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

Filing 69

Memorandum in opposition to re 67 MOTION to Quash Subpoena filed by AT&T INC.. (Attachments: # 1 Exhibit A, # 2 Exhibit B (Declaration of Steven F. Benz), # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Notice Regarding Filing of Sealed Material, # 10 Text of Proposed Order)(Benz, Steven) (Additional attachment(s) added on 11/3/2011: # 11 Exhibit 4 (FILED UNDER SEAL), # 12 Exhibit 5 (FILED UNDER SEAL) , # 13 Exhibit 6 (FILED UNDER SEAL)) (jf, ).

RULE 45 REQUESTS FOR PRODUCTION TO SPRINT
AT&T’s Current Position
AT&T’s Position

Request
1. All requests, whether formal or informal, for information
relating to the Transaction, from: (a) the U.S. Department of
Justice, (b) the Federal Communications Commission, (c) the
Office of the State Attorney General of any state, (d) the public
utilities commission of any state, or (e) any other federal, state
or local government entity.
2. All documents the Company produced to and any
correspondence or communication with: (a) the U.S.
Department of Justice, (b) the Federal Communications
Commission, (c) the Office of the State Attorney General of any
state, (d) the public utilities commission of any state, or (e) any
other federal, state or local government entity relating to the
Transaction.
3. All documents analyzing the Transaction, including, but not
limited to:
 documents evaluating or analyzing the potential impact of the
Transaction on the Company or on consumers, other mobile
wireless service providers, or any other party;
 financial, economic, engineering or technical models analyzing
the effects of the Transaction on price, quality, capacity, supply
or demand conditions, or any other economic variable,
including any evaluations or analyses of the efficiencies
generated by the Transaction;
1

Withdrawn as satisfied1

Withdrawn as satisfied pending Sprint’s promised production of
an interrogatory provided to MN. AT&T considers this request
satisfied based on Sprint’s representation that everything that it
provided to the FCC is included in the DOJ production. If that
is not accurate, AT&T requests a full production of everything
that Sprint provided to the FCC.
Update production to the present

In the interest of compromise and focusing its requests, AT&T is withdrawing certain requests as satisfied although the DOJ
production does not appear to fully respond to the request.

1



documents evaluating or analyzing the impact of the
Transaction on innovation in the mobile wireless business;
 documents relating to the Company’s plans to compete with
AT&T and other mobile wireless service providers postTransaction;
 documents evaluating or analyzing any actions the Company
might take in response to the Transaction;
 documents relating to actions contemplated by the Company or
any plans it has formulated or considered, including any
business combination with T-Mobile, in the event the
Transaction is not consummated.
4. All documents relating to the Company’s consideration of any
merger, acquisition, joint venture, or other business
combination with T-Mobile, including, but not limited to:
 documents reflecting, referring or relating to the Company’s
reasons for seeking such a transaction with T-Mobile, and any
benefit or efficiency contemplated from the transaction;
 communications, discussions, or negotiations between the
Company and T-Mobile;
 documents that reflect financial, economic, engineering or
technical models analyzing the effects of the proposed
combination on price, quality, capacity, supply or demand
conditions, or any other economic variable;
 documents discussing the reasons that the transaction did not
take place; or
 documents evaluating or analyzing the potential impact of such
a business combination on: (a) the Company, (b) its customers,
subscribers or consumers, (c) its investors, (d) its network for
mobile wireless services, (e) customers, subscribers or
consumers of other mobile wireless service providers, (f) other
mobile wireless service providers, or (g) competition and
innovation in the mobile wireless ecosystem.

