[Federal Register Volume 84, Number 155 (Monday, August 12, 2019)]
[Notices]
[Pages 39862-39880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17153]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States et al. v. Deutsche Telekom AG et al.; Proposed
Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16(b)-(h), that a proposed Final
Judgment, Stipulation, and Competitive Impact Statement have been filed
with the United States District Court for the District of Columbia in
United States of America et al. v. Deutsche Telekom AG et al., Civil
[[Page 39863]]
Action No. 1:19-cv-02232-TJK. On July 26, 2019, the United States,
together with the State of Kansas, State of Nebraska, State of Ohio,
State of Oklahoma and the State of South Dakota, filed a Complaint
alleging that the proposed acquisition of Sprint Corp. by T-Mobile US,
Inc. would violate Section 7 of the Clayton Act, 15 U.S.C. 18. The
proposed Final Judgment, filed at the same time as the Complaint,
requires T-Mobile and Sprint to divest to DISH Corporation certain
retail wireless business and network assets and to provide to DISH
certain transition and network services to facilitate DISH's building
and operating of its own nationwide mobile wireless network.
Copies of the Complaint, proposed Final Judgment, and Competitive
Impact Statement are available for inspection on the Antitrust
Division's website at http://www.justice.gov/atr and at the Office of
the Clerk of the United States District Court for the District of
Columbia. Copies of these materials may be obtained from the Antitrust
Division upon request and payment of the copying fee set by Department
of Justice regulations.
Public comment is invited within 60 days of the date of this
notice. Such comments, including the name of the submitter, and
responses thereto, will be posted on the Antitrust Division's website,
filed with the Court, and, under certain circumstances, published in
the Federal Register. Comments should be directed to Scott Scheele,
Chief, Telecommunications and Broadband Section, Antitrust Division,
Department of Justice, 450 Fifth Street NW, Suite 7000, Washington, DC
20530 (telephone: 202-514-5621).
Patricia A. Brink,
Director of Civil Enforcement.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
United States of America, Department of Justice, Antitrust
Division, 450 5th Street NW, Washington, DC 20530, State of Kansas,
120 SW 10th Avenue, 2nd Floor, Topeka, Kansas 66612-1597, State of
Nebraska, 2115 State Capitol, Lincoln, Nebraska 68509, State of
Ohio, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215, State
of Oklahoma, 313 NE, 21st Street, Oklahoma City, Oklahoma 73105-4894
and State of South Dakota, 1302 E Highway 14, Suite 1, Pierre, South
Dakota 57501-8501 Plaintiffs, v. Deutsche Telekom AG, Friedrich-
Ebert-Allee 140, Bonn, Germany 53113, T-Mobile US, Inc., 12920 SE
38th Street, Bellevue, Washington 98006, SoftBank Group Corp., 1-9-1
Higashi-shimbashi, Minato-ku, Tokyo, Japan 105-7303 and Sprint
Corporation, 6200 Sprint Parkway, Overland Park, Kansas 66251-4300
Defendants.
Case No. 1:19-cv-02232-TJK
Filed: July 26, 2019
COMPLAINT
The United States of America and the States of Kansas, Nebraska,
Ohio, Oklahoma, and South Dakota (``Plaintiff States'') bring this
civil antitrust action to prevent the merger of T-Mobile and Sprint,
two of the four national facilities-based mobile wireless carriers in
the United States. The United States and Plaintiff States allege as
follows:
I. NATURE OF THE ACTION
1. Mobile wireless service is an integral part of modern American
life. The average American household spends over $1,000 a year on
mobile wireless service, not including the additional costs of wireless
devices, applications, media content, and accessories. Many Americans
now rely on mobile wireless service to communicate, pay bills, apply
for jobs, do schoolwork, get directions, shop, read the news, and
otherwise stay informed and connected from nearly any location in the
country.
2. Competition has kept mobile wireless service prices down and
served as a catalyst for innovation. Preserving this competition is
critical to ensuring that consumers will continue to have reasonable
and affordable access to an essential service that, for many, serves as
a gateway to the modern economy.
3. By combining two of the only four national mobile facilities-
based wireless carriers, without appropriate remedies, the merger of
T[dash]Mobile and Sprint would extinguish substantial competition.
4. As the nation's third and fourth largest mobile wireless
carriers, T-Mobile and Sprint have positioned themselves as challengers
to Verizon and AT&T, their larger and more expensive rivals, targeting
retail customers who particularly value affordability. Some of these
customers purchase mobile wireless service on a postpaid basis and are
billed monthly after receiving service. Others, including those who may
lack ready access to credit, purchase prepaid mobile wireless service
and pay for service in advance of using it.
5. The merger would eliminate Sprint as an independent competitor,
reducing the number of national facilities-based mobile wireless
carriers from four to three. The merger would cause the merged T-Mobile
and Sprint (``New T-Mobile'') to compete less aggressively.
Additionally, the merger likely would make it easier for the three
remaining national facilities-based mobile wireless carriers to
coordinate their pricing, promotions, and service offerings. The result
would be increased prices and less attractive service offerings for
American consumers, who collectively would pay billions of dollars more
each year for mobile wireless service.
6. Because the merger of T-Mobile and Sprint likely would
substantially lessen competition for retail mobile wireless service,
the Court should permanently enjoin the proposed transaction.
II. THE PARTIES AND THE PROPOSED MERGER
7. Deutsche Telekom AG (``Deutsche Telekom'') is a German
corporation headquartered in Bonn, Germany, and is the controlling
shareholder of T-Mobile US, Inc. (``T-Mobile''), with 63% of
T[dash]Mobile's shares. Deutsche Telekom is the largest
telecommunications operator in Europe, with net revenues of [euro]75.7
billion (approximately $85 billion) in 2018.
8. T-Mobile is a Delaware corporation headquartered in Bellevue,
Washington, and is the third largest mobile wireless carrier in the
United States. In 2018, T[dash]Mobile had nearly 80 million wireless
subscribers, and approximately $43.3 billion in total revenues. T-
Mobile sells postpaid mobile wireless service under its T-Mobile brand,
and prepaid mobile wireless service primarily under its Metro by T-
Mobile brand. T-Mobile also sells mobile wireless service indirectly
through mobile virtual network operators (``MVNOs''), such as TracFone
and Google Fi, that lack wireless networks of their own. These MVNOs
obtain network access from T-Mobile and resell mobile wireless service
to consumers.
9. SoftBank Group Corp. (``SoftBank''), a Japanese corporation and
the controlling shareholder of Sprint, owns 85% of Sprint's shares.
SoftBank's operating income during its 2018 fiscal year was [yen]2.3539
trillion (approximately $21.25 billion).
10. Sprint Corporation (``Sprint'') is a Delaware corporation
headquartered in Overland Park, Kansas. It is the fourth largest mobile
wireless carrier in the United States. At the end of its 2018 fiscal
year, Sprint had over 54 million wireless subscribers, and its fiscal
year 2018 operating revenues were approximately $32.6 billion. Sprint
sells postpaid mobile wireless service under its Sprint brand, and
prepaid mobile wireless service primarily under its Boost Mobile and
Virgin Mobile brands. Sprint also sells mobile wireless service
indirectly through MVNOs, which resell the service to consumers.
11. On April 29, 2018, T-Mobile and Sprint agreed to combine their
respective businesses in an all-stock
[[Page 39864]]
transaction, pursuant to a Business Combination Agreement. The merged
firm would be owned 42% by Deutsche Telekom and 27% by SoftBank.
III. INDUSTRY OVERVIEW AND RELEVANT MARKETS
A. Industry Overview
12. Mobile wireless service includes voice, text messaging, and
data service used to access the internet from a mobile device.
Consumers access these services through a variety of devices, including
phones, tablets, and smart watches. Mobile wireless carriers compete
for retail customers by offering a variety of service plans and devices
at a variety of prices.
13. Mobile wireless carriers deliver service over certain
frequencies of spectrum. To build a national wireless network and
become a facilities-based wireless carrier, a firm must acquire
licenses to a sufficient amount of spectrum across a sufficiently wide
geographic footprint. The firm also must deploy network
infrastructure--including cell sites, radio transmitters and receivers,
and equipment to transmit (or ``backhaul'') signals to a core network--
to transmit and receive signals over its licensed spectrum. The firm
also must invest in building a distribution network and marketing its
services to retail customers. Facilities-based mobile wireless carriers
like T-Mobile and Sprint promote their prices, plan features, device
offerings, customer service, and network quality as they compete for
retail customers. MVNOs typically do not operate their own mobile
wireless networks. Instead, these providers buy capacity wholesale from
facilities-based providers like T-Mobile and Sprint and then resell
mobile wireless service to consumers under their own brand name.
B. Retail Mobile Wireless Service Is a Relevant Product Market
14. Retail mobile wireless customers include consumers and small
and medium businesses who use mobile wireless service for voice
communications, text messaging, and internet access. These customers
purchase mobile wireless service at retail stores or online, and choose
from pricing and service plans made available to the general public.
Retail customers are distinct from large business and government
customers, who purchase mobile wireless service through a bid process
and receive different pricing than that available to the general
public. A hypothetical monopolist of retail mobile wireless service
profitably could raise prices by at least a small but significant, non-
transitory amount. Accordingly, retail mobile wireless service is a
relevant product market under Section 7 of the Clayton Act, 15 U.S.C.
Sec. 18.
C. The United States Is a Relevant Geographic Market
15. Mobile wireless carriers generally price, advertise, and market
their services on a nationwide basis. Consumers who seek mobile
wireless service in the United States cannot turn to carriers who do
not provide service in the United States. A hypothetical monopolist of
retail mobile wireless service in the United States profitably could
raise prices by at least a small but significant, non-transitory
amount. Thus, the United States is a relevant geographic market under
Section 7 of the Clayton Act, 15 U.S.C. Sec. 18.
IV. ANTICOMPETITIVE EFFECTS
16. The proposed merger would substantially lessen competition and
harm consumers in the relevant market. Post-merger, the combined share
of T-Mobile and Sprint would account for roughly one-third of the
national retail mobile wireless service market, leaving only two other
national wireless carriers of roughly equal size (AT&T and Verizon).
17. American consumers, including those who are customers of
Verizon and AT&T, have benefitted from the competition T-Mobile and
Sprint have brought to the mobile wireless industry. For instance, it
was not until after T-Mobile and Sprint introduced unlimited data plans
to retail customers in 2016 that Verizon and AT&T followed with their
own standalone unlimited data offerings to retail customers in 2017.
18. T-Mobile and Sprint have been particularly intense competitors
for the roughly 30% of retail subscribers who purchase prepaid mobile
wireless service. These customers tend to be even more value conscious,
on average, than postpaid subscribers.
19. The head-to-head competition between T-Mobile's Metro brand and
Sprint's Boost Mobile brand has exerted significant downward pressure
on prices. When Boost introduced a family plan of four lines for $100
in February 2017, Metro countered with an aggressive promotion that a
Sprint executive described this way: ``We gave them a jab and they
punched back with a left hook.'' In the fall of 2017, when Metro
responded to a Boost four lines for $100 promotion with a three lines
for $90 promotion of its own, Boost executives countered with a ``Metro
attack plan.'' Boost's ``Combat Metro'' strategy upped the ante further
by offering five lines for $100. Observing in March 2018 that Sprint
postpaid and prepaid plans were priced 50% lower than the competition,
the senior leadership at T-Mobile's Metro reduced prices to $40 per
month and then to $30 per month for entry level plans.
20. The competition between T-Mobile and Sprint also has led to
improvements in the quality of devices and the plan features available
to prepaid subscribers. As one Sprint senior executive observed in
2015, ``The prepaid space is experiencing a severe price war. We now
have two competitors (Cricket and Metro) spending at postpaid-like
advertising levels with strong, best in class nation-wide networks. We
need to find ways to differentiate our service beyond device and rate
plan price.'' To ``one up Metro'' in May 2017, for example, Boost
offered unlimited calling to Mexico and unlimited voice roaming to
customers traveling in Mexico. That same year, Boost introduced its
``BoostUp!'' program, which allowed prepaid customers with a solid
payment history to purchase a phone for $1 down and pay for it over 18
months with no interest. And in February 2018, Boost offered an iPhone
6 for $49 to customers who switched to Boost and kept their phone
number.
21. If the merger were allowed to proceed, this competition would
be lost. After the elimination of Sprint, the industry's low-price
leader, New T-Mobile would have the incentive and the ability to raise
prices. In a post-merger world, the other remaining national
facilities-based mobile wireless carriers, Verizon and AT&T, also would
have the incentive and the ability to raise prices. Additionally, the
merger would leave the market vulnerable to increased coordination
among these three competitors. Increased coordination harms consumers
through a combination of higher prices, reduced quality, reduced
innovation, and fewer choices.
22. Competition between Sprint and T[dash]Mobile to sell mobile
wireless service wholesale to MVNOs has benefited consumers by
furthering innovation, including the introduction of MVNOs with some
facilities-based infrastructure. The merger's elimination of this
competition likely would reduce future innovation.
V. ABSENCE OF COUNTERVAILING FACTORS
23. Given the high barriers to entry in the retail mobile wireless
service market, entry or expansion of other firms is unlikely to occur
in a timely manner or on a scale sufficient to
[[Page 39865]]
replace the competitive influence now exerted on the market by Sprint.
