`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` No.1:19-cv-5434-VM-RWL
`
`
`
`
`
`
`STATE OF NEW YORK, STATE OF
`CALIFORNIA, STATE OF CONNECTICUT,
`DISTRICT OF COLUMBIA, STATE OF
`MARYLAND, STATE OF MICHIGAN,
`COMMONWEALTH OF VIRGINIA, STATE
`OF WISCONSIN, STATE OF HAWAII,
`COMMONWEALTH OF
`MASSACHUSETTS, STATE OF
`MINNESOTA, STATE OF OREGON,
`STATE OF ILLINOIS, and
`COMMONWEALTH OF PENNSYLVANIA,
`
`
`Plaintiffs,
`
` - against -
`
`
`DEUTSCHE TELEKOM AG, T-MOBILE
`US, INC., SPRINT CORPORATION, and
`SOFTBANK GROUP CORP.,
`
`
`Defendants.
`
`
`
`
`STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA
`
`
`THOMAS M. JOHNSON, JR.
`General Counsel
`
`ASHLEY BOIZELLE
`Deputy General Counsel
`
`JACOB M. LEWIS
`Associate General Counsel
`
`MATTHEW J. DUNNE
`Counsel
`Federal Communications Commission
`Washington, D.C. 20554
`
`
`
`
`
`
`MAKAN DELRAHIM
`Assistant Attorney General
`
`MICHAEL F. MURRAY
`Deputy Assistant Attorney General
`
`ANDREW J. ROBINSON
`DAVID J. SHAW
`Counsel to the Assistant Attorney General
`
`DANIEL E. HAAR
`KATHLEEN SIMPSON KIERNAN
`Attorneys
`U.S. Department of Justice
`Antitrust Division
`Washington, DC 20530
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 2 of 31
`
`
`
`TABLE OF CONTENTS
`
`INTEREST OF THE UNITED STATES ................................................................................ 1
`
`SUMMARY OF ARGUMENT .............................................................................................. 1
`
`BACKGROUND................................................................................................................... 3
`
`I. Federal Government Investigations .......................................................................... 3
`
`A. U.S. Department of Justice Antitrust Division Investigation and Settlement ......... 3
`
`B. FCC Investigation and Findings ......................................................................... 7
`
`C. The Divestiture in the Antitrust Division’s and the FCC’s Remedies ................. 10
`
`II. States’ Action in This Court ................................................................................... 11
`
`ARGUMENT ...................................................................................................................... 12
`
`I. The Litigating States Must Prove Their Requested Remedy is in the
`Public Interest. ...................................................................................................... 13
`
`II. The Litigating States Must Prove Their Requested Relief is Necessary in the Post-
`Settlement World, in Which the United States and the FCC Already Have Obtained
`Relief. ................................................................................................................... 18
`
`III. The Antitrust Division’s and the FCC’s Public Interest Determinations Are Relevant to
`the Court’s Consideration of the Public Interest. ..................................................... 19
`
`A. The Antitrust Division’s and the FCC’s Conclusions Are Complementary, Not in
`Conflict. .......................................................................................................... 20
`
`B. The Antitrust Division and the FCC Have Agency Expertise and Nationwide
`Perspectives the Litigating States Lack. ............................................................ 21
`
`CONCLUSION ................................................................................................................... 25
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`i
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 3 of 31
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Alfred L. Snapp & Son, Inc., v. Puerto Rico,
`458 U.S. 592 (1982)....................................................................................................... 14, 23
`
`AlliedSignal, Inc. v. B.F. Goodrich Co.,
`183 F.3d 568 (7th Cir. 1999) ................................................................................................22
`
`Broadcast Music v. Columbia Broadcasting System, Inc.,
`441 U.S. 1 (1979) ................................................................................................................19
`
`Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
`429 U.S. 477 (1977).............................................................................................................14
`
`California v. American Stores,
`495 U.S. 271 (990)......................................................................................................... 13, 25
`
`eBay v. MercExchange, LLC,
`547 U.S. 388 (2006).............................................................................................................14
`
`Fractus, S.A. v. Samsung Electronics Co., Ltd.,
`876 F. Supp. 2d 802 (E.D. Tex. 2012) ............................................................................. 15, 17
`
`Georgia v. Pennsylvania Railroad Co.,
`324 U.S. 439 (1945)................................................................................................. 23, 24, 25
`
`Hecht Co. v. Bowles,
`321 U.S. 321 (1944).............................................................................................................14
