Republican FCC moves to approve the T-Mobile-Sprint merger without public comments

In a rush to approve the T-Mobile-Sprint merger, FCC Chairman Ajit Pai circulated a draft order without seeking public comments on the series of agreements that T-Mobile and Sprint have entered with the US Department of Justice. This includes the proposed divestiture of certain spectrum assets to DISH. DISH filed applications for waiver and extension of time to complete construction of certain spectrum licenses, and DISH commitments are contingent upon Commission approval of the construction extension requests. FCC’s failure to seek public comments was criticized by labor, rural, and public interest organizations, including CWA, Public Knowledge, Free Press, Open Technology Institute, Rural Wireless Association, and NTCA - The Rural Broadband Association.

Given the significance of this merger, which will fundamentally restructure the wireless market, the Commission must protect the integrity of the merger review process by putting the DISH waiver and extension request, deployment commitments, and the associated DOJ Consent Decree out for public comment. Failure to do so would be a violation of the Administrative Procedures Act (APA). It is a fundamental tenet of administrative law that an agency decision is arbitrary and capricious if it has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. To ignore the fundamental changes to this proceeding that have resulted from the consent decree and DISH’s request to the Commission would be the epitome of arbitrary and capricious decision making. 

The Republican FCC’s rush to approve the merger was criticized on Capitol Hill. “As I have noted before, the proposed transaction is presumptively illegal under decades of black letter law and the Justice Department’s merger enforcement guidelines. Both the original transaction and proposed settlement agreement raise the threat of higher phone bills, less choice, fewer jobs, and worse wages for hardworking Americans,” said House Antitrust Subcommittee Chairman David N. Cicilline (D-RI). “These circumstances weigh heavily in favor of the Commission issuing a notice seeking additional comments.”

Sen. Klobuchar (D-MN), Markey (D-MA), Baldwin (D-WI), Udall (D-NM), Booker (D-NJ), Blumenthal (D-CN), Warren (D-MA), and Gillibrand (D-NY) also urged the FCC to issue a public notice seeking additional comment on the proposed merger. “We remain concerned about the lack of transparency in the FCC’s merger review process and the lack of certainty regarding whether this merger will protect competition and consumers,” wrote the Senators. 

As FCC moves to prematurely approve the merger, the fight shifts to the pending state lawsuit backed by a bipartisan group of now 16 attorneys general from some of the largest states in the country, with a trial date of December 9.

Links:

FCC chairman circulates order to approve Sprint, T-Mobile tie-up (Reuters, Aug. 14, 2019)

Critics pile on call for public comment on T-Mobile/Sprint deal (FierceWireless, Aug 15, 2019)

Klobuchar, Colleagues Urge FCC to Seek Additional Public Input on T-Mobile/Sprint Merger (US Senate, Aug. 16, 2019)

Letter from House Antitrust Subcommittee Chairman David N. Cicilline to Ajit Pai (US House, Aug. 15, 2019)