Astroturf Campaigns: Transparency in Telecom Merger Review

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Vol: 49, Issue: 2, Page: 521-556

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Peng, Victoria
Federal Communications Commission; Law reform; Mergers; Astroturfing; Lobbyists; Administrative Procedure Act of 1946; Notice and comment rulemaking; Corporate-funded preferences; Conflicts of interest; Disclosure rules; Clayton Act; Public interests; Competition; Administrative Law; Antitrust and Trade Regulation; Communications Law
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Large telecommunications companies looking to merge spend millions of dollars in their lobbying efforts to clear regulatory hurdles and obtain approval for their proposed mergers. Corporations such as AT&T, Comcast, and Time Warner use public participation processes as vehicles to influence regulatory decision-making. In the Federal Communications Commission (FCC) merger review context, the notice- and-comment process and public hearings have become fertile breeding grounds for hidden corporate influence. Corporations spend millions on corporate social responsibility programs and call upon nonprofit organizations that receive their largesse to represent their corporate interests as grassroots interests when the FCC seeks public comment. This “astroturfing” undermines what Congress intended to be a “well-reasoned agency deliberation process” and makes the FCC’s notice-andcomment process less democratically legitimate. This Note argues that the FCC should adopt a financial conflicts of interest disclosure rule for all comments it receives, not just comments that include scientific or technological data. Administrative agencies’ anxiety about ensuring the integrity of science-based preferences also applies to values-based preferences because the FCC considers the effects on the public interest in making policy decisions.