Several recent high-profile mergers in the communications industry have faced scrutiny from multiple U.S. federal agencies. These transactions, both successful and unsuccessful, have drawn attention to the process by which the U.S. government approves or blocks mergers and acquisitions in the communications and broadband Internet industries. Parallel investigations by both the Federal Communications Commission and U.S. Department of Justice highlight the similarities and differences between their respective merger review processes.
While the agencies analyze transactions simultaneously and in consultation with each other, each agency follows different standards and processes for their reviews, and can pursue different remedies. At the outset, DOJ focuses on a deal’s effects on competition, while the FCC applies a more expansive public interest standard. Investigations by DOJ are non-public, though the agency may seek input confidentially from parties to the transaction and other industry participants. The FCC’s process, however, actively seeks public engagement. And if either agency decides to challenge a transaction, each has a unique range of remedies to deploy.
Companies that understand these distinctions and strategize accordingly can reduce the pain of this dual-track process, maximize their efficiency in responding to the agencies, and possibly improve their likelihood of success. This article, by Hogan Lovells attorneys, explains the similarities and differences in more depth.