Phillip Dampier

Now that the initial shock of an aggressive — some say “audacious” — move by the Justice Department to block a merger AT&T confidently called “a done deal” is past, analysts of all kinds are attempting to discern the inside reasons for the merger’s rejection, where the deal can go from here, and what signals this will send the rest of America’s telecom industry.

In short — was this one merger proposal too far over the line?

The Justice Department reviewed reams of data, document-dumped by AT&T, on the company’s rationale for wanting to absorb T-Mobile and its implications for employees, consumers, and the dwindling number of wireless competitors.

They quickly discovered they did not like what they were seeing:  an all-new AT&T with a combined 132 million wireless customers, completely dwarfing all of their competitors and signaling a full-scale retreat from the company’s historic landline network.  An unregulated, increasingly concentrated wireless marketplace, represents the Wild West of fat profits, ripe for the picking by those large enough to control the market.  Increasingly, that means two former Baby Bells — AT&T and Verizon.

The Wall Street Journal charted more than two decades of mergers and acquisitions, which reduced nearly two dozen players down to five supersized telecom companies.

The Politics

Decisions at Justice are hardly made in a vacuum.  Politics always plays a role, and it’s a safe bet Obama Administration officials well-above rank-and-file lawyers in the Antitrust Division sent clear signals to the Department about how it wanted the review handled.  After all, this same team of lawyers had almost no trouble approving a mega-merger between NBC-Universal and Comcast Corporation, not finding anything ‘antitrust’ about that deal.  But Justice officials hurried out their own lawsuit with a wide-ranging, harsh condemnation of the deal at yesterday’s press conference.  As most Americans already know, competition in the cable industry is hardly robust, but market concentrating mergers and acquisitions are approved regularly in that industry.  So why did the Justice Department have such a problem with AT&T?

America's Wireless Market: Beyond well-behind, third-place Sprint, no other carrier comes close to AT&T or Verizon Wireless.

Many analysts seem to blame the company’s “arrogance” in telling reporters the merger was a breeze to be approved, others point to spectrum issues, as well as complaints about AT&T’s poor service potentially ensnaring T-Mobile customers.  But above all, Justice lawyers believe that America’s wireless marketplace needs at least four national wireless carriers, particularly scrappy T-Mobile, which has a long history of being a disruptive player in the market, loathe to offer the kind of “identical twin”-pricing common at AT&T and Verizon Wireless.  Losing T-Mobile’s aggressive performance in the market would mean declaring open season for price increases and abusive business practices.  After all, where would wireless consumers go?

That “four national carrier”-test could be a big problem for T-Mobile, as it could mean Justice lawyers would also reject an presumed alternative — combining Sprint and T-Mobile,  rumored before AT&T moved in and stole the show.  A new entrant willing to buy-out Deutsche Telekom’s U.S. wireless interests may be the only palatable solution acceptable to Justice lawyers because it would keep T-Mobile intact and running, independent of other wireless carriers.

Justice also completely discounted the relevance of regional carriers like MetroPCS, Cricket, U.S. Cellular, and other smaller providers.  The reason is simple: roaming.  All of these smaller providers are completely dependent on the four large national carriers to deliver essential roaming services for their customers who travel outside of the regions where these smaller companies deliver service themselves.  All national carriers would have to do to control an overly-competitive “problem” carrier is withdraw roaming agreements or raise prices for them.

Sprint, among others, is obviously the most relieved by yesterday’s events.  Their long term viability as a national carrier dwarfed by AT&T and Verizon Wireless would have raised numerous questions about whether that company could survive in the long term.  Sprint would have also felt pressure to beef up its own operations, likely through acquisitions of several regional carriers, particularly MetroPCS and Cricket, which share its CDMA network standard.

Wall Street is livid, of course.

