@jbtaylor on tech

For nearly 30 years, Rick Boucher represented the people of Southwest Virginia in Congress with distinction. I personally was disappointed that he was defeated for re-election in 2010. Mr. Boucher has a keen understanding of many of the complex public policy issues in telecommunications. He was fantastic at forging compromises among his fellow Members of Congress. People on the Hill, even when they disagreed with him, liked him. I sure do. He was the kind of Congressman who most closely represented my personal views.

When he was defeated, Boucher became a lobbyist for Sidley Austin. "Sidley offers a truly unique opportunity for me to promote the growth of a public policy group that brings together lawyers renowned for their leadership in areas I have focused on for much of my career, such as technology, telecommunications, life sciences, financial services, energy and the environment,” said Mr. Boucher in a news release announcing his new job in May last year.

Sidley Austin is one of the most respected law firms and lobbying firms in Washington, D.C. The folks at Sidley proudly tout their work on behalf of AT&T -- they've represented AT&T and its predecessors for more than a century. There's an entire page on Sidley's website about its work for AT&T.

I have absolutely no problem with any of that.

But I am disappointed that Mr. Boucher continues to publicly advocate for AT&T's public policy positions without disclosing that he is now an AT&T lobbyist.

Today's oped in Roll Call on spectrum policy is the latest example. His oped today is not unique in its lack of disclosure.

Throughout the fight over AT&T's failed bid to acquire T-Mobile, Mr. Boucher gave dozens of interviews and penned dozens of opeds claiming that the proposed T-Mobile takeover would benefit rural America. Never once did he disclose his new relationship with AT&T.

Usually, Mr. Boucher would describe himself as the chairman of the Internet Innovation Alliance. Never once were readers told that IIA is largely funded by AT&T and the other large landline phone companies.

Mr. Boucher, were he still in office, may very well have advocated for AT&T's failed merger with T-Mobile. He also may have advocated for AT&T's public policy positions on spectrum and other issues. I would like to think so.

At least when he was in office, voters knew that AT&T was his third largest campaign contributor. That was fully disclosed and voters could decide for themselves the significance of AT&T's donations to his campaign.

But now that he is a lobbyist, he doesn't have to disclose his relationship to opinion page editors. He should though. I don't know one editor who wouldn't find that relevant and worth sharing with readers.

Disclosure in politics is important. Even though this is my personal blog and the views I present here aren't necessarily those of my employer, I think it's important for you to know I work for Sprint. That's why I disclose that on this blog and elsewhere online.

Mr. Boucher should do the same. Doing so would be consistent with his reputation he earned over many years of public service.

On the afternoon of Dec. 19, AT&T announced that it was abandoning its bid to takeover T-Mobile from Deutsche Telekom.

The companies involved no doubt read what Judge Huvelle said about their arguments before her court. Just 10 days earlier, on Dec. 9, the judge eviscerated the lawyers representing AT&T, T-Mobile and Deutsche Telekom. On five separate instances, the judge called their arguments "presumptous" and she accused the attorneys of attempting to "use" the court. "The landscape has changed," Huvelle said.

It was a devastating day for AT&T and friends.

And AT&T would just as soon pretend it never happened.

So that's exactly what the company did. In its statement announcing the news of the failed merger, AT&T's CEO blamed the FCC and the Justice Department for a problem which Judge Huvelle said was "self-made". And then predictably, AT&T's friends at conservative think tanks and editorial pages chimed in to inject President Obama into the debate.

Nonsense.

AT&T, DT and T-Mobile could go back to court in January and argue that the DOJ and FCC were wrong on the law. But they knew that was a losing battle. Their own documents contradicted every claim in their endless press releases.

It was just easier to say that they were beat up by overzealous regulators appointed by a liberal President who disregards the law.

Give me break.

This was never about politics. It was about consumers, competition and antitrust law. That's why a bi-partisan group of state attorneys general joined with the Justice Department in filing suit to block the deal.

Not that AT&T didn't try to make it all about politics. They touted the political support of governors and members of Congress and civic groups, nearly all of whom had received cash from the company. And AT&T loved to tout the political support of state attorneys general who opted not to participate in the National Association of Attorneys General task force which investigated the deal.

