American Bar Association
Forum on Communications Law

The Need for FCC Merger Review

Harold Feld

For more than seventy years, the Fed-eral Communications Commission (FCC) and its predecessor, the Federal Radio Commission, have played an extensive role in regulating mergers in the mass media and telecommunications industry. Recently, this role has come under sustained attack both from outside the FCC and from within the FCC itself. This article will demonstrate not merely the statutory legitimacy, but the increased necessity of the FCC's merger review authority.

The first part of this article will describe the emerging criticism of the FCC's merger review authority. Critics charge that FCC review of mergers simply repeats the review performed by the specialized antitrust agencies, i.e., the Department of Justice Antitrust Division (DOJ) and the Federal Trade Commission (FTC), both of which conduct independent merger review under the authority granted by the Hart-Scott-Rodino Act (HSRA),1 causing merger applicants unnecessary expense and delay. Critics also maintain that the FCC is ill suited to manage the development of dynamic emerging technologies, and that its practice of examining the broad potential effects of mergers exceeds its statutory authority.

The last part of this article explains how FCC merger review plays a vital role in protecting the public's First Amendment right to diverse and antagonistic sources of information and continues to play a crucial role in the development of competitive telecommunications markets. Indeed, Congress explicitly required the FCC to "serve the public interest, convenience, and necessity" and to promote the development and deployment of new broadcast and communication technologies to all Americans.2

Nor, contrary to critics, has the advent of Internet technology rendered the agency's function obsolete. Although the Internet itself is new, and the pace of technological change continues with breathtaking speed, Congress designed the FCC to handle precisely this sort of phenomena. We take for granted the evolution of radio, television, and a national telephony network, but these technologies presented Congress with exactly the same issues that the Internet does today. Congress created the very tools derided by agency critics-the FCC's licensing authority review and its application of a public interest standard. Congress intended the FCC, as an expert agency, to use these tools to evaluate and guide the evolution of rapidly developing technologies that have the capacity to radically alter every aspect of American business and culture.3

Congress has revisited the question of the FCC's merger authority twice within the past ten years, each time leaving its authority intact. In 1992, Congress reregulated the cable industry4 and, as part of the 1992 Act, explicitly reaffirmed the existing antitrust scheme.5 The Telecommunications Act of 19966 represented a complete overhaul and modernization of the Communications Act of 1934, which superseded the Federal Radio Commission, touching on nearly every aspect of the FCC's authority. Significantly, although Congress made several changes to the FCC's antitrust authority,7 it did not alter the obligation that any license transfer must serve the public interest.

FCC's Merger Authority

Since 1927, the FCC and its predecessor, the Federal Radio Commission,8 have reviewed proposed transfers of licenses, including mergers, under the standard that all transfers must serve the public interest, convenience, and necessity.9 Although this standard is not open-ended, it gives the FCC considerable flexibility in evaluating the transfer.10 Significantly, traditional antitrust principles inform the FCC's analysis, but they do not control its action.11

The FCC may approve a transfer without conditions, reject a transfer as entirely inconsistent with the public interest, or approve a merger subject to conditions.12 Conditions can include a wide variety of remedies designed to further the FCC's public policy goals, such as promoting competition and diversity of viewpoint.13 Among other remedies, the FCC has required merging media partners to divest interests in assets where the number of independent voices would be limited within a market area or the nation as a whole,14 has required merging telecommunications companies to commit to deployment of advanced services and other conditions designed to foster competition in local telephony,15 and has stated that it will hold a cable operator to its commitment not to favor its own Internet content in its broadband offerings.16

The FCC's merger authority extends to any entity that requires an FCC license: wireline and wireless telecommunications providers, cable system operators, or broadcasters.17 In addition, the FCC has independent enforcement authority under the Clayton Act against common carriers.18 The FCC's review does not replace review by either the DOJ or the FTC, if such review is required under the HSRA, and review by the FCC is necessary even in mergers that would not trigger review by another agency.19

Emerging Criticism of the FCC's Merger Review Process

Critics recently have attacked the FCC's merger review process and questioned its underlying authority to impose broad conditions on mergers. They argue that the FCC's attempt to foster communications policy through merger review stifles competition and hampers the ability of industry participants to bring new services to consumers.20 Furthermore, they argue, FCC review duplicates the review of significant mergers already conducted under the HSRA by the DOJ and the FTC. FCC review therefore merely adds unnecessary expense and delays consummation of mergers.21 Finally, because the FCC uses only the vague "public interest" standard rather than published guidelines, FCC review creates uncertainty in the market that, when combined with lengthy delays, makes it difficult for companies to formulate strategies and deploy new services.22

In particular, critics have complained that the FCC's merger review has no place in today's rapidly evolving communications markets-the rate of technological evolution simply defies the abilities of any agency to second guess the market.23 In the words of one industry critic, "FCC review of telecommunications mergers is an anachronism more consistent with the legislation from which the Communications Act was derived-the Interstate Commerce Act written for railroads in 1887-than the 1996 Act."24

