Charter/Cox Transaction, Approved by Federal Regulators, Awaits California OK

On March 19, the New York State Public Service Commission approved – with questionable conditions – the transfer of control of Cox Enterprises, Inc. (Cox) to Charter Communications, Inc. (Charter). Weeks before, the FCC signed off on this pro-consumer transaction with no strings attached. The Department of Justice (DOJ), for its part, cleared the deal in September 2025, thereby triggering a one-year countdown during which the transaction must close lest that approval expire.

The California Public Utilities Commission (CPUC) now stands as the final, time-sensitive hurdle preventing the formation of a combined company better able to compete in broadband, mobile, and video. The parties therefore requested on February 27 that, should the CPUC find it necessary to hold an evidentiary hearing, it do so "promptly" – specifically, at some point next week. However, on March 2, the CPUC announced that it would not hold evidentiary hearings until April 20-24.

In a June 2025 Perspectives from FSF Scholars, FCC comments coauthored with Free State Foundation President Randolph May, and a brief submission to the CPUC, I consistently have argued that this transaction likely would deliver tangible consumer benefits without imposing significant offsetting harms. For example, in those comments filed with the CPUC, I wrote that:

[T]he combination of these two companies promises to provide California consumers of broadband, wireless, and video services with cost savings, expanded choice, and accelerated innovation, particularly in Cox service areas. Moreover, potential concerns regarding transaction-specific harms are obviated by (1) the de minimis overlap between the parties' respective geographic footprints, and (2) the substantial competitive pressures cable operators face from Big Tech, rival distribution technologies, and over-the-top content providers.

In a February 27 order, the Chiefs of the FCC's Wireline Competition Bureau, Office of International Affairs, and Wireless Telecommunications Bureau agreed, concluding that there are "certain public interest benefits [that] are likely to be realized, including promoting competition and consumer benefits for broadband and other services the combined company will provide" – and not "a significant likelihood of any material transaction-related public interest harms."

But as these things go, Charter and Cox also must obtain approvals from the states within which they operate. As noted above, New York recently blessed the transaction – though not without first extracting a figurative pound of flesh in the form of commitments to (1) spend at least $100 million on network upgrades to deliver symmetric Gigabit per second broadband speeds (that is, speeds well above the FCC's definition of "broadband": 100 Megabits per second (Mbps) downstream and 20 Mbps upstream), (2) replace 500+ Wi-Fi access points and provide free Wi-Fi access to non-customers, and (3) "fund digital inclusion and community initiatives."

That leaves California.

At the Morgan Stanley Investors Conference earlier this month, Charter Communications, Inc. CEO Chris Winfrey acknowledged that, "[n]o secret, we're working through California as the big state that remains open." And as a Charter spokesperson was quoted in a recent Broadband Breakfast article, "[w]e are working with California state regulators to complete the transaction review soon so we can bring lower prices, higher wages, and our 100% US-based customer service to more communities across the country."

There is now widespread agreement, at both the federal and state levels, that the combination of Charter and Cox would net substantial consumer benefits. California therefore should conclude its review with all due speed. Specifically, it should do so with a watchful eye toward the September 15 expiration date associated with the DOJ's approval – a deadline that, if missed, "would cost the companies $2.5 million in filing fees and require them to wait at least another 30 days for DOJ clearance."

Reduce Multiple Government Agency Merger Reviews

On June 11, the Connecticut Public Utilities Regulatory Authority reportedly issued an order approving the Verizon/Frontier merger. The approval is welcome news, insofar as it involves the clearing of a regulatory hurdle to the completion of a pro-competition, pro-consumer transaction. As explained in a blog post from last month, the FCC approved the Verizon/Frontier on May 16. In its order, the FCC found that there are no potential transaction-related public interest harms and that there are some likely public interest benefits from the transaction. Verizon's and Frontier's wireline services operate in different geographic territories, meaning consumers do not lose a choice of providers as a result of the merger. Moreover, Verizon is more likely to invest in and improve service in Frontier territories than Frontier would absent the merger. Verizon's acquisition of Frontier means that fiber will reach more Americans – sooner.

