Asserting that frequent failures by the FCC to adhere to its informal 180-day shot clock for merger approval create “uncertainty for transacting parties,” a quartet of Senate Republicans introduced legislation Tuesday that would replace the agency’s informal shot clock with a firm 180-day deadline that may be extended only through court approval. Sponsored by Senators Mike Lee (R-UT), Orrin Hatch (R-UT), Thom Tillis (R-NC) and Chuck Grassley (R-IA), the Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act also addresses disparities in Federal Trade Commission (FTC) and Justice Department (DOJ) antitrust reviews of major merger transactions. Stressing, “there is no good reason for the [FTC] and the [DOJ] to apply different standards in enforcing our nation’s antitrust laws,” Hatch told reporters that “businesses seeking to merge deserve consistent treatment without regard to which agency decides to review the merger.”
Under the bill, the FCC would be required to act on an application for assignment or transfer of control of licenses “not later than 180 days after the date on which the applicants provide to the Commission the last submission, relating to the application, before the Commission provides public notice of the application.” The FCC (which routinely stops its 180-day shot clock to request and review additional information sought from the applicants) would have to apply to the U.S. District Court for the District of Columbia to extend the deadline by 30 days and, thereafter, would have to seek permission from the court to extend the deadline by additional increments of 30 days. If the FCC fails to act on an application within 180 days without first obtaining a court-approved extension—or if the court denies a requested extension and the FCC fails to act on the application within ten days of the court’s denial—an application for license assignment or transfer of control would automatically be deemed as granted without conditions. The FCC would also be barred from designating a merger application for hearing before an administrative law judge unless a majority of the agency’s commissioners agree “that a material factual question exists about misrepresentation or a lack of candor by the applicant.”
FCC Commissioner Michael O’Rielly applauded the introduction of the SMARTER Act, agreeing that applicants in merger proceedings “deserve a timely, complete, fact-based and straightforward answer from the Commission—not one built on interminable delays.” Welcoming Congressional efforts to “codify the [FCC’s] commitment to open, transparent, and timely decision-making,” FCC Commissioner Brendan Carr said, “I applaud Senator Lee for working to ensure that good government is the law of the land.”
