One Merger, Two Agencies: Dual Review in the Breakdown of the AT&T / T-Mobile Merger and a Proposal for Reform

Abstract

Mergers in the telecommunications industry are unique because they are reviewed by not one, but two federal agencies. Mergers in most industries are subject only to antitrust review by the U.S. Department of Justice (DOJ). Telecommunications mergers, however, are also reviewed by the Federal Communications Commission (FCC) under its flexible public interest standard. This system of dual review causes delay, redundancy, and a perversion of antitrust and telecommunications law. This Note examines the system of dual review through the lens of the AT&T/T-Mobile merger, which was proposed and eventually abandoned in 2011. After outlining the historical development and statutory authority for dual review, the Note demonstrates how dual review altered the DOJ’s typical burden structure in its attempt to block the AT&T/T-Mobile merger. Finally, the Note presents a proposal for reform to the FCC’s review, arguing for a significant limitation in scope and the imposition of a strict time limit.