During the most recent congressional session, one bill was introduced in the Senate and two in the House of Representatives designed to limit the FCC's authority to review mergers.25 Sponsors indicated that they agreed with the FCC's critics that FCC review merely duplicated work already performed by the DOJ or the FTC. As Senator McCain, sponsor of S.1125, stated on introducing the bill:

About the best you can say is that the FCC is wasting valuable resources that could more productively be spent elsewhere. But the real harm lies in the fact that the FCC is foisting needless burdens and restrictions on the merging companies that translate into higher prices for consumers.26

Others in Congress, while not quite as disdainful of the FCC's expertise, have introduced bills to impose time limits on the FCC's merger review.27

Within the FCC, two Commission-ers have actively questioned the extent of the FCC's authority to impose conditions on mergers.28 Commissioner Furchtgott-Roth in particular has consistently criticized the FCC for imposing conditions on mergers, and has repeated on numerous occasions that he regards conditioning mergers based on the public interest analysis as beyond the FCC's statutory authority.29

This self-doubt has spread to the FCC staff. The Washington Post reports that some staff expressed uncertainty about the FCC's authority to impose conditions on AOL's Instant Messaging service, despite concerns that AOL is using its dominant position to create barriers to entry and delay development of new competing services.30

Importance of FCC Review

Contrary to the views expressed by its critics, FCC merger review neither duplicates the review carried out by the antitrust agencies nor imposes unnecessary hurdles on applicants. While there are indeed costs associated with FCC merger review, including the possibility that some mergers may not take place, the rewards to the public more than justify the risk that some "efficient mergers" may not occur.31

As discussed below, the comparison between the deregulation (and subsequent reregulation) of the cable industry and the regulation of the "enhanced service provider" market (that blossomed into the modern Internet service provider market) provides ample proof that an unsupervised market can fail dismally, while modest prophylaxis can encourage tremendous growth and expansion.

Merger review is a far more precise tool for this purpose than broad regulation. Merger review allows the FCC to monitor the market for market failure, acting to prevent only the most dangerous combinations and signaling the market in a way that imposes the least restriction on the industry as a whole.32 Thus, rather than imposing heavy-handed top-down government supervision on industry, merger review in fact permits the greatest freedom of action for industry as a whole, to the advantage of both the industry generally and the American people.

Furthermore, even the antitrust agencies have difficulty "unscrambling the egg" after a merger has occurred.33 It is far better to have the expert federal agency apply its expertise to a merger before the event rather than wait until harm has occurred. Indeed, since the FCC has independent authority to bring an antitrust enforcement action only in cases involving common carriers,34 the only way to correct market failure once a merger has occurred is through an industrywide rulemaking. This presents obvious problems when the issue is specific either to a local market or to a particular combination.

Communications Markets Require Greater Oversight

For more than seventy years, the federal government has treated the communications markets as requiring a higher degree of federal supervision than the market as a whole.35 Several important policy elements support this approach.

. FCC licensees enjoy valuable government benefits, including use of scarce resources and federal preemption of local law.

Congress created the FCC's predecessor, the Federal Radio Commission, because the physical nature of the radio spectrum required someone to play "spectrum cop" and prevent those using the spectrum from interfering with each other.36 The very nature of the radio spectrum makes it a public resource that Congress has ordained must be managed in the public inter-est.37 Nonwireless network providers do not use this scarce spectrum but also receive valuable government benefits as part of their licenses.38 In exchange for these public benefits, it is appropriate for the federal government to ensure that the licensees act in the public interest and in furtherance of the policies identified by Congress as serving both the American people and the industry as a whole.39

. Communications plays a critical role in facilitating democracy and economic development.

Over thirty years ago, the U.S. Supreme Court recognized the vital importance of diversity in communications:

It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth shall ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.. It is the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences which is crucial here.40

Since 1969, the FCC,41 Congress,42 and the U.S. Supreme Court43 have consistently reaffirmed the "compelling government interest" in maintaining diversity of ownership and points of view in communications media.

In addition, the explosive growth of communications technology in the United States in the last ten years has fundamentally altered our economy. According to a recent report by the Department of Commerce, the growth of the information technology sector of the economy, fueled by increased competition in telecommunications and the development of the Internet, is directly responsible for the unprecedented economic prosperity that the United States has enjoyed since 1995.44

These factors critically distinguish communications mergers from other mergers. The communications policy of the United States has traditionally expressed concern for levels of concentration considered "safe" under traditional antitrust analysis.45 Similarly, the FCC has the latitude to enact rules that may have an anticompetitive effect, provided that they serve the broader policy goals of the Communications Act.46

. Congressional policy choices should be respected.

