The FTC and DOJ requested comment by Feb. 11 on draft vertical merger guidelines Friday. The FTC voted 3-0-2 to approve the draft, with the two Democrats abstaining. DOJ withdrew the 1984 non-horizontal merger guidelines, eliminating application of the guidelines for either agency. “Greater transparency about the complex issues surrounding vertical mergers will benefit the business community, practitioners, and the courts,” said Chairman Joe Simons. The guidelines will “provide more clarity and transparency on how we review vertical transactions,” said DOJ Antitrust Division Chief Makan Delrahim. The draft guidelines aren’t “supported by an analysis of past enforcement decisions, perpetuate an overdependence on theoretical models, and do not reflect all of the ways that competition can be harmed,” said Commissioner Rohit Chopra. He asked that the 1984 non-horizontal merger guidelines be rescinded due to economic shifts in the past 40 years. “Increasing concentration, declining new firm formation, and other market trends necessitate a modernization of vertical merger review,” he said. Commissioner Rebecca Kelly Slaughter said her biggest concern is an apparent safe harbor indicating agencies are unlikely to challenge vertical deals if the parties “have a share in the relevant market of less than 20 percent, and the related product is used in less than 20 percent of the relevant market.” She said the 20 percent threshold lacks evidence and justification. Commissioner Christine Wilson agreed the 1984 guidelines need to be updated and replaced. She suggested commenters weigh the safe harbor and its threshold, asking if agencies should focus on “oligopoly markets.”
The North American Numbering Council is sending draft technical requirements document for a reassigned numbers database administrator to the FCC. NANC members approved an amended version of its draft Monday. Contract Oversight Subcommittee co-Chairman Phil Linse of CenturyLink said the database would function so that when it gets a query of a number and date, it would respond with "yes," "no" or "no data" to show if the number has been permanently disconnected since that date. He said the database would be federally procured and owned, provided through a contract, with updates monthly -- on the 15th or the next available business day. The hourlong meeting had back and forth about whether the scope of the database also covers number resellers having to submit information; the consensus being they do. Also discussed were database capabilities for querying 50 numbers at once, how mistakes would be addressed and whether data updates could be done more frequently. NANC Chair Jennifer McKee of NCTA said the next step is for the FCC to seek public comment. The agency didn't comment about timing. The agency in 2018 directed NANC to make recommendations on reassigned number database technical and operational issues (see 1812120026).
San Francisco, defending before the FCC its Police Code Article 52 that mandated building owners let ISP share all wiring, followed an "incoherent strategy" of vagueness about what the ordinance says, FCC Chairman Ajit Pai wrote House Speaker Nancy Pelosi, D-Calif., on Jan. 3 and released Friday. He said the city finally asserted its ordinance doesn't require sharing of in-use wiring, but the ordinance language seemed to say otherwise. If the municipality's correct, he said, "there is no reason ... to object to our narrow ruling." Commissioners voted 3-2 in July to pre-empt part of the open access rule (see 1907100020). Mayor London Breed (D) didn't comment Friday. Pelosi's letter, dated July 10, said the proposed pre-emption "is deeply misguided [and would put] a chilling effect on much-needed competition in the telecommunications sector."
DOJ Antitrust Division Chief Makan Delrahim filed a notice of appearance at U.S. District Court in Washington, D.C., in the Tunney Act review of T-Mobile's buying Sprint, he said Friday (in Pacer). DOJ didn’t comment. Judge Timothy Kelly said Wednesday he won't pause while states separately challenge the deal at U.S. District Court for the Southern District of New York (see 2001080051). The D.C. federal court held a telephone status conference with parties Friday. Amici may file briefs of up to 20 pages by Jan. 24; parties must respond by Feb. 7, Kelly said in a Friday minute order in case 1:19-cv-02232. State plaintiffs in the SDNY case may file one joint brief, he said: "All potential amici shall address in their briefs only the precise and limited issues before the Court in this proceeding." The D.C. federal court held a telephone status conference with parties Friday. Amici may file briefs of up to 20 pages by Jan. 24; parties must respond by Feb. 7, Kelly said in a Friday minute order in case 1:19-cv-02232. State plaintiffs in the SDNY case may file one joint brief, he said: "All potential amici shall address in their briefs only the precise and limited issues before the Court in this proceeding."
Ajit Pai was to visit Hawaii Thursday and Friday as his 49th state since taking the FCC helm. His schedule included discussing the proposed Rural Digital Opportunity Fund (see 2001090025) at the Hawaii International Conference on System Sciences in Wailea and visiting a Hawaiian Telecom site that received support from RDOF's precursor, as well as telehealth and distance learning sites.
The FCC estimates 19.5 percent of cellsites are out in Puerto Rico from recent earthquakes, mostly due to power outages, said the disaster information reporting system Thursday report. That’s down from 31.7 percent the previous day (see 2001080006). A Puerto Rico Telecommunications Regulatory Board spokesperson estimated outages at 26 percent Thursday, the same as the day before. Cable and wireline companies reported nearly 173,400 subscribers out of service, down from about 258,600. Liberty Cablevision is assessing its network, including fiber rings, cables and posts, and so far hasn’t found major damage, CEO Naji Khoury said in a statement. Infrastructure is “operating at full capacity,” but power outages in 35 municipalities are disrupting service, it said: About 51 percent of its customers have access to their internet service.
