skip to main content

S. 2847 (115th): Standard Merger and Acquisition Reviews Through Equal Rules Act of 2018


The text of the bill below is as of May 15, 2018 (Introduced). The bill was not enacted into law.


II

115th CONGRESS

2d Session

S. 2847

IN THE SENATE OF THE UNITED STATES

May 15, 2018

(for himself, Mr. Hatch, Mr. Tillis, and Mr. Grassley) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide that the Federal Trade Commission shall exercise authority with respect to mergers only under the Clayton Act and only in the same procedural manner as the Attorney General exercises such authority, and to require the Federal Communications Commission to approve or deny a license transfer application within 180 days of submission.

I

Standard Merger and Acquisition Reviews Through Equal Rules

101.

Short title

This title may be cited as the Standard Merger and Acquisition Reviews Through Equal Rules Act of 2018.

102.

Amendments to the Clayton Act

The Clayton Act (15 U.S.C. 12 et seq.) is amended—

(1)

by striking section 4F (15 U.S.C. 15f) and inserting the following—

4F.

Actions by Attorney General of the United States or the Federal Trade Commission

(a)

Whenever the Attorney General of the United States has brought an action under the antitrust laws or the Federal Trade Commission has brought an action under section 7, and the Attorney General or Federal Trade Commission, as applicable, has reason to believe that any State attorney general would be entitled to bring an action under this Act based substantially on the same alleged violation of the antitrust laws or section 7, the Attorney General or Federal Trade Commission, as applicable, shall promptly give written notification thereof to such State attorney general.

(b)

To assist a State attorney general in evaluating the notice described in subsection (a) or in bringing any action under this Act, the Attorney General of the United States or Federal Trade Commission, as applicable, shall, upon request by such State attorney general, make available to the State attorney general, to the extent permitted by law, any investigative files or other materials which are or may be relevant or material to the actual or potential cause of action under this Act.

;

(2)

in section 5 (15 U.S.C. 16)—

(A)

in subsection (a), by inserting (including a proceeding brought by the Federal Trade Commission with respect to a violation of section 7) after United States under the antitrust laws; and

(B)

in subsection (i) by inserting (including a proceeding instituted by the Federal Trade Commission with respect to a violation of section 7) after antitrust laws;

(3)

in section 11 (15 U.S.C. 21), by adding at the end the following:

(m)
(1)

Except as provided in paragraph (2), in enforcing compliance with section 7, the Federal Trade Commission shall enforce compliance with that section in the same manner as the Attorney General in accordance with section 15.

(2)

If the Federal Trade Commission approves an agreement with the parties to the transaction that contains a consent order with respect to a violation of section 7, the Commission shall enforce compliance with that section in accordance with this section.

;

(4)

in section 13 (15 U.S.C. 23), by inserting (including a suit, action, or proceeding brought by the Federal Trade Commission with respect to a violation of section 7) before subpoenas; and

(5)

in section 15 (15 U.S.C. 25), by inserting and the duty of the Federal Trade Commission with respect to a violation of section 7, after General,.

103.

Amendments to the Federal Trade Commission Act

The Federal Trade Commission Act (15 U.S.C. 41 et seq.) is amended—

(1)

in section 5(b) (15 U.S.C. 45(b)), by inserting (excluding the consummation of a proposed merger, acquisition, joint venture, or similar transaction that is subject to section 7 of the Clayton Act (15 U.S.C. 18), except in cases where the Commission approves an agreement with the parties to the transaction that contains a consent order) after unfair method of competition;

(2)

in section 9 (15 U.S.C. 49), by inserting after the fourth undesignated paragraph the following:

  • Upon the application of the commission with respect to any activity related to the consummation of a proposed merger, acquisition, joint venture, or similar transaction that is subject to section 7 of the Clayton Act (15 U.S.C. 18) that may result in any unfair method of competition, the district courts of the United States shall have jurisdiction to issue writs of mandamus commanding any person or corporation to comply with the provisions of this Act or any order of the commission made in pursuance thereof.

