Public Knowledge (PK) and Media Access
Project (MAP) said today that AT&T and T-Mobile were engaging in “litigation
gamesmanship” in the companies’ attempt to withdraw their merger
application from the Federal Communications Commission (FCC).
In a filing with the FCC, the groups also
said that the Commission’s order designating the transaction for a formal
hearing should be released because “the public deserves for the
Commission’s determinations to see the light of day.”
The filing is here.
The companies have said they have said the
FCC has no authority to act on their withdrawal. PK and MAP disagree.
The companies have said publicly they
aren’t withdrawing their application because they are reconfiguring their
business deal, but
“rather because they intend to seek a favorable decision in federal court,
which the companies can then use to pressure the Commission to approve the
merge,” according to the filing from PK and MAP.
The groups added:
“This type of litigation gamesmanship wastes the resources of both
the Commission and the federal court system. The Commission’s application
dismissal rules are not designed to indulge this kind of behavior, and the
Commission is well within its authority to protect the integrity of its
procedures, deny the request, and move forward with its evidentiary
“AT&T must not be allowed to triumph through use
of its bottomless war chest when the facts are so clearly against it. To allow
AT&T to exhaust the far more limited resources of public interest opponents
by withdrawing the application at the end of the process, only so that it can
refile under more favorable conditions after its opponents have spent their
resources, is clearly contrary to the public interest,” PK and MAP said.
FCC rules not only allow the Commission wide latitude to determine
what to do with the withdrawal application, they also allow the Commission to
make public the voluminous order setting the takeover for a formal evidentiary
hearing, PK and MAP said. They suggested that the Commission could issue an
order releasing the FCC’s study of market conditions contained in the hearing
order while at the same time requiring any future merger filings at the FCC
from the companies be automatically designated for hearing while incorporating
all of the evidence already filed.