After the Justice Department filed suit Wednesday to block AT&T's bid to buy T-Mobile USA, critics of the merger called on the Federal Communications Commission to follow by also opposing the deal.
AT&T has said it would fight the Justice Department's lawsuit but it still must deal with the FCC as well. The commission must weigh whether the proposed deal is in the public interest, which is a much higher hurdle to clear than antitrust law, said Andrew Jay Schwartzman, senior vice president and policy director for the Media Access Project, during a conference call with reporters.
Both Schwartzman and Public Knowledge Legal Director Harold Feld said Justice's move makes it much more likely that the FCC also will oppose the deal.
FCC Chairman Julius Genachowski issued a statement following the Justice announcement indicating that he also has strong concerns with the merger's potential impact on competition in the wireless market. FCC member Michael Copps echoed this concern, while Commissioner Mignon Clyburn was nore cautious."The FCC is also carefully considering the competitive issues raised by the application to ensure that the public interest is served," she said.
Feld said he believes the FCC's next likely step will be to vote to refer the matter to an administrative law judge, "which under the Communications Act is the kiss of death for these mergers. ... I think the FCC will act soon and appropriately. We look forward to seeing that happen."
Following a ruling by the administrative law judge, the FCC could then vote on whether to accept that finding, reject it or modify it, Feld said. Whichever way the FCC goes, that process can take a long time, he added.
"If anything, the fact that the Department of Justice has taken this action ... helps speed up the FCC's consideration of it," Schwartzman said. "I think we have an increased likelihood that the FCC will find there are substantial questions to justify a [administrative law judge] hearing."