States, Carriers File Last T-Mobile/Sprint Papers Before Wednesday Closing Arguments

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).