Dual Antitrust Review of Telecommunications Mergers by the Department of Justice and the Federal Communications Commission
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DUAL ANTITRUST REVIEW OF
TELECOMMUNICATIONS MERGERS BY THE
DEPARTMENT OF JUSTICE AND THE FEDERAL
COMMUNICATIONS COMMISSION
Donald J. Russell and Sherri Lynn Wolson*
INTRODUCTION
The years since enactment of the Telecommunications Act of 1996
witnessed an extraordinary number of mergers and acquisitions in the tele-
communications industry, involving many of the largest providers of local
telephone service, domestic and international long distance service, cable
television service, wireless telecommunications service, and radio broad-
casting. While merger activity slowed in the recent past-presumably be-
cause of the extraordinary difficulties seen in financial markets generally,
particularly in the telecommunications sector-many observers believe that
further restructuring of the telecommunications industry through mergers is
desirable and inevitable, even if the timetable for such transactions is un-
predictable.
The current interregnum in merger activity provides an opportune time
to consider the institutional arrangements for reviewing and addressing
concerns about the potential competitive effects of telecommunications
mergers. In many industries, the competitive effects of mergers are evalu-
ated in a single review of the transaction conducted by one of the two fed-
eral antitrust agencies-the Antitrust Division of the U.S. Department of
Justice (DOJ) or the Federal Trade Commission (FTC).1 In stark contrast,
* Donald J. Russell is a founding partner of Robbins, Russell, Englert, Orseck & Untereiner LLP
and the former Section Chief of the Antitrust Division's Telecommunications Task Force. Sherri Lynn
Wolson is an Associate, Robbins, Russell, Englert, Orseck & Untereiner LLP and a former Trial Attor-
ney of the Telecommunications Task Force.
I The DOJ and the FTC share antitrust jurisdiction with respect to most mergers and acquisitions.
At the outset of the merger review process, the two agencies decide which will review a specific trans-
action through an interagency clearance process, a decision typically based on a case-by-case assess-
ment of the agencies' respective historical experiences in the industry affected by the transaction. See
ABA SECTION OF ANTITRUST LAW, ANTITRUST LAW DEVELOPMENTS 727 (5th ed. 2002). The FTC
does not have jurisdiction over common carriers, however, and the vast majority of telecommunications
mergers have historically been reviewed by the DOJ. In early 2002, the agencies attempted to reform
the clearance process by formally allocating primary areas of responsibility. Under this agreement,
mergers in the telecommunications and media industry were allocated to DOJ. See Press Release, DOJ,
DOJ and FTC Announce New Clearance Procedures for Antitrust Matters (Mar. 5, 2002) (on file with](ViewImageLocal?handle=hein.journals/gmlr11&div=13&collection=&method=preview&ext=.png&size=3)
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Dual Antitrust Review of Telecommunications Mergers by the Department of Justice and the Federal Communications Commission
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