24. Any efficiencies generated by this merger are unlikely to be
sufficient to offset the likely anticompetitive effects on American
consumers in the retail mobile wireless service market, particularly in
the short term, unless additional relief is granted.
VI. JURISDICTION AND VENUE
25. The United States brings this action, and the Court has subject
matter jurisdiction over this action, under Section 15 of the Clayton
Act, 15 U.S.C. Sec. 25, to prevent and restrain Defendants Deutsche
Telekom, Softbank, T-Mobile, and Sprint (``Defendants'') from violating
Section 7 of the Clayton Act, as amended, 15 U.S.C. Sec. 18.
26. The Plaintiff States bring this action under Section 16 of the
Clayton Act, 15 U.S.C. Sec. 26, to prevent and restrain the Defendants
from violating Section 7 of the Clayton Act, 15 U.S.C. Sec. 18. The
Plaintiff States, by and through their respective Attorneys General,
bring this action as parens patriae on behalf of and to protect the
health and welfare of their citizens and the general economy of each of
their states.
27. T-Mobile and Sprint are engaged in, and their activities
substantially affect, interstate commerce. T-Mobile and Sprint sell
mobile wireless service throughout the United States. As parties to the
Business Combination Agreement, which will have effects throughout the
United States, Deutsche Telekom and Softbank have submitted to the
jurisdiction of the United States. All four of the Defendants have
consented to venue and personal jurisdiction in this District.
28. Venue is proper under Section 12 of the Clayton Act, 15 U.S.C.
Sec. 22, and 28 U.S.C. Sec. 1391(b) and (c)(2), for Defendants T-
Mobile and Sprint, and venue is proper for Defendants Deutsche Telekom,
a German corporation, and SoftBank, a Japanese corporation, under 28
U.S.C. Sec. 1391(c)(3).
VII. VIOLATION ALLEGED
29. The merger of T-Mobile and Sprint likely would lessen
competition substantially in interstate trade and commerce in the
relevant geographic market for retail mobile wireless service, in
violation of Section 7 of the Clayton Act, 15 U.S.C. Sec. 18.
30. Unless enjoined, the transaction likely would have the
following effects in the national retail mobile wireless market
described above:
a. competition would be lessened substantially; and
b. prices likely would be higher, quality of service likely would
be lower, innovation likely would be lessened, and consumer choice
likely would be more restricted than in the absence of the merger.
VIII. REQUEST FOR RELIEF
31. Plaintiffs request that this Court do the following:
a. adjudge the combination of T-Mobile and Sprint's mobile wireless
businesses to violate Section 7 of the Clayton Act, 15 U.S.C. Sec. 18;
b. permanently enjoin T-Mobile and Sprint from carrying out the
Business Combination Agreement dated April 29, 2018, or from entering
into or carrying out any agreement, understanding, or plan, the effect
of which would be to bring the mobile wireless businesses of T-Mobile
and Sprint under common ownership or control;
c. award Plaintiffs costs of this action; and
d. award Plaintiffs other relief as the Court may deem just and
proper.
Dated this 26th day of July, 2019.
Respectfully submitted,
FOR PLAINTIFF UNITED STATES OF AMERICA:
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Makan Delrahim
Assistant Attorney General for Antitrust
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Bernard A. Nigro, Jr. (D.C. Bar 412357)
Deputy Assistant Attorney General
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Patricia A. Brink
Director of Civil Enforcement
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David J. Shaw (D.C. Bar 996525)
Counsel to the Assistant Attorney General
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Andrew J. Robinson (D.C. Bar 1003748)
Counsel to the Assistant Attorney General
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Lawrence A. Reicher
Counsel to the Assistant Attorney General
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Scott Scheele (D.C. Bar 429061)
Chief, Telecommunications & Broadband Section
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Jared A. Hughes
Assistant Chief, Telecommunications & Broadband Section
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Frederick S. Young (D.C. Bar 421285)
Patricia C. Corcoran (D.C. Bar 461905)
Matthew R. Jones
Attorneys for the United States, U.S. Department of Justice,
Antitrust Division, 450 Fifth Street NW, Suite 7000, Washington, DC
20530, Telephone: (202) 514-5621, Facsimile: (202) 514-6381, Email:
[email protected]
FOR PLAINTIFF STATE OF KANSAS:
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Derek Schmidt
Attorney General, State of Kansas, 120 SW 10th Avenue, 2nd Floor,
Topeka, Kansas 66612-1597, (785) 296-2215
FOR PLAINTIFF STATE OF NEBRASKA:
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Douglas J. Peterson
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Attorney General, State of Nebraska, 2115 State Capitol, Lincoln,
Nebraska 68509, (402) 471-3811
FOR PLAINTIFF STATE OF OHIO:
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Dave Yost (0056290)
Attorney General, State of Ohio, 150 E. Gay St, 22nd Floor,
Columbus, Ohio 43215, (614) 466-4328
FOR PLAINTIFF STATE OF OKLAHOMA:
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Mike Hunter
Attorney General of Oklahoma, 313 N.E. 21st Street, Oklahoma City,
Oklahoma 73105-4894, (405) 521-3921
FOR PLAINTIFF STATE OF SOUTH DAKOTA:
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Jason R. Ravnsborg
Attorney General, State of South Dakota, 1302 E Highway 14, Suite 1,
Pierre, SD 57501-8501, (605) 773-3215
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
United States of America et al., Plaintiffs, v. Deutsche Telekom
AG, T-Mobile US, Inc., SoftBank Group Corp., Sprint Corporation, and
Dish Network Corporation, Defendants.
Case No. 1:19-cv-02232-TJK
Filed: July 26, 2019
[PROPOSED] FINAL JUDGMENT
WHEREAS, Plaintiffs, United States of America and the States of
Kansas, Nebraska, Ohio, Oklahoma, and South Dakota (``Plaintiff
States''), filed their Complaint on July 26, 2019, the Plaintiffs and
Defendants Deutsche Telekom AG, T-Mobile US, Inc., SoftBank Group
Corp., and Sprint Corp., by their respective attorneys, have consented
to the entry of this Final Judgment without trial or adjudication of
any issue of fact or law, and without this Final Judgment constituting
any evidence against or admission by any party regarding any issue of
fact or law;
AND WHEREAS, pursuant to a Stipulation and Order among Deutsche
Telekom AG, T-Mobile US, Inc., SoftBank Group Corp., Sprint Corp., and
DISH Network Corp. (collectively, ``Defendants'') and the United
States, the Court has joined DISH Network Corp. as a defendant to this
action for the purposes of settlement and for the entry of this Final
Judgment;
AND WHEREAS, Defendants agree to be bound by the provisions of this
Final Judgment pending its approval by the Court;
AND WHEREAS, the purpose of this Final Judgment is to preserve
[[Page 39866]]
competition by enabling the entry of another national facilities-based
mobile wireless network operator;
AND WHEREAS, Plaintiffs require Divesting Defendants to make
certain divestitures for the purpose of remedying the loss of
competition alleged in the Complaint;
AND WHEREAS, Defendants have represented to Plaintiffs that the
divestitures and other relief required by this Final Judgment can and
will be made and carried out, and that Defendants will not later raise
any claim of hardship or difficulty as grounds for asking the Court to
modify any of the provisions contained below;
NOW THEREFORE, before any testimony is taken, without trial or
adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED:
JURISDICTION
The Court has jurisdiction over the subject matter of and each of
the parties to this action. The Complaint states a claim upon which
relief may be granted against Divesting Defendants and Parent
Defendants under Section 7 of the Clayton Act, 15 U.S.C. Sec. 18.
Pursuant to the Stipulation and Order filed simultaneously with this
Final Judgment joining DISH as a defendant to this action, DISH has
consented to this Court's exercise of specific personal jurisdiction
over DISH in this matter solely for the purposes of settlement and for
the entry and enforcement of the Final Judgment.
II. DEFINITIONS
As used in this Final Judgment:
A. ``Acquiring Defendant'' or ``Acquirer'' or ``DISH'' mean
Defendant DISH Network Corporation, a Nevada corporation with its
headquarters in Englewood, Colorado; its successors and assigns; and
its subsidiaries, divisions, groups, affiliates, partnerships, and
joint ventures, and their directors, officers, managers, agents, and
employees.
B. ``Assurance Wireless'' means the prepaid wireless business
conducted by Virgin Mobile under the Assurance Lifeline brand.
C. ``Cell Site'' or ``Tower Site'' mean any wireless communications
towers, rooftops, water towers, or other wireless communications
facilities owned or leased by Divesting Defendants and the physical
location and wireless equipment thereto.
D. ``Decommissioned'' or ``Decommissioning'' means, with respect to
a Cell Site, when the Cell Site is no longer transmitting on Divesting
Defendants' networks. With respect to Retail Locations, Decommissioned
or Decommissioning means when Divesting Defendants cease customer
service operations.
E. ``Deutsche Telekom'' means Deutsche Telekom AG, a German
corporation headquartered in Bonn, Germany, that is the controlling
shareholder of T-Mobile; its successors and assigns; and its parents,
subsidiaries, divisions, groups, affiliates, partnerships, and joint
ventures, and their directors, officers, managers, agents, and
employees.
F. ``Divesting Defendants'' means T-Mobile and Sprint.
G. ``Divestiture Assets'' means the Prepaid Assets, the 800 MHz
Spectrum Licenses, the Decommissioned Retail Locations, and the
Decommissioned Cell Sites.
H. ``Fifth Generation Broadband Services'' or ``5G Services'' means
at least 3GPP Release 15, capable of providing enhanced mobile
broadband (eMBB) functionality.
I. ``Full MVNO Agreement'' means an agreement that (1) provides the
Acquiring Defendant the ability to sell retail mobile wireless services
as an MVNO using the Divesting Defendants' wireless networks, (2)
provides Acquiring Defendant the option to deploy its own core network
with all associated service platforms to be offered in combination with
services provided by Divesting Defendants' wireless networks, and (3)
requires Divesting Defendants to provide network connectivity between
Divesting Defendants and Acquiring Defendant's network for all traffic.
J. ``MVNO'' means a mobile virtual network operator, such as
TracFone and Google Fi, that obtains network access from facilities-
based providers like T-Mobile and Sprint and resells that mobile
wireless service to consumers under its own brand name.
K. ``Parent Defendants'' means Deutsche Telekom and SoftBank.
L. ``Prepaid Assets'' means all tangible and intangible assets
primarily used by the Boost Mobile, Sprint-branded prepaid, and Virgin
Mobile businesses today, including but not limited to Boost and Virgin
Mobile Retail Locations, licenses, personnel, facilities, data, and
intellectual property, as well as all relationships and/or contracts
with prepaid customers served by Sprint, Boost Mobile, and Virgin
Mobile. Prepaid Assets do not include the Assurance Wireless business
and the prepaid wireless customers of Shenandoah Telecommunications
Company and Swiftel Communications, Inc.
M. ``Prepaid Assets Personnel'' means all employees whose jobs
currently focus on the support of the Prepaid Assets, or whose jobs
have previously focused on supporting the Prepaid Assets at any time
between January 1, 2016 and the date on which the Prepaid Assets are
divested to the Acquirer. Prepaid Assets Personnel shall include no
fewer than 400 current employees of the Divesting Defendants, which
shall include employees involved in sales management, marketing
management, distribution support, sales support, and finance.
N. ``Retail Locations'' means any retail locations owned or
operated by Divesting Defendants and from which either T-Mobile or
Sprint sells mobile wireless service under any of their affiliated
brands, including Sprint, Boost Mobile, Virgin Mobile, T-Mobile, Metro
by T-Mobile, and MetroPCS.
O. ``800 MHz Spectrum Licenses'' means all of Sprint's 800 MHz
spectrum holdings as listed and described in Attachment A to this Final
Judgment.
P. ``600 MHz Spectrum Licenses'' means all of DISH's 600 MHz
spectrum holdings as listed and described in Attachment B to this Final
Judgment.
Q. ``SoftBank'' means SoftBank Group Corp., a Japanese corporation
and controlling shareholder of Sprint; its successors and assigns; and
its parents, subsidiaries, divisions, groups, affiliates, partnerships,
and joint ventures, and their directors, officers, managers, agents,
and employees.
R. ``Sprint'' means Defendant Sprint Corporation, a Delaware
corporation with its headquarters in Overland Park, Kansas; its
successors and assigns; and its subsidiaries, divisions, groups,
affiliates (other than SoftBank), partnerships, and joint ventures, and
their directors, officers, managers, agents, and employees.
S. ``T-Mobile'' means Defendant T-Mobile US, Inc., a Delaware
corporation with its headquarters in Bellevue, Washington; its
successors and assigns; and its subsidiaries, divisions, groups,
affiliates (other than Deutsche Telekom), partnerships, and joint
ventures, and their directors, officers, managers, agents, and
employees.
III. APPLICABILITY
A. This Final Judgment applies to the Divesting Defendants, Parent
Defendants, and Acquiring Defendant, as defined above, and all other
persons in active concert or participation with any of them who receive
actual notice of this Final Judgment by personal service or otherwise.
