T-Mobile and Sprint are making it clear they are not in the mood to entertain a request to stop the review clock in their merger proceeding, saying it should be summarily dismissed or denied by the FCC.
A group of entities on Friday filed a request (PDF) to stop the review clock in the T-Mobile/Sprint proceeding in order for the operators to supplement their public interest statement (PDF) with more specific information regarding their concentration of spectrum on a market-by-market basis.
The entities include the Communications Workers of America, Rural Wireless Association, NTCA – The Rural Broadband Association, Public Knowledge, Consumers Union, The Greenlining Institute, Common Cause, New America’s Open Technology Institute, Writers Guild of America West, Free Press and Benton Foundation, collectively referred to as “movants” in the filing.
In July, the FCC established (PDF) a pleading cycle where Petitions to Deny are due Aug. 27; comments in opposition are due Sept. 17, and replies to those are due Oct. 9.
The movants say the commission should establish a new pleading cycle, with Petitions to Deny due four weeks after the applicants’ submission of and the agency’s publication of sufficient information for the FCC and public to review the spectrum concentration that would result from the deal. Such information has been routinely provided in the initial applications by companies proposing large wireless transactions in the past, they say.
“As a preliminary matter, the Commission should require the merging parties to submit complete spectrum charts that clearly identify any spectrum overages, listing for each county the New T-Mobile’s total spectrum holdings and the applicable spectrum screen,” the movants told the FCC.
“The Applicants bear the burden of demonstrating that their transaction serves the public interest,” they added. “Thus far they have failed to provide sufficient information about spectrum aggregation for meaningful public comment. The public needs access to complete application documents and adequate time to evaluate and comment on the likely impact of the transaction.”
Their first request is that the FCC stop the clock until T-Mobile and Sprint produce the requested materials; alternatively, they want a four-week extension of time for the initial comments to be due Sept. 17, in part because there are so many other proceedings going on at the same time and there’s a conflict in early to mid-September with the major Jewish holidays of Rosh Hashana and Yom Kippur.
In their comments in opposition (PDF) to those demands, T-Mobile and Sprint said they did submit information about their spectrum holdings on June 18, and it’s been publicly available for almost two months. “Movants’ complaint that Applicants submitted information in pdf format and did not provide a sum total of spectrum for each market, and that movants are therefore ‘left with the time consuming task of calculating spectrum aggregation by hand in more than 3,200 local markets covering 79 pages of data’ is meritless,” they told the commission.
T-Mobile and Sprint also made a point to include these three bullet points:
- First, Applicants are unaware of any major transaction application where spectrum holdings data has been provided in any format other than pdf.
- Second, pdf readers have the capacity to “Save As” whereby a pdf file is converted to a different format. It took less than four minutes for counsel to download the Appendix L-1 data from the FCC’s website, to open the file in a pdf reader, and to save the file as an Excel file that could be manipulated electronically.
- Third, although Applicants filed the application over two months ago, Movants have ignored what they now view as a fatal defect until well into the pleading period—just over a week from the Petition to Deny deadline.
T-Mobile and Sprint also said their previous filings describe in great detail the amount of spectrum held by both companies—and the New T-Mobile—in each spectrum band and the competitive landscape for such licenses on a county-by-county basis.
Time is of the essence for the two carriers. Both are individually building out their own 5G networks, but say they can do so faster and on a larger basis if they can do it together. Millimeter wave auctions are coming up—the 28 GHz auction starts Nov. 14, followed by the 24 GHz auction—and there are anti-collusion rules that affect how bidders communicate.
The arguments over the motion for more time also come as T-Mobile CTO Neville Ray and other representatives made their case before the FCC last week. Ray described that the proposed merger will enable New T-Mobile to build the first broad and deep nationwide 5G network that will deliver unprecedented coverage and capacity. He also explained how the New T-Mobile network will use three key ingredients: sites, spectrum and spectrum efficient technology.
The applicants plan to keep a portion of the Sprint sites, densifying the merged network to boost capacity, and they say the most significant increase in performance and capacity will result from the combining of the two companies’ complementary spectrum portfolios.
“In addition to significantly increasing capacity, the combined spectrum holdings will enable rapid refarming of spectrum, permitting deployment of substantially more frequencies for 5G faster. And the faster deployment of more efficient 5G technology will itself contribute to better performance and increased capacity at lower cost—all of which is beneficial to customers,” they told the commission.
Analysts at Macquarie Research in a research note Tuesday said the New T-Mobile will have economies of scale on par with AT&T and Verizon. “At this pace, and should T-Mobile secure Sprint, we believe New T-Mobile could exceed AT&T’s market share within 5 years,” the analysts wrote.
With its 600 MHz spectrum, T-Mobile has capabilities for a broad but not deep 5G network, while the opposite is true for Sprint, which has its bevy of 2.5 GHz spectrum. Together, they benefit from total spectrum holdings of 311 MHz vs. AT&T/Verizon at 179 MHz/114 MHz and a well-balanced portfolio of 55 MHz/67 MHz/189 MHz of low/mid/high-band holdings, the Macquarie analysts noted.