Opposition to Motion to Withdraw of Public Knowledge and Media Access Project

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Public Knowledge and the Media Access Project hereby oppose AT&T, Inc.’s (“AT&T”) motion to withdraw its application to acquire licenses from T-Mobile USA (“T-Mobile”).1 The Federal Communications Commission (“Commission”) is under no obligation to stand idly by while AT&T attempts to game the system and circumvent Commission review of its application.
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  Before theFederal Communications CommissionWashington, D.C. 20554  Applications of AT&T Inc. and )Deutsche Telekom AG for Consent )to Transfer Control of the Licenses ) WT Docket No. 11-65and Authorizations Held by T-Mobile )USA, Inc. and Its Subsidiaries ) OPPOSITION TO MOTION TO WITHDRAW OFPUBLIC KNOWLEDGE AND MEDIA ACCESS PROJECT  Jodie GriffinHarold FeldP UBLIC K   NOWLEDGE  1818 N Street, NW, Suite 410Washington, DC 20036Andrew Jay SchwartzmanM EDIA A CCESS P ROJECT  1625 K Street, NW, Suite 1000Washington, DC 20006 November 28, 2011  INTRODUCTION Public Knowledge and the Media Access Project hereby oppose AT&T, Inc.’s (“AT&T”)motion to withdraw its application to acquire licenses from T-Mobile USA (“T-Mobile”). 1 TheFederal Communications Commission (“Commission”) is under no obligation to stand idly bywhile AT&T attempts to game the system and circumvent Commission review of its application.The Commission’s rules explicitly give the Commission flexibility to act when parties attempt toabuse agency process in order to protect the integrity of the Commission’s procedures. AT&Tand Deutsche Telekom AG have explicitly and publicly stated that they are not requesting awithdrawal because they are re-thinking their proposed license transaction, but rather becausethey intend to seek a favorable decision in federal court, which the companies can then use to pressure the Commission to approve the merger. 2 AT&T and Deutsche Telekom fear that theCommission’s opinion as the relevant expert agency will hurt their arguments at trial, but theCommission has ample authority to continue to investigate the parties’ application despite theconsequences that investigation may have on AT&T’s trial strategy.AT&T’s claims that the proposed merger will serve the public interest have beenrepeatedly called into question by industry competitors and public interest advocates alike, and aformal administrative hearing will allow the Commission to thoroughly scrutinize AT&T’sclaims and any evidence purported to support those claims. The Commission should thereforedeny AT&T’s recent request to dismiss its application without prejudice and issue a HearingDesignation Order. 3 Allowing AT&T to withdraw its application only after learning that it had 1   See Withdrawal of Application Form 603 of AT&T, Inc. and Deutsche Telekom AG (Nov. 23, 2011). 2    AT&T & Deutsche Telekom Continue to Pursue Sale of DT’s U.S. Wireless Assets , D EUTSCHE T ELEKOM  (Nov. 24, 2011), http://www.telekom.com/dtag/cms/content/dt/en/1106028. 3   See Letter from Patrick J. Grant, Counsel for AT&T, Inc., and Nancy J. Victory, Counsel for DeutscheTelekom AG, to Marlene H. Dortch, Secretary, Federal Communications Commission (Nov. 23, 2011).  lost its battle to avoid an evidentiary hearing—and after merger opponents have spent monthsand millions of dollars urging the Commission to initiate such a hearing—would thwart the fair and efficient operation of the Commission’s procedural regulations. The Commission hasauthority to deny the AT&T’s withdrawal request, and should do so quickly to avoid delayingthe issuance of the Commission’s forthcoming Hearing Designation Order. ARGUMENTI. THE COMMISSION HAS DISCRETION TO DENY THE WITHDRAWAL REQUEST. The Commission has discretion to deny a request to withdraw when, as here,circumstances demonstrate that permitting withdrawal would harm the public interest andundercut the integrity of the Commission’s procedures. In its letter, AT&T purported towithdraw as of right, but cited no particular regulation that gives it such a right. 4 As DeutscheTelekom and AT&T admitted, this withdrawal request was intended to give AT&T a tacticaladvantage in the parties’ case against the Department of Justice in federal district court. 5 If AT&T is able to leverage this advantage favorably in the federal court system, it could thenreturn to the Commission and seek approval again, without worrying that the Commission’sinformed expert opinion or factual investigation would harm AT&T’s trial strategy in court,while using any favorable court decision against the Commission in their future license transfer application. This type of litigation gamesmanship wastes the resources of both the Commissionand the federal court system. The Commission’s application dismissal rules are not designed toindulge this kind of behavior, and the Commission is well within its authority to protect theintegrity of its procedures, deny the request, and move forward with its evidentiary investigation. 4    Id.   5    AT&T & Deutsche Telekom Continue to Pursue Sale of DT’s U.S. Wireless Assets , D EUTSCHE T ELEKOM  (Nov. 24, 2011), http://www.telekom.com/dtag/cms/content/dt/en/1106028.  The Commission has discretion to deny AT&T’s withdrawal request. The Commission’srules give the Commission discretion to dismiss applications involving wireless radio services. 6  If the Commission decides to dismiss an application at the request of an applicant, the rulesinstruct the Commission to dismiss the application with or without prejudice according to the preference of the applicant, with some exceptions. 7 The application dismissal rule was created bythe Commission to govern “the filing of incomplete or otherwise defective applications in allwireless services,” 8 not to permit applicants to use the Commission as a pawn in its battle withanother law enforcement agency. The Commission’s decision of whether to dismiss anapplication is given substantial deference by courts, which will affirm the Commission’sdecision to deny AT&T’s request unless the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 9 Here, the docket is replete with evidencenot only supporting the need for a formal administrative hearing, but demonstrating how partieshave expended considerable time and resources in making the issues ripe for the Commission’sdecision. The Commission must take this information into account as it evaluates AT&T’srequest, and the Commission should conclude that the Hearing Designation Order must goforward. A. EVEN IF THE COMMISSION GRANTS DISMISSAL FOR THETRANSFER OF TITLE III LICENSES, IT SHOULD CONSIDER SEPARATELYWHETHER TO DISMISSAL THE APPLICATION TO TRANSFER TITLE IILICENSES. 6 47 C.F.R. § 1.934(a) (“The Commission may dismiss any application in the Wireless Radio Services atthe request of the applicant . . . .”) (emphasis added). Similarly, the Commission has discretion to permitamendments to applications if good cause is shown. 47 C.F.R. § 1.927(e). 7 47 C.F.R. § 1.934(a)(1). 8 Facilitate the Development and Use of the Universal Licensing System in the WirelessTelecommunications Services, 63 Fed. Reg. 68,904, 68,907 (Dec. 14, 1998). 9    Environmentel, LLC v. FCC  , No. 10-1344, 2011 U.S. App. LEXIS 23080 at *10 (D.C. Cir., Nov. 18,2011) (citing 5 U.S.C. § 706(2)(A)).
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