The Justice Department and Federal Trade Commission are proposing tightening their merger review guidelines, citing what Attorney General Merrick Garland calls “unchecked consolidation” that “threatens the free and fair markets upon which our economy is based.”

Garland said the guidelines reflect modern market realities. One of those is the rise of the biggest of big tech, Facebook in particular. The Justice Department and FTC — under both Republican and Democratic administrations — as well as Congress have looked at Facebook with concern over efforts to buy up potential competitors before they get big enough to trigger serious merger reviews. For example, one of the new guidelines says that mergers “should not eliminate a potential entrant in a concentrated market.”

Garland said the guidelines reflect modern market realities. One of those is the rise of the biggest of Big Tech — Facebook in particular, which Justice and the FTC have targeted in both Republican and Democratic administrations — and Congress have been looking at with a concern over efforts to buy up potential competitors before they get big enough to trigger serious merger reviews. For example, one of the new guidelines says that mergers "should not eliminate a potential entrant in a concentrated market."

The FTC under chair Lina Khan had signaled it would be looking hard at big tech companies and whether they got that big via buying up to monopoly. The guidelines would put that in writing as policy going forward.

Justice and FTC divvy up merger reviews for antitrust issues, with Justice generally taking the lead on communications mergers. The Federal Communications Commission merger-review process also includes competition issues, but extends to a review of whether a merger is otherwise in the public interest.

Also Read: DOJ Investigating Search, Social, Online Sales Giants

The guidelines were last updated in 2020 during the Trump administration, but Democrats argued they kept a thumb on the scale for mergers, including by, for one, failing to identify merger characteristics that are most likely to be problematic. That is clearly not the case with the draft guidlines just proposed under the Biden Administration.

The new guidelines are in draft form, so they’ll still need to be finalized, but they will come after public comment on how the guidelines should be revised that included feedback from over 5,000 parties, the DOJ said.

The new guidelines are:

1. “Mergers should not significantly increase concentration in highly concentrated markets;
2. “Mergers should not eliminate substantial competition between firms;
3. “Mergers should not increase the risk of coordination;
4. “Mergers should not eliminate a potential entrant in a concentrated market;
5. “Mergers should not substantially lessen competition by creating a firm that controls products or services that its rivals may use to compete;
6. “Vertical mergers should not create market structures that foreclose competition;
7. “Mergers should not entrench or extend a dominant position;
8. “Mergers should not further a trend toward concentration;
9. “When a merger is part of a series of multiple acquisitions, the agencies may examine the whole series;
10. “When a merger involves a multi-sided platform, the agencies examine competition between platforms, on a platform, or to displace a platform;
11. “When a merger involves competing buyers, the agencies examine whether it may substantially lessen competition for workers or other sellers;
12. “When an acquisition involves partial ownership or minority interests, the agencies examine its impact on competition“ and “mergers should not otherwise substantially lessen competition or tend to create a monopoly.”

Those 5,000 parties, and anyone else who wants to weigh in, will now have an additional 60 days to comment on the draft guidelines, with a deadline of September 18.

Attorney General Merrick Garland told news media execs in a meeting Tuesday (Sept. 13) that his department was committed to protecting a free and independent press, including ensuring that journalists are not compelled to reveal their sources or information as part of law enforcement investigations.

In July 2021, Garland announced a new policy to restrict compulsory processes to get information collected in the "scope of newsgathering activities." Those protections are necessary in the absence of a federal shield law and include a prohibition on subpoenas, warrants, certain court orders, and "civil investigative demands."

Also: Journalists Press for Shield Law

Garland told the news executives, which included execs from CBS, NBC, CNN and NPR, that the act of codifying that July 2021 policy shift, which was announced in a memo, would be ready and posted online in the next three months.

The prohibition does not apply if a journalist is him or herself being investigated for criminal conduct, such as insider trading, or to a journalist who used criminal methods -- breaking and entering, for example, to obtain information. But the prohibition does apply if a journalist has obtained and published government information, including classified information, in the course of their reporting.

There is also the traditional carveout -- typical for state shield laws -- for subpoenas or warrants or other legal processes employed to prevent imminent risk of death or serious harm to people or critical infrastructure.

