@jbtaylor on tech

On Monday, Oct. 24 in U.S. District Court in Washington, D.C., attorneys for AT&T and Deutsche Telekom presented oral arguments asking the Court to dismiss antitrust lawsuits filed by Sprint and C Spire Wireless seeking to block AT&T's proposed takeover of T-Mobile.

The courtroom was packed to the gills will all kinds of lawyers and lobbyists and the proceeding was lengthy. Several reporters who reported stories today did so before the proceeding completed -- the exceptions where the wire services -- Bloomberg, Reuters and Dow Jones. I'd recommend their coverage of today's events instead of those who left early.

In layman's terms -- and Lord, knows, I'm no lawyer -- here's what happened:

Judge Huvelle heard arguments about AT&T's motion to dismiss the Sprint and C Spire cases, but made no decision about granting or denying the motion. At various points in the arguments, she was skeptical of what the lawyers for both sides were saying. so I think it would be a mistake to predict what her final ruling will be. Regardless of the outcome here, it's important to note that the merits of the Justice Department's case against AT&T, Deutsche Telekom & T-Mobile were not discussed. The arguments focused on one narrow procedural question: will the proposed takeover of T-Mobile injure C Spire and Sprint? If she decides there is injury, the cases move forward. If she decides there is no injury, AT&T has one less legal hurdle to overcome.

The second motion which was argued went even deeper into the legal weeds. But honestly, it wasn't that hard to understand if like me, you got some sort of a briefing in lay terms before the court proceeding began. The basic question debated was this: who gets what confidential documents from AT&T, T-Mobile and Deutsche Telekom when?

Here's the backstory on the second motion:

When the Department of Justice conducted its law enforcement investigation into the legality of AT&T's proposed takeover of T-Mobile, it collected millions of pages of documents. This evidence led the Department to determine that the proposed transaction was illegal.

By right, AT&T, Deutsche Telekom and T-Mobile are entitled to all of this evidence and they got it all shortly after the lawsuit was filed. Included in that stack of documents were 2.2 million pages of evidence from Sprint.

Now remember, Sprint has sued AT&T, and in a normal lawsuit, Sprint would be able to begin gather documents from AT&T. But in this case, the judge has ended up delaying Sprint's case because she is entertaining a motion to dismiss the case altogether.

Sprint argued that this decision gives AT&T a huge advantage. Attorneys for AT&T can use those 2.2 million pages of documents from Sprint that Department of Justice provided, but meanwhile nothing requires AT&T to give even one page to Sprint.

So even if Sprint beats back AT&T's motion to dismiss, it will be almost a month behind AT&T in reviewing and analyzing evidence from AT&T. To make matters even more unfair, AT&T has subpoenaed Sprint for even more documents -- some dating back to 2005. Judge Huvelle said AT&T's request was, "overwhelming" and she urged the company to withdraw the subpoena.

At the end of the session, the Judge decided to keep the protective order intact, but to grant the Justice Department the ability to come to the court to get permission to share specific AT&T documents with Sprint and C Spire. This will be an interim measure until the motion to dismiss is resolved.

Still with me?

The judge at several points in the session readily admitted she didn't understand some of the basic elements of the wireless industry such as how handset makers strike deals with carriers, how carriers agree to roaming arrangements and how carriers rely on landline companies to provide wireless backhaul or special access.

So she can climb the learning curve, Judge Huvelle asked both DOJ and AT&T to provide her with a series of 10 page memos on these topics. Those are due in November.

That's about it. So why, you may ask, do I have a photo of fog to go along with this post? Well, because AT&T's lawyers did a fantastic job today of fogging up the issues at hand. There were several points where they simply didn't tell the whole truth or in other cases they deliberately misled the judge.

I think that was a mistake they will eventually regret. The fog they created in the courtroom today will eventually lift. And when it does, the judge won't deal kindly with those who misled her.