2

Update production to the present

5. All documents relating to transactions entered into from January
1, 2004 through the present involving: (a) Nextel, (b) Virgin
Mobile, (c) Clearwire, or (d) any other mobile wireless
provider, that: (i) the Company submitted to the U.S.
Department of Justice in response to Item 4(c) of the
Notification and Report Form filed by the Company pursuant to
the Hart-Scott-Rodino Antitrust Improvement Act, or (ii) reflect
any analysis of anticipated or achieved efficiencies or synergies
for such transaction.
6. All documents analyzing, discussing, or assessing T-Mobile’s
competitive position or significance.
7. All documents regarding the Company’s efforts, through each
of its Sprint, Boost Mobile or Virgin Mobile brands, to target or
solicit T-Mobile customers, including documents analyzing the
actual or potential impact of such activities.
8. All documents relating to any actual or proposed competitive
response by the Company (as a whole or through its Sprint,
Boost Mobile, or Virgin Mobile brands) to T-Mobile’s rate
plans, pricing, advertising, service offering, device offering, or
network offering nationally or in any sub-national area.
9. All documents relating to any actual or proposed competitive
response by the Company (as a whole or through its Sprint,
Boost Mobile, or Virgin Mobile brands) to the rate plan,
pricing, advertising, service offering, device offering, or
network offering of MetroPCS, Leap, US Cellular, Cellular
South, or any other wireless provider nationally or in any subnational area.
10. All business plans or other strategic plans relating to the
Company’s mobile wireless services (for the Company as a
whole or through its Sprint, Boost Mobile, or Virgin Mobile
brands) including, but not limited to, plans to enter or expand
service into any geographic area, plans to improve or increase
3

Supplement the DOJ production to include responsive
documents regarding Nextel, and any additional responsive
documents regarding Virgin and Clearwire
[These documents were not squarely called for by DOJ’s CID.]

Supplement the DOJ production with key custodians from the
Boost, Virgin and Business segments, and update entire
production to the present
Supplement the DOJ production with key custodians from the
Boost, Virgin and Business segments, and update entire
production to the present
Supplement the DOJ production with key custodians from the
Boost, Virgin and Business segments, and update entire
production to the present

Supplement the DOJ production with key custodians from the
Boost, Virgin and Business segments, and update entire
production to the present

Supplement the DOJ production with key custodians from the
Boost, Virgin and Business segments and research and
development plans, and update entire production to the present

market share (in total or in any segment), research and
development plans, marketing plans, plans to introduce new
services, devices, or products, or plans to improve existing
services, products, or network capacity or quality.
11. All documents relating to the Company’s ability to compete (as
a whole and separately for its Sprint, Boost Mobile, or Virgin
Mobile brands) with AT&T, T-Mobile, Verizon, MetroPCS,
Leap, or other mobile wireless service providers, including, but
not limited to, any competitive assessment or other description,
analysis, or comparison with respect to device offerings,
network quality, features and functionality, pricing, churn,
customer service, or other dimension of competition.
12. All studies, reports, or analyses that reflect the Company’s, any
other mobile wireless service provider’s, or wireless industry:
(a) forecasts of usage demand for mobile wireless services, (b)
analyses or estimates of demand elasticities or other studies of
such demand, or (c) the determinants of demand for mobile
wireless services.
13. Documents sufficient to show any efforts by the Company to
innovate or lead in the adoption of any devices, network
technology, pricing plans, or any other innovation.
14. Documents sufficient to show all research and development
activities in which the Company has engaged in the past two
years or plans to engage in the next 18 months either
independently or through joint ventures, partnerships, or other
associations with other companies or entities, including, but not
limited to: (a) any manufacturer of devices, (b) any developer
of operating systems, (c) any developer of applications, or (d)
any participant in the provision of any type of network
technology.
15. Documents sufficient to identify the amount spent by the
Company on: (a) national advertising, and (b) local advertising
(in any sub-national area, provided separately by area) for any
4

Supplement the DOJ production with key custodians from the
Boost, Virgin and Business segments, and update entire
production to the present

Update production to the present

Withdrawn as satisfied

Supplement the DOJ production to fully address request and
update production to the present
[All of these documents were not called for by DOJ’s CID as
modified.]

