A revived deal to combine the two wireless carriers would be scrutinized by many of the same officials who batted down a T-Mobile-Sprint merger in 2014.
Masayoshi Son is taking another run at his dream to create a U.S. mobile-phone heavyweight, but a revived deal would be scrutinized by many of the same officials who batted down his last attempt.
Staff attorneys inside the Justice Department’s antitrust division are likely to view any plans to merge Son’s Sprint with Bellevue-based T-Mobile US as a threat to competition in the mobile market, according to three people familiar with the staff’s thinking. If they recommend to sue to block the deal, that would leave it to President Donald Trump’s new antitrust chief, Makan Delrahim, to decide whether to fight the tie-up, or overrule them and approve it.
Sprint and T-Mobile are putting the finishing touches on a merger plan that’s likely to be announced when the wireless carriers report quarterly earnings at the end of October, Bloomberg News reported last week. A finalized deal, whatever shape it takes, would then go to antitrust authorities for their review.
With a new deal, Sprint and T-Mobile would be betting on a more favorable reception from Trump’s administration. They’ll need to show that the tie-up wouldn’t harm consumers and that the combined company will be better at fighting telecommunications titans AT&T and Verizon Communications.
Any new proposal would have to address many of the same concerns that the Justice Department and the Federal Communications Commission had three years ago, when they rebuffed a previous attempt by Son, the chairman of SoftBank Group, to merge the two companies. At that time, both agencies took the position that competition could be harmed if the number of national carriers went down to three from four.
Trump’s new FCC chairman, Ajit Pai, has said he wouldn’t necessarily draw the line at four players, leaving the Justice Department as the major hurdle.
“I don’t see anything that significantly improves their odds of getting this merger cleared,” said Gene Kimmelman, the president of advocacy group Public Knowledge in Washington, D.C., who was chief counsel at the antitrust division when it sued to block AT&T’s proposed takeover of T-Mobile in 2011. “It’s an enormous uphill battle.”
Sprint and T-Mobile compete head to head with lower-cost plans, so their combination would particularly hurt consumers looking for cheaper options than AT&T and Verizon, Kimmelman said.
Mark Abueg, a Justice Department spokesman, said “the division does not comment on any pending or rumored transactions.” Representatives for Sprint, T-Mobile, SoftBank and the FCC declined to comment.
The Justice Department staff attorneys who will investigate the proposed deal are career lawyers who worked under Bill Baer, former President Barack Obama’s antitrust chief when Son pitched the T-Mobile deal in 2014.
Although Baer left the division with the change in administration, the leadership of the section that would review the deal is still there. They shared Baer’s concerns about the deal and would likely recommend against it again, according to one of the people.
Delrahim, who now leads a group of political appointees at the antitrust division who would evaluate the staff’s recommendation, would make the final decision. If he decides to oppose a deal, the Justice Department would file a lawsuit in federal court seeking to block the proposed tie-up and would need to persuade a judge that the combination is anti-competitive. The antitrust chief isn’t obligated to follow the staff’s position, but typically has.
Delrahim, who was confirmed to his post at the antitrust division Sept. 27, hasn’t commented publicly on how he views the mobile market. When asked about his position by Democratic Sen. Dianne Feinstein before his Senate confirmation, he said he hadn’t studied it recently and didn’t have “any particular impression regarding its competitiveness.”
The Justice Department outlined its four-player view when it sued to block the AT&T-T-Mobile deal in 2011. It reaffirmed that stance four years ago in a filing with the FCC.
Since AT&T withdrew its bid for T-Mobile, the smaller carrier has blossomed with price cuts and free video-streaming deals to overtake Sprint as the third-largest wireless carrier by revenue and customer base. In 2014, regulators pointed to T-Mobile’s success as a reason to discourage Sprint’s tentative bid for its rival.
Paul Glenchur, a senior analyst at Hedgeye Risk Management in Washington, D.C., said the consensus view of the deal is that it has a 50 percent chance of winning approval. Regulators will consider the value of retaining the current market lineup that’s yielding price cuts for consumers, versus the benefits the merging parties might claim, he said in an interview.
JPMorgan Chase & Co. places the chance of approval as high as 70 percent.
Son has long argued that the U.S. market needs a stronger third competitor to go up against the duopoly between AT&T and Verizon Wireless, including as recently as September. “It makes sense not to have just two with such big market-share and two little ones,” Son said in an interview on Bloomberg Television. “Three is a real fight, a real competition.”
Sprint and T-Mobile will probably point to emerging competition from cable companies entering the wireless market, but those companies are unlikely to be seen as a true competitive force, said Public Knowledge’s Kimmelman.
Sprint and T-Mobile may be betting that now is the best political environment for them with a Republican administration in power, he said.
“I think this would be a huge test case for the administration,” Kimmelman said.