Pai

FCC Chairman Ajit Pai found a lot to like about the proposed merger of T-Mobile and Sprint and has recommended his fellow commissioners approve the transaction after the companies offered new commitments to ease anti-competitive and anti-trust concerns.

That typically means the FCC’s 3-2 Republican majority will quickly approve the deal in a forthcoming vote, with three Republicans in favor and two Democrats opposed, if tradition holds.

Pai’s support for the merger is hardly surprising. Since joining the FCC as a commissioner in the second half of the Obama Administration, Pai has consistently opposed every pro-consumer item on the FCC’s docket. He loves industry-consolidating mergers, hates telecom companies being forced to open their businesses to competition on things like set-top boxes, and considers almost all pro-consumer protection policies from net neutrality to merger deal conditions examples of “overregulation” that he argues are harmful to the free market and investment.

The troubled merger, which would create what we will call T-Sprint, has remained under review for months, recently stalled over revelations the two companies tailored the transaction to appeal to President Trump. T-Mobile executives spent $195,000 repeatedly renting rooms at the Trump International Hotel in Washington and spent large sums hiring Trump-connected “advisors” including Reince Priebus and Corey Lewandowski. The merger pitch was changed to emphasize its impact on rapidly growing 5G networks, a talking point favorite of President Trump, who wants to beat the Chinese over the development of next generation wireless networks.

The merger must win approval from both the FCC and the Justice Department. The latter is said to be troubled about the anti-competitive impact of reducing the number of national wireless carriers from four to three. Such a consolidation would likely permanently change the wireless competition paradigm, because there has been no interest among new entrants to construct multi-billion dollar national cellular networks to compete with established wireless companies.

On Monday, T-Mobile and Sprint delivered additional concessions which seem to have won the approval of Mr. Pai.

“Two of the FCC’s top priorities are closing the digital divide in rural America and advancing United States leadership in 5G, the next generation of wireless connectivity,” Pai said in a statement Monday. “The commitments made today by T-Mobile and Sprint would substantially advance each of these critical objectives.”

But a closer examination of “T-Sprint’s concessions” shows there is remarkably little there to protect competition and consumers:

• A proposed spin off of prepaid Boost Mobile, which relies on the weaker Sprint network, is hardly much of a concession considering it will likely be impacted by the decommissioning of Sprint’s network, requiring at least some customers to buy new equipment that works on T-Mobile’s network. T-Sprint would also continue to control Boost competitors Virgin Mobile and MetroPCS, putting Boost at a distinct disadvantage.
• The “nationwide” 5G network promised by T-Sprint is replete with fine print. The company will not be formally assessed on its expansion progress for three years, has demanded that T-Mobile’s own employees be allowed to conduct network performance tests — a conflict of interest, and that if it fails to meet its own proposed metrics, the FCC must forego the use of its regulatory forfeiture powers. Instead, the company agrees to pay “voluntary” fines if it fails coverage expansion commitments that are open to wide interpretation and litigation.
• T-Sprint agreed to expand its “5G” coverage, but will rely heavily on existing macro cell towers and low and mid-band spectrum, shared by a much larger number of users than millimeter wave/small cell technology. That will probably deliver a more modest, incremental upgrade over existing 4G LTE technology, not a game-changer that can deliver gigabit speeds to wireless customers. Nothing precludes AT&T and Verizon from deploying similar upgrades without a competition-crushing merger between the third and fourth largest competitors.
• T-Sprint’s proposed wireless home broadband replacement does not include a commitment to provide unlimited service. In fact, vague language in the commitment letter suggests T-Sprint will offer the service with a performance and usage expectation akin to other fixed wireless networks. That likely means customers will endure a data cap and speeds that are not comparable to wired technology. Once the company has signed up 9.5 million home broadband customers, any commitments offered to regulators about that service automatically expire.
• The FCC is expected to give up much of its regulatory authority in return for T-Sprint’s commitments. If T-Sprint walks away from its commitments and not invest billions on its network expansion, it can pay a much smaller fine and have its merger obligations disappear. The FCC will not be able to use its more effective compliance power: forfeiture penalties.

