United States et al v. Deutsche Telekom AG; T-Mobile US, Inc.; SoftBank Group Corp.; and Sprint Corp. Response to Public Comments, 61640-61657 [2019-24642]

Agencies

• Antitrust Division
• Department of Justice

[Federal Register Volume 84, Number 219 (Wednesday, November 13, 2019)]
[Notices]
[Pages 61640-61657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24642]


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DEPARTMENT OF JUSTICE

Antitrust Division


United States et al v. Deutsche Telekom AG; T-Mobile US, Inc.; 
SoftBank Group Corp.; and Sprint Corp. Response to Public Comments

    Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 
16(b)-(h), the United States hereby publishes below the Response to 
Public Comments on the Proposed Final Judgment in United States et al. 
v. Deutsche Telekom AG; T-Mobile US, Inc.; SoftBank Group Corp.; and 
Sprint Corp., Civil Action No. 1:19-cv-02232-TJK, which was filed in 
the United States District Court for the District of Columbia on 
November 6, 2019, together with copies of the 32 comments received by 
the United States.
    Pursuant to the Court's November 5, 2019 order, comments were 
published electronically and are available to be viewed and downloaded 
at the Antitrust Division's website, at: https://www.justice.gov/atr/us-and-plaintiff-states-v-deutsche-telekom-ag-et-al-index-comments. A 
copy of the United States' response to the comments is also available 
at the same location. Copies of the comments and the United States' 
response are available for inspection at the Office of the Clerk of the 
United States District Court for the District of Columbia. Copies of 
these materials may also be obtained from the Antitrust Division upon 
request and payment of the copying fee set by Department of Justice 
regulations.

Amy R. Fitzpatrick,
Counsel to the Senior Director for Investigations and Litigation.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

    United States of America et al, Plaintiffs, v. Deutsche Telekom 
AG et al, Defendants

Case No. 1:19-cv-02232-TJK

RESPONSE OF PLAINTIFF UNITED STATES TO PUBLIC COMMENTS ON THE PROPOSED 
FINAL JUDGMENT

Table of Contents

                            Table of Contents
 
 
 
I. Introduction.............................................           1
II. Procedural History......................................           3
III. Standard of Judicial Review............................           4
IV. The Investigation and the Proposed Final Judgment.......           8
V. Summary of Public Comments and the United States'                  15
 Response...................................................
    A. Comments that Fail To Acknowledge the Context of               16
     Tunney Act Review......................................
    B. Comments Regarding DISH's Viability as a Competitor..          19
        1. DISH's Assets and Track Record...................          19
        2. DISH's Incentive and Ability To Compete..........          25
    C. Comments Regarding the Enforceability of the Proposed          31
     Final Judgment.........................................
    D. Other Comments Opposing Entry of the Proposed Final            37
     Judgment...............................................

[[Page 61641]]

 
        1. Comments Regarding Harms Outside the Scope of the          37
         Complaint..........................................
        2. Comments Regarding Services Provided to MVNOs....          40
        3. Comments Regarding Other Regulatory Matters......          42
        4. Other Negative Comments..........................          44
    E. Comments Regarding Procedural Aspects Of this Review.          45
        1. Sufficiency of the Filings.......................          45
        2. Comments Regarding the Timing of This Review.....          46
    F. Comments Supporting Entry of the Proposed Final                48
     Judgment...............................................
VI. Conclusion..............................................          52
 

I. Introduction

    As required by the Antitrust Procedures and Penalties Act (the 
``APPA'' or ``Tunney Act''), 15 U.S.C. 16(b)-(h), the United States 
hereby responds to the public comments received about the proposed 
Final Judgment in this case regarding the proposed merger between T-
Mobile US, Inc. (``T-Mobile'') and Sprint Corporation (``Sprint''). For 
the reasons set forth below, the remedy the United States obtained 
addresses the competitive harm alleged in this action and is in the 
public interest. Accordingly, the United States recommends no 
modifications to the proposed Final Judgment.
    This remedy, now adopted by the Attorneys General of eight states 
who have joined this lawsuit \1\ and endorsed by two more through 
comments in this proceeding, promises to expand output in the mobile 
wireless market and be a boon for American consumers. The Federal 
Communications Commission has concluded that the proposed transaction, 
as modified by the FCC's own set of conditions, would be in the public 
interest.\2\ In reaching this conclusion, the FCC recognized the 
significant benefits that the proposed Final Judgment would yield. 
Commenters in this proceeding recognize these benefits as well--the 
United States received 32 comments regarding the settlement, the 
majority of which were supportive of the merger and/or the proposed 
Final Judgment.
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    \1\ The Complaint filed on July 26, 2019 was joined by the 
states of Kansas, Nebraska, Ohio, Oklahoma and South Dakota. Dkt. 
No. 1. An Amended Complaint adding the state of Louisiana as a 
plaintiff was entered on Aug. 16, 2019. Dkt. No. 28. The United 
States' Consent Motions for Leave to Amend the Complaint to add the 
states of Florida and Colorado as plaintiffs remain pending. Dkt. 
Nos. 33, 40.
    \2\ In the Matter of Applications of T-Mobile US, Inc., and 
Sprint Corporation, et al., Memorandum Opinion and Order, 
Declaratory Ruling, and Order of Proposed Modification, WT Docket 
No. 18-197, FCC 19-103 (rel. Nov. 5, 2019) (``FCC Order'').
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    The proposed Final Judgment provides for a substantial divestiture 
which, when combined with the mobile wireless spectrum already owned by 
DISH Network Corp. (``DISH''), will enable DISH to enter the market as 
a new 5G mobile wireless services provider and a fourth nationwide 
facilities-based wireless carrier. T-Mobile and Sprint must divest to 
DISH Sprint's prepaid businesses, including more than 9 million Boost 
Mobile, Virgin Mobile, and Sprint-branded prepaid subscribers, and make 
available to DISH more than 400 employees currently running these 
businesses. The proposed settlement also provides for the divestiture 
of certain spectrum assets to DISH, and it requires T-Mobile and Sprint 
to make available to DISH at least 20,000 cell sites and hundreds of 
retail locations. T-Mobile must also provide DISH with robust access to 
the T-Mobile network for a period of seven years while DISH builds out 
its own 5G network.
    The United States expects the proposed Final Judgment will provide 
substantial long-term benefits for American consumers by ensuring that 
large amounts of currently unused or underused spectrum are made 
available to American consumers in the form of advanced 5G networks 
that this proposed Final Judgment will help facilitate. Under 
commitments made to the FCC that have been incorporated into the 
proposed Final Judgment, DISH, which has been joined as a defendant in 
this action, is required to bring its existing spectrum resources 
online in a nationwide, greenfield 5G wireless network or risk 
substantial penalties at the FCC and in this Court. Under T-Mobile's 
commitments to the FCC, which are also incorporated into the proposed 
Final Judgment, the merged firm will combine T-Mobile's and Sprint's 
existing complementary spectrum resources and build out a 5G network to 
deliver network capacity that exceeds the sum of what either carrier 
could achieve on its own. Additionally, T-Mobile, Sprint, and DISH must 
support remote SIM provisioning and eSIM technology, which have the 
potential to lower barriers to entry and increase the options available 
to consumers.
    The proposed Final Judgment also includes several temporary 
provisions to protect against a decline in near-term competition during 
the transition period. To facilitate DISH's transition to an 
independent wireless network, the proposed Final Judgment requires T-
Mobile and Sprint to enter into a full mobile virtual network operator 
agreement (``Full MVNO Agreement'') with DISH at extremely favorable 
terms. This agreement will enable DISH to operate as a Full MVNO, 
initially using the T-Mobile network to carry its subscribers' traffic 
and shifting this traffic to its own network facilities as it deploys 
them. The unprecedented required divestitures and related obligations 
in the proposed Final Judgment are intended to ensure that DISH can 
begin to offer competitive services and become an independent and 
vigorous competitor in the retail mobile wireless service market in 
which the proposed merger would otherwise lessen competition. Finally, 
the proposed Final Judgment requires that T-Mobile and Sprint extend 
certain current Mobile Virtual Network Operator (``MVNO'') agreements 
until the expiration of the Final Judgment, maintaining the status quo 
until DISH's network becomes a potential option for MVNOs.
    The comments that the United States received reflect a wide array 
of views. After careful consideration of these comments, the United 
States has determined that nothing in them casts doubt on its 
conclusion that the public interest is well-served by the proposed 
remedy. In accordance with the Court's order granting the Unopposed 
Motion of the United States to Excuse Federal Register Publication of 
Comments,\3\ the United States is publishing the comments and this 
response on the Antitrust Division's website and is submitting to the 
Federal Register this response and the website address at which the 
comments may be viewed and downloaded. Following Federal Register 
publication, the United States will move the Court to enter the 
proposed Final Judgment.
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    \3\ Minute Order, Dkt. No. 41 (Nov. 5, 2019) (granting motion to 
excuse publication of the full text of each comment in the Federal 
Register).

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[[Page 61642]]

II. Procedural History

    On April 29, 2018, T-Mobile and Sprint, together with their parent 
entities Deutsche Telekom AG (``Deutsche Telekom'') and SoftBank Group 
Corp. (``SoftBank''), agreed to combine their respective businesses in 
an all-stock transaction.\4\ On July 26, 2019, the United States filed 
a civil antitrust Complaint seeking to enjoin the proposed transaction 
because it would substantially lessen competition for retail mobile 
wireless services in the United States, in violation of Section 7 of 
the Clayton Act, 15 U.S.C. 18.
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    \4\ Deutsche Telekom, T-Mobile, SoftBank, Sprint, and DISH are 
referred to collectively as ``Defendants.''
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    Simultaneously with the filing of the Complaint, the United States 
filed a proposed Final Judgment and a Stipulation signed by the parties 
that consents to entry of the proposed Final Judgment after compliance 
with the requirements of the Tunney Act.\5\ The United States 
subsequently filed a Competitive Impact Statement describing the 
transaction and the proposed Final Judgment. The United States caused 
the Complaint, the proposed Final Judgment, and Competitive Impact 
Statement to be published in the Federal Register on August 12, 2019, 
see 84 FR 39862 (Aug. 12, 2019), and caused notice regarding the same, 
together with directions for the submission of written comments 
relating to the proposed Final Judgment, to be published in The 
Washington Post on August 3-9, 2019.\6\ The 60-day period for public 
comment ended on October 11, 2019.
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    \5\ See Stipulation and Order, Dkt. No. 2-1; Proposed Final 
Judgment, Dkt. No. 2-2 (``PFJ'').
    \6\ On Sept. 6, the United States filed a Notice of 
Determinative Documents, as required by 15 U.S.C. 16(b), along with 
an accompanying motion to file these documents with limited 
redactions of confidential information. See Dkt. No. 31. This motion 
remains pending. The redacted versions of these documents have been 
available to the public since before the Competitive Impact 
Statement was filed on July 30, 2019. Dkt. No. 20.
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III. Standard of Judicial Review

    The Clayton Act, as amended by the APPA, requires that proposed 
consent judgments in antitrust cases brought by the United States be 
subject to a 60-day comment period, after which the Court shall 
determine whether entry of the proposed final judgment ``is in the 
public interest.'' 15 U.S.C. 16(e)(1). In making that determination, 
the Court, in accordance with the statute as amended in 2004, is 
required to consider:

    (A) the competitive impact of such judgment, including 
termination of alleged violations, provisions for enforcement and 
modification, duration of relief sought, anticipated effects of 
alternative remedies actually considered, whether its terms are 
ambiguous, and any other competitive considerations bearing upon the 
adequacy of such judgment that the court deems necessary to a 
determination of whether the consent judgment is in the public 
interest; and
    (B) the impact of entry of such judgment upon competition in the 
relevant market or markets, upon the public generally and 
individuals alleging specific injury from the violations set forth 
in the complaint including consideration of the public benefit, if 
any, to be derived from a determination of the issues at trial.

15 U.S.C. 16(e)(1)(A) & (B). In considering these statutory factors, 
the Court's inquiry is necessarily a limited one as the government is 
entitled to ``broad discretion to settle with the defendant within the 
reaches of the public interest.'' United States v. Microsoft Corp., 56 
F.3d 1448, 1461 (D.C. Cir. 1995); United States v. U.S. Airways Grp., 
Inc., 38 F. Supp. 3d 69, 75 (D.D.C. 2014) (explaining that the 
``court's inquiry is limited'' in Tunney Act settlements); United 
States v. InBev N.V./S.A., No. 08-1965 (JR), 2009 U.S. Dist. LEXIS 
84787, at *3 (D.D.C. Aug. 11, 2009) (noting that a court's review of a 
consent judgment is limited and only inquires ``into whether the 
government's determination that the proposed remedies will cure the 
antitrust violations alleged in the complaint was reasonable, and 
whether the mechanism to enforce the final judgment are clear and 
manageable'').
    As the U.S. Court of Appeals for the District of Columbia Circuit 
has held, under the APPA a court considers, among other things, the 
relationship between the remedy secured and the specific allegations in 
the government's complaint, whether the proposed final judgment is 
sufficiently clear, whether its enforcement mechanisms are sufficient, 
and whether it may positively harm third parties. See Microsoft, 56 
F.3d at 1458-62. With respect to the adequacy of the relief secured by 
the proposed final judgment, a court's role is ``not to make de novo 
determination of facts and issues.'' United States v. W. Elec. Co., 993 
F.2d 1572, 1577 (DC Cir. 1993) (quotation marks omitted); see also 
Microsoft, 56 F.3d at 1460-62; United States v. Alcoa, Inc., 152 F. 
Supp. 2d 37, 40 (D.D.C. 2001); United States v. Enova Corp., 107 F. 
Supp. 2d 10, 16 (D.D.C. 2000); InBev, 2009 U.S. Dist. LEXIS 84787, at 
*3. Instead, ``[t]he balancing of competing social and political 
interests affected by a proposed antitrust consent decree must be left, 
in the first instance, to the discretion of the Attorney General.'' W. 
Elec. Co., 993 F.2d at 1577 (quotation marks omitted). ``The court 
should bear in mind the flexibility of the public interest inquiry: The 
court's function is not to determine whether the resulting array of 
rights and liabilities is one that will best serve society, but only to 
confirm that the resulting settlement is within the reaches of the 
public interest.'' Microsoft, 56 F.3d at 1460 (quotation marks 
omitted). More demanding requirements would ``have enormous practical 
consequences for the government's ability to negotiate future 
settlements,'' contrary to congressional intent. Id. at 1456. ``The 
Tunney Act was not intended to create a disincentive to the use of the 
consent decree.'' Id.
    The United States' predictions about the efficacy of the remedy are 
to be afforded deference by the Court. See, e.g., Microsoft, 56 F.3d at 
1461 (recognizing courts should give ``due respect to the Justice 
Department's . . . view of the nature of its case''); United States v. 
Iron Mountain, Inc., 217 F. Supp. 3d 146, 152-53 (D.D.C. 2016) (``In 
evaluating objections to settlement agreements under the Tunney Act, a 
court must be mindful that [t]he government need not prove that the 
settlements will perfectly remedy the alleged antitrust harms[;] it 
need only provide a factual basis for concluding that the settlements 
are reasonably adequate remedies for the alleged harms.'') (internal 
citations omitted); United States v. Republic Servs., Inc., 723 F. 
Supp. 2d 157, 160 (D.D.C. 2010) (noting ``the deferential review to 
which the government's proposed remedy is accorded''); United States v. 
Archer-Daniels-Midland Co., 272 F. Supp. 2d 1, 6 (D.D.C. 2003) (``A 
district court must accord due respect to the government's prediction 
as to the effect of proposed remedies, its perception of the market 
structure, and its view of the nature of the case''). The ultimate 
question is whether ``the remedies [obtained by the Final Judgment are] 
so inconsonant with the allegations charged as to fall outside of the 
`reaches of the public interest.' '' Microsoft, 56 F.3d at 1461 
(quoting W. Elec. Co., 900 F.2d at 309).
    Moreover, Congress limited the court's role under the APPA to 
reviewing the remedy in relationship to the violations that the United 
States has alleged in its complaint, and did not authorize the court to 
``construct [its] own hypothetical case and then evaluate the decree 
against that case.'' Microsoft, 56 F.3d at 1459; see also U.S. Airways, 
38 F. Supp. 3d at 75 (noting that the court must simply determine 
whether there is a factual foundation for the government's decisions 
such that its conclusions regarding the proposed

[[Page 61643]]

settlements are reasonable); InBev, 2009 U.S. Dist. LEXIS 84787, at *20 
(``the `public interest' is not to be measured by comparing the 
violations alleged in the complaint against those the court believes 
could have, or even should have, been alleged''). Because the ``court's 
authority to review the decree depends entirely on the government's 
exercising its prosecutorial discretion by bringing a case in the first 
place,'' it follows that ``the court is only authorized to review the 
decree itself,'' and not ``effectively [to] redraft the complaint'' to 
inquire into other matters that the United States did not pursue. 
Microsoft, 56 F.3d at 1459-60.
    In its 2004 amendments to the APPA, Congress made clear its intent 
to preserve the practical benefits of using consent judgments in 
antitrust enforcement, Pub. L. 108-237 Sec.  221, and added the 
unambiguous instruction that ``[n]othing in this section shall be 
construed to require the court to conduct an evidentiary hearing or to 
require the court to permit anyone to intervene.'' 15 U.S.C. 16(e)(2); 
see also U.S. Airways, 38 F. Supp. 3d at 76 (indicating that a court is 
not required to hold an evidentiary hearing or to permit intervenors as 
part of its review under the Tunney Act). This language explicitly 
wrote into the statute what Congress intended when it first enacted the 
Tunney Act in 1974. As Senator Tunney explained: ``[t]he court is 
nowhere compelled to go to trial or to engage in extended proceedings 
which might have the effect of vitiating the benefits of prompt and 
less costly settlement through the consent decree process.'' 119 Cong. 
Rec. 24,598 (1973) (statement of Sen. Tunney). Courts can, and do, make 
Tunney Act determinations based solely on the competitive impact 
statement, comments filed by the public, and the United States' 
response thereto, even when there is opposition to the proposed remedy. 
A recent example is United States v. Bayer AG, in which the court 
entered the proposed Final Judgment without further factfinding despite 
opposition from a number of commenters, including several of the states 
now involved in the lawsuit seeking to enjoin the T-Mobile/Sprint 
transaction in the U.S. District Court for the Southern District of New 
York (``S.D.N.Y. Litigation''). See Order, United States v. Bayer AG, 
No. 18-1241 (D.D.C. Feb. 8, 2019); see also United States v. US 
Airways, 38 F. Supp. 3d 69, 76 (D.D.C. 2014) (entering proposed Final 
Judgment over the opposition of commenters and explaining that ``[a] 
court can make its public interest determination based on the 
competitive impact statement and response to public comments alone.'') 
(citing Enova, 107 F. Supp. 2d at 17).