Congress has never wavered from the decision to treat mergers as a part of an integrated communications policy rather than as a purely private matter between the merging parties. Notably, Congress has not lacked for opportunity to reconsider this position. In 1992, Congress substantively altered the FCC's regulatory authority over cable and other multivideo programming distributors (MVPDs).47 Congress first authorized in 199348 and then required in 199749 that the FCC use auctions as the preferred means of allocating nonbroadcast spectrum. In 1996, Congress completely and comprehensively overhauled every aspect of the Communi-cations Act of 1934, and directly considered the role that the FCC should play in developing the Internet and communications policy in the twenty-first century.50

In reviewing the Communications Act four times since 1992, Congress has declined to change its traditional view that the FCC should consider mergers as part of its development of a national communications policy. Indeed, it has strengthened this presumption. Despite making substantive changes to the FCC's antitrust authority as part of the 1996 Act,51 Congress did not abolish FCC authority under the Clayton Act to review communications mergers.52

It is further worth observing that, despite its stated preference for reliance on competitive markets over regulation,53 the 1996 Act also reaffirmed the basic tenets of the FCC's public interest jurisdiction: the FCC has a duty to manage the telecommunications infrastructure to promote diversity of viewpoint and the public interest, and broadcasters and other holders of wireless licenses must continue to hold their licenses subject to public interest obligations.54 The 1993 and 1997 amendments to the Communications Act requiring allocation of spectrum by auction explicitly maintained the FCC's authority and the public interest obligation of licensees.55

Critics charge that the FCC should actuate the policies of the Communi-cations Act through the rulemaking authority that Congress vested in the FCC rather than through merger review. Commissioner Furchtgott-Roth in particular has argued that the FCC has no grounds to leverage its authority over licenses into a detailed review of the business practices of the merging companies and the effect of the merger on the communications market as a whole.56 For example, at the recent FCC en banc hearing on the AOL/ Time Warner merger, Commissioner Furchtgott-Roth observed that had Time Warner acquired AOL, rather than vice versa, the FCC would have no jurisdiction over the merger, yet the harms to the communications market would presumably be the same. If Congress genuinely intended the FCC to conduct such comprehensive merger review, they asked, why should it hinge on the transfer of a few licenses incidental to the merger as a whole? In particular, where merger opponents have expressed concerns regarding instant messaging and other issues that do not directly relate to the management of the FCC licenses, they ask how the FCC can justify imposing broad conditions.57

These criticisms take too narrow a view of the FCC and its functions. As the courts have recognized, Congress intended the agency to use all of the tools at its disposal in furtherance of the broad goals enunciated in the Communications Act.58 Although Commissioner Furchtgott-Roth's view has some appeal from a simple reading of the statute, the U.S. Supreme Court rejected the narrow view of the FCC's jurisdiction over half a century ago.59 The FCC's authority to foster the development of communications policy in the United States extends beyond the narrow constraints of the agency license.60

Congress did not intend for an inquiry to end with the question of whether a merger meets the FCC's rules. Rather, Congress required the FCC to make a determination on the issuance of each license as to whether issuing that license would serve the public interest.61 The merger might well comply with all existing rules, yet still not serve the public interest because the combination of two companies might thwart the policies of the Act.62

. Rapid development of the Internet parallels the rapid development of other communications media.

Critics charge that the FCC cannot possibly keep pace with the development of modern communications technology. Yet, as Ecclesiastes warns us, "there is no new thing under the sun."63 Certainly the growth of communications-related technologies in the last several years has been astounding, and has touched on every aspect of our economy and culture.64 In this, however, the Internet mirrors the development of a national telephone network in the beginning of the twentieth century and a national broadcast network in midcentury.65

Congress designed the FCC for precisely this reason: to exercise proper oversight over "new and rapidly developing fields."66 The language of the Act continues to reflect this objective. For example, as part of the Telecomm-unications Act of 1996, Congress directed the FCC to "seek to promote the policies and purposes of this Act favoring diversity of media voices, vigorous economic competition, technological advancement, and promotion of the public interest, convenience and necessity."67

Other sections of the Communi-cations Act similarly make clear Congress's understanding of the dynamic nature of the communications marketplace and its deliberate decision to entrust oversight of the development of this market to the FCC.68

It should be stressed that oversight does not require heavy-handed regulation of the sort usually envisioned by the FCC's critics.69 Indeed, the FCC has explicitly stated that it understands Congress's preference for an unregulated free-market approach.70 Nevertheless, in light of both the "unprecedented convergence of communications services"71 and the enormous potential effect that a significant merger may have on the development of the communications marketplace,72 merger review remains a critical tool for the FCC in carrying out Congress's charge of ensuring the benefits of the communications marketplace "to all the people of the United States."73

Different Standards, Different Processes

An analysis of the merger review processes conducted by the antitrust agencies and the FCC demonstrates that the FCC serves a vital and complementary role, rather than a useless and redundant one.

Antitrust agencies have preapproved mergers for barely twenty years. Prior to passage of the HSRA in 1976, companies could merge without notifying the antitrust agencies, leaving them with little choice but to acquiesce in the merger or bring suit to undo the deal. Such lawsuits took years to litigate at tremendous cost and, even if ultimately successful, rarely achieved more than a token victory.74 Even in the best of circumstances where the government won divestiture and successfully enforced its judgment, the parties enjoyed years of monopoly profits.75

The HSRA corrected this problem by requiring merging businesses meeting specific criteria to notify the antitrust agencies of their intent to merge. The antitrust agencies now have thirty days to determine whether to challenge the merger or to make a second request for information.76 If it wishes to make a second request, the agency with jurisdiction then has another statutory deadline of twenty days to determine whether to challenge the merger.77 If the agency believes that the merger violates the antitrust laws, it can file an action in the district court to enjoin the merger.78 As a practical matter, applicants generally allow the agency to take as much time as it needs to make a decision.79 Furthermore, applicants involved in difficult mergers frequently agree to accept conditions imposed by the agency in the form of a consent decree.80

Although the HSRA may have provided the antitrust agencies with new tools, it did not change the standards under which they operate. The agencies begin with the presumption that the merger should be approved-a presumption reinforced by the statute's charge that the merger may proceed if the agencies take no action.81

To oppose the merger, the agencies must prove to a court of law that the merger violates the antitrust laws under the same standard that the agencies must meet in a postmerger action.82

The HSRA merely shifts the time of the suit and prevents parties from taking advantage of a merger that violates existing law. The agencies still bear the burden of proving that the merger violates the law.

