How Fcc Transaction Reviews Threaten Rule of Law and the First Amendment

30 Pages Posted: 12 Jul 2018

See all articles by Brent Skorup

Brent Skorup

George Mason University - Mercatus Center

Christopher Koopman

Mercatus Center at George Mason University

Date Written: 05/19/2016

Abstract

Since its creation in 1934, the Federal Communications Commission has had broad discretion to approve or deny the consummation of major transactions by wireless and wired communications firms under a public interest standard. Despite the passage of decades, neither the FCC nor the courts have put meaningful limits on what the FCC can pursue under this authority. Today, regulated companies--including broadcast TV and radio, satellite TV and radio, cable TV, and Internet service providers--are the primary producers and distributors of mass media and publications. We model the FCC’s decisions to extract concessions from firms under the empire building model. The FCC’s ad hoc determinations of the public interest and the impracticability of timely judicial review has pernicious effects on modern media and the rule of law. Consistent with the model, the FCC increasingly extracts nominally voluntary concessions from firms--including programming decisions, hiring practices, and “net neutrality” compliance--in the transaction approvals that the agency is legally barred from or unwilling to pursue through the normal regulatory process. We argue that the FCC’s unpredictable and coercive transaction reviews violate rule of law norms and pose significant First Amendment problems. We question the necessity of the FCC’s powerful merger review authority and suggest that if Congress does not revoke the agency’s authority, the agency should at least promulgate guidelines for what its public interest standard requires.

Suggested Citation

Skorup, Brent and Koopman, Christopher, How Fcc Transaction Reviews Threaten Rule of Law and the First Amendment (05/19/2016). MERCATUS WORKING PAPER. Available at SSRN: https://ssrn.com/abstract=3211661 or http://dx.doi.org/10.2139/ssrn.3211661

Brent Skorup (Contact Author)

George Mason University - Mercatus Center ( email )

3434 Washington Blvd., 4th Floor
Arlington, VA 22201
United States

Christopher Koopman

Mercatus Center at George Mason University ( email )

3434 Washington Blvd., 4th Floor
Arlington, VA 22201
United States

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