The story of the U.S. wireless industry in the 21st century is one of rapid growth and consolidation.[1] The four largest mobile network operators—Verizon, AT&T, T-Mobile, and Sprint—commanded a daunting 98% of the market at the end of 2018.[2] In such a concentrated market, any further horizontal merger attempts would naturally raise antitrust scrutiny, particularly when the merging parties (collectively “T-Mobile-Sprint”) are the two carriers known for low rates and courting customers through aggressive marketing tactics and promotions.[3] Yet T–Mobile and Sprint appear to be headed for a successful merger, sailing through Department of Justice, FCC, and CFIUS review with minimal remedial action required.[4] The last remaining legal hurdle to the merger is a lawsuit brought by the Attorneys General of 17 states and the District of Columbia, alleging that the merger will lessen competition and raise prices for consumers.[5]
The merging parties’ use of innovation and efficiency defenses to justify the decrease in competition explains the smooth approval process at the federal regulatory level so far.[6] T-Mobile and Sprint, respectively the third- and fourth-largest mobile carriers in the U.S., contend that they must merge in order to build a nationwide 5G network that can compete with Verizon and AT&T.[7] Additionally, the parties assert that consumers will benefit from increased output and efficiency resulting from combining the retail stores, wireless spectrum licenses, and cell sites of the two lagging networks into one with a subscriber base that rivals the larger networks.[8]
Despite initial concern about the sufficiency of remedies proposed by T-Mobile and Sprint, the DOJ approved the merger.[9] DOJ’s Competitive Impact Statement noted the lessening of competition resulting from the merger, as well as the high barriers to entry for any new nationwide mobile carriers.[10] Additionally, the DOJ recognized the merging parties’ aggressive courting of retail customers, describing T-Mobile and Sprint as “challenger brands” to AT&T and Verizon that “compet[e]vigorously for market share.”[11]
To counter these acknowledged anticompetitive pressures, the Antitrust Division expressed its intent to mitigate the lessening of competition by bolstering a new nationwide network operator in statements accompanying the announced settlement.[12] As a condition of approval, the DOJ required the divestiture of Sprint’s prepaid business, certain spectrum licenses, 20,000 cell sites, and hundreds of retail locations to Dish Network Corp. as a means of lowering some of the barriers to entry in the industry.[13] Further, T-Mobile-Sprint is required to guarantee Dish access to and use of its mobile network “while Dish builds out its own 5G network.”[14] Whether such concessions will “ensure the development of a new national facilities-based mobile wireless carrier competitor,” a goal that the DOJ describes as the primary purpose of its final judgment on the matter, depends on factors far beyond these relatively modest divestitures.[15]
Due to the controlling foreign ownership stakes in each of the merging parties, the deal required CFIUS approval.[16] Deutsche Telekom AG, which is itself partially owned by the German government, is the controlling shareholder of T-Mobile USA, while 85% of Sprint shares are owned by the Japanese holding company SoftBank.[17] This deal is notable as the first merger reviewed by CFIUS following the Foreign Investment Risk Review Modernization Act of 2018, which expanded the committee’s mandate to encompass further national security-related investments and transactions.[18] The merger passed CFIUS review without incident, a result bolstered in part by Germany and Japan’s friendly security relations with the U.S.[19]
More contentious than either the DOJ or CFIUS review, the FCC approved the merger over strenuous objections by the minority by a 3-2 vote along party lines.[20] Citing the findings of the DOJ report as well as FCC experts, one commissioner characterized the 5G-related commitments of the parties as vague and “paper-thin,” and warned that higher prices for consumers and harm to competition were certain to result.[21]
The lawsuit brought by state Attorneys General on behalf of consumers is likely the last government action that can still derail the T-Mobile-Sprint merger. Even if not entirely convinced by the assurances of nationwide 5G just over the horizon, U.S. consumers can take comfort in the fact that the European Commission also approved “four-to-three” telecom mergers in Germany, Austria, and Ireland in recent years.[22] While the price impact on consumers varied due to factors specific to each country, initial significant price increases in Austria were eventually offset by competition from Mobile Virtual Network Operators such as those which Sprint must divest as a condition of DOJ approval.[23] In the same time period, geographical 4G network coverage generally improved.[24]
However, following an initial decrease in network quality attributable to the difficulties of integrating two separate mobile networks, the impact of such mergers on network quality was unclear.[25] Telecom consolidation marches on, leaving it up to regulators and policymakers to ensure that the promised network expansion and technical innovations follow.
