This Essay argues that the FCC inconsistently dissects market trends, and its costly processes—paired with DOJ review—stymie growth in the telecommunications industry. Part I traces the history of dual review and compares the FCC’s procedures with the DOJ’s. Part II evaluates the Comcast-NBCU deal— its history, the FCC Order, and the conditions imposed. Part III argues that the FCC is not adept at analyzing telecommunications transactions, and is certainly not adept at predicting market developments. It then claims that the Comcast-NBCU deal unearthed serious problems in the dual review process. Specifically, jurisdictional restrictions facing the FCC limit the types of transactions it can regulate, as compared to traditional antitrust agencies. Ultimately, this Essay recommends that the DOJ have sole authority to review mergers because it can apply a consistent framework to all telecommunications transactions.
Matthew J. Razzano,
Comcast-NBCU, Netflix, and the FCC: The Dual Merger Review Process as a House of Cards,
Notre Dame L. Rev. Online
Available at: https://scholarship.law.nd.edu/ndlr_online/vol94/iss2/2