Assistant AG Delrahim, Commissioner O'Rielly Spar Over Roles in Antitrust Reviews

Assistant Attorney General Makan Delrahim and Federal Communications Commissioner Michael O'Rielly offered different perspectives on how the government should treat antitrust cases - especially in the media industry. Delrahim suggested that courts should "bifurcate trials," with one segment evaluating the transaction and another phase offering a remedy. He warned that, "Defendants, not the public, should bear the burden of proof of whether [a merger or acquisition] does likely harm to competition" and he urged that "courts should be careful in the future." Delrahim also acknowledged that, "Our market definitions change." "There is a lot of convergence of different forms in [the media] industry," he said. "We look at the facts of the market as well as the changes in technology."

"His standards stink," said FCC commissioner Michael O'Rielly, describing Delrahim's approach. "That's the issue. We have to modernize how we examine the marketplace, across segments. Everyone is in the same market. The big tech companies are trying to steal everyone's lunch."  "All types of providers are figuring out what they want to be in this business." That was a theme of the Commissioner's speech, in which he emphasized the need for better local awareness and oversight of new unregulated entrants competing entrenched cable operators. "Your companies have invested heavily to meet the immediate and long-term commercial and consumer demand for broadband speeds and capacity, despite a vastly changing marketplace and revenue streams," he said. Commissioner O'Rielly lamented that, "You have been under constant attack by those pointy-headed liberal advocacy groups hell-bent on driving profit margins to zero."