Endnotes:
[1] See generally Mobile Fact Sheet, Pew Research Center (June 12, 2019), https://www.pewinternet.org/fact-sheet/mobile (showing an increase in cell phone ownership among U.S. adults from 62% in 2002 to 96% in 2019); The Wireless Carrier Timeline & Industry Evolution: Pre-1983 – Present, Steel in the Air, Inc. (2014), https://www.steelintheair.com/wireless-industry-timeline.
[2] See, e.g., Mike Dano, 10 years of Consolidation in Wireless: The Rise of Verizon, AT&T, T-Mobile and Sprint, Fierce Wireless (last visited Oct. 22, 2019),
https://www.fiercewireless.com/special-report/10-years-consolidation-wireless-rise-verizon-at-t-t-mobile-and-sprint; Arne Holst, Wireless carrier/operator subscriber share in the U.S. 2011-2018, Statista (Sept. 13, 2019), https://www.statista.com/statistics/199359/market-share-of-wireless-carriers-in-the-us-by-subscriptions.
[3] See Brian X. Chen, T-Mobile and Sprint Are Merging. What Does That Mean for You?, N.Y. Times (July 26, 2019), https://www.nytimes.com/2019/07/26/technology/personaltech/t-mobile-sprint-merger.html.
[4] See infra notes 7, 18, 19. The Committee on Foreign Investment in the United States (“CFIUS”) is a federal interagency committee chaired by the Secretary of the Treasury. It has broad authority to review certain types of foreign investments in the U.S. and determine whether they undermine national security. See White Paper, Latham & Watkins, Overview of the CFIUS Process (last visited Oct. 30, 2019), https://www.lw.com/thoughtLeadership/overview-CFIUS-process.
[5] See Press Release, N.Y. Attorney Gen., AG James: Pennsylvania Addition to T-Mobile/Sprint Lawsuit Keeps States’ Momentum Moving Forward (Sept. 18, 2019), https://ag.ny.gov/press-release/2019/ag-james-pennsylvania-addition-t-mobilesprint-lawsuit-keeps-states-momentum; Redacted Complaint, New York v. Deutsche Telekom AG (S.D.N.Y. 2019), https://ag.ny.gov/sites/default/files/6.11.19_new_york_attorney_general_james_moves_to_block_t-mobile_and_sprint_megamerger.pdf.
[6] See Competitive Impact Statement, United States v. Deutsche Telekom AG, No. 1:19-cv-02232, at *7–8 (Dep’t of Justice July 30, 2019), available at https://www.justice.gov/opa/press-release/file/1189336/download.
[7] See Press Release, Dep’t of Justice, Justice Department Settles with T-Mobile and Sprint in Their Proposed Merger by Requiring a Package of Divestitures to Dish (July 26, 2019), https://www.justice.gov/opa/pr/justice-department-settles-t-mobile-and-sprint-their-proposed-merger-requiring-package.
[8] Id.
[9] Id.; cf. David McLaughlin, DOJ Leans Against Approving T-Mobile’s Takeover of Sprint, Bloomberg: Deals (May 20, 2019, 2:32PM), https://www.bloomberg.com/news/articles/2019-05-20/doj-said-to-lean-against-approving-t-mobile-s-takeover-of-sprint.
[10] See United States v. Deutsche Telekom AG, supra note 6, at *7.
[11] Id., at *6.
[12] See Press Release, Dep’t of Justice, supra note 7 (“Today’s settlement will provide Dish with the assets and transitional services required to become a facilities-based mobile network operator that can provide a full range of mobile wireless services nationwide”).