The great gnashing of teeth has begun on Wall Street, evident as stock analysts begin raising questions about President Obama’s “anti-business” policies.  While executives at both AT&T and T-Mobile are at risk of losing substantial bonuses for pulling the deal off (and providing special retention packages to keep key talent from leaving), there is also a lot of money to be lost in New York and Washington should the deal collapse.  Take the “little people” that will be out tens of millions in deal fees and proceeds from extending credit, implementing the merger itself, and structuring the legal mechanics.  They include:

Arnold & Porter: The now infamous law firm that accidentally posted an un-redacted document on the Federal Communications Commission website that exposed, in AT&T’s own words, what consumer groups already strongly suspected: AT&T preferred the long term benefits of knocking pesky T-Mobile out of the marketplace, even though the $39 billion dollar price tag dwarfed the $4 billion estimated cost of building AT&T’s own 4G LTE network.  That’s the 4G network executives deemed “too expensive” earlier this year.  With a deal collapse, the firm can say goodbye to lucrative legal fees and perhaps more importantly, their reputation of properly managing their clients’ business affairs.

Greenhill & Co.: Greenhill is one of several all-star, platinum-priced advisory firms hired by companies acquiring other companies to structure and implement their mergers.  With Greenhill hoping for a substantial piece of at least $150 million set aside by AT&T to cover these specific costs, a merger-interrupted could cost key people some nice year-end bonuses.

JPMorgan (Chase): The House of J.P. Morgan handed over a check for AT&T worth up to $20 billion to help finance the deal.  JPMorgan doesn’t do that for free.  In addition to any interest proceeds, JPMorgan also charges a range of underwriting and administrative fees that could easily total $85 million dollars.  AT&T might have to send the check back.

Cable Business News & Business Media: One of the most ironic developments watching the Justice Dept. decision unfold was the unintentional amount of AT&T advertising promoting the merger that preceded video reports and appeared adjacent to AT&T-related stories.  Those ads may soon end, costing cable news and the business press substantial ad revenue.

Cable business news networks offered up scathing analyses. Among anchors and analysts upset with the news of the merger’s potential derailment, it didn’t take long for “couched questions” to begin, pondering whether President Obama was against big companies, jobs, or the concept of the private sector in general.  Completely missing: coverage of the benefits for consumers who potentially don’t have to endure a further concentration in the wireless marketplace.

Craig Moffett from Sanford Bernstein, who usually celebrates all-things-cable, today told the Wall Street Journal the actions at Justice will harm business at every U.S. wireless carrier.

“Put simply, the industry will be structurally less attractive than it would otherwise have been,” he said. “Pricing is likely to be less stable, and profound technological risks, including free texting and bandwidth arbitrage, that would be manageable in the context of a significantly consolidated industry now become much more threatening.”

Judge Ellen

In other words, a hegemony of AT&T and Verizon Wireless could play rough with third party developers trying to undercut text message pricing and deliver data plan workarounds. With more competitors, consumers could simply abandon abusive providers.  Without those competitors, consumers have to pay AT&T’s asking price or go without service.

The Law

AT&T may be hoping it scored one potential success in its anticipated legal challenge against the Justice Department’s antitrust case.

The judge assigned to hear arguments is Ellen Segal Huvelle, who has a track record of slapping down government overreach.  Huvelle previously rejected Justice Department objections to the merger of SunGard and Comdisco — two disaster-recovery businesses.  The government argued the merger would leave just two major players in that business.  Judge Huvelle dismissed that, claiming the government too-narrowly defined what a disaster-recovery business entailed.  If she finds AT&T’s arguments of robust competition from regional carriers, landlines, and Voice Over IP credible, Justice lawyers may have a problem.  So could consumers.

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PBS Newshour explores where the AT&T/T-Mobile merger goes next, now that the Justice Dept. sued to stop it on antitrust grounds.  (7 minutes)

Any consumer who has ever paid an early termination contract cancellation fee to a wireless carrier might feel a little satisfaction today knowing AT&T’s languishing deal to acquire T-Mobile comes with its own $3 billion dollar penalty payable to Deutsche Telekom if the merger fails to come to fruition.

Sachin Shah, merger arbitrage strategist with Tullett Prebon Americas Corp., suggests that $3 billion dollar fee (and the spectrum giveaway that goes with it) delivers a real incentive for AT&T executives to find a way to force the deal through, and their next venue will likely be federal court in the District of Columbia to keep the government from getting a preliminary injunction against the merger deal.