Justice also supported a federal shield law as part of that July 2021 rethink, but none has yet to make it through the Congress despite multiple attempts over many years. 

The Justice Department said Monday (July 19) that it has formally changed its policy to restrict the use of “compulsory processes” — such as subpoenas — to get information or records from members of the press on activities in the course of doing their jobs and in the “scope” of newsgathering.

The policy, effective immediately, was announced in a memo to department staff leadership by Attorney General Merrick Garland.

Garland has asked a deputy attorney general to look into codifying the policy into department regulations to ensure the “durability” of the change, and added that he supports legislation that would protect the news media.

The Justice Department had already announced that it would not be issuing subpoenas for reporters' records in leak investigations.

The changes in policy followed a report in The New York Times that not only was the Biden White House continuing the pursuit of records from Times reporters, a holdover from a Trump-era investigation, but that it had issued a gag order preventing the publisher’s executives from talking about the matter, even to its own staff.

CNN also reported that the Trump administration had obtained phone records and email messages from the network’s correspondents as part of leak investigations.

In a 70-30 vote that included 20 Republicans, the Senate has confirmed Merrick Garland to be the nation's next attorney general and he has pledged to use that post for strong antitrust enforcement.

Garland has long been a fixture on the U.S. Court of Appeals for the D.C. Circuit, including as chief judge. That court has principle jurisdiction over challenges to FCC decisions. Garland was President Obama's pick for the Supreme Court vacancy opened up by the death of Associate Justice Antonin Scalia--Republicans refused to consider him and ran out the clock on the Administration. Instead, Donald Trump put conservative Neil Gorsuch on the court.

At his confirmation hearing, Garland pledged that he will be a strong enforcer of antitrust law as "the charter of American economic liberty" and expects to need more resources to do so.

Asked by Sen. Chris Coons (D-Del.) if he thought the Justice Department had a role in examining the role of online misinformation in contributing to domestic division and terrorism and helping develop "reasonable solutions," Garland said he had no specific legislative solutions, but said he thought that the important part of the investigation of violent extremist groups is "following their activities online and getting an idea of the misinformation being put out."

Coons said he looked forward to working with Garland to find the correct balance between personal liberty and competitiveness and pushing back on digital authoritarianism.

Facebook Wednesday (March 10) asked a court to dismiss the government's case against it over the purchase of Instagram and WhatsApp. But Garland has pledged to take the issue of whether Big Tech was allowed to purchase nascent competitors to foreclose competition very seriously. 

Also Read: Garland Says Ex-Facebook Lawyer Not up for Antitrust Chief

Before becoming a federal judge in 1997, Garland had a lengthy career at Justice, including as a special assistant to Attorney General Ben Civiletti, assistant U.S. attorney; a supervisor in the criminal division and a senior official in the deputy attorney general's office. 

Motion Picture Association Chairman Charles Rivkin welcomed the nomination and what he hoped would be a good working relationship on the issue of intellectual property protection.

“Merrick Garland’s decades of legal experience, both in the Justice Department and as a respected federal judge, will serve him well as our nation’s next Attorney General," said Rivkin. "Following his bipartisan Senate confirmation today, the Motion Picture Association looks forward to working with him to safeguard America’s creative community, protect free speech and enforce intellectual property laws.

Also Read: House Dems Press Garland to Drop Net Neutrality 

“Copyright is the foundation of our nation’s creative economy, supporting the livelihoods of millions of American creators. Because of strong copyright protections, the U.S. creative economy is unparalleled around the world. The MPA is confident Attorney General Garland appreciates the unique value of the nation’s film, television and streaming industry – including the 2.5 million American jobs it supports – and will work during this challenging time to ensure our community can rebuild stronger than ever before.”

Attorney General nominee Merrick Garland said Monday that reports that Susan Davies, a lawyer who has defended Facebook against antitrust charges, is being considered as head of the antitrust division are inaccurate.

That came during day one of the planned two-day nomination hearing in the Senate Judiciary Committee. 

Also Read: House Dems Press Garland to Drop Net Neutrality Suit

Justice has filed suit against Facebook for its purchases of Instagram and WhatsApp? over the issue of buying startups before they can become competitors.