[13] See id.
[14] Id.
[15] See United States v. Deutsche Telekom AG, supra note 6, at *2 and *8.
[16] See supra note 4.
[17] Id., at *3–4.
[18] See Department of the Treasury, Summary of the Foreign Investment Risk Review Modernization Act of 2018 (Aug. 13, 2018), https://www.treasury.gov/resource-center/international/Documents/Summary-of-FIRRMA.pdf.
[19] See David McLaughlin & Scott Moritz, T-Mobile Wins U.S. Security Panel’s Approval for Sprint Deal, Bloomberg Law, (Dec. 17, 2018, 4:11PM) https://www.bloomberglaw.com/product/blaw/document/X43QUU9C000000?bc=W1siU2VhcmNoIFJlc3VsdHMiLCIvcHJvZHVjdC9ibGF3L3NlYXJjaC9yZXN1bHRzLzM2NThlZGUyNjk5MDk4ZGU5YjYyNTM5YWU3NDk4MzQ3Il1d–a26ca864c10530eda20c810c34f34d31ad1d29f5&guid=daef4d1a-35c6-41ac-94a5-0957f1ff01af&search32=obJn-XMkz5cmxEcoLaW27w%3D%3DH-aS1DCzokgL2VTIRyb59GALFCBfp5klSxT6kREFsIPUs6yx7aoHHWVm2Mm_0-5FCV3BGit70v2JdWaR9LYmdlUNaOUfi9L8E3IJXd0FRxwTWeBetYbqiG1pqIASuTG5PWEMsQ_FtbKmEJ0mQzrxrQ%3D%3D. See also Ryan Knutson & Alexander Martin, When Billionaires Meet: $50 Billion Pledge From SoftBank to Trump, Wall St. J. (Dec. 7, 2016, 8:44AM), https://www.wsj.com/articles/donald-trump-says-softbank-pledges-to-invest-50-billion-in-u-s-1481053732; David A. Fahrenthold & Jonathan O’Connell, T-Mobile acknowledges its patronage of Trump’s Washington hotel increased sharply after announcement of merger with Sprint, Wash. Post (Mar. 5, 2019, 8:00AM), https://www.washingtonpost.com/politics/t-mobile-acknowledges-its-patronage-of-trumps-washington-hotel-increased-sharply-after-announcement-of-merger-with-sprint/2019/03/05/d123be66-3ecb-11e9-922c-64d6b7840b82_story.html.
[20] See Lauren Feiner, FCC Votes to Approve T-Mobile and Sprint Merger, but the Deal Still Faces a Legal Challenge from States, CNBC (Oct. 16, 2019, 5:56PM), https://www.cnbc.com/2019/10/16/fcc-votes-to-approve-t-mobile-sprint-merger.html.
[21] See F.C.C. News, Comm’r Starks Statement on Sprint/T-Mobile Merger, 2019 WL 5296775, at *1 (OHMSV Oct. 16, 2019) (citing additional procedural irregularities in the proceedings relating to amendment of the deal and lack of corresponding notice and comment periods).
[22] See Kalpana Tyagi, Four-to-Three Telecoms Mergers: Substantial Issues in EU Merger Control in the Mobile Telecommunications Sector, 49 Int’l Rev. Intell. Prop. & Competition L. 185, 198 (2018).
[23] See Body of European Regulators for Electronic Communications, BEREC Report on Post-Merger Market Developments: Price Effects of Mobile Mergers in Austria, Ireland and Germany, No. (18) 119, at *40–41 (June 15, 2018), https://berec.europa.eu/eng/document_register/subject_matter/berec/reports/8168-berec-report-on-post-merger-market-developments-price-effects-of-mobile-mergers-in-austria-ireland-and-germany. The report notes that due to the recency of the mergers discussed, pricing changes and market responses are still developing.
[24] See id. at *38–39. The report notes a number of extrinsic factors that complicate the analysis of pre- and post-merger network reach and quality, including a scarcity of pre-merger data and network development initiated before the merger.
[25] See id.