IV. The Investigation and the Proposed Final Judgment

    The proposed Final Judgment is the culmination of a comprehensive, 
fifteen-month investigation conducted by the Antitrust Division of the 
U.S. Department of Justice into T-Mobile's proposed acquisition of 
Sprint. The proposed Final Judgment addresses and ameliorates the harms 
alleged in the Complaint by enabling DISH's entry as a fourth 
nationwide facilities-based wireless competitor, expediting deployment 
of advanced 5G networks for American consumers, and providing other 
relief. The proposed Final Judgment has several components, by which 
the parties agreed to abide during the pendency of the Tunney Act 
proceeding, and which the Court ordered in the Stipulation and Order of 
July 29, 2019, Dkt. No. 16.
    Divestiture of Sprint's Prepaid Businesses: Under the proposed 
Final Judgment, T-Mobile must divest to DISH Sprint's prepaid retail 
wireless service businesses and provide DISH an exclusive option to 
acquire cell sites and retail stores decommissioned by the merged firm.
     Prepaid Assets. The proposed Final Judgment requires T-
Mobile to divest to DISH almost all of Sprint's prepaid wireless 
businesses,\7\ including the Boost-branded, the Virgin-branded, and the 
Sprint-branded businesses. These Prepaid Assets, coupled with required 
network support from T-Mobile described more fully below, will provide 
an existing business, with assets including customers, employees, and 
intellectual property, that will enable DISH to offer retail mobile 
wireless service. Acquiring this existing business will enhance DISH's 
incentives to invest in a robust facilities-based network.
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    \7\ The divestiture does not include subscribers that Virgin 
Mobile serves under the Assurance Wireless brand as part of the 
federally subsidized Lifeline program administered by the FCC. The 
baseline Assurance Wireless plan, which includes unlimited voice and 
text and a fixed allotment of data, is free to qualifying 
subscribers. Virgin Mobile receives a subsidy from the FCC for each 
of these subscribers that it serves. Subscribers may also purchase 
additional data for a fee. Because Virgin Mobile's revenue for 
Assurance Wireless subscribers comes primarily from federal 
subsidies rather than user fees, this segment of the market does not 
raise the same competitive issues as the unsubsidized prepaid 
segment. Moreover, T-Mobile has publicly committed to maintaining 
the Assurance Wireless service indefinitely, barring material 
changes to the Lifeline program. See Letter from T-Mobile CEO John 
Legere to Rep. Tony Cardenas (Mar. 6, 2019), available at https://cardenas.house.gov/sites/cardenas.house.gov/files/3-6-19%20T-MOBILE%20RESPONSE%20%20Final%20Cardenas%20Response%20030619%200908%20am%20est_Executed%20%28002%29%281%29.pdf. The settlement is not 
affected by recent news reports concerning Sprint's compliance with 
the Lifeline program's requirements because the Lifeline customers 
are not included in the divestiture. The divestitures also do not 
include Sprint's prepaid customers receiving services through its 
Swiftel and Shentel affiliates, due to contractual obligations.
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     800 MHz Spectrum Licenses. The proposed Final Judgment 
further requires T-Mobile to divest to DISH Sprint's 800 MHz spectrum 
licenses. This spectrum would add to DISH's existing spectrum assets in 
order to ensure DISH has sufficient spectrum to provide mobile wireless 
service to customers.\8\
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    \8\ DISH may, at its option, elect not to acquire the spectrum 
if DISH can meet certain network buildout and service requirements 
without it. See infra at 23. In such case, T-Mobile will auction the 
800 MHz spectrum licenses to any person who is not already a 
national facilities-based wireless carrier.
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     Cell Sites and Retail Stores. The proposed Final Judgment 
also requires T-Mobile to provide to DISH an exclusive option to 
acquire all cell sites and retail store locations being decommissioned 
by the merged firm. This requirement will enable DISH to utilize such 
existing cell sites and retail stores that are useful to DISH in 
building out its own wireless network and providing mobile wireless 
service to consumers.
     Transition Services. At DISH's option, T-Mobile and Sprint 
shall enter into one or more transition services agreements to provide 
billing, customer care, SIM card procurement, device provisioning, and 
all other services used by the Prepaid Assets prior to the date of 
their transfer to DISH for an initial period of up to two years after 
transfer. Such transition services will enable DISH to use the Prepaid 
Assets as quickly as possible and will help prevent disruption for 
Boost, Virgin, and Sprint prepaid customers as the businesses are 
transferred to DISH.
    The divestiture of Sprint's prepaid businesses must be completed in 
such a way as to satisfy the United States in its sole discretion that 
it can and will be operated by DISH as a viable, ongoing business that 
can compete effectively in the retail mobile wireless service market. 
DISH is required to offer retail mobile wireless services, including 
offering nationwide postpaid retail mobile wireless service within one 
year of the closing of the sale of the Prepaid Assets.\9\ As set forth 
in the Stipulation

[[Page 61644]]

and Order, DISH has agreed to be joined to this action for purposes of 
the divestiture. Including DISH is appropriate because the United 
States has determined that DISH is a necessary party to effectuate the 
relief obtained; the divestiture package was crafted specifically 
taking into consideration DISH's existing assets and capabilities, and 
divesting the package to another purchaser would not preserve 
competition. Thus, as discussed above, the proposed Final Judgment 
imposes certain obligations on DISH to ensure that the divestitures 
take place expeditiously and that DISH meet certain deadlines in 
building out and operating its own mobile wireless services network to 
provide competitive retail mobile wireless service.
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    \9\ To ensure that DISH and T-Mobile remain independent 
competitors, Section XV of the proposed Final Judgment prohibits T-
Mobile from reacquiring from DISH any part of the Divestiture 
Assets, other than a limited carveout for T-Mobile to lease back a 
small amount of spectrum for a two-year period. Further, Section XV 
of the proposed Final Judgment prohibits DISH from selling, leasing, 
or otherwise providing the right to use the Divestiture Assets to 
any national facilities-based mobile wireless carrier. These 
provisions ensure that T-Mobile and DISH cannot undermine the 
purpose of the proposed Final Judgment by later entering into a new 
transaction, with each other or with another competitor, that would 
reduce the competition that the divestitures have preserved.
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    Full MVNO Agreement: The proposed Final Judgment requires T-Mobile 
and Sprint to enter into a Full MVNO Agreement with DISH for a term of 
no fewer than seven years. Under the agreement outlined in the proposed 
Final Judgment, T-Mobile and Sprint must permit DISH to operate as an 
MVNO on the merged firm's network on commercially reasonable terms that 
are approved by the Department of Justice and to resell the merged 
firm's mobile wireless service. As DISH deploys its own mobile wireless 
network, T-Mobile and Sprint must also facilitate DISH operating as a 
Full MVNO by providing the necessary network assets, access, and 
services. These requirements will enable DISH to begin operating as an 
MVNO as quickly as possible after entry of the Final Judgment, and 
provide DISH the support it needs to offer retail mobile wireless 
service to consumers while building out its own mobile wireless 
network.\10\ They will also permit DISH to begin to market itself as a 
national retail mobile wireless provider immediately after the 
divestiture closes.
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    \10\ To guard against the possibility that implementation and 
execution of the proposed Final Judgment and any associated 
agreements between T-Mobile and DISH could facilitate coordination 
or other anticompetitive behavior during the interim period before 
DISH becomes fully independent of T-Mobile, T-Mobile and DISH are 
required to implement firewall procedures to prevent each company's 
confidential business information from being used by the other for 
any purpose that could harm competition. T-Mobile and DISH submitted 
their respective firewall procedures to the United States on Sept. 
10, 2019.
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    Notably, T-Mobile will provide DISH with a broader array of rights 
under the Full MVNO Agreement than wholesale providers generally grant 
to their partners in traditional MVNO agreements. This will benefit 
competition and American consumers. In particular, traditional MVNO 
agreements generally do not permit the MVNO partner to construct its 
own network facilities and carry a portion of its traffic on these 
facilities while relying on the wholesale provider to carry the 
remainder of the MVNO's traffic. The Full MVNO Agreement will provide 
DISH with this ability. In addition, unlike traditional MVNO 
agreements, full MVNO agreements grant the MVNO control over a broader 
range of technological components, which allow the MVNO to manage the 
customer relationship more directly.\11\ By providing these 
capabilities, full MVNO agreements promise to enable more robust 
competition than traditional MVNO agreements have in the past.\12\ The 
Full MVNO Agreement in this case will allow DISH to begin competing 
with the other carriers in short order and will facilitate DISH's 
transition into a full, facilities-based mobile wireless service 
provider.\13\
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    \11\ Full MVNO agreements have been used to enable entry in 
wireless markets outside of the United States as well. See European 
Commission, DG Competition, Case M.7758-Hutchinson 3D Italy/Wind/JV 
Sec.  5.2.4 (Jan. 1, 2016) (``So-called `full MVNOs' typically do 
not have radio network access or spectrum, but own some of the core 
infrastructure, issue their own SIM cards, have network codes, a 
database of customers and back-office functions to manage customer 
relations.''), available at https://ec.europa.eu/competition/mergers/cases/decisions/m7758_2937_3.pdf.
    \12\ For example, cable provider Altice has launched a wireless 
service based on an infrastructure-based MVNO agreement that it 
plans to leverage to compete with facilities-based carriers across a 
variety of geographic areas. See Letter to Marlene H. Dortch (FCC) 
from Jennifer L. Richter, WT Docket No. 18-197 (June 6, 2019) 
(``Altice's model to enter the U.S. wireless market by investing in 
wireless core infrastructure and utilizing a full infrastructure 
mobile virtual network operator (`MVNO') will position Altice to 
provide true competition in the retail markets, providing 
significant benefits for consumers in Altice's diverse markets, from 
the urban centers in New York and New Jersey to the rural 
communities in West Virginia and Texas.''), available at https://ecfsapi.fcc.gov/file/10607282312243/Altice%20USA%20Inc.%20-%20Ex%20Parte%206.4.19%20Meetings.pdf.
    \13\ Given the difference between traditional MVNO agreements 
and Full MVNO agreements like the one at issue here, comparisons 
between DISH and traditional MVNOs that have failed in the past are 
inapposite. See, e.g., RWA Comment (Exhibit 24) at 6. Similarly, CWA 
is incorrect in suggesting that there is a ``mismatch'' between the 
Complaint and the remedy. CWA Comment (Exhibit 10) at 1. The 
Complaint alleges that the competitive constraint imposed by 
traditional MVNOs is limited, while the remedy will allow DISH to 
enter as a Full MVNO and ultimately transition into a facilities-
based carrier. See also FCC Order ] 205 (finding that ``generalized 
references to prior Commission decisions regarding the competitive 
significance of MVNOs fail to account for the unique aspects of the 
wholesale agreement required by the Boost Divestiture Conditions'').
---------------------------------------------------------------------------

    Facilities-Based Entry and Expansion: The proposed Final Judgment 
requires T-Mobile and Sprint to comply with all network build 
commitments made to the Federal Communications Commission (FCC) \14\ 
related to their merger or the divestiture to DISH as of the date of 
entry of the Final Judgment, subject to verification by the FCC.\15\ 
The FCC concluded that the transaction, as modified by these 
commitments, would ``result in a number of benefits,'' including ``the 
deployment of a highly robust nationwide 5G network'' and 
``substantially increased coverage and capacity (and in turn, user 
speeds and cost structure) compared to the standalone companies.'' \16\ 
The FCC's order contains a comprehensive Technical Appendix detailing 
the benefits of T-Mobile's post-merger network plan.\17\ The commenters 
in this proceeding generally do not attempt to criticize T-Mobile's 
network build commitments or the associated benefits they are expected 
to bring to consumers.
---------------------------------------------------------------------------

    \14\ The FCC conducted its own independent review of this 
transaction and concluded that the transfer of licenses from Sprint 
to T-Mobile is in the public interest. See FCC Order ] 4. As part of 
its review, the FCC accepted T-Mobile's voluntary commitments on 
various elements of its post-merger plans, including with respect to 
the post-merger buildout of its 5G network. Id. ]] 25-32. In 
accepting T-Mobile's voluntary commitments in its order, the FCC has 
transformed them into legally binding commitments. Id. ] 388.
    \15\ See Letter to Marlene H. Dortch (FCC) from Nancy J. Victory 
and Regina M. Keeney (Counsel for T-Mobile and Sprint, 
respectively), WT Docket No. 18-197, Attachment 1 (May 20, 2019), 
available at https://www.fcc.gov/sites/default/files/t-mobile-us-sprint-letter-05202019.pdf.
    \16\ FCC Order ] 236.
    \17\ Id. Technical App'x ]] 31-42 (explaining complementarities 
between the two firms' spectrum holdings, potential efficiencies 
regarding cell site equipment deployment, and the merger's benefits 
to network capacity).
---------------------------------------------------------------------------

    In turn, DISH is required to comply with the June 14, 2023 AWS-4, 
700 MHz, H Block, and Nationwide 5G Broadband network build commitments 
made to the FCC on July 26, 2019, subject to verification by the 
FCC.\18\ The FCC concluded that modifying DISH's spectrum licenses to 
include these commitments would be in the public interest and has 
directed its Wireless Telecommunications Bureau to do so once the 
divestiture of Boost has been

[[Page 61645]]

consummated.\19\ Incorporating these obligations into the proposed 
Final Judgment is intended to increase the incentives for the merged 
firm to achieve the promised efficiencies from the merger and for DISH 
to build out its own national facilities-based mobile wireless network 
to replace the competition lost as a result of Sprint being acquired by 
T-Mobile. Increasing DISH's incentives to complete the buildout of a 
fourth standalone 5G nationwide wireless network also serves to 
decrease the likelihood of anticompetitive coordinated effects that may 
arise out of the merger.\20\
---------------------------------------------------------------------------

