UNITED STATES OF AMERICA v. AT&T INC. et al

Filing 28

AMENDED COMPLAINT against AT&T INC., DEUTSCHE TELEKOM AG, T-MOBILE USA, INC. filed by UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, STATE OF OHIO, STATE OF WASHINGTON, COMMONWEALTH OF MASSACHUSETTS, STATE OF NEW YORK, STATE OF ILLINOIS, STATE OF CALIFORNIA.(jf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
Department of Justice, Antitrust Division
450 5th Street, N.W., Suite 7000
Washington, D.C. 20530
STATE OF NEW YORK,
Office of the Attorney General
120 Broadway, 26th Floor
New York, NY 10271-0332
STATE OF WASHINGTON,
Office of the Attorney General
800 Fifth Avenue, S. 2000
Seattle, WA 98104
STATE OF CALIFORNIA,
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
STATE OF ILLINOIS,
Office of the Attorney General
100 W. Randolph Street
Chicago, IL 60601
COMMONWEALTH OF MASSACHUSETTS,
Office of the Attorney General
One Ashburton Place, 18th Floor
Boston, MA 02108
STATE OF OHIO,
Office of the Attorney General
150 E. Gay Street, 23rd Floor
Columbus, OH 43215
and
COMMONWEALTH OF PENNSYLVANIA,
Office of the Attorney General
14th Floor, Strawberry Square
Harrisburg, PA 17120
Plaintiffs,

Civil Action No. 11-01560 (ESH)

v.
AT&T INC.,
One AT&T Plaza
208 South Akard Street
Dallas, Texas 75202
T-MOBILE USA, INC.,
12920 SE 38th Street

Bellevue, Washington 98006
and
DEUTSCHE TELEKOM AG,
Friedrich-Ebert-Allee
Bonn, Germany D-53113
Defendants.

AMENDED COMPLAINT
The United States of America, acting under the direction of the Attorney General of the
United States, and the States of New York, Washington, California, Illinois, and Ohio and the
Commonwealths of Massachusetts and Pennsylvania, acting under the direction of their
respective Attorneys General and other authorized officials (“Plaintiff States”) (collectively,
“Plaintiffs”), bring this civil action to enjoin the merger of two of the nation’s four largest mobile
wireless telecommunications services providers, AT&T Inc. (“AT&T”) and T-Mobile USA, Inc.
(“T-Mobile”), and to obtain equitable and other relief as appropriate. Plaintiffs allege as follows:

I. NATURE OF THE ACTION
1.

Mobile wireless telecommunications services are vital to the everyday lives of

hundreds of millions of Americans. From their modest beginnings in the 1980s, when handsets
were the size of a brick and coverage areas were limited, mobile wireless telecommunications
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devices have evolved into a profusion of smartphones, feature phones, tablets, data cards,
e-readers, and other devices that use the nationwide mobile wireless telecommunications
networks. Mobile wireless telecommunications services have become indispensable both to the
way we live and to the way companies do business throughout the United States. Innovation in
wireless technology drives innovation throughout our 21st-century information economy, helping
to increase productivity, create jobs, and improve our daily lives. Vigorous competition is
essential to ensuring continued innovation and maintaining low prices.
2.

On March 20, 2011, AT&T entered into a stock purchase agreement to acquire

T-Mobile from its parent, Deutsche Telekom AG (“DT”), and to combine the two companies’
mobile wireless telecommunications services businesses (“Transaction Agreement”). AT&T,
with approximately 98.6 million connections to mobile wireless devices, and T-Mobile, with
approximately 33.6 million connections, serve customers throughout the United States, with
networks that each reach the homes of at least 90 percent of the U.S. population. AT&T and
T-Mobile are two of only four mobile wireless providers with nationwide networks and a variety
of competitive attributes associated with that national scale and presence. The other two
nationwide networks are operated by Verizon Wireless (“Verizon”) and Sprint Nextel Corp.
(“Sprint”). Although smaller providers exist, they are significantly different from these four.
For instance, none of the smaller carriers’ voice networks cover even one-third of the U.S.
population, and the largest of these smaller carriers has less than one-third the number of
wireless connections as T-Mobile. Similarly, regional competitors often lack a nationwide data
network, nationally recognized brands, significant nationwide spectrum holdings, and timely
access to the most popular handsets. Collectively, the “Big Four” – AT&T, T-Mobile, Verizon,

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and Sprint – provide more than 90 percent of service connections to U.S. mobile wireless
devices.
3.

Due to the advantages arising from their scale and scope of coverage, each of the

Big Four nationwide carriers is especially well-positioned to drive competition, at both a national
and local level, in this industry. T-Mobile in particular – a company with a self-described
“challenger brand,” that historically has been a value provider, and that even within the past few
months had been developing and deploying “disruptive pricing” plans – places important
competitive pressure on its three larger rivals, particularly in terms of pricing, a critically
important aspect of competition. AT&T’s elimination of T-Mobile as an independent, lowpriced rival would remove a significant competitive force from the market. Additionally,
T-Mobile’s investment in an advanced high-speed network and its innovations in technology and
mobile wireless telecommunications services have provided, and continue to provide, consumers
with significant value. Thus, unless this acquisition is enjoined, customers of mobile wireless
telecommunications services likely will face higher prices, less product variety and innovation,
and poorer quality services due to reduced incentives to invest than would exist absent the
merger. Because AT&T’s acquisition of T-Mobile likely would substantially lessen competition
in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18, the Court should permanently enjoin
this acquisition.

