ACLP Weighs in on FCC Merger Review Processes
Today, the ACLP submitted reply comments to the FCC in its proceeding examining the public interest benefits of the proposed merger of T-Mobile and U.S. Cellular. Those comments are available here.
In the comments, the ACLP respectfully recommended the following actions by the FCC:
- Given the significant public interest benefits associated with the transaction, swiftly approve the proposed merger of T-Mobile and U.S. Cellular.
- Ignore the baseless claims of those who oppose this merger and refrain from attaching extraneous conditions to the transaction.
- Position this proceeding as an important further step towards curbing past FCC abuse of its merger review authority, which has consistently manifested itself in the imposition of burdensome conditions far beyond the scope of transactions of all kinds.
Too often, FCC merger reviews have become vehicles for the Commission to impose burdensome conditions on the proposed transaction. Oftentimes, those conditions vastly exceed the scope of the merger and operate as pseudo-regulations adopted by the Commission without engaging in formal rulemaking.
FCC Chairman Carr has long been a critic of Commission overreach during merger reviews and has offered a framework that should guide review processes going forward. Speaking in the aftermath of the T-Mobile/Sprint merger, then-Commissioner Carr noted:
“…in performing a competition analysis, it would be a mistake to look backwards at the wireless industry as it is constituted today. It would be a mistake to lock the status quo in place and assume it’s as good as we can hope. We are not yet living in the “golden era” of wireless. Fundamentally, our job at the FCC—and the job for competition authorities more broadly—is to see clearly the generational upgrade in communications that is taking place before us. It would be unwise for the expert telecom agency to blinker itself to the coming 5G convergence and what that means for everyday Americans. Analysis that looks backwards to the age of talk-and-text may prolong those dying use cases, but it lacks relevance to how consumers use high-speed connections today and, certainly, tomorrow.
“From this perspective, the FCC didn’t get the [T-Mobile/Sprint] merger completely right. Because while we formally approved it earlier this year, our analysis too often looked backwards and failed to see where the market is going.”
The ACLP argued in its comments that this perspective should form the foundation for an invigorated approach to FCC merger reviews, one that respects the limits on the Commission’s statutory authority, enables and promotes economic growth, explicitly eschews extraneous conditions, and embraces a more holistic, future-oriented view of the communications market.
For too long, the Commission has used transactions like the one at issue here as vehicles for advancing policy and political agendas far removed from the deal points of the mergers it reviews. Without robust changes to its merger review processes, the FCC will remain akin to a royal court to which its subjects must come, with hat in hand, offering gifts and demonstrating a willingness to accept whatever judgment is levied. For the myriad reasons discussed in the ACLP’s comments, the Commission should use this proceeding to delineate a more modest, coherent, and consistent approach to its merger reviews.