Separating Politics from Policy in FCC Merger Reviews: A Basic Legal Primer of the 'Public Interest' Standard

Abstract

This Bulletin presents a brief primer of the FCC's merger review authority under the Communications Act. As outlined herein, precedent dictates that the FCC has independent (and indeed broader) authority to review communications industry mergers separate from the authority bestowed upon the Department of Justice or Federal Trade Commission and, moreover, that this public interest review provides a useful and unique purpose. The FCC has clear responsibility to consider competitive effects and to conduct a rigorous economic analysis in any merger review under the traditional public interest standard. To the extent the FCC finds that the proposed merger harms the public interest in some way, the FCC is well within its public interest authority to issue narrowly-tailored to its approval of the merger. But the FCC's merger review authority is not unfettered and, absent a clear nexus to any merger-related harm, the FCC should not use case-specific merger proceedings to achieve indirectly via voluntary conditions what it cannot do directly. If there are generic policy issues facing the industry - such as the emerging issue of network neutrality - then those issues are better handled in formal industry - wide notices of inquiry or rulemakings where they can be effectively dealt with in an open and more comprehensive manner.