II. JURISDICTION AND VENUE
4.

The United States files this Complaint under Section 15 of the Clayton Act,

15 U.S.C. § 25, to prevent and restrain Defendants from violating Section 7 of the Clayton Act,
as amended, 15 U.S.C. § 18. The Plaintiff States, by and through their respective Attorneys

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General and other authorized officials, bring this action under Section 16 of the Clayton Act,
15 U.S.C. § 26, to prevent and restrain Defendants from violating Section 7 of the Clayton Act,
15 U.S.C. § 18. The Plaintiff States bring this action in their sovereign capacities and as parens
patriae on behalf of the citizens, general welfare, and economy of each of their states.
5.

AT&T, DT, and T-Mobile are engaged in interstate commerce and in activities

substantially affecting interstate commerce and commerce in each of the Plaintiff States. The
Court has subject-matter jurisdiction over this action pursuant to Sections 15 and 16 of the
Clayton Act, 15 U.S.C. §§ 25 and 26, and 28 U.S.C. §§ 1331, 1337, 1345.
6.

Venue is proper in this District under Section 12 of the Clayton Act, 15 U.S.C.

§ 22 and 28 U.S.C. § 1391(b)(1), (c). Defendants AT&T, DT, and T-Mobile transact business
and are found within the District of Columbia. The Defendants have consented to personal
jurisdiction in this judicial district.

III. THE DEFENDANTS AND THE TRANSACTION
7.

AT&T, with headquarters in Dallas, Texas, is a corporation organized and

existing under the laws of the State of Delaware. AT&T is one of the world’s largest providers
of communications services, and the second-largest mobile wireless telecommunications services
provider in the United States, as measured by subscribers. AT&T provides mobile wireless
telecommunications services in 50 states, the District of Columbia, and Puerto Rico, providing
approximately 98.6 million connections to mobile wireless devices. In 2010, AT&T’s revenues
from mobile wireless telecommunications services were $53.5 billion, and its total revenues were
more than $124 billion.

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8.

T-Mobile, with headquarters in Bellevue, Washington, is a corporation organized

and existing under the laws of the State of Delaware. T-Mobile is the fourth-largest mobile
wireless telecommunications services provider in the United States as measured by subscribers.
T-Mobile provides mobile wireless telecommunications services in 48 states, the District of
Columbia, and Puerto Rico, providing approximately 33.6 million connections to mobile
wireless devices. In 2010, T-Mobile’s revenues from mobile wireless telecommunications
services were approximately $18.7 billion. T-Mobile is a wholly owned subsidiary of Deutsche
Telekom AG.
9.

Deutsche Telekom AG is a German corporation headquartered in Bonn, Germany.

It is the largest telecommunications operator in Europe with wireline and wireless interests in
numerous countries and total annual revenues in 2010 of €62.4 billion.
10.

Pursuant to the Transaction Agreement, AT&T will acquire T-Mobile for cash

and stock worth approximately $39 billion. If this transaction is consummated, AT&T and
T-Mobile would become the nation’s largest wireless carrier. The merged firm would have
approximately 132 million connections to mobile wireless devices in the United States, with
more than $72 billion in mobile wireless telecommunications services revenues.

IV. TRADE AND COMMERCE
A.

Relevant Product Markets

11.

Mobile wireless telecommunications services allow customers to engage in

telephone conversations and obtain data services using radio transmissions without being
confined to a small area during a call or data session, and without requiring an unobstructed line
of sight to a radio tower. Mobility is highly valued by customers, as demonstrated by the more

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than 300 million connections to mobile wireless devices in the United States. In 2010, revenues
from the sale of mobile wireless telecommunications services in the United States were
approximately $160 billion. To provide service, mobile wireless telecommunications carriers
typically must acquire FCC licenses to utilize electromagnetic spectrum to transmit signals;
deploy extensive networks of radio transmitters and receivers at numerous telecommunications
towers and other sites; and obtain “backhaul” – copper, microwave, or fiber connections from
those sites to the rest of the network. They must also deploy switches as part of their networks,
and interconnect their networks with the networks of wireline carriers and other mobile wireless
telecommunications services providers. To be successful, providers also typically must engage
in extensive marketing and develop a comprehensive network for retail distribution.
12.

Mobile wireless telecommunications services include both voice and data services

(e.g., texting and Internet access) provided over a radio network and allow customers to maintain
their telephone calls or data sessions wirelessly when traveling. Mobile wireless
telecommunications providers offer their services on a variety of devices including mobile
phones, smartphones, data cards, tablet computers, and netbooks. In addition, an increasingly
important group of customers are building mobile wireless capability into new devices, such as
e-readers and vehicle tracking equipment, and contracting for mobile wireless
telecommunications services on behalf of their own customers. There are no cost-effective
alternatives to mobile wireless telecommunications services. Because neither fixed wireless
services nor wireline services are mobile, they are not regarded by consumers of mobile wireless
telecommunications services as reasonable substitutes. In the face of a small but significant
price increase imposed by a hypothetical monopolist it is unlikely that a sufficient number of
customers would switch some or all of their usage from mobile wireless telecommunications

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services to fixed wireless or wireline services such that the price increase or reduction in
innovation would be unprofitable. Mobile wireless telecommunications services accordingly is a
relevant product market under Section 7 of the Clayton Act, 15 U.S.C. § 18.
13.

