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Barbara T. Sicalides, a partner with Pepper Hamilton and head of the Antitrust Section of the firm’s Trial and Dispute Resolution Practice Group, was quoted in the December 16, 2019 FierceWireless article, "Analysts Anticipate Dish's Ergen Testimony as T-Mobile/Sprint Trial Heads into Week Two."
The companies are claiming some substantial benefits from the deal, and it makes sense that the judge would probe them on that, according to Barbara Sicalides, a partner at Pepper Hamilton LLP and head of the Antitrust Section of the firm’s Trial and Dispute Resolution Practice Group.
Going from four to three in any industry is a big deal, and it has to be proven that there will be as much competition after the deal; there can't be a substantial lessening of competition. And in any industry, if the two that are merging are usually the disruptors in the marketplace that offer lower prices, that's a big deal, she said. "A four-to-three deal is a big deal in any industry."
The only time it might not matter so much is if it were an industry where a new competitor could get up and running in a matter of months, she said. Of course, that's not how it's been in wireless, where companies require years of investment and a lot of it. Granted, Dish has indicated it will deploy a virtualized network from the get-go and forego legacy equipment, so it can presumably get to scale faster than traditional operators have done, but that's also not yet proven.
This particular proposed merger has been unprecedented in a number of ways, including having states arguing a case that two federal entities have approved. Typically, they don't do it on their own, and it's very unusual for states to be in this position, according to Sicalides.
Sicalides said she would not expect the judge to issue a decision before the first of the year; usually it's weeks after a trial ends when a judge would publish a decision and it could go into February. It's a lot of work to put together a decision like this and there's a significant chance it will be appealed, so the judge will want to take his time and get it right. "There will be a lot of pressure on the judge to get it done," she added, noting the length of time the transaction has been in the works.
If the judge rules the transaction is bad for consumers, it could be a big problem for the US Department of Justice and FCC, since both of those organizations approved the deal with conditions, she said. "It's a lot of responsibility."