Asked by Sen. Josh Hawley (R-Mo.) how a lawyer who had defended Facebook could be put in charge of the Antitrust Division, he said he knew Davies, was confident she would be fair in whatever role she had, that he would be eager for her counsel, but that the press reports were "completely incorrect" and as far as he knew she was not under consideration to head the department. 

He said he did not think either he or Davies had any aspirations that she head up the division. But he also pointed out that the department has recusal rules that would prevent someone in that post from taking a role in a cast like that. 

He called Davies a fantastic lawyer and woman of "enormous integrity" and remarkable ability. He said if she were in any role in the department she would know when to recuse herself. 

Also Read: Merrick Garland Stresses Strong Antitrust Enforcement

He pointed out that "unfortunately or fortunately, some of the best antitrust lawyers in the country have some involvement in some part of high tech and we can't exclude ever single good lawyer from being in the division. "But that is not an issue and nothing to be concerned about," he told Hawley, who appeared to accept that answer, and with some relief.

Attorney General nominee Merrick Garland said Monday (Feb. 22) that he will be a strong enforcer of antitrust law as "the charter of American economic liberty" and expects to need more resources to do so.

He was testifying at his Senate Judiciary Committee nomination hearing.

Also Read: House Democrats Press Garland on Dropping California Suit

Saying the Federal Trade Commission and DOJ Antitrust Division were shadows of what they were when AT&T was broken up, Sen. Amy Klobuchar (D-Minn.), chair of the Antitrust Subcommittee, asked Garland if he supported her bill that would provide more resources so they weren't overseeing a merging marketplace with Band-Aids and duct tape.

Garland conceded that his first love in law school was antitrust, which he has also taught, and said he always wants to be in the position to say "thank you, yes," when asked if he wants more resources. He said he expected that was what he would say, but added he can't evaluate what resources he will need to "vigorously enforce the antitrust laws.

Klobuchar has proposed reforms to antitrust law, including ones to crack down on Big Tech buying up to monopoly, including changing some of the standards for mergers and exclusionary conduct, and she said she hoped he would support that effort as well.

Also Read: President Biden Taps Merrick Garland

Klobuchar said if anything argued for antitrust law reform, it was DOJ's and FTC's suits against Facebook over its acquisitions of Instagram and WhatsApp? She suggested he brush up on Facebook CEO Mark Zuckerberg's e-mail about purchasing nascent competitors. She said the response to such an e-mail needed to come from Justice and needed to be that such exclusionary conduct is not the way capitalism is supposed to work.

Garland promised to take that issue very seriously and said he had done so throughout his career.  He said he deeply believed, as the Supreme Court has stated, that antitrust law is "the charter of American economic liberty. 

Asked by Sen. Chris Coons (D-Del.) if he thought the Justice Department had a role in examining the role of online misinformation in contributing to domestic division and terrorism and helping develop "reasonable solutions," Garland said he had no specific legislative solutions, but said he thought that the important part of the investigation of violent extremist groups is "following their activities online and getting an idea of the misinformation being put out."

Coons said he looked forward to working with Garland to find the correct balance between personal liberty and competitiveness and pushing back on digital authoritarianism.

Before becoming a federal judge in 1997, Garland had a lengthy career at Justice, including as a special assistant to Attorney General Ben Civiletti, assistant U.S. attorney; a supervisor in the Criminal Division and a senior official in the deputy attorney general's Office. 

The Senate Judiciary Committee launched its two-day nomination hearing Monday (Feb. 22) for Merrick Garland. President Joe Biden's nominee for attorney general. Like his predecessor, Bill Barr, he has some experience with communications issues. But unlike his previous nomination--by President Obama to the Supreme Court in 2016--he is expected to be confirmed to his new post.

Among the communications issues Garland will be confronting as attorney general are electronic surveillance and encryption, music licensing consent decrees, and Big Tech antitrust and Sec. 230 immunity issues.

If he is confirmed, that will mean that Garland, former Chief Judge on the U.S. Court of Appeals for the D.C. Circuit, which has principal jurisdiction over FCC decisions, will be replacing a former telecom exec, Bill Barr, who argued against FCC net neutrality regulations while general counsel of Verizon.

