The FCC has released a Memorandum Opinion and Order that affirms the FCC’s prior decision to dismiss a petition to deny and a supplemental petition to deny the assignment of licenses from AT&T to T-Mobile that occurred after the two carriers aborted a deal to merge in 2011. After AT&T and T-Mobile announced their intention to merge in early 2011, numerous parties, including the Diogenes Telecommunications Project, filed petitions to deny. Diogenes premised its initial claim of standing on the fact that one of its members was a current T-Mobile subscriber (and former AT&T subscriber) who had been “extremely dissatisfied” when he was with AT&T and he did not want to return as an AT&T subscriber. After the two carriers dropped their bid to merge, that petition to deny was dismissed. As part of the “break up” fee between the carriers resulting from the aborted merger, AT&T agreed to sell spectrum to T-Mobile. Diogenes then filed a second petition to stop this sale, this time asserting that another of its members, this one a current AT&T customer, would be harmed if AT&T sold needed spectrum to T-Mobile. The FCC found that Diogenes lacked standing to contest the assignment applications and dismissed Diogenes’ petition to deny the subsequent transaction. Diogenes eventually filed an application for review and a supplement to that application because it had been filed after the Commission’s filing date. The Commission in the present Memorandum Opinion and Order finds that Diogenes did not provide a basis for concluding that the FCC erred in dismissing the supplement as untimely filed, that Diogenes did not possess the requisite standing necessary to block the grant of applications, and with respect to the current AT&T customer, Diogenes failed to establish a “certainly impending” injury-in-fact or even an “objectively reasonable likelihood” of one occurring. For all of these reasons, the Commission has affirmed its earlier decision to dismiss Diogenes’ petition to deny the applications and the supplemental petition to deny.
