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Re: Applications for Consent to the Transfer and Control of Licenses and Section 214 Authorization from Tele-Communications, Inc., Transferor, To AT&T Corp., Transferee, CS Docket No. 98-178

I concur wholeheartedly in the result of this Memorandum Opinion & Order: namely, that the Commission approves TCI's application to transfer station licenses and authorizations to provide international resold communications services to AT&T, subject to compliance with existing FCC wireless spectrum cap rules. In particular, I commend the Commission staff for their prompt action on these applications, and I hope we can process other transfer applications with like timeliness.

While I support the bottom line in the Order, I cannot sign on to the general reasoning that underlies it. The Order focuses its review -- erroneously, to my mind -- on the larger business transaction of the merger as opposed to the simple transfer of radio licenses and international resale authorizations.

Merger Review Authority

I do not believe that the Federal Communications Commission possesses statutory authority under the Communications Act to review, writ large, the merger of AT&T and TCI.(1) Rather, that Act charges the Commission with a much narrower task: review of the proposed transfer of radio station licenses from TCI to AT&T, and consideration of the extension of common carrier lines by the merged entity. Nothing in either of these provisions speaks of jurisdiction to approve or disapprove the merger that has occasioned TCI's desire to transfer licenses and international resale authorizations.(2) We are required to determine whether the transfer of station licenses serves the public interest, convenience and necessity and whether the transfer of authorizations for international resale serves the public convenience and necessity.(3)

To be sure, the transfer of the licenses and authorizations is an important part of the merger. But it is simply not the same thing. The merger is a much larger and more complicated set of events than the transfer of FCC permits. It includes, to name but a few things, the passage of legal title for many assets other than radio licenses, corporate restructuring, stock swaps or purchases, and the consolidation of corporate headquarters and personnel.

Clearly, then, asking whether the particularized transactions of license transfers and section 214 transfers would serve the public interest, convenience, and necessity entails a significantly more limited focus than contemplating the industry-wide effects of a merger between the transferee and transferor. For instance, in considering the transfer of licenses, one might ask whether there is any reason to think that the proposed transferee would not put the relevant spectrum to efficient use or comply with applicable Commission regulations; one would not, by contrast, consider how the combination of the two companies might affect other competitors in the industry. One might also consider the benefits of the transfer, but not of the merger generally. And one might consider the transferee's proposed use and disposition of the actual radio licenses, but one would not venture into an examination of services provided by the transferee that do not even involve the use of those licenses.

By using sections 214 and 310 to assert jurisdiction over the entire merger of two companies that happen to be the transferee and transferor of radio licenses and international resale authorizations, the Commission greatly expands its regulatory authority under the Act. As the Order acknowledges, the transfers at issue will occur "as a result of," supra at para. 11, the merger, but this causative fact should not be used to bootstrap the Commission into jurisdiction over the merger itself. If the control of licenses were to be transferred "as a result of" a licensee's bankruptcy, would the Commission assert jurisdiction to review the legal propriety of the declaration of bankruptcy? That would be preposterous, as that is a job for a bankruptcy court. Here, review of the merger between AT&T and TCI, which, just like the bankruptcy in my hypothetical, is an underlying cause of the transfer, is a job for the Department of Justice. Expanding our review of license transfers to a review of the event that precipitates the transfers -- whether that event is a merger, a bankruptcy, or any other event that might lead a licensee to cede control of a license -- is off the statutory mark.

Despite the Commission's effort to exercise power over "mergers" under sections 214 and 310, it must be remembered that, in the end, the Commission can only refuse to permit the transfer of the licenses or to authorize international resale. While such action would no doubt threaten consummation of the merger, the Commission cannot directly forbid the stockholders of one company from selling their shares to the other. But see supra at para. 112 (purporting to prohibit the applicants from "consummat[ing] the merger until we approve the proposed trust agreement"). The scope of our review ought to accord with the scope of our remedies: in this case, then, it ought to be limited to considering (i) whether the public would suffer harm if radio licenses are transferred from Party A to Party B, and (ii) whether the public convenience and necessity would be served by allowing Party A to convey authorizations to operate as an international reseller of phone services to Party B. The fact that today's Order does not even identify the radio licenses or international authorizations that are the subject of AT&T and TCI's applications or discuss their conveyance, but instead moves directly to a discussion of the merger, reflects how far the Commission has strayed from the provisions of the Act that it relies upon today.

