Antitrust Law Daily Changes to FTC, FCC processes for merger challenges under consideration in Senate
Wednesday, May 16, 2018

Changes to FTC, FCC processes for merger challenges under consideration in Senate

By Jeffrey May, J.D.

One week after the U.S. House of Representatives passed legislation intended to align the procedures used by the FTC and the Department of Justice Antitrust Division in challenging unconsummated acquisitions and mergers, Senate Republicans have introduced their version. While the Senate version of the proposed "Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act" (S. 2487) is not identical to the House version (H.R. 5645), both measures are aimed at requiring the FTC to follow the same procedures and adhere to the same injunction standard as the Department of Justice Antitrust Division when suing to block a proposed merger.

The Senate bill also would require the Federal Communications Commission (FCC) to issue merger review decisions expeditiously. The agency would have to issue a decision within 180 days of receiving a completed merger application if the bill became law. The House bill did not include this language.

"The only people that benefit from uncertainty in antitrust law are antitrust lawyers," said Senator Mike Lee (R.-Utah), chairman of the Senate Judiciary Committee’s antitrust subcommittee and a sponsor of the legislation. "Both businesses and consumers deserve clarity and certainty when it comes to federal antitrust law enforcement and the SMARTER Act would create a simpler and more equal system."

Along with Lee, Senators Orrin Hatch (R.-Utah), Thom Tillis (R.-N.C.), and Chuck Grassley (R.-Iowa) are sponsors.

In a statement released today, Hatch said: "Businesses seeking to merge deserve consistent treatment without regard to which agency decides to review the merger. I look forward to working with Senator Lee to move this legislation forward to bring much-needed reforms to the merger review process."

According to the Hatch statement, under the proposal, the FTC would be required to satisfy the same standards that the Department of Justice must meet in order to obtain a preliminary injunction to block a merger. It also would require the FTC to litigate the merits of contested merger cases in federal court under the Clayton Act rather than before its own administrative tribunals. With respect to the FCC, the legislation is aimed at the "open-ended process that fuels uncertainty and is potentially insulated from judicial review."

Similar measures designed to align the FTC and Justice Department merger enforcement process have been introduced in Congress in the past but have stalled in the Senate after House passage. The changes also were opposed by the Obama Administration. President Trump would presumably be favorable to the changes, which are primarily supported by Republican lawmakers. The House vote on H.R. 5645 was 230 to 185, largely along party lines.

MainStory: TopStory AcquisitionsMergers Antitrust AntitrustDivisionNews FederalTradeCommissionNews FedTracker

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