Furthermore, the process is structured to protect the business information of the applicants and of market participants. Agency review takes place behind closed doors, with no opportunity for public comment.83 Negotiations between applicants and the agency on merger conditions resemble settlement discussions, rather than debates on public policy, and culminate, as observed above, in a consent decree.

This process admirably suits the basic concern of Congress that the anti-trust agencies have the opportunity to protect the American people from "the general evils that result from a lessening of competition."84 It does not, however, provide an opportunity to develop policy in a given market, particularly the critical and highly technical communications market. For this purpose, Congress wisely delegated authority to a specialized agency, the FCC.

As discussed above, the FCC merger review serves the vital purpose of ensuring that telecommunications mergers advance the broad purposes of the Communications Act. In keeping with its broader, policy orientation, FCC merger review takes place on an open record.85 Private negotiations between applicants and the agency are strictly prohibited by the FCC's rules. Indeed, the FCC has rejected attempts to modify the rules to allow applicants to propose merger conditions in secret, thereby identifying proposed conditions as "integral" to the resolution of merger applications and to the public debate.86

As a critical part of communications policy, mergers benefit from public comment in the same fashion as rulemakings do-from the ebb and flow of adversarial debate.87 Further-more, public proceedings serve the valuable role of educating lawmakers and the public on critical issues raised in the course of communications mergers, even if the FCC ultimately takes no action.88 Thus, the merger process properly serves the goals of the Communications Act in helping the FCC to develop a coherent national policy.

FCC Merger Review Does Not Cause Further Delay

One potent criticism against FCC merger review is that it delays consummation of the merger unnecessarily. In addition to complaints of general delay, some have argued that the FCC should not postpone action until after the antitrust agencies have completed their review.

These complaints, however, are misguided and misdirected. As an initial matter, it is entirely appropriate for the FCC to wait until after the antitrust agencies have conducted their review. Although the FCC looks beyond traditional antitrust analysis, this analysis does inform the FCC's merger review.89 Accordingly, it makes sense to allow the experts on general competition issues to complete their analyses before the FCC concludes its own analysis.90

Setting time limits on FCC mergers would deprive the FCC of the benefit of the antitrust agency's review and require the FCC to do an identical analysis on its own, a truly duplicative process and waste of resources.91 In addition, setting time limits would provide incentives to companies to stalemate the process in the hopes that the FCC would approve the merger without a detailed investigation.92

An examination of the recent high-profile merger between AT&T and MediaOne illustrates these points. The parties filed their application with the FCC on July 7, 1999,93 and the FCC did not approve the merger until June 6, 2000, nearly a year later.94 Throughout the process, the applicants complained bitterly about the delay in

A closer examination casts doubt on the validity of these complaints. AT&T and MediaOne received DOJ permission to merge on May 25, 2000,96 and the FCC review delayed the merger by less than two weeks. If anything, this delay was far too short, given the need to assess the DOJ consent decree, which identified broadband Internet services as an independent market from Internet access generally.97 The FCC had been reluctant to take the step of deciding whether broadband constituted a separate market from Internet access generally, an issue that was hotly contested by the applicants and by merger opponents. Thus, it was logical for the FCC to consider the determination of the agency expert in market identification and competition issues.98

In addition, much of the delay flowed from AT&T's own strategic behavior. At the time that AT&T submitted its application, it was clear that the proposed merger violated the FCC's rules limiting the number of cable systems that an entity may own, i.e., the "horizontal ownership limits."99 Rather than submit a compliance plan or seek a waiver, AT&T chose to pin its hopes on a pending court challenge on the constitutionality of the rules and on pending rulemaking that seemed likely to alter the FCC's horizontal ownership limits.100

Both of these hopes proved vain. Although the FCC did modify the rules to loosen the horizontal ownership limits, AT&T remained over the limit.101 In addition, the U.S. Court of Appeals for the District of Columbia Circuit upheld the statute authorizing the rules as constitutional.102

AT&T eventually requested a waiver of the horizontal ownership rules on December 21, 1999,103 more than six months after AT&T and MediaOne filed their application. AT&T never submitted a compliance plan, preferring to negotiate with the FCC for a waiver that would include time to formulate a compliance plan, a condition to which the FCC ultimately agreed.104 Nor was AT&T forthcoming with information requested by the FCC staff.105 Given AT&T's choice of strategic behavior, it seems unfair to blame the FCC for the delay.

