T-Mobile/UScellular Opponents Seek Full Commission Review of Approval Order
Opponents of T-Mobile’s purchase of wireless assets from UScellular, including spectrum, filed a challenge to an FCC bureau order approving the deal (see 2507110045). They asked the agency to review the decision before it closes, which is expected Friday. Commissioner Anna Gomez said in an email she agreed that commissioners should have been asked to vote on the transaction.
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The application for review, posted Thursday, was filed by the Rural Wireless Association, the Open Technology Institute at New America, the Benton Institute for Broadband & Society and the Communications Workers of America. Industry officials said the challenge, while unlikely to succeed, calls additional attention to the deal, which the groups and union had long opposed.
“The chances of success are very low, but sometimes folks believe, and they are right, that there is a benefit to raising issues and concerns even if there isn’t an immediate effect,” said New Street’s Blair Levin. Recon Analytics’ Roger Entner likened the challenge to “a last-minute Hail Mary [pass], and there is no receiver in the end zone.”
The Wireless Bureau and Office of International Affairs order "contains several procedural errors that warrant full Commission review,” said the groups' filing in docket 25-192. “The Bureaus committed legal error by issuing a decision that should have been made at the full Commission level.” It also “conflicts with case precedent by virtue of the Bureaus’ failure to designate the applications for hearing or, alternatively, place necessary conditions on the transaction post-closing to ensure effective competition.”
Transactions involving “a carrier of the size and nature of UScellular exiting the market have always been made at the Commission level, and not under delegated authority,” the filing said. “The transaction … is neither minor nor routine or settled in nature, and immediate action is not necessary.” The groups argued that by rule, the bureaus are prohibited “from acting on any request that presents new or novel questions of law or policy which cannot be resolved under outstanding Commission precedents and guidelines.”
In this case, the applications for approval included “arguments not previously considered by the Commission, including the Bureaus’ newly manufactured concept of ‘competitive constraint’" in which “the Bureaus jumped to the conclusion with little analysis that cable companies that operate as mobile virtual network operators place a ‘competitive constraint’ on the nationwide wireless carriers,” the filing said. It also noted concerns raised by Gail Slater, DOJ's Antitrust Division chief, about the loss of UScellular as a competitor and the overall competitiveness of the U.S. wireless sector. The challenge objected to the order for “failing to consider and defer to the views” of DOJ “on competition and failing to properly apply a competitive analysis, which should provide more scrutiny than DOJ.”
Under FCC rules, the agency isn’t required to seek comment on an application for review. The rules specify that the commission “may grant the application … in whole or in part, or it may deny the application with or without specifying reasons therefor.”
Carri Bennet, the Rural Wireless Association's outside general counsel, called on the commission to “act quickly to reject” the bureaus’ decision, “designate the matter for hearing or alternatively impose conditions retroactively on the transaction.” Failure to do so “will lead to increased prices for consumers across the country and will undermine competition, harm rural consumers and erode the viability of rural wireless providers who have long served rural America.”
Dan Mauer, director of government affairs for the Communications Workers of America, said that "just as CWA correctly warned four years ago with the T-Mobile/Sprint merger, expect more job cuts, suppressed wages, and workers afraid to speak out, if the FCC approves this transaction without employment conditions.”
The “process and substance set terrible precedents,” emailed Michael Calabrese, director of the Wireless Future Program at New America. “Such a consequential transaction -- with DOJ itself casting shade on the competitive implications -- should be decided in the open by the full commission which, in turn, should publicly consider conditions to protect UScellular’s very vulnerable rural and small town customers.”