Two critics of the proposed merger of T-Mobile and Sprint say the deal now before regulators is so different than what was originally proposed a year ago that the public should be able to comment on the current transaction. The Rural Wireless Association (RWA) and NTCA – The Rural Broadband Association (NTCA), made an informal request for FCC action, saying the proposal, which now includes Dish, raise questions about whether the transaction is in the public interest.
Originally, the T-Mobile-Sprint tie-up would have resulted in one less large nationwide wireless carrier.
The FCC “developed a record on that proposal,” including a Petition to Deny filed by RWA and NTCA, which “demonstrated the many public interest and competitive harms that would befall American consumers, and particularly those who reside or travel through rural America, if the proposed merger were to be approved,” they write in their appeal.
The consent decree the parties agreed to in order to receive approval from the DOJ “relies on the highly questionable assumption that the harm to competition recognized by the DOJ from the loss of Sprint from the nationwide mobile wireless market 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,” states RWA and NTCA. They say it would be, “arbitrary and capricious” for the FCC to rule on the pending applications without considering the “substantial” changes to what was first proposed.
In particular, cite RWA and NTCA, Dish has asked for an extension on construction deadlines for nearly 700 spectrum licenses, “across the country in the AWS Band (AWS-4 and AWS H Block), and the Lower 700 MHz Band (E Block.)” Inside Towers reported that Dish executives called FCC Commissioners on the same day the DOJ announced the arrangement to explain Dish’s part of the transaction.
Sample questions RWA and NCTA believe are worth seeing public input on include:
- Why is Dish claiming … 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 proposed Full MVNO 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.
- Can Sprint and T-Mobile reject Dish’s inbound, lawful traffic or is it prohibited from doing so? 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.”
Finally, RWA and NTCA assert there appears a 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. “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,” write RWA and NTCA. Comments? Email Us.
August 7, 2019