The U.S. Justice Department (DOJ) recently sent a second request to Nexstar Media Group and Tegna Inc. seeking additional information about their proposed $6.2 billion merger. This request extends the Hart-Scott-Rodino Act waiting period by 30 days, pending the companies’ compliance. According to a securities filing, the two television-station ownership groups anticipate their planned merger will be completed by the second half of 2026.
This standard antitrust-review process presents an opportunity to examine a question that should have been settled decades ago: Why does the Federal Communications Commission (FCC) maintain a separate merger-review process, when the DOJ and the Federal Trade Commission (FTC) already have the authority, tools, and experience to conduct thorough analyses under antitrust laws?
Two Agencies, One Analysis
The DOJ’s second request to Nexstar and Tegna follows established procedures under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 to give antitrust enforcers time to review mergers before they are consummated.
The statute requires parties to large mergers to file notifications with both the DOJ and FTC, then wait 30 days while one agency reviews the transaction. If the reviewing agency requires additional information, it issues a second request that extends the waiting period until 30 days after the parties comply.
Mergers of licensed broadcasters, however, face an additional layer of review. The FCC reviews these transactions under Section 310(d) of the Communications Act, which requires the agency to determine whether a license transfer serves “the public interest, convenience, and necessity.”
The FCC’s authority is triggered by the companies’ need to transfer control of their various FCC licenses—a procedural hook the agency has long used to conduct comprehensive merger reviews. The process is managed by a dedicated FCC transaction team that establishes a public docket, inviting comments and petitions to deny from third parties.
This public phase is critical, as it allows competitors, consumer advocates, and other stakeholders to introduce arguments and evidence that shape the scope of the commission’s inquiry, often extending it far beyond the transaction’s direct competitive effects.
The vagueness of the “public interest, convenience, and necessity” standard gives the commission broad discretion to examine competitive effects, localism, and viewpoint diversity—criteria that substantially overlap with traditional antitrust analysis but without the constraints that govern DOJ and FTC enforcement.
The Public-Interest Standard as a Coercive Tool
The FCC’s public-interest review differs from DOJ antitrust analysis in several ways that disadvantage both merging parties and the competitive process itself.
The FCC operates without statutory time limits. While the HSR Act requires the DOJ to act within specific timeframes, the FCC can extend its review indefinitely. This asymmetry gives the commission significant leverage over the merging parties, who face mounting costs and uncertainty as their transaction remains in regulatory limbo.
Moreover, the FCC reverses the burden of proof. Under the Clayton Act, the DOJ must demonstrate that a merger may substantially lessen competition in a relevant market. In contrast, the FCC requires merging parties to prove affirmatively that their transaction will promote the public interest. This far more demanding standard presumes mergers are harmful unless proven otherwise.
The process also allows the FCC to extract so-called “voluntary” conditions unrelated to the merger itself. Indeed, former FCC Commissioner Harold Furchtgott-Roth has observed that calling such commitments “voluntary” requires “contorting” the English language. The commission often withholds approval until the applicants agree to conditions—which are telegraphed through closed-door negotiations—that the agency would lack authority to impose through formal rulemaking. These have included commitments to carry more children’s programming, cease offshoring workforces, and abide by net-neutrality practices that neither the Communications Act nor FCC regulations require. In comments to the FCC, the International Center for Law & Economics (ICLE) noted:
Perhaps the most significant opportunity for meaningful deregulation involves narrowing the scope of the FCC’s interpretation of the “public interest” standard in the merger context. The current expansive interpretation has allowed the Commission to address matters only tangentially related to the transaction at-hand, effectively turning merger reviews into de-facto rulemaking proceedings. This approach creates substantial regulatory uncertainty and violates the principle that regulatory interventions should be narrowly tailored to address specific, demonstrable harms.
The U.S. Circuit Court of Appeals for the D.C. Circuit addressed this practice in the 2020 decision Competitive Enterprise Institute v. FCC, which criticized the commission for imposing conditions that exceeded even its expansive merger review. The circuit court noted that the FCC conceded that one of those conditions—providing discounted service to low-income consumers—was “not a transaction-specific benefit.” The court quoted former Commissioner Michael O’Rielly’s observation that such conditions “reside somewhere in the space between absurdity and corruption.”
Crucially, these voluntary commitments escape judicial review. By agreeing to conditions rather than litigating, merging parties sacrifice most avenues to challenge the commission’s requirements in court. This allows the FCC to accomplish through merger review what it could not hope to achieve through notice-and-comment rulemaking subject to judicial oversight.
Antitrust Agencies Provide Superior Review
The case-by-case analysis the DOJ and FTC conduct under the Clayton Act provide a more rigorous and appropriate framework to evaluate broadcast mergers than the FCC’s public-interest standard.
As we discussed regarding the proposed Charter/Cox transaction, antitrust agencies define relevant markets based on the specific facts of each transaction, as well as the competitive realities. They consider evidence of substitutability from both consumers and advertisers and conduct a detailed analysis of potential unilateral and coordinated effects, examining whether a merger is likely to harm competition with respect to consumer prices, advertising rates, or innovation and quality.
