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Continuing a Conversation About the FCC’s Merger Review Process

March 17th, 2011 by Jonathan Baker - Chief Economist

Six weeks after the FCC completed its high profile review of the Comcast/NBCU transaction, Commissioner Meredith Baker (no relation) suggested that the agency’s transaction review process should be overhauled.  I have been involved in merger reviews on both sides of the table for most of my career – working with private parties advocating or questioning deals, and at the Federal Trade Commission and Department of Justice as well as the FCC – putting me in a unique position to address some of the issues that Commissioner Baker raised.

    To provide context, I want to begin with what the FCC accomplished in terms of process during its Comcast/NBCU review: 

  • Fact-based and data driven analysis.  As the Commission’s order shows, its conclusions were based upon a well-developed record about the industry, the applicants, and the potential implications of the transaction.
  • Development of a model legal and economic analysis.  The FCC set forth a roadmap for antitrust tribunals reviewing the exclusionary impacts of vertical integration in future cases.
  • Detailed findings and reasons.  The Commission provided a detailed opinion explaining the reasons for the order’s provisions. 
  • Close coordination with the Department of Justice.  The FCC and DOJ worked together to share insights and to assure an efficient process and consistent outcomes.  By most accounts, this was the most successful transaction-related collaboration ever between these agencies.
  • Avoided unnecessary burdens.  The FCC worked with the applicants and other parties to craft an order that protects the public interest without restricting the applicants’ ability to accomplish their legitimate business objectives.  Comcast Executive Vice President David Cohen concurred, saying publicly after the FCC issued its order, “I don’t think any of the conditions is particularly restrictive.”

    The success of the FCC’s review process is particularly striking given that the transaction presented a wide range of important and complex issues, including novel and difficult competitive questions raised by the deal’s potential impact on nascent competition in online video distribution.

    Against this backdrop, let’s look at Commissioner Baker’s concerns.  The first is with the statutory mandate for the FCC and the antitrust enforcement agencies to review competition concurrently.  Comcast/NBCU highlights the advantages of Congress’ design.  Working together, the FCC and DOJ are often more effective in addressing competition issues than either would be working alone.  The FCC brings industry expertise and a greater practical ability to review and address concerns about a merger’s impact on potential competition.  Through collaboration, moreover, both agencies were able to conduct an extensive, careful, and cooperative review of that transaction without delaying the process.  Not surprisingly, the two agencies addressed competition problems by imposing similar conditions.

    In addition, Commissioner Baker raises concerns with the costs of a long merger review process.  Yet she also recognizes the need for careful review.  The FCC should not hold up the consummation of mergers that are in the public interest or allow merger reviews to languish, but, equally, it cannot cut corners when undertaking those reviews.  No responsible agency can simply assume that every communications merger proposed in the free market is in all respects beneficial to the public.  Nor can the FCC compromise on the procedural protections that administrative law confers on interested parties.  Based on my experience working at both antitrust agencies as well as the FCC, I would say that the length of a merger review is determined primarily by the complexity of the competitive issues, not whether the reviewing agency is the FCC, FTC or DOJ.  (Other major vertical mergers reviewed recently by DOJ, such as Ticketmaster/Live Nation, have taken as long as Comcast/NBCU to reach a consent settlement.)

    Commissioner Baker also questions whether the FCC at times goes too far afield when imposing conditions to assure that mergers serve the public interest, leading it to impose some conditions that may be unrelated to the transaction.  The wide range of conditions in the typical merger order is easy to explain:  it is the natural and foreseeable result of the statutory “public interest” charge to the agency.   In furtherance of that mandate, the FCC takes on competition concerns – in the Comcast/NBCU order, two-thirds of the pages on conditions sought to protect or foster competition – but it also addresses other public interest issues that Congress has put front and center in the Communications Act, such as diversity of viewpoints, localism, and deployment of advanced telecommunications services.  My sense is that most disputes over whether specific conditions are “transaction-related” are not mainly about the integrity of the merger review process but are really about a basic policy question – whether the Commission should continue to pursue the longstanding public interest goals identified by Congress in the Act.  If so, process reforms are unlikely to stop the criticism.

    Even a successful process can be improved.  It is possible, for example, that the FCC could do better in developing and testing evidence by introducing more adversarial elements into its administrative merger review process.  (A similar issue comes up in comparing the antitrust review of mergers in the US and Europe.)   The FCC experimented with one such procedural innovation in Comcast/NBCU:  the staff conducted an economic workshop, bringing together economists for the parties to the transaction and third parties for a structured discussion placed on the adjudicative record.  In future reviews, the FCC staff could also consider deposing merging firm executives as the antitrust agencies often do; this process may, for example, help the FCC staff evaluate merging firm documents.  

    In Comcast/NBCU, Chairman Genachowski was determined to ensure a model transaction review process – and through the dedicated effort of the transaction team led by John Flynn and staffed from throughout the agency, particularly the Media Bureau, the Office of General Counsel, and the Office of Strategic Planning and Policy Analysis, he succeeded.  I had little exposure to FCC merger review in the past.  But after working on Comcast/NBCU and other transactions during my time at the FCC, I think of the agency’s merger review process more as a source of pride than as a source of concern.