    \18\ See Letter to Donald Stockdale (FCC) from Jeffrey H. Blum 
(DISH), Attachment A (July 26, 2019) (``Blum July 26, 2019 
Letter''), available at https://www.fcc.gov/sites/default/files/dish-letter-07262019.pdf.
    \19\ FCC Order ] 365.
    \20\ See Complaint ] 5 (alleging that, absent the remedy, ``the 
merger likely would make it easier for the three remaining national 
facilities-based mobile wireless carriers to coordinate their 
pricing, promotions, and service offerings''); see also id. ]] 21-
22. Notably, the FCC ``d[id] not conclude that the likelihood of 
coordination would increase post-transaction.'' See FCC Order ] 186.
---------------------------------------------------------------------------

    600 MHz Spectrum Deployment: The proposed Final Judgment requires 
DISH and T-Mobile to enter into good-faith negotiations to allow T-
Mobile to lease some or all of DISH's 600 MHz spectrum for use in 
offering mobile wireless services to its subscribers. Such an agreement 
is expected to expand output by making the 600 MHz spectrum available 
for use by consumers even before DISH has completed building out its 
network, and would assist T-Mobile in transitioning consumers to its 5G 
network.
    MVNO Requirements: The proposed Final Judgment obligates T-Mobile 
and Sprint to extend all of their current MVNO agreements until the 
expiration of the proposed Final Judgment. This obligation will ensure 
that T-Mobile's and Sprint's MVNO partners remain options for the 
consumers who currently use them. This will also permit T-Mobile's and 
Sprint's MVNO partners to retain the benefits of their existing 
agreements until the expiration of the proposed Final Judgment, by 
which time DISH is expected to have become an additional provider of 
wireless services.
    T-Mobile's and DISH's eSIM Obligations: The proposed Final Judgment 
requires T-Mobile and DISH to support eSIM technology and prohibits T-
Mobile and DISH from discriminating against devices based on their use 
of remote SIM provisioning or use of eSIM technology. The more 
widespread use of eSIMs and remote SIM provisioning may help DISH 
attract consumers as it launches its mobile wireless business. These 
provisions are intended to increase the disruptiveness of DISH's entry 
by making it easier for consumers to switch between wireless carriers 
(particularly between the merged firm and DISH) and to choose a 
provider that does not have a nearby physical retail location, thus 
lowering the cost of DISH's entry and expansion.\21\
---------------------------------------------------------------------------

    \21\ The FCC has recognized the benefits of eSIM technology and 
the potential for this condition to promote competition among mobile 
wireless service providers. See id. ] 206 (``[R]equirements related 
to the use of eSIM will tend to lower switching costs for wireless 
consumers, increasing the ability of Boost to win subscribers from 
T-Mobile and, in turn, Boost's ability to constrain pricing for T-
Mobile's brands.'').
---------------------------------------------------------------------------

V. Summary of Public Comments and the United States' Response

    The United States received 32 comments from different categories of 
commenters, the majority of which were supportive of the merger and/or 
the proposed final judgment. The commenters include: The Advanced 
Communication Law & Policy Institute; the American Antitrust Institute; 
Americans for Tax Reform; the Asian Business Association; Attorneys 
General for the States of Utah and Arkansas; Mr. Daniel M. Bellemare; 
the CalAsian Chamber of Commerce; the California Emerging Technology 
Fund; the Center for Individual Freedom; the Communications Workers of 
America; the Competitive Enterprise Institute; Economics Professors 
(Nicholas Economides, John Kwoka, Thomas Philipon, Robert Seamans, Hal 
Singer, Marshall Steinbaum, and Lawrence J. White); the Enterprise 
Wireless Alliance; the Greater Kansas Chamber of Commerce; Mr. Edward 
S. Hasten; the International Center for Law & Economics; the National 
Diversity Coalition; the National Hispanic Caucus of State Legislators; 
the National Puerto Rican Chamber of Commerce; NTCH, Inc.; the Overland 
Park Chamber of Commerce; a coalition of advocacy groups (Public 
Knowledge, Consumer Reports, Electronic Frontier Foundation, and New 
America's Open Technology Institute); Randolph May and Seth Cooper of 
the Free State Foundation; the Rural Wireless Association; Scott 
Wallsten of the Technology Policy Institute; Tech Freedom; Members of 
the United States House of Representatives (Representatives Anna G. 
Eshoo, Billy Long, Adam Smith, Doug Lamborn, Gregory W. Meeks, Roger W. 
Marshall, Suzan DelBene, Dan Newhouse, Anthony G. Brown, Ron Estes, 
Mike Thompson, Blaine Luetkemeyer, and Kurt Schrader); Vermont 
Telephone Co.; Viaero Wireless; Voqal, Inc.; Mr. R. Bruce Williamson; 
and Mr. Josh Wool.
    The comments can be grouped into categories: (1) Comments that fail 
to acknowledge the context of this Court's Tunney Act review; (2) 
comments regarding DISH's viability as a competitor; (3) comments 
regarding the enforceability of the proposed Final Judgment; (4) other 
comments opposing entry of the proposed Final Judgment; (5) comments 
regarding procedural aspects of this review; and (6) other comments 
supporting entry of the proposed Final Judgment.

A. Comments That Fail To Acknowledge the Context of Tunney Act Review

    A number of comments do not actually address the question presented 
to this Court, which is whether or not entry of the United States' 
proposed Final Judgment remedy is in the public interest under the 
Tunney Act. If these commenters acknowledge the Tunney Act at all, they 
make arguments that do not consider the governing legal standards 
discussed above, or the fact that the allegations in the United States' 
complaint have not been tested in any court. Nor do they acknowledge 
the benefits to the public from the merger itself. Several commenters 
presuppose that the standard relevant here is the same standard 
governing how a court is to fashion a remedy after an antitrust 
violation has been proven in court.\22\ As discussed above, however, 
this is not the standard Congress and case law prescribe for courts 
reviewing settlements under the Tunney Act. Instead, courts recognize 
that a proposed final judgment necessarily represents a compromise 
between the parties, and give deference to the United States' views of 
the likely effects of the settlement.
---------------------------------------------------------------------------

    \22\ See CWA Comment (Exhibit 10) at 6 and n.10 (quoting a 
statement in the Antitrust Division's remedies guide that ``The 
relief in an antitrust case must be `effective to redress the 
violations,' '' which quotes Ford Motor Co. v. United States, 405 
U.S. 562, 573 (1972), a case addressing post-trial relief) (emphasis 
added); Economics Professors Comment (Exhibit 12) at 2 (referring to 
``restor[ing] ``the ex ante competitive conditions in the affected 
antitrust product markets.'').
---------------------------------------------------------------------------

    Entry of the proposed Final Judgment here is fully in keeping with 
established Tunney Act standards. In United States v. US Airways, Judge 
Kollar-Kotelly entered the proposed Final Judgment in the merger of 
U.S. Airways and American Airlines over the objections of commenters. 
While noting that the ``the Final Judgment does not create a new 
independent competitor nor replicate American's capacity expansion 
plans nor affirmatively preserve the Advantage Fares program,'' the 
court credited the United States' ``predict[ion] that it will impede 
the airline industry's

[[Page 61646]]

evolution toward a tighter oligopoly.'' \23\ By reducing slot 
concentration at Reagan National, the settlement provided low-cost 
carriers (``LCCs'') ``with substantial assets at key airports,'' and 
the Court credited the United States' prediction that ``providing LCCs 
with these otherwise unavailable opportunities will create incentives 
for LCCs to invest in new capacity, expand into new markets, and 
provide more meaningful system-wide competition to the three remaining 
legacy airlines.'' \24\ Ultimately, the Court found that the ``United 
States has provided a reasonable basis for concluding that the 
settlement will mitigate the anticompetitive effects of combining two 
of the remaining legacy airlines.'' \25\
---------------------------------------------------------------------------

    \23\ US Airways, 38 F. Supp. 3d at 77.
    \24\ Id. at 78.
    \25\ Id. at 79.
---------------------------------------------------------------------------

    In United States v. Bayer AG, Judge Boasberg entered the proposed 
Final Judgment, over commenters' criticisms similar to those here.\26\ 
Additionally, in United States v. Abitibi-Consolidated, Inc., Judge 
Collyer entered the proposed Final Judgment where the ``United States 
has provided a factual basis for concluding that the . . . divestiture 
was reasonably adequate.'' \27\ ``Irrespective of whether that 
conclusion [was] correct,'' the court recognized that the ``United 
States has established an `ample foundation for [its] judgment call' 
and thus shown `its conclusion [was] reasonable.' '' \28\
---------------------------------------------------------------------------

    \26\ In Bayer, as here, commenters questioned both the ability 
of the divestiture buyer, BASF, ``to succeed with the divested 
assets'' and its ``incentives to compete aggressively against the 
merged company.'' See Response of the United States to Public 
Comments on the Proposed Final Judgment at 14, United States v. 
Bayer AG, No. 1:18-cv-1241 (JEB) (D.D.C. Jan. 29, 2019). There, as 
here, the United States ``carefully considered these issues in 
crafting the proposed remedy'' and required the merged company to 
make an appropriate divestiture and to provide an array of 
transitional services, all while ``specifically taking into account 
[the divestiture buyer's] existing assets and capabilities.'' Id. 
And while there, as here, it was ``impossible to predict with 
certainty how well [the buyer, BASF] will perform with the divested 
assets (just as [the merged firm's] own performance with those 
assets absent the merger is not certain),'' the proposed remedy 
``ensure[d]'' that it ``will be as well-positioned as possible and 
have the necessary incentives'' to ``replace the competition that 
otherwise would be lost through the merger.'' Id.
    \27\ United States v. Abitibi-Consolidated, Inc., 584 F. Supp. 
2d 162, 166 (D.D.C. 2008).
    \28\ Id. (quoting Microsoft, 56 F.3d at 1461).
---------------------------------------------------------------------------

    Almost all the comments opposing the proposed Final Judgment also 
ignore the benefits to the public from this merger.\29\ For example, 
the Economics Professors attempt to dismiss the value of increasing 
capacity by arguing that the merger will not result in reductions in 
marginal cost. Specifically, they state that ``the merger purportedly 
will increase capacity . . . [but] there is no explanation of how a 
purported increase in capacity reduces the merged firm's marginal cost 
of serving the next customer or the next neighborhood.'' \30\ In fact, 
the relationship between an increase in capacity and a reduction in 
marginal cost is a well-understood economic phenomenon in industries 
with capacity constraints. In the market for mobile wireless services, 
the marginal cost of an additional customer on a capacity-constrained 
network includes the costs of the congestion caused by adding that 
customer to the network. Thus, a merger-induced expansion of capacity 
would result in a reduction in marginal costs for a network facing 
congestion.\31\
---------------------------------------------------------------------------

    \29\ See U.S. Department of Justice, Antitrust Division Policy 
Guide to Merger Remedies, at 2 (Oct. 2004), https://www.justice.gov/sites/default/files/atr/legacy/2011/06/16/205108.pdf (``2004 
Remedies Guide'') (``Effective remedies preserve the efficiencies 
created by a merger, to the extent possible, without compromising 
the benefits that result from maintaining competitive markets.'').
    \30\ Economics Professors Comment (Exhibit 12) at 6.
    \31\ Notably, the FCC found that ``New T-Mobile will have 
significantly lower marginal costs for providing advanced wireless 
services.'' FCC Order ] 236.
---------------------------------------------------------------------------

    Other commenters, however, recognize the substantial benefits that 
the proposed Final Judgment promises to bring. The Advanced 
Communications Law & Policy Institute (ACLP) at New York Law School 
states that it supports entry of the proposed Final Judgment because it 
believes the public interest benefits from the merger ``are 
substantial,'' and because the settlement ``will ensure that valuable 
spectrum resources will finally be put to productive use by Dish 
Network, an entity that has long lingered on the periphery of the U.S. 
wireless space.'' \32\ In ACLP's view, DISH is ``well positioned to 
become a viable player'' in wireless, not only because of its existing 
``treasure trove'' of spectrum licenses, but also because the proposed 
Final Judgment will enable DISH to ``leverage numerous resources either 
divested by or leased from the merging parties to support deployment of 
a standalone mobile service.'' \33\ ACLP further notes that, in 
addition to the fact that DISH ``finally leveraging its stockpile of 
spectrum licenses . . . is a major win for consumers and the public 
interest writ large,'' consumers also will ``likely see additional 
price and service offerings over the next few years as [DISH] rolls out 
its service and seeks to respond to and one-up its competitors.'' \34\
---------------------------------------------------------------------------

    \32\ ACLP Comment (Exhibit 1) at 4.
    \33\ Id. at 6.
    \34\ Id.
---------------------------------------------------------------------------

B. Comments Regarding DISH's Viability as a Competitor

    Several commenters object to the proposed Final Judgment on the 
basis that DISH will not be a sufficiently strong competitor to AT&T, 
Verizon, and T-Mobile. These commenters point to DISH's asset base and 
track record to support their claim that the company will lack the 
incentive and ability to compete vigorously in the mobile wireless 
market. The United States disagrees with these assertions.
1. DISH's Assets and Track Record
    Some commenters take issue with the fact that DISH has been 
acquiring spectrum for a number of years but has not yet deployed a 
network that operates over that spectrum. For example, the CWA and 
Economics Professors accuse DISH of ``warehousing'' spectrum and claim 
that DISH has missed FCC network buildout deadlines.\35\ Mr. Wool asks, 
``given DISH Network's failure to meet prior Federal Communications 
Commission (FCC) build-out requirements on its existing spectrum . . . 
how is the proposed Final Judgment consistent with `a low risk 
tolerance'?'' \36\ Several commenters point to T-Mobile's past 
criticism of DISH as a basis for questioning DISH's viability as a 
competitor.\37\
---------------------------------------------------------------------------

    \35\ CWA Comment (Exhibit 10) at 16-18; Economics Professors 
Comment (Exhibit 12) at 9.
    \36\ Wool Comment (Exhibit 32) at 3.
    \37\ See, e.g., CWA Comment (Exhibit 10) at 16; Economics 
Professors Comment (Exhibit 12) at 9; NTCH Comment (Exhibit 20) at 
9-11.
---------------------------------------------------------------------------

    Far from undermining the efficacy of the proposed Final Judgment, 
DISH's spectrum assets make it a prime candidate for entry into the 
mobile wireless market. DISH has invested more than $20 billion in 
spectrum licenses.\38\ As a result, DISH currently has far more 
spectrum at its disposal than any other company aside from the existing 
nationwide wireless carriers.\39\

[[Page 61647]]

The Division's 2004 Remedies Guide notes that ``[t]he circumstances of 
potential bidders may vary in ways that affect the scope of the assets 
each would need to compete quickly and effectively.'' \40\ DISH's 
spectrum assets provide it with the ability to compete more quickly and 
more effectively than another entrant could. The proposed Final 
Judgment promises to put this spectrum to use for the benefit of 
consumers.\41\
---------------------------------------------------------------------------

    \38\ ``DISH to Become National Facilities-Based Wireless 
Carrier'' (July 26, 2019), https://about.dish.com/2019-07-26-DISH-to-Become-National-Facilities-based-Wireless-Carrier (``DISH July 26, 
2019 Press Release'') (``These developments are the fulfillment of 
more than two decades' worth of work and more than $21 billion in 
spectrum investments intended to transform DISH into a connectivity 
company''); see also Todd Shields & Scott Moritz, Bloomberg, ``A $20 
Billion Wireless Stockpile Is the Key to T-Mobile Merger'' (July 6, 
2019), https://www.bloomberg.com/news/articles/2019-07-06/a-20-billion-wireless-stockpile-is-the-key-to-t-mobile-merger.
    \39\ FCC Communications Marketplace Report, 33 FCC Rcd 12558, 
12587 Fig. A-25 (Dec. 26, 2018), available at https://docs.fcc.gov/public/attachments/FCC-18-181A1_Rcd.pdf.
    \40\ 2004 Remedies Guide at 11.
    \41\ See ACLP Comment (Exhibit 1) at 6.
---------------------------------------------------------------------------

    These commenters' line of argument also fails to address what 
incentive DISH could have to acquire $20 billion in spectrum licenses 
and spend billions of dollars on the divestiture in this matter and 
risk billions more in fines, only to sit on these assets. The more 
logical inference, which aligns with DISH's economic incentives, is 
that DISH will deploy its spectrum and enter the mobile wireless 
market. DISH has explained to the FCC that the company has engaged in 
efforts to develop technology that operates over its spectrum but that 
it opted not to construct a 4G/LTE network at a time when 5G technology 
was on the horizon.\42\ Now that mobile wireless providers are 
beginning to deploy 5G, DISH has issued three wide-ranging requests for 
information/requests for production to vendors of wireless equipment, 
software, and services to begin the process of sourcing inputs for the 
construction of a 5G network.\43\
---------------------------------------------------------------------------

