I
106TH CONGRESS
1ST SESSION
H. R. 3186
To restrict the authority of the Federal Communications Commission to
review mergers and to impose conditions on licenses and other authoriza-
tions assigned or transferred in the course of mergers or other trans-
actions subject to review by the Department of Justice or the Federal
Trade Commission.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 1, 1999
Mr. BURR of North Carolina introduced the following bill; which was referred
to the Committee on Commerce, and in addition to the Committee on the
Judiciary, for a period to be subsequently determined by the Speaker, in
each case for consideration of such provisions as fall within the jurisdic-
tion of the committee concerned
A BILL
To restrict the authority of the Federal Communications
Commission to review mergers and to impose conditions
on licenses and other authorizations assigned or trans-
ferred in the course of mergers or other transactions
subject to review by the Department of Justice or the
Federal Trade Commission.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Telecommunications
Merger Review Act of 1999’’.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) A stated intent of the Congress in enacting
the Telecommunications Act of 1996 was to reduce
regulation.
(2) Under existing law, the Department of Jus-
tice and the Federal Trade Commission exercise pri-
mary authority to review all mergers, including tele-
communications industry mergers. The Federal
Communications Commission has only limited au-
thority under the Clayton Act to review tele-
communications industry mergers.
(3) The Department of Justice and the Federal
Trade Commission have extensive expertise in ana-
lyzing issues of industry concentration and its ef-
fects on competition. The Federal Communications
Commission has only limited expertise in analyzing
such issues.
(4) Notwithstanding the limitations on its Clay-
ton Act jurisdiction and on its substantive expertise,
the Federal Communications Commission exercises
broad authority over telecommunications industry
mergers pursuant to the nonspecific public interest
standard and other provisions in the Communica-
tions Act of 1934 that allow it to impose terms and
conditions on the assignment and transfer of licenses
and other authorizations.
(5) The Federal Communications Commission’s
exercise of broad authority over telecommunications
industry mergers overreaches its intended statutory
authority and its substantive expertise and produces
delay and inconsistency in its decisions.
(6) Under existing law, parties to a proposed
telecommunications industry merger are unable to
proceed without the prior approval of the Federal
Communications Commission, even if the Depart-
ment of Justice or the Federal Trade Commission
have already approved the merger.
(7) The Federal Communications Commission’s
existing rulemaking and enforcement prerogatives
constitute normal and effective means of assuring
that all licensees, including parties to a tele-
communications industry merger, operate in the
public interest.
(8) The primary jurisdiction and preeminent ex-
pertise of the Department of Justice and the Fed-
eral Trade Commission on all matters involving in-
dustry concentration and its effects on competition,
combined with the Federal Communications Com-
mission’s existing rulemaking and enforcement pre-
rogatives, make the exercise of separate tele-
communications industry merger approval authority
by the Federal Communications Commission unnec-
essary.
(9) Because the duplication of effort, inconsist-
ency, and delay resulting from the Federal Commu-
nications Commission’s review of telecommunications
industry mergers is unnecessary, it imposes unwar-
ranted costs on the industry, on the Commission,
and on the public, and it fails to serve the public in-
terest.
SEC. 3. REPEAL OF MERGER APPROVAL AUTHORITY.
Section 11(a) of the Clayton Act (15 U.S.C. 21(a))
is amended by striking ‘‘in the Federal Communications
Commission where applicable to common carriers engaged
in wire or radio communication or radio transmission of
energy;’’.
SEC. 4. REPEAL OF AUTHORITY TO CONDITION LICENSES,
ETC.
(a) BASIC ADMINISTRATIVE AUTHORITY.—Section
4(i) of the Communications Act of 1934 (15 U.S.C.
154(i)) is amended by adding at the end thereof the fol-
lowing: ‘‘The authority of the Commission to impose terms
or conditions on the transfer or assignment of any license
or other authorization assigned or transferred in a merger
or other transaction subject to review by the Department
of Justice or the Federal Trade Commission is subject to
section 314.’’.
(b) PUBLIC CONVENIENCE AND NECESSITY.—Sec-
tion 214(c) of the Communications Act of 1934 (47
U.S.C. 214(c)) is amended by inserting after ‘‘require.’’
the following: ‘‘The authority of the Commission to impose
terms or conditions on the transfer or assignment of any
such certificate assigned or transferred in a merger or
other transaction subject to review by the Department of
Justice or the Federal Trade Commission is subject to sec-
tion 314.’’.