 

Even with the approval by Connecticut regulators, the Verizon/Frontier merger is reportedly subject to pending reviews by state regulators in Pennsylvania and California. This raises the process issue of whether overlapping reviews of proposed mergers by state regulators are likely to provide added public benefits or more likely to result in extra costs and delays due to redundant reviews. This is not a new issue; it was the subject of my December 2010 Perspectives from FSF Scholars, "Multiple Government Regulatory Reviews Burden Telecom Mergers with Too Many Conditions." Therein, I discuss the problem of compounding process costs and regulatory conditions that can result from redundant merger reviews. 

 

One approach for a more efficient, streamlined process for mergers involving interstate communications service providers is to enable a sole federal agency review process in which state regulators are encouraged to provide input regarding state-specific concerns. 

 

Also, the FCC could adopt rules or issue a declaratory order setting forth limits on state regulatory conditions for merger approval as well as limits on state-level merger review process shotclocks. Actions by state regulators that transgress those limits and conflict with federal law would be subject to federal preemption. Certainly, this approach is viable in the interstate wireless communications services context, as merger review by state public utility commissions effectively constitutes state-level restrictions on market entry contrary to Section 332(c)(3) of the Communications Act. 

 

Hopefully, Pennsylvania and California will promptly conclude their reviews of Verizon/Frontier and allow fiber broadband to timely deploy to more Americans. 

Decision Time for T-Mobile/UScellular Transaction

On May 2, UScellular announced that it lost about 38,000 wireless post-paid subscribers in the first quarter of 2025 – double the subscriber losses it incurred in the last quarter of 2024. Right now, UScellular is a party to a proposed transaction to transfer about 30% of its spectrum licenses as well as its wireless operations and subscribers to T-Mobile. It is not unexpected for a firm selling assets (or merging with a larger firm) to experience hardships in the marketplace during the pendency of transaction review proceedings by government agencies such as the FCC. Yet such an occurrence is a compelling reason for the Commission to act quickly in completing its review of the T-Mobile/UScellular transaction. 

Today, May 6, is day 188 on the FCC's informal 180-day "shot clock" for reviewing the T-Mobile/UScellular transaction. In other words, the Commission already has exceeded the period that the agency has established as its review timeline goal. Moreover, the Justice Department-led Team Telecom review of T-Mobile/UScellular – with a standard review period of up to 120 days – didn't even kick off until April 10. Thus, further review proceeding delays by both the FCC and Team Telecom threaten to damage UScellular by keeping it in regulatory limbo. Both reviews must be brought to a speedy conclusion.

As explained in comments filed in January 2025 by the Free State Foundation in January – and encapsulated and a March 31 blog post by Senior Fellow Andrew Long – the T-Mobile/UScellular transaction appears to be both pro-competitive and pro-consumer. The record in the proceeding strongly indicates wireless consumers, including existing UScellular subscribers, would benefit from the approval of the transaction. Also, arguments raised in the proceeding by parties opposing T-Mobile/UScellular all but entirely involve matters that are extraneous to the deal. 

 

Moreover, at a surface level, it is highly unlikely that T-Mobile's acquisition of commercial spectrum licenses, wireless operations, and subscribers would negatively impact U.S. national security. Certainly, no lengthy Team Telecom review should be needed to reach a conclusion. 

 

The fact that the Biden Administration moved slowly at the commencement of the T Mobile/UScellular review proceeding is all the more reason for the Trump Administration to move with dispatch in considering the transaction. 

T-Mobile/UScellular Transaction Ripe for Agency Action

According to the FCC's website (see graphic below), the agency's review of the $4.4 billion T-Mobile/UScellular transaction has entered its final month. The record evidence overwhelmingly indicates that consumers, including but not limited to current UScellular customers, would be better off if this deal were approved. Therefore, action prior to the end of the 180-day shot clock is warranted.