Each of these AGs, who didn't investigate the proposed transaction, yet endorsed it, also were getting campaign cash from AT&T.

There is certainly an argument worth having about the role of regulators in telecom policy. But in this case, AT&T's bid to takeover T-Mobile was not stopped by the FCC or the Justice Department or state attorneys general, or rivals Sprint or C Spire, or the legions of consumer advocates or the tens of thousands of consumers who protested this stinker of a deal from day 1.

It was stopped by Deutsche Telekom and AT&T, who walked out of court, unwilling to face further scrutiny not from a regulator whom they rail against, but scrutiny from a Federal judge, who found their legal arguments unconvincing.

p.s. Please remember that this is my personal blog and does not necessarily reflect the views of my employer.

Yesterday's status conference for the Justice Department's antitrust case against AT&T, Deutsche Telekom and T-Mobile should have been a snoozer. For weeks I had told media not to bother to attend as I expected several hours of discussion about pre-trial procedures and planning. Chatter about how many witnesses will be called and when depositions would be held don't make for good news stories in my view.

"Come in February when the actual trial begins," I said.

But that changed when AT&T and Deutsche Telekom attorneys decided to yank their merger applications from the FCC at 2:30 in the morning on Thanksgiving Day.

The attorneys didn't anticipate that the FCC would release to the public its report on the investigation into the proposed transaction. The report made it clear that no matter how you slice it, the proposed takeover of T-Mobile is anti-competitive and not in the public interest.

Never mind, said AT&T. The report is a draft. It's a preliminary report. It has no weight of law. It's unprecedented to have released such a report.

None of that was true, of course.

But AT&T told media that it had decided to focus on beating the Justice Department and state attorney generals in court. Then, the theory went, they would go to the FCC and say, "See, there's nothing anti-competitive about our mega-merger. Approve it please."

Well, yesterday Judge Ellen Segal Huvelle was having none of that. She had read the FCC report and told AT&T's attorney who urged her to ignore it, that, "It was fairly negative, sir."

Talk about an understatement.

Then, for the next hour or so, she eviscerated lawyers from AT&T and Deutsche Telekom, repeatedly telling them that their position was, "presumptuous" and at one point, she said, "I think you're flatly wrong on the law."

My favorite part was when the AT&T lawyer was complaining about how unfair it was that the judge was reconsidering the expedited schedule which set the trial for February.

Pointing out that it was AT&T and Deutsche Telekom who pulled their application from the FCC, an action which prompted her to reconsider the February trial date, Judge Huvelle said, "your problem is self-made."

At that point, AT&T's lawyer said, "Let's forget about the FCC for a moment" -- which prompted the entire courtroom to burst into laughter.

I'm told by a reporter that during the laughter, Judge Huvelle said, "I'm not forgetting about the FCC."

And that, ladies and gentlemen, is now the biggest problem facing AT&T, Deutsche Telekom and T-Mobile.

Next week, on Dec. 15, the parties are back in court to argue a motion from the Justice Department which would essentially put the case on hold until AT&T and Deutsche Telekom file a new merger application at the FCC. The judge indicated that she would like to have an FCC official appear in court next week, but it is not clear if the FCC will send a representative.

While attorneys will also argue some pre-trial motions related to the Sprint and C Spire Wireless antitrust suits against AT&T, Deutsche Telekom and T-Mobile, I think the most interesting part of the day will be to hear how AT&T plans to convince a skeptical judge that she should, "forget about the FCC."

p.s. Please remember that this is my personal blog and does not necessarily reflect the views of my employer.

Tonight the Financial Times has a really significant story out about the growing doubts held by the government of German Chancellor Angela Merkel that AT&T's proposed takeover of T-Mobile will ever be approved by the U.S. government.

FT writes that Merkel's government is "increasingly worried" that the proposed transaction "will founder on antitrust concerns."

The German government is Deutsche Telekom's largest shareholder, holding 32 percent of all outstanding shares. T-Mobile USA is wholly owned by Deutsche Telekom.

FT quotes unnamed German government officials saying that the government, "was all but resigned to the deal failing -- or to Deutsche Telekom trying to reconfigure the transaction."

Most significantly, FT reports that, "the government had not been given an early or full picture of the regulatory risks," surrounding approval of the proposed transaction.