Business customers, sometimes known as enterprises, and government customers

often select and contract for mobile wireless telecommunications services for use by their
employees in their professional and/or personal capacities. These customers constitute a distinct
set of customers for mobile wireless telecommunications services, and sales of mobile wireless
telecommunications services covered by enterprise or government contracts amounted to more
than $40 billion last year. The selection and service requirements for enterprise and government
customers are materially different than those of individual consumers. Enterprise and
government customers typically are served by dedicated groups of employees who work for the
mobile wireless carriers, and such customers generally select their providers by soliciting bids,
sometimes through an “RFP” (request for proposal) process. Enterprise and government
customers typically seek a carrier that can provide services to employees, facilities, and devices
that are geographically dispersed. Therefore, enterprise and government customers require
services that are national in scope. In addition, prices and terms tend to be more attractive for
enterprise and government customers than for individuals, and include features such as pooled
minutes as well as favorable device upgrade and replacement policies. Enterprise and
government service contracts often are individually negotiated, with carriers frequently
providing discounts on particular RFPs in response to their competitors’ offers. There are no
good substitutes for mobile wireless telecommunications services provided to enterprise and
government customers, nor would a significant number of such customers switch to purchasing
such services through ordinary retail channels in the event of a small but significant price

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increase in services offered through the enterprise and government sales channels. Accordingly,
mobile wireless telecommunications services provided to enterprise and government customers
is a relevant product market under Section 7 of the Clayton Act, 15 U.S.C. § 18.
B.

Relevant Geographic Markets

14.

Mobile wireless telecommunications services are sold to consumers in local

markets that are affected by nationwide competition among the dominant service providers. It is
therefore appropriate both to identify local markets in which consumers purchase mobile
wireless telecommunications services and to identify the nature of the nationwide competition
affecting those markets. AT&T’s acquisition of T-Mobile will have nationwide competitive
effects across local markets.
15.

Because most customers use mobile wireless telecommunications services at and

near their workplaces and homes, they purchase services from providers that offer and market
services where they live, work, and travel on a regular basis.
16.

The nation’s four largest providers of mobile wireless telecommunications

services, including AT&T and T-Mobile, provide and market service on a nationwide basis.
Other providers have limited networks that cover only particular localities and regions. Those
smaller carriers typically do not market to customers outside of their respective network
coverage areas, and may not even sell to such customers; therefore, local or regional carriers are
not an attractive, or perhaps even available, option for those customers who live and work in
areas outside of these smaller providers’ respective network coverage areas.
17.

Accordingly, from a consumer’s perspective, local areas may be considered

relevant geographic markets for mobile wireless telecommunications services. The Cellular
Market Areas (“CMAs”) that the FCC has identified and used to license mobile wireless

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telecommunications services providers for certain spectrum bands often approximate the areas
within which customers have the same competitive choices. AT&T and T-Mobile compete
against each other in local markets across the United States that collectively encompass a large
majority of U.S. mobile wireless telecommunications consumers. Indeed, AT&T and T-Mobile
compete head to head in at least 97 of the nation’s top 100 CMAs as well as in many other areas.
These 97 CMAs alone include over half of the U.S. population. Each of these 97 CMAs,
identified in Appendix B, effectively represents an area in which the transaction likely would
substantially lessen competition for mobile wireless telecommunications services and each
constitutes a relevant geographic market under Section 7 of the Clayton Act, 15 U.S.C. § 18. In
addition, as described below, the nationwide effects of the transaction likely would substantially
lessen competition in local markets across the nation.
18.

In competing for customers in the 97 markets identified in Appendix B and other

CMAs, AT&T and T-Mobile (as well as Verizon and Sprint) utilize networks that cover the vast
majority of the U.S. population, advertise nationally, have nationally recognized brands, and
offer pricing, plans, and devices that are available nationwide. For a variety of reasons, there is
little or no regional variation in the pricing plans offered by the Big Four nationwide carriers.
Nationwide pricing simplifies customer service and billing, reduces consumer confusion that
might otherwise result from regional pricing disparities, and allows the carriers to take advantage
of nationwide advertising in promoting their services. Similarly, when the Big Four carriers
make devices available to the public, they typically make them available nationwide. This too
minimizes customers’ confusion and dissatisfaction, and allows the carriers to take advantage of
nationwide marketing. In addition, the Big Four carriers generally deploy system technology on
a nationwide basis, including critical components such as network standards, e.g., LTE or

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HSPA+. These technological choices are an important aspect of competition in the mobile
wireless telecommunications services market.
19.

The national decision-making of the Big Four carriers results in nationwide

competition across local markets. Each of the Big Four firms making a competitive choice
regarding a pricing plan, or other national competitive attribute, will consider competitive
conditions across the United States, as the decision will take effect throughout the United States.
Because competitive decisions affecting technology, plans, prices, and device offerings are
typically made at a national, rather than a local, level, the rivals that affect those decisions
generally are those with sufficient national scale and scope, i.e., the Big Four. As AT&T
acknowledged less than three years ago during a merger proceeding, it aims to “develop its rate
plans, features and prices in response to competitive conditions and offerings at the national
levels – primarily the plans offered by the other national carriers.” As AT&T recognized, “the
predominant forces driving competition among wireless carriers operate at the national level.”
That remains the case today.
20.

Because, as AT&T admits, competition operates at a national level, it is

appropriate to consider the competitive effects of the transaction at a national level. There is no
doubt that AT&T and T-Mobile compete against each other on a nationwide basis, make many
decisions on a nationwide basis, and that this national competition is conducted in local markets
that include the vast majority of the U.S. population. Indeed, customers in local markets across
the country often face very similar choices from AT&T, T-Mobile, Verizon, and Sprint,
regardless of whether local or regional carriers also compete in any particular CMA. It is
necessary, therefore, to analyze competition at the national level in order to capture, as AT&T
has stated, “the predominant forces driving competition among wireless carriers,” and the impact

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of these forces on competitive decisions and outcomes that are fundamentally national in nature.
Thus, whereas CMAs are appropriate geographic markets from the perspective of individual
consumer choice, from a seller’s perspective, the Big Four carriers compete against each other on
a nationwide basis and AT&T’s acquisition of T-Mobile will have nationwide competitive
effects across local markets.
21.