For AT&T, any legal action will certainly cost far less than $3 billion dollars, so the company has little to lose rolling the dice trying to find a remedy in a district court that has become increasingly business-friendly.

Shah believes yesterday’s announcement by the Justice Department also provides additional paths for AT&T to consider:

• Renegotiate the deal: AT&T could go back to the bargaining table with T-Mobile and return to the DOJ with an amended proposal it hopes will be more acceptable to the government’s antitrust lawyers;
• Reboot the lobbying campaign: AT&T could claim scuttling the deal will cost American jobs — a particularly sensitive topic with unemployment around 9 percent;
• Re-engage AT&T Employee Unions: The Communications Workers of America are true believers in the AT&T/T-Mobile deal, if only because it is likely to broaden union membership to include T-Mobile workers.  Shah thinks the unions might speak to a more receptive audience among certain union-friendly lawmakers who have also been concerned AT&T will use the merger to clear-cut T-Mobile’s employees.

Shah thinks the Justice Department has not entirely slammed the door shut on AT&T’s proposed merger, and there have been precedents of DOJ lawyers changing their minds.

Meanwhile, the Federal Communications Commission, quieter than a church mouse ever since the deal was announced, apparently found cover from the DOJ decision, and FCC Chairman Julius Genachowski delivered his own “me too” statement hours after the Justice Department announced their lawsuit:

“By filing suit today, the Department of Justice has concluded that AT&T’s acquisition of T-Mobile would substantially lessen competition in violation of the antitrust laws,” Genachowski said. “Competition is an essential component of the FCC’s statutory public interest analysis, and although our process is not complete, the record before this agency also raises serious concerns about the impact of the proposed transaction on competition. Vibrant competition in wireless services is vital to innovation, investment, economic growth and job creation, and to drive our global leadership in mobile. Competition fosters consumer benefits, including more choices, better service and lower prices.”

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Sachin Shah says the U.S. Justice Department’s lawsuit to block AT&T Inc.’s proposed $39 billion takeover of T-Mobile USA Inc. does not mean the deal is dead.  He speaks with Lisa Murphy on Bloomberg Television’s “Fast Forward.”  (5 minutes)

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On this afternoon’s “Strategy Session” on CNBC, the host and his analyst guests seem clearly disappointed by today’s decision to block the AT&T/T-Mobile merger, at one point posing the question, “Is President Obama anti-growth?”  Watch as the CNBC team brainstorm ideas to try and rescue the $39 billion merger and then ask yourself is this an appropriate role for business journalism?  (14 minutes)

Industry Minister Christian Paradis just completed nearly two weeks of private meetings with some of Canada’s largest telecommunications companies regarding issues important to the industry, but has not scheduled face time with ordinary Canadian consumers or the public interest consumer groups that represent their interests.

Minister Paradis

Wire Report provided the schedule:

Aug. 16
Cogeco Cable Inc.
Shaw Communications Inc.
Quebecor Media Inc.
Globalive Wireless Management Corp.
Xplornet Communications Inc.
Public Mobile

Aug. 17
EastLink
BCE Inc.
Mobilicity
Telus Communications Co.

Aug. 22
Rogers Communications Inc.
MTS Allstream

Aug. 24
SaskTel

Bloomberg reports the primary topic on the agenda is upcoming spectrum auctions for additional wireless frequencies and loosening restrictions on foreign-ownership rules regarding would-be wireless competitors interested in entering Canada’s cell phone marketplace, which currently has the third-highest prices for mobile-phone services in the world, according to the OECD.

A rules change regarding foreign ownership may open the door...

Canadian telecom providers may not have more than 20 percent of their operations owned or controlled by foreign entities, a percentage that could be adjusted in the coming months.  But while changes in foreign ownership rules may benefit new entrants like Globalive Holdings, which operates Wind Mobile, it could also spell profound changes for millions of Canadians.  Industry analyst Dvai Ghose told Bloomberg he expects any relaxation of foreign-ownership rules may also pave the way for a mega merger of Bell and Telus.

“If you allow foreigners into our market, it becomes much more compelling to say we should allow one Canadian champion,” said Ghose, co-head of Canadian research at Canaccord Genuity.