    \42\ See DBSD Services Limited, Gamma Acquisition L.L.C., and 
Manifest Wireless L.L.C.'s Consolidated Interim Construction 
Notification for AWS-4 and Lower 700 MHz E Block Licenses (filed 
Mar. 7, 2017) (``DISH March 7, 2017 Buildout Report''), available at 
https://wireless2.fcc.gov/UlsEntry/attachments/attachmentViewRD.jsp;ATTACHMENTS=1fTvdTtC8v1mzWxXqsWNxw2BFWwHpdcSQM90
fP1g21sy8CTyXHgB!-784178296!-
1151086485?applType=search&fileKey=1888085105&attachmentKey=20103063&
attachmentInd=applAttach.
    \43\ See ``DISH to release deployment services RFP for 
standalone 5G network buildout'' (Oct. 21, 2019), https://ir.dish.com/news-releases/news-release-details/dish-release-deployment-services-rfp-standalone-5g-network; Letter from Jeffrey 
Blum (DISH) to Marlene H. Dortch (FCC), WT Docket No. 18-197, at 4 
(Aug. 1, 2019) (``Blum Aug. 1, 2019 Letter''), available at https://ecfsapi.fcc.gov/file/10801235883258/2019-08-01%20DISH%20%20EX%20Parte%20WT%20Docket%20No%2018-197%20(w%20summary).pdf; see also Martha DeGrasse, Fierce Wireless, 
``Dish Casts Wide Net to Vendor Community'' (Aug. 12, 2019), https://www.fiercewireless.com/wireless/dish-casts-wide-net-to-vendor-community.
---------------------------------------------------------------------------

    DISH has not, as some commenters suggest, violated the FCC's 
construction requirements for its spectrum licenses. Those licenses 
have two relevant dates: An interim construction milestone and a final 
construction milestone. The FCC provides licensees (and in this case, 
DISH) with the choice of (1) satisfying both construction milestones, 
or (2) missing the interim milestones and agreeing to accelerate the 
final milestones by one year. DISH chose not to meet the interim 
construction milestones for its licenses, which meant that its final 
construction milestones were accelerated.\44\ These final milestones 
have not yet passed, and prior to the remedy discussions in this case, 
DISH had provided the FCC with a proposal on how it planned to meet 
them. Specifically, DISH planned to rely on the FCC's ``flexible use'' 
policy, which permits licensees to choose the technology they use to 
meet their construction milestones, in order to execute a two-phase 
network deployment plan: (1) Deploy a narrowband Internet of Things 
(``NB-IoT'') network before the final construction milestones had 
passed, and (2) use this NB-IoT network as a foundation to ultimately 
deploy a 5G network at a later date.\45\ The United States agrees with 
commenters who argue that having DISH construct a 5G network 
immediately is preferable to this two-stage plan, but any suggestion 
that DISH has violated the FCC's requirements is simply incorrect.\46\
---------------------------------------------------------------------------

    \44\ See DISH March 7, 2017 Buildout Report at 4 (certifying 
that DISH planned to meet the accelerated final construction 
milestones); Letter from Jeffrey Blum (DISH) to Donald Stockdale 
(FCC) (Sept. 21, 2018) (explaining that ``[s]uch a bridge to a 5G 
deployment is necessary because, among other things, equipment/
installation availability for full standalone 5G (3GPP Release 16) 
will only be available after the March 2020 buildout milestones for 
our AWS-4 and E Block licenses, making it impractical for us to 
deploy 5G before such date.''), available at https://wireless2.fcc.gov/UlsEntry/attachments/attachmentViewRD.jsp?applType=search&fileKey=1089751155&attachmentKey
=20454822&attachmentInd=licAttach.
    \45\ Id. at 6-7.
    \46\ Given this background, the Economics Professors' claim that 
Dish has ``no history or presence in this industry'' is also 
incorrect. Economics Professors Comment (Exhibit 12) at 3. In 
connection with its NB-IoT plans, DISH had established relationships 
with vendors, leased towers, and acquired equipment for a core 
network. See Mike Dano, Fierce Wireless, ``DISH's First Wireless 
Partners Revealed: Ericsson and SBA'' (Nov. 8, 2019), https://www.fiercewireless.com/iot/dish-s-first-wireless-partners-revealed-ericsson-and-sba.
---------------------------------------------------------------------------

    The economics of DISH's entry under the proposed Final Judgment are 
fundamentally different--and more favorable to DISH--than what was 
available to DISH before the proposed Final Judgment. Much of the 
relief in the proposed Final Judgment is to provide DISH with assets 
and resources to make its entry as a nationwide, facilities-based 
wireless carrier easier and more certain. DISH has explained that the 
proposed Final Judgment ``will facilitate and accelerate DISH's entry 
into the wireless market as a 5G competitor by, among other things, 
enabling DISH to deploy its spectrum at the same time to provide a 
better overall 5G service, at lower cost, and on a more efficient 
deployment schedule.'' \47\ In particular, the divestiture of Sprint's 
prepaid businesses will enable DISH to serve an existing base of 9 
million subscribers. This customer base will put DISH into the wireless 
business immediately upon the closing of the divestitures, without 
first having to construct a network from scratch. DISH will have the 
option of acquiring more than 20,000 cell sites and upwards of 400 
retail locations directly from T-Mobile, further reducing the burdens 
of building out a new network. As DISH completes its network buildout, 
it will be in position to move existing subscribers onto its new 
network in short order, allowing it to immediately monetize its own 
network by shifting away from using a third-party network to serve 
subscribers. Finally, the Full MVNO Agreement will give DISH the 
flexibility to serve customers the most efficient and cost-effective 
way, whether on post-merger T-Mobile's network, DISH's new network, or 
a combination of both. In light of these changes, DISH has agreed to 
waive its ``flexible use'' rights and deploy a 5G network immediately 
rather than taking the intermediate step of deploying an NB-IoT network 
first.\48\
---------------------------------------------------------------------------

    \47\ Blum Aug. 1, 2019 Letter at 3; see also FCC Order ] 372 
(``We agree with DISH that its acquisition of Sprint's prepaid 
assets along with the set of MVNO, wholesale, and roaming rights 
agreed to with the Applicants provides DISH the means to provide 
nationwide service on a competitive 5G network.'').
    \48\ Blum July 26, 2019 Letter at 3 (``DISH will voluntarily 
waive its flexible use rights''); Blum Aug. 1, 2019 Letter at 3 
(``Rather than approaching a network build in two phases, DISH will 
be able to shift the resources it has dedicated to building out a 
narrowband Internet of Things network to a 5G network 
deployment.'').
---------------------------------------------------------------------------

    RWA raises concern over the fact that the proposed Final Judgment 
provides DISH with a degree of flexibility as to which of T-Mobile's 
assets it will ultimately acquire.\49\ RWA suggests that DISH should be 
required to purchase the 800 MHz Spectrum, regardless of whether it 
deems it necessary, as well as every one of the cell sites and retail 
locations that T-Mobile plans to decommission.\50\ Such an obligation, 
however, would be counterproductive. The proposed Final Judgment gives 
DISH the flexibility to decline purchase of the 800 MHz spectrum if it 
is able to make significant progress in deploying

[[Page 61648]]

its network without that spectrum.\51\ Likewise, the proposed Final 
Judgment provides DISH with the option to purchase only those cell 
sites and retail locations that it needs to support its network 
deployment and business plans. The proposed Final Judgment requires 
DISH to comply with specific build commitments, including relating to 
nationwide 5G.\52\ Requiring DISH to purchase assets that turn out to 
be unnecessary would increase DISH's costs and impede its entry as a 
mobile wireless provider. In contrast, by giving DISH the flexibility 
to purchase only the assets that it needs in order to comply with the 
overarching directive to meet its nationwide 5G commitment, the 
proposed Final Judgment will allow DISH's entry to proceed efficiently.
---------------------------------------------------------------------------

    \49\ RWA Comment (Exhibit 24) at 17-18.
    \50\ Id. at 18.
    \51\ While AAI claims that the 800 MHz spectrum is ``necessary 
to build out a 5G network'' (AAI Comment (Exhibit 2) at 8), the 
proposed Final Judgment recognizes that DISH may find that it is 
able to deploy a competitive network that does not rely on this 
spectrum.
    \52\ PFJ Sec.  VIII.A.
---------------------------------------------------------------------------

    Moreover, DISH will be subject to substantial penalties if it fails 
to satisfy its commitments. Failure to meet its network buildout 
obligations would cause DISH to incur penalties of up to $2.2 billion 
under its commitments to the FCC alone.\53\ Failure to meet certain 
buildout milestones would also result in ``automatic termination'' of 
some of DISH's spectrum licenses.\54\ The proposed Final Judgment 
further provides for DISH to pay a penalty of $360,000,000 if it elects 
not to purchase the 800 MHz Spectrum Licenses, unless it has already 
made significant progress in constructing its network.\55\ All of this 
would be in addition to other penalties that this Court could impose if 
it were to find DISH to be in violation of the Final Judgment.\56\
---------------------------------------------------------------------------

    \53\ Blum July 26, 2019 Letter, Attachment A at 4.
    \54\ Id. at 3-4. Thus, claims that DISH's financial penalties 
alone would be insufficient to ensure compliance are misplaced. See, 
e.g., RWA Comment (Exhibit 24) at 15-16. Nor do DISH's commitment to 
the FCC that it will not sell certain of its spectrum licenses for 
six years somehow suggests that they are planning to exit the mobile 
wireless market after that time period concludes, as RWA claims. Id. 
at 18-19. RWA provides no support for this assertion. DISH's 
commitment to the FCC merely ensures that it will maintain ownership 
of its wireless licenses while its network buildout advances.
    \55\ See PFJ Sec.  IV(B)(2).
    \56\ See id. Sec.  XVIII(A) (``The United States retains and 
reserves all rights to enforce the provisions of this Final 
Judgment, including the right to seek an order of contempt from the 
Court.'').
---------------------------------------------------------------------------

    CWA includes in its comment a declaration from engineering 
consultant Andrew Afflerbach, Ph.D., P.E., which purports to support 
CWA's criticisms of the proposed Final Judgment. Dr. Afflerbach begins 
by highlighting several potential risks that DISH will be unable to 
build a successful facilities-based mobile wireless business. He notes 
that DISH will be highly dependent on T-Mobile as an MVNO for years 
following entry of the proposed Final Judgment, and notes the 
``criticality of the MVNO agreement terms'' for DISH's success.\57\ 
However, DISH itself has explained that the Full MVNO Agreement will 
provide DISH with ``more attractive economics than traditional MVNO 
agreements, including pricing, packaging and marketing flexibility, a 
mechanism for costs to drop over time, and access to core control.'' 
\58\ The FCC likewise recognizes that ``New Boost's wholesale network 
access agreement will be unique among MVNO agreements in the industry, 
with more favorable terms and conditions that, in turn, will enable New 
Boost to more effectively constrain potential price increases.'' \59\
---------------------------------------------------------------------------

    \57\ Afflerbach Decl. ]] 7, 11.
    \58\ Blum Aug. 1, 2019 Letter at 2.
    \59\ FCC Order ] 201.
---------------------------------------------------------------------------

    Dr. Afflerbach also argues that ``DISH's execution risks are 
substantial.'' \60\ His criticisms about DISH's prospects for building 
a 5G network overstate some of the challenges that DISH faces. For 
instance, Dr. Afflerbach suggests that DISH will be disadvantaged 
because ``[h]andset equipment (i.e. smartphones) is not currently 
manufactured for DISH's spectrum bands.'' \61\ The current generation 
of smartphones, however, does support LTE service in DISH's holdings in 
the 600 MHz band (Band 71), the AWS-3 band, and the AWS-4 band 
(collectively, Band 66).\62\ This is because other established players 
like T-Mobile and Verizon each offer LTE service in one or more of 
those bands. There is no reason to believe that DISH will not similarly 
be able to find support for 5G service in at least some of its spectrum 
bands as equipment-makers design handsets for the other carriers.
---------------------------------------------------------------------------

    \60\ Afflerbach Decl. ] 36.
    \61\ Afflerbach Decl. ] 45.
    \62\ See Chris Holmes, Whistle Out, ``Cell Phone Networks and 
Frequencies Explained: 5 Things To Know'' (Oct. 14, 2019) (noting 
Verizon, AT&T and T-Mobile are currently using Band 66, and T-Mobile 
is currently using Band 71), https://www.whistleout.com/CellPhones/Guides/cell-phone-networks-and-frequencies-explained; Dan Meyer, RCR 
Wireless News, ``T-Mobile LTE network beats AT&T and Verizon with 
AWS-3 spectrum support'' (Oct. 17, 2016) (noting T-Mobile ``touting 
itself as the first domestic carrier to launch commercial services 
across the AWS-3 spectrum band''), https://www.rcrwireless.com/20161017/carriers/t-mobile-lte-network-beats-att-verizon-aws-3-spectrum-support-tag2.
---------------------------------------------------------------------------

2. DISH's Incentive and Ability To Compete
    Some commenters also question whether DISH will have the incentive 
and ability to compete vigorously in the mobile wireless marketplace. 
For example, CWA asserts that ``DISH has powerful incentives to create 
something less than a fully competitive 5G network.'' \63\ Mr. 
Bellemare claims that ``Sprint is a maverick'' but ``[w]hether DISH 
would become a maverick in a more concentrated oligopoly is by no means 
assured.'' \64\ Other commenters argue that the fact that DISH's 
wireless business will initially have only 9 million subscribers will 
inhibit its competitiveness.\65\
---------------------------------------------------------------------------

    \63\ CWA Comment (Exhibit 10) at 19.
    \64\ Bellemare Comment (Exhibit 6) at 13-14.
    \65\ See, e.g., RWA Comment (Exhibit 24) at 8 (``[T]he various 
Sprint prepaid subscriber bases, which Dish estimates to include 
approximately 9.3 million users, are a fraction of Sprint's overall 
subscriber base.''). AAI and RWA both point to the fact that DISH 
will initially serve only prepaid subscribers, which are generally 
less profitable to serve than postpaid subscribers. See AAI Comment 
(Exhibit 2) at 7; RWA Comment (Exhibit 24) at 8, 12. DISH, however, 
has committed to providing postpaid mobile wireless service within 
one year of the closing of the sale of the prepaid assets. PFJ Sec.  
IV(F). Moreover, after spending the significant resources required 
to become a mobile wireless service provider, DISH will have strong 
business incentives to serve all profitable segments of the market.
---------------------------------------------------------------------------

    As an initial matter, commenters overlook the substantial 
advantages on which DISH currently can draw to grow its wireless 
business. The fact that DISH is unburdened by any need to support a 
legacy infrastructure based on older technology and has an established 
presence in a complementary video business, may enhance its ability to 
price aggressively and attract customers. In addition, and contrary to 
the commenters' claims, the proposed Final Judgment will position DISH 
to be an effective competitor to the existing carriers. As described 
above, the merger, when combined with the proposed Final Judgment, 
promises to expand output. A significant amount of unused and underused 
spectrum will be made available by both DISH and T-Mobile for use by 
consumers within the first years following the closing of the 
divestiture. Principles of economics tell us that expanded output 
provides further downward pressure on prices moving forward. Indeed, 
competition in the wireless industry has often been driven by the 
smallest of the nationwide carriers, to the benefit of consumers.\66\

[[Page 61649]]

T-Mobile was previously branded as the maverick and had success in 
growing its share. Such a firm can discipline prices based on its 
ability and incentive to expand production rapidly using available 
capacity, or on its willingness to resist otherwise-prevailing industry 
norms to cooperate on price setting or other terms of competition.\67\ 
Moreover, even during the period in which DISH is relying on the Full 
MVNO Agreement, other mobile wireless providers will have full 
knowledge of DISH's obligations to deploy network infrastructure in the 
coming years, which itself may have a further constraining effect on 
their decision-making.
---------------------------------------------------------------------------

    \66\ Given the potential for smaller market participants to 
drive competition, RWA is simply incorrect in claiming that 
increased coordination among AT&T, Verizon, and T-Mobile will be 
``inevitable'' given that ``DISH on Day One'' will have fewer 
subscribers than Sprint and T-Mobile do today. RWA Comment (Exhibit 
24) at 13.
    \67\ Dep't of Justice & Fed Trade Comm'n, Horizontal Merger 
Guidelines Sec.  2.1.5 (2010).
---------------------------------------------------------------------------

