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00-WDM Final for Web

Path to Regulatory Approval Any merger agreement between companies holding licenses issued by the FCC is subject to review by both the FCC and the DOJ. Although both agencies ultimately review the merger, the focus and scope of each agency’s review are unique. The DOJ reviews mergers to safeguard against the resulting company from infringing upon the competitiveness of the free market. The FCC, on the other hand, analyzes the merger to ensure that it is in the “public interest.” As the description implies, the FCC’s “public interest” standard is very amorphous and malleable. The Supreme Court has confirmed the wide degree of latitude in the FCC’s public interest standard, saying that it “no doubt leaves wide discretion and calls for imaginative interpretation.” Despite the indefiniteness of the standard, a few key elements are consistently factored into the analysis. Like the DOJ, the FCC is also interested in defending against an anticompetitive market. Further, the FCC examines considerations such as whether the merger accelerates private sector deployment of advanced services, promotes diversity of license holdings, and generally manages spectrum in the public interest. The FCC also evaluates the direct impact a merger may have on the consumer: namely whether the merger would result in lower prices, superior coverage, new services or any other consideration that would directly impact the consumer. Ultimately, the potential benefits are weighed against the potential harm to the public. One key issue in the analysis, a recent development that came into play during AT&T’s failed attempt to acquire T-Mobile, is the Spectrum Screen test. The W D M 89


00-WDM Final for Web
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