The Rural Wireless Association and NTCA asked the FCC today to solicit comment on the settlement that the Department of Justice and five states reached with T-Mobile US, Inc., and Sprint Corp. to allow the merger of the carriers to proceed, as well as on Dish Network Corp.’s related request for an extension of its build-put requirements (TR Daily, July 26).
“In light of the Consent Decree, the proposed merger is now a completely different arrangement than what is currently before the Commission,” the groups said in their filing in WT docket 18-197. “The Consent Decree relies on the highly questionable assumption that the harm to competition recognized by DOJ that would result from the loss of Sprint from the nationwide mobile wireless marketplace would be offset by the competitive impact of the Dish acquisition of assets that would supposedly result in Dish becoming a fourth facilities-based nationwide mobile wireless competitor with sufficient strength to prevent the substantial competitive harms that would result from the exit of Sprint. The Commission should not rule on the pending license transfer applications without developing a record on the significant changes that Sprint and T-Mobile are now proposing. It would be arbitrary and capricious to rule on the pending applications without considering evidence of the substantial changes to what is being proposed. Indeed, should the Commission rule on the proposed merger, any action it takes will have little to no bearing on any action ultimately taken by the U.S. District Court on the current merger proposal (which is not the merger proposal as it existed on July 18, 2018, the date the Commission commenced this proceeding).”
“Not only do the Consent Decree and Dish’s Extension Request merit an opportunity for public comment, they raise numerous questions pertaining to the current terms of the proposed Sprint/T-Mobile merger and whether the public interest is being served now that Dish has voluntarily inserted itself as a participant,” RWA and NTCA added.
Questions that could be asked include “[w]hy is Dish claiming in the Dish Letter that it will fast-track the buildout of its 600 MHz licenses, yet in the proposed Final Judgment it has agreed to lease this very same 600 MHz spectrum to Sprint and T-Mobile and only allow the ‘retail consumers’ of Sprint and T-Mobile to use it and not Dish’s customers?” the groups said.
“The proposed Full MVNO [mobile virtual network operator] Agreement referenced in the Consent Decree and that is a lynchpin of Dish’s future success is supposed to have ‘commercially reasonable’ terms, yet no one has seen these terms. At a minimum, this MVNO Agreement should be made available under the FCC protective orders for review,” the filing said.
“Can Sprint and T-Mobile reject Dish’s inbound, lawful traffic or is it prohibited from doing so?” RWA and NTCA asked. “The Consent Decree stipulates that Sprint/T-Mobile ‘shall not reject’ any of Dish’s ‘lawful traffic’ but then that is immediately qualified with the clause ‘unless authorized to do so by any Full MVNO Agreement.’
“These are but some of the issues that need to be vetted and understood to determine if this transaction is in the public interest,” RWA and NTCA continued. “Indeed, in the absence of better information, there appears very real risk that, as structured, this ‘Fourth Network’ concept might not only eliminate Sprint as a competitor, but could call into question the sustainability and viability of Dish as well. While DOJ may believe that Dish is capable of serving as a fourth nationwide competitor, the Commission should conduct a transparent review of such an assertion, including opportunity for public comment.”
The filing also argued that “[t]here is no immediate urgency for the FCC to act without public comment to resolve these issues. The parties still need to wait until both the Tunney Act approval process has run its course and for the resolution of the lawsuit pending in New York by the now 15 attorneys general, not scheduled to go to trial until December 9, 2019. At a minimum, the transaction could not legally close for 60 or more days. The FCC must be transparent in its decision-making process. Failure to do so would violate the Administrative Procedure Act and other bases for judicial appeal.
“The Petitioners therefore request that the Commission issue a public notice seeking comment on both the Consent Decree and the Extension Request. Because the Extension Request is seeking a waiver of the construction deadlines for all of the Dish licenses made part of the Extension Request, such a request is required to be put out on public notice in its own right,” the filing added.
The FCC declined to comment today on the request by RWA and NTCA.
During a July 26 conference call with reporters, an FCC official argued that there is no need for the FCC to open a comment period on provisions of the DoJ settlement with T-Mobile and Sprint, noting that parties can submit comments with the court. The official also said that parties have had since May to comment on earlier commitments offered by the carriers (TR Daily, May 20). —Paul Kirby, [email protected]
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