@jbtaylor on tech

Today Sprint CEO Dan Hesse joined the CEOs of Atlantic Tele-Network, Bluegrass Cellular, C Spire Wireless, Cricket Communications, NorthwestCell, T-Mobile USA, and RCA - The Competitive Carriers Association in sending the following letter to the members of the Congressional Conference Committee considering the JOBS Act, H.R. 3630.

Dear Senators and Representatives,

We write to call your attention to language currently contained in Title IV of H.R. 3630 (the "JOBS" Act) that could cause the U.S. wireless market to revert back to the innovation and competition starved market that existed before Congress granted the FCC spectrum auction authority in 1993. The JOBS Act contains provisions that could provide significant benefits to smaller carriers and consumers by putting additional, high-quality spectrum into the marketplace. However, Section 4105 of the Bill, as currently worded, would undercut those benefits by prohibiting the Federal Communications Commission from considering existing spectrum holdings in determining a carrier’s participation in future spectrum auctions. The proposed provision would substantially limit the FCC’s ability to promote competition and a competitive wireless marketplace for consumers throughout America. It would facilitate spectrum warehousing, inefficient use of scarce spectrum resources, and reduce spectrum auction revenues to the U.S. Treasury. Accordingly, we ask Congress to support fair spectrum auctions that promote competition in the mobile broadband marketplace by eliminating Section 4105.

Congress first granted the FCC authority to design and conduct spectrum auctions in 1993; since then, the agency has conducted more than 80 auctions raising tens of billions of dollars for the U.S. Treasury and issuing thousands of new spectrum licenses. The FCC has used its auction design authority cautiously and wisely. It has adopted auction eligibility restrictions only when needed to promote competition and avoid excessive spectrum concentration in the hands of a few carriers. Stripping the FCC of its auction design discretion would disserve the public interest by permitting unchecked participation by the two largest, best-funded wireless carriers in future spectrum auctions. That would discourage smaller competitors from participating in future auctions thereby reducing auction revenues and limiting wireless competition and innovation.

In the early 1990s, Congress and the FCC were faced with a wireless duopoly. Congress responded by giving the FCC the auction eligibility flexibility it implemented to auction the spectrum which the undersigned wireless carriers used to compete in the marketplace. Congress’ challenge today is to authorize the FCC to conduct incentive auctions to bring additional spectrum to market while preserving the FCC’s ability to manage auction eligibility and structure to promote the benefits of vibrant wireless competition for consumers and the economy.

We urge you to safeguard America’s mobile broadband future by ensuring that FCC auction authority is renewed by taking the concrete steps outlined above.

Yesterday, a Federal judge in Washington, D.C. threw another roadblock in front of AT&T's attempt to takeover T-Mobile.

Despite nearly two months of telling consumers, the Court and the media that antitrust lawsuits filed by Sprint and C Spire Wireless were without merit, Judge Ellen Segal Huvelle decided last night that the suits can go forward.

This was not the outcome AT&T's lawyers had sought -- they had filed a motion before the Court seeking to dismiss the lawsuit filed by Sprint as well as one filed by C Spire Wireless.

Under the law, Sprint and C Spire had to allege that the proposed AT&T/T-Mobile transaction would violate Section 7 of the Clayton Act and in addition, they had to alleged that their businesses would be specifically injured if that transaction were completed.

The judge just had to deem the claims to be plausible. In an actual trial, the judge will rule on the merits of the claims themselves.

As long as one claim survived, the lawsuit goes forward. 

Despite the judge herself expressing doubt in court that the Sprint and C Spire lawsuits would survive AT&T's motion to dismiss, once she examined the complaints and heard oral arguments, she decided against AT&T's wishes, that the cases can proceed.

It's important to note that not all of Sprint and C Spire's claims will go forward, but significant ones will.

Last night, AT&T's General Counsel Wayne Watts issued a statement Consumerist dubbed, "snippy," stating that the remaining claims were "without merit" and "limited".