;

(3)

in section 13(b)(1) (15 U.S.C. 53(b)(1)), by inserting (excluding section 7 of the Clayton Act (15 U.S.C. 18) and section 5(a)(1) with respect to the consummation of a proposed merger, acquisition, joint venture, or similar transaction that is subject to section 7 of the Clayton Act (15 U.S.C. 18)) after Commission; and

(4)

in section 20(c)(1) (15 U.S.C. 57b–1(c)(1)), by inserting or under section 7 of the Clayton Act (15 U.S.C. 18), where applicable, after Act,.

104.

Effective date; application of amendments

(a)

Effective date

Except as provided in subsection (b), this title and the amendments made by this title shall take effect on the date of the enactment of this Act.

(b)

Application of amendments

The amendments made by this title shall not apply to any of the following that occurs before the date of enactment of this Act:

(1)

A violation of section 7 of the Clayton Act (15 U.S.C. 18).

(2)

A transaction with respect to which there is compliance with section 7A of the Clayton Act (15 U.S.C. 18a).

(3)

A case in which a preliminary injunction has been filed in a district court of the United States.

II

Federal Com­mu­ni­ca­tions Commission Merg­er Process Reform

201.

Time limits for Commission action on transfers and assignments

Title IV of the Communications Act of 1934 (47 U.S.C. 401 et seq.) is amended by adding at the end the following:

417.

Time limits for Commission action on transfers and assignments

(a)

Definition

In this section, the term covered application means an application for the transfer of control or assignment of any license or authorization subject to the jurisdiction of the Commission.

(b)

Requirements

(1)

In general

Notwithstanding any other provision of law, including section 309(e), the Commission—

(A)

shall approve or deny a covered application; and

(B)

may not designate a covered application for hearing, unless the Commission first determines by a majority vote that a material factual question exists about misrepresentation or lack of candor by the applicant.

(2)

Determination

Except as provided in paragraph (3), the Commission shall make a determination to approve or deny a covered application 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.

(3)

Extensions

(A)

In general

(i)

Request

During the 180-day review period under paragraph (2), the Commission may apply to the United States District Court for the District of Columbia for an extension of that period for an additional 30 days by filing a motion to extend that references this section.

(ii)

Court determination

The court may grant an extension of the 180-day review period requested under clause (i) if—

(I)

the court finds that the applicants for the transfer of control or assignment have not substantially complied, in a timely manner, with a reasonable request by the Commission for information;

(II)

the Commission shows, by clear and convincing evidence, that the Commission is unable to complete review within the 180-day review period; or

(III)

an Executive agency (as defined in section 105 of title 5, United States Code) has requested in writing that the Commission delay a determination pending the Executive agency's national security review of the transfer of control or assignment.

(B)

Additional extensions

The Commission may request, and the court may grant, additional 30-day extensions in the same manner as an initial extension under subparagraph (A).

(c)

Approval absent Commission action

(1)

In general

A covered application shall be deemed approved without conditions if the Commission does not approve or deny the application or apply for an extension during the applicable period under subsection (b).

(2)

Pending litigation

(A)

In general

Except as provided in subparagraph (B), if the 180-day review period under subsection (b)(2) has expired, the Commission may not deny a covered application, or approve a covered application with conditions, during the pendency of any litigation relating to a request by the Commission for an extension under subsection (b)(3) with respect to the covered application, including any time during which a court has entered a stay pending appeal or administrative stay of such litigation.

(B)

Extension request denied after 180-day review period

If a request for an extension under subsection (b)(3) is denied after the expiration of the 180-day review period under subsection (b)(2)—

(i)

the Commission shall make a determination to approve or deny the covered application not later than 10 days after the date on which the extension request is denied; and

(ii)

the covered application shall be deemed approved without conditions if the Commission does not approve or deny the application during the 10-day period described in clause (i).

(d)

Burden of persuasion shifted

Notwithstanding any other provision of law, including section 706 of title 5, United States Code, in a judicial appeal of a Commission decision to deny a covered application, the Commission shall bear the burden of persuasion to demonstrate that the decision is—

(1)

permitted under applicable statutes and regulations; and

(2)

supported by the required amount of factual evidence.

.

202.

Technical and conforming amendment

Section 310(d) of the Communications Act of 1934 (47 U.S.C. 310(d)) is amended, in the second sentence, by inserting before the semicolon the following: , except as otherwise provided in section 417.

203.

Effective date

The amendment made by section 201 shall apply with respect to any covered application that is submitted to the Federal Communications Commission on or after the date of enactment of this Act.