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Summary:

The Federal Communications Commission put up a roadblock to the AT&T and T-Mobile merger when it referred the merger to an administrative hearing, and even AT&T seems a bit daunted by the opposition lined up against the $39 billion deal.

AT&T and T Mobile announce merger in New York

René Obermann, Chairman and CEO, Deutsche Telekom and Randall Stephenson, Chairman and CEO, AT&T

The Federal Communications Commission put up a roadblock to the proposed AT&T and T-Mobile merger by calling for an administrative hearing, and even AT&T seems a bit daunted by the opposition lined up against the $39 billion deal.

According to Larry Solomon, senior vice president of Corporate Communications, AT&T:

“The FCC’s action today is disappointing. 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 a time when the US economy desperately needs both. At this time, we are reviewing all options.”

In previous setbacks, such as when the Department of Justice came out against the deal in August, AT&T’s repsonse was a bit more strident. In a statement attributed to Wayne Watts, AT&T Senior Executive Vice President and General Counsel, the company said:

“We are surprised and disappointed by today’s action, particularly since we have met repeatedly with the Department of Justice and there was no indication from the DOJ that this action was being contemplated.

We plan to ask for an expedited hearing so the enormous benefits of this merger can be fully reviewed. The DOJ has the burden of proving alleged anti-competitive effects and we intend to vigorously contest this matter in court.”

Even the switch from the company’s legal eagle Wayne Watts as a spokesman, to the head of corporate communications seems fraught with meaning. But while Ma Bell may have a bit less to be thankful for, there are still plenty of moving parts surround this deal, that have to come together to ram it through or even for AT&T to retreat.

The federal case (now cases): The FCC’s decision to hold an administrative hearing carries less weight than the DoJ’s lawsuit and the upcoming hearing before U.S. District Court Judge Huvelle scheduled for February. AT&T has made its case in its filings so far, but the DoJ trial will be the model for taking this deal down through the courts. The DoJ’s lawsuit may follow the arguments already tested in a summary judgement hearing earlier this month in a case brought by Sprint and C-Spire, formerly Cellular South. That judge had doubts about what the consolidation might do to device choice and freedom for consumers.

Meanwhile the FCC’s process could take as long as a year to complete, but in an FCC press conference today, agency officials said that they would work with the Department of Justice. It’s highly unlikely that the agency will have to see its administrative hearing through to the bitter end as the DoJ lawsuit and Judge Huvelle’s ruling is seen by many deal watchers analysts as the key factor in the case.

The breakup fee: But even if AT&T were to decide that the DoJ, the attorneys general of seven states, Sprint and Cellular South and a variety of consumer groups are too much to keep fighting against, it still has to handle a large $3 billion breakup fee plus give up some spectrum worth up to $3 billion to T-Mobile. For analyst firm Stifel Nicolaus, the threat of continued and extended review, “could put added pressure on T-Mobile to seek to exit the merger, though it would have to negotiate with AT&T over the $3 billion break-up fee and related roaming and spectrum terms if it wanted to get out before allowed under the current deal (lasting at least through March, with two extensions allowed through next September).”

The big takeaway: So after today, the questions become whether in spite of almost unified opposition AT&T stays true to T-Mobile through the court trial scheduled for February 2012, or if T-Mobile’s parent company decides to cut its losses, renegotiate a smaller breakup fee and attempt to find another suitor. The last time the FCC sent a merger to administrative review in 2002, the two parties gave up. So far, AT&T may have cut back on its toughest language, but it hasn’t thrown in the towel.

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