The Federal Communications Commission has concluded allowing AT&T and T-Mobile to merge will cause huge job losses and knock out a vital wireless competitor in an increasingly concentrated U.S. wireless marketplace.

The new 266-page document, produced by FCC staffers, directly challenges AT&T’s contention that the merger will bring about job creation and an improved mobile broadband network for millions of rural Americans.

The report comes on the heels of news the Commission will allow the FCC to withdraw its pending application before the FCC to win approval of the merger.  That allows the company to resubmit the merger request at a later date.

The FCC determined prices will increase an average of 6-7% in these cities if the merger deal gets approved.

The new report, occasionally redacted to remove competitive information, found AT&T vastly exaggerating the benefits of the deal, questioning whether it would indeed lead to lower prices for consumers, bring about enhanced service, and create new jobs.

Overall, the agency concludes, AT&T and T-Mobile have failed to meet their burden of proof that the merger is in the public interest.  The FCC staffers found no compelling reason why AT&T needed T-Mobile to build out its 4G network to the majority of the country.  Indeed, memos accidentally leaked to the Commission by AT&T’s legal team suggested AT&T executives rejected expansion plans as too costly.  Instead, they proposed a $39 billion dollar merger with T-Mobile with a $6 billion deal cancellation clause.  That penalty exceeds the $3.8 billion AT&T rejected spending to pursue 4G upgrades on its own.

Among the Commission report’s findings:

• The merger would increasingly concentrate the U.S. wireless marketplace, leading to unilateral and coordinated efforts to raise prices by remaining carriers;
• Roaming agreements for remaining smaller and regional carriers could become more difficult and expensive to reach with fewer players in the marketplace;
• Pricing innovation, a hallmark of T-Mobile, would be lost.  T-Mobile is cited by the FCC as one of America’s most-disruptive carriers, forcing other companies to match their aggressive offers;
• Despite AT&T’s promises to grandfather existing T-Mobile customers to their existing plans, customers would be unable to upgrade to an equally innovative plan T-Mobile probably would have offered on its own.  Instead, customers would be forced to choose one of AT&T’s more expensive, traditional plans;
• AT&T is overstating the importance of remaining competitors, especially regional carriers and Leap Wireless’ Cricket and MetroPCS, which all have a negligible market share and depend heavily on roaming agreements with companies like Verizon, Sprint, and AT&T to survive;
• Substantial evidence exists to believe without T-Mobile, AT&T and Verizon Wireless would likely raise prices and mimic each others’ respective service plans, pricing, usage allowances, and network policies;
• Sprint will probably be forced to raise prices as a consequence of the merger to pay for increasingly expensive backhaul and roaming services, often purchased from AT&T or Verizon.  Sprint would also be pressured by market forces into pricing its services closer to AT&T and Verizon, if only to pay for handset and subscriber acquisition costs.  Sprint’s new customers often come from T-Mobile or smaller providers — less often from AT&T and Verizon.
• AT&T did not submit sufficient evidence to demonstrate the combination of T-Mobile and AT&T’s cell sites would substantially relieve congestion issues, especially in America’s largest cities where AT&T’s network issues are the worst;
• AT&T’s own documents suggest the company will fire most of T-Mobile’s customer service staff post-merger, leading ironically to the loss of a customer service support unit that has a higher customer satisfaction rating than AT&T itself.  Not only would T-Mobile customers be forced to deal with AT&T’s customer service, AT&T customers will have to compete with millions of T-Mobile customers for the time and attention of AT&T’s existing customer service representatives — a recipe for a congestion of a different kind;
• Much of the cost savings realized from the merger, earned from laying off T-Mobile workers, closing T-Mobile retail stores, terminating reseller agreements, and unifying billing, administration, and network technologies, will be realized by AT&T (and its shareholders), not average customers.  The end effect for consumers will be higher prices and a deteriorating level of customer service.

Smaller, scrappier carriers with aggressive pricing have historically forced larger companies like AT&T and Verizon to compete by lowering prices and offering more generous calling and data plans.

The report angered AT&T’s chief lobbyist, Jim Cicconi, who called its release “troubling” because, in his words, it represents a “staff draft” not voted on by the Commission as a whole.

“It has no force or effect under the law, which raises questions as to why the FCC would choose to release it,” Cicconi said in a statement. “The draft report has also not been made available to AT&T prior to today, so we have had no opportunity to address or rebut its claims, which makes its release all the more improper.”

But the report’s substantial research suggests FCC staffers have taken a very close look at the arguments and the evidence submitted by AT&T, T-Mobile and opponents of the deal.  The findings only favor AT&T and T-Mobile with a mild agreement that combining resources in certain markets where both compete might reduce network redundancy.  But the cost to consumers is way too high, the report concludes.

