Academic journal article Federal Communications Law Journal

Brace Yourself, Voluntary Commitments Are Coming: An Analysis of the FCC's Transaction Review

Academic journal article Federal Communications Law Journal

Brace Yourself, Voluntary Commitments Are Coming: An Analysis of the FCC's Transaction Review

Article excerpt

TABLE OF CONTENTS  I.   INTRODUCTION                                                   239 II. THE FCC'S LEGAL FRAMEWORK FOR REVIEWING COMMUNICATION     INDUSTRY TRANSACTIONS                                           240     A. Overview of the FCC's Antitrust Mandate to Review        Transactions                                                 241     B. How the FCC Achieves the Public Interest: Modes and        Actions                                                      242     C. Policymaking Through Voluntary Commitments in        Communication Industry Transactions                          243 III. ESTABLISHING THE OVERREACH OF VOLUNTARY COMMITMENTS AND      THE ROAD TO REVIEWABILITY                                      244      A. The FCC's Imposition of Voluntary Commitments is De         Facto Rulemaking                                            245         1. AT&T/BellSouth                                           246         2. Ameritech/SBC                                            247         3. Comcast/NBC Universal                                    248      B. The Concept of Reviewability: Agency Action and No-Action   249         1. Decisions Committed to Agency Discretion by Law are            Unreviewable                                             250         2. Heckler v. Chaney: Four Factors to Overcome the            Presumption of Unreviewability in Decisions Committed            to Agency Discretion by Law                              251      C. Voluntary Commitment's First Cousins: Settlement      Negotiations and Consent Decrees                               253 IV. JUDICIAL REVIEW AS THE REMEDY FOR THE FCC'S OVERREACH IN     TRANSACTION REVIEW                                              254     A. Obtaining Judicial Review by Virtue of the APA               256        1. Article III Courts are Necessary and Appropriate to           Adjudicate Claims of the FCC's Overreach in           Transaction Review                                        256        2. Voluntary Commitments Are Not Presumptively           Unreviewable under 5 U.S.C. [section] 701(a)(2) Because           It Weighs in Favor of the Heckler's Factors               257        3. Voluntary Commitments are Settlement Negotiations           Reviewable by Article III Courts                          258     B. Obtaining Judicial Review through Congress: The Tunney Act        as a Blueprint                                               259 V. CONCLUSION                                                       260 

INTRODUCTION

Imagine you walk into the offices of an unelected regulatory body tasked with setting policy at the highest levels. They've been busy crafting rules and regulations, but the slow process has reached a boiling point. Some are willing to do whatever it takes to speed up the process--including throwing the rulebook out altogether. You tell the regulators they don't need to look beyond its enabling statute, which allows them to make policy in an alternative fashion without the mess of following statutorily prescribed procedures or subjecting their decisions to the courts. The regulators say it sounds too good to be true, and asks if this is limitless authority. You reply with an emphatic "yes!" They then ask a follow-up question. Can we coerce American businesses in transactions to bend to our policy at-will? You once again reply in the affirmative and leave them with a newfound purpose and way of doing business.

As stakeholders who care deeply about the rule of law, this situational exaggeration of an example would be just how it sounds--fictional and silly. However, some have argued that it is closer to reality than we would like to think, particularly when it comes to the Federal Communications Commission ("FCC"). Over the course of many years, the independent agency has relied upon a single statutory provision to carve out for itself a role in reviewing communication industry transactions valued in the tens of billions of dollars, and in the process, imposes binding obligations ranging from digital literacy programs to mandated disaster relief donations. …

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