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Why Hope Is Fading for Sprint and T-Mobile - The Wall Street Journal

Makan Delrahim, chief of the Justice Department’s antitrust division, speaks in Laguna Beach, Calif., Oct. 22, 2019. Photo: Martina Albertazzi/Bloomberg News

In a 1931 essay, Winston Churchill marveled and fretted over the accelerating pace of industrial and technological change, predicting the cellphone and much else. He also acknowledged that the only solution for the problems of progress was more progress: “Mankind has gone too far to go back. . . . There are too many people maintained, not merely in comfort but in existence, by processes unknown a century ago.”

Why does this apply to T-Mobile and its struggling partner Sprint ? Because their proposed wireless-industry merger is in deep trouble thanks to a regulatory circus that does little either to temper bad progress or facilitate good progress.

Though the nation’s two expert agencies, the Justice Department and Federal Communications Commission, approved the deal with tweaks, 13 states, led by the attorneys general of New York and California, are suing to block it. They would be the first to deny it, but theirs is a campy exercise in “resistance” politics. Sadly, the Justice Department’s Makan Delrahim outwitted himself and may have given them the means to prevail.

His FCC colleagues supported the deal with modest adjustments, but he decided he needed a more convoluted fix to appease antitrust critics. Now this fix is the deal’s main weakness before a judge. And unhelpful were text messages introduced at trial showing him urging various interested parties, including Charlie Ergen of Dish Network, to get behind his fiddling. The New York Times delighted in editorializing that Mr. Delrahim’s “campaign to secure Dish’s participation amounted to a concerted effort to satisfy his own objections to the proposed deal.”

Well sort of. His fix consisted of goodies dangled in front of Mr. Ergen, to lure him into becoming the country’s fourth “national, facilities-based wireless operator,” the role Sprint would be vacating by merging with T-Mobile.

The quotes need to be there for a reason. A decade ago, Justice opined that four such carriers were necessary to maintain competition, but this dubious axiom, which has never been tested and belongs to a different era, Mr. Delrahim apparently felt powerless to junk.

Then, the industry was growing; now the big challenge is how to provide growing bandwidth to a nongrowing customer base, at a steadily declining cost per bit. Teens use their smartphones to keep live video chat sessions open all day long, even when they have nothing to talk about. Consolidation may be the only way operators can invest to serve such emerging, hard-to-predict “5G” uses without going broke. Remember, this is happening at a time when 5G means cable operators will also be coming after wireless customers.

And yet, to hear the deal’s opponents tell it, nothing has changed since the iPhone appeared in 2007. Federal District Judge Victor Marrero was urged to ignore the cable giants Comcast and Charter, though their extensive wired and Wi-Fi networks give them a substantial leg-up in the coming 5G “small cell” era.

The judge was urged to ignore the possible entry into the wireless fray of the big cloud operators Amazon, Apple, Google and Microsoft, never mind that just such a deal was the rumored subject of closed-door testimony by Mr. Ergen.

He was urged even to ignore the existence of today’s thriving reseller industry, though these resellers wouldn’t exist if they didn’t have a marketing edge over the big four incumbents when it comes to certain consumer demographics.

Most implausibly, he was urged to believe Sprint and T-Mobile want to merge so AT&T and Verizon can raise prices. That is, the partners would shoulder the costs and risks of a deal for benefits that mostly accrue to their bigger rivals.

Alas, based on a statement by Judge Marrero to expect a quick ruling, Sprint stock has tanked. Mr. Delrahim’s acrobatics were likely well-meaning—to help the economy keep evolving despite hurdles created by his own agency’s precedents. The job of every honest appointee, after all, is partly to protect America from the bureaucracy. But he outsmarted himself by conceding that the deal was anticompetitive, if only by the lights of an antiquated and untested Obama-era axiom, and then proposing a fix the judge would be hard-pressed to believe in.

A better approach would have been a confident and unequivocal unanimity by Justice and the FCC, saying the deal, with modest tweaks, advances the public interest in a dynamic, competitive broadband industry. Then the judge would have had something to work with against the arguments of the opponents. Churchill was prescient in anticipating cell service. He would have needed a darker crystal ball to anticipate a regulatory culture that steadily undermines the ability of technology to find answers to the challenges created by technology.

The week's best and worst from Kim Strassel, Kyle Peterson and Dan Henninger. Image: C-Span

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