T-Sprint’s argument is that this transaction will accelerate the deployment of 5G technology in a war for 5G supremacy with China. But exactly what technology is deployed, on what spectrum, using small cells or macro cell towers, makes a lot of difference. China’s wireless companies are owned and controlled by the Chinese government, which is also underwriting some of the costs. America’s networks are financed with private capital (and customer bills). T-Sprint’s 5G plans are also far less ambitious than those from AT&T and Verizon, and the cost to long-term competition is too high. The FCC should know that.

Congress has noticed that this merger has been rejected before during the Obama Administration for being anti competitive. Nothing has changed with respect to that. But T-Mobile’s lobbying sure has — this time trying to appeal to the Trump Administration for approval. Pai is certainly on board, and that could cost American consumers plenty.

Most telling of all is Wall Street’s reaction to today’s news. A merger that is being sold as as an AT&T/Verizon killer appears to be anything but. Verizon stock rose by 4.2% and AT&T by 4%. Investors recognize that consolidation can mean only one thing: higher prices. It means the end of the wireless price war that had Sprint and T-Mobile taking potshots at their larger rivals, forcing them to cut prices and bring back unlimited data plans.

It would be ruinous for T-Sprint to continue slashing prices and taunting AT&T and Verizon with costly promotions and giveaways. AT&T and Verizon expect T-Sprint will join their comfortable cartel with suspiciously similar plans and pricing, while firing up to 30,000 redundant workers and decommissioning Sprint’s wireless network. That last fact is well known on Wall Street, too. Cellphone tower owners took a beating in the stock market on the news they could lose Sprint as a customer. American Tower was down 1.9%, Crown Castle fell 3.2% and SBA Communications Corp. dropped as much as 4.5%.

The deal still must pass muster with the Justice Department, and attorneys general from multiple U.S. states are also opposing the deal on the state level. But the Republican members of the FCC joining up to support the deal make it more likely that it will eventually get approved.

The House on Wednesday approved a bill on a 232 to 190 vote along party lines to restore net neutrality protections first adopted in 2015, but repealed in 2018 by the Republican majority serving the Trump Administration’s Federal Communications Commission under the leadership of Chairman Ajit Pai.

All 231 voting Democrats voted in favor of the net neutrality measure while all but one Republican (Rep. Bill Posey of Florida) opposed it.

While the measure would never have passed a Republican-controlled House of Representatives, Democrats still face an uphill battle to get the measure through the Republican-controlled Senate and on to the White House.

Senate Republican Leader Mitch McConnell said Tuesday the bill would be “dead on arrival” in the Senate, and McConnell was unlikely to even consent to bring the bill to the floor for a debate and vote. Separately, aides to the president strongly urged him to veto the measure should it ever reach his desk for a signature.

Republicans have defended the nation’s largest internet service providers and policies which have largely deregulated their business practices and rates, claiming it has stimulated investment and expansion by ISPs willing to spend money in a favorable business climate. Critics contend spending policies at the nation’s largest providers are based on business priorities, not government policy on internet openness.

Pai

Minutes after the House vote ended, Pai attacked the results: “This legislation is a big-government solution in search of a problem. The internet is free and open, while faster broadband is being deployed across America. This bill should not and will not become law.”

Under the current rules, ISPs are allowed to block, throttle, or charge extra for content accessed over their broadband pipes, as long as a company informs its customers it is doing so. Democrats like Mike Doyle of Pennsylvania, one of the chief proponents for net neutrality restoration, compared the FCC’s repeal with firing a police force in a high crime area.

“Today, nobody is enforcing any rules. There’s no cop on the beat,” Doyle said. “You need a cop on the beat. These rules wouldn’t have been put into place if there was never this kind of behavior on the part of ISPs. We didn’t just dream all this up.”

Rep. Doyle

Three years into the Trump Administration, Doyle complains, the FCC has still done little to protect consumers from abusive ISPs.

“They’ve done nothing, nada, zip, crickets. They did nothing,” Doyle said. “It’s the wild, wild west. Let the ISPs do anything they want and consumers be damned.”

