Echoing concerns expressed in an FCC oversight hearing by Democratic Commissioner Jessica Rosenworcel, two powerful House members have written to FCC chairman Ajit Pai about the T-Mobile-Sprint merger vetting process.
In testimony in an FCC oversight hearing in the House Communications Subcommittee Thursday (Dec. 5), Rosenworcel told House Energy & Commerce Committee Chairman Frank Pallone (D-N.J.) and others that the commission's approval of the T-Mobile-Sprint merger was essentially a back-room deal with her Republican colleagues approving the meld before the FCC had fully analyzed it, followed by a political rewrite after the analysis was completed. Rosenworcel voted against the deal.
In their letter to Pai, Pallone, joined by Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), said they were troubled by the allegation that the original draft analysis of the deal may have been replaced by one that downplayed the competitive harms. Judiciary and E&C both oversee merger issues.
“In addition, the failure to seek additional public comment after the parties entered into a consent decree with the Department of Justice raises additional procedural concerns," they wrote.
They also said that conversations between T-Mobile execs and FCC commissioners may not have squared with FCC ex parte rules. "Despite the clarity in the FCC’s rules, many of the filings documenting those 25 ex parte conversations only include a listing of the subjects discussed. These descriptions are devoid of ‘arguments,’ as required...and run counter to the letter and spirit of the FCC’s ex parte rules,” Pallone and Nadler said. “Simply from a public policy perspective, permitting the parties to provide such scant reporting in the record is a gross abrogation of FCC responsibility, and undermines the critical transparency that is a necessary part of this process.”
Pallone and Nadler want the following answers and info:
1. "Did the FCC seek the opinion of the Office of General Counsel regarding the possible need to provide the public with an additional comment period after the DOJ announced its consent decree, yes or no? If so, please provide all communications during the pendency of the FCC’s merger review—covered by the Federal Records Act—between officials at the FCC regarding the need to seek an additional comment period regarding the merger review.
2. "Is the FCC investigating T-Mobile’s compliance with the ex parte rules, yes or no? If so, when does the FCC expect to complete the investigation? If not, does the FCC plan to open an investigation, yes or no?
3. "Provide all drafts of the merger order, including the draft originally circulated to the Commissioners, and each subsequent draft."
Both the FCC and the Justice Department signaled they were OK with the deal conditioned on trying to make Dish a facilities-based competitor to create a fourth "major" carrier after the market was reduced to three--Veizon, AT&T and T-Mobile-Sprint.
But states have filed suit--the trial began last week--and T-Mobile says it won't close on the deal until after that is resolved.