`
`Minnesota v. Northern Seurities Co.,
`194 U.S. 48 (1904)...............................................................................................................13
`
`Monsanto Co. v. Geertson Seed Farms,
`561 U.S. 139 (2010).............................................................................................................18
`
`Petrolera Caribe, Inc. v. Arco Caribbean, Inc.,
`754 F.2d 404 (1st Cir. 1985) .................................................................................................24
`
`Sam Fox Publishing Co. v. United States,
`366 U.S. 683 (1961).............................................................................................................22
`
`SAS Institute, Inc. v. World Programming Ltd.,
`874 F.3d 370 (4th Cir. 2017) .......................................................................................... 15, 17
`
`South Austin Coalition Community Council v. SBC Communications, Inc.,
`191 F.3d 842 (7th Cir. 1999) ................................................................................................19
`
`
`
`ii
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 4 of 31
`
`
`
`Town of Norwood, Mass. v. New England Power Co.,
`202 F.3d 408 (1st Cir. 2000) .................................................................................................22
`
`United States v. Borden Co.,
`347 U.S. 514 (1954)....................................................................................................... 13, 24
`
`United States v. E.I. du Pont de Nemours & Co.,
`366 U.S. 316 (1961).............................................................................................................13
`
`United States v. FCC,
`652 F.2d 72 (D.C. Cir. 1980) ................................................................................................. 7
`
`United States v. Microsoft Corp.,
`56 F.3d 1448 (D.C. Cir. 1995) ..............................................................................................22
`
`Weinberger v. Romero-Barcelo,
`456 U.S. 305 (1982)....................................................................................................... 14, 18
`
`Zenith Radio Corp. v. Hazeltine Research, Inc.,
`395 U.S. 100 (1969)....................................................................................................... 14, 25
`
`Statutes
`
`15 U.S.C. § 21(a)..................................................................................................................... 7
`
`15 U.S.C. § 26 .................................................................................................................. 13, 14
`
`28 U.S.C. § 517 ....................................................................................................................... 1
`
`47 U.S.C. § 307 ....................................................................................................................... 7
`
`Other Authorities
`
`3 Earl W. Kintner, The Legislative History of the Federal Antitrust Law and Related Statutes
`(1978) .................................................................................................................................23
`
`U.S. Department of Justice, Antitrust Division Policy Guide to Merger Remedies (Oct. 2004) .... 4
`
`U.S. Department of Justice and the Federal Trade Commission, “Horizontal Merger Guidelines”
`(Aug. 18, 2010) ...................................................................................................................20
`
`
`
`
`
`
`
`
`
`iii
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 5 of 31
`
`
`
`
`
`
`The United States respectfully submits this statement pursuant to 28 U.S.C. § 517, which
`
`INTEREST OF THE UNITED STATES
`
`permits the Attorney General to direct any officer of the Department of Justice to attend to the
`
`interests of the United States in any case pending in a federal court. The Department’s Antitrust
`
`Division enforces the federal antitrust laws and has a strong interest in ensuring that remedies for
`
`antitrust violations promote competition and protect consumers nationwide. The Federal
`
`Communications Commission (“FCC”) enforces the federal telecommunications laws and has a
`
`strong interest in ensuring that mergers transferring FCC-granted licenses, including, but not
`
`limited to, their competitive effects, are in the public interest. Both the Antitrust Division and the
`
`FCC took nationwide actions on behalf of the American people in response to the merger at the
`
`heart of this private antitrust suit, based on their factual findings and determinations that their
`
`chosen relief was in the public interest. Now, plaintiffs in this case, a minority of States, ask this
`
`court to displace those findings and decisions by imposing a nationwide permanent injunction.
`
`To secure such relief, the plaintiff States must prove it is both necessary and in the public
`
`interest, an inquiry the United States respectfully submits should take into account the Antitrust
`
`Division’s and the FCC’s findings and decisions and the relief they already have secured.