    The Economics Professors point to T-Mobile CEO John Legere's 
statement that T-Mobile's agreement with DISH will not diminish the 
merged firm's synergies, profitability, and long-term cash generation 
as evidence that DISH will not be a disruptive competitor.\68\ This 
line of argument assumes that the remedy would have to be harmful to T-
Mobile in order to be good for consumers. In fact, T-Mobile stands to 
benefit by selling DISH wholesale access to its network, even as it 
stands to lose retail customers to DISH.\69\ The relevant question for 
the Court is not how these two competing effects net out for T-Mobile, 
but rather whether DISH will introduce new competition into the 
marketplace that will benefit consumers. In a portion of the same 
investor call that the Economics Professors do not cite, Mr. Legere 
told investors that ``it's very clear that with the spectrum that DISH 
has, with the acquisition of Boost, with the MVNO arrangement, [with] 
the transition services agreement while they build out their network, 
with the ability to get some of the decommissioned towers and stores, 
DISH has a real significant opportunity to be a very credible 
disruptive fourth wireless carrier,'' \70\ which is consistent with T-
Mobile's other public statements.\71\ Indeed, DISH has disrupted other 
established industries in the past, and disrupting the mobile wireless 
market would be a welcome continuation of that trend.\72\
---------------------------------------------------------------------------

    \68\ Economics Professors Comment (Exhibit 12) at 11.
    \69\ See T-Mobile US, Inc. (TMUS) CEO John Legere on Q2 2019 
Results--Earnings Call Transcript, Seeking Alpha, (July 29, 2019), 
at 9 (noting that the agreement ``will be accretive to our business 
because the pricing allows us to monetize DISH's access of our 
network'').
    \70\ Id. at 10.
    \71\ See, e.g., Monica Alleven, Fierce Wireless, ``T-Mobile CFO 
on Dish Rivalry: Bring It On'' (Sept. 24, 2019) (quoting T-Mobile 
CFO Braxton Carter remarks that DISH will be ``extremely viable'' 
and ``a fierce competitor, there's no doubt about it''), https://www.fiercewireless.com/wireless/t-mobile-cfo-dish-rivalry-bring-it.
    \72\ As noted in the Wall Street Journal, DISH's controlling 
shareholder, Charlie Ergen, ``has often played the role of 
disrupter.'' Drew Fitzgerald, Wall Street Journal, ``A TV Maverick 
Is Going All-In on a New Wireless Bet'' (July 27, 2019), available 
at https://www.wsj.com/articles/a-tv-maverick-is-going-all-in-on-a-new-wireless-bet-11564200000. The article notes that Mr. Ergen and 
his partners began selling ``10-foot-wide satellite dishes from a 
Denver storefront,'' then ``switched to hubcap-size dishes and took 
on cable-TV monopolies by slashing prices.'' Id. (noting the 
``service now has 12 million customers across the country and his 
controlling stake in Dish is worth about $9 billion''). DISH also 
launched ``one of the first live-TV streaming services, Sling TV, in 
early 2015.'' Id. (noting that with ``a small package of channels 
and lower price, it made it easy for millions of people to cut their 
TV bill--even many of Dish's own satellite customers''). The 
settlement enables DISH to continue its disruptive history in the 
wireless business. See id. (Ergen noting that ``with four, there's 
always somebody that will be a rabble rouser,'' and that while 
somebody ``will say I don't have enough market share,'' ``I've only 
got 9 million subs and want 10 million. That person is going to be 
more aggressive.''). See also DISH July 26, 2019 Press Release 
(``When we entered pay-TV with the launch of our first satellite in 
1995, we faced entrenched cable monopolies, and our direct 
competitor was owned by one of the largest industrial corporations 
in the world. As a new entrant, DISH encountered many skeptics who 
questioned our ability to succeed. But, customers loved the 
disruption we brought to the marketplace with innovations such as a 
100-percent digital experience, local-into-local broadcast, the DVR 
and ad-skipping. Our substantial investments, constant innovation, 
aggressive pricing and commitment to the customer led us to become 
the third largest pay-TV provider. As we enter the wireless 
business, we will again serve customers by disrupting incumbents and 
their legacy networks, this time with the nation's first standalone 
5G broadband network.'').
---------------------------------------------------------------------------

    Some commenters focus on the near-term period prior to DISH's 
construction of its forthcoming mobile wireless network. For example, 
Public Knowledge et al. claim that ``DISH will be a nonfactor, as all 
MVNOs are'' during this period.\73\ Under the terms of the proposed 
Final Judgment, DISH will be able to compete for subscribers 
immediately using the wholesale agreement and will transition into a 
full, facilities-based competitor as it constructs its planned network. 
As discussed above, the broad array of rights that T-Mobile will 
provide to DISH under the Full MVNO Agreement will empower DISH to 
become a more effective competitor than traditional MVNOs have been in 
the past. Additionally, the proposed Final Judgment's requirement that 
DISH begin offering postpaid plans within one year ensures that DISH 
will begin to restore the lost competition promptly, and, in any event, 
well before T-Mobile's commitments to the FCC expire.\74\ The favorable 
terms in the Full MVNO Agreement will provide DISH with an attractive 
cost structure, and thus, an incentive to compete immediately. DISH's 
incentive to expand its output will only increase as DISH begins to 
realize cost savings by shifting traffic from T-Mobile's network onto 
its own.\75\
---------------------------------------------------------------------------

    \73\ Public Knowledge et al. Comment (Exhibit 22) at 2; see also 
Wool Comment (Exhibit 32) at 2 (``Mr. Wool asks, ``[g]iven the time 
required for DISH Network to build a national facilities-based 
network (i.e. DISH Network has until June 2023 to construct a 
network covering 70% of the population), how does the proposed Final 
Judgment `preserve the status quo ante in affected markets.''').
    \74\ See FCC Order ] 206 (``[T]he requirement that DISH offer 
postpaid services bolsters our conclusion that the Boost divestiture 
buyer will not merely constrain price increases within the prepaid 
segment, but across the differentiated retail mobile wireless 
services market.'').
    \75\ Suggestions that DISH will find it in itself too 
comfortable as an MVNO and decline to carry out its obligations 
under the decree overlook the various ways the decree guards against 
this risk. See Economics Professors Comment (Exhibit 12) at 9 (``Why 
would Dish invest and become a facilities-based provider if the 
margins from resale are large and guaranteed for seven years?''). 
For example, the proposed Final Judgment limits the term of any 
Transition Services Agreement to two years, with the possibility of 
a third subject to approval by the United States after consultation 
with its co-Plaintiff States. PFJ Sec.  IV.A.4. Thus, DISH is 
required to wean itself from T-Mobile's transitional support in 
``billing, customer care, SIM card procurement, device provisioning, 
and all other services used by the Prepaid Assets'' by 2022 or 2023. 
The deadline of 2022 coincides with DISH's commitment to the FCC to 
offer broadband service to at least 20% of the United States 
population. Blum July 26, 2019 Letter at 2. Thus, by 2022 DISH is 
required to establish itself as an independent, facilities-based 
operator, and its achievement of these commitments will be 
supervised closely by the Monitoring Trustee. In an attempt to cast 
further doubt on DISH's plans, the Economics Professors compare DISH 
to 1&1 Drillisch, an MVNO in Germany that has announced its 
intention to become the fourth German facilities-based mobile 
wireless provider by constructing its own 5G network. Economics 
Professors Comment (Exhibit 12) at 10; see also Juan Pedro Tomas, 
RCR Wireless News, ``1&1 Drillisch Confirms Intention to Become 
Germany's Fourth Mobile Carrier'' (Jan. 25, 2019), https://www.rcrwireless.com/20190125/5g/drillisch-confirms-intention-become-germany-fourth-mobile-carrier. The Economics Professors ignore the 
fact that, since the date of the article they cite, 1&1 Drillisch 
successfully secured financing to participate in a German spectrum 
auction and won 70 MHz worth of spectrum licenses to support its 
network deployment plan. See Reuters, ``Shares in 1&1 Drillisch soar 
after Germany 5G auction'' (June 13, 2019) (``Shares in 1&1 
Drillisch surged on Thursday after it won spectrum in Germany's 5G 
mobile auction that ensured its position as a new fourth operator in 
a market that has lagged globally.''), available at https://www.reuters.com/article/germany-telecoms/shares-in-11-drillisch-soar-after-germany-5g-auction-idUSS8N22R022.
---------------------------------------------------------------------------

    Other commenters raise concerns regarding the portion of the 
country that DISH's mobile wireless network will cover and its future 
network performance. For example, RWA argues that DISH could meet its 
population-based buildout obligations while covering ``only a small 
fraction of the

[[Page 61650]]

country's geography.'' \76\ Similarly, the Economics Professors assert 
that ``because the coverage requirement is denominated in terms of 
population, not geography, it is clear that certain parts of the 
country will lose out.'' \77\ CWA argues that at a speed of 35 Mbps 
``the result will not be a bona fide fourth network, but a niche 
network closer to the limited Internet of Things (IoT) network proposed 
by DISH prior to the T-Mobile deal.'' \78\ These arguments reflect a 
misunderstanding of DISH's network build commitments. These commitments 
were incorporated into the proposed Final Judgment to increase the 
incentives for DISH to build out its own national facilities-based 
mobile wireless network.\79\ These commitments should not, however, be 
interpreted as predictions of the likely breadth of DISH's network 
coverage or its likely speed. The proposed Final Judgment does not 
dictate the scope of DISH's future investments, but rather provides 
DISH with necessary assets and appropriate incentives, and then relies 
on market forces to guide DISH's long-term decisions about where to 
target its investments. DISH may ultimately have business incentives to 
provide substantially broader coverage and faster speeds than the 
minimums required to meet its network build commitments. By focusing on 
the floors set by the proposed Final Judgment rather than the likely 
effects of the divestiture, these commenters miss the relevant inquiry.
---------------------------------------------------------------------------

    \76\ RWA Comment (Exhibit 24) at 14.
    \77\ Economics Professors Comment (Exhibit 12) at 11.
    \78\ CWA Comment (Exhibit 10) at 3.
    \79\ See Competitive Impact Statement (Dkt. No. 20) at 11-12.
---------------------------------------------------------------------------

    Separate criticisms that the proposed merger benefits rural 
customers at the expense of urban ones and that the United States' 
remedy benefits urban customers at the expense of rural ones illustrate 
why entry of the proposed Final Judgment is in the public interest. The 
Economics Professors argue that ``even if one were to credit'' (as the 
FCC now has \80\) the claimed benefit from the merger of ``enhanced 5G 
deployment in otherwise unprofitable-to-deploy neighborhoods,'' these 
``largely rural households are distinct from those urban and suburban 
households that likely will incur a price increase on 4G services 
resulting from the merger.'' \81\ In turn, Andrew Afflerbach, the 
engineer whose declaration was submitted along with the CWA comments, 
observes that the ``most straightforward way [for DISH] to serve 70 
percent of the population is to focus on urban areas,'' which would 
mean DISH's ``2023 benchmark stops well short of the scale of the 
networks operated by the four existing MNOs.'' \82\ Together, these 
concerns only confirm that the proposed Final Judgment fulfills the 
twin goals of a merger remedy. It permits the merger to proceed, 
enabling rural consumers to benefit from its promised efficiencies, 
while adopting remedies that will protect consumers in and bring new 
competition to urban areas that may have been at greater risk from this 
merger without this settlement.
---------------------------------------------------------------------------

    \80\ See FCC Order ]] 257-76 (explaining the benefits of the 
merger for consumers in rural areas).
    \81\ Economics Professors Comment (Exhibit 12) ] 11.
    \82\ Afflerbach Dec. ] 51.
---------------------------------------------------------------------------

C. Comments Regarding the Enforceability of the Proposed Final Judgment

    Other commenters claim that the proposed Final Judgment is too 
complicated or too ``behavioral'' to be enforced. CWA and others cite 
statements in which current and former leaders of the Antitrust 
Division have identified challenges associated with behavioral 
conditions.\83\ The commenters claim that the proposed Final Judgment 
is inconsistent with these statements, and they suggest that these 
inconsistencies should be a basis for denial.\84\ These types of 
argument lack legal support and do not accurately describe the inquiry 
before the Court. They also misstate the facts of the proposed Final 
Judgment and the Division's policies.
---------------------------------------------------------------------------

    \83\ See CWA Comment (Exhibit 10) at 10-12, 23.
    \84\ Id.; see also Wool Comment (Exhibit 32) at 2, 3. Based on 
his skepticism, Mr. Wool asserts that the proposed Final Judgment 
``dramatically reinterprets the risk-allocation framework intended 
by Section 7 of the Clayton Act.'' Wool Comment at 1. This argument 
disregards the principle that ``[a] district court must accord due 
respect to the government's prediction as to the effect of proposed 
remedies, its perception of the market structure, and its view of 
the nature of the case.'' United States v. Archer-Daniels-Midland 
Co., 272 F.Supp.2d 1, 6 (D.D.C. 2003).
---------------------------------------------------------------------------

    Objections to the settlement that are based on parsing which 
elements are structural and which are behavioral miss the important 
larger point. The overall objective of the remedy is profoundly 
structural, as it is designed to stand up a fourth nationwide, 
facilities-based wireless carrier. The mechanisms for doing so begin 
immediately with a structural divestiture to prevent the consolidation 
of Sprint's prepaid business into T-Mobile's, and the non-structural 
elements of the proposed Final Judgment are largely aimed at enabling 
DISH to begin providing wireless services to consumers immediately, to 
grow that business as it builds its own network, and to enable it to 
stand on its own as an effective facilities-based competitor before the 
end of the decree's term.\85\
---------------------------------------------------------------------------

    \85\ Although Mr. Wool takes issue with the proposed Final 
Judgment's condition requiring the merged firm to extend existing 
MVNO agreements, he simultaneously argues (1) that the condition is 
too behavioral, and (2) that the condition does not do enough to 
protect future innovation. Wool Comment (Exhibit 32) at 3-4 & n.8. 
By relying on existing agreements, the condition as written does not 
require regular, ongoing oversight by the United States. In 
contrast, additional intervention to control the merged firm's 
conduct with respect to other MVNOs in the future would have 
required further involvement by the United States in the 
marketplace.
---------------------------------------------------------------------------

    Indeed, while the Antitrust Division has expressed a preference for 
structural remedies, it has not taken the position that behavioral 
conditions are never appropriate. In fact, the 2004 Remedies Guide 
explains that ``there are limited circumstances when conduct remedies 
will be appropriate: (a) When conduct relief is needed to facilitate 
transition to or support a competitive structural solution, i.e., when 
the merged firm needs to modify its conduct for structural relief to be 
effective or (b) when a full-stop prohibition of the merger would 
sacrifice significant efficiencies and a structural remedy would also 
sacrifice such efficiencies or is infeasible.'' \86\ As to (a), the 
guide provides examples of potentially appropriate behavioral 
conditions that can help ``perfect structural relief,'' such as 
transitional supply agreements between the merged firm and the 
divestiture buyer and temporary limits on the merged firm's ability to 
reacquire personnel from the divestiture buyer.\87\ The guide further 
notes that enforcing behavioral conditions may be easier, and thus such 
conditions may be more appropriate, in markets subject to ongoing 
oversight by regulatory agencies.\88\
---------------------------------------------------------------------------

    \86\ 2004 Remedies Guide at 18. Cf. ``Assistant Attorney General 
Makan Delrahim Delivers Keynote Address at American Bar 
Association's Antitrust Fall Forum'' (Nov. 16, 2017) (stating the 
Antitrust Division would accept behavioral remedies ``where an 
unlawful vertical transaction generates significant efficiencies 
that cannot be achieved without the merger or through a structural 
remedy''), available at https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-keynote-address-american-bar.
    \87\ 2004 Remedies Guide at 18-19.
    \88\ Id. at 22.
---------------------------------------------------------------------------

    The remedy in this case is ultimately structural, and fits squarely 
within the first circumstance described in the 2004 Remedies Guide--it 
is intended to bring about the entry of an independent, facilities-
based mobile wireless network operator with the incentive and ability 
to compete with the other national carriers. DISH has agreed to acquire

[[Page 61651]]