Sprint couldn’t be happier with the report’s findings, saying in a statement:

“The investigation’s findings are clear. Approval of AT&T’s bid for T-Mobile would lead to higher prices for consumers, eliminate jobs, harm competition, and dampen innovation across the wireless industry.”

An unredacted copy of the findings will be available to the U.S. Department of Justice for its consideration as it presses its own legal case against AT&T to derail the merger on anti-competitive grounds.

Should T-Mobile remain independent, the FCC says wireless prices will decline.

Federal Communications Commission chairman Julius Genachowski personally called AT&T CEO Randall Stephenson a few days before Thanksgiving giving him advance notice he was moving to oppose AT&T’s merger with Deutsche Telekom’s T-Mobile USA.

Genachowski told Stephenson he was handing AT&T’s merger application over to an administrative judge — extremely bad news for the merger’s prospects.  The personal phone call was revealed Friday by AT&T, which disclosed it in an ex-parte communication filed with the FCC.

“During the call, Chairman (Julius) Genachowski indicated that he would be circulating to his fellow Commissioners a draft order approving the Qualcomm transaction and a draft order designating the T-Mobile transaction for an administrative hearing,” according to the filing. “Chairman Genachowski indicated that the draft designation order would likely be voted in the next several days or weeks but the administrative hearing would be deferred until after resolution of the pending litigation with the Department of Justice.”

It was the second piece of bad news received by AT&T last week, the first being notification the Justice Department had suddenly canceled a meeting it had planned to hold with AT&T about the merger and its antitrust implications.

Earlier today, Bloomberg News reported the FCC wasn’t so sure it would allow AT&T to refile its withdrawn merger application, which immediately brought new threats of legal action by the telecommunication company.

Now AT&T is considering a new strategy to save a merger given a 10 percent chance of succeeding, according to some analysts.  It will likely hold a fire sale of T-Mobile’s assets — up to 40 percent of them to be more exact, in order to satisfy regulators concerned about the merger’s anti-competitive implications.

The prospects make Wall Street bankers salivate with dreams of steep fees earned from structuring and marketing the equivalent of a corporate estate sale.

Among potential buyers might be regional players Leap Wireless, which owns Cricket, and MetroPCS.  The New York Times reports Mexico’s multi-billionaire Carlos Slim Helú, who owns Mexico’s América Móvil, might be interested in buying T-Mobile assets himself to boost the company’s American unit, better known as TracFone.

Sanford Bernstein’s Craig Moffett suggests it would be a mistake to ignore America’s largest cable operators, which own spectrum themselves and could integrate T-Mobile into a new mobile operator owned, controlled, and branded under the names of their respective cable owners.

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/Bloomberg Davis Says ATT Asset Sale May Be Tricky 11-28-11.flv[/flv]

Michael Nelson, analyst at Mizuho Securities USA Inc., and Jeffrey Davis, chief investment officer at Lee Munder Capital Group, discuss AT&T Inc.’s proposed purchase of T-Mobile USA Inc. AT&T, with its T-Mobile USA takeover facing regulatory opposition, is preparing the biggest remedy proposal yet to the Justice Department to salvage the $39 billion deal, according to a person familiar with the plan: an asset fire sale. From Bloomberg News.  (4 minutes)

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.

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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)

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.

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

Communications Workers of America president Larry Cohen got himself off script and tangled in the percentages over the weekend when he told German magazine Focus the merger deal between AT&T and T-Mobile that the CWA has been cheerleading since it was first announced had little chance of coming to pass.

Cohen told Focus the chance of the deal getting beyond the current court challenge from the U.S. Department of Justice was around 20 percent. That seemed to signal the union was getting in line with those prepared to throw the current merger deal under the nearest bus.

Soon after that quote came home on the Bloomberg News wires (and reached AT&T), it didn’t take long for a revised quote (that a union spokesperson would later claim to be a “clarification”) to appear in a subsequent story:

There is about a 60 percent chance of a settlement between the companies and the Justice Department, Cohen said in a telephone interview today. Should the case go to court, it would be 50-50 on which way the decision would go, he said.

But the fuzzy math truly got exposed when the Wall Street Journal got this explanation for the discrepancy:

A spokeswoman for CWA said it was mostly a case of fuzzy math. Mr. Cohen’s point, she said, was that there was a 60% chance that the Justice Department’s lawsuit against the deal would be settled out of court.

But in the 40% chance that it didn’t, then there was a 50-50 chance that the company would prevail, which he may or may not have stated as 20 percent.

In reality, he meant to say that it was more likely than not that the case would be settled and the merger would succeed, the spokeswoman said.

“Perhaps it wasn’t the best of use of math,” she said. “Things got lost in the percentages.”

So, did AT&T push for the comments to be clarified? “I had some exchanges with my counterpart at AT&T, yes,” she said. “I sent her our clarification… which is good.”