Standard Merger and Acquisition Reviews Through Equal Rules Act of 2020

II 116TH CONGRESS 2D SESSION S. 4876 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. IN THE SENATE OF THE UNITED STATES OCTOBER 26 (legislative day, OCTOBER 19), 2020 Mr. LEE (for himself, Mr. GRASSLEY, and Mr. TILLIS) introduced the fol- lowing 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4876 IS TITLE I—STANDARD MERGER 1 AND ACQUISITION REVIEWS 2 THROUGH EQUAL RULES 3 SEC. 101. SHORT TITLE. 4 This title may be cited as the ‘‘Standard Merger and 5 Acquisition Reviews Through Equal Rules Act of 2020’’. 6 SEC. 102. AMENDMENTS TO THE CLAYTON ACT. 7 The Clayton Act (15 U.S.C. 12 et seq.) is amended— 8 (1) by striking section 4F (15 U.S.C. 15f) and 9 inserting the following— 10 ‘‘ACTIONS BY ATTORNEY GENERAL OF THE UNITED 11 STATES OR THE FEDERAL TRADE COMMISSION 12 ‘‘SEC. 4F. (a) Whenever the Attorney General of the 13 United States has brought an action under the antitrust 14 laws or the Federal Trade Commission has brought an ac- 15 tion under section 7, and the Attorney General or Federal 16 Trade Commission, as applicable, has reason to believe 17 that any State attorney general would be entitled to bring 18 an action under this Act based substantially on the same 19 alleged violation of the antitrust laws or section 7, the At- 20 torney General or Federal Trade Commission, as applica- 21 ble, shall promptly give written notification thereof to such 22 State attorney general. 23 ‘‘(b) To assist a State attorney general in evaluating 24 the notice described in subsection (a) or in bringing any 25 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4876 IS action under this Act, the Attorney General of the United 1 States or Federal Trade Commission, as applicable, shall, 2 upon request by such State attorney general, make avail- 3 able to the State attorney general, to the extent permitted 4 by law, any investigative files or other materials which are 5 or may be relevant or material to the actual or potential 6 cause of action under this Act.’’; 7 (2) in section 5 (15 U.S.C. 16)— 8 (A) in subsection (a), by inserting ‘‘(in- 9 cluding a proceeding brought by the Federal 10 Trade Commission with respect to a violation of 11 section 7)’’ after ‘‘United States under the anti- 12 trust laws’’; and 13 (B) in subsection (i), by inserting ‘‘(includ- 14 ing a proceeding instituted by the Federal 15 Trade Commission with respect to a violation of 16 section 7)’’ after ‘‘antitrust laws’’; 17 (3) in section 11 (15 U.S.C. 21), by adding at 18 the end the following: 19 ‘‘(m)(1) Except as provided in paragraph (2), in en- 20 forcing compliance with section 7, the Federal Trade Com- 21 mission shall enforce compliance with that section in the 22 same manner as the Attorney General in accordance with 23 section 15. 24 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4876 IS ‘‘(2) If the Federal Trade Commission approves an 1 agreement with the parties to the transaction that con- 2 tains a consent order with respect to a violation of section 3 7, the Commission shall enforce compliance with that sec- 4 tion in accordance with this section.’’; 5 (4) in section 13 (15 U.S.C. 23), by inserting 6 ‘‘(including a suit, action, or proceeding brought by 7 the Federal Trade Commission with respect to a vio- 8 lation of section 7)’’ before ‘‘subpoenas’’; and 9 (5) in section 15 (15 U.S.C. 25), by inserting 10 ‘‘and the duty of the Federal Trade Commission 11 with respect to a violation of section 7,’’ after ‘‘Gen- 12 eral,’’. 