Category Archives: Department of Justice

A Quick Primer on the FCC’s “Public Interest” Merger Review Authority…

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As we all know by now, Comcast announced that it would be acquiring Time Warner in a deal worth about $45.2 billion.  Given the high profile of this acquisition, I thought I would use this opportunity to highlight once again the ample case law on the bounds of the Federal Communications Commission’s “public interest” merger review authority.  (For a full exegesis, please see my law review Separating Politics from Policy in FCC Merger Reviews: A Basic Legal Primer of The “Public Interest” Standard, 18 CommLaw Conspectus 329 (2010) which is available on the Phoenix Center’s webpage here.) First, FCC merger Continue Reading »

The FCC Must Satisfy a High Legal Threshold if it Wants to Impose Bidder Exclusion Rules…

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According to press reports, the Federal Communications Commission is putting the finishing touches on its much-anticipated order establishing the rules for the upcoming voluntary incentive auctions mandated by the Middle Class Tax Relief and Jobs Creation Act of 2012 (the “Spectrum Act”).  The big question, of course, is whether the FCC will impose some sort of bidder exclusion rules that would prohibit—or, at minimum, severely constrain—AT&T and Verizon from acquiring more spectrum in the auction.  While newly-installed FCC Chairman Tom Wheeler is playing his cards close to the vest, given the Sixth Circuit’s reasoning in Cincinnati Bell v. FCC, 69 Continue Reading »

A Fresh Analytical Start at the FCC…

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The Federal Communications Commission is at a crossroads.  Burdened with implementing laws designed for a market structure of a bygone era—and with little prospect of a comprehensive legislative update on the horizon—incoming FCC Chairman Tom Wheeler faces a daunting task to adapt and modernize the agency’s approach to regulation so that we can remove, in President Obama’s words, those rules which have “outlived their usefulness.”  Equally as important, Mr. Wheeler has the related and no less daunting task of re-establishing the FCC’s credibility with the industry, Capitol Hill, the courts and (most importantly) the public as the “expert” agency which Continue Reading »

Arguments for Bidder Exclusion Rules Remain Weak and Inconsistent…

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Last week, the Phoenix Center released my Perspective entitled Will Bidder Exclusions Increase Auction Revenue?  A Review of the Arguments, which assessed the arguments being made about the revenue consequences of excluding AT&T and Verizon from the upcoming broadcast spectrum incentive auction.  While a number of parties have claimed that such exclusions can enhance auction revenues, I show in my Perspective that the economic theories they rely upon do not support the claim.  In fairness, Sprint, T-Mobile, and others are quick to note that they are not proposing to exclude the two most successful carriers completely, but rather are proposing Continue Reading »

It’s Time for FCC/DOJ Inter-Agency Cooperation to Come into the Sunlight…

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Over the past several years, there have been numerous efforts to improve the practices and procedures used at the Federal Commissions Commission.  However, of all of the potential improvements bandied about, I submit that there is one improvement that has been entirely overlooked and needs immediately implementation:  that is, the repeal of Section § 1.1204(6) of the FCC’s ex parte rules, which provides that the Commission and the Department of Justice (“DOJ”) can meet in secret as often as they like—without having to file anything into the record about the date of the meeting, who attended the meeting and what Continue Reading »