That “champion” could quickly become Canada’s version of AT&T, dramatically reducing competition and raising prices, especially for captive landline customers who rely on the companies for broadband and landline service.  Telus and Bell currently compete with one another in the wireless market, where they would have an enormous share and combined market power should they be permitted to merge.

That would be a high price to pay for many Canadian consumers who do business with Bell or Telus, especially when contrasted with the fact Wind Mobile has attracted only 271,000 customers as of the end of March 2011.

...to a mega-merger of Bell and Telus.

Unfortunately, consumers are not included in Minister Paradis’ day-planner to share their views of further marketplace consolidation or wireless spectrum reform.  In fact, they don’t even have a right to learn what exactly was discussed during the closed door sessions.

A spokeswoman for Paradis, Pascale Boulay, would only confirm the minister met with 13 companies since Aug. 16, but refused to elaborate on the meetings.

Federal Communications Commission chairman Julius Genachowski tried this approach with some of America’s largest telecommunications companies last summer, holding a series of closed door meetings.  They eventually produced telecommunications policies so watered down, they neutralized Genachowski’s earlier commitments to protect Net Neutrality and foster additional competition.  Will Canada repeat America’s mistake?

On September 13, most PBS stations will premiere a new documentary, “Bill McGowan, Long Distance Warrior” exploring the many trials and tribulations of MCI Corporation, the long distance and e-mail provider that was instrumental in breaking up Ma Bell’s monopoly in telephone service.

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A preview of PBS’ Long Distance Warrior, which premieres on most PBS stations Sept. 13  (3 minutes)

For those under 30, “MCI” may not mean much.  The company that helped pioneer competitive long distance calling was absorbed into the Worldcom empire in 1997, where it continued to provide service until a major corporate accounting scandal brought Worldcom down in 2002.  Most of what was left was eventually sold to Verizon Communications in 2005.

Remarkably, Microwave Communications, Inc. (MCI) was founded all the way back in 1963, but not as a provider of telephone services.  That MCI sought to build a network of microwave relay stations between Chicago and St. Louis to provide uninterrupted two-way radio service for some of the nation’s largest trucking and shipping companies.

The Bell System

By the late 1960s, William G. McGowan, an investor and venture capitalist from New York won a seat on MCI’s board of directors and part ownership of a newly-envisioned version of MCI — one that would provide businesses with a range of telecommunications products, including long distance telephone connections.  With many American corporations maintaining branch and regional offices, connecting them together was a potentially very lucrative business, especially if MCI could deliver the service at prices cheaper than what the monopoly Bell System was charging.

With their microwave relay network, now expanding across the country, MCI could distribute long distance phone calls cheaply and efficiently, if they could find a way to connect that network to Bell’s local phone system.  After all, it does little good to offer long distance service if you cannot connect calls to the businesses’ existing telephone equipment.

That’s where AT&T and its Bell Operating Companies objected.  For them, only calls originating on and delivered over their own network should be allowed.  MCI, as an interloper, was seeking to use the network AT&T built and paid for.  It’s an argument that has echoed more than 30 years later, when AT&T’s then-CEO Ed Whitacre objected to outside Internet content providers “using AT&T’s pipes for free.”

[flv]http://www.phillipdampier.com/video/MCI First 20 Years.mp4[/flv]

On the occasion of MCI’s 20th anniversary, the company produced this retrospective exploring the difficult times competing with AT&T and the Bell System.  (9 minutes)

MCI's best argument: AT&T's long distance bills

McGowan confronted arguments from AT&T executives who warned that competitive long distance would destroy the business model of America’s Bell System, which provided affordable local phone service to all 50 states, in part subsidized by long distance telephone rates, mostly paid by its commercial customers.  Tamper with that, they warned, and local phone bills would be forced to soar to make up the difference.

MCI called that argument a scare tactic, and suggested instead that AT&T’s monopoly had grown inefficient, bloated, expensive, and resistant to innovation and change.  MCI could deliver a substantially less expensive service and would force AT&T to increase its own efficiency to compete.  AT&T wasn’t interested in that argument and sued, repeatedly, to keep MCI out of its business.