Withdrawn as satisfied

of the Company’s mobile wireless services by month for the
past three years.
16. Documents sufficient to show all promotional or other
advertising materials created or used within the past two years
that compare the Company’s mobile wireless services (through
any of its Sprint, Boost Mobile, or Virgin Mobile brands) with
services offered by any other mobile wireless service provider
on a national or sub-national level, including, but not limited to,
comparisons based on price, network quality, device portfolio,
or customer service.
17. All analyses, reports, studies or market research reports
(including, but not limited to, demographic and psychographic
surveys) of consumers, subscribers, or customers relating to:
(a) consumer, subscriber or customer preferences or behavior in
selecting mobile wireless service providers; (b) the Company’s
brand image (including the Sprint, Boost Mobile, and Virgin
Mobile brands); (c) the mobile wireless services provided by the
Company (including through its Sprint, Boost Mobile, and
Virgin Mobile brands), including, but not limited to, network
speed or quality, voice or data coverage, or customer service or;
(d) the services of any other mobile wireless service provider,
including, but not limited to, network speed or quality, voice or
data coverage, or customer service; or (e) the brand image of
any other mobile wireless service provider.
18. Documents sufficient to show: (a) all rate plans the Company
has offered (through each of its Sprint, Boost Mobile, and
Virgin Mobile brands) at retail to consumers from January 1,
2008 to the present for any voice, text, and/or data service,
including, but not limited to, the rate plan price, type of service,
the terms and conditions applicable to the rate plan, the types of
customers to whom the rate plan was available, geographic area
in which the rate plan was available, and the time period during
which the rate plan was available; (b) the reasons for and impact
of any rate plan change by the Company, (c) the factors the
5

Update production to the present

Withdrawn as satisfied

Supplement the DOJ production to include information from
May 2009 to April 2010.

Company uses to set its pricing, and (d) any competitive
responses to such rate plan change by any other mobile wireless
service provider.
19. Documents sufficient to show all bids the Company has
submitted for mobile wireless services to business or
government entities over the past three years, whether or not the
bid was successful, including, but not limited to, documents
sufficient to show for each such bid: (a) the name of the entity;
(b) the date the Company submitted its bid; (c) the terms of the
bid; (d) the total contract value; (e) the number of lines; (f) the
geographic scope; (g) the scope of services requested; and (h)
whether the Company was awarded the contract, and if not, the
identity of the winning bidder, if known.
20. Documents sufficient to show for each of the Company’s
business and government subscribers, by year for the past three
years, the total lines, total revenue, geographic locations,
product or services purchased, price, and payment
arrangements.
21. Documents sufficient to show: (a) the identity of your business
and government customers; (b) the number of the Company’s
IRU and CRU subscribers, separately, by month for the past
three years, (c) the Company’s ARPU for IRU and CRU
subscribers, separately, by month for the past three years, (d)
the Company’s churn rate for IRU and CRU customers,
separately, on a national basis and any sub-national basis
tracked by the Company by month for the past three years, and
(e) the percentage of government or business contracts that
include Push-To-Talk service.
22. All documents evidencing business or government wireless
service RFPs or other opportunities in which T-Mobile bid for
the business or was a factor the Company considered or
responded to in its offering.

6

Update production to the present

Supplement the DOJ production to include information from
May 2009 to April 2010.

Supplement the DOJ production to include information from
May 2009 to April 2010.

Supplement the DOJ production with key custodians from the
Business segment to include documents discussing the
opportunities and how they were won or lost

23. Documents sufficient to show by year for each of the past five
years both nationally and in any sub-national area tracked by
the Company: (a) the number of cell sites (i) in service on the
Company’s network today, (ii) deployed in the last five years,
or (iii) located on third party structures and/or collocated with
carriers or other third parties, (b) where the cell sites are
deployed, (c) the length of time required to deploy the cell sites,
(d) the number and location of proposed cell sites that the
Company has sought to deploy but has abandoned or not yet
completed deployment and the reasons for any such
abandonment or lack of completion, and (e) plans for
deployment of cell sites in the next five years.
24. Documents sufficient to show by year for each of the past five
years: (a) the number of DAS deployments (i) in service on the
Company’s network today, (ii) deployed in the last five years,
(b) the location of the DAS deployments, (c) the length of time
required for the DAS deployments, (d) the number and location
of proposed DAS deployments that the Company has
abandoned or not yet completed deployment and the reasons for
any such abandonment or lack of completion, and (e) plans for
DAS deployment in the next five years.
25. Documents sufficient to show by year for each of the past five
years: (a) the number of Wi-Fi hotspots (i) in service on the
Company’s network today, (ii) deployed in the last five years,
(b) where the Wi-Fi hotspots are deployed, (c) the length of
time required to deploy the Wi-Fi hotspots, (d) the number and
location of proposed Wi-Fi hotspots that the Company has
sought to deploy but has abandoned or not yet completed
deployment and the reasons for any such abandonment or lack
of completion, and (e) plans for deployment of Wi-Fi hotspots
in the next five years.
26. Documents sufficient to show by year for each of the past five
years: (a) the number of femtocells (i) in service on the
Company’s network today, (ii) deployed in the last five years,
7