The antitrust framework explicitly allows for consideration of pro-competitive efficiencies, such as cost savings that could enable greater investment in local news—benefits the FCC’s structural prohibitions ignore. If a transaction poses competitive concerns, antitrust agencies can impose tailored remedies, rather than blocking mergers that may be, on balance, pro-competitive. This analytical rigor reflects decades of experience and economic learning. The DOJ and FTC also jointly issue the Horizontal Merger Guidelines, which provide a degree of transparency and predictability to merging parties.
Deputy Assistant U.S. Attorney General Bill Rinner emphasized in June 2025 that the DOJ would focus on civil merger enforcement against problematic transactions, rather than on generalized deterrence, with a strong preference for structural remedies over behavioral conditions. Rinner pledged that the DOJ would not send “scarlet letter” warnings, abuse the Hart-Scott-Rodino process to build separate investigations, or engage in “shadow decrees” that avoid public transparency and judicial review.
The FCC’s process lacks these virtues. Its public-interest standard remains indeterminate and ever-shifting after 90 years. Its merger conditions often bear no relationship to the transactions under review. Its closed-door negotiations produce commitments that escape both the notice-and-comment process and judicial scrutiny, which can constrain normal rulemaking.
The Ownership-Cap Problem
Sen. Michael Bennet and Rep. Joe Neguse (both D-Colo.) recently sent a letter to FCC Chairman Brendan Carr urging the commission to reject the Nexstar/Tegna merger because it would violate the national broadcast-ownership cap, which limits any company to owning stations that reach 39% of U.S. households. The lawmakers noted that Nexstar currently reaches approximately 39% of households (or 70%, without the UHF discount), and acquiring Tegna’s 64 stations would push this to approximately 80% if the discount is removed.
The lawmakers’ intervention highlights the confusion created by maintaining separate FCC ownership rules alongside general antitrust enforcement. The question of whether Nexstar’s post-merger reach constitutes a problem for competition should be addressed through traditional antitrust analysis that considers the modern video marketplace, where broadcast television competes with cable, satellite, virtual MVPDs like YouTube TV, subscription services like Netflix, and free ad-supported platforms like Tubi and Pluto TV. Nielsen data from September 2025 show that streaming accounts for 45.2% of household television viewing time, about double the 22.3% share of broadcast.
Structural ownership caps based on decades-old assumptions about spectrum scarcity are no longer relevant in a world of digital abundance. If the Nexstar/Tegna merger raises competitive concerns in specific local markets or for particular services—such as retransmission-consent negotiations—the DOJ has the tools and expertise to identify these problems and craft appropriate remedies. What the DOJ cannot do—and what Congress should not permit the FCC to do—is block a merger based on arbitrary ownership limits divorced from actual competitive effects.
The Path Forward
The Nexstar/Tegna merger provides an opportunity to reconsider whether duplicative merger review serves any purpose beyond imposing costs on merging parties and creating opportunities for regulatory overreach. The DOJ’s second request demonstrates that antitrust agencies take their responsibilities seriously and have ample authority to protect competition in broadcast markets.
Ideally, Congress would eliminate the FCC’s de facto merger-review authority by clarifying that Section 310(d) authorizes only narrow review of whether license transferees meet basic qualification requirements. The FCC’s institutional competencies lie in spectrum management and technical standards. Its expertise is not in conducting economic analysis of market definition, competitive effects, and merger-specific efficiencies that duplicate the expert analysis already performed by antitrust agencies.
Moreover, the FCC’s expertise is certainly not in determining what is in the public interest, as I argued in my post advocating a “clean slate” approach to broadcast regulation:
Furthermore, the [public-interest] standard itself is problematic. The idea that a panel of three to five presidentially appointed FCC commissioners in Washington can better determine the “public interest” than the public itself—through its viewing choices in a competitive market—is a relic of progressive-era central planning. In reality, the vague standard invites regulatory capture and rent seeking, where politically connected groups lobby the FCC to define the public interest in ways that benefit them, rather than the public at-large.
Until Congress acts, the commission itself should exercise restraint. As Commissioner Michael Powell stated in dissent from the SBC/Ameritech merger approval, the agency should not treat regulated entities as if they can “voluntarily” offer broad-ranging legal obligations and penalties. The FCC should announce that it will refrain from imposing conditions on merger proposals that are unrelated to compliance with existing statutory or regulatory requirements, thereby narrowing substantially its application of the public-interest standard.
A reformulated standard should establish a rebuttable presumption that mergers that do not create demonstrable competitive harms serve the public interest, shifting the burden of proof from applicants to the commission to identify specific transaction-related harms. As ICLE argued in comments to the FCC’s “Delete, Delete, Delete” proceeding, the commission should establish clear guidelines limiting merger conditions to those that are:
- directly related to mitigating specific, transaction-specific harms;
- narrowly tailored to address those harms; and
- limited in duration, with specific sunset provisions.
The Nexstar/Tegna merger should proceed or fail based on its competitive merits as evaluated by the DOJ. The FCC’s parallel review serves no public interest that general antitrust law cannot better serve through transparent, predictable, and legally constrained analysis.