B. If any of the terms of an agreement between (i) Divesting
Defendants and
[[Page 39867]]
the Acquiring Defendant to effectuate the divestitures required by the
Final Judgment or (ii) Defendants and the Federal Communications
Commission (FCC) to effectuate the divestitures required by the Final
Judgment varies from the terms of this Final Judgment then, to the
extent that Defendants cannot fully comply with both terms due to a
conflict between the terms, this Final Judgment will determine
Defendants' obligations. Provided, however, that if there is an
inconsistency between this Final Judgment and any commitment any of the
Defendants have made to the FCC, the more stringent obligations will
control.
IV. DIVESTITURES
A. Prepaid Assets
1. The Divesting Defendants shall take all actions required to
enable Acquiring Defendant to have, within ninety (90) days after
notice of the entry of this Final Judgment by the Court, the ability to
provision any new or existing customer of the Prepaid Assets holding a
compatible handset device onto the T-Mobile network pursuant to the
terms of any Full MVNO Agreement. Divesting Defendants are ordered and
directed, not more than fifteen (15) days after Divesting Defendants
can provide Acquiring Defendant the ability to provision any new or
existing customer of the Prepaid Assets holding a compatible handset
device onto the T-Mobile network pursuant to the terms of any Full MVNO
Agreement, or the first business day of the month following the later
of the consummation of the merger of T-Mobile and Sprint and the
receipt of any approvals required for the divestiture of the Prepaid
Assets from the FCC and any material state public utility commission,
or five (5) calendar days after notice of the entry of this Final
Judgment by the Court, whichever is later, to divest the Prepaid Assets
to Acquiring Defendant in a manner acceptable to the United States, in
its sole discretion.
2. Employees
a. Within ten (10) business days following the filing of the
Complaint in this matter, Divesting Defendants shall provide to
Acquiring Defendant, the United States, the Plaintiff States, and the
Monitoring Trustee, organization charts covering all Prepaid Assets
Personnel for each year from January 1, 2016 to present. Within ten
(10) business days of receiving a request from Acquiring Defendant,
Divesting Defendants shall provide to Acquiring Defendant, the United
States, the Plaintiff States, and the Monitoring Trustee, additional
information related to identified Prepaid Assets Personnel, including
name, job title, reporting relationships, past experience,
responsibilities from January 1, 2016 through the date on which the
Prepaid Assets are transferred to Acquirer, training and educational
history, relevant certifications, job performance evaluations, and
current salary and benefits information to enable Acquiring Defendant
to make offers of employment. If Divesting Defendants are barred by any
applicable laws from providing any of this information to Acquiring
Defendant, within ten (10) business days of receiving Acquiring
Defendant's request, Divesting Defendants will provide the requested
information to the greatest extent possible under applicable laws and
also provide a written explanation of their inability to comply fully
with Acquiring Defendant's request for information regarding Prepaid
Assets Personnel.
b. Upon request, Divesting Defendants shall make Prepaid Assets
Personnel available for interviews with Acquiring Defendant during
normal business hours at a mutually agreeable location. Divesting
Defendants will not interfere with any negotiations by Acquiring
Defendant to employ any Prepaid Assets Personnel. Interference includes
but is not limited to offering to increase the salary or benefits of or
offering bonuses to Prepaid Assets Personnel other than as part of a
company-wide increase in salary or benefits or company-wide provision
of bonuses granted in the ordinary course of business. If Divesting
Defendants have offered Prepaid Assets Personnel incentives to remain
employed with Divesting Defendants until a certain date (e.g.,
retention bonuses), Divesting Defendants must warrant to those Prepaid
Assets Personnel and the Acquiring Defendant that the Prepaid Assets
Personnel will receive all promised incentives if they accept an offer
of employment with the Acquiring Defendant and remain employed with the
Acquiring Defendant until the date contemplated by the originally
agreed-upon incentive. Divesting Defendants shall be responsible for
reimbursing Acquiring Defendant the costs associated with such
incentives.
c. For any Prepaid Assets Personnel who elect employment with
Acquiring Defendant, Divesting Defendants shall waive all non-compete
and non-disclosure agreements, vest all unvested pension and other
equity rights, and provide all benefits to which Prepaid Assets
Personnel would be provided if transferred to a buyer of an ongoing
business.
d. For a period of two (2) years from the date of filing of the
Complaint in this matter, Divesting Defendants may not solicit to hire,
or hire, any Prepaid Assets Personnel who was hired by Acquiring
Defendant, unless (a) such individual is terminated or laid off by
Acquiring Defendant or (b) Acquiring Defendant agrees in writing that
Divesting Defendants may solicit or hire that individual.
e. Nothing in this Section prohibits Divesting Defendants from
maintaining any reasonable restrictions on the disclosure by any
employee who accepts an offer of employment with Acquiring Defendant of
Divesting Defendants' proprietary non-public information that is (a)
not otherwise required to be disclosed by this Final Judgment, (b)
related solely to Divesting Defendant's businesses and clients, and (c)
unrelated to the Divestiture Assets.
f. Acquiring Defendant's right to hire Prepaid Assets Personnel
pursuant to Paragraph IV(A)(2) and Divesting Defendants' obligations
under Paragraphs IV(A)(2)(a)-(c) lasts for a period of one hundred and
eighty (180) days after the closing of the divestiture of the Prepaid
Assets.
3. Divesting Defendants shall warrant to Acquiring Defendant that
the Prepaid Assets will be fully operational on the date of transfer.
4. At the option of Acquiring Defendant, Divesting Defendants shall
enter into one or more transition services agreements to provide
billing, customer care, SIM card procurement, device provisioning, and
all other services used by the Prepaid Assets prior to the date of
their transfer to Acquirer for an initial period of up to two (2) years
after the transfer of the Prepaid Assets. During the initial two-year
term of the agreement, Divesting Defendants shall provide the
transition services at no greater than cost to Acquiring Defendant. All
other terms and conditions of any such agreement must be reasonably
related to market conditions for the provision of the relevant services
and must be acceptable to the United States in its sole discretion,
after consultation with the affected Plaintiff States. Upon Acquiring
Defendant's request, the United States, in its sole discretion, after
consultation with the affected Plaintiff States, may approve one or
more extensions of such agreement(s) for a total of up to an additional
one (1) year.
5. At Acquiring Defendant's option, on or before the divestiture of
the Prepaid Assets, Divesting Defendants shall assign or otherwise
transfer to
[[Page 39868]]
Acquiring Defendant all transferable or assignable agreements, or any
assignable portions thereof, related to the Prepaid Assets, including,
but not limited to, all supply contracts, licenses, and collaborations.
Divesting Defendants shall use best efforts to expeditiously obtain
from any third parties any consent necessary to transfer or assign to
Acquiring Defendant all agreements related to the Prepaid Assets. To
the extent consent cannot be obtained and the agreement is not
otherwise assignable, Divesting Defendants shall use best efforts to
obtain or provide for Acquiring Defendant, as expeditiously as
possible, the full benefits of any such agreement as it relates to the
Prepaid Assets by assisting Acquiring Defendant to secure a new
agreement and by taking any other steps necessary to ensure that
Acquiring Defendant obtains the full benefit of the agreement as it
relates to the Prepaid Assets. Divesting Defendants will not assert,
directly or indirectly, any legal claim that would interfere with
Acquiring Defendant's ability to obtain the full benefit from any
transferred third-party agreement to the same extent enjoyed by
Divesting Defendant prior to the transfer.
6. At Acquiring Defendant's option, on or before the divestiture of
the Prepaid Assets, Divesting Defendants shall provide contact
information and make introductions to distributors and suppliers that
support the Prepaid Assets. Divesting Defendants shall not interfere
with Acquiring Defendant's attempts to negotiate with these
distributors or suppliers.
B. 800 MHz Spectrum License Transfer
1. Divesting Defendants are ordered and directed, within three (3)
years after the closing of the divestiture of the Prepaid Assets or
within five (5) business days of the approval by the FCC of the
transfer of the 800 MHz Spectrum Licenses, whichever is later, to
divest the 800 MHz Spectrum Licenses in a manner acceptable to the
United States, in its sole discretion, after consultation with the
affected Plaintiff States. The United States, in its sole discretion,
after consultation with the affected Plaintiff States, may agree to one
or more extensions of this time period not to exceed sixty (60)
calendar days in total, and will notify the Court in such
circumstances. Acquiring Defendant will make timely application to the
FCC for the transfer of the spectrum to comply with this Paragraph.
2. Acquiring Defendant shall pay a penalty of $360,000,000 to the
United States if it elects not to purchase the 800 MHz Spectrum
Licenses. The Acquiring Defendant shall pay the penalty within thirty
(30) days of declining to purchase the 800 MHz Spectrum Licenses.
Notwithstanding the foregoing, the Acquiring Defendant will not be
required to pay such penalty if it has deployed a core network and
offered 5G Service to at least 20% of the U.S. population over DISH's
facilities-based network within three (3) years of the closing of the
divestiture of the Prepaid Assets.
3. If, at the expiration of this Final Judgment, Acquiring
Defendant has acquired the 800 MHz Spectrum Licenses, but has not
deployed all of the 800 MHz Spectrum Licenses for use in the provision
of retail mobile wireless services, Acquiring Defendant shall forfeit
to the FCC, at the United States' sole discretion, after consultation
with the affected Plaintiff States, all of the 800 MHz Spectrum
Licenses that are not being used to provide retail mobile wireless
services, unless Acquiring Defendant already is providing nationwide
retail mobile wireless services over DISH's facilities-based network.
4. If the Acquiring Defendant does not purchase the 800 MHz
Spectrum Licenses, Divesting Defendants shall conduct an auction of the
800 MHz Spectrum Licenses within six (6) months of Acquiring Defendant
declining to purchase the licenses. In such auction, Divesting
Defendants will not divest the 800 MHz Spectrum Licenses to any other
national facilities-based mobile wireless network operator, without the
prior written approval of the United States, in its sole discretion,
after consultation with the affected Plaintiff States, and will not be
required to divest the 800 MHz Spectrum Licenses at a price that is
lower than the price the Acquiring Defendant originally agreed to pay
for such licenses. In addition, Divesting Defendants may apply to the
United States to be relieved from the commitment to sell the 800 MHz
Spectrum Licenses if (i) Acquiring Defendant declines to purchase the
800 MHz Spectrum License and (ii) the sale of the 800 MHz Spectrum
Licenses is no longer needed fully to remedy the competitive harms of
the merger, as determined by the United States in its sole discretion,
after consultation with the affected Plaintiff States.
C. Decommissioned Cell Sites
1. Divesting Defendants shall make all Cell Sites Decommissioned by
Divesting Defendants within five (5) years of the closing of the
divestiture of the Prepaid Assets, which shall not be fewer than 20,000
Cell Sites, available to Acquiring Defendant immediately after such
Decommissioning.
2. Divesting Defendants shall provide, no later than the closing of
the Prepaid Assets divestiture, the Acquiring Defendant and Monitoring
Trustee with a detailed schedule identifying, over the next five (5)
years: (i) each Cell Site that the Divesting Defendants plan to
Decommission; (ii) the forecasted date for Decommissioning; and (iii)
whether a given Cell Site is freely transferrable. For a period of five
(5) years following the closing of the divestiture of the Prepaid
Assets, on the first day of each month Divesting Defendants shall
submit to the Acquiring Defendant and Monitoring Trustee updated Cell
Site Decommissioning schedules that include a rolling monthly forecast
projected out two hundred and seventy (270) days. All forecasted
Decommissionings within one hundred and eighty (180) days will be
binding, subject to any mandatory restrictions on transfer imposed by
federal or state law, unless the Monitoring Trustee determines that the
Decommissioning was changed for good cause, and the changes and
justifications are reported by the Divesting Defendants to the United
States.
3. Divesting Defendants are ordered to pay to the United States,
within ninety (90) days following the end of each fiscal quarter,
$50,000 multiplied by the total number of Cell Sites in excess of two
(2) percent of Cell Sites in any 180-day Cell Site forecast: (a) for
which the Acquiring Defendant exercised its option to acquire such Cell
Site that was Decommissioned more than ten (10) days after the date
forecasted in the 180-day Cell Site forecast or (b) that were
Decommissioned but did not appear on any 180-day Cell Site forecast. If
Divesting Defendants are incorrect, and have not cured within ten (10)
days, on more than ten (10) percent of Cell Sites in any three 180-day
Cell Site forecasts, the penalty shall increase to $100,000 per
incorrect Cell Site for which the Acquiring Defendant exercised its
option to acquire such Cell Site starting on the fourth 180-day Cell
Site forecast that is incorrect on at least ten (10) percent of Cell
Sites and continuing at that level for any penalties imposed pursuant
to this Paragraph. If Divesting Defendants demonstrate that there was
good cause for the forecast to have been inaccurate with regard to an
individual Cell Site, the United States may, in its sole discretion,
after consultation with the affected Plaintiff States, waive some or
all of the payments.
4. Divesting Defendants shall assign or transfer any rights that
are assignable or transferrable and are useful for
[[Page 39869]]
Acquiring Defendant to deploy infrastructure on the Decommissioned Cell
Sites and will waive or terminate any rights Divesting Defendants may
have to impede or prevent Acquiring Defendant from doing so. Where
Divesting Defendants do not have the right to assign or transfer such
rights, Divesting Defendants will cooperate with Acquiring Defendant in
its attempt to obtain the rights.
