Behind T-Mobile-Sprint Merger: A Textbook Antitrust Analysis
A court's decision to sign-off on the T-Mobile and Sprint merger could be a very straightforward antitrust case that offers some complicated insights into how regulators might view tech-related mergers in the future.
February 21, 2020 at 12:30 PM
4 minute read
For some, a proposed merger between Sprint and T-Mobile may have yielded an unexpected positive verdict from a judge in the U.S. District Court for the Southern District of New York. But on closer examination, the court ruling in favor of the merger doesn't really have much shock factor.
Multiple state attorneys general filed a lawsuit in an attempt to stop Sprint and T-Mobile from joining forces, a move they argued would hinder competition and have a negative impact on consumers. Sprint and T-Mobile claimed that the merger would help them construct a nationwide 5G network to compete against the other two players in the market. According to Yahoo Finance, AT&T president and COO John Stankey called the court's decision to approve the merger "surprising."
But from an antitrust case perspective, the outcome may be more textbook than precedent-making.
"The same analytical framework applies to every merger and the results come out differently depending on the unique facts. But this wasn't some case where there was a chink in the law or you had some unusual outcome given the particular facts of the case," said Rani Habash, a partner at Dechert.
Much of the court's eventual decision—and potentially some of the surprise around the outcome—stems from the nature of the wireless carrier market, which consists of four players: AT&T, Verizon, Sprint and T-Mobile. According to Habash, mergers that take an ecosystem from four to three competitors always have a borderline chance at passing muster and typically hinge greatly on the facts of the case.
In this instance, he thinks those parameters weighed in the favor of Sprint and T-Mobile. For example, Judge Victor Marrero's decision cited Sprint's position as a "weakened competitor" that cannot "compete effectively in the future" as a factor that undercut the assertion that the merger would have an anti-competitive effect. The Federal Communications Commission also included certain terms in its approval, among them the condition that the merged companies divest Sprint's prepaid business, including Boost Mobile and Virgin Mobile, to Dish Network Corp.
Habash framed it as maintaining a certain balance in the market. "Ultimately, what they are doing is preserving the status quo: Four competitors today, four competitors after the merger," he said.
Still, while the Sprint and T-Mobile verdict may have been centered on straightforward principles of antitrust laws and procedures, that doesn't mean tech-based companies in other industries can anticipate a similar result.
Scott Wagner, a partner at Bilzin Sumberg and leader of the firm's e-discovery practice, called the wireless market unique in the sense that it operates on a national scale, where internet or cable providers tend to be more regional.
"Everybody sees what's happening with the pricing. You turn on the TV and within 10 minutes you are likely to see a cellphone ad. It makes it a little bit harder [for wireless companies], if they wanted to do something nefarious, to do it," Wagner said.
However, it's possible that the case may still provide some insights into how courts or regulators are likely to view tech-related mergers in the future. In a statement following the verdict, Makan Delrahim, assistant attorney general of the Justice Department's Antitrust Division, said the decision was an important step forward for strengthening competition around 5G networks "that will benefit American consumers nationwide."
Wagner thinks the potential for similar consumer "benefits" may push regulators and the courts to grant technology companies some leeway moving forward.
"I think they are giving the benefit of the doubt to the technology companies and saying, 'Look, we're not going to hold up these mergers because we think it's ultimately going to benefit the consumers in the development of technology,'" Wagner said.
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