10 Responses to “Continuing a Conversation About the FCC’s Merger Review Process”

  1. Guest says:

    There has been talk about discontinuing FREE tv. Under NO circumstances should free tv be discontinued. I have watched tv all my life and really enjoy it. However, I only receive over-the-air channels because I cannot afford Cable, Com Cast or any other package of tv programming that you have to pay for. It is wrong to make it mandatory that free tv be discontinued. That creates a monopoly on the programming services.

    I am on a fixed income and should not be penalized because I can not afford to buy the packages of programming that the different companies offer. I am sure there are a lot of folks in the same boat. If you don't have the money, you can't spend it! It would be totally un-American to discontinue free tv. It's alright to purchase a programming package if you can afford it but anyone on a fixed income just does not have the money. I hope the people that make the rules can have compassion for the group of people on fixed income and leave free tv alone!

  2. Nellie says:

    Unless AT&T is going to lower their plan prices, please do not approve their purchase of T-Mobile. My T-Mobile plan is $46/mo before taxes. AT&T's closest equivalent is $65 and has 50 fewer anytime minutes. As someone who doesn't use their phone to access the internet, I have a hard time seeing the benefit.

  3. Matthew E says:

    I see AT&T is also demanding approval to buy some Qualcomm 700MHz spectrum:
    http://fjallfoss.fcc.gov/ecfs/comment/view?id=6016373919 and the critic makes some interesting points!
    Couldn't find a docket entry at http://fjallfoss.fcc.gov/ecfs/hotdocket/list or using search.

  4. Brandon Fletcher says:

    Process improvement is always fine, but it should be increasingly obvious that we are finding ways to embrace a nice process that repeated allows mega-corporate control to grow larger and the number of players to grow smaller. The core goal of all anti-trust is being lost in banking, telecom, steel, automotive, as commissioners of each relevant agency forget that until consumer surplus is maximized, the economy is not running at optimal efficiency.
    Please do not blow the ATT-TMobile merger. It is not a 4 to 3. It is a move from 2 to 1 of the GSM format carriers. And, the 4G adoptions will take forever in rural areas as well as the short term throttling of the device makers ans anyone making GSM phones has one carrier in the US. Do not let it through.

  5. LogicalDave says:

    It is hard to see how an AT&T/T-Mobile merger will serve the public interest unless T-Mobile were in bankruptcy (even then it would be better if T-Mobile's assets were picked up by another suitor). Particularly at a time of economic hardship, T-Mobile serves cost-conscious customers in a way that AT&T does not (and likely would not after a merger). T-Mobile wholesalers such as Walmart provide even lower cost access to the T-Mobile network through their Family Access plans; all of this would likely be lost in a merger...it is hard to envision a consumer benefit from this merger that would justify it.

    If the role of the FCC is to serve the public interest, it should vigorously oppose this merger as a violation of anti-trust laws and cost-effective use of spectrum.

  6. S. ANDREW Di MAURO says:


  7. Bill Braskey says:

    Why is GE/NBC/AOL/TIME-WARNER/CHARTER/COMCAST/BRIGHTHOUSE still around? I can only hope this antitrust is extremely diligent in its study of not only the history and current choices (buy-outs and takeovers) along with the future decisions this behemoth will make. Please help us with this monopoly.

  8. Guest says:

    Since the bush addminitration gave away any and all form of anti trust principles that had been
    the barriers of merger and aqus takkin control of the air waves,newas papers ,locally owned Tv stations,locally owned radio this has poinsioned this country and turned it into one controled
    a hand full of groups such as GE.selling us wars as it sells arms to the worlds FREE countrys
    standard oils monopoly cant compare with todays mega corps that decide who we elect by
    the one with the most campain money for advertizing. But when the scum of this country decides
    that marketing of pricription drugs can be condoned,when every country in the world considers it
    unethical,morally and profes wrong than we have no more ,no less that THE WORLDS LARGEST

  9. Matthew E says:

    What does an ATT-TMobile merger accomplish /that benefits the average customer/ that could not be accomplished with a Joint Venture agreement? NOTHING, I think! I'd like to see an answer to that question answered by the FCC during its review process. We need more than 1 GSM carrier*!

    MORE IMPORTANTLY: Where is the info on the 'Comment Period' / how to file official comments on the proposed merger's review?

    Comments on this blog won't be considered unless they're filed officially. Anyone willing to committ to (re-)submit them? (Post links if you are...)

    Note: SIM chip-compatible systems (GSM carriers) is the relevant market. It was ultimately held by ruling Judge Thomas Penfield Jackson:
    "In other words, Microsoft enjoys monopoly power in the relevant market."
    In his decision, where he defined it thus: "THE RELEVANT MARKET:
    18. Currently there are no products, nor are there likely to be any in the near future, that a significant percentage of consumers world-wide could substitute for Intel-compatible PC operating systems without incurring substantial costs." (copy at albion.com/microsoft/findings-6.html )

  10. Guest says:

    I have enormous concerns about the pending AT&T acquisition of T-Mobile. I am concerned about 80% of all subscribers using just two carriers as I believe it puts our country at risk if the networks were to be somehow compromised. Not even considering the loss of pricing competition, I feel on a whole it is a horrible idea to just have two dominant national carriers. I do hope that the FCC and the DOJ will rise to the challenge and say no to this acquisition as it is not in the publics' best interest and this involves the publics' airwaves that do indeed need regulation.

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