In an Opposition to Petitions to Deny filed on January 8, 2025, FSF President Randolph May and Director of Policy Studies and Senior Fellow Seth Cooper expressed their view that the proposed transaction likely would produce pro-competitive benefits, benefits that would outweigh any potential harms. They also noted that arguments against the transaction generally lack supporting evidence and/or a specific nexus to the instant transaction.

T-Mobile and UScellular, GN Docket No. 24-286

Source: fcc.gov

As Mr. Cooper described in a post to the FSF Blog shortly after the parties filed their Public Interest Statement on September 13, 2025, that regulatory filing "presents a prima facie case that [the] proposed transaction … will bring public interest benefits that outweigh any potential competitive concerns."

Tangible benefits identified and documented include faster 5G mobile broadband speeds, higher data capacity, and greater availability of fixed wireless access (FWA) home broadband service, especially in rural areas.

Potential harms, meanwhile, are unlikely given the robust competition that exists in the mobile broadband marketplace, a landscape documented by the Free State Foundation in June 2024 comments to the FCC for its 2024 Communications Marketplace Competition Report. Consumers can choose between three nationwide providers, EchoStar's upstart network that is available to over 70 percent of the U.S. population, mobile virtual network operators (MVNOs) such as Spectrum Mobile and Xfinity Mobile, and regional providers.

Potential harms also would be mitigated by the specific nature of this transaction – in particular, the relative disparity in their respective subscriber bases (126 million versus 4.5 million), the limited extent to which the parties directly compete (as Mr. Cooper pointed out in a February 2025 blog post, the parties "apparently do not have an overlapping competitive presence in thirty-seven percent (37%) of the Cellular Marketing Areas (CMAs) implicated by the proposed deal"), and the fact that T-Mobile sets "its pricing and service terms on a nationwide basis."

In addition, approval of this transaction would enable the efficient and timely reallocation of spectrum to its highest and best use while we wait for Congress to renew the Commission's auction authority – a priority Senate Commerce Committee Chairman Ted Cruz (R-TX) discussed in his Keynote Address at the Free State Foundation's recent Seventeenth Annual Policy Conference (video available here).

T-Mobile/UScellular Transaction Deserves a Timely Decision by the FCC

 On January 28, the public comment period closed in the FCC's review proceeding for the T-Mobile/UScellular transaction. The weight of available evidence indicates that the proposed acquisition by T-Mobile of 30% of UScellular's spectrum and its subscribers most likely would bring public benefits by making high-speed 5G mobile services and residential fixed wireless services available to more Americans. Given UScellular's small market share, the transaction is unlikely to cause any significant harm to competition or consumers. 

The FCC should decide on the proposed T-Mobile/UScellular deal well before the agency's 180-day shot clock for completing transaction reviews expires. The shot clock was intended to be the outside date by which agency reviews of transactions involving substantial concerns are to be finished – not the much shorter timeline in which most reviews, which do not raise substantial concerns, ought to be decided.

 

The backdrop to the proposed T-Mobile/UScellular transaction is today's "mobile telephony/broadband services" product market that is characterized by strong competition among nationwide mobile providers T-Mobile, AT&T, and Verizon, emergent nationwide provider EchoStar, and regional cable mobile virtual network operators (MVNOs) Xfinity Mobile and Spectrum Mobile. Importantly, the "mobile telephony/broadband services" exist in a broader converged broadband marketplace wherein traditional mobile wireless face cross-platform competition from potentially substitutable fixed wireless (FWA), cable, fiber, and satellite services.  

 

To briefly recap the terms of the proposed transaction, T-Mobile would acquire UScellular's wireless operations, subscribers, and about 30% of its spectrum licenses for $4.4 billion. UScellular subscribers would gain access to T-Mobile's faster and more capacious 5G mobile wireless network. 