Update production to the present

Withdrawn as satisfied

Withdrawn as compromise

Withdrawn as compromise

(b) where the femtocells are deployed, (c) the length of time
required to deploy the femtocells, (d) the number and location
of proposed femtocells that the Company has sought to deploy
but has abandoned or not yet completed deployment and the
reasons for any such abandonment or lack of completion, and
(e) plans for deployment of femtocells in the next five years.
27. All documents relating to the Company’s requirements for
leasing or acquiring cell sites, including, but not limited to, any
analyses or plans to do so and the costs and timing involved.
28. All documents relating to the Company’s analysis, use, or
consideration of “heterogeneous networks” as that term is used
on pages 99 and 105 of the Company’s Petition to Deny the
Transaction, filed with the FCC.
29. Documents sufficient to show all actual or proposed plans for
future upgrades or expansions of the Company’s mobile
wireless voice or data network, including, but not limited to,
any future deployment of 4G network technology (through LTE
technology, WiMAX, or other 4G technology), allocation or
acquisition of spectrum (directly or through affiliates,
subsidiaries, or other related companies), alternative backhaul
arrangements, network deployment cost projections, and
network infrastructure build-out plans.
30. Documents sufficient to show the Company’s efforts to migrate
subscribers across network technology platforms (e.g., from 2G
to 3G; from 3G to 4G), including, but not limited to, any plans
for such migration, any efforts undertaken to induce such a
migration, any plans to sunset 2G services, and any analyses of
the impact of such efforts.
31. All documents relating to any proposed or actual network
capacity sharing or leasing arrangements by the Company,
including, but not limited to, any analyses of spectrum leasing
options, roaming or network sharing arrangements, and the
costs and feasibility of such options.
8

Withdrawn as compromise

Withdrawn as compromise

Update production to the present

Withdrawn as satisfied

Supplement the DOJ production to fully respond to the request
and update production to the present
[These documents were not called for by DOJ’s CID as
modified.]

32. Documents sufficient to show the Company’s forecast or other
analysis of network capacity utilization at the national and subnational level, including, but not limited to projections of
“spectrum exhaust” or the point in time at which the capacity
utilization becomes so high that the quality of service is
significantly degraded.
33. Documents sufficient to show in detail the Company’s
relationship with Clearwire, including any governance rights or
other legal rights with respect to Clearwire or Clearwire’s
spectrum assets, and any commercial arrangements between the
Company and Clearwire including wholesale or resale
agreements and spectrum leases.
34. All documents relating to the Company’s plans with respect to
Clearwire, including, but not limited to: (a) any plan or
discussion of deploying or otherwise making use of Clearwire’s
spectrum assets in any geographic area, and the technology to
be used in any such deployment; or (b) plans with respect to any
4G LTE network deployment, including any role of Clearwire
or Clearwire’s spectrum assets in any such plan.
35. All contracts, agreements, or documents reflecting negotiations
with device manufacturers relating to exclusive or preferential
rights for current or future device offerings, including, but not
limited to, offerings of devices that are under development.
36. Documents sufficient to show smartphone sales and smartphone
penetration, by year for the past three years, and projected sales
and penetration in the next two years.
37. Organization charts sufficient to identify all employees of the
Company: (a) with management-level responsibility for sales,
marketing, pricing, network operations, (b) performing merger
and acquisition strategic planning functions relating to the
mobile wireless services offered by the Company, and (c) who
are responsible for the negotiation of any agreements relating to
the procurement of devices to be sold by the Company at retail.
9

Withdrawn as satisfied

Supplement the DOJ production to fully respond to the request
and update production to the present
[These documents were not called for by DOJ’s CID as
modified.]
Supplement the DOJ production to reasonably respond to the
request and update the production to the present.
[These documents were not called for by DOJ’s CID as
modified.]