Sprint's prepaid businesses for $1.4 billion and Sprint's 800 MHz 
spectrum for $3.6 billion, and it has the option to acquire cell sites 
and retail locations from the merged firm. Other aspects of the 
proposed Final Judgment are intended to ensure that these divestitures 
(and DISH's entry into the mobile wireless market more generally) are 
successful. Several of these provisions are akin to the examples of 
appropriate conditions set forth in the Remedies Guide. The Full MVNO 
Agreement will require T-Mobile to supply DISH with network access on a 
transitional basis. This will allow DISH to enter the market 
immediately, providing for MVNO-based competition while DISH works to 
deploy network facilities. DISH's network buildout obligations will 
ensure that this transition proceeds in a timely manner. The temporary 
prohibition on T-Mobile rehiring employees from the divested business 
will assist DISH in maintaining the personnel required to compete 
effectively.
    The proposed Final Judgment in this case also fits within the 
second circumstance that the Remedies Guide describes as an appropriate 
context for behavioral relief--at least in the short term. The merger 
promises to yield significant efficiencies by enabling T-Mobile to 
offer 5G mobile wireless services more cost-effectively. These 
efficiencies would not be realized if the merger were blocked or if T-
Mobile were required immediately to divest all of Sprint's existing 
infrastructure. Further, T-Mobile's network buildout obligations and 
associated penalties provide additional incentives to ensure that the 
merged firm will invest in a robust 5G network that becomes available 
to consumers quickly. These efficiencies will work in combination with 
the new competitive threat posed by DISH to offset any further harm 
that may arise from the transaction. By the time the proposed Final 
Judgment expires, and likely sooner, DISH will provide a fourth 
nationwide retail mobile wireless option for American consumers, and 
neither the Antitrust Division nor this Court will need to maintain 
ongoing entanglements with the company's business. Including a 
transitional period in which certain behavioral conditions are present, 
however, will ensure that consumers get the immediate benefits expected 
from the merger without risking anticompetitive harm.
    These goals are consistent with the position on behavioral remedies 
expressed in the 2004 Remedies Guide and with the enforcement decisions 
made by the Antitrust Division. As noted, the Remedies Guide states 
that transitional behavioral remedies are appropriate for ensuring the 
effectiveness of structural relief.\89\ In keeping with that principle, 
the Final Judgment submitted by the United States and adopted by Judge 
Boasberg in United States v. Bayer contained substantial divestitures 
to ensure a long-term structural solution, along with shorter-term 
behavioral relief including supply agreements with the possibility of 
extension for up to a total of six years.\90\
---------------------------------------------------------------------------

    \89\ 2004 Remedies Guide Section III.E.1 (``Limited conduct 
relief can be useful in certain circumstances to help perfect 
structural relief.'').
    \90\ Final Judgment, United States v. Bayer AG, No. 18-cv-1241, 
at 22-23, 24, 25 (D.D.C. Feb. 08, 2019).
---------------------------------------------------------------------------

    More fundamentally, the remedies here are consistent with 
longstanding guidance that the remedy must be tailored to the 
particular facts of the industry at hand.\91\ Here, building a mobile 
wireless network takes several years. That fact alone does not bar the 
adoption of appropriate remedies, and the remedy here necessarily and 
appropriately reflects that fundamental fact in the interim and final 
buildout timelines and the overall term of the decree. The timelines 
also account for the ongoing transition from 4G to 5G, which ultimately 
will permit DISH to put into service a new, greenfield 5G wireless 
network unencumbered by older technology. This is consistent with 
guidance that the remedy be tailored to the specific characteristics of 
the divestiture buyer.\92\ With this remedy, DISH will bring spectrum 
(that it currently has no obligation to build out in this way) into 
service as a mobile broadband 5G service that will serve consumers 
across the country. With a proposed merger that promises public 
benefits in the form of stronger 5G competition and expanding output, 
it is consistent with the Antitrust Division's announced policies to 
craft this settlement in a way that protects those efficiencies, 
increases output further through the choice of divestiture buyer, while 
still guarding against competitive harm.
---------------------------------------------------------------------------

    \91\ 2004 Remedies Guide at 2 (encouraging the Division to 
``[f]ocus[ ] carefully on the specific facts of the case at hand'' 
to ``permit the adoption of remedies specifically tailored to the 
competitive harm,'' and noting that ``there must be a significant 
nexus between the proposed transaction, the nature of the 
competitive harm, and the proposed remedial provisions''). CWA pulls 
quotations from the 2004 Remedies Guide that it believes call into 
question the proposed remedy here. CWA Comment (Exhibit 10) at 4-11, 
13, 19. As discussed in this section, the United States vigorously 
disputes the notion that the proposed Final Judgment is at bottom 
inconsistent with the Antitrust Division's own guidance. CWA simply 
ignores the Remedies Guide provisions discussed in this section that 
explain why this remedy is in keeping with Division policy, and it 
also ignores the stated purpose of the Guide itself. The Guide ``is 
a policy document, not a practice handbook,'' it does not list or 
give ``particular language or provisions that should be included in 
any given decree,'' but instead it ``sets forth the policy 
considerations that should guide Division attorneys and economists 
when fashioning remedies for anticompetitive mergers.'' 2004 
Remedies Guide at 1-2. As called for by its own Guide, and as 
explained in this Response to Comments, in arriving at this proposed 
Final Judgment the Antitrust Division has applied ``the pertinent 
economic and legal principles, appropriate analytical framework, and 
relevant legal limitations'' to ``craft and implement the proper 
remedy for the case at hand.'' Id. at 2.
    \92\ See 2004 Remedies Guide at 31 n.43 (noting that ``if 
harmful coordination is feared because the merger is removing a 
uniquely-positioned maverick, the divestiture would likely have to 
be to a firm with maverick-like interests and incentives''); id. at 
5 (noting that ``assessing the competitive strength of a firm 
purchasing divested assets requires more analysis than simply 
attributing to this purchaser past sales associated with those 
assets'').
---------------------------------------------------------------------------

    Moreover, the proposed Final Judgment contains substantial 
monitoring and enforcement mechanisms. These mechanisms will operate in 
parallel with the ongoing regulatory oversight that the FCC will 
perform to ensure compliance with its own conditions.\93\ The United 
States will be moving this Court to appoint a monitoring trustee with 
the power and authority to investigate and report on the Defendants' 
compliance with the terms of the Final Judgment and the Stipulation and 
Order during the pendency of the divestiture. The monitoring trustee 
will help ensure, among other things, that T-Mobile complies with its 
obligations relating to its sale of the Divestiture Assets, the 
exclusive-option requirements for cell sites and retail store 
locations, and DISH's progress toward using the Divestiture Assets to 
operate a retail mobile wireless network.
---------------------------------------------------------------------------

    \93\ See, e.g., FCC Order ] 204 (``The Boost Divestiture 
Conditions also provide for strong Commission oversight to ensure 
the effectiveness of these principles to ensure New Boost is a 
meaningful competitor.''); id. ] 378 (``DISH continues to be subject 
to all of the Commission's other enforcement and regulatory powers, 
including the loss of part or all of any of its licenses for failing 
to meet its build-out requirements.'').
---------------------------------------------------------------------------

    The United States retains and reserves all rights to enforce the 
provisions of the proposed Final Judgment, including its rights to seek 
an order of contempt from the Court. Defendants have agreed that in any 
civil contempt action, any motion to show cause, or any similar action 
brought by the United States regarding an alleged violation of the 
Final Judgment, the United States may establish the violation and the 
appropriateness of any remedy by a preponderance of the evidence and 
that Defendants have waived any argument that a different standard of 
proof should

[[Page 61652]]

apply.\94\ This provision aligns the standard for compliance 
obligations with the standard of proof that applies to the underlying 
offense that the compliance commitments address. Defendants also agree 
that they may be held in contempt of this Court for failing to comply 
with any provision of the proposed Final Judgment that is stated 
specifically and in reasonable detail, as interpreted in light of the 
goal of the proposed Final Judgment to restore competition that would 
otherwise be permanently harmed by the merger.\95\
---------------------------------------------------------------------------

    \94\ PFJ Sec.  XVIII(A).
    \95\ Id. Sec.  XVIII(B).
---------------------------------------------------------------------------

    The United States may also apply to the Court for a one-time 
extension of the Final Judgment, together with other relief as may be 
appropriate, if the Court finds in an enforcement proceeding that 
Defendants have violated the terms of the decree.\96\ In addition, in 
any successful effort by the United States to enforce the Final 
Judgment against a Defendant, whether litigated or resolved before 
litigation, Defendants will reimburse the United States for attorneys' 
fees, experts' fees, and other costs incurred in connection with any 
enforcement effort, including the investigation of the potential 
violation.\97\
---------------------------------------------------------------------------

    \96\ Id. Sec.  XVIII(C).
    \97\ Id.
---------------------------------------------------------------------------

    Finally, although the Final Judgment is set to expire seven years 
from the date of its entry,\98\ the United States may file an action 
against a Defendant for violating the Final Judgment for up to four 
years after the Final Judgment has expired or been terminated.\99\ This 
provision is meant to address circumstances such as when evidence that 
a violation of the Final Judgment occurred during the term of the Final 
Judgment is not discovered until after the Final Judgment has expired 
or been terminated or when there is not sufficient time for the United 
States to complete an investigation of an alleged violation until after 
the Final Judgment has expired or been terminated. This provision thus 
makes clear that the United States may still challenge a violation that 
occurred during the Final Judgment's term, for four years after it 
expired or was terminated.
---------------------------------------------------------------------------

    \98\ Id. Sec.  XIX. The Final Judgment may be terminated after 
five years from the date of its entry upon notice by the United 
States to the Court and Defendants that the divestitures have been 
completed and that the continuation of the Final Judgment is no 
longer necessary or in the public interest. Id.
    \99\ Id. Sec.  XVIII(D).
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D. Other Comments Opposing Entry of the Proposed Final Judgment

1. Comments Regarding Harms Outside the Scope of the Complaint
    Some commenters raise harms that are outside the scope of the 
complaint filed in this case, and they propose remedies to address 
those harms. These comments extend beyond the permissible scope of the 
Tunney Act review.\100\ A few commenters, claiming to rely on a recent 
opinion interpreting the Tunney Act, urge this Court to engage in a 
broader inquiry.\101\ That opinion, however, agreed that the Court 
cannot evaluate claims beyond those raised in the complaint.\102\ To 
the extent that commenters read that opinion--and encourage this Court 
to apply that opinion--in a way that would permit this Court to 
evaluate legal theories, competitive effects, or claims that the United 
States chose not to bring, it would violate the Constitution. The D.C. 
Circuit recognized this fact in Microsoft when holding that district 
courts are ``barred from reaching beyond the complaint to examine 
practices the government did not challenge.'' \103\ Reading the Tunney 
Act in a way that allows courts to second-guess the United States' 
exercise of prosecutorial discretion would violate separation-of-powers 
principles, and contravene the guidance that courts should ``not 
construe [a] statute in a manner that renders it vulnerable to 
constitutional challenge.'' \104\ Put directly, ``any agency with 
limited resources and an investigative mission has the power, absent an 
express statute to the contrary, to assess a complaint to determine 
whether its resources are best spent on the violation, whether the 
agency is likely to succeed, whether the enforcement requested fits the 
organization's overall policies, and whether the agency has enough 
resources to undertake the action.'' \105\ Thus, public comments that 
criticize the Complaint for taking too narrow a scope or that point to 
a broader set of practices that they also would have liked the 
government to challenge have no bearing on the public interest inquiry 
currently before the Court.
---------------------------------------------------------------------------

    \100\ See supra Sec.  III.
    \101\ E.g., Economics Professors Comment (Exhibit 12) at 3; AAI 
Comment (Exhibit 2) at 13.
    \102\ United States v. CVS Health Corp., No. 18-2340, 2019 WL 
4194925, at *5 (D.D.C. Sept. 4, 2019) (``Courts cannot, of course, 
`force the government to make [a] claim.' The Government, alone, 
chooses which causes of action to allege in its complaint.'' 
(citation omitted)).
    \103\ Microsoft, 56 F.3d at 1460; see also Heckler v. Chaney, 
470 U.S. 821, 832 (1985) (citing Article II, Section 3 of the 
Constitution for the proposition that the decision about what claims 
to bring ``has long been regarded as the special province of the 
Executive Branch''); United States v. Fokker Servs., 818 F.3d 733, 
738 (D.C. Cir. 2016) (recognizing the ``long-settled understandings 
about the independence of the Executive with regard to charging 
decisions).
    \104\ Rothe Dev., Inc. v. U.S. Dep't of Def., 836 F.3d 57, 68 
(D.C. Cir. 2016); cf. Maryland v. United States, 460 U.S. 1001, 
1003-06 (1983) (Rehnquist, J., dissenting) (noting concerns about 
the ability to formulate judicially manageable standards for the 
Tunney Act inquiry).
    \105\ Caldwell v. Kagan, 865 F. Supp. 2d 35, 44 (D.D.C. 2012).
---------------------------------------------------------------------------

    For example, RWA and NTCH both express concern about the impact of 
the merger on roaming services. RWA states that ``[t]he elimination of 
Sprint and the entry of Dish will mean the nation will go without a 
fourth wholesale or nationwide domestic roaming alternative to compete 
against AT&T, Verizon, and New T-Mobile for an extended period of 
time.'' \106\ Likewise, NTCH asserts that ``[t]he FCC has largely 
ignored the growing crisis in the data roaming market,'' and alleges 
that data roaming rates that exist today ``amount to a denial of 
roaming service to [ ] small carriers and their subscribers in 
violation of Sections 201(b) and 202(a) of the Communications Act of 
1934, as amended.'' \107\
---------------------------------------------------------------------------

    \106\ RWA Comment (Exhibit 24) at 11.
    \107\ NTCH Comment (Exhibit 20) at 7-8.
---------------------------------------------------------------------------

    The Complaint, however, does not allege that the merger will 
eliminate competition in a market for roaming services, or that it will 
impact roaming rates. RWA attempts to tie its concern to a paragraph in 
the Complaint that pertains solely to the elimination of 
``[c]ompetition between Sprint and T-Mobile to sell mobile wireless 
service to MVNOs.'' \108\ This paragraph does not allege harm to rural 
facilities-based mobile wireless carriers that purchase roaming 
services. RWA and NTCH are free to advocate their positions on this 
issue to the FCC, and both did so in this proceeding.\109\ Given that 
these concerns are outside the scope of this proceeding, the Court 
should not factor them into its public interest evaluation. For the 
same reason, the Court should reject NTCH's proposed new conditions, 
which it claims are designed to address these alleged harms.\110\
---------------------------------------------------------------------------

    \108\ RWA Comment (Exhibit 24) at 11 (citing Complaint ] 22).
    \109\ See FCC Order ] 297 (concluding that concerns raised by 
RWA, NTCH, and others regarding the impact of the transaction on 
roaming rates were adequately addressed by existing FCC 
regulations).
    \110\ NTCH Comment (Exhibit 20) at 16-20.
---------------------------------------------------------------------------

    Similarly, Voqal--a coalition of 2.5 GHz spectrum licensees--claims 
that the merger will cause T-Mobile's spectrum holdings to exceed a 
``spectrum screen'' that has been

[[Page 61653]]

applied by the FCC in certain past merger reviews.\111\ They further 
allege that New T-Mobile will have ``buyer market power in the 2.5 GHz 
band.'' \112\ Voqal proposes new, self-designed divestitures of 2.5 GHz 
spectrum that they claim would alleviate their concerns.\113\ The 
question of whether and in what manner a regulatory ``spectrum screen'' 
should apply to this transaction is not before the Court.\114\ 
Moreover, the Complaint does not allege a relevant market consisting of 
2.5 GHz spectrum, nor does it allege that the merger would cause T-
Mobile to acquire ``buyer market power'' in such a market.\115\ Thus, 
the Court should not factor these claims into its public interest 
determination, and it should reject Voqal's proposal for new 
divestitures to be added to the proposed Final Judgment under 
review.\116\
---------------------------------------------------------------------------