 

T-Mobile and UScellular apparently do not have an overlapping competitive presence in thirty-seven percent (37%) of the Cellular Marketing Areas (CMAs) implicated by the proposed deal. Also, on average, T-Mobile’s spectrum holdings are reportedly lower in UScellular's geographic territory than in other areas. Post-transaction, consumers in those overlap areas would still have a choice of three nationwide mobile wireless providers, and many would also have a choice among EchoStar’s 5G service and/or a cable MVNO.  

 

Moreover, petitions and replies filed in opposition to T-Mobile/UScellular do not raise any transaction-specific competitive concerns that would justify agency delay in making a decision.  Concerns about spectrum concentration expressed variously by CCIA, EchoStar, and RWA appear overstated because T-Mobile would only acquire 30% of UScellular's spectrum, and providers AT&T, Verizon, and EchoStar all have vast valuable spectrum holdings. Indeed, it appears the agency's spectrum screen for closer analytical scrutiny is not triggered in any CMA subject to the deal. 

 

Furthermore, claims or concerns raised by petitions and replies in the proceeding about data-roaming arrangements and employment-related matters do not appear to be tied to this specific transaction. Post-transaction, any aggrieved mobile provider can file complaints with the Commission for adjudication under the agency’s data roaming rules. Insofar as employment-related concerns are raised, they are more suitable for review by agencies such as the National Labor Relations Board.

 

Based on a review of the available record in light of competition principles, the proposed deal appears to offer public benefits without any harms that would outweigh them. The Commission should promptly act on the T-Mobile/UScellular proposal, without having the review delayed by matters that are unrelated to the transaction. 

 

P.S. On January 8, the Free State Foundation filed its Opposition to Petitions to Deny in the FCC's review proceeding for T-Mobile/UScellular.

FCC Should Complete CenturyLink-Level 3 Merger Review Soon

On December 21, 2016, the FCC issued a Public Notice  announcing that applications had been filed for the “transfer of control of Level 3 Communications, Inc. to CenturyLink, Inc.” Nearly nine months later, the FCC still has not made a decision on the potential merger despite the pro-competitive public benefits the transaction would create. The FCC should make a decision very soon.

On June 9, 2017, the FCC paused the 180-day shot clock at 170 days because it said additional data was needed to supplement the applications. Although the FCC may have had good reason to pause the shot clock, the FCC often takes more than 180 days to review transaction requests. In March 2017, Free State Foundation President Randolph May published a Perspectives from FSF Scholars entitled “A Proposal for Improving the FCC’s Merger Review Process.” In this proposal, he urges the FCC to improve the timeliness of its decisions and to refrain from imposing extraneous conditions when reviewing mergers. In some instances, the reason the FCC fails to meet its 180-day deadline is because it spends time considering the imposition of extraneous merger conditions, which, in effect, are company-specific regulations.

Currently, twenty states have approved the potential CenturyLink-Level 3 merger, and it’s possible the remaining states could be waiting on the FCC to make a decision. (See this March 2017 blog by Seth Cooper questioning whether, in any event, state regulators should be conducting duplicative merger reviews.) CenturyLink originally stated that the merger should be complete by September 30, but it recently revised that time frame to October 12, 2017, according to TRDaily (September 12, 2017). This goal is certainly in reach because on September 8, 2017, CenturyLink filed an ex parte with the Commission saying it will complete the submission of supplemental data “shortly.” Upon this submission by CenturyLink, the FCC should aim to complete its merger review promptly.

Most importantly, if approved, this merger would provide consumers with benefits in the markets of broadband, video, and business data services. In January 2017, Free State Foundation Senior Fellow Seth Cooper authored a Perspectives from FSF Scholars entitled “CenturyLink-Level 3 Merger Should Bring Pro-Competitive Public Benefits.” He explained how “any conceivable harm from the proposed merger appears less likely and less substantial than the likely benefits.” And he explained that the merger would not harm competition in the video or broadband markets:

Importantly, CenturyLink/Level 3 raises no vertical integration concerns related to the residential broadband or video services markets. Unlike CenturyLink, which serves 6 million residential broadband customers, Level 3 is not a residential broadband Internet service provider (ISP). Also, whereas CenturyLink serves about 318,000 residences with its PrismTV multi-channel video programming service and also plans to roll out an over-the-top skinny-bundle video offering, Level 3 is not a video service provider. The merger would nowhere reduce the number of ISPs or video service providers serving residential customers.