Fully respond to the request and update the production to the
present
[These documents were not called for by DOJ’s CID as
modified.]
Withdrawn as satisfied

Withdrawn as compromise

38. Documents sufficient to show the Company’s mobile wireless
service demand forecasts for the next five years for the
Company as a whole and for each of its Sprint, Boost Mobile,
and Virgin Mobile brands, including forecasts of both
subscriber growth and usage per subscriber growth (separately
for voice, data, and text) by network generation (e.g., 2G, 3G,
4G) and type of subscriber (post-paid vs. pre-paid) nationally
and for any sub-national areas tracked by the Company.
39. Documents sufficient to show the value of a customer to the
Company (as a whole and for each of its Sprint, Boost Mobile,
and Virgin Mobile brands) over that customer’s lifecycle
including the costs associated with acquiring a customer
initially, the lifetime costs of subscriber, and the lifetime
revenue of a subscriber, separately by customer type (pre-paid,
post-paid).
40. Documents sufficient to show the number of subscribers and
share of subscribers, including the number of pre-paid, postpaid, wholesale and M2M/connected device subscribers, for the
Company and any other mobile wireless service providers, on a
national basis and any sub-national basis tracked by the
Company by month for the past three years.
41. Documents sufficient to show the number of gross additions,
the number of net additions, share of gross additions, and share
of net additions for the Company and any other mobile wireless
service providers on a national basis and any sub-national basis
tracked by the Company by month for the past three years.
42. Documents sufficient to show the Company’s projections or
forecasts for future market share, share of gross adds, share of
net adds, or churn rate for the Company and any other mobile
wireless service providers on a national basis and any subnational basis tracked by the Company.
43. Documents sufficient to show for the Company as a whole and
separately for each of (a) the Sprint brand, (b) the Boost Mobile
brand, and (c) the Virgin Mobile brand, ARPU, revenue per
10

Update production to the present

Withdrawn as satisfied

Supplement the DOJ production to include information from
May 2009 to April 2010 and update production to the present.

Supplement the DOJ production to include information from
May 2009 to April 2010 and update production to the present.

Update production to the present

Supplement the DOJ production to include information from
May 2009 to April 2010 and update production to the present.

minute of use, revenue per bytes of data use, by category of
plan and customer type (e.g., consumer, government or
business, and pre-paid), on a national basis and any sub-national
basis tracked by the Company by month for the past five years.
44. Documents sufficient to show the ARPU for new subscribers by
month for their first two years of service for the Company as a
whole and for each of its Sprint, Boost Mobile, and Virgin
Mobile brands.
45. Documents sufficient to show the nature and amount of any
discounts or promotions, including, but not limited to, device
subsidies and termination fee waivers, offered by the Company
on any mobile wireless service or device on a national basis and
any sub-national basis by month for the past three years, and
their effect on customer acquisition or retention for each of the
Company’s Sprint, Boost Mobile, and Virgin Mobile brands.
46. Documents sufficient to show the rate of churn, rate of porting,
number of subscribers voluntarily terminating service (i.e.
“disconnects”), and number of subscribers porting to any other
mobile wireless service providers (including any “port-in” or
“port-out” data) for the Company as a whole, and separately for
the (a) Sprint brand, (b) the Boost Mobile brand, and (c) the
Virgin Mobile brand, on a national basis and any sub-national
basis tracked by the Company by month for the past three years.
47. All analyses of substitution, churn or switching among mobile
wireless service providers for the Company, including, but not
limited to: (a) analyses of the extent to which churn or
switching is correlated with or due to pricing, network quality,
customer service, or length of contract commitments, or the
absence or availability of particular services or devices; or (b)
analyses of the extent to which particular marketing or
promotional efforts by the Company or any other mobile
wireless service provider contributed to churn or subscribers
switching to or from the Company.
11
DCACTIVE-16510387.1

Withdrawn as satisfied

Update production to the present

Update production to the present

Withdrawn as satisfied