(c) RESTRICTIONS AND CONDITIONS NECESSARY TO
CARRY OUT 1934 ACT; TREATIES; INTERNATIONAL CON-
VENTIONS.—Section 303(r) of the Communications Act of
1934 (47 U.S.C. 303(r)) is amended by adding at the end
thereof the following: ‘‘The authority of the Commission
under this paragraph to impose terms or conditions on the
transfer or assignment of any license or other authority
assigned or transferred in a merger or other transaction
subject to review by the Department of Justice or the Fed-
eral Trade Commission is subject to section 314.’’.
(d) ALIEN-OPERATED AMATEUR RADIO STATIONS.—
Section 310(d) of the Communications Act of 1934 (47
U.S.C. 310(d)) is amended by adding at the end thereof
the following: ‘‘The authority of the Commission to impose
terms or conditions on the transfer or assignment of any
authorization issued under this section that is assigned or
transferred in a merger or other transaction subject to re-
view by the Department of Justice or the Federal Trade
Commission is subject to section 314.’’.
(e) PRESERVATION
OF
COMPETITION
IN
COM-
MERCE.—Section 314 of the Communications Act of 1934
(47 U.S.C. 314) is amended to read as follows:
‘‘SEC. 314. PRESERVATION OF COMPETITION IN COM-
MERCE.
‘‘(a) IN GENERAL.—Notwithstanding any other pro-
vision of law, the Commission has no authority to review
a merger or other transaction, or to impose any term or
condition on the assignment or transfer of any license or
other authorization issued under this Act that is proposed
to be assigned or transferred in the course of a merger
or other transaction, while that merger or other trans-
action is subject to review by either the Department of
Justice or the Federal Trade Commission.
‘‘(b) COMMUNICATIONS MERGERS PRIMARILY RE-
VIEWABLE BY DOJ AND FTC.—The Department of Jus-
tice, or the Federal Trade Commission, has primary au-
thority under existing law to review mergers and other
transactions involving the proposed assignment or transfer
of any license or other authorization issued under this Act.
The Commission may file comments in any proceeding be-
fore the Department of Justice or the Federal Trade Com-
mission to review a merger or other transaction involving
the proposed assignment or transfer of any license or
other authorization issued under this Act if those com-
ments reflect the views of a majority of the Commission.
‘‘(c) COMMISSION SHALL IMPLEMENT DOJ OR FTC
DECISION WITHOUT ADDITIONAL TERMS
OR CONDI-
TIONS.—If—
‘‘(1) the Department of Justice or the Federal
Trade Commission reviews a merger or other trans-
action involving the proposed assignment or transfer
of any license or other authorization issued under
this Act; and
‘‘(2) it issues a written decision of absolute or
conditional approval of, or issues a written state-
ment of nonintervention in, the proposed merger or
other transaction,
then the Commission shall authorize the assignment or
transfer of any license or other authorization involved in
the merger or transaction in accordance with the decision,
if any, or as proposed, if a written statement of non-
intervention is issued. The Commission may not impose
any other term or condition on the assignment or transfer
of the license or other authorization so assigned or trans-
ferred, or impose any other obligation on any party to that
merger or transaction.
‘‘(d) COMMISSION REVIEW
OF MERGERS ABSENT
DOJ OR FTC PRONOUNCEMENT.—
‘‘(1) IN GENERAL.—The Commission may not
review any application for assignment or transfer of
a license or other authorization issued under this
Act in connection with a merger or other transaction
unless neither the Department of Justice nor the
Federal Trade Commission issues a decision or
statement described in subsection (c)(2) in connec-
tion with that merger or other transaction.
‘‘(2) 60-DAY TURNAROUND.—The Commission
shall conclude any review of a merger or other trans-
action it may conduct under paragraph (1) within
60 days after the date on which the Department of
Justice and the Federal Trade Commission, which-
ever is appropriate, issues such a decision or state-
ment.
‘‘(3) PRESUMPTION; DEFAULT APPROVAL.—In
reviewing an application under paragraph (1), the
Commission shall apply a presumption in favor of
unconditional approval of the application. If the
Commission fails to issue a final decision within the
60-day period described in paragraph (2), the appli-
cation shall be deemed to have been granted uncon-
ditionally by the Commission.’’.
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