5. Divesting Defendants shall Decommission unnecessary Cell Sites
promptly. Divesting Defendants will vacate a Decommissioned Cell Site
as soon as reasonably possible after the site is no longer in use on
any of the Divesting Defendants' networks. As soon as reasonably
possible after making Decommissioned Cell Sites available to the
Acquiring Defendant, Divesting Defendants shall also make any
Decommissioned transport-related equipment (including microwave
backhaul gear and network switches) on such cell sites available for
purchase by the Acquiring Defendant. If the Monitoring Trustee
determines that Divesting Defendants have not complied with this
Paragraph, the Monitoring Trustee may recommend and the United States
may impose a fine of up to $50,000 per Cell Site per week for which
Acquiring Defendant exercised its option to acquire such Cell Site or
transport-related equipment for any violation.
6. Subject to the terms and conditions of the applicable lease or
easement for such Cell Site, Divesting Defendants shall provide
Acquiring Defendant reasonable access to inspect Decommissioned Cell
Sites prior to the deadline for Acquiring Defendant to exercise its
option on the Decommissioned Cell Sites.
D. Decommissioned Retail Locations
1. Divesting Defendants shall make all assignable or transferrable
Retail Locations Decommissioned by Divesting Defendants within five (5)
years of the closing of the divestiture of the Prepaid Assets, which
will not be fewer than four hundred (400) Retail Locations, available
to Acquiring Defendant immediately after such Decommissioning.
2. Divesting Defendants shall notify Acquiring Defendant of Retail
Locations that Divesting Defendants plan to Decommission as soon as the
locations are identified.
3. Divesting Defendants shall waive or terminate any rights they
have to impede or prevent Acquiring Defendant from using the Retail
Locations.
4. Subject to the terms and conditions of the applicable lease for
such Retail Location, Divesting Defendants shall provide Acquiring
Defendant reasonable access to inspect Decommissioned Retail Locations
prior to the deadline for Acquiring Defendant to exercise its option on
the Decommissioned Retail Locations.
E. Unless the United States otherwise consents in writing or the
Acquiring Defendant declines its option to purchase certain
Decommissioned Cell Sites or Decommissioned Retail Locations, the
divestitures pursuant to this Final Judgment will include the entire
Divestiture Assets. The divestitures will be accomplished in such a way
as to satisfy the United States, in its sole discretion, that the
Divestiture Assets can and will be used by Acquiring Defendant as part
of a viable, ongoing operation relating to the provision of retail
mobile wireless service. The divestitures will be accomplished so as to
satisfy the United States, in its sole discretion, that none of the
terms of any agreement between Acquiring Defendant and Divesting
Defendants gives the Divesting Defendants the ability unreasonably to
raise the Acquiring Defendant's costs, to lower the Acquiring
Defendant's efficiency, or otherwise to interfere with the ability of
the Acquiring Defendant to compete.
F. Acquiring Defendant shall use the Divestiture Assets to offer
retail mobile wireless services, including offering nationwide postpaid
retail mobile wireless service within one (1) year of the closing of
the sale of the Prepaid Assets.
G. Divesting Defendants shall not take any action that will impede
in any way the permitting, operation, or divestiture of the Divestiture
Assets.
H. Divesting Defendants shall warrant to Acquiring Defendant (1)
that there are no material defects known to the Divesting Defendants in
the environmental, zoning, or other permits pertaining to the operation
of the Divestiture Assets, (2) that following the sale of the
Divestiture Assets, Divesting Defendants will not undertake, directly
or indirectly, any challenges to the environmental, zoning, or other
permits relating to the operation of the Divestiture Assets in a manner
adverse to the Acquiring Defendant, and (3) that the Divestiture Assets
will be capable of full operation on the date of transfer. For purposes
of this Paragraph, the Divestiture Assets shall not include any
Decommissioned Cell Sites or Decommissioned Retail Locations as to
which the Acquiring Defendant declined its option to acquire the
assets.
I. For a period of up to one (1) year following the divestiture
closing, if the Acquiring Defendant determines that any assets not
included in the Divestiture Assets were previously used by the divested
business and are reasonably necessary for the continued competitiveness
of the Divestiture Assets, it shall notify the United States, the
Plaintiff States, and the Divesting Defendants in writing that it
requires such assets. Provided, however, that such assets shall not
include any tangible or intangible wireless network or spectrum assets
(except as provided herein), or any tangible or intangible IT assets or
software licenses used by the remaining Sprint business. The United
States, in its sole discretion, after consultation with the affected
Plaintiff States, taking into account Acquiring Defendant's assets and
business, shall determine whether any of the assets identified should
be divested to Acquiring Defendant. If the United States determines
that such assets should be divested, Divesting Defendants and Acquiring
Defendant will negotiate an agreement within thirty (30) calendar days
providing for the divestiture of such assets in a period to be
determined by the United States in consultation with the affected
Plaintiff States and Divesting Defendants and Acquiring Defendant.
V. 600 MHz SPECTRUM DEPLOYMENT
A. Acquiring Defendant and Divesting Defendants agree to negotiate
in good faith to reach an agreement for Divesting Defendants to lease
some or all of Acquiring Defendant's 600 MHz Spectrum Licenses for
deployment to retail consumers by Divesting Defendants. Defendants
shall report to the Monitoring Trustee within ninety (90) days after
the filing of this Final Judgment regarding the status of these
negotiations. If, at the end of one hundred and eighty (180) days,
Defendants have not reached an agreement to lease some or all of
Acquiring Defendant's 600 MHz Spectrum Licenses for deployment by
Divesting Defendants and use by retail consumers, the Monitoring
Trustee shall report to the United States, which may then resolve any
dispute at the United States' sole discretion, provided such resolution
shall be based on commercially reasonable and mutually beneficial terms
for both parties, recognizing that the lease(s) must be for a
sufficient period of time for Divesting Defendants to make adequate
commercial use of the 600 MHz Spectrum Licenses.
[[Page 39870]]
VI. FULL MOBILE VIRTUAL NETWORK OPERATOR
A. Divesting Defendants and Acquiring Defendant shall enter into a
Full MVNO Agreement for a term of no fewer than seven (7) years. The
terms and conditions of the Acquiring Defendant's use of Divesting
Defendants' wireless networks pursuant to any Full MVNO Agreement shall
be commercially reasonable and must be acceptable to the United States,
in its sole discretion, after consultation with the affected Plaintiff
States.
B. In carrying out its obligations under any Full MVNO Agreement,
Divesting Defendants:
1. shall not reject any of Acquiring Defendant's lawful traffic,
unless authorized to do so by any Full MVNO Agreement and accepted by
the United States, in its sole discretion, after consultation with the
affected Plaintiff States;
2. shall not unreasonably discriminate against Acquiring Defendant
or Acquiring Defendant's subscribers, including by blocking,
throttling, or otherwise deprioritizing the Acquiring Defendant's
customers differently than Divesting Defendants' own similarly situated
customers, unless authorized to do so by any Full MVNO Agreement;
3. shall use reasonable best efforts to provide Acquiring Defendant
all operational support required for Acquiring Defendant's customers
(including, but not limited to, customers of the Prepaid Assets) to be
able to use the Divesting Defendants' wireless networks;
4. shall not unreasonably refuse to allow any device used by
Acquiring Defendant's customers to access the Divesting Defendants'
wireless networks, or otherwise unreasonably refuse to approve or
support any such devices, and shall approve such devices for use upon
request as soon as reasonably practicable, and shall use commercially
reasonable efforts to provide technical support or other assistance to
the Acquiring Defendant as requested to facilitate approval of any
devices for use on Divesting Defendants' wireless networks;
5. shall configure its wireless network as necessary to enable the
provision of handover mobility for the Acquiring Defendant's customers
in the boundary areas between the Acquiring Defendant's network, built
out in contiguous coverage areas (e.g., city-wide coverage), and the
Divesting Defendants' wireless networks; and
6. shall not otherwise unreasonably delay, impede, or frustrate
Acquiring Defendant's ability to use any Full MVNO Agreement and the
Divesting Defendants' networks to become a nationwide facilities-based
retail mobile wireless services provider.
VII. MOBILE VIRTUAL NETWORK OPERATOR COMPETITION
A. Divesting Defendants shall abide by all terms of their existing
MVNO agreements. Divesting Defendants shall agree to extend existing
MVNO agreements on their existing terms (other than any ``most favored
nation'' provisions) until the expiration of this Final Judgment unless
the Divesting Defendants demonstrate to the Monitoring Trustee that
doing so will result in a material adverse effect, other than as a
result of competition, on the Divesting Defendants' ongoing business.
For the avoidance of doubt, Divesting Defendants are not required to
extend any MVNO agreements beyond the expiration of this Final Judgment
or any existing infrastructure-based MVNO agreement that includes a
reciprocal facility sharing arrangement unless it includes a mutually
beneficial reciprocal facility sharing arrangement for the duration of
the MVNO agreement. Any disputes arising from the negotiation of an
agreement pursuant to this Paragraph shall be resolved by the United
States in its sole discretion.
B. Divesting Defendants and Acquiring Defendant agree to support
eSIM technology on smartphones, including working with handset
equipment manufacturers to support eSIM-capable phones to the extent
such phones are technically capable of operating on Divesting
Defendants or Acquiring Defendant's wireless networks.
C. Divesting Defendants and Acquiring Defendant shall not
discriminate against devices for the reason that the device uses remote
SIM provisioning and eSIM technology to connect to the Defendants'
wireless networks. Examples of discrimination would include, but are
not limited to, refusing to sell a device because it contains or uses
an eSIM, and refusing to certify for network access a device because it
uses an eSIM, but discrimination would not include the application of
the Defendant's generally applicable device-locking policies to devices
sold or leased by Defendant, provided that the locking policy is
consistent with Paragraph VII(F), below.
D. Divesting Defendants and Acquiring Defendant shall not
discriminate against devices for the reason that the device allows
multiple active profiles or for the reason that the device allows
automatic switching between those profiles. Examples of discrimination
would include, but are not limited to, refusing to sell a device
because it has these functions, and refusing to certify for network
access a device because it has these functions. For avoidance of doubt,
nothing contained in this provision will prohibit Defendants from
exercising discretion to determine whether a device or technology will
harm or impede the operation of their respective wireless networks.
E. Divesting Defendants and Acquiring Defendant shall make their
network plans available to consumers who use on-screen selection
software or applications from devices capable of being remotely
provisioned on the same terms as offered to other consumers in that
geographic area. This provision will apply to any device that is the
same make and model as any device Defendants sell or otherwise certify
for network access.
F. Divesting Defendants and Acquiring Defendant agree to abide by
the following unlocking principles for all methods of locking
(including any limitation on the use of an eSIM to switch between
profiles) for any postpaid or prepaid mobile wireless device that they
lock to their network: (i) Divesting Defendants and Acquiring Defendant
will post on their respective websites their clear, concise, and
readily accessible policies on postpaid and prepaid mobile device
unlocking; (ii) Divesting Defendants and Acquiring Defendant will
unlock mobile wireless devices for their customers and former customers
in good standing and individual owners of eligible devices after the
fulfillment of the applicable postpaid service contract, device
financing plan, or payment of applicable early termination fee; (iii)
Divesting Defendants and Acquiring Defendant will unlock prepaid mobile
wireless devices no later than one (1) year after initial activation,
consistent with reasonable time, payment, or usage requirements; and
(iv) Divesting Defendants and Acquiring Defendant will automatically
unlock devices remotely within two (2) business days of devices
becoming eligible for unlocking, and without additional fee, provided,
however, that if not technically possible to automatically unlock
devices remotely, Divesting Defendants and Acquiring Defendant shall
instead provide immediate notice to consumers that the devices are
eligible to be unlocked.
[[Page 39871]]
VIII. FACILITIES-BASED EXPANSION AND ENTRY
A. Divesting Defendants shall comply with all network build
commitments made to the FCC related to the merger of T-Mobile and
Sprint or the divestiture to Acquiring Defendant as of the date of
entry of this Final Judgment, subject to verification by the FCC.
Acquiring Defendant shall comply with the June 14, 2023 AWS-4, 700 MHz,
H Block, and Nationwide 5G Broadband network build commitments made to
the FCC as of the date of entry of this Final Judgment, subject to
verification by the FCC. Defendants shall provide to the United States
and the Plaintiff States copies of any reports or submissions to the
FCC that are associated with any FCC order(s) within three (3) business
days of submission to the FCC.
B. Divesting Defendants shall not interfere with Acquiring
Defendant's efforts to deploy a nationwide facilities-based mobile
wireless network, or to operate that network. Acquiring Defendant shall
use its best efforts to serve subscribers over its facilities-based
wireless network rather than over Divesting Defendants' wireless
networks.