As the above illustration demonstrates, the claim that the FCC imposes undue delay on mergers and unconscionably "piggybacks" on the antitrust agencies should be viewed with skepticism. Since FCC merger review is designed to complement antitrust review, and to be informed by antitrust considerations, it is appropriate for the FCC to wait until the general experts on competition have completed their work. In addition, the FCC should not bear the blame for delays caused by the decision of the applicants to negotiate for waivers.


The FCC's merger review is neither duplicative of antitrust review nor unnecessary in the modern age. To the contrary, the FCC merger review complements antitrust review, serving the vital purposes of preserving our national communications policy in the face of concentration and of preserving the First Amendment's promise of diverse, antagonistic sources of news and information. Contrary to the suggestion of critics, the FCC review does not add unnecessary delay. Finally, the argument that the FCC's merger review thwarts delivery of vital services and the development of new technologies appears to have little basis in fact. Indeed, the contrast between the deregulated cable industry and the regulated enhanced or information service provider market suggests the opposite conclusion: permitting unfettered market consolidation slows the development of new technologies, whereas careful monitoring and regulation facilitate the development of new technology by preventing market failure.


1. Pub. L. No. 94-435, 90 Stat. 1394 (1976) (codified at 15 U.S.C. § 18a).

2. See, e.g., Communications Act of 1934 (as amended) § 214(a) (requires that new communications services serve public convenience and necessity), § 257(b) ("the Commission shall seek to promote the policies and purposes of this Act favoring diversity of media voices, vigorous economic competition, technological advancement, and promotion of the public interest, convenience, and necessity"), § 303(g) (encourages "more effective use of radio in the public interest"), § 309(a) (licenses under Title III must serve "the public interest, convenience and necessity"), 48 Stat. 1093 (1934); Telecommunications Act of 1996, Pub. L. No. 104-104, § 706, 110 Stat. 56 (1996) (encourages deployment of "advanced telecommunications capability to all Americans"). United States v. Southwestern Cable Co., 392 U.S. 157, 168-69 (1968); NBC v. United States, 329 U.S. 190, 212, 216-17 (1943).

3. See, e.g., NBC, 329 U.S. at 219; FCC v. Pottsville Broadcasting, 309 U.S. 134, 136-38 (1940); Nextwave Personal Communications, Inc. v. FCC, 200 F.3d 43, 53 (2d Cir. 1999); Computer and Communications Indus. Ass'n v. FCC, 693 F.2d 198, 213 (D.C. Cir. 1982).

4. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (1992).

5. Id. § 27.

6. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).

7. Id. § 601.

8. The Federal Radio Commission was created in 1927. See Radio Act of 1927, §§ 85-119, 44 Stat. 1166 (1927). The Radio Act was subsequently superseded by the Communications Act of 1934, which transformed the National Radio Commission into the Federal Communications Commission and broadened the Commission's authority to include communications by wire as well as by radio. See Communications Act of 1934, §§ 151 et seq., 48 Stat. 1093 (1934). See also National Broadcasting Co v. FCC, 319 U.S. 190, 210-14 (1943) (giving history of Act as pertaining to radio); Computer and Communications Indus. Ass'n, 693 F.2d at 213-14 (purpose of Congress was to create agency able to address new developments in communications).

9. Communications Act of 1934, §§ 214(a), 310(d), 48 Stat. 1093 (1934).

10. United States v. Radio Corp. of Am., 358 U.S. 334, 350-52 (1959); FCC v. Nelson Bros. Bond & Mortgage, 289 U.S. 266, 285 (1933).

11. Radio Corp. of Am., 358 U.S. at 350-52; Application of MediaOne Group, Inc. & AT&T Corp., 15 FCCRcd 9816, 9821 (2000).

12. See In re Application of Ameritech Corp. and SBC Communications, Inc., 14 FCCRcd 14712, 14738-40 (1999).

13. Id. at 14739.

14. See, e.g., In re Shareholders of CBS Corporation and Viacom, Inc., 15 FCCRcd 8230 (2000).

15. See, e.g., In re Application of Ameritech Corp. and SBC Communi-cations, Inc., 14 FCCRcd 14712, 14854-90 (1999).

16. See, e.g., In re Application of Tele-Communications, Inc. and AT&T Corp ., 14 FCCRcd 3160, 3206-07 (1999).

17. See Communications Act of 1934, § 2(a), 48 Stat. 1093 (1934); United States v. Southwestern Cable Co., 392 U.S. 157, 167-68 (1968).

18 . See 15 U.S.C. § 21(a).

19. Compare 15 U.S.C. § 18a(a) (providing conditions under which HSRA prenotification applies with 47 U.S.C. § 310(d) (requiring FCC review of all transfers of licenses). See generally James R. Weiss and Martin L. Stern, Serving Two Masters: The Dual Jurisdiction of the FCC and the Justice Department over Telecommunications Transactions, 6 Commlaw Conspectus 195 (1998).

