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File: [View Document]
Author: Yoo, Christopher S.
Citation: Merger Review by the Federal Communications Commission: Comcast-NBC Universal, 45 REV. INDUS. ORG. 295 (2014).
Date Published: 2014
Date Posted: 04/19/2015
Subjects: Law and Business
Law and Economics
Law and Regulatory Systems
Law, Technology and Communications
Keywords: Mass Media Law
Regulated Industries
Administrative Law
Antitrust
Communications Law
Computer Law
Electronic Commerce
Government Regulation
Information Law
Law and Technology
Abstract:
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.