Additionally, the combined CenturyLink/Level 3 would enhance competition in the market for business data services. As Seth Cooper explains, the potential merger would create cost savings by reducing the number of business arrangements needed to effectively serve multi-location customers, and it would increase the direct knowledge of business data network functions, “enabling swifter response to network malfunctions and ensuring quality of service guarantees are satisfied.” Therefore, the sooner the FCC realizes the pro-competitive benefits of this merger, the sooner these two companies can combine their resources to better serve consumers with enhanced offerings and lower prices.

Because this potential merger would have no negative impact on competition, the FCC should not need 180 days to determine that the merger would be beneficial to consumers. And, in general, the FCC should be able to make timely merger decisions. One way to do that is to refrain from imposing unnecessary merger conditions.

The FCC Should Reject CWA’s Job Protection Pleas, Again

Since the Federal Communications Commission opened its docket seeking comment on Frontier Communications’ application to acquire AT&T’s wireline business and statewide fiber network assets in Connecticut, only one comment objecting to the transaction has been filed. Communications Workers of America (“CWA”) argues that among other negative impacts, the transaction, if approved, could adversely affect employment levels and worker living standards. The Commission may consider the impact of the transaction on service quality, consumer access to service, and other factors when evaluating a merger proposal. But it is improper for the Commission to consider job loss and other employment related impacts during a transaction review, and job protection should not be imposed as a condition on transaction approval.

Under Section 214(a) and 310(d) of the Communications Act, the Commission must determine whether a transaction will serve the public interest, convenience, and necessity. FSF scholars have often commented on how the public interest standard, by virtue of its ambiguity, has been interpreted in an abusive way to justify the Commission’s unsavory practice of, in effect, “regulating by condition.” Yet even among the range of factors the Commission has included in its determination of whether a transaction is consistent with the “broad aims of the Communications Act,” whether and how a proposed transaction will affect employment practices is not a proper one.

CWA currently represents 2,900 workers who are employed by AT&T’s affiliate in Connecticut, and 3,800 employees at Frontier nationwide. CWA urges that the Commission should insist that AT&T and Frontier provide “detailed and granular employment data” and “assurances” that the transaction will not lead to any reduction in employment levels and workers’ living standards. CWA argues in its comments that the Commission has considered “whether a proposed transaction will lead to public interest harms with respect to employment practices” in the past and should do so again in reviewing Frontier and AT&T’s application.  

Notably, CWA only cites short statements from FCC Chairman Genachowski and a handful of Commissioners to support this argument; CWA does not point to any of the plentiful public interest standard jurisprudence available. Although Commission officials may have noted the impact of transactions on employment, the FCC’s statutory authority to review transaction proposals should not be construed to allow Commissioners to weigh employment as a factor in its determination, nor have courts interpreted the public interest standard to include such a consideration. And the FCC cannot, and should not, impose job protection conditions on the transaction, as CWA has requested for other transactions.

In its comments objecting to the T-Mobile/MetroPCS merger several years ago, CWA also argued that the Commission should consider the impact of the transaction on employment practices. CWA also requested that the Commission impose job protection conditions on the transaction. FSF President Randolph May responded to CWA’s arguments on the FSF blog: "[T]he FCC has no business abusing its merger review authority by conditioning the merger on adoption of the job protection plan put forward by the CWA. Regardless of whether the Commission has abused its authority this way in the past, such a condition is simply too far afield from any legitimate view of the Commission's exercise of its merger review responsibilities."