T-Mobile and states opposing the carrier’s Sprint buy re-emphasized their positions, before closing argument Wednesday at U.S. District Court for the Southern District of New York. Arguing (in Pacer) plaintiffs don’t have to prove anticompetitive intentions, states highlighted companies’ internal documents cited at trial as showing such motives, including a 2011 Deutsche Telekom slide deck saying one transaction benefit is a "rule of three" that would reduce price competition (see 1912100029). States questioned Dish Chairman Charlie Ergen’s credibility: "There is considerable reason for this Court to doubt whether DISH will build the promised network; and, even if it does, DISH’s most optimistic projections still fall well short of being timely, likely, or sufficient to replace the lost competition that Sprint has long provided.” States rejected (in Pacer) DOJ and the FCC urging the court defer to federal agencies’ conditional OKs (see 1912200043). "States are independent enforcers of the antitrust laws, and it is the role of the Court -- not any federal agency -- to decide the lawfulness of the merger," they said. “A prosecutorial decision by” DOJ “not to challenge a transaction is not a determination that the proposed merger is lawful under the Clayton Act,” and the same goes for a commission OK, the plaintiffs said. T-Mobile said (in Pacer) DOJ and the FCC agree the deal will mean lower prices, better wireless service and increased competition: “Plaintiffs have failed to carry their burden to prove that the world with this merger is likely to be substantially less competitive than the world without it." If not allowed, T-Mobile and Sprint will suffer and Dish won’t enter the market, they said. It's false to say the biggest U.S. carriers welcome the takeover, defendants said. “AT&T has been working with third parties to thwart the merger,” said T-Mobile, citing a July 17, 2018, email from AT&T Executive Vice President-Regulatory and State External Affairs Joan Marsh to Communications Workers of America Telecom Policy Director Debbie Goldman. Marsh wrote that she “wanted you to be aware of potential [Committee on Foreign Investment in the United States (CFIUS)] issues that some are raising.” The attachment raises possible national security concerns, including T-Mobile and Sprint using Chinese equipment, Softbank’s relationships with Chinese companies, and a foreign-owned company potentially holding more spectrum than U.S. carriers. "As far as I know, AT&T has not taken a position on the merger," a CWA spokesperson emailed: The union opposes the deal "because it would hurt working people." AT&T didn’t comment. A settlement between states and the carriers is deemed unlikely (see 1912300033).
The Tunney Act review of T-Mobile's buying Sprint won't pause while states separately challenge the deal at U.S. District Court for the Southern District of New York, Judge Timothy Kelly said in a minute order Wednesday at U.S. District Court in Washington (case 1:19-cv-02232). Kelly allowed an October amici brief (in Pacer) by New York, the District of Columbia and other states challenging the deal at the SDNY, but said the states may not seek a stay of the case in Washington. States asked the D.C. court not to schedule any hearings or determination under the Tunney Act until the SDNY litigation finished. “To the extent [states’] brief can be characterized as a motion for a stay or to otherwise delay these proceedings, the Court will deny it,” Kelly said. Parties in the Tunney Act case should be on a phone status conference Friday at 2 p.m., he said. At the lower Manhattan court, post-trial findings of fact and conclusions of law were due Wednesday.
Industry and others in Puerto Rico are evaluating the impact from earthquakes. "Our network is operating on back-up generators and batteries, and we are engaged with the power company as they work to restore service," an AT&T spokesperson emailed. "Our local teams are supporting public safety on FirstNet, as well as our customers, and are prepared to deploy additional recovery equipment if needed.” Liberty Puerto Rico tweeted Tuesday its stores remain closed until further notice for the safety of employees and customers. WorldNet Telecommunications is headquartered on the territory's north side and didn't experience the same damage as on the south side, said Marketing Director Rolando Texidor. He said company operations didn't receive structural damage, and it has power backup for equipment to address an island-wide blackout. Most of WorldNet's business customers have generators, Texidor said. WorldNet's team was accounted for. Texidor said many companies around the island were working with skeleton crews. The FCC is monitoring the situation, a spokesperson said. Telecom providers seek government aid through an FCC USF program to help rebuild and strengthen their networks following 2017 hurricanes (see 1808080011). Commissioners voted in September to move forward with the funding (see 1909260032).
Stakeholders favor the FCC Office of Native Affairs and Policy encouraging broadband deployment. Smith Bagley Inc. sought to enhance ONAP's role to encourage engagement between eligible telecom carriers and tribal governments, among comments posted Tuesday in docket 10-90. SBI said some tribal governments "have limited economic resources and lack the internal expertise in telecommunications necessary to conduct an assessment and provide feedback in a Tribal engagement process." MuralNet said ONAP must have a budget large enough "to hire sufficient staff to perform Tribal consultation activities, organize workshops, and attend meetings with Tribal leaders in their communities across Indian Country and at conferences." MuralNet supported a recommendation the tribal engagement requirement include Alaska native villages and Alaska tribal health organizations. ETCs need flexibility to meet the agency's tribal engagement obligations, said the Alaska Telecom Association. Clarify what constitutes good documentation and record-keeping on tribal engagement, urged the Montana Telecommunications Association. It wants to avoid appeals or penalties when "a provider believes it has complied with the guidance only to find out after the fact that the provider's documentation does not meet the [Universal Service Administrative Co.'s] interpretation of the guidelines." The Oceti Sakowin Tribal Utility Authority said lack of tribal government comments last month (see 1912060008) shows engagement isn't uniformly effective. OSTUA wants changes including that all carriers serving tribal lands, not just ETCs, engage with tribes. The FCC said Commissioner Brendan Carr plans to visit with Mescalero Apache Telecom and Mescalero Apache Reservation leaders in New Mexico this week.