As I have previously explained, I believe that a finding that the transferee and transferor have a record of compliance with existing Commission rules, and that no extraordinary reason to oppose the transfer of licenses is asserted by the public, meets our statutory obligation to make a public interest determination under section 310. See Application of WorldCom, Inc. and MCI Communications Corp. for Transfer of Control of MCI Communications Corp. to WorldCom, Inc., 13 FCC Rcd 18025 (1998) (concurring statement of Commissioner Furchtgott-Roth). As for the international resale authorizations under section 214(a), we must at a minimum evaluate that transfer application under 47 C.F.R. section 63.18, the actual regulation pursuant to which TCI filed its application to transfer those permits. I have reviewed that application, which sets out the information required by subsection 63.18(e)(5), and do not see any conflicts with the terms and conditions of that regulation.(4) I am unaware of any allegation that the transfer of these 214 authorizations would result in a violation of the Communications Act or any other extant FCC regulations. I therefore find that the transfer serves the public convenience and necessity, as section 214(a) requires. For these reasons, I would grant the applications filed pursuant to sections 310 and 214, and I thus agree with the result of today's Commission action.

Potentially Arbitrary Review: Choice of Transfers for Full-Scale Review & Substantive Standards To Be Applied

Beyond the threshold question of statutory authority to regulate mergers, I have concerns about the process employed in FCC merger reviews. The vast majority of license transfers under section 310 -- even those that involve merging entities -- are not subject to the stringent review today imposed upon AT&T and TCI. For example, as I have observed, mergers of companies like Mobil and Exxon involve the transfer of a substantial number of radio licenses, many of the same kind of licenses as those at issue here, and yet we take no Commission level action on those transfer applications. I do not advocate extensive review of all license transfer applications, but mean only to illustrate that we apply highly disparate levels of review to applications that arise under the identical statutory provision.

Unfortunately, there is no established Commission standard for distinguishing between the license transfers that trigger extensive analysis by the full Commission and those that do not. Nor does today's Order elucidate the standard. The Order conclusorily asserts that some mergers warrant heavy review and others do not, stating that "the face of some merger applications may reveal that the merger could not frustrate or undermine our policies." See supra at para. 16. The Order then cryptically cites a bureau level decision, without explaining what sort of facts in an application make it clear that a merger need not be fully processed. Is the question whether the merging firms are large, successful corporations? That is one of the differences one might observe between this merger and the one cited in the footnote. Or is it whether "parties have raised non-frivolous issues" about the merger? Id. What about frivolous contentions, or the absence of any objections at all? Does the level of review depend on the type of services offered by the merging companies, i.e. a telephone/cable merger (such as this one) gets one sort of review, while a telephone/telephone merger (such as the cited case) gets another? In short, merging parties have no clear notice as to the threshold showing for determining the scale of FCC license transfer review when mergers are involved. Apparently, only the Commission knows a facially clear case for review when it sees one, and it is unwilling to say what such a case looks like.

If the answer is, as some have suggested, that the Commission reviews extensively only a subclass of license transfer applications -- those occasioned by mergers with the potential to affect the telecommunications industry -- that response is incomplete. Whatever the soundness of this theory for distinguishing among transfer applications, it is not written anywhere, whether in agency rules, regulations, policy statements, or even internal agency guidelines. While the Communications Act does allow the Commission to make reasonable classifications of applications, see 47 U.S.C. section 309(g), the Commission has in no way done so, much less in a way that puts the public on notice as to what those classifications are. Agency decisions regarding which license transfers to review under 310, even as among license transfers occasioned by mergers, are entirely ad hoc and thus run a high risk of being made arbitrarily.

Finally, if the Commission did establish a threshold test for determining which license transfer applications should receive strict scrutiny, the Commission would still need to set out the substantive tests for those differing scrutiny levels. As a general matter, our decisional precedents provide little concrete guidance on the substantive standard for approval of title III transfers: the proposition that a merger is in the "public interest" if it is not anti-competitive (or if it is also pro-competitive) is too generalized to be helpful. Moreover, there is clearly a different "public interest" test being applied, sub silentio, in different cases under section 310. The cases that undergo extensive inquiry, as here, exhaustively discuss all kinds of service areas and issues ancillary to the use of the actual radio licenses, and the decisions that are granted at the Bureau level are relatively perfunctory in their public interest analysis. We should, after identifying the threshold test for license transfers that warrant thorough inquiry, articulate clearer substantive criteria to guide the Commission's inquiry.

Duplication of Department of Justice Efforts

The focus on mergers rather than on license and authorization transfers creates another problem: our work often duplicates that of the Department of Justice's Antitrust Division. As I have previously explained, this agency in its merger review undertakes a wide-ranging analysis that exceeds even DOJ's rubric and examines broad social issues beyond our expertise or authority. See MCI/World Com Order, supra. Merging companies should have to jump through at most one, not two, federal antitrust hoops, and that hoop should be held out by the agency with the express statutory authority and expertise to do so. That agency is the Department of Justice. If the Commission limited its review to the actual subject matter of 310 -- the transfer of radio licenses, as opposed to the proposed merger that triggered the transfer -- this problem of duplicated efforts would be avoided.