    \111\ Voqal Comment (Exhibit 30) at 7-9.
    \112\ Id. at 10.
    \113\ Id. at 12-14.
    \114\ This question was addressed directly by the FCC, which 
found that, although its spectrum screen was triggered in much of 
the nation, the transaction should be approved because of its 
potential to increase spectrum utilization and accelerate the 
deployment of 5G networks. See FCC Order ]] 97-99.
    \115\ The FCC also declined to define such a market. See id. ] 
64 (declining to ``define a separate product market for the sale or 
lease of 2.5 GHz spectrum'').
    \116\ Voqal proposes that T-Mobile be required to divest certain 
2.5 GHz licenses because, it claims, no other spectrum bands are 
sufficient substitutes for the deployment of 5G mobile wireless 
services. See Voqal Comment at 6-7, 12-14. The FCC has rejected this 
view and is actively working to make additional mid-band spectrum 
available for 5G. FCC Order ]] 99, 110; see also In re Promoting 
Investment in the 3550-3700 MHz Band, Notice of Proposed Rulemaking 
and Order Terminating Petition, 32 FCC Rcd 8071, ] 2 (2017) (``[I]t 
has become increasingly apparent that the 3.5 GHz Band will play a 
significant role as one of the core mid-range bands for 5G network 
deployments throughout the world. . . . In the two years since the 
Commission first adopted rules for this `innovation band,' it has 
authorized service in other bands that also will be critical to 5G 
deployment, and we are currently evaluating additional bands for 5G 
use.''); In re Expanding Flexible Use of the 3.7 to 4.2 GHz Band, 
Order and Notice of Proposed Rulemaking, 33 FCC Rcd 6915, ] 1 (2018) 
(``Today, we seek to identify potential opportunities for additional 
terrestrial use--particularly for wireless broadband services--of 
500 megahertz of mid-band spectrum between 3.7-4.2 GHz. . . . 
Today's action is another step in the Commission's efforts to close 
the digital divide by providing wireless broadband connectivity 
across the nation and to secure U.S. leadership in the next 
generation of wireless services, including fifth-generation (5G) 
wireless, Internet of Things (IoT), and other advanced spectrum-
based services.'').
---------------------------------------------------------------------------

2. Comments Regarding Services Provided to MVNOs
    The proposed Final Judgment requires the merged firm to extend T-
Mobile's and Sprint's existing MVNO agreements for the term of the 
proposed Final Judgment, subject to certain conditions. Nevertheless, 
the Economics Professors and others argue that this does not 
sufficiently address potential harm that could arise from the loss of 
competition between T-Mobile and Sprint in providing wholesale mobile 
wireless services to MVNOs.\117\ They claim that future competition 
between the firms could yield even better rates and terms than those in 
the existing agreements, and that MVNOs will have no protection once 
the proposed Final Judgment expires. Neither of these arguments 
warrants finding that this portion of the proposed Final Judgment is 
not in the public interest.
---------------------------------------------------------------------------

    \117\ Economics Professors Comment (Exhibit 12) at 4, 9-11; see 
also Wool Comment (Exhibit 32) at 3. As an initial matter, the 
Economics Professors are incorrect in claiming that ``the DOJ's 
Complaint spells out harms in two markets: The wholesale market and 
the retail market.'' Economics Professors Comment (Exhibit 12) at 3. 
The Complaint alleges only one relevant product market: the market 
for retail mobile wireless services. See Complaint ] 14. The 
Complaint does contain one paragraph alleging that ``competition 
between Sprint and T-Mobile to sell mobile wireless service 
wholesale to MVNOs has benefited consumers by furthering 
innovation'' and that ``[t]he merger's elimination of this 
competition likely would reduce future innovation.'' Complaint ] 22. 
It does not, however, allege the existence of a distinct wholesale 
market. To the extent that the concerns expressed by the Economics 
Professors are premised on the existence of such a market, they are 
outside the scope of the Complaint. See, e.g., Economics Professors 
Comment (Exhibit 12) at 4 (calculating an HHI for ``the national 
wholesale market'' and arguing that there is a ``presumption of 
enhanced market power''). See also FCC Order ] 63 (declining to 
define ``a separate product market for wholesale service 
offerings'').
---------------------------------------------------------------------------

    First, T-Mobile and Sprint have both been selling wholesale 
services to MVNOs for many years, and the rates and terms in existing 
MVNO agreements are what have resulted from this competition. These 
terms will remain in place for the duration of the proposed Final 
Judgment, and the commenters cite no support for their prediction that 
maintaining this same level of competition would have yielded terms 
that are better than these. Moreover, by increasing the capacity of T-
Mobile's network and reducing its cost of providing service to MVNOs 
who need to compete against DISH, the merger and proposed Final 
Judgment may combine to increase T-Mobile's incentive to provide 
wholesale service to MVNOs.\118\ The Economics Professors fail to 
account for this effect.\119\
---------------------------------------------------------------------------

    \118\ See FCC Order ] 290 (``New T-Mobile's vastly increased 
network capacity will likely give it incentives to offer appealing 
terms and reasonable prices to wholesale service customers so as to 
put that capacity to productive use by carrying as much revenue-
generating traffic as it can.'').
    \119\ More generally, the Economics Professors Comment (Exhibit 
12) is internally contradictory on the influence of MVNOs in the 
marketplace. On the one hand, to attack the settlement the comment 
dismisses any benefit from the divestitures that will stand DISH up 
as an MVNO. Economics Professors Comment (Exhibit 12) at 2-3. Later, 
in going on to attack the settlement for not doing more to help 
MVNOs, the comment champions the competitive benefits that MVNOs 
provide, including allowing carriers in effect to offer the same 
service at different price points under a different brand, and 
enabling cable companies to compete in wireless. Economics 
Professors Comment (Exhibit 12) at 4. In fact, while observing that 
by ``bundl[ing] wireless offerings with other products like 
broadband and pay television, cable companies such as Comcast and 
Charter have competed aggressively on price,'' id., the comments 
overlook that this is precisely one of the benefits DISH will be 
able to provide consumers. See Chris Welch, The Verge, ``Dish loses 
more satellite TV customers as it embarks on a mobile future'' (July 
29, 2019) (``Like other carriers, you can count on Dish combining 
its video and mobile products. A Sling TV and Dish Mobile bundle is 
all but guaranteed.''), https://www.theverge.com/2019/7/29/20746191/dish-q2-2019-earnings-mobile-carrier-plans-sling-tv-5g. The remedy 
thus creates an innovative MVNO immediately, and further establishes 
DISH as a likely future wholesale network provider.
---------------------------------------------------------------------------

    Second, when the protections of the proposed Final Judgment expire, 
MVNOs will not be limited to purchasing wholesale service from AT&T, 
Verizon, or T-Mobile. By that point, DISH will have constructed a 
mobile wireless network that could serve as an alternative host network 
for MVNOs.\120\ Indeed, as a new entrant untethered to legacy business 
models, DISH may be especially willing to partner with innovative 
MVNOs. Thus, the Department believes that the proposed Final Judgment 
provides sufficient protections to address the narrow wholesale-related 
harm alleged in the Complaint.
---------------------------------------------------------------------------

    \120\ See FCC Order ] 292 (explaining that the proposed Final 
Judgment ``would enable DISH to emerge as a nationwide facilities-
based provider that would be capable of supplying, among other 
things, robust wholesale wireless services to MVNOs.'').
---------------------------------------------------------------------------

3. Comments Regarding Other Regulatory Matters
    NTCH claims that DISH could lose some of its wireless licenses in 
the future, and if this were to occur, DISH would be unable to 
construct a network that satisfies the provisions of the proposed Final 
Judgment.\121\ It argues that DISH's licenses could be revoked for one 
of two reasons, but neither provides a credible basis to reject the 
decree.
---------------------------------------------------------------------------

    \121\ NTCH Comment (Exhibit 20) at 11-15.
---------------------------------------------------------------------------

    First, NTCH argues that ``it is possible that the FCC may deny'' 
DISH's request for an extension of the upcoming construction deadlines 
for its AWS-4 and H Block licenses.\122\ NTCH argues that, in the event 
of such a denial, DISH would likely fail to meet its future 
construction deadlines for these licenses, which could result in 
forfeiture of the licenses. The FCC, however, has

[[Page 61654]]

concluded that granting these extensions would be in the public 
interest, and accordingly, has directed the relevant bureau of the 
agency to do so.\123\
---------------------------------------------------------------------------

    \122\ Id. at 11.
    \123\ See FCC Order ] 365.
---------------------------------------------------------------------------

    Second, NTCH contends that it might prevail in its pending appeals 
of certain FCC orders that enabled DISH's purchase of the H Block 
spectrum and granted DISH the ability to use the AWS-4 spectrum to 
offer mobile wireless service.\124\ NTCH argues that ``reversal of the 
FCC's license grants would doom this entire DISH-to-the-rescue plan to 
failure.'' \125\ NTCH failed, however, in its opposition of these 
orders at the FCC, and there is no reason to believe that NTCH will 
prevail in its appeals. As the FCC and the United States have explained 
in that litigation, NTCH lacks standing to bring several of these 
challenges, and even if NTCH were found to have standing, its arguments 
for why the FCC should not have adopted the orders at issue lack 
merit.\126\ In any event, it would be improper for the Court to deny 
entry of the proposed Final Judgment on the basis of a pending appeal 
in a separate matter whose outcome is uncertain.
---------------------------------------------------------------------------

    \124\ NTCH Comment (Exhibit 20) at 14-15.
    \125\ Id. at 15.
    \126\ See Corrected Brief for Respondent/Appellee and 
Respondent, NTCH, Inc. v. Fed. Commc'ns Comm'n, Nos. 18-1241 & 18-
1242 (D.C. Cir. Mar. 28, 2019).
---------------------------------------------------------------------------

    Separately, CWA argues that DISH is not fit to be a divestiture 
buyer because of the existence of a dispute between DISH and the FCC 
over a past spectrum auction.\127\ The referenced dispute arose from 
the FCC's auction of so-called AWS-3 spectrum. In that auction, two 
entities (Northstar and SNR Wireless) purchased spectrum licenses using 
bidding credits intended for use by small businesses. The FCC 
subsequently found that Northstar and SNR Wireless were ineligible for 
the bidding credits they used because they were under the de facto 
control of DISH and therefore were not small businesses. Accordingly, 
the FCC revoked the credits and imposed a fine. After Northstar and SNR 
Wireless appealed the FCC's order, the U.S. Court of Appeals for the 
District of Columbia Circuit found that the FCC had reasonably 
interpreted its rules but had not provided sufficient notice of its 
interpretation.\128\ Thus, it ordered the FCC to provide Northstar and 
SNR Wireless an opportunity to cure the violation by amending its 
agreements with DISH.\129\ These efforts are ongoing. Significantly, 
the D.C. Circuit went out of its way to note that the FCC's finding 
that DISH exercised de facto control ``does not compel a finding that 
the applicants lacked candor.'' \130\ It also emphasized that the FCC 
explicitly said that SNR and Northstar appropriately disclosed their 
relationships with DISH, that no other auction participant was harmed 
by their conduct, and that no evidence showed that SNR and Northstar 
``colluded with one another in violation of federal antitrust laws.'' 
\131\ Without wading into the merits of that ongoing matter, the United 
States rejects CWA's contention that this should disqualify DISH from 
being a divestiture buyer here.
---------------------------------------------------------------------------

    \127\ CWA Comment (Exhibit 10) at 18-19.
    \128\ See SNR Wireless LicenseCo, LLC v. Fed. Commc'ns Comm'n, 
868 F.3d 1021, 1024-25 (D.C. Cir. 2017) (summarizing the background 
of the case and the court's opinion). In discussing de facto 
control, the D.C. Circuit noted that while ``the question of whether 
one business exercises de jure control over another is binary, the 
highly contextual question of de facto control is a matter of 
degree.'' Id. at 1026.
    \129\ Id. at 1043-46.
    \130\ Id. at 1028.
    \131\ Id.
---------------------------------------------------------------------------

4. Other Negative Comments
    CWA objects that the proposed Final Judgment ``uses open-ended, 
vague and ambiguous language with reference to defendants' obligations 
and/or the time within which certain actions must be taken,'' and that 
such language is ``deeply problematic'' in a court order.\132\ Such 
terminology, however, is not unusual and has been present in final 
judgments previously approved under the Tunney Act.\133\ Moreover, the 
Final Judgment minimizes any enforceability risks by providing for 
resolution of any disputes that may arise without the need to involve 
this Court. For example, if there is no agreement (regardless of the 
reason), the monitoring trustee will report to the United States, and 
the Department of Justice can resolve the dispute at its ``sole 
discretion'' or at its sole discretion ``after consultation with the 
affected Plaintiff States.'' \134\ Additionally, should any disputes be 
brought before the Court, the Final Judgment provides standards for 
resolving disputes over interpretation of any such terms. This is 
accomplished both by reference to the purpose of the decree ``to give 
full effect to the procompetitive purposes of the antitrust laws,'' and 
by empowering the Court to enforce any provision of the Final Judgment, 
as ``interpreted by the Court in light of these procompetitive 
principles and in applying ordinary tools of interpretation,'' to terms 
that are ``stated specifically and in reasonable detail, whether or not 
[they are] clear and unambiguous on [their] face.'' \135\
---------------------------------------------------------------------------

    \132\ CWA Comment (Exhibit 10) at 21, 22.
    \133\ See, e.g., Final Judgment, United States v. Bayer AG, No. 
18-cv-1241, at 19 (D.D.C. Feb. 08, 2019) (``The divestitures shall 
be accomplished so as to satisfy the United States, in its sole 
discretion, that none of the terms of any agreement between BASF and 
Bayer and Monsanto give Bayer and Monsanto the ability unreasonably 
to raise BASF's costs, to lower BASF's efficiency, or otherwise to 
interfere in the ability of BASF to compete effectively.''); id. at 
26 (``The terms and conditions of all agreements reached between 
Bayer and BASF under Paragraph IV(G) must be acceptable to the 
United States, in its sole discretion.''); id. (``Bayer shall 
perform all duties and provide all services required of Bayer under 
the agreements reached between Bayer and BASF under Paragraph 
JV(G).''). See also US Airways Final Judgment at 12 (requiring 
divestiture to be ``accomplished so as to satisfy the United States 
in its sole discretion, in consultation with the Plaintiff States, 
that none of the terms of any agreement between an Acquirer(s) and 
Defendants gives Defendants the ability unreasonably to raise the 
Acquirer's costs, to lower the Acquirer's efficiency, or otherwise 
to interfere in the ability of the Acquirer(s) to effectively 
compete.''); id. at 13 (``Defendants shall use their best efforts to 
assist the Divestiture Trustee in accomplishing the required 
divestiture.'').
    \134\ See PFJ Sec.  IV.A.4.
    \135\ PFJ Sec.  Section XVIII.B. Another commenter expressed 
general opposition to the proposed remedy but did not provide a 
sufficient basis for his concern to allow the United States to 
respond. See Hasten Comment (Exhibit 15) (``No! No! No! No! No! You 
don't need me to tell you the reasons why.'').
---------------------------------------------------------------------------

E. Comments Regarding Procedural Aspects of This Review

1. Sufficiency of the Filings
    Mr. Bellemare argues that the ``materials published in the Federal 
Register do not allow meaningful public comments.'' \136\ He asserts 
that the United States was required to include additional information 
in its filings, such as ``pre- and post-merger levels of concentration 
(Herfindahl-Hirschman Index) (HHI); increase in HHI numbers as a result 
of the merger; exact pre- and post- merger market shares of all 
entities in the relevant market; trend toward concentration (or recent 
acquisitions)'' as well as ``substantial information . . . on 
regulatory or nonregulatory entry barriers in the relevant market.'' 
\137\ Mr. Bellemare does not identify a source for his claim that these 
categories of information are required, and for good reason--neither 
the Tunney Act itself nor the caselaw interpreting the Act identifies 
such requirements. Under the Tunney Act, the United States must file a 
Competitive Impact Statement that recites ``(1) the nature and purpose 
of the proceeding; (2) a description of the practices or events giving 
rise to the alleged violation of the antitrust laws; (3) an explanation 
of the proposal for a consent judgment, including an explanation of any 
unusual circumstances giving rise to such proposal or any provision 
contained therein, relief to be obtained thereby,

[[Page 61655]]

and the anticipated effects on competition of such relief; (4) the 
remedies available to potential private plaintiffs damaged by the 
alleged violation in the event that such proposal for the consent 
judgment is entered in such proceeding; (5) a description of the 
procedures available for modification of such proposal; and (6) a 
description and evaluation of alternatives to such proposal actually 
considered by the United States.'' \138\ The Competitive Impact 
Statement filed in this case amply satisfies these requirements.\139\
---------------------------------------------------------------------------

    \136\ Bellemare Comment (Exhibit 6) at 1.
    \137\ Bellemare Comment (Exhibit 6) at 7-8.
    \138\ 15 U.S.C. 16(b)(1)-(6).
    \139\ Mr. Bellemare also points to the standards that apply to 
motions to dismiss and motions for summary judgment under the 
Federal Rules. See Bellemare Comment (Exhibit 6) at 2, 8. Those 
standards have no bearing on this proceeding.
---------------------------------------------------------------------------

