T-Mobile’s merger tactics catch more heat in California

6 May 2019 by Steve Blum
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Derby referee 625

The lawyerly squabbling over T-Mobile’s proposed takeover of Sprint continues in California, with new accusations of off the record promises and a defence of a $35 million payoff to a key opponent in return for its enthusiastic and wholehearted support of the merger. Amidst a growing list of disputes in California and increasing doubt over federal approval, T-Mobile and Sprint extended their self imposed deadline for closing the transaction to 29 July 2019.

The California Public Utilities Commission’s review of the deal could run until then. Its public advocates office (PAO) and two consumer groups – TURN and the Greenlining Institute – are pushing hard to kill it. Last week, the PAO asked the administrative law judge managing the case to exclude a vague new offer of Californian jobs made by T-Mobile in a meeting with a commissioner and in a recent filing.

In its opening brief, and an ex parte meeting disclosure filed the same day, T-Mobile claimed it will “build a new customer experience center in the Central Valley that alone will create approximately 1,000 new jobs in the state”. T-Mobile neglected to mention this incredible benefit in the thousands of pages of evidence and arguments it previously entered into the record, or during hours of cross examination by opponents. The purpose of all that give and take is to flesh out sketchy statements, and get specific and enforceable promises into the record. Without that opportunity, the commission won’t have “a firm understanding of [the offer’s] nature and truthfulness”, the PAO argues.

T-Mobile’s deal with the California Emerging Technology Fund (CETF) also caught flack from opponents, not least for its lack of specificity. On Friday, T-Mobile and CETF jointly defended it, claiming it had “very specific parameters”, “significant and adequate detail” and “substantial merits”, but without making any more meaningful commitments. Except for the $35 million to CETF, the agreement doesn’t suggest T-Mobile will do anything noteworthy that it hadn’t already put on the table, nor is there much that’s truly enforceable.

CETF and T-Mobile are also taking hits on procedural grounds.

When an organisation opposes, say, a proposed merger, but then negotiates a deal and stops objecting to it, there is a specific settlement process that the CPUC lays out for incorporating it into the final decision in the case. That process isn’t always used. As T-Mobile and CETF point out, sometimes the commission will give its blessing to an agreement that settles a particular dispute, without formally calling it a “settlement”. That happened during the CPUC’s review of Frontier Communications’ purchase of Verizon’s wireline systems in 2015 and Charter Communications’ acquisition of Time Warner and Brighthouse cable systems in 2016.

T-Mobile’s takeover of Sprint is different. No one took great exception to the various agreements with Charter or Frontier, but the PAO and the two consumer groups are sharply challenging the substance of T-Mobile’s deal with CETF. On Friday, TURN and Greenlining asked for more time to do that.

Collected documents from the CPUC’s review of the proposed merger of Sprint and T-Mobile are here

I helped put together the City of Gonzales’ settlement with Charter in 2016. We didn’t follow the formal process when we presented it to the CPUC. We weren’t out to get a megabuck payday either. Take it for what it’s worth.