13 SEC. 103. AMENDMENTS TO THE FEDERAL TRADE COMMIS- 14 SION ACT. 15 The Federal Trade Commission Act (15 U.S.C. 41 16 et seq.) is amended— 17 (1) in section 5(b) (15 U.S.C. 45(b)), by insert- 18 ing ‘‘(excluding the consummation of a proposed 19 merger, acquisition, joint venture, or similar trans- 20 action that is subject to section 7 of the Clayton Act 21 (15 U.S.C. 18), except in cases where the Commis- 22 sion approves an agreement with the parties to the 23 transaction that contains a consent order)’’ after 24 ‘‘unfair method of competition’’; 25 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4876 IS (2) in section 9 (15 U.S.C. 49), by inserting 1 after the fourth undesignated paragraph the fol- 2 lowing: 3 ‘‘Upon the application of the commission with respect 4 to any activity related to the consummation of a proposed 5 merger, acquisition, joint venture, or similar transaction 6 that is subject to section 7 of the Clayton Act (15 U.S.C. 7 18) that may result in any unfair method of competition, 8 the district courts of the United States shall have jurisdic- 9 tion to issue writs of mandamus commanding any person 10 or corporation to comply with the provisions of this Act 11 or any order of the commission made in pursuance there- 12 of.’’; 13 (3) in section 13(b)(1) (15 U.S.C. 53(b)(1)), by 14 inserting ‘‘(excluding section 7 of the Clayton Act 15 (15 U.S.C. 18) and section 5(a)(1) with respect to 16 the consummation of a proposed merger, acquisition, 17 joint venture, or similar transaction that is subject 18 to section 7 of the Clayton Act (15 U.S.C. 18))’’ 19 after ‘‘Commission’’; and 20 (4) in section 20(c)(1) (15 U.S.C. 57b–1(c)(1)), 21 by inserting ‘‘or under section 7 of the Clayton Act 22 (15 U.S.C. 18), where applicable,’’ after ‘‘Act,’’. 23 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4876 IS SEC. 104. EFFECTIVE DATE; APPLICATION OF AMEND- 1 MENTS. 2 (a) EFFECTIVE DATE.—Except as provided in sub- 3 section (b), this title and the amendments made by this 4 title shall take effect on the date of the enactment of this 5 Act. 6 (b) APPLICATION OF AMENDMENTS.—The amend- 7 ments made by this title shall not apply to any of the fol- 8 lowing that occurs before the date of enactment of this 9 Act: 10 (1) A violation of section 7 of the Clayton Act 11 (15 U.S.C. 18). 12 (2) A transaction with respect to which there is 13 compliance with section 7A of the Clayton Act (15 14 U.S.C. 18a). 15 (3) A case in which a preliminary injunction 16 has been filed in a district court of the United 17 States. 18 TITLE II—FEDERAL COMMUNI- 19 CATIONS COMMISSION MERG- 20 ER PROCESS REFORM 21 SEC. 201. TIME LIMITS FOR COMMISSION ACTION ON 22 TRANSFERS AND ASSIGNMENTS. 23 Title IV of the Communications Act of 1934 (47 24 U.S.C. 401 et seq.) is amended by adding at the end the 25 following: 26 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4876 IS ‘‘SEC. 417. TIME LIMITS FOR COMMISSION ACTION ON 1 TRANSFERS AND ASSIGNMENTS. 2 ‘‘(a) DEFINITION.—In this section, the term ‘covered 3 application’ means an application for the transfer of con- 4 trol or assignment of any license or authorization subject 5 to the jurisdiction of the Commission. 6 ‘‘(b) REQUIREMENTS.— 7 ‘‘(1) IN GENERAL.—Notwithstanding any other 8 provision of law, including section 309(e), the Com- 9 mission— 10 ‘‘(A) shall approve or deny a covered appli- 11 cation; and 12 ‘‘(B) may not designate a covered applica- 13 tion for hearing, unless the Commission first 14 determines by a majority vote that a material 15 factual question exists about misrepresentation 16 or lack of candor by the applicant. 17 ‘‘(2) DETERMINATION.—Except as provided in 18 paragraph (3), the Commission shall make a deter- 19 mination to approve or deny a covered application 20 not later than 180 days after the date on which the 21 applicants provide to the Commission the last sub- 22 mission, relating to the application, before the Com- 23 mission provides public notice of the application. 24 ‘‘(3) EXTENSIONS.— 25 ‘‘(A) IN GENERAL.— 26 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4876 IS ‘‘(i) REQUEST.