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The Deal: Sprint Deal Prompts New Call for FCC Timing Rules

In its order approving SoftBank's application, the FCC noted that it disregarded a request by satellite TV carrier Dish Network (DISH - Get Report), which was pushing a rival bid for Sprint, to subject the June 10 revised merger agreement to a new round of public comment, an action that would have added at least a couple of months to the investigation.

The FCC frequently takes a less-than-exacting approach to its 180-day merger review timetable. The FCC's January 2011 approval of Comcast (CMCSA - Get Report)'s $30 billion takeover of NBC Universal came 234 days after the commission's investigation commenced, and that's not including 43 days when the count was suspended. In January 2013 the commission approved Liberty Media's (LMCA - Get Report) request for control of Sirius XM (SIRI) after considering the deal for 279 days.

Since joining the commission in May 2012, Pai has made a priority of shortening the time the commission takes on all types of proceedings. In February he told the Federal Communications Bar Association that the commission should codify the merger review shot clock and create an online dashboard of the FCC's performance in other proceedings. A former staffer in the General Counsel's office, Pai said at the time there were more than 100 items pending before the commission, many of them stalled indefinitely.

Other critics of the FCC's merger review process have long called for the agency to be bound by strict timing rules similar to the obligations that ostensibly cover antitrust merger reviews conducted by the Federal Trade Commission and Department of Justice. However, the antitrust agencies have substantial leeway to extend merger reviews beyond their statutory limits.

Those agencies are given only 30 days under the Hart-Scott-Rodino act to decide to clear a deal or subject it to a longer review by issuing a second request for information but can prod merging parties to reset the clock by withdrawing and refiling their merger notification documents. Once the merging parties have certified compliance with a second request, the antitrust regulators again have only 30 days to approve the deal or challenge it in court. The agencies, however, can refuse to certify that the second request has been fully satisfied or can pressure the merging parties to enter a timing agreement not to close the deal until a later date.

Written by Bill McConnell
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