The American Antitrust Institute (AAI) has filed public comments with the Antitrust Division of the Department of Justice (DOJ) opposing the settlement of the government’s lawsuit to block the merger of telecom giants Sprint and T-Mobile. The comments, filed under the Antitrust Procedures and Penalties Act, commonly known as the Tunney Act, request that the DOJ exercise its right to withdraw from the settlement agreement on grounds that the settlement is not in the public interest. AAI President Diana Moss explained in a June 2018 white paper why the 4-3 merger is presumptively illegal and incurable under the standards set forth in the DOJ’s Remedy Policy Guide. In August 2019, Northeastern University Professor and AAI Director John Kwoka published a detailed analysis explaining why the proposed settlement will not plausibly succeed in achieving its stated objective.
The DOJ proposes to cure the substantial threatened anticompetitive harm caused by consolidating to 3 national wireless carriers by relying on a predominantly behavioral remedy that affords speculative relief and very little realistic chance of near- or long-term success.
AAI’s public comments also encourage the DOJ to help prevent Tunney Act proceedings governing the settlement from interfering with a lawsuit brought by the attorneys general from 17 states and the District of Columbia seeking to permanently enjoin the proposed merger. The states’ case is scheduled to go to trial on December 9, and AAI has asked the DOJ to support a deferral of the Tunney Act court’s public interest determination until after the conclusion of the States’ case. AAI also asks the DOJ to support keeping the Tunney Act public comment period open during the States’ case so that commenters can rely on information obtained during the trial to mount a well informed and meaningful challenge to the proposed settlement.