DoJ Tries To Block AT&T/T-Mobile Merger; Not Yet Taking Competition From LightSquared Seriously

Author:
Matt Levine
Updated:
Jan 14, 2019
Original:
Aug 31, 2011

LightSquared, the wireless-broadband company owned mostly by Harbinger and its disgruntled former investors has had a good run recently, announcing a spectrum deal with Sprint, helping with Hurricane Irene, and not actually killing anyone yet (that we know of). You might think that it’s well on its way to fulfilling its mission of increasing competition in the wireless broadband industry.

But it's not enough for the Department of Justice, which today sued to block the proposed AT&T/T-Mobile merger. The DoJ's suit relies on the conclusion that wireless is basically a 4-party national game (among T, VZ, S, and T-Mobile), and gives short shrift to the notion that smaller regional wireless companies can be counted on to provide competition and limit price gouging by an engorged AT&T. From the complaint:

In some [Cellular Market Areas], AT&T, T-Mobile, Verizon, and Sprint are the only competitors with mobile wireless networks. Although in other CMAs there are also one or two local or regional providers that do serve a significant number of customers, those smaller providers face significant competitive limitations, largely stemming from their lack of nationwide spectrum and networks. They are therefore limited in their ability to competitively constrain the Big Four national carriers. Among other limitations, the local and regional providers must depend on one of the four nationwide carriers to provide them with wholesale services in the form of "roaming" in order to provide service in the vast majority of the United States (accounting for most of the U.S. population) that sits outside of their respective service areas. This places them at a significant cost disadvantage, particularly for the growing number of customers who use smartphones and exhibit considerable demand for data services.

Which is pretty clearly true: talking to someone on your clunky MetroPCS phone just doesn't have quite the cachet of dropping calls on your AT&T iPhone. But that doesn't mean it has to remain that way forever. LightSquared's proposed business model is to help local and regional providers like Leap and ClearTalk compete with the big boys by selling them roaming network capacity. And they’re not the only ones. Antitrust law professor Geoffrey Manne is not happy that the DoJ is blocking this merger, and describes some of the regional competitors:

Meanwhile, even on a national level, the blithe dismissal of a whole range of competitors is untenable. MetroPCS, Cell South and many other companies have broad regional coverage (MetroPCS even has next-gen LTE service in something like 17 cities) and roaming agreements with each other and with the larger carriers that give them national coverage. Why they should be excluded from consideration is baffling. Moreover, Dish has just announced plans to build a national 4G network (take that, DOJ claim that entry is just impossible here!).

The Department of Justice, however, is not buying the notion that just anyone can go build a national 4G network. From the complaint again:

Entry by a new mobile wireless telecommunications services provider in the relevant geographic markets would be difficult, time-consuming, and expensive, requiring spectrum licenses and the construction of a network. To replace the competition that would be lost from AT&T' s elimination of T-Mobile as an independent competitor, moreover, a new entrant would need to have nationwide spectrum, a national network, scale economies that arise from having tens of millions of customers, and a strong brand, as well as other valued characteristics.

Presumably other characteristics valued by DoJ include not sinking boats/crashing planes.

