A quarter century ago I published a column in Legal Times titled, "Any Volunteers?" The editors added this subtitle: "The FCC unfairly regulates 'by condition' when it extracts concessions from merging telecom companies."
In the column, I criticized what was then becoming an increasingly frequent practice of extracting so-called "voluntary" concessions from applicants seeking to obtain FCC approval for their pending transactions involving mergers, acquisitions, or the like. Because the FCC reviews proposed transactions – whether the applicants hold spectrum licenses or common carrier authorizations – under the amorphous "public interest" standard, FCC commissioners found it easy to justify the extraction of conditions that, at least in their minds, comported with the public interest.
As I detailed in the column in 2000, often the voluntary, usually "midnight" concessions did not involve matters unique to the applicants before the Commission. And the conditions imposed did not involve compliance with specific then-existing requirements of the Communications Act or of Commission rules. The justification for imposing them was that they somehow advanced the public interest. The Legal Times column contains many examples of extraneous conditions imposed to obtain transaction approvals during the Clinton FCC period.
Regarding what I called "regulation by condition," I said: "The bottom line is that this process unfairly singles out merger applicants for regulation that, if justified at all, should be applied on an industrywide basis." And I urged Congress to reform the FCC's transaction review process.
In the ensuing 25 years, on many occasions I have bemoaned the ongoing practice – used most often, but not exclusively, by Democrat-controlled commissions – to extract extraneous "voluntary" commitments from supplicants seeking approval of proposed transactions. Again, by extraneous I mean the imposition of conditions that are not transaction-specific or uniquely related to the applicants as opposed to a generic group of market participants.
In both 2011 and 2013, my testimony before the House Energy and Commerce Committee urged reform of the FCC's transaction review process to prohibit the agency from imposing any condition not narrowly tailored to remedy a unique transaction-specific harm.
As a matter of principle, my position regarding the FCC's handling of transaction reviews and the need for reform of the process has been consistent throughout.
Which brings me to the FCC's approval of Skydance's acquisition of Paramount CBS, including its broadcast television stations. In approving the transaction, the FCC's Republican majority imposed an anti-DEI condition and an ""unbiased journalism" condition based on commitments offered by Skydance. Here's the FCC's description of both conditions:
"Commitment to Unbiased Journalism. Skydance has made written commitments to ensuring that the new company’s array of news and entertainment programming will embody a diversity of viewpoints across the political and ideological spectrum and that CBS’s reporting will be fair,
unbiased, and fact-based. To promote transparency and increased accountability, Skydance commits, for a period of at least two years, to have in place an ombudsman who will report to the President of New Paramount and evaluate complaints of bias.
Ensures that Discriminatory DEI Policies End. Skydance, which has no DEI programs in place today, has committed that it will not establish any such initiatives at the new company and confirms that New Paramount will also be committed to equal opportunity employment and nondiscrimination. This will ensure that the combined business will enact policies and practices consistent with the law and the public interest."
At this point in our nation's history, I generally oppose government-imposed or government-cajoled DEI programs because, all too often, in practical effect and however couched, they turn into coercive mandates that lead to forms of invidious discrimination. In other words, in effect, they deny equal treatment to those individuals who happen to be outside of the groups favored by the DEI programs and who did not engage in perpetuating any form discrimination themselves. And, like many, I am disturbed by the demonstrable left-leaning political bias that still largely prevails in many of what we called "mainstream" media outlets. So, philosophically, I am disposed to be sympathetic to the concerns that give rise to the FCC's anti-DEI and "unbiased journalism" conditions.
Nevertheless, as a matter of principle, I dislike seeing the FCC's transaction review process continue to be used to impose "voluntary" concessions not uniquely related to the specific transaction – as it was in this instance. To be sure, the "public interest" standard may be sufficiently indeterminate for today's Republican Commission majority to justify imposition of the anti-DEI and anti-political bias conditions. Certainly, under the public interest rubric, Democrat commissioners, historically, have resorted to the extraction of "voluntary" concessions leading to imposition of concededly extraneous conditions much more frequently than have their Republican colleagues. If you're not familiar with these instances, you can start with my "Any Volunteers?" column and go from there.
So, I could say "what goes around, comes around." Or what's "good for the goose is good for the gander." Or some such. There's lots of truth in those old sayings, and there's part of me that wants to leave it at that. This is especially so because there's rarely, if ever, any acknowledgement by those now decrying the FCC's handling of the Skydance transaction that "their side" has abused the review process in the past.
But I prefer not to leave it at that. I prefer to take leave offering the same consistent message I have offered for a quarter-century: Congress should reform the FCC's transaction review process along the lines I've advocated. That reform starts by prohibiting the agency from imposing any condition not narrowly tailored to remedy a unique transaction-specific harm.
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