`
`
`
`
`The United States, through the Department of Justice’s Antitrust Division and the FCC,
`
`SUMMARY OF ARGUMENT
`
`investigated the proposed merger of T-Mobile US, Inc. (“T-Mobile”) and Sprint Corporation
`
`(“Sprint”). The Antitrust Division (along with a number of state Attorneys General) and the FCC
`
`concluded that consumers would benefit from the combination of T-Mobile and Sprint
`
`accompanied by the divestitures and other relief the Antitrust Division (in its proposed Final
`
`Judgment) and the FCC (in its order) secured to protect competition and promote the public
`
`interest. This outcome benefits consumers through the combination’s enhanced output—the
`
`
`
`1
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 6 of 31
`
`
`
`increased availability of a higher quality mobile wireless network for consumers. Specifically, T-
`
`Mobile has committed to providing 5G coverage to 85% of the rural population within three
`
`years, and 90% of the rural population within six years. In addition, the relief the Antitrust
`
`Division and the FCC secured will maintain the competitive structure of the industry through a
`
`substantial divestiture of assets from T-Mobile to DISH Network Corporation (“DISH”), which
`
`has committed to building a nationwide network that will put its idle spectrum holdings into use
`
`by mobile wireless consumers for the first time. As a result, the relief the Antitrust Division (and
`
`a number of state Attorneys General) and the FCC secured means consumers in rural areas will
`
`gain new access to high quality 5G networks and consumers nationwide will continue to have
`
`four fully competitive options for their mobile wireless services.
`
`A group of thirteen states and the District of Columbia (the “Litigating States”) seek to
`
`block the merger in its entirety. In doing so, they ask this court to undo the benefits of the relief
`
`secured by the Antitrust Division (and our fellow state Attorneys General) and the FCC. The
`
`Litigating States face a high bar in their challenge. To win a permanent injunction that would
`
`block the merger, they must convince the court their request to block the merger in its entirety is
`
`in the public interest, among other obstacles. In other words, they must convince this honorable
`
`court that it is not merely acceptable, but beneficial to the public, to deprive consumers
`
`nationwide of a higher quality T-Mobile network and DISH’s commitment to build a nationwide
`
`retail mobile wireless network, and to deprive consumers in rural states, which have
`
`disproportionately chosen to support the Antitrust Division’s settlement rather than join in this
`
`litigation, of new access to 5G networks. Indeed, that the Litigating States’ proposed remedy will
`
`affirmatively harm consumers in rural states by denying them these benefits weighs strongly
`
`against a nationwide injunction.
`
`
`
`2
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 7 of 31
`
`
`
`In determining whether to grant the Litigating States’ requested injunction, this court
`
`need not choose between a nationwide injunction and a merger unimpeded by any relief. The
`
`Antitrust Division and the FCC already have secured substantial relief to address harm to
`
`competition threatened by the merger—relief directly relevant to the inquiry into whether the
`
`Litigating States’ proposed injunction is necessary. Thus, the key question is whether any
`
`additional relief is necessary to protect competition and advance the public interest.
`
`Finally, a nationwide injunction would block not only the transaction, but also the
`
`substantial, long-term, and procompetitive benefits for American consumers the Antitrust
`
`Division and the FCC concluded will flow from the merger and the relief each secured. Both the
`
`Antitrust Division and the FCC have significant experience and expertise in analyzing these
`
`types of transactions and do so from a nationwide perspective, and thus their conclusions that the
`
`merger as remedied is in the public interest deserve appropriate weight in this remedy inquiry by
`
`this honorable court.
`
`
`
`BACKGROUND
`
`On April 29, 2018, T-Mobile and Sprint agreed to combine their businesses in an all-
`
`stock transaction valued at approximately $26 billion, with the merged firm to be owned 42% by
`
`Deutsche Telekom AG, a German corporation, and 27% by Softbank Group Corp., a Japanese
`
`corporation. Compl. (“Compl.”) ¶¶ 7, 9, 11, ECF No. 1, United States v. Deutsche Telekom AG,
`
`19-cv-2232 (D.D.C. July 26, 2019); Competitive Impact Statement (“CIS”) at 1, ECF No. 20,
`
`United States v. Deutsche Telekom AG, 19-cv-2232 (D.D.C. July 30, 2019).
