On November 26, my colleague Seth Cooper and I filed comments in the FCC's proceeding reviewing the proposed T-Mobile-MetroPCS merger. In those comments, we concluded that, "considered in a proper analytical framework, this proposed combination will likely improve the competitive standing of T-Mobile/MetroPCS in reaching wireless consumers across the nation and thus serve the public interest."
The only other party to submit comments on that date was the Communications Workers of America, which asked the FCC to condition approval of the proposed transaction on the imposition of certain job protection requirements. On December 5, I posted a blog, "The FCC, Merger Reviews, and Job Protection Pleas," in which I said: "No one wants to see people lose jobs, especially in today's difficult economy. I certainly don't. Nevertheless, CWA's request for job protection conditions is out of place in the merger proceeding."
In concluding, I summarized this way:
"[T]he FCC has no business abusing its merger review authority by conditioning the merger on adoption of the job protection plan put forward by the CWA. Regardless of whether the Commission has abused its authority this way in the past, such a condition is simply too far afield from any legitimate view of the Commission's exercise of its merger review responsibilities."
In catching up post-holiday on my reading backlog, I see that a group of organizations, ranging from the AFL-CIO and NAACP to the Sierra Club, Jobs for Justice, and the Center for Community Change, have submitted a reply comment in support of CWA's position. These groups ask the FCC to adopt the same job protection provisions requested by CWA and, like CWA, they assert that "[t]here is ample evidence in the record to raise concerns about post-merger job cuts by a merged T-Mobile/MetroPCS."
In my December 5 blog, I explained in considerable detail why it would be wrong for the FCC to adopt CWA's request to impose job protection conditions. So I don't want to repeat all that here.
Without belaboring the matter, let me just emphasize these points.
- Even granting that the "public interest" standard under which the merger is being considered may be vague, were the Commission to attempt to employ such vagueness as a basis for imposing – or for seeking to impose on T-Mobile through a wink-and-a-nod "voluntary" extraction – job protection conditions, the agency will commit an egregious abuse of its regulatory authority. However broad the FCC's "public interest" authority may be, in the context of reviewing proposed license transfers, it is not so broad as to encompass injecting itself into the management of the size and composition of the workforces of companies subject to the agency's regulatory authority. This is far afield from its legitimate responsibilities. If the Commission goes down the road sought by the CWA, it will be confronted with incessant requests to adopt further job protection plans in different contexts.
- While it is would be improper for the FCC to grant the relief sought by CWA and the other public interest organizations in the context of the T-Mobile-MetroPCS or any other license transaction review, it is appropriate for the Commission to consider the impact of its regulations on investment, innovation, and job growth in generic regulatory proceedings. Regulations which are unduly burdensome or which are unnecessary to prevent consumer harm have an adverse economic impact.
- It would be wrong for the Commission to allow the objections of CWA and the other public interest organizations to slow down processing of the proposed merger. Apparently there are no other non-frivolous objections to the transaction, so this should be a case in which the Commission shows that it can act with dispatch in reviewing merger proposals. Perhaps it can even be a precedent of sorts that, going forward into 2013, the Commission intends to consider proposed license transactions much more quickly than it has in the past.