Also Read: Attorney Bill Barr Resigns

Garland does not have a long communications decision track record on the D.C. circuit, though he was chief judge of the court when a three-judge panel heard the 2013 Verizon v. FCC case, that company's challenge to compromise, Title I-based net neutrality rules. Verizon's victory arguably proved pyrrhic since it led to tougher regs, at least until they were eliminated though likely to return in some form under the new administration.

He also had to weigh in when petitioners sought en banc (full court) review of panel decisions, like those on net neutrality rules.

The Reporters Committee does not rate Attorney General nominees, but it appears to like what it saw in Garland's judicial background when it came to First Amendment protections.

Also Read: Chief Judge Garland Allows Streaming of Oral Argument

It said that Garland has taken strong stands on speech and journalist protections, though both came in dissents, one in support of reporters' privilege and another in support of publishing lawfully obtained information.

Nominee Garland was early on pressed by members of Congress to drop DOJ's suit challenging a California net neutrality law, but the Biden Justice Department has already done that even without a new attorney general.

Rep. Anna Eshoo (D-Calif.) and a baker's dozen Democratic members of the California congressional delegation have called on attorney general nominee Merrick Garland to make net neutrality one of his first orders of business in the new post.

Garland has been a judge on the U.S. Court of Appeals for the D.C. Circuit, which has principle oversight of FCC decisions like the elimination of net neutrality rules.

Specifically, the legislators want Garland to withdraw the government's lawsuit against California net neutrality law ASAP when he takes over after Inauguration Day.

Also Read: Court Should Deny Blocking of Net Neutrality Law

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization. The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But in 2018, California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

The FCC, backed by Justice, filed suit, as did ISPs.

The law's implementation was stayed pending resolution of those legal challenges.

"In September 2018, then-Governor Jerry Brown signed into law the SB 822, the strongest net neutrality law in the country. The Trump Department of Justice (DOJ) sued to overturn California’s law hours later, and associations of telecommunications providers sued within days," the legislators wrote. "Parties to the case agreed to put the case on hold until Mozilla v. FCC was resolved. In that case, the Court of Appeals for the D.C. Circuit vacated the part of the Federal Communications Commission (FCC)’s 2018 Restoring Internet Order (RIF) that preempted state net neutrality laws.

Also Read: California Committee Approves Tough New Net Neutrality Bill

“With the new Administration, we have an opportunity to restore the damage the Trump FCC has done to the free and open internet in the last four years,” said Eshoo. “As the pandemic surges, it is more important than ever that we restore the policies to ensure families have full access to an open and reliable internet.”

In addition to Eshoo, signing on to the letter were Democratic California House members Doris Matsui, Jerry McNerney, Mike Thompson, Jackie Speier, Barbara Lee, Mark Takano, Jimmy Panetta, Ted Lieu, Ro Khanna, Jared Huffman, Eric Swalwell, and Mike Levin.

Merrick Garland, the D.C. federal appeals court judge that Joe Biden's former boss, President Barack Obama, unsuccessfully tried to put on the Supreme Court, has been tapped by President-elect Biden to be Attorney General.

Also Read: Obama Nominates Garland for High Court

Garland joined the U.S. court of Appeals for the D.C. Court, which has principal jurisdiction over challenges to FCC decision, in April 1997 and is the former chief judge of that court. He is also a Justice Department veteran who led the investigations of the Unabomber and the response to the Oklahoma City bombing. He served as deputy assistant attorney general in the criminal division and principal associate deputy attorney general.

The Biden transition team billed the choice of Garland as "underscoring the President-elect’s commitment to restore integrity and the rule of law, boost morale of the dedicated career professionals at DOJ, and build a more equitable justice system that serves all Americans."

The announcement came the day after a mob of Trump supporters trampled on that rule of law en route to storming the Capitol in an effort to protect Congress' certification of President-elect Biden as the winner.

Also tapped for top Justice Department posts were Lisa Monaco as deputy attorney general. She was a 15-year veteran of the department including serving as assistant attorney general for national security under President Obama, the first woman to hold that post.