20. See, e.g., Testimony of Roy Neel, President and CEO, United States Telephone Association, Before the Judiciary Committee Subcommittee on Antitrust, Business Rights and Competition, Apr. 13, 1999 ; Randolph J. May, Any Volunteers? The FCC Unfairly Regulates "By Condition" When It Extracts Concessions from Merging Telecom Companies, Progress & Freedom Foundation (last visited Aug. 30, 2000); Power Play: FCC Wary of Megamergers Inking Up Competitive Waters,, July 14, 1999 (last visited Aug. 31, 2000); FCC Role in Telecom Mergers Questioned,, June 16, 1999 (last visited Aug. 31, 2000). See generally Daniel L. Brenner, Ownership and Content Regulation in Merging and Emerging Media, 45 DePaul L. Rev. 1009 (1996) (arguing that FCC merger review is based on false premises and rarely helpful). (Mr. Brenner was Vice President for Law and Regulatory Policy for the National Cable Television Association, the leading industry organization for large cable multisystem operators).

21 . See, e.g., Weiss and Stern, supra note 19, at 204-06; see generally Robert B. Eklund, Jr., and Mark Thornton, The Cost of Merger Delay In Restructuring Industry, Heartland Institute Policy Paper No. 90, available at (last visited Aug. 31, 2000) (discussing burdens on consumers and business from merger delay generally with FCC case studies).

22. See, e.g., Weiss and Stern, supra note 19, at 204-05; Full Speed Ahead: FCC Considers Faster Timeline for Merger Review,, Mar. 6, 2000 FCC Officials Meet with Bar About Antitrust Merger Reviews, Tech Law J., Jan. 24, 2000 (last visited Aug. 31, 2000).

23. Neel Testimony, supra note 20, at 1-2.

24. Id. at 1.

25. Telecommunications Merger Review Act, S. 1125, Cong. Rec. S. 6050-1 (May 26, 1999); Telecommunications Merger Review Act of 2000, H.R. 4019, Cong. Rec. (Mar. 16, 2000); Fairness in Telecommunications License Transfers Act, H.R. 2533, Cong. Rec. E. 1560 (July 15, 1999).

26. Cong. Rec. S. 6050-1 (May 26, 1999). See also H.R. 4019 § 2(2) (proposed congressional finding that FCC "review of telecommunications industry mergers often results in undue delay and introduces uncertainty into the marketplace"); H.R. 3186 §§ 2(2)-(9) (proposed congressional findings regarding superiority of review by DOJ and FTC, concluding that "the duplication of effort, inconsistency, and delay resulting from the Commis-sion's review of telecommunications industry mergers is unnecessary, it imposes unwarranted costs on industry, on the Commission, and on the public").

27. See Anti-Trust Merger Review Act, S. 467, Cong. Rec. (Feb. 25, 1999); H.R. 2783 (Untitled), Cong. Rec. (Aug. 5, 1999).

28. Application of MediaOne Group, Inc. & AT&T Corp., 15 FCCRcd 9816, 9910-13 (2000) (separate statements of Commissioners Furchtgott-Roth and Powell).

29. See, e.g., Transcript of July 31, 2000, En Banc Hearing by the Federal Communications Commission on the Proposed Merger of AOL and Time Warner at 10-12 (opening remarks of Commissioner Furchtgott-Roth); In re Application of Ameritech Corp. and SBC Communications, Inc., 14 FCCRcd 14712, 15174-96 (1999) (concurring in part, dissenting in part).

30. See AOL Unmoved in Software Dispute, Wash. Post, Aug. 24, 2000, at A1.

31 . Cf. Eklund and Thornton, supra note 21.

32. See, e.g., Transcript of July 31, 2000, En Banc Hearing, supra note 29 (testimony of Mark Cooper, Director of Research, AOL/TW).

33. See William J. Baer, Director, FTC Bureau of Competition, Reflections on 20 Years of Merger Enforcement Under the Hart-Scott-Rodino Act, Speech before the 35th Annual Corporate Counsel Institute, Northwestern University School of Law, Corporate Law Center (Oct. 31, 1996), at 4-5 (transcript available at http://www. htm).

34. 15 U.S.C. § 21(a).

35. See Transcript of July 31, 2000, En Banc Hearing, supra note 29 (testimony of Mark Cooper, Director of Research, AOL/TW). An additional layer of review is not unique to communications mergers. Although the market generally develops free of government guidance, Congress has identified critical areas that benefit from a national policy and some government oversight. For example, to facilitate a coherent national policy on energy, the Federal Energy Regulatory Commission (FERC) must approve all mergers involving electric generating and transmission facilities, interstate natural gas pipelines or oil pipelines, or other entities licensed by FERC. See, e.g., Northeast Utilities Serv. Co. v. FERC , 993 F.2d 937, 945 (1st Cir. 1993). See also NAACP v. Federal Power Comm'n, 520 F.2d 432 (D.C. Cir. 1975), aff'd sub nom. FPC v. NAACP, 425 U.S. 662 (1976). (giving history of Federal Power Commission, predecessor of FERC, noting similarity to FCC in formulating national policy).

36. See Nextwave Personal Communications, Inc. v. FCC, 200 F.3d 43, 50 (2d Cir. 1999).

37. See id.; FCC v. Pottsville Broadcasting, 309 U.S. 134, 136-38 (1940).

38. Cable and telecommunications providers receive the right to use utility poles at rates established by the FCC, 47 U.S.C. § 224, and enjoy preemption of local authorities on a variety of issues. See, e.g., 47 U.S.C. §§ 276(c), 541.