C. On the first day of the first fiscal quarter following the entry
of this Final Judgment and every one hundred and eighty (180) days
thereafter, Acquiring Defendant shall submit to the United States and
the Plaintiff States an update on the status of its wireless network
deployment. This update will include a description of Acquiring
Defendant's deployment efforts since Acquiring Defendant's last report,
including (a) the number of towers and small cells deployed by
Acquiring Defendant; (b) the spectrum bands over which Acquiring
Defendant has deployed equipment; (c) Acquiring Defendant's progress in
obtaining subscriber devices that operate on each of its licensed
spectrum bands; (d) the percentage of the population of the United
States covered by Acquiring Defendant's wireless network; (e) the
number of mobile wireless subscribers served by Acquiring Defendant;
(f) the amount of traffic transmitted to and from these subscribers
over Acquiring Defendant's facilities-based wireless network; (g) the
amount of traffic transmitted to and from these subscribers over
Divesting Defendants' network pursuant to a Full MVNO Agreement; and
(h) any efforts by Divesting Defendants to interfere with Acquiring
Defendant's efforts to deploy and operate its facilities-based wireless
network.
IX. FINANCING
Divesting Defendants and Parent Defendants shall not finance any
part of any purchase made pursuant to this Final Judgment, unless the
United States approves such financing in its sole discretion.
X. STIPULATION AND ORDER
Until the divestitures required by this Final Judgment have been
accomplished, Divesting Defendants shall take all steps necessary to
comply with the Stipulation and Order entered by the Court. Defendants
shall take no action that would jeopardize the divestiture ordered by
the Court.
XI. AFFIDAVITS
A. Within twenty (20) calendar days of the filing of the Complaint
in this matter, Divesting Defendants shall deliver to the United States
and the Plaintiff States an affidavit that describes in reasonable
detail all actions Divesting Defendants have taken and all steps
Divesting Defendants have implemented on an ongoing basis to comply
with Section X of this Final Judgment. Divesting Defendants shall
deliver to the United States and the Plaintiff States an affidavit
describing any changes to the efforts and actions outlined in Divesting
Defendants' earlier affidavits filed pursuant to this Section within
fifteen (15) calendar days after the change is implemented.
B. Divesting Defendants shall keep all records of all efforts made
to preserve and divest the Divestiture Assets until one (1) year after
such divestiture has been completed.
XII. APPOINTMENT OF MONITORING TRUSTEE
A. Upon application of the United States, after consultation with
the Plaintiff States, the Court shall appoint a Monitoring Trustee
selected by the United States and approved by the Court.
B. The Monitoring Trustee shall have the power and authority to
monitor Defendants' compliance with the terms of this Final Judgment
and the Stipulation and Order entered by the Court, and shall have such
other powers as the Court deems appropriate. The Monitoring Trustee
shall be required to investigate and report on the Defendants'
compliance with this Final Judgment and the Stipulation and Order, and
the Defendants' progress toward effectuating the purposes of this Final
Judgment, including but not limited to: Divesting Defendants' sale of
the Divestiture Assets, Divesting Defendants' compliance with its
requirements to make Cell Sites and Retail Locations available to
Acquiring Defendant, and Acquiring Defendant's progress toward using
the Divestiture Assets and other company assets to operate a retail
mobile wireless network.
C. Subject to Paragraph XII(E) of this Final Judgment, the
Monitoring Trustee may hire at the cost and expense of Divesting
Defendants any agents, investment bankers, attorneys, accountants, or
consultants, who will be solely accountable to the Monitoring Trustee,
reasonably necessary in the Monitoring Trustee's judgment. Any such
agents or consultants shall serve on such terms and conditions as the
United States approves, including confidentiality requirements and
conflict of interest certifications.
D. Defendants shall not object to actions taken by the Monitoring
Trustee in fulfillment of the Monitoring Trustee's responsibilities
under any Order of the Court on any ground other than the Monitoring
Trustee's malfeasance. Any such objections by Defendants must be
conveyed in writing to the United States and the Monitoring Trustee
within ten (10) calendar days after the action taken by the Monitoring
Trustee giving rise to Defendants' objection.
E. The Monitoring Trustee shall serve at the cost and expense of
Divesting Defendants pursuant to a written agreement with Divesting
Defendants and on such terms and conditions as the United States
approves, including confidentiality requirements and conflict of
interest certifications. The compensation of the Monitoring Trustee and
any agents or consultants retained by the Monitoring Trustee shall be
on reasonable and customary terms commensurate with the individuals'
experience and responsibilities. If the Monitoring Trustee and
Divesting Defendants are unable to reach agreement on the Monitoring
Trustee's or any agents' or consultants' compensation or other terms
and conditions of engagement within fourteen (14) calendar days of the
appointment of the Monitoring Trustee, the United States may, in its
sole discretion, take appropriate action, including making a
recommendation to the Court. The Monitoring Trustee shall, within three
(3) business days of hiring any agents or consultants, provide written
notice of such hiring and the rate of compensation to Divesting
Defendants and the United States.
F. The Monitoring Trustee shall have no responsibility or
obligation for the operation of Defendants' businesses.
G. Defendants shall use their best efforts to assist the Monitoring
Trustee in monitoring Defendants' compliance
[[Page 39872]]
with their individual obligations under this Final Judgment and under
the Stipulation and Order. The Monitoring Trustee and any agents or
consultants retained by the Monitoring Trustee shall have full and
complete access to the personnel, books, records, and facilities
relating to compliance with this Final Judgment, subject to reasonable
protection for trade secrets; other confidential research, development,
or commercial information; or any applicable privileges. Defendants
shall take no action to interfere with or to impede the Monitoring
Trustee's accomplishment of its responsibilities.
H. After its appointment, the Monitoring Trustee shall file reports
monthly, or more frequently as needed, with the United States setting
forth Defendants' efforts to comply with Defendants' obligations under
this Final Judgment and under the Stipulation and Order. To the extent
such reports contain information that the Monitoring Trustee deems
confidential, such reports will not be filed in the public docket of
the Court.
I. The Monitoring Trustee shall serve until the divestiture of all
the Divestiture Assets is finalized pursuant to this Final Judgment,
until the buildout requirements are complete pursuant to Section VIII
of this Final Judgment, until any Full MVNO Agreement expires or
otherwise terminates, or until the term of any transition services
agreement pursuant to Paragraph IV(A)(4) of this Final Judgment has
expired, whichever is later.
J. If the United States determines that the Monitoring Trustee has
ceased to act or failed to act diligently or in a reasonably cost-
effective manner, it may recommend that the Court appoint a substitute
Monitoring Trustee.
XIII. FIREWALL
A. During the term of this Final Judgment, the Divesting Defendants
and Acquiring Defendant shall implement and maintain reasonable
procedures to prevent competitively sensitive information from being
disclosed by or through implementation and execution of the obligations
in this agreement or any associated agreements to components or
individuals within the respective companies involved in the marketing,
distribution, or sale of competing products.
B. Divesting Defendants and Acquiring Defendant each shall, within
thirty (30) business days of the entry of the Stipulation and Order,
submit to the United States, the Plaintiff States, and the Monitoring
Trustee a document setting forth in detail the procedures implemented
to effect compliance with this Section. Upon receipt of the document,
the United States shall inform Divesting Defendants and Acquiring
Defendant within thirty (30) business days whether, in its sole
discretion, it approves of or rejects each party's compliance plan. In
the event that Divesting Defendants' or Acquiring Defendant's
compliance plan is rejected, the United States shall provide Divesting
Defendants or Acquiring Defendant, as applicable, the reasons for the
rejection. Divesting Defendants or Acquiring Defendant, as applicable,
shall be given the opportunity to submit, within ten (10) business days
of receiving a notice of rejection, a revised compliance plan. If
Divesting Defendants or Acquiring Defendant cannot agree with the
United States on a compliance plan, the United States shall have the
right to request that this Court rule on whether Divesting Defendants'
or Acquiring Defendant's proposed compliance plan fulfills the
requirements of this Section.
C. Divesting Defendants and Acquiring Defendant shall:
1. furnish a copy of this Final Judgment and related Competitive
Impact Statement within sixty (60) calendar days of entry of the
Stipulation and Order to (a) each officer, director, and any other
employee that will receive competitively sensitive information; and (b)
each officer, director, and any other employee that is involved in (i)
any contacts with the other companies that are parties to any
transition services agreement contemplated by this Final Judgment, or
(ii) making decisions under any transition services agreement entered
into pursuant to this Final Judgment;
2. furnish a copy of this Final Judgment and related Competitive
Impact Statement to any successor to a person designated in Paragraph
XIII(C)(1) upon assuming that position;
3. annually brief each person designated in Paragraph XIII(C)(1)
and Paragraph XIII(C)(2) on the meaning and requirements of this Final
Judgment and the antitrust laws; and
4. obtain from each person designated in Paragraph XI(C)(1) and
Paragraph XI(C)(2), within thirty (30) calendar days of that person's
receipt of the Final Judgment, a certification that he or she (a) has
read and, to the best of his or her ability, understands and agrees to
abide by the terms of this Final Judgment; (b) is not aware of any
violation of the Final Judgment that has not been reported to the
company; and (c) understands that any person's failure to comply with
this Final Judgment may result in an enforcement action for contempt of
court against each Defendant or any person who violates this Final
Judgment.
XIV. COMPLIANCE INSPECTION
A. For the purposes of determining or securing compliance with this
Final Judgment, or of any related orders such as any Stipulation and
Order, or of determining whether the Final Judgment should be modified
or vacated, and subject to any legally-recognized privilege, from time
to time authorized representatives of the United States, including
agents and consultants retained by the United States, shall, upon
written request of an authorized representative of the Assistant
Attorney General in charge of the Antitrust Division, and on reasonable
notice to Defendants, be permitted:
1. access during Defendants' office hours to inspect and copy, or
at the option of the United States, to require Defendants to provide
electronic copies of all books, ledgers, accounts, records, data, and
documents in the possession, custody, or control of Defendants,
relating to any matters contained in this Final Judgment; and
2. to interview, either informally or on the record, Defendants'
officers, employees, or agents, who may have their individual counsel
present, regarding such matters. The interviews will be subject to the
reasonable convenience of the interviewee and without restraint or
interference by Defendants.
B. Upon the written request of an authorized representative of the
Assistant Attorney General in charge of the Antitrust Division,
Defendants shall submit written reports or response to written
interrogatories, under oath if requested, relating to any of the
matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in
this Section will be divulged by the United States to any person other
than an authorized representative of the executive branch of the United
States, except in the course of legal proceedings to which the United
States is a party (including grand jury proceedings), for the purpose
of securing compliance with this Final Judgment, or as otherwise
required by law.
D. If at the time that Defendants furnish information or documents
to the United States, Defendants represent and identify in writing the
material in any such information or documents to which a claim of
protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules
of Civil Procedure, and Defendants mark each pertinent page of
[[Page 39873]]
such material, ``Subject to claim of protection under Rule 26(c)(1)(G)
of the Federal Rules of Civil Procedure,'' then the United States shall
give Defendants ten (10) calendar days' notice prior to divulging such
material in any legal proceeding (other than a grand jury proceeding).
XV. NO REACQUISITION OR SALE TO COMPETITOR
A. Divesting Defendants and Parent Defendants shall not reacquire
any part of the Divestiture Assets during the term of this Final
Judgment.
B. Divesting Defendants and Parent Defendants shall not acquire any
other assets that are substantially similar to the Divestiture Assets
from the Acquiring Defendant during the terms of this Final Judgment.
C. Acquiring Defendant shall not sell, lease, or otherwise provide
the right to use the Divestiture Assets (including, but not limited to,
selling wholesale wireless network capacity) to any national
facilities-based mobile wireless provider during the term of this Final
Judgment, except for a roaming arrangement, without prior approval of
the United States; provided, however, that following the divestiture of
the 800 MHz Spectrum Licenses, the Divesting Defendants will be
permitted to lease back from the Acquiring Defendant up to 4 MHz of
spectrum as needed for up to two (2) years following the divestiture of
the 800 MHz Spectrum Licenses.
XVI. NOTIFICATIONS
A. Acquiring Defendant shall notify the United States at least
thirty (30) calendar days prior to any change in the corporation(s)
that may affect compliance obligations arising under this Final
Judgment, including, but not limited to: a dissolution, assignment,
sale, merger, or other action that would result in the emergence of a
successor corporation; the creation or dissolution of a subsidiary,
parent, or affiliate that engages in any acts or practices subject to
this Final Judgment; the proposed filing of a bankruptcy petition; or a
change in the corporate name or address. Provided, however, that, with
respect to any proposed change in the corporation(s) about which
Acquiring Defendant learns fewer than thirty (30) calendar days prior
to the date such action is to take place, Acquiring Defendant shall
notify the United States as soon as is practicable after obtaining such
knowledge.
B. For transactions that are not subject to the reporting and
waiting period requirements of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, 15 U.S.C. Sec. 18a (the ``HSR
Act''), Divesting Defendants shall not, without providing advanced
notification to the United States, directly or indirectly acquire a
financial interest, including through securities, loan, equity, or
management interest, in any company that competes for the provision of
mobile wireless retail services. Acquiring Defendant shall not sell any
of the Divestiture Assets or any currently held substantially similar
assets, directly or indirectly, without providing advance notification
to the United States.
