UPDATED: The merger of the wireless companies was already on the ropes after August when the Justice Department said it would challenge the deal in court on antitrust grounds. Now FCC Chairman Julius Genachowski is circulating a draft order that would add an important additional barrier to the deal: It would ask an administrative law judge to consider whether the combo would serve the public interest — after the end of the Justice trial, due to begin in February. That would significantly delay and complicate the AT&T and T-Mobile’s merger plans. The last time the FCC did this — in 2002 when Echostar wanted to merge with DirecTV — the companies scrapped their plan.
Genachowski’s proposal follows a conclusion by FCC staff that consumers would be harmed if AT&T and T-Mobile merge. “The record clearly shows that — in no uncertain terms — this merger would result in a massive loss of U.S. jobs and investment” as AT&T cuts costs to make the economics of the deal work, a senior FCC official says. The agency found that there’d be less competition in 99 of the 100 biggest markets. (The exception is Omaha.) Staffers also concluded that the deal would not improve deployment of 4G services. If the FCC decides not to approve a merger like this, then it has to send the case to an administrative law judge for a court-like hearing that would look at whether the deal would serve the public interest. The judge’s finding would then go back to the full FCC for a vote.