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

Filing 95

MOTION to Quash Subpoena by LIGHTSQUARED GP, INC. (Attachments: # 1 Declaration of Patricia Robbins, # 2 Exhibit A to Declaration, # 3 Exhibit B to Declaration, # 4 Exhibit C to Declaration, # 5 Exhibit D to Declaration, # 6 Text of Proposed Order)(jf, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF

AMERICA,

et

)
)
)
)

al.,

Plaint ~ffs,

Case No. 1:11 -cv-0 I 560-ESH

)

v.

AT&T INC., et

Discovery Matter: Referred
Special Master Levie

al.,

to

)
)
)

Defendants.

________________________________________________________________________________)

NON-PARTY LIGHTSQUARED GP, INC.’S MOTION TO QUASH
On November

LightSquared GP,
seeks

testimony

14, 2011, counsel for AT&T, Inc. served

Inc. for

on

a

deposition pursuant

Communications Commission

(collectively, “defendants”)
Because FCC

approval

to

FCC

question. Indeed,

applications

granted

30(b)(6).’

to Fed. R. Civ. P.

categories.

On

subpoena

November

on

non-party

AT&T’s

subpoena

the

Federal

29,

the request of AT&T, T-Mobile, and Deutsche Telekom

withdraw their

pending applications

related to this transaction.

is necessary before defendants may close any transfer of T-Mobile’s

licenses, defendants’ decision
future is in

broad

different

11

a

because

AT&T itself has

they

non-party LightSquared should
scheduled for December 7.

to withdraw their

applications suggests

publicly suggested

intend to either abandon the deal
not be

(Robbins

Declaration of Patricia Robbins

required

Dccl. Ex.

that defendants withdrew their

or

to go forward with

B.)

(“Robbins Dccl.”)

Ex. A.

that the current deal’s

change
a

its terms. Either way,

deposition

that is

currently

LightSquared respectfully requests
the

deposition

at least be

until defendants

postponed,

continue to pursue the transaction

abandon the current transaction,

it is

as

change

or

to the burden and expense of

subjected

intend to abandon the deal, then the

parties

intend to

be relevant to that

obligation

the terms of the
deal

to

its terms,

multiple depositions.

definitively

LightSquared,

forward with the

deposition

non-parties

as a

to

ensure

will

at this time.

If the

Alternatively,

deposition

if the

what extent

appropriate
to

they

that

third party, should not be

is not necessary at all.

deal, whether and/or

on

decide whether

or

If the defendants intend to

structured.

be assessed at the

can

minimize the burden

to

unnecessarily

new

currently

going

parties

change

deposition subpoena be quashed,

that AT&T’s

time.

that

LightSquared

may

Defendants have

they

not

are

an

subjected

See Fed. R. Civ. P. 45.

BACKGROUND

April 21, 2011, defendants applied

On

AT&T control

over

required

Defendants cannot
outcome

of the

the FCC for consent to transfer to defendant

licenses and authorizations that defendant T-Mobile USA

These license transfers

transfers is

to

necessary to the

are

proposed

their

proposed

litigation currently pending

holds.

merger and the FCC’s consent to the

under the Communications Act.

complete

currently

See 47 U.S.C.

§~ 214(a), 310(d).

merger without the FCC’s consent,

regardless

of the

before this Court.

On November 23, FCC Chairman Julius Genachowski announced that he would circulate

a

draft

Hearing Designation

defendants’

requested

to

applications

to

an

withdraw their

Order among the

FCC

administrative law

judge

pending

defendants’ request and released

a

FCC

Commissioners
for

applications.

111-page

hearing.

seeking

The next

to

day,

refer the
defendants

On November 29, the FCC

granted

staff report that identified in detail the ways in

which the agency believes that the defendants’

proposed

2

transaction would lessen

competition

and contravene the

public

interest.

See

http://www.fcc.gov/document/bureau-order-dismissing

applications-and-bureau-staff-report.
On November 29, Jim Cicconi, AT&T’s Senior Executive Vice President of External and

Legislative Affairs,
why

reasons

transaction
transaction
In

an

commented

applicant

altogether,
or

the withdrawal and stated that

on

would withdraw

or

it

plans

to

a

merger

submit

a

application

—

t]here

are

essentially

either it intends to abandon the

application reflecting changes

new

two

the

to

materially changed circumstances.”2

light

of these recent

developments,

as

required by

Local Rule

7(m),

on

December 5,

2011, LightSquared requested that the defendants postpone the LightSquared deposition until the
defendants

securing

definitively

FCC

determine how

Ex.

path

D.)

to

obtain FCC

moves

defendants submit

at.

the fact that

approval,

they

intend to
have

no

to

quash

new

defendants did not agree to

the Rule

applications

Jim Cicconi, Withdrawal

proceed

30(b)(6) subpoena

to the FCC for

at the

FCC, and

no

LightSquared’s request. (Id. ¶ 6,

deposition voluntarily, LightSquared
and/or to postpone the

deposition

until

approval.

by Right (Nov. 29, 2011),

AT&T Public

http ://attpublicpolicy.comlwireless/withdrawal-by-right/.

