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Nadler & Pallone Raise Concerns Over T-Mobile/Sprint Merger Approval Process Change of Merger Order Analysis and Ex Parte Filings Particularly Troubling

Washington, December 16, 2019

Washington, D.C. – Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) and Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) sent a letterto Federal Communications Commission (FCC) Chairman Ajit Pai concerning the troubling lack of transparency, and an apparent lack of appropriate process, leading up to the FCC’s approval of the T-Mobile/Sprint merger.

Nadler and Pallone are troubled by the allegation that the original analysis drafted by the FCC’s merger task force may have been supplanted later with an analysis that downplayed the competitive harms of the merger. The Chairmen believe the FCC provided an insufficient opportunity for public review and comment on material changes in the record based on the consent decree between the parties and the Department of Justice, as well as additional information submitted by the parties to the Commission.

“We are particularly concerned that the underlying analysis drafted by the merger task force based on the evidence submitted into the docket was altered by the Commissioners and replaced with an analysis that downplays the competitive harms of the merger,” Nadler and Pallone wrote. “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.”

Nadler and Pallone also expressed concerns about ex parte conversations that took place between representatives of T-Mobile and the FCC Commissioners, the filings of which may not have complied with the FCC’s 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 by 47 C.F.R. § 1.1206, and run counter to the letter and spirit of the FCC’s ex parte rules,” Nadler and Pallone continued. “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.”

Nadler and Pallone are requesting answers to the following questions or requests by January 6, 2020:

  • 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.
  • 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?
  • Provide all drafts of the merger order, including the draft originally circulated to the Commissioners, and each subsequent draft.

To read the letter, click HERE.

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