Conditional Approval of License Transfer and Line Extension Applications

Finally, I express some general apprehension about the "conditioning" of grants for license transfer applications and section 214 authorizations. I think it is entirely appropriate, even necessary, for the Commission to condition license transfer and line extension applications on compliance with existing FCC rules. See 47 U.S.C. section 303(r) ("Commission shall . . . prescribe such . . . conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act"); id. section 214(c) (Commission "may attach to the issuance of [214] certificate such terms and conditions as in its judgment the public convenience and necessity may require").(5) As discussed above, in order to meet the public interest standard, an applicant should demonstrate compliance with extant FCC regulations. For that reason, I agree that we should take necessary steps to ensure that the transferor, after the license transfer, is not in violation of the wireless spectrum cap rules.

I am concerned, however, about situations in which this agency becomes an enforcer of the rules and regulations of other governmental agencies. We have no jurisdiction to enforce rules not promulgated under the Communications Act, see id. section 303(r) (referring to conditions needed to "carry out the provisions of this Act"), and we cannot and should not do the enforcement work of others. This is not to say that we should not take official notice, in the course of making licensing decisions, of findings by another agency that an applicant has violated a regulation in its bailiwick. We should certainly consider such findings in determining whether to grant or deny a license application.(6) But we should not condition such a decision on compliance with another agency's regulation, thus putting ourselves in the position of potential enforcer of non-FCC rules should the transferee fail to conform to that regulation.

I am doubly concerned about conditional FCC approval when the rule at issue is not just that of another agency, but when that agency has made no formal, final, and material findings of a violation. That is, I do not think we should take official notice of alleged violations, including matters under investigation or in litigation, or of informal concerns that an agency is not yet ready or willing to pursue through their own established procedures. When we give formal weight to anything short of formal, final findings by other agencies, we create a situation that is rife with incentives for inter-agency gaming of the system, e.g., registering an objection with an agency about a matter that the complaining agency is not prepared to pursue itself, and requires the Commission to do extensive reviews in areas where it simply has no experience or authority.

In sum, at the intersection of two areas -- non-FCC rules and no final determination of a violation by a responsible entity -- our authority to impose conditions on a license or 214 authorization transfer is at its weakest. Where non-FCC rules are at issue but there is a final, record finding of a material infraction thereof, there is a middle ground: we should take notice of that fact in deciding upon the application but not condition approval upon compliance. Finally, where, as here, extant FCC rules are involved, our power to condition a proposed transfer upon compliance with those rules and to enforce compliance, if necessary, is at its apex. I therefore concur in the conditions of the transfers based on compliance with, and enforcement of, the wireless spectrum cap rules.

* * *

For the foregoing reasons, I am pleased to concur in the Commission's decision to approve TCI's transfer of radio licenses and authorizations for international resale pursuant to sections 310 and 214 of the Communications Act. Again, I thank the Cable Services Bureau, as well as my colleagues, for their efforts in this matter.

1. Section 310(d) provides: "No . . . station license . . . shall be transferred . . . to any person except upon application to Commission and upon finding by the Commission that the public interest, convenience, and necessity will be served thereby," i.e., by the license transfer. Section 214(a) states: "No carrier shall undertake the construction of a new line or of an extension of any line, or shall acquire or operate any lines, or extension thereof, or shall engage in transmission over or by means of such additional or extended lines, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line."

2. The Commission does possess authority under the Clayton Act, which prohibits combinations in restraint of trade, to review mergers per se. See 15 U.S.C. section 21 (granting FCC authority to enforce Clayton Act where applicable to common carriers engaged in wire or radio communication or radio transmission of energy). That power is not invoked here, however. If the Commission intends to exercise authority over mergers and acquisitions as such, it ought to do so pursuant to the Clayton Act, not the licensing provisions of the Communications Act.

3. Section 214(d) contains no "public interest" language. See supra n. 1.

4. In another indication of how far off track we are in our transfer approval process, today's Order does not mention this directly applicable regulation or the transferor's compliance with it, or even the provision of international resale services generally.

5. Only existing FCC rules should be applied to the merged entity in the context of conditions for license and 214 authorization transfers. Cf. supra at para. 75 (summarizing requests for new "open access" conditions on the merged entity). If additional regulations are alleged to be necessary, that contention is most properly addressed in the context of rulemaking, not a company-specific order. The selective application of regulatory burdens to some entities but not others is not only difficult to justify as a legal matter, but creates competitive disadvantages in the marketplace.

6. For example, as I have suggested in the broadcast context of applications for license renewal, the Commission should take due notice of a finding by the Equal Employment Opportunity Commission, or a court, that a licensee has violated the Civil Rights Act. See In re Applications of Radio Sun Group of Texas, Inc., For Renewal of Licenses (released July 23, 1998) (dissenting statement of Commissioner Furchtgott-Roth), at n. 5 (suggesting that the Commission take account of whether a renewal applicant has broken either state or federal anti-discrimination laws by asking applicants to certify whether they had been found liable for employment discrimination during the renewal period, and arguing that such a scheme leaves the actual determination of discrimination to the institutions best-equipped to make it, courts and employment discrimination agencies).