2. Comments Regarding the Timing of This Review
    Some commenters seek to delay this Court's proceedings until after 
the conclusion of the litigation initiated by a group of state 
attorneys general in the Southern District of New York (``S.D.N.Y. 
Litigation''). AAI asks the Court to ``defer a public interest 
determination and keep the public comment period open pending a final 
judgment in the States' challenge to the proposed transaction.'' \140\ 
Similarly, Public Knowledge et al. ``request[s] that the DOJ ask the 
court to wait to decide whether to accept its proposed consent decree 
until the pending state enforcement action to block this merger is 
resolved.'' \141\ These commenters assert that this approach would 
impose no hardship on the merging parties and would be in the best 
interests of both the Department and the public. They claim that this 
approach would be appropriate because it would allow for a more 
comprehensive public comment process and would promote the efficient 
use of judicial resources. As discussed below (and in greater detail in 
the United States's Response to States' Motion to File Brief as Amici 
Curiae (``Response to States' Brief'') filed with this Court on October 
23, 2019), AAI's assertions are incorrect.
---------------------------------------------------------------------------

    \140\ AAI Comment (Exhibit 2) at 11.
    \141\ Public Knowledge et al. Comment (Exhibit 22) at 4.
---------------------------------------------------------------------------

    First, delay would prejudice the public interest, the Department, 
and DISH. As the Department explained in its Response to States' Brief, 
T-Mobile's obligation to begin preparing its network for DISH 
subscribers is triggered by entry of the proposed Final Judgment.\142\ 
No useful purpose would be served by delaying this process and thus 
delaying the date by which DISH can begin offering mobile wireless 
service to the public. In addition, the Department has a broader 
interest in ensuring that its proposed settlements are entered in an 
efficient manner. Jeopardizing this ability would require the 
Department to devote resources to matters it has decided to settle 
rather than matters it has not.\143\ For its part, DISH has an interest 
in prompt entry of the proposed Final Judgment because of its fixed-
date network deployment deadlines. The proposed Final Judgment requires 
DISH to reach certain milestones by June 14, 2023, and delaying the 
Court's consideration of the proposed Final Judgment would shorten the 
time available to DISH to comply with this requirement.\144\
---------------------------------------------------------------------------

    \142\ See PFJ Sec.  IV.A.1; Response to States' Brief at 7-8.
    \143\ See Microsoft, 56 F.3d at 1459 (noting in an appeal of a 
Tunney Act decision that ``a settlement, particularly of a major 
case, will allow the Department of Justice to reallocate necessarily 
limited resources''); see also Heckler, 470 U.S. at 831 (explaining 
that ``an agency's decision not to prosecute or enforce, whether 
through civil or criminal process, is a decision generally committed 
to an agency's absolute discretion'' because the agency must 
consider, among other things, ``whether agency resources are best 
spent on this violation or another'').
    \144\ See PFJ Sec.  VIII.A.
---------------------------------------------------------------------------

    Second, contrary to these commenters' claims,\145\ the Court need 
not allow third parties to file ``new or supplementary'' comments after 
conclusion of the S.D.N.Y. Litigation. Much of the record developed in 
the S.D.N.Y. Litigation will pertain to the merits of the states' 
Section 7 challenge and thus will not be relevant here. Some of that 
evidence will also pertain to legal claims that the United States did 
not assert. Considering these claims would violate separation-of-powers 
principles.\146\ Even as to evidence that could arguably be relevant, 
the United States will not have participated in the creation of that 
record, and it would violate fundamental principles of procedural 
fairness to rely on such evidence.
---------------------------------------------------------------------------

    \145\ AAI Comment (Exhibit 2) at 12-13.
    \146\ See Heckler, 470 U.S. at 832 (noting that the decision 
about which claims to bring ``has long been regarded as the special 
province of the Executive Branch''); Microsoft, 56 F.3d at 1461 
(noting that district courts engaging in Tunney Act review are 
``barred from reaching beyond the complaint to examine practices the 
government did not challenge'').
---------------------------------------------------------------------------

    Third, adopting the proposed delay would not promote the efficient 
use of judicial resources. When it passed the Tunney Act, Congress 
expressed its intent for courts making public interest determinations 
to ``adduce the necessary information through the least complicated and 
least time-consuming means possible.'' \147\ Consistent with this 
intent, courts routinely make Tunney Act determinations on the basis of 
only the Competitive Impact Statement, comments filed by the public, 
and the response filed by the Department.\148\ With the benefit of the 
Department's Competitive Impact Statement in this proceeding, the 
comments filed, and this response, the Court now has before it a record 
sufficient to support a public interest determination.\149\
---------------------------------------------------------------------------

    \147\ S. Rep. No. 93-298, at 6 (1973).
    \148\ See supra Section III.
    \149\ For this reason, the Court should also reject Public 
Knowledge et al.'s unsupported request for an evidentiary hearing. 
See Public Knowledge et al. Comment (Exhibit 22) at 4.
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F. Comments Supporting Entry of the Proposed Final Judgment

    Several commenters stated that although they believe the settlement 
is unnecessary, they nevertheless endorse entry of the proposed Final 
Judgment. Scott Wallsten of the Technology Policy Institute refers to 
an earlier analysis he conducted that concluded the empirical evidence 
was mixed as to whether 4-to-3 mergers ``necessarily harm'' consumers, 
but that also ``identified areas in which the merger might pose some 
concerns.'' \150\ Mr. Wallsten goes on to state that, ``[t]aken 
together, the DOJ conditions address the concerns by aiming to lock in 
existing MVNO agreements while lowering the barriers to entry by a 
facilities-based carrier (DISH).'' \151\ Mr. Wallsten observes that 
these conditions ``appear designed to reduce the chances of consumer 
harm in the areas otherwise most likely to be affected while allowing 
the New T-Mobile to retain sufficient assets to compete with AT&T and 
Verizon.'' \152\ Mr. Wallsten states that these ``remedies lower the 
barriers to DISH's entry into mobile cellular,'' and that ``[l]owering 
the cost of entry also increases the chances DISH will enter the 
market, thereby increasing competitive pressure on the New T-Mobile 
(and other incumbents) from the threat of new entry.'' \153\ After 
noting that, ``[f]or the longer run, the DOJ also proposes to reduce 
barriers to entry into facilities-based provision for DISH,'' Mr. 
Wallsten concludes that ``the conditions proposed by the DOJ are a 
reasonable approach to managing potential concerns.'' \154\
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    \150\ Wallsten Comment (Exhibit 25) at 1.
    \151\ Id. at 1-2 (citing, inter alia, the divestiture of 
Sprint's prepaid businesses, the MVNO agreement ``to ensure [DISH] 
is able to sell a competitive mobile product,'' and the extension of 
all current MVNO agreements).
    \152\ Id.
    \153\ Id. at 5.
    \154\ Id. at 6.

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[[Page 61656]]

    Similarly, Randolph May and Seth Cooper of the Free State 
Foundation state that, while they ``do not specifically endorse or 
oppose the proposed merger or the proposed settlement,'' they believe 
there is ``strong evidence'' that the proposed merger, ``if approved 
pursuant to the proposed settlement, would be in the public interest.'' 
\155\ And the Enterprise Wireless Alliance states that it supports the 
merger because it ``would promote competition in the nationwide 
commercial wireless marketplace and accelerate the deployment of a 5G 
network covering much of the population including substantial 
expansions in coverage to rural areas,'' and that it also ``supports 
the introduction of DISH as a potential fourth national wireless 
carrier'' through the consent decree.\156\
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    \155\ May & Cooper Comment (Exhibit 23) at 1.
    \156\ EWA Comment (Exhibit 13) at 1. Two additional commenters 
explain that, after their initial concerns were satisfied by 
negotiating additional relief directly with T-Mobile, they now also 
support entry of the proposed Final Judgment. See California 
Emerging Technology Fund Comment (Exhibit 8) at 1-2 (after becoming 
a legal party in proceedings before the California Public Utilities 
Commission and negotiating a Memorandum of Understanding ``that 
provides unprecedented public benefits for California consumers, 
especially the digitally-disadvantaged,'' states that the 
``subsequent commitments secured by DOJ ensure that there is 
increased competition and additional choices for all U.S. 
consumers''); National Hispanic Caucus of State Legislators Comment 
(Exhibit 18) at 1, 4 (after securing ``commitments regarding 
deployment and hiring'' through an ``extensive Memorandum of 
Understanding'' between T-Mobile and the National Diversity 
Coalition, supports the DOJ's proposed settlement because it 
``addresses some residual concerns we had previously identified'').
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    A number of other commenters expressed support for the merger 
generally, without specifically commenting on the settlement. For 
example, several scholars affiliated with the International Center for 
Law & Economics submitted a letter along with their recent report that 
``reviews 18 empirical analyses in the last five years that study the 
effects of changes in market concentration (such as by merger) in the 
wireless telecommunications industry.'' \157\ These scholars express 
the view that the divestiture package ``is likely unnecessary to ensure 
that the market remains competitive.'' \158\ Nevertheless, and 
``regardless'' of the proposed remedy, the scholars state that they 
``believe that the DOJ was correct.'' \159\ The United States construes 
these submissions \160\ as comments in favor of entry of the proposed 
Final Judgment.
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    \157\ ICLE Report at 2.
    \158\ Id.
    \159\ Id. at 1-2. Similarly, Tech Freedom filed ``comments in 
support of the proposed Final Judgment and Stipulation and Order'' 
and ``urge[s] the Court to approve these Measures.'' TechFreedom 
Letter (Exhibit 26) at 1 (also attaching ``Comments of TechFreedom'' 
filed with the FCC on Sept. 17, 2018). TechFreedom states that it 
agrees with the analysis in the ICLE report discussed in the text 
above, and that while it believes the remedy measures ``actually go 
too far,'' it ``believes that the quickest path to bringing forth 
the benefits of the merger is for the court to approve the merger as 
agreed.'' Id. See also Competitive Enterprise Institute Comment 
(Exhibit 11) at 1, 5, 7 (after stating the proposed merger ``more-
than passes muster'' under the DOJ/FTC horizontal merger deadlines, 
discusses the benefits of T-Mobile's commitments to the FCC and 
``respectfully encourage[s] DOJ to accept the proposed 
settlement'').
    \160\ See also National Puerto Rican Chamber of Commerce Comment 
(Exhibit 19) (asking DOJ to ``approve the merger to help Puerto Rico 
expedite its [hurricane] recovery and grow its economy''); Overland 
Park Chamber of Commerce Comment (Exhibit 21) (``we support approval 
of the proposed merger''); Vermont Telephone Co. Comment (Exhibit 
28) (``Rural America has so much to gain from this [merger], and so 
much to lose if it does not go forward''); Viaero Wireless Comment 
(Exhibit 29) (the merger ``will directly benefit consumers and rural 
carriers like Viaero''); Center for Individual Freedom Comment 
(Exhibit 9) (CFIF and its supporters ``urge swift approval of the 
proposed merger''); Greater Kansas City Chamber of Commerce Comment 
(Exhibit 14) (writing to ``express the KC Chamber's support'' for 
the merger); National Diversity Coalition Comment (Exhibit 17) 
(stating it is ``one of many organizations that support the 
merger''); Asian Business Association Comment (Exhibit 4) (stating 
``our believe that this merger has the potential to greatly benefit 
everyone in America''); Williamson Comment (Exhibit 31) (``I 
strongly support the T-Mobile-Sprint merger and am hopeful that the 
Department of Justice will approve the Merger.''); Americans for Tax 
Reform Comment (Exhibit 3) at 1 (``I urge the Department of Justice 
to approve the merger.''); CalAsian Chamber of Commerce Comment 
(Exhibit 7) (``We have been outspoken in our support for the merger 
of T-Mobile with Sprint . . . .''); Members of the United States 
House of Representatives Comment (Exhibit 27) (Oct. 10, 2019 letter 
resubmits ``in support of the proposed Final Judgment'' Jan. 25, 
2019 letter sent to the FCC and the DOJ ``to express our support 
for, and encourage your prompt consideration of, the proposed merger 
of T-Mobile U.S., Inc. and Sprint Corporation.'').
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    Other states besides the Co-Plaintiff States in this matter have 
also indicated their support for the proposed Final Judgment. The 
Attorneys General of Arizona and New Mexico have also expressed their 
support for this settlement.\161\ The State of Mississippi went so far 
as to withdraw from the S.D.N.Y. Litigation and enter an agreement with 
T-Mobile that relies on the relief obtained by the FCC and in this 
proposed Final Judgment.\162\ The State of Colorado has now also 
withdrawn from the S.D.N.Y. Litigation and has requested to join as a 
plaintiff in this action.\163\
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    \161\ See ``Attorney General Brnovich Statement on DOJ-T-Mobile/
Sprint Merger Settlement'' (stating ``the divestiture, the FCC 
commitments, and PFJ provide Dish the realistic ability to become a 
competitive and fourth facilities-based wireless carrier'' and that 
the PFJ ``also facilitates Dish's ability to exercise its option to 
acquire the spectrum assets, cell sites, and retail assets to 
establish itself as a viable competitor in the retail mobile 
wireless services market''), available at https://www.azag.gov/press-release/attorney-general-brnovich-statement-doj-t-mobilesprint-merger-settlement; ``AG Balderas' Statement on the 
Department of Justice's Announced Agreement on T-Mobile/Sprint 
Merger,'' July 26, 2019 (the AG is ``pleased'' by the settlement), 
available at https://www.nmag.gov/uploads/PressRelease/48737699ae174b30ac51a7eb286e661f/AG_Balderas%E2%80%99_Statement_on_the_Department_of_Justice%E2%80%99s_Announced_Agreement_on_T_mobileSprint_Merger.pdf.
    \162\ See ``AG Hood Settles Concerns on T-Mobile-Sprint Merger, 
Increases Services Available for Mississippians'' (Oct. 9, 2019), 
available at https://www.ago.state.ms.us/releases/ag-hood-settles-concerns-on-t-mobile-sprint-merger-increases-services-available-for-mississippians/; Letter Agreement, ``T-Mobile and Sprint Pledged 
Commitments in Mississippi'' (``Mississippi Letter Agreement'') 
available at https://www.ago.state.ms.us/wp-content/uploads/2019/10/MS-T-Mobile-agreement-executed.pdf.
    \163\ See Consent Motion for Leave to File Third Amended 
Complaint (Oct. 28, 2019), Dkt. No. 40; see also ``Attorney 
General's Office Secures 2,000 Jobs, Statewide 5G Network Deployment 
Under Agreements with Dish, T-Mobile'' (Oct. 21, 2019), https://coag.gov/press-releases/attorney-generals-office-secures-2000-jobs-statewide-5g-network-deployment-under-agreements-with-dish-t-mobile-10-21-19/.
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    Finally, the Attorneys General of Utah and Arkansas filed a comment 
in this proceeding stating that they ``have studied--and agree with--
the conclusions in the DOJ's Competitive Impact Statement.'' \164\ In 
their view, the proposed settlement ``contains a powerful divestiture 
component'' and will ``greatly increase the probability that Dish will 
become a successful and significant fourth competitor in the market.'' 
\165\ They conclude that ``the settlement embodied in the proposed 
Final Judgment is in the public interest, mitigates the potential harms 
that the merger could otherwise have created, and offers benefits to 
rural communities while maximizing output and consumer choice for all 
Americans.'' \166\
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    \164\ Utah/Arkansas Comment (Exhibit 5) at 1.
    \165\ Id. at 2 (citing the ``multifaceted and detailed nature'' 
of the Divestiture Assets, DISH's willingness to be bound as a 
party, provisions allowing for DOJ and FCC verification, ``all 
backed by the potential of significant monetary penalties for non-
compliance'').
    \166\ Id. at 3.
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VI. Conclusion

    After careful consideration of the public comments, the United 
States continues to believe that the proposed Final Judgment, as 
drafted, provides an effective and appropriate remedy for the antitrust 
violations alleged in the Complaint, and is therefore in the public 
interest. The United States will move this Court to enter the proposed 
Final Judgment after the comments and this response are published as 
required by 15 U.S.C. 16(d).


[[Page 61657]]


Dated: November 6, 2019.

Respectfully submitted,
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Frederick S. Young,

Matthew R. Jones,

U.S. Department of Justice Antitrust Division, 450 Fifth Street NW, 
Suite 4100, Washington, DC 20530, (202) 307-2869, 
[email protected].

[FR Doc. 2019-24642 Filed 11-12-19; 8:45 am]
BILLING CODE 4410-11-P