Policy framework in telecommunications mergers and acquisitions: A comparative analysis of merger review of the FCC and the DOJ/FTC

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). With regard to this dual jurisdiction in mergers involving telecommunications and electronic media service providers, questions have arisen as to how the review standards of the two agencies differ and whether the sector-specific jurisdiction of the FCC in merger review is necessary given that all proposed mergers are subject to the DOJ/FTC investigation under federal antitrust law.; The purpose of this study was to explore the underpinnings of the differences between the DOJ/FTC and the FCC in merger review. This project also aimed to examine how the public interest standard of the FCC addressed the unique characteristics of the telecommunications and the electronic media industries and, thus, contributed to legitimize its sector-specific jurisdiction in merger review.; Examining fifteen mergers and acquisitions (M&A) cases that have been challenged as a violation of Section 7 of the Clayton Act, this study found that the review standard of the FCC was different from that of the DOJ/FTC in terms of the review criteria and the merger remedies as reflected in the conditions imposed on mergers. The study identified the public interest factors that the FCC considers in reviewing each merger. By presenting evidence of the FCC's distinct perspective in overall merger review standard, merger conditions, and its own public interest inquiry, this study demonstrated that the standards are distinct and different enough to legitimize the dual-agency review. Specifically, the findings from the analysis verified the complementary role of the DOJ/FTC as a federal antitrust enforcement agency and the FCC as a sector-specific agency.