Enterprise and government customers often have multiple office and business

locations throughout the United States, and employees who may travel frequently. Enterprise
and government customers often contract at the same time for employees located at these
multiple locations across the country. Therefore, enterprise and government customers generally
require a mobile wireless provider with a nationwide network, and are willing to contract with a
carrier anywhere in the United States who has such a network. Accordingly, the United States is
a relevant geographic market under Section 7 of the Clayton Act, 15 U.S.C. § 18, for mobile
wireless telecommunications services offered to enterprise and government customers.
C.

Concentration

22.

Concentration in relevant markets is typically measured by the Herfindahl-

Hirschman Index (“HHI”), which is defined and explained in Appendix A to this Complaint.
Preliminary market share estimates demonstrate that in 96 of the nation’s largest 100 CMAs – all
identified in Appendix B as representing relevant geographic markets for mobile wireless
telecommunications services – the post-merger HHI exceeds 2,500. Such markets are considered
to be highly concentrated. In one additional CMA identified in Appendix B, the post-merger
HHI falls just below 2,500 and the market would be considered moderately concentrated.
23.

In 91 of the 97 CMAs identified in Appendix B as representing relevant

geographic markets for mobile wireless telecommunications services – including all of the

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nation’s 40 largest markets – preliminary market share estimates demonstrate that AT&T’s
acquisition of T-Mobile would increase the HHI by more than 200 points. Such an increase is
presumed to be likely to enhance market power. In an additional 6 CMAs, the increase would be
at least 100, an increase that often raises significant competitive concerns.
24.

In more than half of the CMAs identified in Appendix B as representing relevant

geographic markets for mobile wireless telecommunications services, the combined
AT&T/T-Mobile would have a greater than 40 percent share. In at least 15 of the CMAs,
including major metropolitan markets such as Dallas, Houston, Oklahoma City, Birmingham,
Honolulu, and Seattle, the combined firm would have a greater than 50 percent share – i.e., more
customers than all the other firms combined.
25.

Nationally, the proposed merger would result in an HHI of more than 3,100 for

mobile wireless telecommunications services, an increase of nearly 700 points. These numbers
substantially exceed the thresholds at which mergers are presumed to be likely to enhance market
power.
26.

In the national market for mobile wireless telecommunications services provided

to enterprise and government customers, the proposed merger would result in an HHI of at least
3,400, an increase of at least 300 points. These numbers exceed the thresholds above which
mergers are presumed to be likely to enhance market power.
D.

Anticompetitive Effects
1.

27.

Overview of T-Mobile’s Importance as an Aggressive Competitor

Historically and currently, T-Mobile has positioned itself as the value option for

wireless services, focusing on aggressive pricing, value leadership, and innovation. As T-Mobile
noted in a document generated in preparation for an investor’s conference, the company views

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itself as “the No. 1 value challenger of the established big guys in the market and as well
positioned in a consolidated 4-player national market.” T-Mobile’s Chief Marketing Officer,
Cole Brodman, a 15-year veteran of the company, described T-Mobile as having “led the
industry in terms of defining rate plan value.” T-Mobile consumers benefit from the lower prices
offered by T-Mobile, while subscribers of Verizon, AT&T, and Sprint gain from more attractive
offerings that those firms are spurred to provide because of the attractive national value
proposition of T-Mobile.
28.

Innovation is well known to be an important driver of economic growth.

T-Mobile has been responsible for numerous “firsts” in the U.S. mobile wireless industry, as
outlined in an internal document entitled “T-Mobile Firsts: Paving the way one first at a time.”
The document lists the first Android handset, Blackberry wireless e-mail, the Sidekick (a
consumer “all-in-one” messaging device), national Wi-Fi “hotspot” access, and a variety of
unlimited service plans, among other firsts.
29.

T-Mobile has also been an innovator in terms of network development and

deployment. For instance, T-Mobile was the first company to roll out and market a nationwide
network based on advanced HSPA+ technology and marketed as 4G. Such investments in new
network technologies – spurred by competition among the Big Four – are valuable to consumers
as they increase the efficiency of spectrum use and allow for more mobile wireless services
output.
30.

AT&T has felt competitive pressure from T-Mobile’s innovation. As a January

2010 AT&T internal document observed in analyzing the roll-out of new competitive broadband
networks by several of its competitors:
[T]he more immediate threat to AT&T is T-Mobile. . . . On January 5th, 2010, it
announced that it had upgraded its entire network with HSPA 7.2 covering 200M POPS.
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It also reiterated prior statements that it would add HSPA+, capable of 3x the throughput
of HSPA 7.2, across a substantial portion of its network by 2H 2010. . . . The one-two
punch of an advanced network and the backhaul required to support the additional data
demands should be taken seriously. . . .
By January 2011, an AT&T employee was observing that “TMO was first to have HSPA+
devices in their portfolio . . . . we added them in reaction to potential loss of speed claims.”
(Ellipsis in original.)
31.

After a period of disappointing results, T-Mobile recently brought in new

management and launched plans to revitalize the company by returning to its roots as the
industry value and innovation leader. T-Mobile’s executive team articulated its vision of
T-Mobile’s future in a November/December 2010 document titled “T-Mobile USA Challenger
Strategy: The Path Forward”:
Our heritage and future is as a challenger brand. TMUS will attack incumbents
and find innovative ways to overcome scale disadvantages. TMUS will be faster,
more agile, and scrappy, with diligence on decisions and costs both big and small.
Our approach to market will not be conventional, and we will push to the
boundaries where possible. . . . TMUS will champion the customer and break
down industry barriers with innovations . . . .
32.