39. See Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969); s ee generally Rust v. Sullivan, 500 U.S. 173 (1990).

40. Red Lion Broadcasting, 395 U.S. at 390.

41. See, e.g., Biennial Review of Commission's Broadcast Ownership Rules, 15 FCCRcd 11058, 11061 (2000).

42. See, e.g., Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, § 2(a)(6) (finding "substantial governmental and First Amendment interest promoting a diversity of views through multiple technology media") and § 2(b)(1) (policy to promote diversity of views and information "through cable television and other distribution media"), 106 Stat. 1460 (1992); 47 U.S.C. § 257(b) (national policy "to promote . . . diversity of media voices" in telecommunications services and information services).

43. See Turner Broadcasting Sys., Inc. v. FCC, 412 U.S. 622, 662 (1994).

44. See U.S. Department of Commerce, Digital Economy 2000 (June 2000) .

45. See Turner Broadcasting Systems, Inc. v. FCC, 520 U.S. 180, 190 (1997) ("Congress has long favored preserving a multiplicity of broadcast outlets regardless of whether the conduct . . . rises to the level of an antitrust violation").

46 . See, e.g., United States v. Radio Corp. of Am., 358 U.S. 334, 350-52 (1959); United States v. FCC, 652 F.2d 72, 81-88 (D.C. Cir. 1980).

47 . See, e.g., Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, §§ 11 (structural regulations on cable industry), 19 (mandate to increase competition in MVPD marketplace), 106 Stat. 1460 (1992).

48. Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, § 6002, 107 Stat. 31 (1993).

49. Balanced Budget Act of 1997, Pub. L. No. 105-33, § 3002, 111 Stat. 265 (1997).

50. Telecommunications Act of 1996, Pub. L. No. 104-104, § 101(a), 110 Stat. 56 (1996) (adding § 257 (b)); id. § 706(a).

51. Id. § 602.

52. The 1992 Cable Act, the second most recent significant revision of the Communications Act, specifically left the existing merger review regime intact. Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, § 27, 106 Stat. 1460 (1992).

53. See, e.g., id. § 230 (stating preference for unregulated Internet); In re Application of Nynex Corp. and Bell Atlantic Corp., 12 FCCRcd 19985, 19987-90 (explaining procompetitive nature of 1996 Act).

54. See, e.g., Telecommunications Act of 1996, Pub. L. No. 104-104, § 101(a), 110 Stat. 56 (1996) (adding § 257 (b)); id. § 706(a).

55. See, e.g., Nextwave Personal Communications, Inc. v. FCC, 200 F.3d 43, 50-53 (2d Cir. 1999).

56. See In re Application of Ameritech Corp. and SBC Communications, Inc., 14 FCCRcd 14712, 15174-96 (1999).

57. It is true that this sometimes leads to anomalies, such as the fact that if Time Warner had acquired AOL, the merger might lie outside the FCC's review. Any system, however, is subject to "gaming." It was logical that Congress should make the issuing and transfer of a license the mechanism for reviewing mergers and their effect on communications policy generally. As explained above, licenses are a public trust, held by the licensee in the public interest, subject to the regulatory conditions imposed by the FCC. In the worst case, the FCC can rely on its regulatory authority over licensees, even in areas outside the scope of the license but pertaining to the FCC's communications policy authority as a whole. See Computer and Communications Indus. Ass'n v. FCC, 693 F.2d 198, 213-14 (D.C. Cir. 1982). Thus, when the FCC sought to preserve diversity of viewpoint in the marketplace, it prohibited broadcast licensees from owning a newspaper, despite the FCC's lack of jurisdiction over newspapers. See FCC v. National Citizens Comm'n, 436 U.S. 775 (1978).

58. See, e.g., FCC v. WNCN Listeners Guild, 450 U.S. 582, 594-96 (1981); United States v. Radio Corp. of Am., 358 U.S. 334, 351-52 (1959); United States v. Storer Broadcasting Co., 351 U.S. 192, 203-04 (1956); National Broadcasting Co. v. FCC, 319 U.S. 190, 219-20 (1943).

59. National Broadcasting Corp., 319 U.S. at 227-30 (dissent of Justice Murphy who would have limited scope of license inquiry along the lines suggested by Commissioner Furchtgott-Roth).

60. See, e.g., United States v. Southwestern Cable Co., 392 U.S. 157, 167-68 (1968); Computer and Communications Indus. Ass'n, 693 F.2d at 213.

61. See 47 U.S.C. § 310(d).

62. See In re Application of Nynex Corp. and Bell Atlantic Corp., 12 FCCRcd 19985, 19989. See also National Broadcasting Corp., 319 U.S. at 223.

63. Ecclesiastes 1:9 and passim (King James Version).

64. See generally Digital Economy, supra note 44.

65 . See, e.g., Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans, 14 FCCRcd 2398, 2408-13 (comparing deployment and effect of broadband Internet, telephony, and broadcast networks). See also, e.g., National Broadcasting Co., 319 U.S. at 219 (explaining Congress gave FCC "expansive powers" to deal with field, "the dominant characteristic of which was the rapid pace of its unfolding"); United States v. FCC, 652 F.2d 72, 93 (D.C. Cir. 1980) ("rapidly changing" field of satellite communications).

