The Tunney Act in "Action"

In July, the Department of Justice (DOJ) approved, with conditions, the $26 billion merger between the third and fourth largest wireless telecom carriers, T-Mobile and Sprint.  As required by the Tunney Act (a.k.a. the Antitrust Procedures and Penalties Act of 1974), a federal court must review the terms of the proposed final judgement (consent decree) in civil antitrust cases to ensure that the outcome is in the public interest.  The process begins with the proposed consent degree and the DOJ’s Competitive Impact Statement being published in the Federal Registry.  That happened on August 12^th.  Any person can then submit written comments about the proposed settlement to the DOJ’s Antitrust Division.  The 60-day window closed almost two-weeks ago.  Next, the DOJ submits the comments and a response to the court.  After that, the presiding judge, Timothy Kelly, will render his decision.  While the judge cannot block the merger, he could deem the remedies inadequate and seek modifications to the consent decree. If approved without changes, T-Mobile/Sprint could begin transferring assets to Dish, the new market entrant, ninety-days after the decision.

 

While most settlements are approved without much fanfare, there have been exceptions.  Most notable was the 1982 Modified Final Judgement in the United States v. AT&T monopoly case that laid-out the break-up of the Bell System.  Several parties in the T-Mobile-Sprint case have submitted comments to the DOJ.  On October 10^th, the states asked the court to hold-off making a decision until after the states’ lawsuit is resolved.  (Oral arguments in that case are expected to begin in December.)  On Thursday, the DOJ stated that the states’ efforts to delay the court’s decision raised “serious constitutional concerns”.  And, around and around we go!

On a positive note, T-Mobile and Sprint were able to strike a deal this week with Colorado’s AG concerning jobs and 5G deployment in the state.  As a result, Colorado is no longer a party to the multi-state lawsuit.  That means ONLY 15 states and the District of Columbia remain on the lawsuit.  Let’s see what next week brings!

   

https://www.federalregister.gov/documents/2019/08/12/2019-17153/united-states-et-al-v-deutsche-telekom-ag-et-al-proposed-final-judgment-and-competitive-impact