FCC in uncharted terrain on AT&T-T-Mobile

Faced with an unprecedented turn of events, the Federal Communications Commission must figure out how to handle the AT&T/T-Mobile deal now that the companies have asked to withdraw their applications from the agency. FCC officials have three options:

1. They can allow AT&T and Deutsche Telekom to withdraw the applications without prejudice, meaning the companies could refile at any time.
2. They can allow the proceeding to end with prejudice. In that case, the companies would not be able to resubmit their applications later.
3. They can go forward with its process to send the case to an administrative law judge and deny the companies’ request.

If the FCC decides to continue on that path and publish its hearing designation order, it could be even more damning for AT&T and T-Mobile. The order likely contains the FCC staff’s conclusions about the anti-competitive effects of the proposed merger and how the deal would affect consumer choice and prices.

The FCC has never faced this situation in a merger proceeding. The last time the FCC chose to send a merger proceeding to an administrative hearing was in 2002, when EchoStar and DirecTV tried to merge. The companies ended up dropping the deal entirely.