`
`I. Federal Government Investigations
`
`
`A. U.S. Department of Justice Antitrust Division Investigation and Settlement
`
`
`
`
`
`The Antitrust Division conducted a “comprehensive, fifteen-month investigation” of the
`
`3
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 8 of 31
`
`
`
`transaction. Response of Plaintiff United States to Public Comments on the Proposed Final
`
`Judgment (“RTC”) at 8, ECF No. 42, United States v. Deutsche Telekom AG, 19-cv-2232
`
`(D.D.C. Nov. 6, 2019). It considered the effect of the transaction on a nationwide market for
`
`retail mobile wireless service and how its impact on competition would affect consumers across
`
`the United States. See, e.g., CIS at 5-7.
`
`By the end of its investigation, the Antitrust Division determined T-Mobile’s acquisition
`
`of Sprint, if not remedied, “likely would substantially lessen competition in the retail mobile
`
`wireless service market in the United States.” CIS at 5. The Antitrust Division also recognized,
`
`however, that the merger, if accompanied by appropriate relief, would yield “significant
`
`efficiencies” that would benefit consumers nationwide. RTC at 33. Among other benefits, it
`
`would “enabl[e] T-Mobile to offer 5G wireless services,” a more advanced technology, “more
`
`cost-effectively.” Id. By securing relief that would require and incentivize the parties to “invest
`
`in a robust 5G network that becomes available to consumers quickly,” the merger, as remedied,
`
`could help increase nationwide access to technology to “serve consumers across the country,”
`
`including in rural communities and other areas that currently lack that access. Id. at 33-35. Thus,
`
`the merger as remedied would “expand[] American consumers’ access to high quality networks.”
`
`CIS at 3.
`
`The Antitrust Division “considered a full trial on the merits challenging the merger,”
`
`including whether to seek “preliminary and permanent injunctions against T-Mobile’s
`
`acquisition of Sprint,” but determined instead that the secured relief would benefit consumers
`
`across the country, who would reap the efficiencies generated by the merger that “would not be
`
`realized if the merger were blocked.” CIS at 18; RTC at 33; see also U.S. Department of Justice,
`
`Antitrust Division Policy Guide to Merger Remedies at 4 (Oct. 2004) (“Effective remedies
`
`
`
`4
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 9 of 31
`
`
`
`preserve the efficiencies created by a merger, to the extent possible, without compromising the
`
`benefits that result from maintaining competitive markets.”). Further, a settlement “would
`
`achieve all or substantially all of the relief the United States would have obtained through
`
`litigation” while “avoid[ing] the time, expense, and uncertainty of a full trial on the merits of the
`
`Complaint.” CIS at 18-19. Thus, the Antitrust Division concluded that it could achieve the best
`
`of both worlds—allowing the deal (and its accompanying procompetitive benefits) to proceed,
`
`subject to a consent decree that addressed any loss of competition—and that this course served
`
`the public interest of American consumers.
`
`On July 26, 2019, the Antitrust Division filed a civil antitrust complaint in D.D.C.
`
`alongside a proposed Final Judgment containing the terms of the settlement. Proposed Final
`
`Judgment, ECF No. 2-2, United States v. Deutsche Telekom AG, 19-cv-2232 (D.D.C. July 26,
`
`2019) (attached as Ex. A). The proposed Final Judgment outlines a structural settlement that
`
`preserves the existence of a fourth competitor in the nationwide market for retail mobile wireless
`
`service. The settlement requires T-Mobile to divest to DISH “certain retail wireless business and
`
`network assets, and supporting assets” and “provide to DISH . . . all services, access, and assets
`
`necessary,” “to facilitate DISH building and operating its own mobile wireless services network”
`
`and “to enable it to compete in the marketplace.” CIS at 2. This is intended to “ensure the
`
`development of a new national facilities-based mobile wireless carrier competitor to ultimately
`
`remedy the anticompetitive harms that flow from the change in the market structure that
`
`otherwise would have occurred as a result of the merger.” Id. at 8. Further, DISH “will bring
`
`spectrum (that it currently has no obligation to build out in this way) into service as a mobile
`
`broadband 5G service that will serve consumers across the country.” Id.; RTC at 34-35.
