A look at the three government agencies that will review the proposal to merge T-Mobile and Sprint, and what they will weigh as they consider the bid.
From the moment T-Mobile and Sprint announced their $26.5 billion merger on Sunday, the wireless carriers have positioned their proposed deal with an eye toward Washington, D.C. After all, regulators in the Obama administration blocked one of their previous efforts to combine.
This time around, the chief executives of the companies emphasized that merging would help them to:
• Build a next-generation wireless network, one robust enough to keep up with China in a growing technological arms race.
• Create thousands of jobs, especially in rural areas.
• Keep prices low for consumers, especially as cable companies like Comcast try to enter the market.
Not everyone is convinced they’ll do everything. The heads of both companies began a charm offensive in Washington, D.C., earlier this week; here’s what three government agencies will weigh as they consider the bid.
CFIUS: Is the deal in the national interest of the United States?
The companies need approval from the Committee on Foreign Investment in the United States, or CFIUS, which reviews mergers and can block them on national security grounds.
The reason for two U.S. carriers to need approval? T-Mobile, which is acquiring Sprint, is controlled by Deutsche Telekom of Germany. Sprint is mostly owned by SoftBank of Japan.
Deutsche Telekom and SoftBank had to undergo reviews by CFIUS when they bought control of their respective U.S. wireless providers years ago, which suggests any transfer of assets between the two now would pass muster.
But the Trump administration has taken a harder stance on foreign-owned acquisitions. It blocked Broadcom’s hostile bid for the chipmaker Qualcomm. While Broadcom is based in Singapore, and had announced that it would relocate to the U.S., the logic was that any change at Qualcomm could hamper its ability to help build out the next-generation wireless network, known as 5G, in the U.S. The administration has also said it might consider nationalizing the 5G network, underscoring the sensitivity of the technology that underlies a merger between Sprint and T-Mobile.
Complicating matters are the business dealings of Sprint’s owner, SoftBank. It has ties to Huawei and ZTE, two Chinese tech companies whose links to Beijing have been a matter of controversy.
But Sprint and T-Mobile are likely to point out that each has already passed a CFIUS review in the past, and are willing to make concessions to win over the panel now.
FCC: What’s in the public interest?
The Federal Communications Commission has scrutinized a possible T-Mobile-Sprint merger before.
In 2014, SoftBank’s founder, Masayoshi Son, met with the chairman of the FCC at the time, Tom Wheeler, and the Justice Department’s antitrust chief at the time, Bill Baer. Son’s goal: to convince the regulators that AT&T and Verizon were an oligopoly that had a stranglehold on the U.S. wireless market. The best way to combat that, Son argued, was by letting Sprint combine with T-Mobile.
Wheeler and Baer rejected the argument, concluding that reducing the wireless market to three major carriers from four would not be good for consumers. “The merger made no sense before, and it makes no sense today,” the two wrote in an Op-Ed on CNBC.com last year, as T-Mobile and Sprint resumed merger talks.
Sprint and T-Mobile are now betting that the new FCC chairman, Ajit Pai, feels differently. A Trump appointee, Pai has said that he would employ “humility” in determining which mergers should be allowed to go through. Last year, he pushed the FCC to relax rules limiting how many television stations a broadcaster could own. Weeks later, the Sinclair Broadcast Group unveiled a deal to buy Tribune, a transaction that, if completed, would make the company the most powerful television station owner in the country. (The FCC’s internal watchdog has begun an inquiry into that deregulatory push and whether it had been timed to help Sinclair.)
One question is how the FCC will regard Sprint and T-Mobile’s argument that they need to fend off new players in the market. The carriers have pointed out that Comcast has begun bundling wireless service with cable television offerings, essentially by reselling access to Verizon’s network. Charter Communications is expected to unveil a similar service as well.
Justice Department: Will people pay higher prices?
The biggest regulatory wild cards may be the Justice Department and its antitrust chief, Makan Delrahim. Late last year, the Trump appointee sued to block AT&T’s $85.4 billion takeover of Time Warner, arguing that the combination would lead to higher prices for content from HBO and Turner Broadcasting channels. The move was notable because AT&T’s deal involved buying a content company, not another telecommunications rival.
T-Mobile and Sprint’s deal would unite two direct competitors, a type of deal that regulators have traditionally been harder on.
Delrahim has also opened an investigation into whether AT&T, Verizon and potentially other carriers have colluded to hamstring an effort to help consumers switch wireless service providers more easily.
And it was the Justice Department that first moved to block AT&T’s 2011 bid for T-Mobile. In its lawsuit, the department argued that shrinking from four carriers to three “would remove a significant competitive force from the market.” That attitude prevailed again in 2014 when Baer pushed back against a union of T-Mobile and Sprint.
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Many of the department’s antitrust staff members today are holdovers from 2014, suggesting they may take similar stances now.
Though corporate America assumed that a Trump presidency would be more lenient toward deal making, it has maintained an aggressiveness in regulating mergers, according to Norman Armstrong Jr., the co-head of the antitrust practice at the law firm King & Spalding.
“Overall I haven’t seen much change from the last administration to this one,” he said.