Liberal interest groups Public Knowledge and Media Access Project don't just want AT&T's $39 billion deal with T-Mobile to die—they want AT&T to suffer; they want the Federal Communications Commission to twist the knife as it kills the merger.
In a filing with the FCC on Monday, the two groups argue that the FCC doesn't have to accept the request AT&T quietly submitted over Thanksgiving to withdraw its merger application. They argue that the FCC can go ahead and release a hearing designation order (HDO) that says the wireless merger would not serve the public interest and would result in a "massive loss of U.S. jobs and investment."
AT&T decided to withdraw its application after FCC Chairman Julius Genachowski began circulating a draft order designating the merger for an administrative law hearing, the only option open to the FCC when it finds a deal that does not serve the public interest. At the time, AT&T said it believes its application to withdraw was made before the commission had a chance to vote on the HDO.
But Public Knowledge and MAP were having none of it, and they called immediately for the FCC to go ahead and release the HDO. Now the two have finalized their argument in a motion.
In the motion, PK and MAP argue that the commission has wide latitude to determine what to do with AT&T's withdrawal application, including making the HDO public, releasing the FCC's study of market conditions that is part of the HDO, and requiring that any future merger filings by the companies be automatically designated for an administrative hearing.
"The public deserves for the commission's determinations to see the light of day," PK and MAP wrote in the filing.
AT&T and T-Mobile parent Deutsche Telekom said they were withdrawing their application in order to concentrate on the Department of Justice's case in federal district court, which begins in February. PK and MAP contend that because the deal is not changing, the move to withdraw from the FCC represents nothing less than "litigation gamesmanship."
"The commission's application dismissal rules are not designed to indulge this kind of behavior, and the commission is well within its authority to protect the integrity of its procedures, deny the request, and move forward with its evidentiary investigation," PK and MAP wrote in the FCC motion.
AT&T said last week that it believes the FCC will grant the request. "We have every right to withdraw our merger from the FCC, and the FCC has no right to stop us. Any suggestion the agency might do otherwise would be an abuse of procedure which we would immediately challenge in court," said Wayne Watts, AT&T's general counsel.
The FCC has been playing coy about what it will or will not do, acknowledging only that it has received AT&T and Deutsche Telekom's request for withdrawal. "The commission will consider that request," an FCC senior official said in an email responding to a request for comment.