66. United States v. Storer Broadcasting Co., 351 U.S. 192, 203 (1956); s ee also United States v. Southwestern Cable Co., 392 U.S. 157, 172 (1968) (noting that while Congress could not have foreseen development of cable industry in 1934, Congress clearly intended FCC to monitor and exercise appropriate authority over evolving fields in communications); Computer and Communications Indus. Ass'n v. FCC, 693 F.2d 198, 213-14 (D.C. Cir. 1982) (Congress created agency "such that it could readily accommodate dynamic new developments in the field of communications").

67. Telecommunications Act of 1996, § 101(a) (codified at 47 U.S.C. § 257(b)).

68. See, e.g., § 1 (purpose of act), § 303(g) (study and "generally encourage" new uses of radio), § 613(f)(2)(E) (cable ownership rules must "reflect the dynamic nature of the communications marketplace"); Telecommunications Act of 1996, Pub. L. No. 104-104, § 706(a), 110 Stat. 56 (1996) ("encourage" deployment of advanced telecommunications services). See also Southwestern Cable Co., 392 U.S. at 171-72.

69. See generally Brenner, supra note 20.

70. See Application of MediaOne Group, Inc. & AT&T Corp., 15 FCCRcd 9816, 9821 (2000).

71. Id. at 9818.

72. Id. at 9821-22.

73. Communications Act of 1934, § 1 , 48 Stat. 1093 (1934).

74. Baer, supra note 33, at 1-5.

75. Id.

76. 15 U.S.C. § 18a(b)(1)(B).

77. Id. § 18a(e)(1).

78. Id. § 18a(f).

79. Baer, supra note 33, at 9 n.57.

80. Id. at 6.

81. 15 U.S.C. § 18a(a).

82. Id. § 16.

83. Id. § 18a(h).

84. International Shoe Co. v. FTC, 280 U.S. 291 (1930).

85. See 47 C.F.R. §§ 1.1200 et seq. The agency has the power to protect confidential business information by use of a protective order, which allows interested parties to view the information and comment on it before the FCC, but protects it from the general public and preserves its confidential nature.

86. In re Amendment of 47 C.F.R. §§ 1.1200 et seq. Concerning Ex Parte Presentations in Commission Proceedings, 122 FCCRcd 7348, 7363 (1997).

87. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 55 (D.C. Cir. 1977).

88. Transcript of July 31, 2000, En Banc Hearing , supra note 29, at 67 (testimony of Esther Dyson, Chair, EDventure Holdings).

89. United States v. Radio Corp. of Am., 358 U.S. 334, 350-52 (1959); United States v. FCC, 652 F.2d 72, 81-88 (D.C. Cir. 1980).

90. See FCC's Role In Telecom Mergers Questioned, supra note 20.

91. See id.

92. See Senate Looks to Limit Merger Reviews, CNET, May 7, 1999, http://news.> (last visited Aug. 31, 2000).

93. Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations from MediaOne Group, Inc., Transferor, to AT&T Corp., Transferee, CS99-251 (filed July 7, 1999).

94. 15 FCCRcd 9816 (2000).

95. See, e.g., Letter of Betsy Brady, Vice President, Federal Government Affairs, AT&T Corp., to Deborah Lathen, Chief, Cable Services Bureau, FCC, Apr. 6, 2000.

96. Application of MediaOne Group, Inc. & AT&T Corp., 15 FCCRcd 9819, 9840 (2000).

97. Id. at 9866.

98. Id. at 9864-66. Indeed, the FCC declined to make a separate determination on the issue, concluding that the DOJ consent decree provided adequate protection from competitive harms. Id. at 9866-67.

99. See, e.g., Erick Glick, Ownership Rules Caps Could Imperil AT&T, Cable World, Aug. 30, 1999 .

100. See Application of MediaOne and AT&T, Public Interest Statement at 45-54, CS99-251 (filed July 7, 1999).

101. Application of MediaOne Group, Inc. & AT&T Corp., 15 FCCRcd 9816, 9840 (2000).

102. Time Warner Entertainment Co. v. United States, 211 F.3d 1313 (D.C. Cir. 2000).

103 . Application of MediaOne Group, Inc. & AT&T Corp., 15 FCCRcd 9816, 9846 n.204 (2000).

104. Id. at 9849.

105 . See, e.g., Letter of Deborah Lathen, Chief, Cable Services Bureau, to Jim Ciccone, General Counsel, AT&T, and Susan Eid, Vice President, Federal Relations, MediaOne Group, Apr. 5, 2000 (questioning apparent refusal of AT&T and MediaOne to provide further documents).


Harold Feld ( is Associate Director, Media Access Project (MAP), in Washington, D.C. MAP is a nonprofit public interest law firm that represents consumer and citizens groups on telecommunications issues. MAP has opposed the AOL/Time Warner merger before the FCC and the FTC on behalf of Consumers Union, Consumer Federation of America, and the Center for Media Education.

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