Consistent with its history, and in a clear threat to larger rivals such as AT&T,

T-Mobile decided to position itself as the carrier to “make smart phones affordable for the
average US consumer.” A key component of T-Mobile’s new strategy is to offer “Disruptive
Pricing” plans to attract the estimated 150 million consumers whom T-Mobile believes will want
a smartphone but do not yet have one. T-Mobile’s CEO Philipp Humm defined as “disruptive” a
rate plan that “Verizon/ATT can’t match.” T-Mobile has designed its new aggressive pricing
plans to offer services, including data access, at rates lower than those offered by AT&T and
Verizon, and it projects that the new plans will save consumers several hundred dollars per year
as compared to similar AT&T and Verizon plans.

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33.

Relying on its disruptive pricing plans, its improved high-speed HSPA+ network,

and a variety of other initiatives, T-Mobile aimed to grow its nationwide share to 17 percent
within the next several years, and to substantially increase its presence in the enterprise and
government market. AT&T’s acquisition of T-Mobile would eliminate the important price,
quality, product variety, and innovation competition that an independent T-Mobile brings to the
marketplace.
2.
34.

Competitive Harm: Mobile Wireless Telecommunications Services

AT&T and T-Mobile compete locally and nationally against each other, as well as

against Verizon and Sprint, to attract mobile wireless telecommunications services customers,
including in the markets identified in Appendix B. They also compete nationally to attract
enterprise and government customers for mobile wireless telecommunications services.
Competition taking place across a variety of dimensions, including price, plan structure, network
coverage, quality, speeds, devices, and operating systems would be negatively impacted if this
merger were to proceed.
35.

The proposed merger would eliminate T-Mobile, one of the four national

competitors, resulting in a significant loss of competition, including in each of the 97 CMAs
identified in Appendix B. In some CMAs, 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

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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. The local
and regional providers also do not have the scale advantages of the four nationwide carriers,
resulting in difficulties obtaining the most popular handsets, among other things. Due in large
part to these limitations and disadvantages, these local and regional providers typically have
small shares and none is as effective a constraint as is T-Mobile on AT&T, Verizon, and Sprint.
Moreover, because each of the four nationwide firms typically offers prices, plans, and devices
on a national basis, the regional and local providers – none of whom has a national share of more
than 3 percent – exert little influence on these aspects of competition. As AT&T noted in
connection with its acquisition of a regional carrier less than three years ago, that carrier’s
pricing was “an inconsequential factor in AT&T’s competitive decision-making.”
36.

The substantial increase in concentration that would result from this merger, and

the reduction in the number of nationwide providers from four to three, likely will lead to
lessened competition due to an enhanced risk of anticompetitive coordination. Certain aspects of
mobile wireless telecommunications services markets, including transparent pricing, little buyerside market power, and high barriers to entry and expansion, make them particularly conducive
to coordination. Any anticompetitive coordination at a national level would result in higher
nationwide prices (or other nationwide harm) by the remaining national providers, Verizon,
Sprint, and the merged entity. Such harm would affect consumers all across the nation, including
those in rural areas with limited T-Mobile presence. Furthermore, the potential for competitive
harm is heightened given T-Mobile’s recent decision to grow its market share via a “challenger”

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strategy. Its new aggressive and innovative pricing plans, low-priced smartphones, and superior
customer service would have been likely to disrupt current industry models and require
competitive responses from the other national players. Through this proposed merger, AT&T
lessens this threat now, and, if the merger is approved, would eliminate it permanently.
37.

The proposed merger likely would lessen competition through elimination of

head-to-head competition between AT&T and T-Mobile. Mobile wireless carriers sell
differentiated services. Among the differentiating characteristics of greatest importance to
consumers are price, network coverage, service quality, customer support, and device options.
Not only do the carriers’ offerings differ, but consumers have differing preferences as well.
Because both carriers and consumers are diverse, customers differ as to the firms that are their
closest and most desired alternatives. Where there is significant substitution between the
merging firms by a substantial share of consumers, anticompetitive effects are likely to result.
Documents produced by AT&T and T-Mobile establish that a significant portion of customers
who “churn” from AT&T switch to T-Mobile, and vice versa. This shows a significant degree of
head-to-head competition between the two companies, as demonstrated by T-Mobile’s recent
television ads directly targeting AT&T. The proposed merger would, therefore, likely eliminate
important competition between AT&T and T-Mobile.
38.

Moreover, tens of millions of Americans have selected T-Mobile as their mobile

wireless carrier because of its unique combination of services, plans, devices, network coverage,
features, and award-winning customer service. By eliminating T-Mobile as an independent
competitor, the proposed transaction likely will reduce innovation and product variety – a serious
concern discussed in Section 6.4 of the Horizontal Merger Guidelines, issued by the U.S.
Department of Justice and the Federal Trade Commission. For example, post-merger, AT&T

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will no longer offer T-Mobile’s lower-priced data and voice plans to new customers or current
customers who upgrade their service. Consequently, T-Mobile as a lower-priced option will be
eliminated from the market, resulting in higher prices for a significant number of consumers.
Furthermore, the innovation that an independent T-Mobile brings to the market – as reflected in
the array of industry “firsts” it has introduced in the past, such as the first Android phone,
Blackberry e-mail, and the Sidekick – would also be lost, depriving consumers of important
benefits.
39.

Similarly, competition, including from T-Mobile, has resulted in carriers making

greater investments in technology that lead to better service quality. By eliminating T-Mobile as
an independent competitor, the proposed transaction likely will reduce the competitive incentive
to invest in wireless networks to attract and retain customers.
40.

The presence of an independent, competitive T-Mobile, and the competition

between T-Mobile and AT&T, has resulted in lower prices for mobile wireless
telecommunications services across the country than otherwise would have existed. If the
proposed acquisition is consummated, AT&T will eliminate T-Mobile as an independent
competitive constraint. As a result, concentration will increase in many local markets and
competition likely will be substantially lessened across the nation, resulting in higher prices,
diminished investment, and less product variety and innovation than would exist without the
merger, both with respect to services provided over today’s mobile wireless devices, as well as
future innovative devices that have yet to be developed.
3.

