Shark-infested waters for AT&T and T-Mobile USA

Months after the U.S. Department of Justice announced its formal opposition to the merger of AT&T and T-Mobile, the Federal Communications Commission yesterday announced it would hold its own unusual “administrative hearing” to review the deal regardless of the outcome of a Justice Department lawsuit.

It has been more than nine years since the FCC last held such a hearing, which derailed the proposed merger of satellite TV providers DISH Network and DirecTV.  It is the clearest indication yet that regulators are deeply uncomfortable with the deal.

FCC Chairman Julius Genachowski waited for the Justice Department to announce its opposition to the deal before making his own concerns known.  The decision to pursue the special hearing, which won’t begin until 2012 and is likely to take several months, follows the lead of antitrust regulators at the DOJ.

It represents a nightmare scenario for AT&T, which has spent millions lobbying and promoting a merger with Deutsche Telekom’s T-Mobile USA.

An unnamed FCC official told The Wall Street Journal AT&T’s campaign has been playing fast and loose with the facts, particularly relating to claims the merger will create up to 100,000 new jobs. The official, who has seen confidential document filings from AT&T, says the phone company’s secret papers reveal the exact opposite — “massive job losses” if the deal gets approved.

Most companies confronting an FCC administrative hearing think long and hard about the prospects of the deal. Unlike an antitrust legal case, which must prove that a merger will substantially undercut competition, the FCC need only prove a deal is contrary to the “public interest” to reject it, a much lower hurdle.

When DirecTV and DISH failed to win a nod from the FCC for their merger, it fell apart.

Solomon

AT&T was testy after hearing the news.

“It is yet another example of a government agency acting to prevent billions in new investment and the creation of many thousands of new jobs,” AT&T senior vice president of corporate communications Larry Solomon told the Journal. He added, “We are reviewing all options.”

A growing number of Wall Street analysts believe those options are dwindling by the day, and an all-out war by AT&T against regulators could come at a cost when the giant phone company brings other business before them. Genachowski is still willing to go to bat for AT&T, circulating a draft approval among fellow commissioners that would grant the company’s separate proposal to purchase $1.9 billion in additional wireless spectrum from Qualcomm, Inc.

Observers predict AT&T might offer to divest a larger portion of T-Mobile than it was originally comfortable considering.  That may ultimately prove less expensive than the alternative — paying Deutsche Telekom a breakup fee worth $6 billion dollars should the merger fail to succeed.

[flv width=”512″ height=”308″]http://www.phillipdampier.com/video/WSJ FCC Chief to Seek Hearing on ATT Deal 11-22-11.flv[/flv]

The head of the Federal Communications Commission will seek an administrative hearing on AT&T’s proposed $39 billion deal to acquire T-Mobile USA, according to a person close to the matter. Thomas Catan has details on The Wall Street Journal’s ‘News Hub.’  (2 minutes)

[flv width=”360″ height=”290″]http://www.phillipdampier.com/video/WEWS Cleveland ATT service issues 11-11-11.mp4[/flv]

A late August thunderstorm brought down AT&T’s phone lines in the backyard of 80-year-old Isabelle Hendricks of Cleveland, Ohio.  More than two months later, the cables were still strewn across Hendricks’ yard, her phone line was only sporadically in service, and AT&T was still ignoring calls pleading the company to do something about it.

Nephew Anthony Mauldin took his AT&T Horror Story to YouTube, and the phone company still refused to get the lines off the ground.

“It’s been very frustrating, because we’ve been trying to get somebody out here since the first of September,” Mauldin told WEWS News. “They gave us a date, but they didn’t show.”

Mauldin says his aunt has been hospitalized over the past week, and lives alone.  He’s concerned AT&T’s landline is so intermittent, she may not be able to contact anyone in the event of an emergency.

AT&T claims it could not complete the repairs because when the lines fell, tree debris came with it — too much debris for AT&T crews to be comfortable working around.

More than two months later, Mauldin called WEWS-TV in hopes a little media exposure might do the trick.  It did.  Within two hours of the newsroom calling AT&T, crews were in Ms. Hendrick’s backyard cleaning up the mess, along with their telephone cables.  (2 minutes)

Netflix is selling $400 million in stock and convertible notes to bolster its cash-on-hand as the company faces the imminent loss of important video content for its streaming movie service.  Netflix stock has paid the price in what some investors are calling the worst deal ever. Michael Pachter, an analyst with Wedbush Securities, suspects banks might be turning Netflix down for traditional, less expensive bank loans, leaving the expensive stock sale its only alternative.

Netflix continues to lose subscribers upset over recent price increases and impending content reductions on the company’s streaming service.  Much of Netflix’s more-recent streaming movie library comes from its expiring deal with Starz, and that content will disappear in February.

Banks may be worried the forthcoming downsizing of Netflix’s online selection combined with increasingly expensive streaming renewal deals for the programming that remains may make the company too risky, even if they use the money to acquire additional content. The company might be one rate increase away from a subscriber exodus.

