[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2847 Introduced in Senate (IS)]
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115th CONGRESS
2d Session
S. 2847
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.
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IN THE SENATE OF THE UNITED STATES
May 15, 2018
Mr. Lee (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
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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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
TITLE I--STANDARD MERGER AND ACQUISITION REVIEWS THROUGH EQUAL RULES
SEC. 101. SHORT TITLE.
This title may be cited as the ``Standard Merger and Acquisition
Reviews Through Equal Rules Act of 2018''.
SEC. 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--
``actions by attorney general of the united states or the federal trade
commission
``Sec. 4F. (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,''.
SEC. 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,''.
SEC. 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.
TITLE II--FEDERAL COMMUNICATIONS COMMISSION MERGER PROCESS REFORM
SEC. 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:
``SEC. 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.''.
SEC. 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''.
SEC. 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.
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