Abstract
As a term, “innovation” has a variety of contextual meanings within media and telecommunications industries policy debates. This work first reviews how innovation impacted the 2011 Comcast NBCU merger, how economics researchers analyze innovation, how innovation lies at the center of the network neutrality debate, and how the Department of Justice and Federal Trade Commission’s treatment of innovation in their transaction reviews can alter the antitrust approval process for mergers and acquisitions. Next, a legal document content coding method is developed from the various economic and legal issues of innovation reviewed in prior sections and applied to all 509 instances of the term appearing throughout all 82 of the FCC’s major transaction orders between the Telecommunications Act of 1996 and the end of 2015. After categorizing each transaction as a merger, acquisition, joint venture, or licensing transaction, and by the general markets involved, coding results are used to analyze the term’s usage patterns in connection to these transactional characteristics, bundling, business mavericks, business innovation, innovation markets, technological innovation, and several other tagged factors. The usage histories of four legal definitions of innovation are explored through legal analysis. After reviewing strategic considerations of merger and acquisition choices, policy and business strategy issues are considered from a social welfare perspective. This work identifies that certain aspects of technological innovation are not explicitly considered in any transaction review framework and ultimately challenges antitrust law’s discrete market definitions and reliance on the Herfindahl-Hirschman Index. Open access considerations across a range of indirect competitors play a unique role unmatched by other forms of competition regulation, supporting claims that when narrowly tailored, network neutrality rules and other policies using broader market definitions may protect unspecifiable future innovations.
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