`
`The Antitrust Division reached these conclusions in its role as the enforcer of the federal
`
`
`
`5
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 10 of 31
`
`
`
`antitrust law on behalf of consumers nationwide. This required, among other things, considering
`
`the interests of differently situated consumers. Ultimately, the “proposed Final Judgment fulfills
`
`the twin goals of a merger remedy. It permits the merger to proceed, enabling rural,” and other,
`
`“consumers to benefit from its promised efficiencies, while adopting remedies that will protect
`
`consumers in and bring new competition to urban areas that may have been at greater risk
`
`without this settlement.” RTC at 31. See also id. at 51 (noting praise from the Utah and Arkansas
`
`Attorneys General that the settlement “offer[s] benefits to rural communities while maximizing
`
`output and consumer choice for all Americans”). Currently, ten states—Arkansas, Colorado,
`
`Florida, Kansas, Louisiana, Nebraska, Ohio, Oklahoma, South Dakota, and Texas—have joined
`
`the Antitrust Division’s suit seeking approval of its settlement, Fifth Am. Compl., ECF No. 50,
`
`United States v. Deutsche Telekom AG, 19-cv-2232 (D.D.C. Nov. 27, 2019), and three more
`
`states—Arizona, New Mexico, and Utah—have publicly supported the deal.1
`
`
`
`On July 30, 2019, the Antitrust Division filed its Competitive Impact Statement
`
`explaining, among other things, how the proposed Final Judgment addresses the harms alleged in
`
`the complaint. On November 6, 2019, the Antitrust Division filed its response to the public
`
`comments it received after publishing its settlement in the Federal Register, RTC at 3-4, and on
`
`November 8, 2019, it moved to enter final judgment, Motion for Entry of Final Judgment, ECF
`
`No. 44, United States v. Deutsche Telekom AG, 19-cv-2232 (D.D.C. Nov. 8, 2019).
`
`
`
`Although the district court has not yet entered the proposed Final Judgment, the parties
`
`agreed they would “abide by and comply with the provisions of the proposed Final Judgment
`
`
`1 See Arizona Att’y Gen. Brnovich, “Statement on DOJ—T-Mobile/Sprint Merger Settlement,”
`available at https://www.azag.gov/press-release/attorney-general-brnovich-statement-doj-t-
`mobilesprint-merger-settlement; Letter from New Mexico Att’y Gen. Balderas and Utah Att’y
`Gen. Reyes (July 10, 2018), available at https://attorneygeneral.utah.gov/wp-
`content/uploads/2018/08/Joint-AG-Letter-to-Committee-7.10.18.pdf.
`
`
`
`6
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 11 of 31
`
`
`
`pending the Judgment’s entry by the Court” in a signed stipulation filed with the complaint and
`
`proposed Final Judgment. Stipulation and Order, ECF No. 2-1 at 7, United States v. Deutsche
`
`Telekom AG, 19-cv-2232 (D.D.C. July 26, 2019). The district court signed and entered an order
`
`approving that stipulation on July 29, 2019. Stipulation and Order, ECF No. 16, United States v.
`
`Deutsche Telekom AG, 19-cv-2232 (D.D.C. July 29, 2019).
`
`B. FCC Investigation and Findings
`
`
`
`Contemporaneously with the Antitrust Division’s investigation, suit, and settlement, the
`
`FCC also investigated the merging parties, which needed the FCC’s “consent to the transfer of
`
`control of the licenses, authorizations, and spectrum leases held by Sprint and its subsidiaries to
`
`T-Mobile.” In the Matter of Applications of T-Mobile US, Inc., and Sprint Corporation, et al.,
`
`Mem. Op. and Order, Declaratory Ruling, and Order of Proposed Modification ¶ 1, WT Docket
`
`No. 18-197, FCC 10-103 (rel. Nov. 5, 2019) (attached as Ex. B). In its investigation, the FCC
`
`analyzed whether “public interest, convenience, and necessity will be served by granting these
`
`applications” for the license transfers, which included consideration of the merger’s likely
`
`impact on competition. Id. ¶¶ 4-11; 47 U.S.C. § 307.2
`
`Commission staff [] conducted an exhaustive review of the proposed transaction, in
`which it: reviewed thousands of pages of pleadings; issued multiple document and
`information requests to the Applicants and third parties; examined the documents
`produced in response to these requests; studied and analyzed engineering and economic
`models submitted by the Applicants and other commenters; and conducted independent
`
`
`2 The FCC has explicit enforcement authority under Section 11 of the Clayton Act, 15 U.S.C. §
`21(a): “Authority to enforce compliance with sections 13, 14, 18, and 19 of this title by the
`persons respectively subject thereto is vested . . . in the Federal Communications Commission
`where applicable to common carriers engaged in wire or radio communication or radio
`transmission of energy.” Historically, however, the FCC has not directly enforced this provision
`(leaving enforcement to the Department of Justice) and instead vindicates its competition
`concerns through its statutory responsibility to review FCC license transfers to determine
`whether they are in the public interest. See United States v. FCC, 652 F.2d 72, 88 (D.C. Cir.