Republican FCC Commissioner Brendan Carr disagrees.

“The U.S. has turned the page on the failed broadband policies of the Obama Administration,” Carr said in a statement criticizing the net neutrality measure as threatening to turn back the clock on the telecom industry’s progress.

Many Republicans claimed they supported measures that would prohibit ISPs from interfering with content, but were opposed to Democrats tying regulatory authority to redefining ISPs as telecommunications providers. Republicans claim that could lead to a government power grab by officials seeking rate controls and service quality regulations. Some Republicans also claim the measure would expose the internet to new taxes.

Democrats are now lobbying to get Senate Leader McConnell to schedule a Senate vote for the measure.

The House just voted to restore #NetNeutrality! Now the ball is in @SenateMajLdr’s hands. @SenateGOP: stop doing the bidding of massive broadband corporations, listen to the American people, and bring the Save The Internet Act to the floor for a vote. #SaveTheNet

— Ed Markey (@SenMarkey) April 10, 2019

AT&T began laying off thousands of workers Monday, mostly targeting highly skilled and highly paid long-time AT&T employees nearing retirement age.

Many of those laid off this week worked in the company’s wireline division, which supplies landline phone service, fiber and copper-based internet service for residential and commercial customers, and AT&T’s Foundry “innovation” centers. Other affected units include AT&T Technology & Operations, Mobility, Construction and Financing, Entertainment Group, Global Supply, Finance, and DTV (DirecTV).

Many of those targeted for layoffs were approaching 30 years with AT&T, part of an important benchmark allowing employees to retire with maximum benefits. Those who did not quite make it will be offered two weeks pay for every year of service in severance instead, capped at a maximum of six months pay. Affected employees must leave AT&T by Feb. 18 or accept, when available, an alternate position at the company if one can be located within 50 miles of the current job location.

Last year, AT&T claimed that as a result of the passage of significant corporate tax cuts signed into law by President Trump, the company would hire at least 7,000 new workers and invest up to $1 billion in its business. AT&T claims it has already exceeded those commitments, hiring more than 20,000 new employees last year and more than 17,000 the year before, although the company would not confirm if those workers were directly hired by AT&T and in the United States. The Communications Workers of America reports that AT&T eliminated 10,700 union jobs from its payroll in 2018, with at least 16,000 employees replaced by offshore workers. The company had 273,210 employees as of August 2018.

In a leaked internal memo from AT&T’s vice president of technology and operations, Jeff McElfresh warned AT&T would be laying off a significant number of workers this year. The company is seeking a “geographic rationalization” of its current employees to cut a “surplus” of workers.

“To win in this new world, we must continue to lower costs and keep getting faster, leaner, and more agile,” McElfresh told employees. “This includes reductions in our organization, and others across the company, which will begin later this month and take place over several months.”

The wife of one “surplus” worker described how an AT&T manager ended her husband’s 29-year career at AT&T in a scripted, four-minute phone call.

“My husband had 29 years with the company. [He] has been a fiber and copper splicer, engineer, ran a construction crew, and has been an instructor as the subject matter expert in over 50 courses for the last 18 years,” she shared. “His boss called him this morning […] and in less than four minutes told him he was out. Twenty-nine years and you get a call that takes less than 4 minutes?”

Some workers unaffected by the current round of layoffs fear that AT&T gutted some of its most experienced and qualified talent, and worries about the future competence of AT&T to manage its business.

“We lost so many people throughout our work groups that there is no way I can see us being able to support the systems going forward. Can’t happen,” one employee shared. “We even lost people that were in one deep slots without any thought about the impact. Some positions that flat out require multiple people just to support the existing volume of support work and new projects have been reduced to one or less headcount.”

Wheeler

Three developments — two in the courts and another at the ballot box — have encouraged former FCC Chairman Thomas Wheeler to believe net neutrality can be restored, but only if a new Democratic majority in the House of Representatives reignites public attention on the issue and a D.C. court finds the current FCC acted recklessly in repealing the rules.

