FCC Democrats Say They're Left Out of Changes to T-Mobile/Sprint Order

“This review has been bonkers, it has been crazy,” Rosenworcel said Thursday. “Our other colleagues agreed to this transaction without having before them any legal analysis, engineering analysis or economic analysis,” she said: “We are in a strange place when it comes to process at this agency.”

Majority commissioners are apparently making changes to the order but not sharing the details, Rosenworcel said. “I have not seen a single edit nor has my office been part of any discussion regarding edits." Starks said he also hasn’t seen any edits. The two FCC Democrats were answering our queries at news conferences after the commissioners' monthly meeting.

Starks called the agency's Lifeline investigation of Sprint (see 1909240023) a “major development.” Upon hearing the news, he “called for a pause in our consideration until that Lifeline investigation is done.” The probe is the biggest Lifeline one of all time, some 20 times larger than the next largest, with 875,000 ineligible customers alleged, he said: “Until the investigation is fully resolved I don’t see how we can have confidence in … allowing two parties to merge.”

When the Sinclair/Tribune structure changed, the FCC sought comment, Starks said. “Here, I believe the fundamental structure of the deal has changed” on T-Mobile/Sprint, he said. “That it has not been put for public comment is deeply troubling.” Whether that raises Administrative Procedure Act questions could be for a court to decide, Starks said. “If any Commissioner wishes to propose edits to the item, the Chairman’s Office has an open door,” an FCC spokesperson emailed.

“We’ve had an open door since the document circulated,” Carr said: There are "others that have come in and expressed their views. I’m happy to hear from a range of stakeholders.” The deal will mean the deployment of 2.5 GHz spectrum and give consumers more choice with T-Mobile’s promised in-home broadband service, he said. “Staff has done a yeoman’s job collecting all the information and putting it in the record” with “dozens of economic models run,” he said: “We’ve just been doing our due diligence, working our way through it. I expect to be done fairly soon.”

"The commissioners' comments speak for themselves,” said Matt Wood, Free Press vice president-policy: “This has been an extraordinarily irregular process, which yet again shows plain as day the big lie beneath all of Chairman Pai's happy talk on transparency. From all appearances, the chairman's office decided to approve this deal on the basis of some backroom meetings with T-Mobile, and only then tried to backfill the analysis justifying that terrible decision. Yet here we are four months later and they still aren't done with that botched repair job."

Many elements of the review process have "unique and unprecedented,” said New Street’s Blair Levin.

Usually when the chairman circulates an order, it goes to all the commissioners at once “and the edits can be seen by everyone on what is called ‘the chain,’” emailed Gigi Sohn of the Georgetown Law Institute for Technology Law and Policy. “Not only has this particular process been bonkers, so has the entire merger review both at the FCC and at the DOJ. So much for ‘the most transparent FCC’ in history.” Sohn said recurring communications between the Carr office and T-Mobile “makes the case for the public to be able to weigh in on what is a constantly changing merger.”

On a second wireless issue, commissioners disagreed whether the FCC should look at further changes to infrastructure rules addressing issues raised in petitions by CTIA and the Wireless Infrastructure Association (see 1909130062).

Wireless Infrastructure

States and local government groups are raising concerns. Last year, the FCC approved two major wireless infrastructure orders. Both are targets of court action. In August, the U.S. Court of Appeals for the D.C. Circuit reversed a key part of the March 2018 wireless infrastructure order, while upholding other parts. A second case is pending before the 9th Circuit (see 1908090058).

“I’m in favor of streamlining the rules and addressing the fact that local and state governments are problematic on macro towers,” said O’Rielly. The FCC has done a lot of work on small cells, but still needs to address rules for traditional towers, he said. “I’m full ready to move forward.”

Carr repeated he has made no decision on what should happen next: “We’re open to ideas.” Carr said he hasn’t read the petitions in depth but noted they raise issues about FCC interpretation of rules under 2012 Spectrum Act Section 6409(a). That’s a different statutory provision than the one at issue in the 9th Circuit, he said: “I don’t necessarily see significant overlap.”

Asked about a possible infrastructure item, Rosenworcel noted a string of judicial losses, including the 3rd Circuit this week on media ownership (see 1909230067). “Across the board, this agency’s policy work has been reviewed by the courts and the reviews are not good,” she said. “We have a lot of work to do going forward.” The FCC’s next infrastructure priority should be on wireless resiliency, she said.

“The most critical thing we need to be doing is working with localities,” Starks said: “These are the folks who are empowered and authorized to make these decisions … and best suited to make decisions. The FCC “will do best to work with rather than against our localities,” he said. Rosenworcel and Starks said similar about other local concerns (see 1909260034).