The Commission’s public interest authority may be broad, but not so broad as to include the management of the size and composition of company workforces. And the Commission’s authority to impose conditions that promote the public interest does not enable it to extract job protection conditions upon approval of a transaction. Doing so would be an abuse of its regulatory authority and would likely open the Commission to a barrage of requests for job protection plans in other contexts.

While it is unclear whether the Frontier-AT&T transaction will affect employment, and certainly no one wants to see jobs lost for any reason, job protection is just not within public interest purview. 

New Year, New Approach: A Turn Towards Regulatory Modesty in the FCC’s Transaction Review Process

The New Year has just begun, and the FCC, like the rest of us, could stand to make some New Year’s resolutions. A key one could be reforming its transaction review process.

Already, there are a few potential mergers and acquisitions that may require Commission review in the coming months. Frontier Communications announced in December that it seeks to acquire AT&T’s wireline business and statewide fiber network assets in Connecticut, and Sprint is reportedly seeking to acquire T-Mobile, according to the Wall Street Journal. In perhaps a leap of anticipation, the American Antitrust Institute (AAI) has already urged the FCC and the Department of Justice to block any merger of Sprint and T-Mobile, arguing that it would stifle competition and harm consumers. And it is at least conceivable we could see a transaction involving Time Warner Cable and other parties.

The FCC’s transaction review process has drawn much attention and discussion over the last few years. In 2011, the House Subcommittee on Communications and Technology held several hearings on FCC process reform. On May 13, 2011, the Subcommittee heard testimony from Chairman Julius Genachowski, Commissioner Michael Copps, Commissioner Robert McDowell and Commissioner Mignon Clyburn on what was working at the FCC, recent improvements to the FCC’s processes, and what still needed attention.

Chairman Walden opened the hearing by proposing several reforms to FCC processes. Regarding the FCC’s transaction review process, Congressman Walden stated, “the FCC’s transaction review standards are vague and susceptible to abuse.” The Congressman also highlighted an observation by Chairman Emeritus Dingell, who stated in a hearing back in March 2000 that there is “great need to address and to reform the way the FCC handles its merger reviews. These are a remarkable exercise in arrogance, and the behavior of the Commission, oft-times by reason of delay and other matters, approaches what might well be defined as not just arrogance, but extortion.” Congressman Stearns, Congressman Christensen, and Commissioner McDowell particularly focused on the need for reform of the FCC’s transaction review process throughout the May 2011 hearing.

In July 2011, Congressman Walden circulated a Discussion Draft of the FCC Process Reform Act of 2011. Later that month, the Subcommittee held another hearing on “Reforming FCC Process,” and heard testimony from industry representatives, think tanks, consumer groups, academia, and the States. FSF President Randolph May testified and supported many of the proposed reforms in the Discussion Draft, particularly reform of the Commission’s transaction review process:

In my view, the provision reforming the Commission's transaction review process is as important as any other in the bill in light of the abuse of the process for many years now. The agency often imposes extraneous conditions -- that is, conditions not related to any alleged harms caused by the proposed transaction after they are "volunteered" at the last-minute by transaction applicants anxious to get their deal done. The bill's requirement that any condition imposed be narrowly tailored to remedy a transaction-specific harm, coupled with the provision that the Commission may not consider a voluntary commitment offered by a transaction applicant unless the agency could adopt a rule to the same effect, would go a long way to reforming the review process.

In November 2011, Congressman Walden introduced H.R. 3309, the FCC Process Reform Act of 2012. Among many reforms, the bill proposed changes to the Commission’s transaction review standards. That bill passed the House in March 2012, but died in the Senate. 

Another Discussion Draft was circulated during the summer of 2013. Now entitled the "FCC Process Reform Act of 2013," it retained two substantial reforms proposed for the Commission’s transaction review standards from the original 2012 bill: that the Commission could only condition its approval of a transfer of lines, licenses or other transaction if:

“(A) the imposed condition is narrowly tailored to remedy a harm that would likely arise as a direct result of the specific transfer or specific transaction,” and;

“(B) the Commission could impose a similar requirement under the authority of a specific provision of law other than a provision empowering the Commission to review a transfer of lines, a transfer of licenses, or other transaction.”