C. Such notification will be provided to the United States in the
same format as, and per the instructions relating to, the Notification
and Report Form set forth in the Appendix to Part 803 of Title 16 of
the Code of Federal Regulations as amended. Notification will be
provided at least thirty (30) calendar days prior to acquiring any such
interest, and will include, beyond what may be required by the
applicable instructions, the names of the principal representatives of
the parties to the agreement who negotiated the agreement, and any
management or strategic plans discussing the proposed transaction. If
within thirty (30) calendar days after notification, the United States
makes a written request for additional information, Defendants shall
not consummate the proposed transaction or agreement until thirty (30)
calendar days after submitting and certifying, in the manner described
in Part 803 of Title 16 of the Code of Federal Regulations as amended,
the truth, correctness, and completeness of all such additional
information. Early termination of the waiting periods in this paragraph
may be requested and, where appropriate, granted in the same manner as
is applicable under the requirements and provisions of the HSR Act and
rules promulgated thereunder. This Section will be broadly construed
and any ambiguity or uncertainty regarding the filing of notice under
this Section will be resolved in favor of filing notice. Defendants
may, however, provide informal notice and request that the United
States waive the requirement of formal notice for any transaction.
D. Defendants represent and warrant to the United States that they
have disclosed all agreements between Acquiring Defendant and either
Divesting Defendants or Parent Defendants related to the settlement of
this action and their obligations and commitments put forth in this
Final Judgment. Defendants will provide thirty (30) days written notice
to the United States of any intent to enter into or execute any
amendment, supplement, or modification to any of the agreements between
Divesting Defendants or Parent Defendants and Acquiring Defendant.
Notwithstanding any provision to the contrary in the agreements between
Divesting Defendants or Parent Defendants and Acquiring Defendant,
Divesting Defendants or Parent Defendants may not amend, supplement,
terminate, or modify any of the agreements or any portion thereof
without obtaining the consent of the United States in its sole
discretion. The United States will not withhold consent to amendment,
supplementation, modification, or termination of any of the agreements
or portion thereof if Divesting Defendants demonstrate to the United
States, in its sole discretion, that a refusal to amend, supplement,
modify, or terminate the agreements would prevent Divesting Defendants
from meeting any build out requirements imposed by the FCC.
XVII. RETENTION OF JURISDICTION
The Court retains jurisdiction to enable any party to this Final
Judgment to apply to the Court at any time for further orders and
directions as may be necessary or appropriate to carry out or construe
this Final Judgment, to modify any of its provisions, to enforce
compliance, and to punish violations of its provisions.
XVIII. ENFORCEMENT OF FINAL JUDGMENT
A. The United States retains and reserves all rights to enforce the
provisions of this Final Judgment, including the right to seek an order
of contempt from the Court. Defendants agree that in any civil contempt
action, any motion to show cause, or any similar action brought by the
United States regarding an alleged violation of this Final Judgment,
the United States may establish a violation of the decree and the
appropriateness of any remedy therefore by a preponderance of the
evidence, and Defendants waive any argument that a different standard
of proof should apply.
B. The Final Judgment should be interpreted to give full effect to
the procompetitive purposes of the antitrust laws and to restore all
competition harmed by the challenged conduct. Defendants agree that
they may be held in contempt of, and that the Court may enforce, any
provision of this Final Judgment that, as interpreted by the Court in
light of these procompetitive principles and applying ordinary tools of
interpretation, is stated specifically and in reasonable detail,
whether or not it is clear and unambiguous on its face. In any such
interpretation, the terms of
[[Page 39874]]
this Final Judgment should not be construed against either party as the
drafter.
C. In any enforcement proceeding in which the Court finds that
Defendants have violated this Final Judgment, the United States may
apply to the Court for a one-time extension of this Final Judgment,
together with such other relief as may be appropriate. In connection
with any successful effort by the United States to enforce this Final
Judgment against a Defendant, whether litigated or resolved prior to
litigation, that Defendant agrees to reimburse the United States for
the fees and expenses of its attorneys, as well as any other costs
including experts' fees, incurred in connection with that enforcement
effort, including in the investigation of the potential violation.
D. For a period of four (4) years after the expiration or
termination of the Final Judgment pursuant to Section XIX, if the
United States has evidence that a Defendant violated this Final
Judgment before it expired or was terminated, the United States may
file an action against that Defendant in this Court requiring that the
Court order (i) Defendant to comply with the terms of this Final
Judgment for an additional term of at least four (4) years following
the filing of the enforcement action under this Section, (ii) any
appropriate contempt remedies, (iii) any additional relief needed to
ensure that Defendant complies with the terms of the Final Judgment,
and (iv) fees or expenses as called for in Paragraph XVIII(C).
XIX. EXPIRATION OF FINAL JUDGMENT
Unless the Court grants an extension, this Final Judgment expires
seven (7) years from the date of its entry, except that after five (5)
years from the date of its entry, this Final Judgment may be terminated
upon notice by the United States to the Court and Defendants that the
divestitures, buildouts and other requirements have been completed and
that the continuation of the Final Judgment no longer is necessary or
in the public interest.
XX. PUBLIC INTEREST DETERMINATION
Entry of this Final Judgment is in the public interest. The parties
have complied with the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16, including making copies available to
the public of this Final Judgment, the Competitive Impact Statement,
any comments thereon, and the United States' responses to comments.
Based upon the record before the Court, which includes the Competitive
Impact Statement and any comments and responses to comments filed with
the Court, entry of this Final Judgment is in the public interest.
Date:------------------------------------------------------------------
[Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. Sec. 16]
-----------------------------------------------------------------------
United States District Judge
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
United States of America, et al., Plaintiffs, v. Deutsche
Telekom AG, et al., Defendants.
Civil Action No. 1:19-cv-02232-TJK
COMPETITIVE IMPACT STATEMENT
The United States of America, under Section 2(b) of the Antitrust
Procedures and Penalties Act (``APPA'' or ``Tunney Act''), 15 U.S.C.
Sec. 16(b)-(h), files this Competitive Impact Statement relating to
the proposed Final Judgment submitted for entry in this civil antitrust
proceeding.
I. NATURE AND PURPOSE OF THE PROCEEDING
On April 29, 2018, Defendant T-Mobile US, Inc. (``T-Mobile'')
agreed to acquire Defendant Sprint Corporation (``Sprint'') in an all-
stock transaction valued at approximately $26 billion. The United
States filed a civil antitrust Complaint on July 26, 2019, seeking to
enjoin the proposed acquisition. The Complaint alleges that the likely
effect of this acquisition would be to substantially lessen competition
for retail mobile wireless service in the United States, resulting in
increased prices and less attractive service offerings for American
consumers, in violation of Section 7 of the Clayton Act, 15 U.S.C.
Sec. 18.
At the same time the Complaint was filed, the United States filed a
Stipulation and Order and proposed Final Judgment, which are designed
to preserve competition by enabling the entry of another national
facilities-based mobile wireless network carrier. The proposed Final
Judgment, which is explained more fully below, requires T-Mobile to
divest to DISH Network Corporation (``DISH'') certain retail wireless
business and network assets, and supporting assets (collectively, the
``Divestiture Assets''). It also requires that T-Mobile provide to DISH
certain transition services in support thereof and all services,
access, and assets necessary to facilitate DISH operating as a Full
Mobile Virtual Network Operator (``Full MVNO'', and together with the
Divestiture Assets, the ``Divestiture Package'').\1\ Additionally, the
Final Judgment requires that T-Mobile and Sprint extend their current
Mobile Virtual Network Operator (``MVNO'') agreements until the
expiration of the Final Judgment, and that T-Mobile, Sprint, and DISH
support remote SIM provisioning and eSIM technology.
---------------------------------------------------------------------------
\1\ Deutsche Telekom, T-Mobile, SoftBank, Sprint, and DISH are
referred to collectively as ``Defendants.''
---------------------------------------------------------------------------
The primary purpose of the proposed Final Judgment is to facilitate
DISH building and operating its own mobile wireless services network by
combining the Divestiture Package of assets and other relief with
DISH's existing mobile wireless assets, including substantial and
currently unused spectrum holdings, to enable it to compete in the
marketplace. The proposed Final Judgment thus obligates DISH to build
out its own mobile wireless services network and offer retail mobile
wireless service to American consumers. DISH's long-term build out of a
new network, along with the short-term requirement that DISH and T-
Mobile negotiate a lease for DISH's currently unused 600 MHz spectrum,
promise to increase output and put currently fallow spectrum into use
by American consumers. The required Divestiture Package and related
obligations in the proposed Final Judgment are intended to ensure that
DISH can begin to offer competitive services and grow to replace Sprint
as an independent and vigorous competitor in the retail mobile wireless
service market in which the proposed merger would otherwise lessen
competition. Further, the proposed Final Judgment would allow the
potential benefits of the merger to be realized, including expanding
American consumers' access to high quality networks.
Under the terms of the Stipulation and Order, T-Mobile will take
certain steps to ensure that, prior to the completion of all of the
proposed divestitures, the Divestiture Assets are preserved and remain
economically viable and ongoing business concerns.
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered after compliance with the APPA. Entry of
the proposed Final Judgment will terminate this action, except that the
Court will retain jurisdiction to construe, modify, or enforce the
provisions of the proposed Final Judgment and to punish violations
thereof.
[[Page 39875]]
II. DESCRIPTION OF EVENTS GIVING RISE TO THE ALLEGED VIOLATION
A. The Defendants and the Proposed Transaction
Deutsche Telekom AG (``Deutsche Telekom''), a German corporation
headquartered in Bonn, Germany, is the controlling shareholder of T-
Mobile, with 63% of T[dash]Mobile's shares. Deutsche Telekom is the
largest telecommunications operator in Europe, with net revenues of
[euro]75.7 billion (approximately $85 billion) in 2018.
T-Mobile, a Delaware corporation headquartered in Bellevue,
Washington, is the third largest mobile wireless carrier in the United
States. In 2018, T[dash]Mobile had nearly 80 million wireless
subscribers and approximately $43.3 billion in total revenues. T-Mobile
sells postpaid mobile wireless service under its T-Mobile brand and
prepaid mobile wireless service primarily under its Metro by T-Mobile
brand. T-Mobile also sells mobile wireless service to businesses and
indirectly through MVNOs, which resell the service to consumers.
SoftBank Group Corp. (``SoftBank''), a Japanese corporation and the
controlling shareholder of Sprint, owns 85% of Sprint's shares.
SoftBank's operating income during its 2018 fiscal year was [yen]2.3539
trillion (approximately $21.25 billion).
Sprint is a Delaware corporation headquartered in Overland Park,
Kansas. It is the fourth largest mobile wireless carrier in the United
States. At the end of its 2018 fiscal year, Sprint had over 54 million
wireless subscribers, and its fiscal year 2018 operating revenues were
approximately $32.6 billion. Sprint sells postpaid mobile wireless
service under its Sprint brand, and prepaid mobile wireless service
primarily under its Boost and Virgin Mobile brands. Sprint also sells
mobile wireless service to businesses and indirectly through MVNOs,
which resell the service to consumers. Sprint also operates a wireline
telecommunications business throughout the United States.
DISH is a Nevada corporation with its headquarters in Englewood,
Colorado. It is the owner of satellite and wireless spectrum assets and
currently offers television and related services and products to
American consumers nationwide. At the end of its 2018 fiscal year, DISH
had over 12 million Pay-TV subscribers, and its fiscal year 2018
operating revenues were approximately $13.6 billion.
On April 29, 2018, T-Mobile and Sprint agreed to combine their
respective businesses in an all-stock transaction. In recognition of
the significant competitive concerns raised by the proposed merger, T-
Mobile has agreed to divest certain retail mobile wireless business and
spectrum assets, and supporting assets, and to provide certain
transitional and network services. As discussed in Section III.E,
infra, DISH has agreed to be bound by the terms of the proposed Final
Judgment.
T-Mobile and Sprint also are subject to obligations contained in
their commitments to the Federal Communications Commission (``FCC'') as
reflected in a statement issued by FCC Chairman Ajit Pai on May 20,
2019.
B. The Competitive Effects of the Transaction
The Complaint alleges that the proposed merger likely would
substantially lessen competition in the retail mobile wireless service
market in the United States. Retail mobile wireless service includes
voice, text, and data services that consumers access on phones,
tablets, and other devices. Mobile wireless carriers deliver retail
mobile wireless service over a network of facilities, including, for
example, towers, radios, antennas, and fiber, that support the various
frequencies of spectrum that transmit wireless service. Mobile wireless
carriers with their own such facilities that offer service throughout
the United States are called national facilities-based mobile wireless
carriers. Unlike the facilities-based mobile wireless carriers,
traditional MVNOs do not operate their own mobile wireless networks and
instead buy capacity wholesale from facilities-based carriers and then
resell mobile wireless service to consumers. By contrast, a Full MVNO
owns some facilities that it can use to carry a portion of its traffic,
while relying on wholesale agreements to carry the remainder.
Currently, the national facilities-based mobile wireless carriers
in the United States are Verizon Communications, Inc., AT&T Inc., T-
Mobile, and Sprint. These four national facilities-based mobile
wireless carriers compete for retail mobile wireless service customers
by offering a variety of service plans and devices at different price
points and by promoting their prices, plan features, device offerings,
customer service, and network quality. Without the merger, T-Mobile and
Sprint would continue competing vigorously for market share as
``challenger'' brands to Verizon and AT&T, the largest and second
largest national facilities-based mobile wireless carriers in the
United States, respectively. If the merger is permitted to proceed
unremedied, that competition would be lost.