Netflix CEO Reed Hastings isn’t inspiring confidence among investors either.  He’s been selling nearly 5,000 shares of Netflix stock every week since the beginning of the year, according to filings with the Securities and Exchange Commission.  If Hastings ultimately dumps 260,000 shares in the company he founded, investors wonder, why should they buy?

The Wall Street Journal financial MarketBeat blog wonders just how many more blunders are in store for the former high-flying company:

So Netflix is raising a bunch of cash by selling stock when it’s super cheap, after spending a lot of money earlier this year buying back stock when it was super expensive.

This comes after it raised its prices high enough to irritate half its customers, then tried to chase off the other half by shunting them off to a splinter company named after a pot-smoking Elmo. Then it said, never mind, just kidding, please don’t leave us. We can’t wait to not read the business-school papers written about this one!

For some mysterious reason, investors are once again fleeing in disgust from Netflix’s stock, which is down more than 4% this morning at $71. And analysts are not too pleased, either — although, these being analysts, there are of course some who say everything’s just fine, the stock’s a great bargain.

Pachter believes either the company’s chief financial officer is “a moron,” or the company is in growing trouble, unable to convince traditional lending sources with cheap money to share some with Netflix.  The company still expects a financial loss in the coming quarter, although it says subscriber flight is now diminishing.  Netflix is also trying to find new content to keep subscribers satisfied, although much of it consists of repeats of low budget cable documentary and reality shows. Considering these challenges, affordable liquidations could provide financial relief and a strategic approach to managing their resources effectively.

Completely overshadowed by the stock sale are two just-announced Netflix acquisitions: a recommissioned Arrested Development, a quirky comedy which ran on Fox from 2003-2006, and the BBC’s ruthless 1990 political intrigue mini-series House of Cards.

[flv width=”360″ height=”290″]http://www.phillipdampier.com/video/Bloomberg Pachter Says Netflix Plan to Raise Cash Terrible Deal 11-21-11.mp4[/flv]

Michael Pachter, an analyst with Wedbush Securities, talks about Netflix’s agreement to sell $400 million in stock and convertible notes to bolster cash as it increases spending for online rights to films and TV shows. (Bloomberg News)  (8 minutes)

AT&T pays a lot of money — millions annually — to make sure its business agenda does not run into political or legislative roadblocks in Washington, D.C.  With dozens of members of Congress effectively on AT&T’s campaign contribution payroll and the company’s unparalleled skill at convincing non-profit organizations to advocate for its interests, worrying about the government’s antitrust views on its proposed buyout of Deutsche Telekom’s T-Mobile was the least of its troubles.

“It’s a done deal,” several analysts predicted shortly after the deal was announced, especially after AT&T demonstrated its confidence level in the merger was as high as the enormous $6 billion dollar breakup concession payable to Telekom if it ever fell apart.

Then the government dared to put its two cents in, in the form of a “are you kidding me?”-lawsuit courtesy of the U.S. Department of Justice.  It seems, in the words of some Beltway cynics, the Obama Administration can manage to see a clear cut case of anti-competitive behavior when given enough time.

Since the lawsuit was announced on Aug. 31, it has been “all-hands-on-deck” for the company’s government relations division, packed full of the company’s top lobbyists.  While company lawyers desperately attempt to block what it sees as “pile on” objections and lawsuits from worried competitors, Sprint-Nextel in particular, AT&T lobbyists are trying to compromise away the Justice Department case with proposals of concessions and giveaways to make approval more palatable.

Further north, as fall turns into winter in New York’s financial district, Wall Street analysts are cold on the troubled deal themselves.

The Financial Times reports most analysts think there is now less than a 50-50 chance the merger will be completed unless the two companies agree to disgorge themselves of market share, territories, and increasing “shareholder value” that will come from eventual rate increases a wireless duopoly would inevitably bring.

Some are even less sanguine, predicting AT&T has only a 20 percent shot, and only if it sells off considerable chunks of valuable spectrum to competitors other than Verizon Wireless.

AT&T is retuning its “message” for the times, downplaying the original, ludicrous notion that urban-focused T-Mobile would be the keystone of a new era in 4G wireless service for rural America.  There is a reason T-Mobile isn’t the first choice for small town America’s cell phone buyers.

Instead, AT&T is now positioning the merger deal as a lifeboat for its troubled competitor.  AT&T suggests the number four carrier is in immediate peril — hemorrhaging customers, caught without a coherent 4G strategy, and an exodus of interest by its increasingly neglectful parent — Deutsche Telekom.

Could Time Warner Cable be an eventual part-owner of T-Mobile USA?

“Over the past two years, T-Mobile USA has been losing customers despite explosive demand for mobile broadband,” AT&T said in a statement this week. “T-Mobile USA has no clear path to 4G LTE, the industry’s next generation network, and its German parent, Deutsche Telekom, has said it would not continue to make significant investments in the United States.”

