comcast Cable Communications, LLC 21 Civ. 06860 (JGK) Dear Judge Koeltl: We represent plaintiff Nexstar Media Inc. (“Nexstar”) in the above-captioned action against defendant Comcast Cable Communication, LLC (“Comcast”). We respectfully submit this letter-motion to request permission to redact confidential, commercially sensitive material in the publicly filed versions of (a) Nexstar’s Opposition to Comcast’s Motion to Stay or Dismiss the Complaint (“Opposition”); and (b) the Declaration of Elizabeth Ryder in Support of Nexstar’s Opposition (“Declaration”). Nexstar has met and conferred with Comcast, and Comcast does not oppose this letter-motion. The Opposition and Declaration reference the substance of correspondence that discusses commercially sensitive retransmission consent agreements and confidential negotiations surrounding the agreements. These agreements are extremely commercially sensitive and contain price rates and other terms that would disadvantage both parties if made available to competitors. The Opposition and Declaration also discuss commercially sensitive communications with the FCC. The Court has previously approved of redacting similar references in Comcast’s motion. See ECF No. 24. The Second Circuit has recognized the appropriateness of sealing confidential information. See, e.g., DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 826 (2nd Cir. 1997) (upholding trial court’s decision to “safeguard . .. confidential material” by placing documents under seal). “Notwithstanding the presumption of public access to judicial records, courts may deny access to records that are ‘sources of business information that might harm a litigant’s competitive standing.’” In re Parmalat Sec. Litig., 258 F.R.D. 236, 244 (8.D.N.Y. 2009) (quoting Nixon v. Warner Comime’ns, Inc., 435 U.S, 589, 598 (1978)). Disclosure of Nexstar’s pricing terms, and its communications discussing the terms, would severely harm Nexstar in future negotiations with cable companies for similar agreements. See Graczyk y. Verizon

COVINGTON Hon. John G. Koeltl October 13, 2021 : Page 2

Comme'ns, Inc,, 2020 WL 1435031, at *8 (8.D.N.Y. Mar. 24, 2020) (sealing financial terms where, if disclosed, party “would suffer a competitive disadvantage in future negotiations with vendors” of similar services). Similarly, courts in this district may redact mentions of communications with regulatory agencies that reflect “sensitive business information.” See, e.g., Hanks v. Voya Ret. Ins. & Annuity Co., No. 16-cv-6399, 2021 WL 2451981, at *2 (S.D.N.Y. June 16, 2021). The Opposition and Declaration reference communications with the FCC regarding Comcast’s petition to the FCC. Because the petition contains commercially sensitive agreement terms, Comcast requested “enhanced confidential treatment” of the petition by the FCC under Exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4). Again, the Court has previously approved of redacting similar references in Comcast’s motion. See ECF No. 24. Pursuant to this Court’s Individual Practices, we are contemporaneously submitting publicly filed versions of the Opposition and Declaration with Nexstar’s proposed redactions, as well as unredacted versions filed under seal with Nexstar’s proposed redactions highlighted. We are also available to provide any information that may aid the Court in its determination of this matter. Respectfully submitted, /s/ Mitchell A. Kamin Mitchell A. Kamin, Esq. ce: Counsel of Record (via ECF)