1. Relevant Market
As alleged in the Complaint, retail mobile wireless service is a
relevant product market under Section 7 of the Clayton Act. Retail
mobile wireless customers include consumers and small and medium
businesses who buy their mobile wireless services at retail stores or
online, choosing pricing and plans made available to the general
public. Retail customers cannot substitute the mobile wireless service
they purchase with the mobile wireless service purchased by large
businesses and government entities, who purchase services through a
distinct process and receive different pricing than the general public.
Accordingly, a hypothetical monopolist of retail mobile wireless
service profitably could raise prices.
The Complaint alleges a national geographic market for retail
mobile wireless service. Wireless carriers generally price, advertise,
and market their retail mobile wireless service on a nationwide basis.
Because the wireless carriers compete against each other on a
nationwide basis, a hypothetical monopolist of retail mobile wireless
service in the United States profitably could raise prices.
2. Competitive Effects
The market for retail mobile wireless service in the United States
is highly concentrated and would become more so if T-Mobile were
allowed to acquire Sprint. As discussed above, currently four national
facilities-based mobile wireless carriers compete for retail mobile
wireless service customers: Verizon and AT&T are the two largest, and
T-Mobile and Sprint are the smaller two. The merger would result in
three national facilities-based mobile wireless carriers, each with
roughly one-third share of the national market.
The elimination of a fourth national facilities-based mobile
wireless carrier would remove competition from Sprint and restructure
the retail mobile wireless service market. The combination of T-Mobile
and Sprint would eliminate head-to-head competition between the
companies and threaten the benefits that customers have realized from
that competition in the form of lower prices and better service. The
merger would also leave the market vulnerable to increased coordination
among the remaining three carriers. Increased coordination harms
consumers through a combination of higher prices, reduced innovation,
reduced quality, and fewer choices.
[[Page 39876]]
Finally, competition between Sprint and T[dash]Mobile to sell wireless
service wholesale to MVNOs has benefited consumers by facilitating
innovation by some MVNOs. The merger's elimination of this competition
likely would reduce future innovation.
3. Entry and Expansion
A national facilities-based mobile wireless carrier needs to have
spectrum and network assets deployed nationwide to provide retail
mobile wireless service in the United States. Thus, de novo entry by a
facilities-based mobile wireless carrier is very difficult. Without the
relief provided in the proposed Final Judgment, neither entry nor
expansion is likely to occur in a timely manner or on a scale
sufficient to replace the competitive influence now exerted on the
market by Sprint.
III. EXPLANATION OF THE PROPOSED FINAL JUDGMENT
The proposed Final Judgment requires structural relief in the form
of divestitures designed to ensure the development of a new national
facilities-based mobile wireless carrier competitor to ultimately
remedy the anticompetitive harms that flow from the change in the
market structure that otherwise would have occurred as a result of the
merger.
After careful scrutiny of Defendants' businesses, the United States
identified a divestiture package to address the United States' concerns
about the likely anticompetitive effects of the acquisition. The
proposed divestiture requires T-Mobile to divest to DISH certain retail
mobile wireless business assets and to facilitate DISH building its own
mobile wireless network with which it will compete in the retail mobile
wireless service market.
A. Divestitures and Other Relief
1. Divestitures
Under the terms of the proposed Final Judgment, T-Mobile must
divest to DISH certain assets, including Sprint's prepaid retail
wireless service business and certain spectrum licenses, and provide
DISH an exclusive option to acquire cell sites and retail stores
decommissioned by the merged firm.
Prepaid Assets. The proposed Final Judgment requires T-
Mobile to divest to DISH almost all of Sprint's prepaid wireless
business,\2\ including the Boost-branded, the Virgin-branded, and the
Sprint-branded businesses. These Prepaid Assets, coupled with required
network support from T-Mobile described more fully below, will provide
an existing business, with assets including customers, employees, and
intellectual property, that will enable DISH to offer retail mobile
wireless service. Acquiring this existing business will enhance DISH's
incentives to invest in a robust facilities-based network, because
acquiring an installed base of existing customers is expected to
increase the returns on such investment.
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\2\ The divestiture would not include subscribers to the
Assurance Lifeline program (part of the Virgin Wireless business),
or Sprint's prepaid customers receiving services through its Swiftel
and Shentel affiliates, due to various contractual and regulatory
obligations.
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800 MHz Spectrum Licenses. The proposed Final Judgment
further requires T-Mobile to divest to DISH Sprint's 800 MHz spectrum
licenses. This spectrum would add to DISH's existing spectrum assets in
order to ensure DISH has sufficient spectrum to meet its buildout and
service requirements and provide mobile wireless service to customers.
DISH may, at its option, elect not to acquire the spectrum if DISH can
meet certain network buildout and service requirements without it. In
such case, T-Mobile will auction the 800 MHz spectrum licenses to any
person who is not already a national facilities-based wireless carrier.
Cell Sites and Retail Stores. The proposed Final Judgment
also requires T-Mobile to provide to DISH an exclusive option to
acquire all cell sites and retail store locations being decommissioned
by the merged firm. This requirement will enable DISH to utilize such
existing cell sites and retail stores that are useful to DISH in
building out its own wireless network and providing mobile wireless
service to consumers.
The assets must be divested in such a way as to satisfy the United
States in its sole discretion that they can and will be operated by
DISH as a viable, ongoing business that can compete effectively in the
retail mobile wireless service market. DISH is required to use the
Divestiture Assets to offer retail mobile wireless services, including
offering nationwide postpaid retail mobile wireless service within one
year of the closing of the sale of the Prepaid Assets. Defendants are
also prohibited from taking any action that would jeopardize the
divestitures ordered by the Court.
2. Transition Services
Under the terms of the proposed Final Judgment, and at DISH's
option, T-Mobile and Sprint shall enter into one or more transition
services agreements to provide billing, customer care, SIM card
procurement, device provisioning, and all other services used by the
Prepaid Assets prior to the date of their transfer to DISH for an
initial period of up to two years after transfer. Such transition
services will enable DISH to use the Prepaid Assets as quickly as
possible and will help prevent disruption for Boost, Virgin, and Sprint
prepaid customers as the business is transferred to DISH.
3. 600 MHz Spectrum Deployment
The proposed Final Judgment requires DISH and T-Mobile to enter
into good faith negotiations to allow T-Mobile to lease some or all of
DISH's 600 MHz spectrum for use in offering mobile wireless services to
its subscribers. Such an agreement would expand output by making the
600 MHz spectrum available for use by consumers even before DISH has
completed building out its network, and would assist T-Mobile in
transitioning consumers to its 5G network.
4. Full MVNO Agreement
The proposed Final Judgment requires T-Mobile and Sprint to enter
into a Full MVNO Agreement with DISH for a term of no fewer than seven
years. Under the agreement outlined in the proposed Final Judgment, T-
Mobile and Sprint must permit DISH to operate as an MVNO on the merged
firm's network on commercially reasonable terms and to resell the
merged firm's mobile wireless service. As DISH deploys its own mobile
wireless network, T-Mobile and Sprint must also facilitate DISH
operating as a Full MVNO by providing the necessary network assets,
access, and services. These requirements will enable DISH to begin
operating as an MVNO as quickly as possible after entry of the Final
Judgment, and provide DISH the support it needs to offer retail mobile
wireless service to consumers while building out its own mobile
wireless network.
5. Facilities-Based Entry and Expansion
The proposed Final Judgment requires T-Mobile and Sprint to comply
with all network build commitments made to the Federal Communications
Commission (FCC) related to their merger or the divestiture to DISH as
of the date of entry of the Final Judgment, subject to verification by
the FCC.\3\ In turn, DISH is required to comply with the June 14, 2023
AWS-4, 700 MHz, H Block, and Nationwide 5G Broadband network build
commitments made to
[[Page 39877]]
the FCC on July 26, 2019, subject to verification by the FCC.\4\
Incorporating these obligations into the proposed Final Judgment is
intended to increase the incentives for the merged firm to achieve the
promised efficiencies from the merger and for DISH to build out its own
national facilities-based mobile wireless network to replace the
competition lost as a result of Sprint being acquired by T-Mobile.
Increasing DISH's incentives to complete the buildout of a fourth
nationwide wireless network also serves to decrease the likelihood of
coordinated effects that arise out of the merger.
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\3\ See Letter to Marlene Dortch (FCC) from Nancy J. Victory and
Regina M. Keeney (Counsel for T-Mobile and Sprint, respectively),
May 20, 2019 at Attachment 1, available at https://www.fcc.gov/sites/default/files/t-mobile-us-sprint-letter-05202019.pdf.
\4\ See Letter to Donald Stockdale (FCC) from Jeffrey H. Blum
(DISH's S.V.P. for Public Policy & Government Affairs), July 26,
2019 at Attachment A, available at https://www.fcc.gov/sites/default/files/dish-letter-07262019.pdf.
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6. MVNO Requirements
The proposed Final Judgment obligates T-Mobile and Sprint to extend
all of its current MVNO agreements until the expiration of the proposed
Final Judgment. This obligation will ensure that T-Mobile's and
Sprint's MVNO partners remain options for the consumers who currently
use them. It also permits T-Mobile's and Sprint's MVNO partners to
retain their current presence until the expiration of the proposed
Final Judgment, by which time DISH is expected to have become an
additional potential provider of services.
7. T-Mobile's and DISH's eSIM Obligations
The proposed Final Judgment requires T-Mobile and DISH to support
eSIM technology and prohibits T-Mobile and DISH from discriminating
against devices based on their use of remote SIM provisioning or use of
eSIM technology. The more widespread use of eSIMs and remote SIM
provisioning may help DISH attract consumers as it launches its mobile
wireless business. These provisions are intended to increase the
disruptiveness of DISH's entry by making it easier for consumers to
switch between wireless carriers and to choose a provider that does not
have a nearby physical retail location, thus lowering the cost of
DISH's entry and expansion. These benefits also decrease the likelihood
of coordinated effects by increasing DISH's ability to reach consumers
with innovative offerings.
B. Monitoring Trustee
The proposed Final Judgment provides that the United States may
appoint a monitoring trustee with the power and authority to
investigate and report on the Defendants' compliance with the terms of
the Final Judgment and the Stipulation and Order during the pendency of
the divestiture, including, but not limited to, T-Mobile's sale of the
Divestiture Assets, T-Mobile's compliance with exclusive option
requirements for cell sites and retail store locations, and DISH's
progress toward using the Divestiture Assets to operate a retail mobile
wireless network. The United States intends to recommend a monitoring
trustee for the Court's approval. The monitoring trustee will not have
any responsibility or obligation for the operation of the Defendants'
businesses. The monitoring trustee will serve at T-Mobile's and
Sprint's expense, on such terms and conditions as the United States
approves, and Defendants must assist the trustee in fulfilling its
obligations. The monitoring trustee will provide periodic reports to
the United States and will serve until the divestiture of all the
Divestiture Assets is finalized and the buildout requirements are
complete, or until the term of any Transition Services Agreement has
expired, whichever is later.
C. Firewall
Section XIII of the proposed Final Judgment requires T-Mobile and
DISH to implement firewall procedures to prevent each company's
confidential business information from being used by the other for any
purpose that could harm competition. Within thirty days of the Court
approving the Stipulation and Order, T-Mobile and DISH must submit
their planned procedures for maintaining firewalls. Additionally, T-
Mobile and DISH must explain the requirements of the firewalls to
certain officers and other business personnel responsible for the
commercial relationships between the two companies about the required
treatment of confidential business information. T-Mobile and DISH's
adherence to these procedures is subject to audit by the monitoring
trustee. These measures are necessary to ensure that the implementation
and execution of the obligations in the proposed Final Judgment and any
associated agreements between T-Mobile and DISH do not facilitate
coordination or other anticompetitive behavior during the interim
period before DISH becomes fully independent of T-Mobile.
D. Prohibition on Reacquisition or Sale to Competitor
To ensure that DISH and T-Mobile remain independent competitors,
Section XV of the proposed Final Judgment prohibits T-Mobile from
reacquiring from DISH any part of the Divestiture Assets, other than a
limited carveout for T-Mobile to lease back a small amount of spectrum
for a two-year period. Further, Section XV of the proposed Final
Judgment prohibits DISH from selling, leasing, or otherwise providing
the right to use the Divestiture Assets to any national facilities-
based mobile wireless carrier. These provisions ensure that T-Mobile
and DISH cannot undermine the purpose of the proposed Final Judgment by
later entering into a new transaction, with each other or with another
competitor, that would reduce the competition that the divestitures
have preserved.
E. Enforcement Provisions
The proposed Final Judgment also contains provisions designed to
promote compliance and make the enforcement of the Final Judgment as
effective as possible. As set forth in the Stipulation and Order, DISH
has agreed to be joined to this action for purposes of the divestiture.