`1980) (“We hold that the requirements of Section 11 of the Clayton Act and Section 309(a) of
`the Communications Act are satisfied when the Commission seriously considers the antitrust
`consequences of a proposal and weighs those consequences with other public interest fac tors.”).
`
`
`
`7
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 12 of 31
`
`
`
`analyses of the public interest claims of the Applicants and third parties.
`
`Ex. B ¶ 4.
`
`The FCC found that it would serve the public interest to approve the license transfers,
`
`allowing the merger to proceed and generate benefits for consumers, subject to the conditions it
`
`imposed on the parties to ameliorate the potential for competitive harm and to reinforce certain
`
`benefits of the transaction. Ex. B ¶¶ 9-11. As part of these conditions , the merging parties must
`
`“cover 97% of the U.S. population with 5G service within three years of the consummation of
`
`the transaction, and 99% within six years,” and they “specifically committed to build out their
`
`new 5G network to rural communities.” Id. ¶¶ 26-27. They also committed that this 5G network
`
`would be of high quality, providing “5G download speeds of at least 50 Mbps to almost
`
`everyone in the United States (99% of the population), and 5G download speeds of at least 100
`
`Mbps to 90% of the U.S. population” within six years, as verified by “independently-overseen
`
`drive tests.” Id. at ¶¶ 26, 31. The parties’ commitments are legally binding through their
`
`inclusion in the FCC’s determination and order, id. ¶¶ 387-88, and the parties would owe
`
`substantial penalties—potential reaching billions of dollars—if they fail to honor these
`
`commitments, id. ¶¶ 30-32.3
`
`In its order, the FCC emphasized the network benefits of the transaction as “particularly
`
`important for the nation’s underserved rural areas.” Ex. B ¶ 7. “Rural communities will see
`
`especially large benefits from such 5G connectivity as coverage and throughput in rural areas can
`
`often lag urban development.” Id. As the FCC noted, connectivity is a matter of health, safety,
`
`and equality in rural communities: “high-speed wireless connections are more valuable for those
`
`
`3 The Antitrust Division incorporated the network commitments in the FCC’s order into its
`proposed Final Judgment, providing an additional means for enforcement of those commitments
`and further ensuring the parties’ compliance. Ex. A at 23.
`
`
`
`8
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 13 of 31
`
`
`
`who lack quality fixed service, telehealth services are more highly demanded the further one
`
`lives from a doctor, and distance learning is more important for those far from schools.” Id.
`
`The FCC also considered the potential impact of the transaction on residents of urban
`
`areas. In response to its “concern[] about the impact of an unconditioned transaction on
`
`consumers in densely-populated areas who are primarily concerned about cost,” the FCC
`
`“require[d], as a condition of [its] approval, that the Applicants fulfill a series of commitments to
`
`address the potential for lost price competition” in those areas, including a divestiture of a
`
`portion of Sprint (Boost Mobile) and a commitment “that the divested [entity] will have low-
`
`cost wholesale networks access on terms superior to typical [mobile virtual network operators],
`
`with the financial incentive to provide robust competition from the moment of divestiture, and
`
`with the ability to build its own facilities over time.” Ex. B ¶ 11. These commitments include a
`
`requirement that “the pricing provisions of the wholesale arrangement” between T-Mobile and
`
`the divested entity comply with “key principles” to ensure “competition at least as strong as”
`
`existed prior to the merger and that the new entity “can maintain and expand its role as an
`
`effective competitor and has all available options to continue to be effective well into the future.”