3

with any transaction at all.

pending application

Because defendants refused to postpone the

respectfully

2

will structure the transaction for the purpose of

approval, assuming defendants

(Robbins Decl. ¶ 5.) Despite
clear

they

Policy Blog,

available

ARGUMENT

Defendants
expense on”

are

required
such

non-parties,

as

to take “reasonable

discovery

to

be

generally

Compel Compliance
482 F.3d 501, 509
AT&T’s

substantially

Regardless
far

as

to

take

Rule 45

requirement,

sensitive to the costs

Subpoena,

257 F.R.D. 12, 18-19

public

may not

or

proceed

at

all.

LightSquared

to obtain the necessary

In

parties.”

that

or

parties

supervising

re

Motion to

Watts

v.

SEC,

approvals

LightSquared

now.

subjected

to burdensome and

proceed.

That is contrary to both the

costly discovery
spirit

altogether,

or

be relevant to that

way to know

deal.3 Cf

new

(quashing deposition subpoena
“irrelevant to the ‘central

and other

simply
no

re

The defendants’ withdrawal of their FCC

in the

it,

as

should not be

they

Moreover,
whether

Motion to

in part because it

inquiry”

and

In

today

restructure

demonstrable need

nonparties

and the letter of Rule 45.

no

voluntarily

from the FCC for the current deal.

while defendants decide how

defendants decide to restructure the deal, there is

even

structured may be

Defendants have

is concerned, the result is the same—defendants have

LightSquared’s deposition

seeking testimony

district courts

currently

as

(Supra n.2.)

whether defendants intend to abandon this deal

257 F.R.D. at 19

ensure

(D.D.C. 2009) (quoting

suggest that the transaction

statements

applications

information would

third

on

To

45(c)(1).

“requires

imposed

undue burden

imposing

(D.C. Cir. 2007)).

altered

withdrawn their

with

Fed. R. Civ. P.

LightSquared.

and their attorneys adhere to this

to avoid

steps

are

going

to

to the extent

LightSquared’s

Compel Compliance,

imposed

an

undue burden

by

matter).

applications

has also abated any urgency in
Any new application that the

scheduling trial in this matter.
“begin a subsequent review process” which would be subject
review period under FCC practice. See In re Applications of AT&T Inc. and
to a 180-day
Deutsche Telekom AG For Consent
to Assign or Transfer Control of Licenses and
WT Docket No. 11-65, ¶ 9 (Nov. 29, 2011).
Authorizations,
conducting discovery

defendants file with the FCC will

4

CONCLUSION
For the

defendants

foregoing

explain

reasons, this Court should

what transaction

they

are

quash

pursuing

the

subpoena

and have

a

plan

until such time

to obtain FCC

as

the

approval

for that transaction.
Date: December 6, 2011

Respectfully submitted,

~7

Jennifer L. Giordano

(D.C. B’~r No. 496746)

LATHAM & WATKINS LLP
555 11th Street

NW, Suite 1000

Washington, D.C. 20004
Telephone: [phone]
Fax: [phone]
jennifer.giordano~lw.com
Attorneys for Non-Party LightSquared GP,

5

Inc.

CERTIFICATE OF SERVICE

hereby certify, on this 6th day of December, 2011, that I caused a true and correct copy
Non-Party LightSquared GP, Inc.’s Motion to Quash to be served upon the following via
I

of

electronic mail:
Matthew C. Hammond
Katherine Celeste
U.S.

Department

of Justice

Antitrust Division
450 Fifth Street, N.W., Suite 7000
Washington, DC 20001

matthew.hammond~usdoj .gov
[e-mail]
Attorney

for Plaintiff United States

and

Steven F. Benz

Kellogg, Huber, Hansen, Todd,
Sumner Square

Evans &

Figel,

P.L.L.C.

1615 M Street, N.W., Suite 400
Washington, DC 20036-3209

[e-mail]
Attorney

for Defendant AT&T, Inc.

Jeimifer L. Giordano

6