(Bloomberg) -- States suing to block T-Mobile US Inc.’s proposed acquisition of Sprint Corp. urged the federal judge overseeing the landmark antitrust trial not to defer to the Trump administration’s approval of the $26.5 billion deal.
Lawyers for New York and California, which are leading the lawsuit for the states, said in a filing late Wednesday in Manhattan that the deal’s approval by the Justice Department and the Federal Communications Commission doesn’t carry any special weight and should be ignored by the judge.
“The federal government approved the merger with what appears to be only a cursory examination of the approval conditions,” the states said, and the decision was “inconsistent” with its past opposition to consolidation in the wireless market.
The government had asked in a Dec. 20 filing that its approvals be given deference. The response comes as T-Mobile and the states are preparing for closing arguments in the lawsuit next week before U.S. District Judge Victor Marrero. The closings will follow two weeks of testimony in December in which the states tried to show that the combination of the third- and fourth-largest wireless carriers would lead to higher prices.
The Justice Department’s antitrust division and the FCC signed off on the merger after the companies agreed to sell assets to Dish Network Corp. to set up a new wireless competitor. That remedy is central to T-Mobile’s argument to Marrero.
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During the trial, the states showed that the head of the antitrust division, Makan Delrahim, took unusual steps to get the deal done, exchanging text messages with Dish Chairman Charlie Ergen. At one point during negotiations, Delrahim suggested Ergen ask his “Senator friends” to contact FCC Chairman Ajit Pai about the deal.
Delrahim has been a harsh critic of approving mergers with conditions that impose rules on how companies conduct business. Yet he approved the Sprint deal with just those kind of conditions, the states said in their filing.
“DOJ’s antitrust chief previously stated that he does not ‘think [he’s] smart enough’ to design remedies ‘that distort competitive incentives just enough to undo the damage done by a merger, for years to come,’” the states said. “It is unclear what has changed.”
Wall Street is increasingly skeptical of the companies’ chances of prevailing. The spread between T-Mobile’s offer price for Sprint and the trading price, an indication of the deal’s risk, swelled to an all-time high Thursday of $3.17 at 2:27 p.m. in New York. Cowen & Co. analyst Paul Gallant sees a 60% chance the judge will rule in favor of the states.
Read More: U.S. Sides With T-Mobile in Fight Against States Over Sprint
In separate filings Wednesday night, the states and T-Mobile outlined their evidence.
The states say the deal would give T-Mobile the power to raise prices by eliminating competition between the two companies and leaving just three major carriers -- AT&T Inc., Verizon Communications Inc. and T-Mobile. The enlarged company would have a national market share of 34% by revenue, making the deal “presumptively illegal” under antitrust law, they said. And Dish -- a satellite-TV provider with no experience in the wireless market -- won’t be a real competitor, they said.
T-Mobile and Sprint countered that the tie-up would actually lead to more competition. By combining the two networks, T-Mobile will have more capacity and lower costs, which in turn will lead to lower prices for consumers. Without the deal, Sprint won’t be unable to upgrade its network infrastructure to remain competitive, they said.
“There is no realistic way, aside from the merger, to break the ‘vicious cycle’ of poor network quality leading to subscriber losses and reduced network investment, leading to even worse network quality,” the carrier said. “Sprint is increasing prices, and without the merger it will continue to do so and will retreat from nationwide service.”
The case is New York v. Deutsche Telekom, 19-cv-5434, U.S. District Court, Southern District of New York (Manhattan).
(Updates with court filings starting in eighth paragraph)
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