Including DISH is appropriate because the United States has determined
that DISH is a necessary party to effectuate the relief obtained; the
divestiture package was crafted specifically taking into consideration
DISH's existing assets and capabilities, and divesting the package to
another purchaser would not preserve competition. Thus, as discussed
above, the proposed Final Judgment imposes certain obligations on DISH
to ensure that the divestitures take place expeditiously and DISH meets
certain deadlines in building out and operating its own mobile wireless
services network to provide competitive retail mobile wireless service.
Paragraph XVIII(A) provides that the United States retains and
reserves all rights to enforce the provisions of the proposed Final
Judgment, including its rights to seek an order of contempt from the
Court. Under the terms of this paragraph, Defendants have agreed that
in any civil contempt action, any motion to show cause, or any similar
action brought by the United States regarding an alleged violation of
the Final Judgment, the United States may establish the violation and
the appropriateness of any remedy by a preponderance of the evidence
and that Defendants have waived any argument that a different standard
of proof should apply. This provision aligns the standard for
compliance obligations with the standard of proof that applies to the
underlying offense that the compliance commitments address.
Paragraph XVIII(B) provides additional clarification regarding the
[[Page 39878]]
interpretation of the provisions of the proposed Final Judgment. The
proposed Final Judgment seeks to restore competition that would
otherwise be permanently harmed by the merger. Defendants agree that
they will abide by the proposed Final Judgment, and that they may be
held in contempt of this Court for failing to comply with any provision
of the proposed Final Judgment that is stated specifically and in
reasonable detail, as interpreted in light of this procompetitive
purpose.
Paragraph XVIII(C) of the proposed Final Judgment further provides
that if the Court finds in an enforcement proceeding that Defendants
have violated the Final Judgment, the United States may apply to the
Court for a one-time extension of the Final Judgment, together with
such other relief as may be appropriate. In addition, to compensate
American taxpayers for any costs associated with investigating and
enforcing violations of the proposed Final Judgment, Paragraph XVIII(C)
provides that in any successful effort by the United States to enforce
the Final Judgment against a Defendant, whether litigated or resolved
before litigation, that Defendants will reimburse the United States for
attorneys' fees, experts' fees, and other costs incurred in connection
with any enforcement effort, including the investigation of the
potential violation.
Section XVIII(D) states that the United States may file an action
against a Defendant for violating the Final Judgment for up to four
years after the Final Judgment has expired or been terminated. This
provision is meant to address circumstances such as when evidence that
a violation of the Final Judgment occurred during the term of the Final
Judgment is not discovered until after the Final Judgment has expired
or been terminated or when there is not sufficient time for the United
States to complete an investigation of an alleged violation until after
the Final Judgment has expired or been terminated. This provision,
therefore, makes clear that, for four years after the Final Judgment
has expired or been terminated, the United States may still challenge a
violation that occurred during the term of the Final Judgment.
Finally, Section XIX of the proposed Final Judgment provides that
the Final Judgment will expire seven years from the date of its entry,
except that after five years from the date of its entry, the Final
Judgment may be terminated upon notice by the United States to the
Court and Defendants that the divestitures have been completed and that
the continuation of the Final Judgment is no longer necessary or in the
public interest.
F. Stipulation and Order
Until the divestitures required by the proposed Final Judgment are
accomplished, the Defendants are required to take all steps necessary
to comply with a Stipulation and Order entered by the Court.
IV. REMEDIES AVAILABLE TO POTENTIAL PRIVATE LITIGANTS
Section 4 of the Clayton Act, 15 U.S.C. Sec. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorneys' fees. Entry of the proposed Final Judgment neither impairs
nor assists the bringing of any private antitrust damage action. Under
the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. Sec.
16(a), the proposed Final Judgment has no prima facie effect in any
subsequent private lawsuit that may be brought against Defendants.
V. PROCEDURES AVAILABLE FOR MODIFICATION OF THE PROPOSED FINAL JUDGMENT
The United States and Defendants have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
provisions of the APPA, provided that the United States has not
withdrawn its consent. The APPA conditions entry upon the Court's
determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least sixty days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wishes to comment should do so within
sixty days of the date of publication of this Competitive Impact
Statement in the Federal Register, or the last date of publication in a
newspaper of the summary of this Competitive Impact Statement,
whichever is later. All comments received during this period will be
considered by the U.S. Department of Justice, which remains free to
withdraw its consent to the proposed Final Judgment at any time before
the Court's entry of the Final Judgment. The comments and the response
of the United States will be filed with the Court. In addition,
comments will be posted on the U.S. Department of Justice, Antitrust
Division's internet website and, under certain circumstances, published
in the Federal Register.
Written comments should be submitted to: Scott Scheele, Chief,
Telecommunications and Broadband Section, Antitrust Division, U.S.
Department of Justice, 450 Fifth Street NW, Suite 7000, Washington,
D.C. 20530.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Final Judgment.
VI. ALTERNATIVES TO THE PROPOSED FINAL JUDGMENT
As an alternative to the proposed Final Judgment, the United States
considered a full trial on the merits challenging the merger. The
United States could have continued this litigation and sought
preliminary and permanent injunctions against T-Mobile's acquisition of
Sprint. The United States is satisfied, however, that the relief
described in the proposed Final Judgment will provide a reasonably
adequate remedy for the harm to competition in the retail mobile
wireless service market. Thus, the proposed Final Judgment would
achieve all or substantially all of the relief the United States would
have obtained through litigation, but avoids the time, expense, and
uncertainty of a full trial on the merits of the Complaint.
VII. STANDARD OF REVIEW UNDER THE APPA FOR THE PROPOSED FINAL JUDGMENT
The Clayton Act, as amended by the APPA, requires that proposed
consent judgments in antitrust cases brought by the United States be
subject to a 60-day comment period, after which the Court shall
determine whether entry of the proposed Final Judgment ``is in the
public interest.'' 15 U.S.C. Sec. 16(e)(1). In making that
determination, the Court, in accordance with the statute as amended in
2004, is required to consider:
(A) the competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) the impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the
[[Page 39879]]
violations set forth in the complaint including consideration of the
public benefit, if any, to be derived from a determination of the
issues at trial.
15 U.S.C. Sec. 16(e)(1)(A) & (B). In considering these statutory
factors, the Court's inquiry is necessarily a limited one as the
government is entitled to ``broad discretion to settle with the
defendant within the reaches of the public interest.'' United States v.
Microsoft Corp., 56 F.3d 1448, 1461 (D.C. Cir. 1995); United States v.
U.S. Airways Grp., Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014)
(explaining that the ``court's inquiry is limited'' in Tunney Act
settlements); United States v. InBev N.V./S.A., No. 08-1965 (JR), 2009
U.S. Dist. LEXIS 84787, at *3 (D.D.C. Aug. 11, 2009) (noting that a
court's review of a consent judgment is limited and only inquires
``into whether the government's determination that the proposed
remedies will cure the antitrust violations alleged in the complaint
was reasonable, and whether the mechanism to enforce the final judgment
are clear and manageable'').
As the U.S. Court of Appeals for the District of Columbia Circuit
has held, under the APPA a court considers, among other things, the
relationship between the remedy secured and the specific allegations in
the government's complaint, whether the proposed Final Judgment is
sufficiently clear, whether its enforcement mechanisms are sufficient,
and whether it may positively harm third parties. See Microsoft, 56
F.3d at 1458-62. With respect to the adequacy of the relief secured by
the proposed Final Judgment, a court may not ``engage in an
unrestricted evaluation of what relief would best serve the public.''
United States v. BNS, Inc., 858 F.2d 456, 462 (9th Cir. 1988) (quoting
United States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. 1981)); see
also Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152
F. Supp. 2d 37, 40 (D.D.C. 2001); InBev, 2009 U.S. Dist. LEXIS 84787,
at *3. Instead:
[t]he balancing of competing social and political interests affected
by a proposed antitrust consent decree must be left, in the first
instance, to the discretion of the Attorney General. The court's
role in protecting the public interest is one of insuring that the
government has not breached its duty to the public in consenting to
the decree. The court is required to determine not whether a
particular decree is the one that will best serve society, but
whether the settlement is ``within the reaches of the public
interest.'' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent decree.
Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted).\5\
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\5\ See also BNS, 858 F.2d at 464 (holding that the court's
``ultimate authority under the [APPA] is limited to approving or
disapproving the consent decree''); United States v. Gillette Co.,
406 F. Supp. 713, 716 (D. Mass. 1975) (noting that, in this way, the
court is constrained to ``look at the overall picture not
hypercritically, nor with a microscope, but with an artist's
reducing glass'').
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The United States' predictions about the efficacy of the remedy are
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at
1461 (recognizing courts should give ``due respect to the Justice
Department's . . . view of the nature of its case''); United States v.
Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 (D.D.C. 2016) (``In
evaluating objections to settlement agreements under the Tunney Act, a
court must be mindful that [t]he government need not prove that the
settlements will perfectly remedy the alleged antitrust harms[;] it
need only provide a factual basis for concluding that the settlements
are reasonably adequate remedies for the alleged harms.'' (internal
citations omitted)); United States v. Republic Servs., Inc., 723 F.
Supp. 2d 157, 160 (D.D.C. 2010) (noting ``the deferential review to
which the government's proposed remedy is accorded''); United States v.
Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (``A
district court must accord due respect to the government's prediction
as to the effect of proposed remedies, its perception of the market
structure, and its view of the nature of the case.''). The ultimate
question is whether ``the remedies [obtained by the Final Judgment are]
so inconsonant with the allegations charged as to fall outside of the
`reaches of the public interest.' '' Microsoft, 56 F.3d at 1461
(quoting United States v. Western Elec. Co., 900 F.2d 283, 309 (D.C.
Cir. 1990)).
Moreover, the Court's role under the APPA is limited to reviewing
the remedy in relationship to the violations that the United States has
alleged in its complaint, and does not authorize the Court to
``construct [its] own hypothetical case and then evaluate the decree
against that case.'' Microsoft, 56 F.3d at 1459; see also U.S. Airways,
38 F. Supp. 3d at 75 (noting that the court must simply determine
whether there is a factual foundation for the government's decisions
such that its conclusions regarding the proposed settlements are
reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 (``[T]he
`public interest' is not to be measured by comparing the violations
alleged in the complaint against those the court believes could have,
or even should have, been alleged[.]''). Because the ``court's
authority to review the decree depends entirely on the government's
exercising its prosecutorial discretion by bringing a case in the first
place,'' it follows that ``the court is only authorized to review the
decree itself,'' and not to ``effectively redraft the complaint'' to
inquire into other matters that the United States did not pursue.
Microsoft, 56 F.3d at 1459-60.
In its 2004 amendments to the APPA, Congress made clear its intent
to preserve the practical benefits of using consent judgments proposed
by the United States in antitrust enforcement, Pub. L. 108-237, Sec.
221, and added the unambiguous instruction that ``[n]othing in this
section shall be construed to require the court to conduct an
evidentiary hearing or to require the court to permit anyone to
intervene.'' 15 U.S.C. Sec. 16(e)(2); see also U.S. Airways, 38 F.
Supp. 3d at 76 (indicating that a court is not required to hold an
evidentiary hearing or to permit intervenors as part of its review
under the Tunney Act). This language explicitly wrote into the statute
what Congress intended when it first enacted the Tunney Act in 1974. As
Senator Tunney explained: ``[t]he court is nowhere compelled to go to
trial or to engage in extended proceedings which might have the effect
of vitiating the benefits of prompt and less costly settlement through
the consent decree process.'' 119 Cong. Rec. 24,598 (1973) (statement
of Sen. Tunney). ``A court can make its public interest determination
based on the competitive impact statement and response to public
comments alone.'' U.S. Airways, 38 F. Supp. 3d at 76 (citing United
States v. Enova Corp., 107 F. Supp. 2d 10, 17 (D.D.C. 2000)).
VIII. DETERMINATIVE DOCUMENTS
In formulating the proposed Final Judgment, the United States
considered (1) the ``Network and In-Home Commitments'' commitments made
to the FCC by T-Mobile and Sprint,\6\ and (2) the ``DISH Network 5G
Buildout Commitments and Related Penalties'' commitments made to the
FCC by DISH.\7\ These documents were determinative in formulating the
proposed Final Judgment, and the Department will file a notice with the
[[Page 39880]]
Court that includes these documents to comply with 15 U.S.C. Sec.
16(b).
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\6\ See Letter to Marlene Dortch (FCC) from Nancy J. Victory and
Regina M. Keeney (Counsel for T-Mobile and Sprint, respectively),
May 20, 2019 at Attachment 1, available at https://www.fcc.gov/sites/default/files/t-mobile-us-sprint-letter-05202019.pdf.
\7\ See Letter to Donald Stockdale (FCC) from Jeffrey H. Blum
(DISH's S.V.P. for Public Policy & Government Affairs), July 26,
2019 at Attachment A, available at https://www.fcc.gov/sites/default/files/dish-letter-07262019.pdf.
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Dated: July 30, 2019.
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Respectfully submitted,
Frederick S. Young
D.C. Bar No. 421285, Trial Attorney, Telecommunications and Broadband
Section, Antitrust Division, U.S. Department of Justice, 450 Fifth
Street NW, Suite 7000, Washington, D.C. 20530, Telephone (202) 307-2869
[FR Doc. 2019-17153 Filed 8-9-19; 8:45 am]
BILLING CODE 4410-11-P