In addition, the 2013 Discussion Draft added a provision, which would require that the Commission could not impose conditions on approval of transactions unless “(C) the likely harm described in (A) is uniquely presented by the specific transfer of lines, transfer of licenses, or other transaction, such that the harm is not presented by persons not involved in the transfer or other transaction.” By adding this provision, the Discussion Draft proposed to further strengthen the transaction review standards contained in the original 2011 draft of the FCC Process Reform Act of 2012. 

In his July 2013 testimony on the Discussion Draft before the House Subcommittee on Communications and Technology hearing, “Improving FCC Process,” FSF President Randolph May specifically praised the proposed transaction review process reforms included in the most recent draft of the bill:

The provisions [proposed], especially the addition that would allow the Commission to condition approval of a proposed transaction only if the condition addresses a likely harm uniquely presented by the specific transaction, would go a long way toward combating abuse of the transaction review process.  

A few months after the Discussion Draft was circulated, a compromise version of the bill was reintroduced in December 2013 as H.R. 3675, the FCC Process Reform Act of 2013. The compromise version of the bill removes the provision in the FCC Process Reform Act of 2012 that would have required conditions to be “narrowly tailored” and that would have more narrowly defined the “harm” resulting from the transaction. Although it would have been preferable for these provisions to remain, the FCC Process Reform Act of 2013 nonetheless retains important improvements for the Commission’s transaction review process.

The current bill still provides that the Commission may only condition its approval of transactions if the condition remedies a harm likely to result from the specific transfer or transaction pending, the harm is unique to that transaction, and the imposition of the condition is within the Commission’s authority other than that granted by sections 214, 309, or 310. These provisions would make it more difficult for the Commission to impose conditions on transactions under review unless they are necessary and appropriate.

Even absent congressional action, the FCC itself could institutionally reform its transaction review process to reflect the changes proposed in the FCC Process Reform Act of 2013. The Commission could do so by approaching pending mergers and acquisitions with regulatory restraint.

The FCC currently reviews transactions under the broad public interest standard. As such, the Commission could undertake reforms absent passage of the FCC Process Reform Act of 2013 by issuing a formal policy statement expressing its intent to abide by the proposals included in the Act. Or, the Commission could simply act in accordance with the transaction review standards proposed in the Act when approaching pending transactions. Modifying its transaction review process by issuing a policy statement or by acting consistently with the reforms proposed in the FCC Process Reform Act is within the FCC’s discretion. Further, these institutional changes by the agency would remove unnecessary burdens, promote efficient marketplace transactions, and in turn, benefit consumers.

For a long time, FSF scholars have focused on the need to limit the Commission’s ability to manipulate the transaction review process. As far back as 2000, in Any Volunteers?, FSF President Randolph May discussed how the Commission regulates, in effect, by imposing “voluntary” conditions on transaction approvals rather than engaging in general rulemaking proceedings that would be applicable to all similarly situated parties. Mr. May stated, “Indeed, even when the ‘volunteered’ conditions relate more closely to the Commission's articulated competitive concerns … regulation by condition is unsound, because it imposes new burdens only on the merging parties.”

There are many other pieces on the FCC’s transaction review process on FSF’s blog. The point is, the FCC has imposed unnecessarily burdensome, “voluntary” conditions on many major transactions in the past, even when those conditions were not related to the unique issues or harms presented by the pending transaction.

The FCC Process Reform Act of 2013 would substantially improve the transaction review process. However, without awaiting the passage of new legislation, the Commission should begin the New Year by committing to take a new approach to this process by acting with regulatory restraint, and reviewing proposed transfers and transactions in conformity with the review standards proposed in the Act.

Perhaps under Chairman Wheeler, reform of the transaction review process could be a New Year’s resolution the Commission can keep.