Genachowski filed a draft order with his fellow commissioners, stating that the acquisition should be reviewed by an administrative law judge. The FCC itself does not have the authority to block the acquisition, but can send the deal to a judge, who can in turn take the necessary steps to prevent the merger from happening.
Genachowski said that the FCC has reviewed hundreds of thousands of pages of material, met with both AT&T and T-Mobile dozens of times, and received 50 separate petitions seeking to block the merger.
It has concluded that the merger would create "unprecedented consolidation" in the wireless industry, resulting in "massive job losses" and millions of dollars of lost of investment. Genachowski said quite bluntly that the deal is not in the best interests of consumers. Of course, AT&T has preached the opposite of this, stating that the deal will create tens of thousands of jobs and spur further investment.
The FCC has to agree to the draft order, which won't happen until the group convenes mid-December. If the entire commission agrees with Genachowski, then a trial date will be set complete with witnesses and testimony, etc. The bad news for AT&T is that this trial won't take place until after the Department of Justice takes its shot at AT&T, which isn't scheduled to start until February.
With both the Justice Department and the FCC aligning against the merger, there's little chance of success left for AT&T.
"The FCC's action today is disappointing," said Larry Solomon, senior vice president of Corporate Communications, AT&T. "It is yet another example of a government agency acting to prevent billions in new investment and the creation of many thousands of new jobs at a time when the U.S. economy desperately needs both. At this time, we are reviewing all options."
So, what exactly are AT&T's options and, more importantly, what are T-Mobile USA's options?
AT&T can soldier on--and probably will, despite the money it will lose pursuing its case. It will have to face the Department of Justice in court, the FCC in court, and Sprint and C Spire Wireless in court. AT&T had originally hoped to close the deal by March 2012. Now there's a snowball's chance in hell of that happening.
If everything falls apart, however, T-Mobile is left hanging in the wind.
It's no secret that Deutsche Telekom, T-Mobile USA's parent company, wants to sell the fourth-place U.S. carrier. But who's left to buy it? Sprint no longer has the cash, and it never really made sense for Sprint to buy T-Mobile USA anyway. Private investors are a possibility, but the amount of capital they'd have to raise is in the tens of billions.
The one silver lining here is that AT&T has agreed to give T-Mobile USA a massive break-up fee, totaling about $6 billion in cash and wireless assets (spectrum). Given T-Mobile's aggressive roll-out of HSPA+, and impressive roster of high-end, appealing smartphones, the company has a shot. Fresh with some more cash and spectrum assets, it is possible (however unlikely) that T-Mobile can make something of itself.
Any way you look at it, though, the future is murky for both AT&T and T-Mobile. AT&T stands to lose billions in court and break-up costs--which will surely annoy investors to no end--and T-Mobile/Deutsche Telekom stand to lose the only suitor it has had in the last few years.
Understandably, Sprint is dancing all sorts of happy dances. In a statement provided to media, Vonya McCann, Sprint’s Senior Vice President of Government Affairs, said, "As Chairman Genachowski said in August when the Justice Department filed its antitrust lawsuit against AT&T, the record before the FCC presented, 'serious concerns about the impact of the proposed transaction on competition.' That record is complete and more than justifies moving this matter to an Administrative Law Judge for a hearing. We appreciate Chairman Genachowski's leadership on this issue and look forward to the FCC moving quickly to adopt a strong hearing designation order."
Sprint has strongly opposed the acquisition since day one.
The Communications Workers of America has sided with AT&T, and issued its own statement Tuesday evening in support of AT&T.
"The action by the Federal Communications Commission on the AT&T/T-Mobile merger is a job killer at a time of 9% unemployment. Our T-Mobile members know that the path to secure jobs is through massive investment in a 4G LTE network across America. T-Mobile management has clearly stated that the company doesn't have the scale to justify that investment. The FCC's decision relegates the issue of good jobs to the bottom of the government's priorities."
If the FCC's decision today isn't the final nail in the coffin, it is at least placing the lid on casket.