Not satisfied with relying on the U.S. Department of Justice to protect the competitive marketplace for cell phone service, Sprint Nextel today brought suit against AT&T, Inc., AT&T Mobility, Deutsche Telekom and T-Mobile seeking to block the proposed acquisition as a violation of Section 7 of the Clayton Act. The lawsuit was filed in federal court in the District of Columbia as a related case to the Department of Justice’s (DOJ) suit against the proposed acquisition.  It has been assigned to the same judge handling the Justice Department’s own lawsuit — Judge Ellen S. Huvelle.

“Sprint opposes AT&T’s proposed takeover of T-Mobile,” said Susan Z. Haller, vice president-Litigation, Sprint. “With today’s legal action, we are continuing that advocacy on behalf of consumers and competition, and expect to contribute our expertise and resources in proving that the proposed transaction is illegal.”

Sprint’s lawsuit focuses on the competitive and consumer harms which would result from a takeover of T-Mobile by AT&T. The proposed takeover would:

• Harm retail consumers and corporate customers by causing higher prices and less innovation;
• Entrench the duopoly control of AT&T and Verizon, the two “Ma Bell” descendants, of the almost one-quarter of a trillion dollar wireless market. As a result of the transaction, AT&T and Verizon would control more than three-quarters of that market and 90 percent of the profits;
• Harm Sprint and the other independent wireless carriers. If the transaction were to be allowed, a combined AT&T and T-Mobile would have the ability to use its control over backhaul, roaming and spectrum, and its increased market position to exclude competitors, raise their costs, restrict their access to handsets, damage their businesses and ultimately to lessen competition.

Sprint believes that in a marketplace dominated by AT&T and Verizon Wireless, the two largest players would likely collude on pricing and terms of service rather than compete heavily against one-another.  Sprint’s assumptions may already be true, considering both companies largely charge near-identical prices for service.

While Sprint proceeds with its own legal action, squabbling has broken out over whether or not AT&T so carefully crafted the terms and conditions of their $6 billion “breakup fee,” payable to T-Mobile USA if the merger fails, that it almost guarantees AT&T will never have to pay it.

“Under its agreement with Deutsche Telekom, the deal is only valid if the acquisition receives regulatory approval within a certain time frame,” an anonymous source told Reuters. “Also, the agreement could become invalid if regulatory conditions for the sale push the value of T-Mobile USA below a certain level.”

T-Mobile, unsurprisingly, disagrees with that characterization.

A Deutsche Telekom spokesman said Tuesday that AT&T could retreat from the transaction if the concessions necessary to get approval amount to more than $7.8 billion, but added Deutsche Telekom would still be entitled to receive the break-up fee package, which includes cash and wireless spectrum.

Canada’s largest privately owned telecommunications provider is getting into the mobile broadband business.

EastLink, which owns cable systems in communities across nine provinces, is constructing its own mobile phone and data network set to launch in 2012.  Part of that network will be its own competitive wireless mobile broadband service.

EastLink is using licensed wireless spectrum acquired in a 2008 federal auction which will allow it to provide cell service in Newfoundland, New Brunswick, north and southwest Ontario, and the metropolitan region of Grand Prairie, Alta.  But its first priority is delivering service on Prince Edward Island and in Nova Scotia, where EastLink is based.

“With this network evolution, our customers will be able to work and communicate more reliably and faster than ever before,” said Matthew MacLellan, president of EastLink Wireless.

EastLink subsidiary Delta Cable delivers cable service in western Canada.

EastLink’s new wireless network will use HSPA technology, presumably at the speeds most common in Canada — 21 or 42Mbps.  Ericsson is providing the equipment for the network.

EastLink has nearly a half-million customers, a tiny number in comparison to market leaders Bell, Rogers, and Telus.  But the company has a reputation for delivering advanced service, and is well-regarded in Atlantic Canada, especially for delivering Internet at speeds up to 100Mbps.

“They have a very strong reputation so they’ll be likely to shake up the market down there,” Brownlee Thomas, principal analyst at Forrester Research Inc., told The Wire Report.

EastLink’s primary focus is on its Canadian subscribers, but the company has also investments in Bermuda, and its subsidiary Delta Cable delivers service to one American community — the enclave of Point Roberts, Washington, located south of Delta, British Columbia.

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?

The Federal Communications Commission today raised the hurdle for AT&T when it told the wireless company it would consider its proposed acquisition of wireless spectrum from Qualcomm in concert with its application to acquire T-Mobile USA.

The FCC wrote both AT&T and Qualcomm regarding the ongoing review of both transactions:

“The Commission’s ongoing review has confirmed that the proposed transactions raise a number of related issues, including, but not limited to, questions regarding AT&T’s aggregation of spectrum throughout the nation, particularly in overlapping areas. As a result, we have concluded that the best way to determine whether either or both of the proposed transactions serve the public interest is to consider them in a coordinated manner at this time.”

AT&T Donates $9,000 to the United Way of Northwest Florida, which promptly returns the favor with a nice letter to the FCC supporting the telecom company's agenda.

At issue is whether AT&T is warehousing wireless spectrum it actually has little intention to use and whether or not AT&T is being honest when it suggests it needs to acquire T-Mobile USA to expand the number of frequencies open for its growing wireless network.

Critics of the merger claim AT&T has plenty of unused spectrum available to deliver service, particularly in the rural areas AT&T claims T-Mobile can help it serve.  T-Mobile is not well-known for its service in smaller communities and rural areas, preferring to rely on roaming agreements to achieve national coverage.  With its proposed acquisition of valuable spectrum in the 700MHz range from Qualcomm, excellent for penetrating buildings and delivering reliable service, the FCC may be wondering if the proposed merger with T-Mobile is necessary at all.

Gigi Sohn from Public Knowledge doesn’t think so.

“We are pleased that the Commission has decided to consider AT&T’s purchase of Qualcomm spectrum in the context of AT&T’s takeover of T-Mobile.  It doesn’t matter whether both transactions are in the same docket; the fact that the Bureau will consider them together in any manner is a strong statement,” Sohn said.

“This April, several public interest groups, Consumers Union, Free Press, the Media Access Project, Public Knowledge, and the New America Foundation, asked for the Commission to take that action because we said that both deals together would ‘further empower an already dominant wireless carrier to leverage its control over devices, backhaul, and consumers in ways that stifle competition,” Sohn added.  “We look forward to working with the Commission on these issues which are so vital to the economy of this country.”

Companies that have acquired wireless spectrum at government auctions have not always put those frequencies to use.  At least one firm warehoused spectrum as an investment tool, earning proceeds reselling it to other providers.  Others have simply squatted on their spectrum, sometimes to keep it away from would-be competitors.

Of course, considering AT&T is a master of dollar-a-holler astroturf operations and lobbying, it’s only a matter of time before a renewed blizzard of company-ghost-written letters start arriving at the Commission telling them AT&T needs both the Qualcomm spectrum -and- the merger with T-Mobile.

Groups like the NAACP, United Way of Northwest Florida, the National Puerto Rican Coalition, and the U.S. Cattlemen’s Association ought to know, right?

Thanks to Stop the Cap! reader Bones for alerting us.