—During the 180-day 1 review period under paragraph (2), the 2 Commission may apply to the United 3 States District Court for the District of 4 Columbia for an extension of that period 5 for an additional 30 days by filing a mo- 6 tion to extend that references this section. 7 ‘‘(ii) COURT DETERMINATION.—The 8 court may grant an extension of the 180- 9 day review period requested under clause 10 (i) if— 11 ‘‘(I) the court finds that the ap- 12 plicants for the transfer of control or 13 assignment have not substantially 14 complied, in a timely manner, with a 15 reasonable request by the Commission 16 for information; 17 ‘‘(II) the Commission shows, by 18 clear and convincing evidence, that 19 the Commission is unable to complete 20 review within the 180-day review pe- 21 riod; or 22 ‘‘(III) an Executive agency (as 23 defined in section 105 of title 5, 24 United States Code) has requested in 25 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4876 IS writing that the Commission delay a 1 determination pending the Executive 2 agency’s national security review of 3 the transfer of control or assignment. 4 ‘‘(B) ADDITIONAL EXTENSIONS.—The 5 Commission may request, and the court may 6 grant, additional 30-day extensions in the same 7 manner as an initial extension under subpara- 8 graph (A). 9 ‘‘(c) APPROVAL ABSENT COMMISSION ACTION.— 10 ‘‘(1) IN GENERAL.—A covered application shall 11 be deemed approved without conditions if the Com- 12 mission does not approve or deny the application or 13 apply for an extension during the applicable period 14 under subsection (b). 15 ‘‘(2) PENDING LITIGATION.— 16 ‘‘(A) IN GENERAL.—Except as provided in 17 subparagraph (B), if the 180-day review period 18 under subsection (b)(2) has expired, the Com- 19 mission may not deny a covered application, or 20 approve a covered application with conditions, 21 during the pendency of any litigation relating to 22 a request by the Commission for an extension 23 under subsection (b)(3) with respect to the cov- 24 ered application, including any time during 25 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4876 IS which a court has entered a stay pending ap- 1 peal or administrative stay of such litigation. 2 ‘‘(B) EXTENSION REQUEST DENIED AFTER 3 180-DAY REVIEW PERIOD.—If a request for an 4 extension under subsection (b)(3) is denied 5 after the expiration of the 180-day review pe- 6 riod under subsection (b)(2)— 7 ‘‘(i) the Commission shall make a de- 8 termination to approve or deny the covered 9 application not later than 10 days after the 10 date on which the extension request is de- 11 nied; and 12 ‘‘(ii) the covered application shall be 13 deemed approved without conditions if the 14 Commission does not approve or deny the 15 application during the 10-day period de- 16 scribed in clause (i). 17 ‘‘(d) BURDEN OF PERSUASION SHIFTED.—Notwith- 18 standing any other provision of law, including section 706 19 of title 5, United States Code, in a judicial appeal of a 20 Commission decision to deny a covered application, the 21 Commission shall bear the burden of persuasion to dem- 22 onstrate that the decision is— 23 ‘‘(1) permitted under applicable statutes and 24 regulations; and 25 VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4876 IS ‘‘(2) supported by the required amount of fac- 1 tual evidence.’’. 2 SEC. 202. TECHNICAL AND CONFORMING AMENDMENT. 3 Section 310(d) of the Communications Act of 1934 4 (47 U.S.C. 310(d)) is amended, in the second sentence, 5 by inserting before the semicolon the following: ‘‘, except 6 as otherwise provided in section 417’’. 7 SEC. 203. EFFECTIVE DATE. 8 The amendment made by section 201 shall apply with 9 respect to any covered application that is submitted to the 10 Federal Communications Commission on or after the date 11 of enactment of this Act. 12 Æ VerDate Sep 11 2014 19:44 Nov 05, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S4876.IS S4876 pamtmann on DSKBC07HB2PROD with BILLS