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LightSquared is a wireless venture that seeks to create "convenient connectivity for all." Unfortunately, as the Wilbur Falcone fans among us know, it's looking like it'll be a dark day in hell before that happens, on account of bunch of forces working together to shut this thing down at every turn, including but not limited to the yachting community that claims GSP interference caused by LS will result in boats getting lost at sea; the National Oceanic Atmospheric Administration, which has said LightSquared "may degrade precision services that track hurricanes, guide farmers and help build flood defenses"; and the FAA, which recently put out a study estimating LS could “cost 794 lives in aviation accidents over 10 years with disruptions to satellite-aided navigation.” Also not helping is that LightSquared filed for bankruptcy in May, the company is blowing through cash faster than Wilbur's Studio 54 days, and senior executives won't stop quitting. While some people might take stock of the situation and decide, at this point, to throw in the towel, Wilbur Falcone's benefactor is not some people. He's making this thing work if it's the last thing he does. So, what to do? Obviously a couple of miracle workers are going to be needed and the thing about miracle workers is that they don't come cheap. Gotta spend money to make money. Troubled wireless-satellite company LightSquared wants permission to dole out up to nearly $6 million in cash bonuses to four of its top employees, including its interim chief executive. Recent months have seen LightSquared burn through money--it has spent $134.3 million since filing for bankruptcy in May, according to its most recent monthly operating report, and executives alike. In court papers filed Wednesday, LightSquared said four senior executives have left the company in the past six months, including its former chairman of the board and CEO. The company wants to make sure four "irreplaceable employees" stick with the company as it attempts to claw its way out of bankruptcy protection and help to make the reorganization as fast and cheap as possible. LightSquared's bonus proposal paves the way for a "total possible cash payout of approximately $5.985 million" over two years, according to a filing with the U.S. Bankruptcy Court in Manhattan. Four employees--interim CEO, president and chairman of the board Douglas Smith; Chief Financial Officer Marc R. Montagner; general counsel Curtis Lu; and its executive vice president, regulatory affairs & public policy Jeffrey Carlisle--would be eligible for incentives consisting of cash and restricted stock units paid in shares of the company's current common stock. If the executives satisfy cash preservation goals, make progress in LightSquared's efforts to resolve certain regulatory issues and emerge from bankruptcy by the end of 2013, they'll receive vesting of all issued stock and "aggregate incentive payments of cash up to 285% of each such key employee's annual salary," LightSquared said. Hitting less aggressive goals, like exiting bankruptcy by the end of June 2014, would come with smaller payouts, like a cash bonus equal to 100% of the executives' annual salary, in the case of the mid-2014 bankruptcy exit. Mr. Smith currently makes $700,000 annually; Mr. Montagner and Mr. Lu $500,000 each; and Mr. Carlisle $400,000. LightSquared said each of the employees "provides critical services, drives performance, and impacts LightSquared's ability to enhance value in the Chapter 11 cases." The group has also had to take on extra work recently, as more and more employees have left LightSquared both voluntarily and involuntarily. The company said its total employee headcount has dropped by 60% in the last six months. The bonus plan aims to motivate the company's leaders to manage its businesses and working capital effectively and maximize the value of the estate for the benefit of all stakeholders, LightSquared said. LightSquared Seeks to Pay Key Executives up to $6M in Bonuses [DowJones]

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The merger is mega, but the cruelty is deep.

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As those of you who keep up with the trials and travails of hedge fund manager Phil Falcone, a wireless start-up called LightSquared is his baby and the thing that stands to make or break him. To that end, Falcone's invested a significant amount of time, energy, and, most importantly, investor money in seeing his baby succeed. Unfortunately, in the last year or so, LightSquared has been met with some significant setbacks, namely with regard to GPS interference it is said to cause. The yachting community worries that said interference will cause boats to get lost at sea. The National Oceanic and Atmospheric Administration says LightSquared“may degrade precision services that track hurricanes, guide farmers and help build flood defenses.” The FAA put out a study that estimates LS "may cost 794 lives in aviation accidents over 10 years with disruptions to satellite-aided navigation." To all of that and more, one man asks, "Yeah, AND???" More Job Killer Than Creator By Karl Rove ...after nearly a decade of regulatory “green lights,” the Obama administration reversed itself and started proceedings to kill LightSquared’s ambitious plan to upgrade the U.S. cellular infrastructure. Why? Because at the eleventh hour, concerns were raised about potential interference with GPS devices — interference that occurs because these devices are listening into the part of the spectrum licensed to LightSquared....This will have consequences. Consumers will lose the chance to get better, cheaper wireless service. Owners of tablets, smartphones and other new devices won’t get faster downloads and greater bandwidth. The country would miss out on a valuable infrastructure improvement based on cutting-edge technology. Thousands of workers in construction, steel, transportation and other industries won’t get work, along with the good paychecks that a privately funded $14 billion project like this generates. Why? Because the Obama administration, which first endorsed and encouraged LightSquared, has now reversed course and gutted it. Given that this is the slowest, most anemic recovery from any recession since World War II, you might expect the administration to be eager to encourage companies to invest in creating jobs, making the economy more productive and increasing economic growth...But based on what it’s done to Keystone XL and now LightSquared, you’d be wrong. All because of some eleventh hour concerns about planes crashing. More job-killer than job-creator [Politico]

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