Vanita Gupta, former acting assistant attorney general, has been named associate attorney general, the first woman of color--she is an Indian-American--to serve in that role.

Kirsten Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), has been named assistant attorney general for civil rights.

“Merrick Garland is a brilliant judge who has earned the respect of lawmakers from both parties throughout his decades in public service," said Sen. Amy Klobuchar (D-Minn.), ranking member of the Judiciary Committee. "The Attorney General of the United States serves as the people’s lawyer, and I have full confidence that Judge Garland will restore credibility and independence to the Department of Justice. I look forward to working with him to make systemic reforms to our justice system, secure Americans’ right to vote, and counter the increasing monopolization that is hurting consumers.”

To be or not to be defined as an MVPD, that is the question.

A federal appeals court Friday heard argument in the long-running court battle between TV station content providers and FilmOn and, according to an attorney at the lively and lengthy oral argument, both sides had their adherents.

FilmOn says it is the online equivalent of cable system/MVPD and should be eligible for a blanket compulsory copyright license to stream TV content. Fox and the other Big Four TV networks—with the support of the National Association of Broadcasters—have said FilmOn is not entitled to the license and cannot stream TV content without individually negotiating for the rights.

Hearing the case, Fox Television Stations, Inc. v. FilmOn.TV Networks Inc., was a three-judge panel of the court comprising Chief Judge Merrick Garland (Obama's nominee for the Antonin Scalia Supreme Court seat), and Judges Brett Kavanaugh and Patricia Ann Millett.

According to Cory Andrews, senior litigation counsel with the Washington Legal Foundation who was at the argument (WLF filed an amicus brief supporting Fox et al.), the argument went long--almost two hours--and included some lively questioning.

He said that it appeared from that questioning that Millett was more in line with FilmOn, Garland with broadcasters, and Kavanaugh could be the swing vote assuming there is one.

He said Kavanaugh asked tough questions of both sides and appeared to be grappling with whether it is the proper role of the court to create a new over-the-top cable system, rather than Congress.

Garland, said Andrews, seemed to be the most likely to view the statute as ambiguous, and because it is ambiguous, that it made sense to defer to the Copyright Office interpretation that a cable system is inherently local.

He said Millet did not appear to see the same ambiguity in the statute language as describing MVPDs as wires and cables or other communications means and that the Internet would seem to qualify as wires and cables and was arguably the preeminent communications tool, so that if the statute is viewed as being drafted with enough

flexibility to account for evolving technology, over-the-top video would seem fit under that definition.

All that is with the caveat that it is difficult to gauge a judge's decision from questioning, since they can play devil's advocate in order to probe and test an argument they might actually agree with.

The lawyer for broadcasters, Neal Katyal from Hogan Lovells, argued that what was at stake was property rights, and that the Copyright Act extends broad protections for copyright holders and provides as very narrow exceptions, including the blanket (compulsory) license.

FilmOn is challenging a lower court decision that deferred to the Copyright Office’s advisory that internet-based retransmission services are not eligible for the license available to cable systems.

On the other coast, FilmOn and Fox et al. are awaiting a ruling from the 9th U.S. Circuit Court of Appeals on a decision by a different lower court judge that FilmOn is eligible for a compulsory license, which would allow FilmOn X (formerly Aereokiller) to deliver TV-station programming from the major networks at a government-set rate, rather than having to negotiate for it individually.

How those decisions are ultimately ruled on in those federal appeals courts  could determine whether the Supreme Court gets involved. IF the federal circuits split, one supporting the license the other not, the Supremes would be more likely to take the case if it is appealed there.

The High Court has already ruled in a similar case, ABC v. Aereo that Internet transmissions are public performances and require a copyrightholder's permission, rather than being covered by a blanket license.

The Copyright Office has previously, if tentatively, held that over-the-top services are not subject to the blanket license, but said the FCC could change that if it defined them as MVPDs. Then FCC Chairman Tom Wheeler proposed doing just that, including citing FilmOn as one of the competitive video services such a move would help foster, but he got pushback, including from some in both parties on the Hill, and that definitional initiative was tabled.