Last Monday’s suspension by the U.S. Federal Communications Commission of the 180-day countdown clock for the review of AT&T’s proposed purchase of wireless spectrum from Qualcomm, was another signal that regulators for the current administration may not be as permissive about acquisitions as those for the prior one. Now, as The Wall Street Journal reported late Friday afternoon, AT&T has hired Bank of America to help it consider, and perhaps execute, a sale of certain assets, in hopes of appeasing regulators who continue to look askance at its proposed acquisition of the U.S. assets of T-Mobile.
Qualcomm reached an agreement with AT&T to sell its remaining share of the D block of 700 MHz spectrum in the U.S. last December. In an effort to convince regulators they may be holding up the innovation process, late Monday, Qualcomm issued a statement on behalf of the corporation that made a bold, but unusual, claim: It would only have the resources to build services such as FLO TV using that spectrum, if it could sell that spectrum to AT&T first.
The statement from Qualcomm VP of Government Affairs Dean Brenner reads:
The FCC should approve the pending AT&T-Qualcomm spectrum sale now because of the clear benefits to the public from the sale that stand on their own and are totally unrelated to the proposed AT&T-T-Mobile merger. Approval now will foster the public policies that the FCC correctly deems so vital for the American public. Approval now will re-purpose unused 700 MHz unpaired spectrum for mobile broadband, thereby easing America’s spectrum crunch and helping to meet the FCC’s goal of reallocating 300 MHz for mobile broadband over the next five years. Approval now will also allow Qualcomm to invest in a new, spectrally efficient technology (supplemental downlink) and enable the first worldwide deployment to occur in the U.S., thereby fostering U.S. economic growth and job creation and enhancing U.S. global leadership in wireless technology.
In a letter to AT&T and Qualcomm representatives dated August 8, FCC Wireless Telecommunications Bureau Chief Rick Kaplan warned the two companies that the issues surrounding their proposed sale, and those surrounding the T-Mobile acquisition, could overlap:
The Commission’s ongoing review has confirmed that the proposed transactions raise a number of related issues, including, but not limited to, questions regarding AT&T’s aggregation of spectrum throughout the nation, particularly in overlapping areas. As a result, we have concluded that the best way to determine whether either or both of the proposed transactions serve the public interest is to consider them in a coordinated manner at this time, without prejudice to independent treatment at a later date.
The FCC established the 180-day review procedure in an effort to make the regulatory process fit some established, manageable template. That said, the Commission says, it’s under no obligation to itself to complete its review within that timeframe. As the Commission states:
We also remind the public that, although the agency seeks to meet the 180-day benchmark, its statutory obligation to determine that an assignment or transfer serves the public interest takes precedence over the informal timeline. The Commission’s failure to release an order within the 180-day benchmark is not indicative of how it will resolve the issues raised in this proceeding.
Just over two weeks ago, Sen. Al Franken (D – Minn.) wrote each of the FCC commissioners, urging them to reject the proposed T-Mobile acquisition by AT&T for reasons including AT&T’s alleged mismanagement of the spectrum it already does own. Sen. Franken wrote:
AT&T owns more spectrum than any other company, yet AT&T has been plagued with delays in rolling out infrastructure to support spectrum it has been allocated. The quality of the service it provides is consistently ranked last amongst the national carriers, and it continues to use spectrum in an inefficient manner. The question your agencies must consider is not how badly AT&T needs the spectrum, but how effective AT&T would be at making use of that spectrum relative to other carriers. Moreover, I believe the public interest would be far better served if AT&T was required to resolve its spectrum crunch by investing a portion of the $39 billion it plans to spend on this transaction to build out its existing spectrum and to deploy additional technologies to make more efficient use of its current spectrum holdings.