41.

Competitive Harm: Enterprise and Government Mobile Wireless
Telecommunications Services

In the national market for mobile wireless telecommunications services provided

to enterprise and government customers, the proposed transaction effectively would reduce the
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number of significant competitors from four to three. Local and regional providers have an
insignificant presence because enterprise and government customers typically require their
providers to have nationwide networks, and because local and regional carriers generally refrain
from bidding for out-of-network business due to the costs associated with paying roaming rates
for services in locations outside of their network footprints. In many instances, enterprise and
government customers will contract with more than one of the mobile wireless providers to
ensure ubiquitous coverage and provide employees with a choice. In addition, contracting with
multiple national carriers preserves the incentives for each carrier to provide competitive service
enhancements for the duration of their contracts. The reduction in the number of bidders for
enterprise and government contracts to three – and in some cases fewer – significantly increases
the risk of anticompetitive effects.
42.

T-Mobile historically has been particularly aggressive on price. AT&T’s

acquisition of T-Mobile therefore removes potentially the most attractive bidder from many bid
situations. Accordingly, the merged firm likely will have a reduced incentive to submit low bids.
In addition, the remaining bidders – typically Verizon and/or Sprint – also may bid less
aggressively. For some customers, such as enterprises whose employees travel extensively
internationally, AT&T and T-Mobile are particularly close substitutes.
43.

Absent the proposed merger, T-Mobile would likely have an even more important

competitive presence in the enterprise and government market going forward. In the past,
enterprise and government customers were not a primary focus for T-Mobile. As part of its 2011
business plan, however, T-Mobile re-dedicated itself to becoming a bigger player with the stated
goal of growing enterprise revenues substantially by 2013.

20

44.

T-Mobile makes its presence felt competing head to head with AT&T and other

carriers for a number of accounts, winning business in some cases and often pushing prices lower
when it does not. The merger’s elimination of T-Mobile as an aggressive competitor would
likely result in fewer choices and higher prices for enterprise and government customers.
E.

Entry

45.

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. Therefore, entry in response to a small but significant price increase for mobile
wireless telecommunications services would not be likely, timely, and sufficient to thwart the
competitive harm resulting from AT&T’s proposed acquisition of T-Mobile, if it were
consummated.
F.

Efficiencies

46.

The Defendants cannot demonstrate merger-specific, cognizable efficiencies

sufficient to reverse the acquisition’s anticompetitive effects.

21

V. VIOLATION ALLEGED
47.

The effect of AT&T’s proposed acquisition of T-Mobile, if it were to be

consummated, likely will be to lessen competition substantially in interstate trade and commerce
in the relevant geographic markets for mobile wireless telecommunications services, and
enterprise and government mobile wireless telecommunications services, in violation of
Section 7 of the Clayton Act, 15 U.S.C. § 18.
48.

Unless enjoined, the transaction likely will have the following effects in mobile

wireless telecommunications services in the relevant geographic markets, among others:
a.

actual and potential competition between AT&T and T-Mobile will be
eliminated;

b.

competition in general likely will be lessened substantially;

c.

prices are likely to be higher than they otherwise would;

d.

the quality and quantity of services are likely to be less than they
otherwise would due to reduced incentives to invest in capacity and
technology improvements; and

e.

innovation and product variety likely will be reduced.

VI. REQUESTED RELIEF
The Plaintiffs request:
49.

That AT&T’s proposed acquisition of T-Mobile be adjudged to violate Section 7

of the Clayton Act, 15 U.S.C. § 18;
50.

That Defendants be permanently enjoined from and restrained from carrying out

the Stock Purchase Agreement dated March 20, 2011, or from entering into or carrying out any

22

agreement, understanding, or plan, the effect of which would be to bring the telecommunications
businesses of AT&T and T-Mobile under common ownership or control;
51.

That Plaintiffs be awarded their costs of this action;

52.

That Plaintiff States be awarded their reasonable attorneys’ fees; and

53.

That Plaintiffs have such other relief as the Court may deem just and proper.

23

Dated this 16th day of September 2011.
Respectfully submitted,
FOR PLAINTIFF UNITED STATES OF AMERICA:
__/s/ Sharis A. Pozen_______________
Sharis A. Pozen (D.C. Bar #446732)
Acting Assistant Attorney General

__/s/ Joseph F. Wayland_____________
Joseph F. Wayland
Deputy Assistant Attorney General

__/s/ Claude F. Scott, Jr._____________
Claude F. Scott, Jr. (D.C. Bar #414906)*

__/s/ Lawrence M. Frankel___________
Lawrence M. Frankel (D.C. Bar #441532)

__/s/ Hillary B. Burchuk_____________
Hillary B. Burchuk (D.C. Bar #366755)
__/s/ Gene I. Kimmelman____________
Gene I. Kimmelman (DC Bar #358534)
Chief Counsel for Competition Policy and
Intergovernmental Relations

__/s/ Patricia A. Brink______________
Patricia A. Brink
Director of Civil Enforcement

__/s/ Laury E. Bobbish_____________
Laury E. Bobbish
Chief, Telecommunications & Media
Enforcement Section

*Attorney of Record

Kenneth M. Dintzer
Matthew C. Hammond
Shobitha Bhat
Katherine A. Celeste
Jillian E. Charles (D.C. Bar #459052)
Robert E. Draba (D.C. Bar #496815)
Stephen T. Fairchild
Lauren J. Fishbein (D.C. Bar #451889)
Kerrie J. Freeborn (D.C. Bar #503143)
Peter A. Gray
F. Patrick Hallagan
Ryan M. Kantor
Robert A. Lepore
Brent E. Marshall
William M. Martin
Kathleen S. O’Neill
Mark Tobey
Frank Y. Qi
Carl Willner (D.C. Bar #412841)
Attorneys
U.S. Department of Justice, Antitrust Division
Telecommunications & Media
Enforcement Section
450 Fifth Street, N.W., Suite 7000
Washington, DC 20530
Phone: [phone]
Facsimile: [phone]
[e-mail]
24

