T-Mobile/Sprint merger heads towards final two hurdles

With the CFIUS giving a green light on the $26 billion merger of TMUS and Sprint, attention can now be turned to the final hurdles presented by the Department of Justice (JoJ) and FCC.

According to the Wall Street Journal, the CFIUS (Committee on Foreign Investment in the US), which has been assessing the security implications of the deal, has given the go ahead. There has been no official statement made just yet, the CFIUS has abruptly pointed out it has no legal requirement to do so, though attention has most likely be focused on the last two potential problem areas for some time.

What is worth noting is that while there are opportunities for failure at every turn in the road, the CFIUS was unlikely ever to be a massive problem for T-Mobile or Sprint.

As a bit of background, the CFIUS is a multi-agency committee which assesses the impact of foreign investment on a number of different factors, most notably national security. Although a relatively unknown council, the Foreign Investment Risk Review Modernization Act (passed in August) vastly expanded the powers and influence of CFIUS, meaning it could probe into a wider variety of acquisitions, allow it to take longer and finally, charge for the pleasure of doing so.

Thankfully for T-Mobile and Sprint, the national security threat was low risk here. Firstly, you have to consider there isn’t any Huawei or ZTE kit in the pair’s networks right now, secondly, the Defense Authorization Act prohibits the use of any of their equipment or software in the future, and finally, the pair’s parent companies have said they would back away from Huawei for future investments.

It seems the direct threat to US national security, if you are in the camp of believing there is a genuine one, was minimal. The confirmation from non-domestic private businesses that they would pander to political paranoia looks like it was enough to ensure the CFIUS have no objections. All ties to Huawei and ZTE have been severed so it seems its mission accomplished for Trump.

Now it’s onto the tough jobs; the Department of Justice and the FCC.

The FCC is digging its heels in for the moment, extending the 180-day shot clock for approval, as it searches for justification for the deal. This is where the issue may lie for T-Mobile and Sprint, as while the FCC is looking to determine whether a proposed transaction will serve the public interest, convenience and necessity, the evidence and support seems to be stacking up against the pair.

The Department of Justice on the other hand will be looking to assess whether the proposed merger would have a material impact on competition. Too much of a sway in the negative and this deal will head straight to the bin. The four to three operators shift could create monopolies in certain localities which will not be viewed favourably.

The finish line is now in sight, but it is still unclear which direction this will go. While the signs have been positive, the FCC has proven to be a surprise package while there are certainly warranted competition concerns for the DoJ to ponder.