This report will explain the merger review process at the Federal Communications Commission (FCC or Commission). Whenever companies holding licenses issued by the FCC wish to merge, the merging entities must obtain approval from two federal agencies: the Department of Justice (DOJ) and the FCC. The Commission and the DOJ do not follow precisely the same process or reasoning when examining the potential effects of proposed mergers. The Act permits the Commission to grant the transfer only if the agency determines that the transaction would be in the public interest. The public interest standard is generally broader than the competition analysis authorized by the antitrust laws and conducted by the DOJ. Therefore, the Commission possesses greater latitude to examine other potential effects of a proposed merger beyond its possible effect on competition in the relevant market.

This report will explain the merger review process at the Federal Communications Commission (FCC or Commission). Whenever companies holding licenses issued by the FCC wish to merge, the merging entities must obtain approval from two federal agencies: the Department of Justice (DOJ) and the FCC. The Commission and the DOJ do not follow precisely the same process or reasoning when examining the potential effects of proposed mergers. The Act permits the Commission to grant the transfer only if the agency determines that the transaction would be in the public interest. The public interest standard is generally broader than the competition analysis authorized by the antitrust laws and conducted by the DOJ. Therefore, the Commission possesses greater latitude to examine other potential effects of a proposed merger beyond its possible effect on competition in the relevant market.

The Communications Act of 1934 created a dual review process in which mergers in the communications industry are reviewed by the Federal Communications Commission (FCC) as well as the antitrust authorities. Commentators have criticized dual review not only as costly and redundant, but also as subject to substantive and procedural abuse. The process of clearing the 2011 Comcast-NBC Universal merger provides a useful case study to examine whether such concerns are justified. A review of the empirical context reveals that the FCC intervened even though the relevant markets were not structured in a way that would ordinarily raise anticompetitive concerns. In addition, the FCC was able to use differences between its review process and that used by the Justice Department to extract concessions from the merging parties that had nothing to do with the merger and which were more properly addressed through general rulemaking. Moreover, the use of voluntary commitments also allowed the FCC to avoid subjecting certain aspects of its decision to public comment and immunized it from having to offer a reasoned explanation or subjecting its decision to judicial review. The aftermath of the merger provides an opportunity to assess whether the FCC's intervention yielded consumer benefits.

ABSTRACT: In most industries, a proposed merger that is likely to raise anti-competitive concerns is subject to a regulatory approval from federal antitrust law enforcement agencies, such as the Department of Justice (DOJ) or the Federal Trade Commission (FTC). In the telecommunications and the electronic media industries, merging companies have the additional burden of obtaining regulatory approval of the Federal Communications Commission (FCC). In other words, a proposed merger in the telecommunications and the media industries usually requires dual review by both a federal antitrust agency (i.e., the DOJ/FTC) and a sector-specific regulatory authority (i.e., the FCC).