FOR PLAINTIFF STATE OF NEW YORK
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
HARLAN A. LEVY
First Deputy Attorney General
By:
/s/Richard L. Schwartz
Richard L. Schwartz
Geralyn J. Trujillo
Mary Ellen Burns
Keith H. Gordon
Matthew D. Siegel
STATE OF NEW YORK
Office of the Attorney General
120 Broadway, 26th Floor
New York, NY 10271-0332
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

25

FOR PLAINTIFF STATE OF WASHINGTON:
ROBERT M. MCKENNA
Attorney General
TINA E. KONDO
Deputy Attorney General
By:
/s/David M. Kerwin
David M. Kerwin (WSBA No. 35162)
Jonathan A. Mark (WSBA No. 38051)
Antitrust Division
800 Fifth Avenue, S. 2000
Seattle, WA 98104
Tel: [phone]
Fax: [phone]
[e-mail]

26

FOR PLAINTIFF STATE OF CALIFORNIA:
KAMALA D. HARRIS
Attorney General of California
MARK BRECKLER
Chief Assistant Attorney General
KATHLEEN FOOTE
Senior Assistant Attorney General
By:
/s/Quyen D. Toland
Quyen D. Toland (CA SBN 195429)
Deputy Attorney General
Office of the Attorney General
Antitrust Section
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
Tel: [phone]
Fax: [phone]
[e-mail]
Ben Labow (CA SBN 229443)
Deputy Attorney General
Office for the Attorney General
Antitrust Section
300 South Spring Street, Suite 1700
Los Angeles, CA 90013
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for the State of California

27

FOR PLAINTIFF STATE OF ILLINOIS:

LISA MADIGAN
Attorney General
ROBERT W. PRATT
Chief, Antitrust Bureau
By:
/s/Robert W. Pratt
Robert W. Pratt
Chadwick O. Brooker
Office of Illinois Attorney General
100 W. Randolph Street
Chicago, Illinois 60601
[phone]
Fax: [phone]
[e-mail]
[e-mail]

28

FOR PLAINTIFF COMMONWEALTH OF MASSACHUSETTS:
MARTHA COAKLEY
Attorney General

By:
/s/William T. Matlack
William T. Matlack (MA BBO No. 552109)
Chief, Antitrust Division
Michael P. Franck (MA BBO No. 668132, D.C. Bar No. 501023[inactive])
Assistant Attorney General
Antitrust Division
One Ashburton Place
Boston, MA 02108
Tel: [phone]
Fax: [phone]
[e-mail]

29

R. MICHAEL DEWINE
Attorney General
JENNIFER L. PRATT
Assistant Attorney General
Chief, Antitrust Section
By:
/s/Jessica L. Brown
Jessica L. Brown (Ohio S.Ct. No. 86204)
Antitrust Division
150 E. Gay St. – 23rd Floor
Columbus, OH 43215
Tel: [phone]
Fax: [phone]
Attorneys for the State of Ohio

30

FOR PLAINTIFF COMMONWEALTH OF
PENNSYLVANIA

LINDA L. KELLY
Attorney General
By:
/s/James A. Donahue, III
JAMES A. DONAHUE, III (PA No. 42624)
Chief Deputy Attorney General
[e-mail]
By:
/s/Joseph S. Betsko
Joseph S. Betsko (PA No. 82620)
Deputy Attorney General
[e-mail]
Office of Attorney General
Antitrust Section
14th Floor, Strawberry Square
Harrisburg, PA 17120
Tel: [phone]
Fax: [phone]
Attorneys for the Commonwealth of
Pennsylvania

31

APPENDIX A
Herfindahl-Hirschman Index
The term “HHI” means the Herfindahl-Hirschman Index, a commonly accepted measure
of market concentration. The HHI is calculated by squaring the market share of each firm
competing in the market and then summing the resulting numbers. For example, for a market
consisting of four firms with shares of 30, 30, 20, and 20 percent, the HHI is 2,600 (302 + 302 +
202 + 202 = 2,600). The HHI takes into account the relative size distribution of the firms in a
market. It approaches zero when a market is occupied by a large number of firms of relatively
equal size and reaches its maximum of 10,000 points when a market is controlled by a single
firm. The HHI increases both as the number of firms in the market decreases and as the disparity
in size between those firms increases.
Markets in which the HHI is between 1,500 and 2,500 points are considered to be
moderately concentrated, and markets in which the HHI is in excess of 2,500 points are
considered to be highly concentrated. See Horizontal Merger Guidelines § 5.3 (issued by the
U.S. Department of Justice and the Federal Trade Commission on Aug. 19, 2010). Transactions
that increase the HHI by more than 200 points in highly concentrated markets will be presumed
to be likely to enhance market power. Id. Mergers resulting in highly concentrated markets that
involve an increase in the HHI of between 100 points and 200 points potentially raise significant
competitive concerns and often warrant scrutiny. Id.