`
`Id. ¶¶ 202-03; see also id. ¶¶ 189-208.
`
`The FCC also “carefully considered the extent to which the efficacy of the Boost
`
`divestiture would be impeded by the buyer’s initial reliance . . . on [the merged entity’s]
`
`network” due to agreements in place between the divested entity and T-Mobile. Ex. B ¶ 201; see
`
`also id. at ¶¶ 189-208. Based on that analysis, and in light of the conditions imposed by the
`
`FCC’s order, as well as the delegated authority of the Wireless Telecommunications Bureau to
`
`oversee and enforce those conditions, the FCC found the divested entity would be “well-
`
`positioned to be a significant competitive force.” Id. at ¶ 201.
`
`
`
`9
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 14 of 31
`
`
`
`In describing the Antitrust Division’s settlement, which, like the FCC’s order, included
`
`the Boost divestiture, the FCC’s order noted that DISH “agreed to purchase the divested Boost
`
`Mobile” and “conclude[d] that significant public interest benefits would flow from DISH’s
`
`deployment of 5G broadband services over its spectrum holdings, which for many years have
`
`been underutilized, and that the acquisition of Boost Mobile will help DISH achieve that
`
`deployment.” Ex. B ¶ 12. Under the FCC’s order, if DISH fails to meet its commitments to
`
`deploy 5G service, it “shall” make significant payments, potentially totaling in the billions of
`
`dollars. Id. ¶¶ 377-80; see id., App. H at 255 (committing to payments of up to $2.2 billion).
`
`Thus, because the transaction as conditioned will “result in a number of benefits,”
`
`including “the deployment of a highly robust nationwide 5G network,” “improving the quality of
`
`the Applicants’ services for American consumers,” and “substantially increased coverage and
`
`capacity (and in turn, user speeds and cost structure) compared to the standalone companies,” the
`
`FCC granted its approval so long as the merging parties satisfied their commitments. Ex. B ¶¶ 5,
`
`25-32, 236. In sum, the FCC “conclude[d] that, as conditioned, the transaction would not
`
`substantially lessen competition, and would be in the public interest.” Id. ¶ 11.
`
`C. The Divestiture in the Antitrust Division’s and the FCC’s Remedies
`
`Both the Antitrust Division and the FCC considered central to their relief T-Mobile’s
`
`divestiture of Boost Mobile, which will maintain four providers of nationwide mobile wireless
`
`service and thus preserve the competitive structure of the industry. Under the Antitrust
`
`Division’s settlement, DISH will acquire Boost (and its approximately 9 million prepaid
`
`customers) and immediately enter the market. RTC at 22. This scale will enable DISH to be an
`
`effective competitor while it builds a 5G network, even without a legacy network like those of
`
`the other three nationwide mobile wireless service providers. Id. at 26. Within one year of the
`
`
`
`10
`
`
`
`Case 1:19-cv-05434-VM-RWL Document 348 Filed 12/20/19 Page 15 of 31
`
`
`
`divestiture’s closure, DISH will begin offering postpaid nationwide mobile wireless service
`
`plans. Ex. A at ¶ IV.F. For up to seven years, DISH will be able to use T-Mobile’s network at
`
`favorable rates to offer DISH mobile wireless service plans, “unique among [these] agreements
`
`in the industry.” Ex. B ¶¶ 201, 202, 205; RTC at 2-3. Still, the Antitrust Division and the FCC
`
`structured their relief to incentivize DISH to move traffic onto its own network as soon as it can.
`
`RTC at 28-29. DISH already has extensive existing spectrum assets that it can combine with
`
`those it receives in the divestiture, uniquely positioning it to compete. Ex. B ¶ 207; CIS at 9. The
`
`new entity “will be able to use its wholesale arrangement with [the merged entity] as the
`
`jumping-off point to grow into an even stronger competitor.” Ex. B ¶ 203. In sum, the relief the
`
`Antitrust Division and the FCC secured will enable DISH’s effort to be disruptive competitor
`
`and will benefit consumers by preserving four nationwide mobile wireless providers, as well as
`
`combining T-Mobile’s and Sprint’s existing strengths.