Okay, but here's the part they left out. If Judge Huvelle decided those remaining claims prove antitrust injury, she will issue an injunction and block the transaction entirely.

Perhaps that's why this morning, AT&T's top lobbyist Jim Cicconi felt the need to issue a second statement after a round of bad news headlines for AT&T.

Cicconi stated:

"Sprint can spint this however they'd like, but anytime a judge dismisses nearly all your claims, it's hardly a good day in court."

Wow.

So my question is this, since the Judge struck down AT&T's motion to dismiss the claims that were made about wireless handsets and roaming, that was a "good day in court" for AT&T?

If you ask me, AT&T's team of lawyers and lobbyists are starting to come unglued.

Maybe eventually, AT&T, Deutsche Telekom and T-Mobile executive will realize that this deal for what it is -- a stinker.

But given their alternative version of reality -- they think failing to stop these lawsuits was actually a good thing -- I think it's going to take some time before they come to the conclusion that the Department of Justice and 8 state Attorneys General have come to: this proposed transaction is illegal.

Judge Huvelle has set a scheduling conference for 9:30 a.m. Dec. 9, 2011 in Federal Court in Washington, D.C.

Sprint's Susan Z. Haller, vice president -- Litigation, issued the following statement to media:

“This evening, Judge Ellen Segal Huvelle decided that the antitrust complaints filed by Sprint and C Spire Wireless against AT&T, Deutsche Telekom and T-Mobile can go forward. Both Sprint and C Spire have demonstrated to the Court that they would be injured if the AT&T’s proposed takeover of T-Mobile were completed.

By allowing Sprint and C Spire Wireless to move forward with these lawsuits, the Court has ensured we receive a fair hearing. Along with the Justice Department and a bi-partisan group of Attorneys General from seven states and Puerto Rico, Sprint has concluded that the transaction would give AT&T the ability to raise prices, thwart competition, stymie innovation, diminish service quality and stifle choice for millions of American consumers.

We are pleased that the Court has given us the chance to continue fighting to preserve competition on behalf of consumers and the wireless industry.”

I love this iconic line from a Few Good Men: "You can't handle the truth!"

When it comes to AT&T's bid to takeover T-Mobile, every time they make a move in court, I secretly hope that Jack Nicholson walks in and shouts that famous line.

The judge wouldn't go for it, but it would make for a great drama. And I think consumers would cheer because they are growing weary of AT&T's repeated efforts to mislead them and misrepresent the facts.

But as it is, we already have plenty of drama -- I'm not sure we need Jack Nicholson. Just last week, AT&T asked the court to dismiss antitrust lawsuits filed by C Spire Wireless and Sprint. In court filings, AT&T refused to discuss any of the allegations made by C Spire and Sprint. AT&T just wants it all to go away.

Today, in a joint filing in Federal Court, C Spire and Sprint responded to AT&T's motions to dismiss the suits.

Here was the statement Sprint just released to media on behalf of Susan Z. Haller, Sprint's vice president - litigation.

“Thirty-four years ago, the Supreme Court of the United States established a simple and unassailable principle in antitrust law which AT&T, Deutsche Telekom and T-Mobile refuse to acknowledge: their competitors have the right to bring an antitrust complaint to stop AT&T’s proposed takeover of T-Mobile if they allege that the proposed transaction is likely to harm their ability to compete.

Last month, Sprint and C Spire Wireless, in a manner fully consistent with this long-held principle of antitrust law, did exactly that and explained how the proposed takeover of T-Mobile would harm consumers and hurt competition across the wireless industry.

Instead of addressing the facts brought forth in these complaints as the law requires, AT&T, Deutsche Telekom and T-Mobile have chosen to ignore them. Both the Court and American consumers deserve better.

With today’s filing, we are keeping our promise to continue to fight for consumers and for competition in the wireless industry.”

Oral arguments in these cases begin on October 24.

Once again, I want to remind readers that this is my personal blog. The only opinions which are Sprint's in this post are included in the statement attributed to Susan Haller.