By 1984, federal courts declared AT&T a monopoly worthy of a break-up, and opened the door to MCI’s long distance network.  By that time, MCI was already thinking about evolving itself beyond a business long distance provider, whose network was largely idle after business hours.  Because most Americans were accustomed to making long distance calls at night when rates were substantially lower, MCI developed new residential long distance service plans that encouraged customers to use that idle network at night and on weekends.

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One of MCI’s most memorable ads features a sobbing mother who reached out and touched her son over long distance a little too much.  (1 minute)

Thus began more than a decade of heavy advertising and competition for the long distance telephone market.  With equal access rules in place, consumers could choose their own long distance phone company and shop for the one with the lowest rates.  Competitors like Sprint, WilTel, LDDS, RCI, LCI, and yes, even AT&T all pitched their own calling plans.

MCI also pioneered MCI Mail, one of the first commercial electronic mail systems.  The original concept had businesses typing letters on a computer terminal, printed on standard paper at an MCI office closest to the destination, and then mailed in an envelope through the U.S. Post Office.  This poor-man’s version of a telex or telegram worked for businesses that wanted overnight delivery, but not at the prices charged by shippers like Federal Express.  In larger cities, MCI Mail could offer businesses delivery of their electronic communications within four hours, something closer to a traditional telegram of days gone-by.

MCI Mail’s hard copy deliveries wouldn’t last long, of course.  As the 1980s progressed, the fax machine and the more familiar all-electronic e-mail we think of today became firmly established.  As MCI Mail became less relevant, the company innovated into offering low priced telex services, mass-faxing, and data backhaul services to provide connectivity for online networks.

[flv width=”504″ height=”400″]http://www.phillipdampier.com/video/WIBW MCI Mail 1984.flv[/flv]

WIBW explores a new concept in communications — something called ‘electronic mail,’ a service that bewildered consumers in the early 1980s.  This report from 1984.  (2 minutes)

Bill McGowan: Would not approve of AT&T's plans to restore the glory days of the past.

AT&T, in contrast, was still getting over the loss of its local Bell Operating Companies — the regional phone companies most Americans did business with, and the loss of revenue earned from renting telephone equipment.  For years, AT&T long distance was branded as a quality leader, not a price leader.  It maintained its enormous market share partly through consumer indifference — customers who did not initially choose a new long distance carrier remained with AT&T, the default choice.

It took only about a decade after the Bell break-up for telecom industry lobbyists to begin advocating for enough deregulation to allow many of those former Baby Bells to re-combine through mergers and acquisitions.  The result is today’s AT&T, formed from its long distance unit, BellSouth, Illinois Bell, Indiana Bell, Michigan Bell, Nevada Bell, Ohio Bell, Pacific Bell, Southwestern Bell, Wisconsin Bell, and Southern New England Telephone.  Its largest competitor is Verizon Communications, which itself resulted from a combination of Bell Atlantic, NYNEX, GTE, and what was left of MCI after Worldcom was through with it.

McGowan’s fight was a personally costly one.  A workaholic, McGowan routinely put in 15 hour work days and drank up to 20 cups of coffee daily.  His heart finally had enough and McGowan succumbed to a heart attack in 1992 at age 64.  But he leaves a legacy and two decades of fighting to break up AT&T’s monopoly, which he always believed was bad for consumers and business (unless you were AT&T, of course).  That’s an important message as AT&T strengthens its resolve to acquire one of its significant competitors in the profitable wireless market — T-Mobile.  McGowan would have never approved.

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“The Computer Chronicles,” a production of KCSM-TV, spent a half hour in June 1987 showing off electronic e-mail service from MCI and how consumers and businesses using something called a “modem” could connect their home computers with online databases and services to exchange information and communications back and forth.  And for those business travelers on the road, away from their office computers, Speech Plus offered a product that could still keep you “connected,” by reading your e-mail to you over the phone.  In 1987, outside of commercial pay networks like CompuServe, Delphi, PeopleLink and QuantumLink, most Americans with modems used them to connect to typically-free hobbyist-run computer bulletin board systems.  Widespread access to “the Internet” would take another 5-6 years.  (29 minutes)