i

APPENDIX B
Relevant Geographic Market CMAs
CMA Number and Name
001-New York, NY-NJ
002-Los Angeles-Long Beach, CA
003-Chicago, IL
004-Philadelphia, PA
005-Detroit/Ann Arbor, MI
006-Boston-Lowell-Brockton-Lawrence-Haverhill, MA-NH
007-San Francisco-Oakland, CA
008-Washington, DC-MD-VA
009-Dallas-Fort Worth, TX
010-Houston, TX
011-St. Louis, MO-IL
012-Miami-Fort Lauderdale-Hollywood, FL
013-Pittsburgh, PA
014-Baltimore, MD
015-Minneapolis-St. Paul, MN-WI
016-Cleveland, OH
017-Atlanta, GA
018-San Diego, CA
019-Denver-Boulder, CO
020-Seattle-Everett, WA
021-Milwaukee, WI
022-Tampa-St. Petersburg, FL
023-Cincinnati, OH-KY-IN
024-Kansas City, MO-KS
025-Buffalo, NY
026-Phoenix, AZ
027-San Jose, CA
028-Indianapolis, IN
029-New Orleans, LA
030-Portland, OR-WA
031-Columbus, OH
032-Hartford-New Britain-Bristol, CT
033-San Antonio, TX
034-Rochester, NY
035-Sacramento, CA
036-Memphis, TN-AR-MS
037-Louisville, KY-IN
038-Providence-Warwick-Pawtucket, RI
039-Salt Lake City-Ogden, UT
040-Dayton, OH
041-Birmingham, AL
042-Bridgeport-Stamford-Norwalk-Danbury, CT
043-Norfolk-Virginia Beach-Portsmouth, VA/NC
044-Albany-Schenectady-Troy, NY
045-Oklahoma City, OK
046-Nashville-Davidson, TN
047-Greensboro-Winston-Salem-High Point, NC
048-Toledo, OH-MI

ii

Post-merger
share
43.7%
41.4%
48.1%
45.2%
31.9%
40.9%
50.3%
39.6%
58.0%
52.1%
46.7%
48.1%
31.8%
36.5%
45.5%
29.7%
46.6%
40.8%
41.9%
53.2%
34.3%
39.1%
22.6%
44.0%
31.6%
32.9%
48.6%
41.5%
43.9%
47.2%
30.7%
41.0%
43.4%
26.5%
46.2%
49.6%
48.0%
42.7%
49.6%
29.2%
57.8%
40.3%
28.3%
30.8%
63.2%
31.8%
28.2%
17.4%

HHI PostMerger
3335
3174
3189
3385
2857
3495
3438
3282
3980
3578
3269
3341
3650
3294
3596
3717
3223
3248
3227
4044
2493
2935
2575
3329
3385
3178
3466
3314
3579
3629
3412
3657
3117
4330
3238
3136
3365
3509
3653
2814
4181
3582
3103
3607
4399
3164
3358
3822

Increase in
HHI
951
794
1114
918
420
731
763
636
1267
1350
739
1027
347
570
1033
365
886
711
857
1376
394
741
215
948
362
536
675
515
607
963
407
538
761
228
697
892
864
902
1230
298
1332
602
384
205
1335
347
250
127

049-New Haven-West Haven-Waterbury-Meriden, CT
050-Honolulu, HI
051-Jacksonville, FL
052-Akron, OH
053-Syracuse, NY
054-Gary-Hammond-East Chicago, IN
055-Worchester-Fitchburg-Leominster, MA
056-Northeast Pennsylvania, PA
057-Tulsa, OK
058-Allentown-Bethlehem-Easton, PA-NJ
059-Richmond, VA
060-Orlando, FL
061-Charlotte-Gastonia, NC
062-New Brunswick-Perth Amboy-Sayreville, NJ
063-Springfield-Chicopee-Holyoke, MA
064-Grand Rapids, MI
066-Youngstown-Warren, OH
067-Greenville-Spartanburg, SC
068-Flint, MI
069-Wilmington, DE-NJ-MD
070-Long Branch-Asbury Park, NJ
071-Raleigh-Durham, NC
072-West Palm Beach-Boca Raton, FL
073-Oxnard-Simi Valley-Ventura, CA
074-Fresno, CA
075-Austin, TX
076-New Bedford-Fall River, MA
077-Tucson, AZ
078-Lansing-East Lansing, MI
079-Knoxville, TN
080-Baton Rouge, LA
081-El Paso, TX
082-Tacoma, WA
083-Mobile, AL
084-Harrisburg, PA
085-Johnson City-Kingsport-Bristol, TN-VA
086-Albuquerque, NM
087-Canton, OH
088-Chattanooga, TN-GA
089-Wichita, KS
090-Charleston-North Charleston, SC
091-San Juan-Caguas, PR
092-Little Rock-North Little Rock, AR
093-Las Vegas, NV
095-Columbia, SC
096-Fort Wayne, IN
097-Bakersfield, CA
099-York, PA
100-Shreveport, LA

47.4%
55.5%
50.1%
30.1%
35.9%
40.3%
38.7%
42.6%
57.6%
52.1%
24.6%
49.3%
31.4%
37.0%
43.1%
24.5%
44.8%
30.3%
25.7%
37.3%
28.9%
32.0%
49.7%
41.9%
53.6%
54.4%
38.4%
29.7%
21.5%
27.0%
65.0%
40.9%
41.8%
57.8%
47.2%
24.7%
33.4%
27.5%
27.6%
40.5%
36.2%
54.3%
53.9%
45.6%
31.4%
34.0%
51.7%
48.6%
48.9%

iii

3671
3821
3482
3849
3905
3121
3968
3935
3827
4060
3472
3390
3133
3753
3896
3370
3438
4124
3168
3426
4427
3236
3317
3618
3680
3867
3479
3394
3689
2812
4838
2877
3683
4048
3973
4323
3400
4242
3799
3081
3483
4022
3867
3076
3887
3824
3643
3922
3618

770
1531
1084
354
227
739
419
414
768
1052
267
1086
331
635
840
174
639
381
163
469
326
279
788
500
885
1157
582
431
155
123
611
751
866
1177
576
241
541
267
262
765
654
1134
276
958
408
314
795
656
197