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In late November, AT&T and T-Mobile withdrew their application for FCC’s consent to their proposed merger because of an anticipated adverse decision signaled by FCC Chairman Genachowski, opting to focus their efforts on the Department of Justice’s antitrust case.  The carriers’ apparent assumption was that the FCC would surely grant a re-filed application consistent with the court’s favorable ruling.

As it initiated the process, AT&T believed its strategy of orchestrating apparent support from every imaginable interest group, conducting a relentless media campaign, leveraging its influence in Congress, and playing to the FCC’s intense interest in broadband deployment would overcome any concerns over market concentration in the increasingly important Wireless market.  AT&T is beginning to grasp that critical decision makers do not share its insular belief of inevitable success.

On December 9, 2011, as reported by Grant Gross, U.S. District Judge Ellen Segal Huvelle responded empathetically to DoJ’s request to stay the litigation or dismiss the lawsuit without prejudice until such time as AT&T and T-Mobile re-file their application with the FCC.  DoJ maintains that the carriers’ withdrawal of their application from the FCC, there is no active deal warranting the court’s deliberations.  Judge Huvelle reportedly has directed DoJ to file a motion in support of its position next Tuesday and scheduled a hearing for December 15, 2012.

As reported by Bloomberg’s Tom Schoenberg and Sara Forden, with apparent equal measures of candor and arrogance, AT&T’s trial counsel responded to DoJ’s position by advising Judge Huvelle “[w]ithout a speedy court case, the deal is dead….It’s either a trial on our timetable, or there’s no trial at all.”  While AT&T may still prevail, it is so very refreshing that the FCC and DoJ, respectively, have taken a hard look and decided to stand up to AT&T.  Judge Huvelle should reject AT&T’s latest demand that the DoJ’s lawsuit be conducted “on [AT&T’s] timetable” or not at all.