Wheeler, a visiting fellow of Governance Studies at the Brookings Institute’s Center for Technology Innovation, argues the last chapter of net neutrality has yet to be written:

The FCC’s Authority to Govern Internet Traffic Upheld by U.S. Supreme Court

On November 5, the Supreme Court declined to review the decision of the D.C. Circuit Court that twice upheld the 2015 Open Internet Rule. The industry groups that had long opposed non-discriminatory access to broadband networks had previously stopped such regulation at the D.C. Circuit. When they attempted the same thing with regard to the 2015 decision of the Federal Communications Commission (FCC), a three-judge panel ruled the FCC’s favor. The industry then appealed the panel’s decision to the entire D.C. Circuit and lost again. The industry then appealed that loss to the Supreme Court. The Supreme Court voted 4-3 (with Chief Justice Roberts and Justice Kavanaugh abstaining) to deny a writ of certiorari for the appeal. As a result, the lower court’s decision upholding the 2015 Open Internet Rule stands.

In order to overcome earlier court rulings that found the FCC lacked the authority to regulate broadband services, Wheeler redefined broadband as a telecommunications service, subject to stronger regulatory authority under Title II of the Communications Act. Under “common carrier” provisions, internet service providers could not engage in traffic discrimination. The industry disagreed with Wheeler’s reclassification and sued. Because the Supreme Court refused to hear their appeal, the D.C. District Court ruling in favor of the FCC stands.

Trump’s FCC Becomes a Partner of Big Telecom

The Trump Administration appointed a Republican majority to the FCC that wiped away or repealed most of the accomplishments of the FCC under Chairman Wheeler, including net neutrality.

Pai

“In 2017, the Trump FCC repealed the Open Internet Rule at the request of the network companies. In the process, the FCC also ruled that the agency had only minimal authority over internet networks,” Wheeler wrote. “Except for toothless transparency requirements, the Commission would exercise no oversight over broadband internet access services. Not only did the agency created by Congress to oversee the nation’s networks walk away from that responsibility, but it also joined with the plaintiffs in asking the Supreme Court to overrule the D.C. Circuit’s 2015 decision. When the High Court denied that request, it breathed new life into the 2015 Open Internet Rule.”

Wheeler was gratified by the news that Democrats have retaken the House, noting that presumptive Speaker Nanci Pelosi, next chairman of the Energy & Commerce Committee Frank Pallone, and incoming chairman of the Telecommunications Subcommittee Mike Doyle are all vocal supporters of net neutrality. Reps. Pallone and Doyle even attempted to introduce a resolution to repeal the FCC’s decision on net neutrality, but Republicans refused to allow the issue to come up for a vote in the House.

Wheeler believes both congressmen will conduct more aggressive oversight hearings over the FCC, but until Republicans are voted out, net neutrality “is a long shot” according to Wheeler.

“Even if it was passed by the House, the Republican-controlled Senate would not likely support it. Even if they miraculously passed a bill, President Trump would no doubt veto it, having previously spoken out against net neutrality,” Wheeler said. “The only foreseeable legislative path would be with the support of the network companies, and that support would come at the price of watering down the proposal to render it virtually meaningless.”

Will a Court Find Trump’s FCC “Arbitrary and Capricious?”

On Feb. 1, the D.C. Circuit Court will hear arguments over a lawsuit challenging the FCC’s decision to repeal net neutrality. Wheeler says if the D.C. Circuit rules against the FCC and vacates the decision to repeal net neutrality, Wheeler’s 2015 Open Internet rules will be reinstated.

“In their zeal to gut oversight of their activities, the internet networks and their Trump FCC allies may have shot themselves in the foot,” Wheeler wrote. “There is a strong case that the Trump FCC acted in an arbitrary and capricious manner when it repealed the 2015 Open Internet Rule and walked away from any responsibility over the most important network of the 21st century. If the D.C. Circuit makes such a finding, net neutrality would once again be the law of the land. Although the Trump FCC would probably spitefully ignore its enforcement and even force adoption of a new rule to free the broadband companies, that action would simply bolster the Democrats in the House.”