Q: Once parties file their applications with the FCC, what happens next?
A: Once the applications are complete and in compliance with our filing rules, the Commission will issue a public notice and set a schedule for the public to comment. Commission staff may also send requests for information to the applicants (and in some cases to third parties) The Commission will evaluate the economic and public interest implications of the transaction based on the full record developed in the proceeding.
Q: What is the timeline for review? When do you expect to make a determination?
A: The Office of General Counsel has developed an informal timeline of 180 days for reaching a decision on most applications. However, the 180 day “shot clock” is a guideline, not a requirement. The clock can be stopped if the staff’s review is delayed for reasons outside the FCC’s control, e.g., a change in the application, delayed submission of information or documents in response to a request from the FCC, or delay required by another agency or court (e.g., national security requirements or bankruptcy proceedings). Further, although the Commission seeks to meet the 180-day benchmark in all cases, its statutory obligation to determine that an assignment or transfer serves the public interest takes precedence over the informal timeline.
Q: What is the FCC’s public interest standard/test?
A: Under section 310(d) of the Communications Act, we determine whether a proposed transaction will serve the public interest, convenience and necessity. First, we determine if the application complies with provisions of the Act and our Commission rules. If it does, then we consider whether granting the application could result in public interest harms by substantially frustrating or impairing the objectives or implementation of the Communications Act or related statutes. Competition, diversity, localism, and encouraging the provision of advanced services to all Americans are among the principle objectives of the Act. We also consider what potential public benefits might occur because of the transaction.
We balance the potential public interest harms against the potential benefits. The Applicants bear the burden of proving, by a preponderance of the evidence, that the proposed transaction, on balance, will serve the public interest.
Q: What is the best way for the public to comment? Will the Commission establish an email address?
A: In major transactions, the Commission issues a Public Notice soliciting comments and providing details about how the comments should be filed. Comments on pending major transactions should be filed electronically, and the first page of the comments should include the docket number of the proceeding, which can be found in the public notice or on the web page for the specific transaction.
Where there is no Public Notice, those wishing to file comments should contact the relevant Bureau for detailed instructions. Comments also may be filed on paper with the FCC’s Secretary’s Office; the relevant file numbers or other identifying information must be included on the cover letter and on the first page of the comments.
Q: Can consumers submit comments using social media?
A: In most cases, public comments are accepted through the Commission’s Electronic Comment Filing System.
Q: What documents are made public?
A: Ordinarily, most documents in the record will be public. The exception is when the Commission asks the applicants (and sometimes third parties) for competitively-sensitive or otherwise confidential information. In that case, we will issue a protective order that maintains the information’s confidentiality but allows qualifying attorneys and experts for participating parties to review the information so they can provide comments and otherwise participate in the proceeding.
Q: Why do some filings contain redacted information?
A: Some filings contain competitively-sensitive or otherwise confidential material that would be harmful to the party submitting the information if it were publicly available. Typically, the Commission protects competitively-sensitive and proprietary information and allows parties to redact that information from the public version of comments or documents that are filed. The information may be reviewed by qualifying counsel and experts under the Commission’s protective orders.
Q: What are the potential outcomes of an FCC transaction review?
A: There are three potential outcomes of the review: if the transaction violates a statute or rule, the Commission will deny the application; otherwise, the Commission can approve the transaction, with or without conditions), or, if for any reason it is unable to find that the transaction would serve the public interest (or if there is a substantial and material question of fact), it must designate the transaction for a hearing before an Administrative Law Judge.
Q: How does the Commission reach and announce its decision?
A: If the transaction is being considered by the full Commission, the staff from the relevant bureaus and offices, as well as from the Office of General Counsel, analyzes the transaction and presents a draft order to the Commissioners, which serves as a basis for their consideration. The Commissioners review the draft order, suggest edits, and vote whether to approve the applications. The final decision and the order are determined by a majority of the Commissioners. If the transaction is being reviewed by a Bureau on delegated authority, the Bureau’s staff, along with OGC staff, analyzes the transaction and prepares a draft order. The Bureau Chief reviews the draft order, makes edits, and decides whether to approve the transaction. Any party to the proceeding may ask the Commissioners to review that decision.
Q: What happens if the FCC doesn't find the deal in the public interest?
A: The Commission is required by the Communications Act to designate the applications for a hearing with an Administrative Law Judge if it cannot approve the applications, even with conditions. If the order designates the application for a hearing, the applications will go before an ALJ for a hearing and an initial decision, where the applicants still have the burden of proof. The full Commission will then vote whether to approve the applications.
Q: What does “the FCC is unable to find” mean – is it that the full Commission can’t agree on the review team’s recommendation?
A: It is the applicants’ burden to persuade the Commission that it should grant their applications. If they cannot persuade the Commissioners (or a Bureau Chief in the case of a transaction being reviewed on delegated authority) that granting their applications, even with conditions, would serve the public interest, the Commission must set the applications for a hearing before an ALJ.
Q: What are DOJ and FCC’s roles in merger review? Does the FTC have a role?
A: Broadly, both the Department of Justice and the Federal Trade Commission review mergers under the antitrust laws to determine whether they will substantially lessen competition but only one of them reviews any particular transaction.
Q: How does the DOJ’s and FTC’s review differ from the FCC’s?
A: The antitrust agencies conduct a confidential investigation, and if they believe that consummation of the merger would violate the antitrust laws, they must go to court to stop the merger or get approval for a settlement that will prevent any competitive harms.
The FCC reviews transactions under the Communications Act to determine whether they serve the public interest. The review process includes public comment and the decision must be based on the public record. The FCC’s review takes into account public interest concerns broader than strict antitrust issues, including spectrum aggregation, universal service, localism and diversity.
Q: How do the agencies coordinate?
A: Looking at past transactions, the Department of Justice and the FCC have worked very successfully together to further their understanding of the issues, sharing their respective expertise. We coordinate with DOJ informally at both the top levels and the staff levels. We try to ensure that we do not create duplicate work or place excessive burdens on any of the parties. We work together to avoid conflict between the necessary remedies.