With AT&T predicting the demise of its smaller would-be cousin, consumers may not be in the mood to sign a two-year contract with a company that could soon be rechristened AT&T, especially those leaving AT&T for T-Mobile.

But don’t tell T-Mobile’s marketing department it’s a phone company on life support.  T-Mobile has beefed up its advertising and continues to irritate its larger competitors, particularly AT&T, with very aggressive pricing on its prepaid plans.

T-Mobile recently unveiled two disruptive $30 4G prepaid plans that offer either 1500 shared minutes/text messages and 30MB of data usage -or- 100 voice minutes combined with unlimited texting and up to 5GB of mobile data before the speed throttle kicks in.  Those prices are too low for AT&T and Verizon to ignore, especially when offered on a 4G network.

So far, the Justice Department shows no signs of backing down from their resolute opposition to the deal, minor concessions or not.  Shareholders may not appreciate giving the government too much of what it wants in order to win approval.  Washington lawmakers are split — virtually every Republican favors the merger, Democrats are less absolute, with most opposed.  Among those in favor, by how much is often a measure of what kind of campaign money AT&T has thrown their way.

AT&T absolutely denies they have a “Plan B” in case the merger eventually fails.  But the Times doubts that, reporting as time drags on, an alternative deal might emerge.  Some of the possibilities:

• T-Mobile USA could merge its spectrum with Dish Network, the satellite TV company, to launch a new 4G mobile operator in the USA;
• Combine forces (and spectrum) in a deal with leading U.S. cable companies like Cox, Comcast, and Time Warner Cable to launch a new cable-branded mobile operator;
• Sell or merge operations with MetroPCS, Leap Wireless’ Cricket, or one of several regional cell companies.

Perennial cable booster Craig Moffett from Sanford Bernstein predictably favors the cable solution, which would let companies offer a quad or quint-play of cable TV, wireless mobile broadband, wired broadband, phone, and cell phone service all on one bill.  It would also get the FCC off the backs of cable operators Time Warner and Comcast, who both control a total of 20MHz of favored wireless spectrum they have left unused since acquiring it at auction.  The Commission is increasingly irritated at companies who own unused spectrum at a time when the agency is trying to find additional frequencies for wireless providers.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Bloomberg ATTs 96000 Job Claim in T-Mobile Deal Questioned 11-8-11.flv[/flv]

Bloomberg News questions AT&T’s claim its merger deal with T-Mobile will create 96,000 new jobs. [Nov. 8] (3 minutes)

Comcast Cable has been embarked on a gradual effort to convert many of their cable systems to digital platforms, which means more channel space, faster broadband speeds, and major headaches for some customers.

In Harrisonburg, Va., Comcast customers have been surprised and frustrated to find many of their favorite channels missing.  The cable company migrated most of the basic cable lineup to digital.  Customers who already use Comcast set top boxes never noticed the difference, but those who don’t certainly did.

The cable company spent weeks notifying customers they may need a “digital transport adapter” (DTA) — a fancy name for a small set top box — to continue to receive Comcast service on televisions that do not already have a box attached.  Many cable customers are confused by the transition, assuming if they own a “digital-ready” television, they don’t need extra equipment.  But most, in fact, do.

When customers discovered they needed the new box, minor chaos ensued at area Comcast retail outlets.  The Virginia State Police was reportedly pressed into service directing traffic in and out of some crowded cable store parking lots, and one customer even found a trooper guarding the cable company’s front door.

Some customers are telling local media they waited hours in long lines to obtain the equipment.  Several others are complaining even with the boxes, their favorite channels are still missing.

Most of the trouble seems to surround the authorization process required to enable the new equipment.

Comcast DTA (Courtesy: David Trebacz)

A reporter for an area television station discovered that on the air as she attempted, and failed, to get her box authorized for service, even after an hour waiting.  Customers report very long hold times when calling Comcast as well.

The cable company acknowledged some of the challenges.

“For the past few months, we’ve been communicating with our customers in the Shenandoah Valley about our ‘World of More’ digital enhancement,” the company said in a statement. “We’re moving analog channels to digital, and we do see an increase in the number of customers trying to get digital equipment. We’ve been offering extended hours and stepping up staffing to respond to increased demand.”

Comcast says the transition will increase the number of HD channels on offer in Virginia.  It also opens the door to faster broadband speeds through DOCSIS 3 upgrades.  In all, the company plans to add 50 new HD channels in the Staunton, Waynesboro and Augusta County areas after the upgrade is complete.

Area customers just wish the experience worked more seamlessly. Comcast customers in many communities have already dealt with digital upgrades.  Time Warner customers, starting in Maine, are just beginning the experience.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/WHSV Harrisonburg Comcast Problems in Va 11-16-11.flv[/flv]

This WHSV reporter in Harrisonburg, Va. tried to demonstrate how to install and activate Comcast’s new set top box equipment… and failed because the cable company authorization process didn’t work.  (2 minutes)